IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION ONE

THE PEOPLE OF, THE STATE OF CALIFORNIA, No. A150512

Plaintiff and Respondent, .

vs. Contra Costa County

Superior Court
SHELDON VAUGHN SILAS, JR., No. 51407097
REGINALD LOUIS WHITLEY, JR.,
LAMAR CHARLES MICHAELS, and
LINDA ANN CHANEY,

Defendants and Appellants.

----------------------~--------~~/

APPEAL FROM THE JUDGMENT OF THE SUPERIOR

COURT OF THE STATE OF CALIFORNIA, COUNTY OF

CONTRA COSTA

Honorable Claire Meier, Judge

APPELLANT REGINALD WHITLEY'S OPENING BRIEF

Barry M. Karl
State Bar Number 76953
620 Jefferson Avenue
Redwood City, CA 94063
(650) 366-6789

Attorney for Appellant Reginald Whitley

By appointment of the Court of Appeal under the First District Appellate Project's
Independent-case system.
 TOPICAL INDEX

Page

TABLE OF AUTHORITIES 5

STATEMENT OF APPEALABILITY 10

STATEMENT OF THE CASE 11

STATEMENT OF THE FACTS 17

ARGUMENT 22

THE PREEMPTORY CHALLENGES EXERCISED 22

BY THEPROSECUTOR VIOLATED APPELLANT'S . .

RIGHT TO EQUAL PROTECTION IN VIOLATION

OF BATSON V. KENTUCKY AND PEOPLE V. WHEELER

A. LEGAL LANDSCAPE 22

B. FACTUAL BACKGROUND 24

1. The Arnold-Chaney trial 26

2. Appellant's 2015 jury selection 28

3. Appellant's 2016 jury selection 38

C. THE PEREMPTORY CHALLENGES 40

D. GENERAL RULES REGARDING APPELLATE 45

REVIEW

E. JUROR 563 .46

F. JUROR 211 50

1.. August 23,2016 - voir dire 50

2: September 26,2016 addendum 56

3. September 21. 2016 peremptory challenge 63

G. JUROR 275 68

1. August 31,2016 - voir dire 68

2. September 26,2016 addendum 78

3. September 21, 2016 peremptory challenge 80

H. JUROR 313 81

1. September 1, 2016 - voir dire 81

2. September 26, 2016 addendum 85

3. September 21,2016 peremptory challenge 86

 Page

I. THE COURT COMMITTED ERROR REQUIRING 87

REVERSAL IN DENYING THE DEFENSE

BATSON/WHEELER CHALLLENGES·

THE PROSECUTION PRODUCED INSUFFICIENT 95

EVIDENCE FOR THE JURY TO FIND THAT
APPELLANT HELD A GUN TO THE HEAD OF
BRIEANNA DOW
A. OVERVIEW 95

B. THE RULES REGARDING SUFFICIENCY OF 95

THE EVIDENCE

C. RULES REGARDING USE OF A FIREARM 96

D. THE LACK OF SOLID EVIDENCE 97

1. Susan Laub 97

2. Michael Moss 100

3.. Patricia Moss 101

4. Miguel Solis 102

5. Alexandra Hansen 104

6. Michael Huegenergradt 105

7. Ryan Thomas 105

E. LACK OF EVIDENCE 106

INSUFFICIENT EVIDENCE OF CONSPIRACY 107

A. BACKGROUND 107

B.CONSPIRACY 107

C. THE PROBLEMS 109

D. PREJUDICE 110

THE COURT'S FAILURE TO GIVE A UNANIMITY 111

INSTRUCTION AS TO COUNT FOUR, A VIOLATION

OF SECTION 29800, VIOLATED DUE PROCESS

A. BACKGROUND 111

B. LEGAL RULES 112

C. NO CONTINUOUS COURSE OF CONDUCT 116

EXCEPTION

D. THE COURT'S FAILURE TO GIVE A 118

UNANIMITY INSTRUCTION WAS NOT
HARMLESS
3

 Page

THE COURT MUST REMAND THE MATTER BACK 118

TO THE TRIAL COURT FOR AN EXERCISE OF
DISCRETION AS TO THE SECTION 12022.53 FINDINGS

APPELLANT JOINS IN ARGUMENTS OF APPELLANTS 120

SHELDON SILAS, LAMAR MICHAELS, AND LINDA
CHANEY

CONCLUSION 121

CERTIFICATE OF APPELLATE COUNSEL 122

CERTIFICATE OF MAILING

 TABLE OF AUTHORITIES

Case Page

Adkins v. Warden (11th Cir. 2013) 710 F. 3d 1241 53

Akhlaghi v. Superior Court (2008) 161 Cal. App. 4th 561 109

Batson v. Kentucky (1986) 476 U.S. 79 14, passim.

Chapman v. California (1967) 386U.S.18 118

Coulter v. McCann (7th Cir, 2007)484 F. 3d 459 53

Currie v. Adams (9th Cir. 2005) 149 Fed. Appx. 615 24

Currie v. McDowell (9th Cir. 2016) 825 F. 3d 603 24,66,90

Francis v. Franklin (1985) 471 U.S. 307 114

Foster v. Chatman, 578 U.S. - - ; 136 S.Ct. 1737 25, 90

In re Brown (1998) 17 CAth 873 75

In re Johnson (1935) 3 Cal. 2d 32 109

In re Pratt (1999) 69 C.A.4th 1294 75

Jackson v. VJrginia (1979) 443 U.S. 307 95

Jessie v. State, 659 So. 2d 167 (Ala. Crim. App. 1994) 88

Johnson v. California (2005) 545 U.S. 162 23, passim

Miller-EI v. Cockwell (2003) 537 U.S. 332 66, 89, 90

Paulino v. Castro (9th Cir. 2004) 371 F. 3d 1083 23

People v. Aleman (2016) 247 Cal. App. 4th 660 44

Case Page

People v. Allen (2004) 115 Cal. App. 4th 542 ,24

People v. Brown (1991) 226 Cal. App. 3d 1361 108.

People v. Carrasco (2006) 137 Cal. App. 4th 1050 96

People v. Cater and Burks, No. 5-131405-3 25

People v. Chambers (1972) 7 Cal. 3d 666 96

People v.Cisneros (2015) 234 Cal. App. 4th 111 24

Peoplev. Cooks (1983) 141 Cal. App. 3d 224 108

People v. Deloza (1998) 18 Cal.4th 585 119

People v. Douglas (2018) 22 Cal. App. 5th 1162 94

People v. Eberhardt (1985) 169 Cal. App. 3d 292 109

Peoplev. Flores (2007) 15TCal. App. 4th 216 117

People v. Fuentes (1991) 54 Cal. 3d 707 24

People v. Granillo (1987) 197 Cal. App. 3d 110 67

People v. Guiton(1993) 4 Cal. 4th 1116 110

People v. Jacobs (1987) 193 Cal. App. 3d 375 97

People v. Johnson (1980) 26 Cal.3d 557 95

People v. Li~dberg (2008) 45 Cal.4th 1 96

People v. Percelle (2005) 126 Cal. App. 4th 164, 181-182 116

People v. Redmond (1971) 71 Cal. 2d 745 96

Case Page

People v. Riel (2000) 22 CaL 4th 1153

113

People v. Roldan (2005) 35 Cal. 4th 646

44

People v. Russo (2001) 25 Cal. 4th 1124 107, 108, 113, 114

People v. Scott (2015) 61 Cal.4th 363 45,46

People v. Snow (1987) 44 Cal. 3d 216 67

People v. Thomas (1992) 2 Cal.4th 489 96

Peoplev. Vasquez (2001) 25 Cal. 4th 1225 49

People v. Von Villas(1992) 11 Cal. App. 4th 175 108

People v. Waidla (2000) 22 Cal. 4th 690 112

People v. Wheeler (1978) 22 Cal. 3d 258 14, passim.

People v. Wolfe (2003) 114 Cal. App. 4th 177 114,118

People v. Zamora (1976) 18 Cal. 3d 538 108

Powers v. Ohio (1991) 499 U.S. 400 22

Purkett v. Elem (1995) 514 U.S. 765 87

Snyder v. Louisiana (2008) 552 U.S. 472 24,25, 90, 92

State v. Coleman, 970 So. 2d 511 (La. 2007)

88

United States v. Bishop (9th Cir. 1991) 959 F. 2d 820

88

United States v. Nevils (9th Cir. 2010) 598 F. 3d 1158

88

Statutes Page

Business and Professions Code, section

490
48

Code of Civil Procedure, section

203, subdivision (a) (5)

47

203, subdivision (b)

47

225
59

228
59

229
59

Penal Code, section

184 .
107

186.22, subdivision (b) (1)1(5)

16, passim

187
16, passim

190.2, subdivision (a) (22)

16, passim

190.2, subdivision (c)

16,passim .

1203.4
39, passim

1237, subdivision (a)

10 .

4571
12

12022.53, subdivision (b)

16, passim

12022.53, subdivision (d)

16, passim

12022.53, subdivision (e)

16, passim

12022.53, subdivision (h)

118, 119

29800, subdivision (a) (1)

16, passim

Vehicle Code, section

13555
48

Additional Authorities

United States Constitution

Sixth Amendment 22, passim

California Constitution

Art. I, sec. 16
22, passim

Additional Authorities Page

California Rules of Court, Rule

8.200, subdivision (a) (1) 10
8.200, subdivision (a) (5) 120

Roberson, Jeffery (ACLU Deputy Director arid Director 79

of the Trone Center for Justice and Equality),
Black Lives Matter Is Still Here - And Avoiding
the Mistakes a/Their Predecessors, July 16,2018

https:IIWVv'W.sfgate.comJbayarea/article/ 74
Bay-Bridge-reopening-after-protesters-chain-767354.php

 IN THE COURTOF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION ONE

THE PEOPLE OF" THE STATE OF CALIFORNIA, No. A150512

Plaintiff and Respondent,

vs. Contra Costa County

Superior Court
SHELDON VAUGHN SILAS, JR., No. 51407097
REGINALD LOUIS WHITLEY, JR.,
LAMAR CHARLES MICHAELS, and
LINDA ANN CHANEY,

Defendants and Appellants.

------------------------------------/

APPELLANT'S OPENING BRIEF

STATEMENT OF APPEALABILITY

This appeal, following a jury trial, is from an order that finally

disposes of all the issues between the parties and is authorized by

Penal Code section 1237, subdivision (a). 1 (California Rules of Court,

rule 8.200, subd. (a) (1 ).)

All statutory references are to the Penal Code unless otherwise

indicated.
10

 STATEMENT OF THE CASE.

On October 25, 2012, the prosecution filed a criminal complaint

against appellant and, at that time, two co-defendants, Sheldon Silas

and Lamar Michaels. The complaint charged appellant and the two

co-defendants with multiple murders with various enhancements,

including gang enhancements, and special circumstances, and

conspiracy to commit murder. The crimes were alleged to have

occurred on October 14,2012. (1 CT 1-14.)

Over one year later, on December 18, 2013 the prosecutor,

Melissa Smith, filed a complaint against Linda Chaney. The

complaint alleged forty-nine counts of being a person previously

convicted of a felony who had unlawfully entered Martinez Detention

Facility. (1 CT 72-90.)

That .same day, Ms. Smith filed a first amended complaint

against appellant, Silas, and Michaels, but added a fourth defendant,

Lisa Arnold. The allegations against appellant remained essentially

the same. (1 CT 91-102.)

On December 31, 2013 Ms. Chaney, at a preliminary hearing in

which she was the only defendant, was held to answer on all forty­

nine counts alleged. (1 CT 147-148.)

11

 The information charging Ms. Chaney with forty-nine counts of

section 4571 was filed on January 8, 2014. Again, she was the sole

named defendant. (1 CT 152-170.) She was arraigned on the

information on January 21, 2014, pleading not guilty and denying the

enhancing allegations. (1 CT 221.)

The preliminary hearing for appellant, Silas, Michaels, and

Arnold began on January 31, 2014. (1 CT 250.)

On February 10, 2014, the seventh day of the preliminary

examination involving appellant, Silas, Michaels,· and Arnold, the

prosecutor, Ms. Smith, filed a new complaint against Ms. Chaney,

alleging one count of dissuading a witness. The alleged victim was

Saville Davis and the complaint alleged that the offense occurred

between October 14,2012, the date of the shooting, through February

2014. (1 CT 264-266.)

Over one month later, on March 12, 2014, the prosecutor filed

an amended complaint against Ms. Chaney, which added a second

count of dis'suading a witness, Jane Doe and John Doe, persons other

than Saville Davis. (2 CT 334-335.)

On March 14, 2014 appellant, Silas, Michaels, and Arnold were

held to answer. (2 CT 341-342.)

12
 An information waS filed on March 28, 2014. The charged

individuals were appellant, Silas, Michaels, Arnold, and Chaney.

The three male defendants were charged with killing two

people, Christopher Zinn and Brieanna Shanae Dow. They were also

charged with conspiracy to commit murder. Appellant, alone, was

charged with possessing a weapon after previously being convicted of

a felony.

Appellant was also charged with multiple murder special

circumstances, .gang enhancements, personal gun use, and aiding and

abetting. (9 CT 2596- 2622.)

On April 1, 2014 appellant's privately retained counsel, Roy V.

Lefcourt, declared a conflict of interest. (9 CT 2624.)

Ten days later, on April 10, 2014 counsel was appointed for

appellant and the matter was continued to May 14 for arraignment. (9

CT 2630.)

On May 14, 2014 appellant entered not guilty pleas and denied

the enhancing allegations. (9 CT 2702.)

A conditional examination of witness Patricia Moss was held

on February 17 and 23,2015. (10 CT 3142-3143,3147-3149.)

13

 On February 27, 2015 the prosecutor announced that she was

no longer seeking the death penalty as to appellant and Silas, after

having already declared that she would not seek it as to Michaels. (10

CT 3156.)

Jury trial began on October 19,2015. (11 CT 3445.)

During jury selection, both the defense and the prosecution

made several motions pursuant to Batson v. Kentucky (1986) 476 U.S.

79 and People v. Wheeler (1978) 22 Cal. 3d 258. The court found that

a prima facie case was established by the prosecution. The court then

found that the defense had established gender and race neutral reasons

for exercising those challenges~ (12 CT 3722.) Regarding the defense

BatsonlWheeler motions, the court continuously found that the

defense had not established a prima facie case. (12 CT 3735, 3736,

3747-3748,3757.)

On December 24,2015 appellant joined co-defendant Michael's

motion to suppress "everything that was directly obtained, and, in

addition, the fruits of that evidence, as a result of use by the

prosecution and its agents of the warrantless use of a cell site

simulator." (12 CT 3799-3897; 13 CT 3911-3912, 3967-4052, 4057­

4094.)

14

 On January 12, 2016, the court informed appellant that his

lawyer had died. (13 CT 4099.) The following day, new counsel was

appointed for appellant. (13 CT 4100.) A mistrial was declared on

January 20 and the jury was discharged. (13 CT 4102,4108-4112.)

The. defense filed supplemental briefing on the motion to

suppress. (13 CT 4112-4121,4122-4130,4131-4153.)

The hearing on the motion to suppress began on April 22, 2016.

(13 CT 4154.)

The c'ourt denied the motion to suppress on July 11, 2016. (14

CT 4323-4407.)

Jury selection began on August 1,2016. (14 CT 4425.)

The defense again raised objections. to the prosecutor's

exclusion of prospective jurors pursuant to Batson v. Kentucky, supra,

and People v. Wheeler, supra. The court did find that the defense had

established a prima facie case as to Juror 313, but ultimately denied

all the defense objections under BatsonlWheeler. On September 21,

2016, the jury, and the alternates, were sworn. (15 CT 4546-4549; 16

Supp. RT 2815-2821.)

Verdicts were returned on December 22,2016. (15 CT 4733.)

15

 Appellant was found guilty of fIrst-degree murder (§ 187) in

count one. The jury found true the enhancements pursuant to section

12022.53, s.ubdivision (b), that appellant personally used a fIrearm;

section 186.22, subdivision (b) (1 )/( 5); section 190.2, subdivision (a)

(22); section 190.2,subdivision (c); section ,12022.53, subdivision (e),

and section 12022.53, subdivision (9) (sic).2 (15 RT 4734-4735,

4825-4827.)

Appellant was also found guilty of count two, fIrst-degree

murder. The same six enhancements were found to be true, including

appellant's personal use of a weapon. The jury found the special

circumstance to be true. (15 CT 4737,4834-4836,4843.)

The jury also found appellant guilty of count three, conspiracy

to commit murder. The jury found true t,he enhancements under

sections 186.22, subdivision (b) (1)/(5) and 12022.53, subdivisions (b)

and (d) to be true. (15 CT 4739-4740,4848-4849.)

Appellant was also found guilty of being an ex-felon in

possession of a fIrearm in violation of section 29800, subdivision (a)

(1). The jury also found that appellant possessed a weapon in

2 Should the verdict form have said a violation of section

12022.53, subdivision (e) (1) (A)?
16
violation of section 186.22, subdivision (b) (1)/(5). (15 CT 4741,

4852-4853.)

On January 23, 2017, appellant was sentenced to life in prison

without the possibility of parole plus fifty-seven (57) years. (17 CT

5438.) The court arrived at the sentence as follows; life without the

possibility of parole on the murders, twenty-five years to life to run

consecutively on the section 12022.53, subdivision (e) enhancement

on each murder, three years on section 29800, subdivision (a) (1), and

four years onthe section 186.22, subdivision (b) (1)/(5) enhancement.

(17 CT 5438-5439; 18 CT 5640-5643; 34 RT 6485-6489.)

A timely notice of appeal was filed on January 23, 2017. (18

CT 5621.)

STATEMENT OF THE FACTS

On October 14,2012 an alcohol fueled argument ensued among

friends at the Summerwood Apartment Complex.

According to the prosecution this argument was the result of

something that happened several weeks earlier. Guns that were either

"gang guns" or guns that belonged to Silas, Michaels, or appellant

were stolen and the "gang," or Michaels, or Silas, or appellant were

angry about the taking and wanted to seek revenge on the person or

17

persons responsible for the taking. (7 RT 1611; 18 RT 3419-3420,

3428,3434-3435, 3453; 20 RT 3823; 27 RT 4939.)

The prosecutor introduced evidence, through Michael Avalos, a

"former" Norteno gang member who had received many benefits from

the prosecution, that Silas and appellant suspected that a "black guy"

and a Norteno stole the guns, and asked Avalos for his help in figuring

out who took the guns. (7 RT 1571, 1587, 1589, 1590-1593, 1609,

1612, 1633.)

According to Avalos a few weeks before the argument Silas,

appellant, and everyone who came to his house were trying to buy

Avalos's gun from him, even though the gun was "broken," and they

were trying to buy the gun for more money than it was worth. (7 RT

1673-1674. )

A few days before the argument Zinn spoke with Michaels,

Silas, and appellant. According to Avalos, they kept bringing up the

missing guns to Zinno It was Avalos's impression that Michaels,

Silas, and appellant implied that Zinn had taken the guns. Zinn felt

likewise. Zinn purportedly said, "I've been down with you guys since

day one. I would never do that to you guys." (7 RT 1633.)

According to Avalos, Zinn felt like they were calling him out, but

18

appellant told him that they were not, that they were not blaming Zinn

for stealing the guns. (7 RT 1634.)

On the night of October 13, a day before the argument,

Michaels, Silas, and appellant had a conversation with Avalos. The

conversation revolved around whether Avalos would look out for

them, and whether he, Avalos, had their back. Avalos said that he

would and that he did. They also asked whether Avalos would ever

let anything happen to· them. Avalos told the group that he would

never let anything bad happen to them. (7 RT 1631.)

According to Avalos, it was appellant who was speaking, and it

was appellant who took a leadership role. (7 RT 1632-1633.)

On the fourteenth, the day of the killings, the alcohol fueled

argument morphed into a physical altercation among Dow, Zinn,

Avalos, Silas, and appellant. According to the testimony Zinn had

been beaten repeatedly by fists, feet, and a chair. The physical

altercation resulted in the decedents leaving the apartment complex on

foot. (7 RT 1635-1641.)

After leaving the apartment complex Zinn and Dow stopped ,at

a nearby mobile home park and spoke with assistant manager,Diana

Russio, about a ride on a golf cart that the assistant manager was

19

driving. Both Zinn and Dow seemed happy and were friendly, even

after Ms. Russio told them she could not give them a ride on the golf

cart. Further, Ms. Russio did not see any indications that suggested

that either Zinn or Dow had recently been in a fight in which they, or

at least Zinn, had been pummeled by at least two very large men using

fists, feet, a1)d chairs as weapons. (11 RT 2352,2359,2371.)

Shortly after Zinn and Dow left the apartment complex, Silas,

who was armed with a 9mm Beretta with an extended clip, left the

apartment complex in a highly agitatedstate. 3 (7 RT 1642-1643; 10

RT 2192-2197.) Silas got into a car, a white Toyota Camry, with

another person. (10 RT 2198-2203,2293.)

Appellant also went to the parking lot and either retrieved a gun

from the trunk of a car, or he did not; as at best, Seville Davis, the

only witness to testify about this, could only see the butt of what she

believed to be a gun. (10 RT 2202-2205, 2323-2329.)

Appellant got into another car, not the car containing Silas,

which Michaels then drove. (10 RT 2203, 2316; 12 RT 2554.)

3 Silas's Beretta with an extended clip was black in color, though

the testimony is not completely clear. (10 RT 2174. The black could
refer to Silas's van.)
20
 The Gar with Silas in it turned left onto Buchanan Road. The

car with appellant in it turned right onto Buchanan Road. (10 RT

2293.)

According to the police, Silas caught up with the decedents.

(13 CT 4017.) He got out of the car and began arguing with Zinno

Dow was near Zinn during the argument. (14 RT 2852, 2868-2869,

2887; 15 RT 2952, 2956.) Silas then shot both Zinn and Dow

multiple times, killing them.4 (13 CT 4017; 14 RT 2905; 15 RT

2971.)

Donald Finley, a criminalist and supervisor of the firearms unit

of the Contra Costa Sheriff's Department testified that he received

three bullets taken from Zinn's body· and received eighteen casings

from the scene of the killing. (19 RT 3626-3627, 3646-3650.) In his

opinion all eighteen cartridges were fired from the same gun, "to the

practical exclusion of all other tools," the markings were consistent

with being fired from a Beretta with an extended clip, like the weapon

4 During the Arnold/Chaney first trial, held on October 16, 2014,

before the Honorable John W. Kennedy, in Department 8, Seville
Davis testified, under direct examination by Ms. Smith, that she heard
the fatal gunshots less than sixty (60) seconds after the two cars left
the apartment complex. (3 Supp. RT - 10/16/14 -:- 1072-1073.)
21

possessed by Silas only minutes before the shooting. (19 RT 3654­

3659.)

ARGUMENT

THE PREEMPTORY CHALLENGES EXERCISED BY THE

PROSECUTOR VIOLATED APPELLANT'S RIGHT TO
. EQUAL PROTECTION IN VIOLATION OF BATSON V.
KENTUCKY AND PEOPLE V. WHEELER

A. LEGAL LANDSCAPE

"The jury acts as a vital check against the wrongful exercise of

power by the State and its prosecutors. The intrusion of racial
discrimination into the jury selection process damages both the fact
and the perception of this guarantee. Jury selection is the primary
means by which a court may enforce a defendant's right to be tried by
a jury free from ethnic, racial, or political prejudice, or predisposition
about the defendant's culpability. Active discrimination by a
prosecutor during this process condones violations of the United
States Constitution within the very institution entrusted with its
enforcement, and so invites cynicism respecting the jury's neutrality
and its obligation to adhere to the law." (Powers v. Ohio (1991) 499
U.S. 400, 411-412.)

The Fourteenth Amendment to the United States Constitution

prohibits a party from using preemptory challenges to strike a

prospective juror because of his or her race. (See, Batson v. Kentucky,

supra, 476 U.S. at p. 89; see also U.S. Const. Sixth Amendment; Cal.

Const. Article I, section 16 [jury drawn from representative cross-

section of the community].) The high court set forth a three-step

22

analysis to determine whether a prosecutor has violated the

Constitution's mandate. First, a defendant must establish a prima

facie case of discrimination "by showing that the totality of the

relevant facts give rise to an inference of discriminatory purpose."

(Jd., at pp. 93-94. Italics added.) Second, once the defendant makes a

prima facie showing~ the "'burden shifts to the State to explain

adequately the racial exclusion' by offering permissible race-neutral

\

justifications for the strikes." (Johnson v. California (2005) 545 U.S.

162, 168.) Third, "[i]f a race-neutral explanation is tendered, the trial

court must then decide ... whether the opponent of the strike has

proved purposeful racial discrimination." (Jd.) At this third step

courts should not engage in "needless and imperfect speculation when

a direct answer can be obtained by asking a simple question." (Jd., at

p. 172. "But it does not matter that the prosecutor might have had

good reasons to strike the prospective jurors. What matters is the real

reason they were stricken." Paulino v. Castro (9th Cir. 2004) 371 F.

3d 1083, 1090. Italics in original.)

The unlawful exclusion of even a single juror based on race or

gender requires reversal because it "violates a defendant's right to

equal protection," "unconstitutionally discriminate [s] against the

23

excluded juror," and "undermine [s] public confidence in the fairness

of our system of justice." (Batson v. Kentucky, supra, 476 U.S. at pp.

86,87; People v. Fuentes (1991) 54 Cal. 3d 707, 715; see also Snyder

v. Louisiana (2008) 552 U.S. 472, 478.) . A Batson violation is

structural error. (See, also People v. Cisneros (2015) 234 Cal. App.

4th 111, 120.)

B.FACTUALBACKGROUND

The prosecutor who exercised peremptory challenges to remove

African American jurors - strikes to which defense counsel objected ­

is a member of the Contra Costa District Attorney's Office, which has

a history of Batson violations; Johnson v. California, supra; People v.

Allen (2004) 115 Cal. App. 4th 542; Currie v.Adams (9th Cir. 2005)

149 Fed. Appx. 615; and Currie v. McDowell (9th Cir. 2016) 825 F. 3d

603, 605 ["This is the latest case arising out of a jury selected by

David Brown, a prosecutor with a history of unconstitutional race­

based peremptory strikes. We previously held that Brown violated the

Constitution's Equal Protection Clause when he struck three African­

American women from the jury of petitioner Aldridge Currie's first

trial. See Currie v. Adams, 149 Fed.Appx. 615 (9th Cir. 2005).· At the

retrial resulting from that opinion, the trial judge found that Brown

24

had violated Batson again by striking three African-American

prospective jurors. [~] This case arises out of Currie's second retrial,

in which Brown was the prosecutor once again. In this third attempt

to prosecute Currie, Brown removed one African American juror via

peremptory strike. His stated reasons for striking this juror were all

flawed-each reason was either unreasonable, demonstrably false, or

applied just as well to the non-black jurors Brown allowed to remain

on the jury. Because "[t]he 'Constitution forbids striking even a

single prospective juror for a discriminatory purpose,' "Foster v.

Chatman, 578 U.S. - - , - - , 136 S.Ct. 1737, 1747, 195 L.Ed.2d 1

(2016) (quoting Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct.

1203, 170 L.Ed.2d 175 (2008)), we hold that Currie's habeas petition

should be granted."].

The prosecutor in this case, Melissa Smith, also has a history of

Batson violations, having been found to have engaged in

unconstitutional actions in at least one prior case. (4 RT 1068; 5 RT

1181-1182; Court's Exhibits 15, 16, and 17 [transcripts and certified

minute order from People v. Cater and Burks, No. 5-131405-3].

25

 1. The Arnold - Chaney trial

·In this trial, the prosecutor, Ms. Smith, did her best to keep

African American jurors off the jury. Only one African American

juror, a woman, was left on that jury. (5 RT 1179-1180.)

During jury selection the defense raised a Batson/Wheeler

objection to Ms. Smith's excusal of an African American female

juror, Ms. Jackson. Even though the court did not find a prima facie

case, before ruling on the motion the court inquired of the prosecutor

whether she wished to respond to the defense's motion. The

prosecutor stated that she did. The court found that the defense had

not established a prima facie case and denied the BatsonlWheeler

motion. After denying the motion the court asked the prosecutor, if

she chose to do so, to place her reasons on the record in case "an

appellate court disagrees with my finding as to a prima facie case."

The reasons the prosecutor gave for excusing the juror were that she

was single, had no children, previously resided in Berkeley, and sat on

a jury that was unable to reach a verdict. (3 RT 510-514 [Arnold ­

. Chaney voir dire].)

During the court's initial questioning of the juror the following

exchange occurred: "[The Court:] Ms. Jackson. Good Morning.

26

Couldn't come up with anything for you either. I hate to leave you

alone. How about you? Do you think you can perform the job of a

juror objectively? [Ms. Jackson:] Yes, I can. [The Court:] Okay. Are

there any issues that we should address with you that we neglected to

ask you? [Ms. Jackson:] No. [The Court:] Okay. Thank you." (1 RT

60-61 [Arnold - Chaney voir dire].)

The prosecutor asked Ms. Jackson very few questions. (1 RT

102, 109, 130-131, 138, 144 [Arnold - Chaney voir dire].) Of those

limited questions, only one question touched on the prosecutor's

reasons for excusing the juror, and it related to the juror's prior jury

service in Alameda County. "And not asking you at all for anything

that happened in deliberations or the verdict, but were you frustrated

by the process?" Ms. Jackson answered, "[a] little bit." (1 RT 144.)

There was no follow-up to determine the reason for the frustration, as

the juror very well could have been strongly for guilt, but a single

juror prevented the jury from reaching a verdict.

As to the other reasons, there was nothing in the record to

suggest that the reasons stated by the prosecutor for excusing the juror

were related to the particular case to be tried.

27

 2. Appellant's 2015 jury selection

The prosecutor, Ms. Smith, was the first party to raIse a

Batson/Wheeler objection.

The prosecution's motion came after the court called the names

of the initial twenty-four prospective jurors to be questioned by the

parties and ten of that group had been subject of peremptory

challenges.

The prosecutor objected after the defense excused Mr. Naro,

their fifth peremptory challenge. In . making her motion, the

prosecutor asserted that the defense strikes had all been made against

white males.

The court found that the prosecutor had established a prima

facie case.

According to the court four white males remained in this first

panel. The prosecutor said that there were" 13 persons falling outside

of the category of white male that were in the first 24 and nine appear

to be Caucasian male."

The court did not find that the prosecutor had sustained her

burden. In fact, the court found, after explanations by the defense,

28

good cause for each peremptory challenge exercised, that each strike

by the defense was based on race-neutral reasons. (5 RT 1023-1040.)

The prosecutor struck two African American jurors, Mr.

Bullock and Ms. Howell, to which defense counsel did not object.

When the prosecutor struck Mr. Marshall, the only African American

juror remaining in the box, defense objected under Batson/Wheeler. 5

Even though the prosecutor had excluded every African American

prospective juror to be seated in the box, Mr. Bullock, Ms. Howell,

and now Mr. Marshall, the court stated "I did not find a prima facie

case. I personally have seen reasons for dismissal of Mr. Marshall.

However, I would like to give the People the opportunity to make the

record. ,,6 (9 RT 1831-1832.)

The prosecutor then listed the persons against whom she had

exercised peremptory challenges, all fourteen or fifteen. The trial

court stated, "On those grounds and by a review ofAfrican-Americans

that are still coming up in our current panel [but not in the boxj, 1

don't believe there was a prima facie case." The prosecutor then

5 Each and every Batson/Wheeler objection was joined by all

defense counsel, both in the 2015 voir dire and the 2016 voir dire.
6 The court was confused, conflating the necessary findings at the
first stage, 'and inference, with the necessary findings at the third
stage, whether the moving party had carried its burden.
29
went on to state her reasons for challenging the three African

Americanjurors.

The court stated that it did not find a prima facie case "of

discrimination. I found cognizable reasons for the dismissal of all

three. It would take me longer to do a comparative analysis which I

haven't done and I would like to do so .... So the motion is denied."

(9 RT 1833 . :1835. Italics added.)

The prosecutor then made her second challenge against the

defense regarding their challenges, both collectively and individually,

as to white males. This time the court found no prima facie case. (9

RT 1841-1842.)

Immediately thereafter the prosecutor excused an African

American juror, Ms. Smith. The trial judge did not find a prima facie

case stating that she had "lots of notes here with regard to Ms. Smith .

. .." Being invited by the court ["[w]ould you care to make your

record?"] to state her reasons for excusing the juror the prosecutor

responded. Thereafter the court stated; "So I'm not finding it rises

to the level of discrimination based on. race but for their dog knees

(sic) I believe non-race-based reasons as toMs. Smith [the juror] as

30

well as the other African-American jurors who have been dismissed

by the People."7 (9 RT 1843-1845.)

At that point defense counsel stated. that he believed that only

two other African Americans, both women, remained in the entire

vemre. The court suggested that there may be a third African

American in the panel but was later informed that the person that she

thought was African American [the Deputy District Attorney from

Alameda County] was Hispanic. (9 RT 1845-1847, 1849.)

The court gave Ms. Smith an opportunity to respond. Ms.

Smith responded. Defense counsel replied, asserting that the

prosecutor's strikes were intended to exclude Hispanic men and all

African Americans. He also argued that Ms. Smith's discriminatory

jury selection approach in Ms. Chaney's prior trial produced a jury

with only one seated African American. That juror was the lone hold­

out for acquittal on several counts. The court then confirmed the

ruling on the step one issue, the prima facie case, by engaging in a

rather lengthy comparative analysis of the jurors excluded, but not 'of

the jurors who remained, vaguely approximating a step three analysis,

and denied the defense motion for a mistrial. (9 RT 1850-1873.)

7 The court again conflated its duties at the first stage with the
third stage.
31
 Jury selection continued. The prosecutor challenged Ms.

Dawson, juror 426, an African American woman. The defense again

objected under Batson/Wheeler.

The court, once again, did not find a prima facie case but asked

if the prosecutor would like to place her reasons on the record. The

defense then stated that they needed to place various facts on the

record. The defense stated that Ms. Dawson was the fifth African

American removed by the prosecutor, the third African American

woman stuck by the prosecutor, and that there was only one African

American prospective juror remaining in the "group of 12 and no

others left in the room today." (10 RT 2077-2079.)

Ms. Smith stated she wanted to make a record for any appeal

and gave the following reasons: 1) Ms. Dawson was a retired school

teacher with two children who represented prisoners and 2) she

previously served on a jury that was unable to reach a verdict. (10 RT

2079-2080.)

The defense responded, indicating that out of 560 people that

"we are left with one African American juror and none coming up."

Defense counsel argued that all the prosecutor's peremptory

32

challenges were proxies for race. The court denied the challenge. (l0

RT 2081-2084.)

After the court denied defendant's motion jury selection

continued. The prosecutor, outside the presence of the remaining

prospective jurors, informed the court that she intended to challenge

the last remaining African. American, Ms. Morris. She also told the

court that because there were no more African American potent~al

jurors remaining that the court was required to make a finding that a

prima facie' case had been established. The court then made the

finding that a prima facie case had been established and directed the

prosecutor to state her reasons for striking Ms. Morris. (10 RT

2088.)

The prosecutor stated that Ms. Morris was married, 36 years

old, with a scientific background. She stuck Ms. Morris because she

observed that defense counsel had tried to ingratiate herself with the

juror. The prosecutor stated that she believed the juror "would not

follow the ~le about natural and probable consequences," which the

prosecutor intended to rely as part of her theory of the case. She also

noted that the juror "is concerned about getting· competent

representation without money. She fears retaliation in this particular

33

case. But most notably that she says that there's too many black

males in the prison system and that was weighing on her mind wh~n

answering the questions about whether or not there were concerns of

the jury system." (10 RT 2089-2091.)

The defense disagreed with the prosecutor's representations,

most notably concerning the natural and probable consequence

doctrine, because the juror told the court and counsel that she would

follow the law. (10 RT 2091-2093.)

The court then said, "1 frankly saw very good cause. [for the

prosecution's strike of] every single African-American juror with the

exception of Ms. Morris." (10 RT 2093.) The court rejected the

prosecutor's claim about defense counsel's attempt to ingratiate

herself with the juror and the prosecutor's argument about following

the law. The court stated that if it found a Batson violation it would

not discharge the venire. Rather, the court would order the juror

reseated. (10 RT 2093-2095.)

After further reflection, the court denied the challenge.

The court stated that Ms. Morris, even though she had stated

that she would follow the law,showed "a remarkable amount of

reluctance" in regard to the natural and probable consequence

34

doctrine. The court then noted that she was left "with the

circumstance in that I didn't see that the People were eliminating

based on the response 'connected with natural and probable

consequences. . .. And with that said, I do find that there was a race-

neutral justification for Ms. Morris' limitation. I am denying the

Batson-Wheeler. (10 RT 2096-2099.)

Defense counsel, to clarify the record, then placed some

statistics before the co,urt. He stated that the prosecutor had used six

of her thirty challenges against African Americans, or 20%.

According to 2014 census date for the county, 9.6 % of Contra Costa

County's population is African American. Defense counsel stated that

20% "is grossly disproportionate to the population." (10 RT 2099­

2100.)

The following day the court "needed to perfect the record on

the ruling [she] made yesterday with regard to Ms. Morris." CURT

2121.) The court then went on to place on the record her reasoning

regarding the ruling. She stated that what she was "required to look at

under both Batson and Wheeler is to take three distinct steps." The

court continued:

With Ms. Morris, my reaction initially was more to the

fact that she was the last African-American juror on there. I
35

 found her to be quiet, but not particularly warm or forthcoming,

and kind of reluctant and reserved. I saw, as I reviewed my
notes as well as the record, that she was quite reluctant and it
refres.hed my memory of her demeanor and her reluctance to
agree with the natural and probable consequences concept.
And I thinkit would be unfair to the People to substitute
my own interpretation of any of the jurors. I mean, there are
sometimes jurors that I believe would be beneficial· to the
defense and they're knocked off or beneficial to the People and
they're knocked off. And certainly my reaction to the jurors
has nothing to do with this. I have to look at whether or not
there's a permissible nondiscriminatory justification, and I
found it. 8
With that said, I do want to just state that I thought about
this a lot last night. I had a concern about it. And I reviewed
again the reasoning. And it further affirmed my interpretation
of what had occurred between the interchange between Ms.
Smith and Ms. Morris. (11 RT2121-2124. Italics added.) .

Later, the prosecutor wanted to place some numbers before the

court, in an apparent attempt to contradict the numbers the defense

had placed before the court earlier. Ms. Smith stated that there were

"68 individuals who appeared to at least be of partial African-

American descent of our total 926 jurors. That means of our panels

13.6 per cent, roughly, twice the statistical number of African-

American numbers have been present In those panels."

8 The court's description of its duties is· contrary to clearly

established United States Supreme Court precedent. The duty of a
trial court at the third stage ·is to determine whether the prosecutor's
justifications, the explanations from step two, amount to purposeful
racial discrimination, and not to search for a single nondiscriminatory
reason to justify the strike.
36

 Unfortunately, the prosecutor, who had vociferously proclaimed that

the defense had engaged in gamesmanship, was wrong. 9 (11 RT

·2298-2299.)

The twelve jurors who would try the case were selected on

December 10. There were no African Americans on the seated jury.

(13 RT 2694.)

On December 14 the defense filed a renewed Batson motion

and a motion for mistrial. (14 RT 2710.)

In discussing the renewed motion by the defense, the court

asked the prosecutor to give her reasons for challenging Ms. Neville, a

non-African American schoolteacher, who had been excused after the

prosecutor excluded Ms. Morris, and Mr. Heaney, also non-African

American. Apparently, the court did not realize that Ms. Neville was

a defense challenge, not a prosecution challenge. (13 RT 2691.)

Rather than asking the court what relevance the defense

exclusion of the juror was to a defense-initiated Batson motion, the

prosecutor gave a statement as to why she did not need to exclude the

Juror. She said that she knew the defense was going to excuse her and

9 926 divided by 68 does give you 13.6, but that is not 13.6 per
cent. 68 divided by 926, the correct formula for per cent, provides
. an answer of .07 or 7 per cent.
37

 it was "a game of chicken" at that point "as far as the amount of

peremptory challenges that were left. All defense counsel attempted

to strike her numerous times for cause. ['if] So it was clear to me that

the defense would have to assert a peremptory challenge, and I was

attempting to gain additional peremptory challenges given the fact we

were coming into a challenging portion, a number of defense-oriented

jurors in the next set which I would call jury number 2, which we had

already cleared for cause." (14 RT 2711.)

As to.Mr. Heaney she gave her reasons. (14 RT 2712-2713.)

The court denied the renewed Batson motion and the motion for

mistrial. (14 RT 2716.)

The court then selected alternate jurors. Ms. Joseph, alternate

.. juror 6, is African American. She was the only African American of

the eighteen selected trial jurors. (14 RT 2783.)

3. Appellant's 2016 jury selection

After a mistrial was declared in appellant's 2015 trial, jury voir

dire began anew.

The venire for this trial consisted of over nine hundred fifty

prospective jurors. (24 Supp. CT7106.)

38
 Prior to exercIsmg peremptory challenges an issue arose

concerning Juror 563, Mr. Woodson, an African American man.

On his juror questionnaire he had informed all the parties that

he had been convicted of a strong-armed robbery in 1998. (14 Supp.

CT 4277; 11 Supp. RT 1945.) Somehow the court or one of the

parties, probably the district attorney, was able to determine that Mr.

Woodson had his conviction expunged pursuant to section 1203.4.

The court then inquired whether he had applied for a certificate of

rehabilitation. or pardon. The juror indicated that he had just applied

for a certificate of rehabilitation. The court then told Mr. Woodson

that he was ineligible for jury service and excused him. (11 Supp. RT

1945.)

At the end of the day defense counsel brought the court's

attention to the fact that Mr. Woodson is African American. The

prosecutor then asked the court to make a finding on the record that

"even if it was in error [to excuse Mr. Woodson] that there was cause

on Mr. Woodson."

The defense objected, stating that the court had excused the

juror before all defense counsel having had an opportunity to voir dire .

39

the juror and argued further that defense questions had rehabilitated

the juror.

Nevertheless, on a record demonstrating that all defense

counsel had not had the opportunity to question prospective juror, the

court noted that she believed Mr. Woodson would be a challenge for

cause, but also noted that she could not state definitively that such a

challenge would be successful. (11 Supp. RT 1972-1974.)

The exercise of peremptory challenges began on September 21"

2016. (16 Supp. RT 2786-2728.)

C. THE PEREMPTORY CHALLENGES

After the prosecutor struck Juror 211, an African American

woman, the defense lodged a Batson/Wheeler objection. (16 Supp.

RT 2792-2793.) In support of the objection, defense counsel related

what had transpired during jury selection of this case by the same

prosecutor prior to the mistrial, including the fact that no African

American juror was among the twelve selected to try the case, and

that the prosecutor had exercised a peremptory challenge against each

African American who had reached the box. The defense also pointed

to the district attorney's office's prior history regarding Batson and

40

this prosecutor's history of Batson violations in other cases. (16

Supp. RT 2793, 2795-2797, 2801-2802.)

Notw~thstanding defense counsel's comments, in ruling that the

defense had failed to establish a prima facie case the court remarked

that "neither Ms. Smith nor the Contra Costa County Office of the

District Attorney have a history of nor reputation for Batson- Wheeler

violations." (16 Supp. RT 2794-2795.) At that point, the defense

interceded, to complete the record, stating that the other defendants

would like to join in the motion and that there was additional

information for the court to consider. The court then observed that

two African American jurors were seated in the box, and the defense

did challenged "at least one African-American in the last trial - - or

jury selection." (16 Supp. RT2795.)

The. defense responded by pointing out that out of the sixteen

groups of jurors who were voir dired only twenty-two were African

American. Of those twenty-two African Americans, only five

remained to be the subject of a peremptory challenge; five were

subject of stipulations for cause, six had cause challenges by the

district attorney granted, five received hardships, and one was ruled

ineligible by the court. (16 Supp. RT 2796-2797.)

41

 The court did not find that the defense had made a prima facie

case of discrimination. (16 Supp. RT 2801.)

The prosecutor stated that she would like to add comments but

right now she was adopting her cause challenge basis regarding the

juror.. (16 Supp. RT 2802.)

Shortly thereafter the court announced that a jury had been

selected, but that six alternatives needed to be chosen. (16 Supp. RT

2803.)

During selection of the alternates the defense made additional

BatsonlWheeler objections. (16 Supp. RT 2810.) First, the defense

objected to the prosecution's strike against Juror 275, an African

American woman, on the ground that the prosecution did so based on

the juror's support for Black Lives Matter. (7 Supp. CT 1857; 16

Supp. RT 2811-2812.)

The prosecution responded. The court found that the defense

had not made out a prima facie case. (16 Supp. RT 2812.)

Shortly thereafter the defense agam objected under

BatsonlWheeler regarding the prosecution's exclusion of Juror 313,

another African American woman. (16 Supp. RT 2813-2814.)

42

 The court found a prima facie case, and asked the prosecutor to

give her reasons for the strike. (16 Supp. RT 2815.) The prosecutor

stated: "She was excused because she was ina not guilty DUI verdict

based on the fact that, quote: The blood test was not tested for two

years. Even though we all knew one thing, we returned the opposite

verdict. [~ And then went on to say that the person had admitted

they had ten drinks but that would be speculation. This jury does not

understand circumstantial evidence. And based on her not guilty

verdict biting on the commonly used DUI defense, which is I"

essentially fabricated, that's my basis for excusing her." (16 Supp.

RT 2815.)

The court'then paraphrased a portion of what the juror had said.

What' the court failed to mention was this, the full wording of the

juror's statement; "1 wish 1 could just tell you [how we arrived at our

verdict]. 1 really do. It was - - it was a matter - -they had the blood,

took the blood, and they didn't test it for two years. And then they

brought this scientist in and said this is what can happen to blood - ­

if it's not tested for alcohol for two years. ' That's what happened."
The juror continued; "In our case, the speculation would have been he

said he lost count after ten drinks. So we would have b,een

43

speculating that his blood alcohol was a certain level, but we didn't

have that evidence so we couldn't convict on that." (6 Supp. RT 983­

984. Italics added; 16 Supp. RT 2816.)

In denying the motion the court made the following comments;

she found the prosecutor to be credible, and because of People v.

Aleman [(2016) 247 Cal. App. 4th 660; 202 Cal. Rptr. 3d 563, 577­

578, ordered depublished on August 31, 2016 by the California

Supreme Court in S235546] "that a juror acquitted in a prior strike

case is a valid race-neutral reason to strike. And the fact that the juror

had previously voted to acquit a defendant made the prosecutor's

peremptory challenge almost a foregone conclusion. And I'm quoting

again from the Aleman case." (16 Supp. RT 2820-2821.)

The last two jurors, Juror 275 and 313, were excused during the

selection of alternate jurors. Normally this would amount to harmless

error. But in this case two alternate jurors were substituted into the

JUry. Alternate Jurors 249 and 344 became seated jurors because

Jurors 210 and 8 were replaced. (15 CT 4622-4623,4640.)10

10 See, People v. Roldan (2005) 35 Cal. 4th 646, 703 ["Defendant

also claims that trial court erred in denying his second Wheeler
motion regarding Prospective Alternate Jurors G.A. and T.J., but we
reject that claim at the threshold ... [because] no alternate jurors were
ever substituted in"].)
44
 D.GENERAL RULES REGARDING APPELLATE
REVIEW
The general rule for review on appeal for a trial court's failure

to find a prima facie case is the following; "where (l) the trial court

has determined that no prima facie case of discrimination exists, (2)

the trial court allows or invites the prosecutor to state his or her

reasons for excusing the juror for the record, (3) the prosecutor

provides nondiscriminatory reasons, and (4) the trial court determines

that the prosecutor's nondiscriminatory reasons are genuine, an

appellate court should begin its analysis of the trial court's denial of

the Batson/Wheeler motion with a review of the first-stage ruling."

(People v. Scott (2015) 61 Ca1.4th 363, 391.) A reviewing court,

however, "may not rely on a prosecutor's statement of reasons to

support a trial court's finding that the defendant failed to make out a

prima facie case of discrimination. Although a court reviewing a first-

stage ruling that no inference of discrimination exists 'may consider

apparent reasons for the challenges discernible on the record' as part

of its 'consideration of "all relevant circulUstances,'" the fact that the

prosecutor volunteered one or more nondiscriminatory reasons for

excusing the juror is of no relevance at the first stage." (Id. at p. 390.)

45

 But, when an appeal involves multiple Batson/Wheeler

challenges, as the instant appeal does, in which the court did find a
)

prima facie case, review each of those challenges may begin with the

third stage, whether appellant has proven purposeful discrimination.

(Id., at p. 392.)

E. JUROR 563

Juror 563, an African American male, lived his entire life in

Richmond, an area he described as "low income, ghetto, dangerous."

Despite his prior conviction, he had earned a Bachelor of Science

degree in the fields of molecular and cell biology and was working as

an inspector who supervised other employees doing some sort of

quality control for a drug manufacturer. (14 Supp. CT 4268-4272.)

During voir dire, it was the prosecutor who brought to the

court's attention the juror's prior convictions and her belief that he

was ineligible to serve even though he had received relief from the

disabilities that arose from those convictions pursuant to section

1203.4. The defense disagreed, stating that he was eligible and

qualified to serve as a trial juror. (11 Supp. RT 1826-1829.)

46

 The juror was questioned by the court (11 Supp. R T 1860­

1863) and the prosecutor (11 Supp. RT 1863-1865, 1875-1876, 1884­

1885).

The defense asked for a ruling concerning the juror's eligibility.

The court, at that point, was inclined to say that the juror was eligible.

(11 Supp. RT 1889.)

The 4efense, Silas' attorney, then began to question the juror.

(11 Supp. RT 1904-1906.) Only one defense counsel was afforded

the opportunity to question the juror before the court excused him.

The court's actions in excluding this African American

prospective juror was error.

The California Code of Civil Procedure provides that "all

persons are eligible and qualified to be prospective trial jurors, except

the following: ... [p]ersons who have been convicted of malfeasance

in office or a felony, and whose civil rights have not been restored."

(Code of Civ. Pro., § 203, subd. (a) (5).) It further states that no

person shall be excluded "for any reason other than those reasons

provided by this section." (Code ofCiv. Pro., § 203, subd. (b).)

Section 1203.4 states that "except as noted below, he or she

shall thereafter be released from all penalties and disabilities resulting

47

from the offense of which he or she was convicted." (§ 1203.4, subd.

(a) (1).)

There are many exceptions to this; Vehicle Code section 13555

and Business and Professions Code section 490 are merely two of

many more. But, there is no statute that specifies that an ex­

offender's right to serve on a jury is not restored under section 1203.4,

nor is jury service ineligibility one of the "penalties and disabilities';

expressly excepted under the terms of section 1203.4.

Moreover, "California decisions have established that the

'penalties a!ld disabilities' resulting from conviction, from which a

probationer may be released pursuant to Penal Code section 1203.4,

do not include nonpenal restrictions or qualifications imposed for

public protection, such as licensing of attorneys [citation], physicians

[citation] and vendors of alcoholic beverages [citation]; qualification

for employment as a peace officer [citation]; and the regulation of

participants in parimutuel wagering [citation].

Our courts have drawn a distinction between penalties imposed

on a felon as further punishment for the crime, as to which vacation

under Penal Code section 1203.4 generally affords relief, and

nonpenal restrictions adopted for protection of public safety and

48

welfare. 'As used in section 1203.4 of the Penal Code the words

"penalties and disabilities" have reference to criminal penalties and

disabilities or to matters of a kindred nature. But the disciplining of

licensees such as the petitioners herein is for the protection of the

public in the exercise of the police power and not for the purpose of
-,

punishing any licensee." [Citation.] (People v. Vasquez (2001) 25

Cal. 4th 1225, 1230-1231.)

Because there is no statutory exception preventing Juror 563

from serving as a juror, and the right to sit on a jury does not implicate

public safety concems,a dismissal under section 1203.4 restores a

person's eligibility and qualifications to serve on a jury.

The court committed error when it summarily disqualified the

Juror.

Further, the court never found that the juror should have been

excused for cause. And, at least one defense counsel was not

provided the opportunity to examine him. (11 Supp. RT 1972-1974.)

This error requires reversal.

49

 F. JUROR 211

1. August 23, 2016 - voir dire

This African American female had lived in Richmond for

thirty-four years, describing her community as one of "hope, pride,

and love." She wrote that Richmond has provided her "many

opportunities growing up to advance academically and socially." The

juror singled out her mother as the greatest influence on her life,

raising her to be "an independent woman."

Her present employment was that of a "disability Insurance

Program Rep," who analyzed disability claims "while upholding the

integrity of the program and approv[ing] or deny[ing] claims."

She had a Bachelor of Science degree in biology and attended.

dental school at Marquette University in Milwaukee, Wisconsin.

The juror did have strong opinions about how police do their

jobs, stating that she would "pay close attention to details to ensure

the police did not do anything unethical," but she did state that she

could put aside those "strong" opinions and judge the credibility of

each witness by the same standard, telling the court that she would

view a police officer's testimony "the same way [she] would any

other witness who testified."

50

 She did say that she had an incident with the Sacramento State

Campus police in which she was wrongfully stopped. She went to

court, was found not guilty, and stated that the experience "will not

affect me as' a juror."

She wrote that she would attempt to "ensure everyone is given a

fair trial" and that any feeling she may have about prejudice in the

criminal justice system would not affect her because her thought

process would be unbiased. (5 Supp. CT 1345-1366; 2 Supp. RT 40­

41,49,66,69-70.)

The prosecutor questioned the juror about the single witness

rule. The juror strongly believed that in that rule, stating that she

liked the rule and felt comfortable evaluating a single witness's

testimony to determine if she believed the witness beyond a

reasonable doubt. (2 Supp. RT 65-66.)

The juror also told the prosecutor that she felt comfortable

using her commonsense and her life experiences in making credibility

judgments about a witness. (2 Supp. RT 68-69.)

The prosecutor then asked the juror a substantial number of

questions concerning Richmond, the changing nature of the area,

crime, gangs, and whether she had a family member who had been the

51

target of criminal actions. The juror told the prosecutor that the area

had changed, that crime had gone down, especially the murder rate,

that there were gangs, she had a brother who had been pulled over but

who had not received a ticket, that she had wrongfully been pulled

over herself, and that she had a relative who had been murdered. (2

Supp. RT 76-83.)

During a break in the prosecutor's voir dire, defense counsel

commented that the prosecutor was asking African American

prospective jurors substantially more questions than she was asking

other prospective jurors. He also took umbrage with the prosecutor's

"attitude" with this juror. The court jumped in, indicating that the

juror's questionnaire provoked "some pretty serious questions," with

the judge. Regarding the juror's description of Richrriond, the court

stated the following; "[w]ithin the press, within every person who

talks about Richmond, from police officers who trying to be involved,

from teachers, from their political officials, that is a description that I

don't necessarily say that they would all agree. So I believe Ms.

Smith is entitled to question in that fashion." (2 Supp. RT 83-87.

Italics added.)

52

 The court's comments, though, regarding non-record facts were

inappropriate. (See, Adkins v. Warden (1 ph Cir. 2013) 710 F. 3d

1241, 1254 & fn. 11; see also Coulter v. McCann (7th Cir. 2007) 484

F. 3d 459, 465 [it is not appropriate for a court to interject non-record

facts into its Batson analysis because to do so deprives appellant

"notice [and] an opportunity to be heard on these matters"].)

The questioning of the juror again commenced with defense

counsel.

After defense counsel finished, the prosecutor asked that the

juror be excused for cause.

The prosecutor began by stating that Juror 211 was the first

person of the questionnaires that she had read so far that had failed to

sign the document under penalty of perjury. (2 Supp. RT 153-154.)

She also pointed out that the juror marked her questionnaire

"no" to the question of whether a family member or anyone close to

you had ever been the victim of a crime. During questioning by the

prosecutor, the juror recalled that a cousin of hers had been killed in

Contra Costa county several years earlier. The prosecutor

characterized her questioning of the juror as "continuous prodding"

regarding this fact and told the court that the court should adopt the

53

position that the juror was lying in her answers. (5 Supp. CT 1356; 2

Supp. RT 154. But see, Juror 169 ["(Probably) But can't recall right

now." Neither the prosecutor nor the court asked the juror about this

answer (question 36), but the court did ask the juror about question

35, transposing the answers] 1 Supp. CT 167; 1 Supp. RT 29-30; Juror

420's answer; "No (not sure)" 2 Supp. CT 365.)

The record, though, does not support the prosecutor's claims.

The juror called the court and indicated that she was nmning

late. (2 Supp. RT 5.) She apologized·to the court for being tardy in a

manner that could on~y be considered, by any rational person, as

heart-felt and remorseful. (2 Supp. RT16-17.) And, in open court

she swore that her answers true and correct. (2 Supp. RT 40.) As to

the prodding, the one question that the prosecutor asked regarding

this subject was the/ollowing; "[l]ast question: Have you ever known

anyone that's close to you, friend or family member, that has been a

victim ofa crime?". The juror answered "[y]es." (2 Supp. RT 79-80.)

The defense, every defense counsel, contradicted everything

that the prosecutor had stated. They disagreed with prosecutor's

characterization of the juror's demeanor, pointing out that the

prosecutor was treating non-African American jurors differently than

54

African American jurors regarding the answenng of questions

contained within the questionnaire, and that the prosecutor had spent

one third of her allotted time questioning one juror, Juror 211. (2

Supp. RT 154-156.)

But the judge's response was concerning; "So with regard to

the cause challenge, although some people have said it's not close, I

had issues with this juror as far as just her competency, her

willingness to serve as an unbiased juror. First, coming in over a half

on (sic) an hour late. I understand the explanation. The lack of the

signature on the questionnaire, and some (sic) her responses on the

questionnaire seemed to be problematic, so on the other hand, she

consistently said she could be fair. [~] And although it's neither here

nor there, but I see clear peremptory challenge. She does seem to be

very defense-oriented in her responses, as well as her questionnaire,

so the idea I don't know. I'm just going to note that that's what I saw.

[~ I will also note that unlike Mr. Leonard, 51, who really did expose

his bias much more clearly, Ms. Washington was clean when she

answered the questions that she could be fair. I'm denying the cause

challenge, Ms. Smith." (2 Supp. RT 156-157. Italics added.)

55

 2. September 26, 2016 addendum

On September 26 the court allowed the prosecutor to place on

the record the reasons for her cause challenges of Jurors 211, 275, and

313. (5 ~T 1200.) Before she did so she spent five pages of

transcript explaining how "disillusioned" she was with "our criminal

. justice system," that "instead of trying to receive a fair trial on behalf

of the People, those people who want our city streets to be safe, it has

come down to games of - - or an attempt ofa game to shade a jury in

one direction or another." She then blamed defense counsel for

besmirching the jury selection process, engaging in trickery so as to

deny all parties a fair trial. (5 RT 1200-1201.)

She continued, saying, "I've been called an affluent white

prosecutor, been yelled at that I'm a racist. And I really think that the

Court needs some background and I hope an appellate court needs

some background to make some decisions about my use of

peremptory challenges." (5 RT 1201.)

She denied being an affluent white prosecutor. 11

11 According to Transparent California ("California's largest

public pay and pension database") Melissa A. Smith's (Deputy
District Attorney, Contra Costa County) regular pay was $165,243.17,
her total pay was $172, 885.75, and her total pay and benefits
amo.unted tq almost a quarter of a million dollars. Many people might
56
 She provided the court with biographical information

concerning her parents and her upbringing. (5 RT 1201-1202.)

She explained her that she had become "disillusioned" with

defense counsel, with the defense "trying to affect [her] career" by

"calling her a racist over and over and over on the record." The

prosecutor went so far as to accuse defense counsel of lying ("going

against the candor") to the court and engaging in parlor tri?ks. (5 RT

1202.)

She concluded this preamble with the following: "That

particular motion [Batson/Wheeler] has power as this Court has seen

the partial transcript that comes forward. It's a comment on what I do

on my daily career. The power of granting a Batson- Wheeler motion

that leaves a mark forever, and it is a strong sword that is wielded. I

am sad that this case came down to a situation where there was j~st

parlor tricks and games." (5 RT 1204.)

The prosecutor's laundry list of reasons for striking the juror for

. cause were: 1) the juror failed to sign the questionnaire under penalty

of perjury; 2) the juror hesitated before answering the court's question

concerning the fact that all her answers in the questionnaire were

consider that salary and benefit package to be affluent, or comfortable,

or well-off.
57

given under penalty of perjury; 3) the juror was the only juror who did

not nod her head that she would follow all the rules about credibility;

4) the juror had an inability to decide, circling "strong" multiple times

in her questionnaire; 5) the juror's comments about Richmond as a

community of hope with love and many opportunities ["No matter

what these attorneys say, the unfortunate truth is Richmond is often a

trap to those who are socioeconomically deprived. It's not a

community of hope. It's a community of murder."]; 6) the juror

refused to answer what her opinion was about the criminal justice

system when she was asked; 7) the juror had never known anyone

arrested or investigated even though she was a lifetime resident of

Richmond ["I simply can't see this as possible given the amount of

crime that comes from there. Me knowing it because, in fact, that is

what I've dedicated my career to."]; 8) the juror failed to mention in

her questionnaire that a cousin of hers had been murdered a number of

years ago in Richmond, and the juror's failure to place this in her

questionnaire meant that she was lying; 9) the juror wrote that she

wanted to watch law enforcement to make sure they were doing· their

job ethicallJ.'; 10) the juror rolled her eyes, crossed her arms, and then

stared at a juror during the questioning of that juror; 11) she also .

58

rolled her eyes with regard to the questioning of a second juror; and

12) seemed overly eager to sit on the jury "to be able to skew the

verdict." (5 RT 1205-1207; 5 Supp. CT 1356; 2 Supp. RT 154.)

Most, if not all, of the prosecutor's reasons for excusing t~is

juror are either not supported by the record and/or do not withstand

comparison·to the prosecutor's treatment of other jurors. Moreover,

none of the reasons cited by the prosecutor evidenced a valid basis to

challenge the juror for causes. (See, Code of Civ. Pro., §§ 225, 228,

229.)

While it was true that the juror failed to sign her questionnaire

under penalty of perjury, she swore that her answers were true and

correct in open court. (2 Supp. RT 40.) The record fails to reflect that

the juror hesitated before answering the court's question and other

jurors failed to complete portions of their questionnaire. A number of

sitting jurors failed to fill out her questionnaire regarding whether he

or she recognized the name of any potential witness, and at least one

sitting juror failed to. disclose that she had been the victim of a crime.

(1 Supp. CT 34,65-67,263-265;1 Supp. RT 47,91; 2 Supp. RT 31.

See also, e.g., Ms. Yap, Juror 238 ["There are a number of questions

59

you didn't answer. I'm just going to ask you them. You might have

just inadvertently skipped a page."] 1 Supp. RT 48-49. Italics added.)

The juror may have been the only juror who did not nod her

head regarding the court's questions about police officers and

credibility, even though the court initially said that she had, but her

questionnaire and her answers to the prosecutor very clearly spelled

out that she would follow the law as given by the court and she would

judge the case in an unbiased manner. (5 Supp; CT 1345-1363; 2

Supp. RT 40-41, 49, 65-66,68-70.)

There was nothing in the juror's answers that suggested that she

would be unable to decide the case. In fact, her job, as a disability

insurance program representative, augured in the complete opposite

direction. Moreover, this reasoning did not compel the prosecutor to

excuse another white female juror, Juror 42, who stated, in response to

questions 26 and 27 concerning her ability to sit in judgment of

another person and to decide if a person is guilty of a crime that "as a

Christian I do not judge fellow Christians or non Christians. God will

hold us all accountable on Judgment day." (1 Supp. CT 31.)

Further, the juror did not "circle strong" multiple times in her

questionnaire. She did place the question "what is strong?" below

60

question 45, but answered "yes" to the question "Do you have any

strong opinions about how the court process operates with· persons

accused of crimes?" (5 Supp. CT 1359.) The juror did not place

anything, circle or otherwise, regarding strong on any other question

in the questionnaire. (Questions 46, 47, and 59; 5 Supp. CT 1359,

1360, 1362.)

The prosecutor's dystopian narrative concerning Richmond did

not match the juror's real-life experiences growing up there. Further,

the purpose· that the prosecutor stated for questioning jurors about

Richmond was related to circumstantial evidence, her explanation of

the reason for excusing the juror belies her stated purpose. The

questioning itself was racially charged and the prosecutor used the

questioning to interject racial themes unrelated to the case which were

then used by the prosecutor as justification for peremptory challenges.

The prosecutor did not believe the juror's statement that as life­

long resident of Richmond she had never known anyone arrested or

investigated for a crime. That reason was not based on anything in the

record. It was based on the prosecutor's belief about the kinds of

people that she believes live in Richmondandlor the kind of policing

that takes place there.

61

 Regarding the juror's failure to place in her questionnaire that

her cousin had been murdered in Richmond seven years earlier, she

did provide that information to the prosecutor without any prodding

during the questioning. (5 Supp. CT 1356; 2 Supp. RT 79-80, 154.)

A seated juror, Juror 42 failed to state in her questionnaire that she

herself had been the victim of a crime.

MS. SMITH: (Juror No. 42), on your questionnaire,

we asked whether or not you've ever known anyone who had
been a victim of a crime. Obviously, I think you were probably
thinking in the context of this type or nature of the case. [~
Are you saying that you don't know anyone who has ever been
a victim of a crime?
THE PROSPECTIVE JUROR: You know, yes, in this
case - - in this type of case, no, I don't. The most crime that I
have known is I had a checkbook stolen from my mailbox and
fraudulent checks.
MS. SMITH: So you marked "no" because there
were just some insignificant things, or just didn't cross your
mind?
THE PROSPECTIVE JUROR: It didn't even compare to
being in court, a jury or anything. That didn't even seem
relevant.
MS. SMITH: Thank you, (Juror No. 42). (1 Supp.
RT 90-91.)

Further, there IS nothing in the record to support the

prosecutor's claim that the juror rolled her eyes during the questioning

of other jurors, was overly eager to sit on the jury so that she could

"skew the verdict."

62

 3. September 21, 2016 peremptory challenge

The prosecutor struck the juror. The defense objected. (16

Supp. RT 2792.)

The defense stated that Juror 211 is an African American

woman, that the jury vemre had a limited amount. of African

Ame:r;ican's available (68 out of 926 prospective jurors or

approximately 7 per cent), and that in appellant's prior trial that

resulted in a mistrial the prosecutor excluded each and every African

American jury who could serve as trial jurors. (16 Supp. RT2793.)

In determining whether a prima facie case had been established

the court stated that it was making its determination "not only [on]

this challenge but what occurred in the last trial." The court then used·

the wrong standard in deciding whether a prima facie case had been

established when she stated that she did not find that the prosecutor

had a discriminatory purpose in her challenges either in this trial or

the last regarding cause and peremptory challenges. (16 Supp. RT

2794. See, Johnson v. California, supra. ["the defendant must make

out a prima facie case 'by showing the totality of relevant facts giye

rise to an inference of discriminatory purpose; '" not whether the

defendant has proven purposeful racial discrimination. That is the test

63

for Batson's third step,. after the prosecutor has offered her

"permissible race-neutral justifications for the strike"].)

The court continued, "I also wish to emphasize that neither Ms.

Smith nor the Contra Costa County Office of the District Attorney

have a history of nor reputation for Batson-Wheeler violations. With

that said, I find no prima facie case as to Juror 211- -" (16 Supp. RT

2794-2795.) This statement, that neither the prosecutor nor the

district attorney's office had a history or reputation for Batson

violations, was belied by the record before the court.

Defense counsel then interjected, stating that the other

defendants would like to join in the motion and that there was

additional information that he wished to bring to the court's attention.

At that point the court "noted" that there were two African

American prospective jurors still seated in the box, jurors one through

twelve. The court also "noted" that the defense did challenge "at least

one African American" during the last jury selection. (16 Supp. RT

2795.)

The defense continued, informing the court of Ms. Chaney's

first trial, in which the sole African American juror was the sole

holdout for not guilty on several charges. According to the defense,

64

Ms. Smith, the prosecutor, attempted "quite vigorously" to get the

court to remove the juror for failing to deliberate. (16 Supp. RT 2795­

2796.)

Further, the defense brought out that in the preVIOUS trial

regarding these same four defendants, the trial that ended in a mistrial,

that the prosecutor had excused all six African American prospective

jurors who had made it into the box Gurors one through twelve) and

that there were no African American jurors seated in the box after a

jury was selected. There was, though, one African American juror

who was an alternate. (16 Supp. RT 2796.)

Also, the defense pointed out that the prosecutor had made

nineteen "contested" cause· challenges, ten of which were against

African Americans. Six of those challenges were granted.

Of the sixteen groups of prospective jurors brought in to be

questioned, twenty-two were African American. Of the twenty-two

there were five for which no challenge was made, five were stipulated

for cause, and six were excused by the prosecutor's cause challenge.

Of the four who the court rejecte~ the prosecutor's challenge for cause

two of those later were excused for hardship. One African American

65

juror was ruled ineligible by the court, and three others were excused

for hardship. (16 Supp. RT 2796-2797.)

The defense informed the court of the prosecutor's own history

with Batson as well as the Contra Costa District Attorney's Office's

problems. (16 Supp. RT 2797.) The defense, though, failed to remind

the court of a fact that the court already knew, that the court had

already found that the defense had established a prima facie case

against this very same prosecutor in this very same case.

Despite these facts, the court refused to make a finding of a

prima facie case. (16 Supp. RT 2801.)

This was error. The court should have found that the defense

had established a prima facie case.

In this case the "totality of relevant facts" gives rise to an

inference of discriminatory purpose in prosecutor's exercise of

peremptory challenges.

The court wrongfully rejected the fact that both the prosecutor

and the prosecutor's office had a history of Batson violations. (See,

Miller-EI v. Cockwell (2003) 537 U.S. 332, 347; Currie v. McDowell,

supra, 825 F. 3d at pp. 610-611 [''the Supreme Court used the facts

that prosecutors belonged to a district attorney's office with a history

66

of racial bias to bolster its findings of a prima facie case. In this

instance, it is not only the same office [Contra Costa District

Attorney] ... who brings a history of Batson violations with [her]."]

Italics added.)

As to the fact that two African Americans remained in the box

at the time of the challenge, again, as to whether a prima facie case

has been established, may very well be irrelevant. (See, People 'v:

Granillo (1987) 197 Cal. App. 3d 110, 121; People v. Snow (1987) 44

Cal. 3d 216, 222-226 [the fact that the prosecutor passed when the

jury contained two African Americans on the jury "may be an

indication of the prosecutor's good faith in exercising his

peremptories [third stage], and may be an appropriate factor for the

trial judge to consider in, ruling on a Wheeler objection, it is not a

conclusive factor"]. Italics in original.)

The court also failed to consider that appellant is also a memb.er

of the group excluded. "The defendant need not be a member of the

excluded group in order to complain of a violation of the

representative cross-section rule; yet ifhe is, ... [this] fact[] may also

be called to the court's attention." (People v. Wheeler, supra, 22

Cal.3d at pp. 280-281.)

67

 G. JUROR 275

1. August 31,2016 - voir dire

This African American woman described the area that she grew

up in as "quiet, pleasant, [and] friendly." She was single and worked

full time as a mail carrier for a private concern. Her previous

employment had been in security, working at a hospital and at a local

refinery. She did say, though, that she supports "Black lives Matter."

The juror also included in her questionnaire that her father had been

arrested for both domestic violence and drug charges. (7 Supp. CT

1849-1850, 1853, 1857-1858.)

Her questionnaire stated that she had strong opinions about how

police do their jobs, but she did not have either a positive or negative

lasting experience with law enforcement. (7 Supp. CT 1861.) The

juror also had strong feelings about the fairness of the criminal justice

system but stated that those feelings, what ever they were, would not

affect her as a juror. (7 Supp. CT 1863.) Further, she agreed, and

accepted, without reservation, the law that the court would instruct her

on and apply the law without "any influence, bias, sympathy,

prejudice, or public opinion." (7 Supp. CT 1864.)

68

 Voir dire began with the court talking to the panel, which

included Juror 275, about the "basic principles of the judicial system."

(7 Supp. RT 1076.) The court continued, speaking to the jurors about

evaluating the credibility of witnesses in general, then about

evaluating the credibility of experts, and finally about evaluating the

credibility of police officers. (7 Supp. RT 1078-1079.) The court

then asked. whether everybody could follow "my instruction with

regard to evaluation of witness testimony." The court put this on the

record, immediately after her question, "And I'm see all nodding

heads." (7 Supp. RT 1079.)

The first juror to be questioned by the court was Juror 275. The

court stated, "you wrote in your questionnaire that you support Black

Lives Matter. I also noticed [contrary to the record above] you didn't

nod your head when I talked about police officers. Is there a concern

that you have about police officers should they testify?" The juror

answered "no." The court continued, asking whether the juror would

treat the testimony of a police officer the same way that she would

treat the testimony of any other witness. The juror answered "yes."

The court also entered into a rather lengthy discussion with the

juror about whether she had a negative impression of either the police

69

or the prosecutor regarding a relative who had problems with the

criminal justice system. The juror answered, "no." (7 Supp. RT 1081­

1083.)

Finally, the court asked about the juror's answer in her

questionnaire regarding the fairness of the criminal justice system.

The juror thought that the system was not necessarily fair because she

believed it tended to sentence black people to longer prison sentences

than other races. The juror told the court that she would be able to

place aside any feelings she had based on that belief. (7 Supp. RT

1083-1084.)

The prosecutor questioned the juror about the domestic

violence case involving her father and how well the juror knew the

victim. She answered that she did not know the victim well. The

prosecutor then shifted her questions to the· father's drug charges.

Juror 275 told the prosecutor that the charges involved the sales of

drugs but that gangs were not involved. (7 Supp. RT 1155-1156.)

The prosecutor then asked the following questions:

MS. SMITH: You indicated that one of the things

that you do socially is you support Black Lives Matter.
. PROSPECTIVE JUROR: I support it, but I'm not
in anything social like as in group-wise, no~
MS. SMITH:· ,Okay. And that's kind of where I was
really getting at. There are certain movements with Black Lives
70

 Matter, as I'm sure you know, that are basically civil

. disobedience where - ­
PROSPECTIVE JUROR: Right.
MS. SMITH: - - you have riots.
The defense objected, and the objections were sustained.
MS. SMITH: Where you have individuals as part of
that particular movement that, for instance, destroy properly
that's not their own. Would you agree with that?
PROSPECTIVE JUROR: No.
MS. SMITH: Okay. And would you agree that
during certain demonstrations that people may break into stores
as part of that particular demonstration?
The defense again objected. This time the court
overruled the objection.
PROSPECTIVE JUROR: Do I agree with it?
Meaning would I do it?
MS. SMITH: No, that it happens.
PROSEPCTIVE JUROR: Like have I seen it
happen?
MS. SMITH: No. Just do you think it happens at all
during some of those demonstrations?
PROSEPCTIVE JUROR: Yeah, it's happened.
MS. SMITH: Okay. In general, your support for
Black Lives Matter, do you agree or disagree with that type of
behavior, that is, that is, destroying other people's property?
The defense again objected. The objection was
overruled.
PROSPECTIVE JUROR: Do I agree with people
destroying other property?
MS. SMITH: As part of their statement of a
demonstration.
PROSPECTIVE JUROR: No, I don't. (7 Supp. RT
1156-1158; Italics added.}

After voir dire of the juror had ended the prosecutor requested

that the juror be removed for cause. The prosecutor stated that the

juror became hostile towards the prosecutor towards the end of the

71

 prosecutor'S questioning of the juror. She also stated that the juror

was almost despondent in answering the court's questions and only

answered with a "yes" or a "no." Further, the prosecutor said that

when the court was asking further clarification as to what the juror's

views were regarding law enforcement, the juror, according to the

prosecutor, could not provide any explanation.

The prosecutor continued, "When asked about the criminal

justice system, she fmally did offer up that there was (sic) issues about

punishment.. The Court did not follow up and say whether or not she

could set it aside." That statement by the prosecutor was false and

contradicted by the record. (7 Supp. RT 1083-1084.)

Then, the prosecutor stated; "Ultimately, when I asked Ms.

Williams about her affiliations with Black Lives Matter, the first

question was designed to recognize whether or not the fact that it was

a - - a social activist group. She originally denied knowing of the civil

unrest of open rioting where private property is damaged, which is

. well-known in the media. [~] Ultimately I askedthe question about

whether or not places were burglarized. There was a series of

objections by the defense. Ms. Williams rolled her eyes during that

particular portion, and her response actually became more and more

72

hostile when the defense attorneys were objecting. So I ended that

particular line of questioning based on the interplay. [~] And I would

aske the Court to weigh that against the questioning by Mr.

F euerwerker where she was openly answering questions as well as, I

believe it was Mr. Weir, that her attitude was completely different, not

just with me as the prosecutor, but also her demeanor with the Court.

[~ And so for all of those reasons, I would ask the Court to find that

there may be an apparent bias the Ms. Williams is refusing to

acknowledge to his particular Court base on her behavior and her

answers in total." (7 Supp. RT 1245-1246.)

The defense, though, did not agree.

The defense pointed out, accurately, that the juror only said that

she was a supporter of Black Lives Matter. Defense counsel went on

to say that the people who speak for Black Lives Matter "do not

advocate violence, rioting, anything like that." (7 Supp. RT 1246­

1247.)

The court then interjected. "The reason I permitted the

questions - - and I - - you know, I've read up myselfand I think we all

have and followed up on Black Lives Matter. And one of the issues

with Black Lives Matter is there are not leaders. It's a nonstructured

73

organization. Right? [~ So there is not a spokesperson that says,

'I'm speaking for them.' And at times, you know, the social media is

what brings them together and causes them to, you know, block the

Bay Bridge and commit certain acts ofcivil disobedience and agree to

meet somewhere and do what they do. So there isn't per se advocacy

of it. But there isn't also per se somebody saying, 'We do not support

this. We do not allow this to happen. ",12 (7 Supp. RT 1247-1248.)

Defense counsel then continued, stating that he interpreted the

prosecutor's questions as assuming that Black Lives Matter was an

organization that supports violence and destruction of property. He

also indicated that the juror was "taken aback" by the prosecutor's

acerbic questioning. (7 Supp. RT 1248, 1250.)

Another defense counsel, Mr. Kmeto, stated that the juror

appeared to be shy and that any reaction she may have had was wit~in

in the range of normal considering the prosecutor's "assaultive" and

"accusatory~' questioning. (7 Supp. RT 1251-1252.)

12 If the court was speaking about the shut down of the Bay
Bridge on Martin Luther King, Jr. Day, 2016, the protest was peaceful
and the organizers of the shut down were Black.Seed, "a black queer
liberation collective." (https://www.sfgate.comlbayareaiartic1elBay­
Bridge-reopening-after-protesters-chain-767354.php)
74
 The fourth defense counsel,Mr. Kuluk, stated that the

prosecutor's reasons for excusing the juror "were not borne out by the

record." (7 Supp. RT 1252-1253.)

The court then requested that the prosecutor respond. She took

umbrage with Mr. Weir's comment that the juror may have "looked

into law enforcement" for employment. The prosecutor stated that the

juror "actually said that she didn't [look into law enforcement for

employment].. She was looking into dispatching."13 (7 Supp. RT

1253. Italics added.)

The prosecutor continued:

. "Ultimately, I ask the Court to go back, and if the Court

doesn't remember the wording of my question, it was not an
attack. Black Lives Matter obviously is a social movementfor
awareness. However there is contingencies within that that are
complete civil disobedience. And my question to Ms. Williams
was to ask her whether or not she agreed with me that during
some of these social movements that are, in fact, vandalisms
committed on - - by this particular group. That was my initial
question to her. It was not asking her if she does it, if she
participates in it, but merely a question of her to see if she was

13 A dispatcher in Contra Costa County is employed by the Sheriff

of Contra Costa County and in any criminal case in which someone
calls 911 would be part of the prosecution team. (See, e.g., In re Pratt
(1999)69 C.AAth 1294,1312; In re Brown (1998) 17 CAth 873,879
[the prosecution team includes investigative personnel].) See also 7
Supp. RT 1~11-1212. "MR. WEIR: Is - - did you think about - ­
ever think about a career in law enforcement? PROSPECTIVE
JUROR: At one point it was dispatching, but nothing as far as a
police officer."
75

 going to acknowledge that or not. And she denied it. 14 [f1

And 1 went on and 1 asked the next question of whether or not
she would agree with me that during these social movements
people do burglaries, commercial burglaries. And in that she
answered ultimately yes. [f1 Overall, 1 think the Court has a
clear view of Ms. Williams and her overall behavior and her
responses. And for any other juror who has come in here and
says one thing, but everything about them and their demeanor
says another, than it is clear that this Court's decision under
Ghent, as long as it is supported out by what the Court says on
the re.cord, is a cause challenge. It's not simply the words that
come out of a person's mouth, but it's their behavior in
answering their questions. (7 Supp. RT 1254-1255. Italics
added.

The defense responded. After the defense response the

prosecutor rejoined with the following:

"This is being portrayed by the defense of me trying to

get a rise out of Ms. Williams, and it's not. When you have a
social organization that does, in fact, from time to time and,
obviously not all members, act in social disobedience, there's
veryfew questions that you can ask them where they're going ,to
admit in that particular behavior. And I'm not talking about
the vandalism and I'm not talking about commercial burglary.
[,-r] But if their purpose is to commit civil disobedience, and by
that I mean jury nullification, they're not going to be ones who
are simply going to say that, 'I am going to participate in civil
disobedience.' Just as if I had a libertarian sitting on the jury,
it's very difficult to ask questions to get them to say, ·'Oh, no, 1
would commit jury nullification.' [~ The only way that I can
probe at possible bias that is not willing to be exposed is to ask
questions about whether or not individuals could agree that
maybe there is a bad portion of this particular movement that
they're in. And ultimately 1 think everyone here would agree
that there are a lot of proponents who disagree with all of the

14 Is breaking into stores the same in a juror's mind as vandalism,

or is it the equivalent of the store being robbed?
76
 rioting that is occurring; but if they were to straight-out ask
them "Does this happen?' their answer would be yes. ' They're
not hiding that. And that's where my issue comes in with the
answers from Ms. Williams." (7 Supp. RT 1257-1258. Italics
added.)

The court then responded, not with an immediate ruling on the

challenge but rather her impressions of the juror. The court said:

"I .did ask if everyone could comply with treating

witnesses equally and specifically police officers, and she did
not nod her head. And I asked her about that when we got into
it later. I didn't - - you know, I said everybody nodded their
head because I didn't want to put her on the spot. I could see
she was young [DOB 8/3011991], and she did seem, as Mr.
Kmeto characterized her, shy and very awkward. She had her
purse. in one hand. She had her jacket on. Her arms were
crossed the entire time she spoke to me, and her arms were
crossed while she spoke to Ms.' Smith. It may be that she
warmed up, but she was much more open with Mr. Feuerwerker
and Mr. Weir ~ [~ Her responses to me were, again I could
characterize it as shy, but she was very reluctant. I couldn't
really put my finger on it. And as you know, I'm pretty brief
with my jurors. I couldn't get a sense and a response and left it
to that. [,-r] When I turned to the questions by the People - ­
and I have to say that this is - - you know, it turns into such a
hot topic every time somebody of African-American descent is
being questioned by the People, that have notably issues that
may provoke a prosecution challenge. [~ I will note that Ms.
Smith - - and I don't have the groups in front of me - - has npt
done this with every African..;American person. It's when they
have certain characteristics in their jury questionnaire that
indicate that it could be a problem and she does probe them. [,-r]
The reason I overruled the objection with regard to Ms. Smith
asking the questions about Black Lives Matter is that I believe it
is well~known· that Black Lives Matter does organize civil
disobedience. Perhaps the word 'rioting' was loaded. [~ And
I would ask Ms. Smith if we have another person in here who
supports Black Lives Matter, I believe you have a right to go
77
 into whether or not they're supporting civil disobedience:
Going to the Bay Bridge and locking arms and stopping traffic
going downtown Oakland and, you know, organizing when they
don't have a permit and, you know, over and over, you hear
about other cities where the same thing is occurring. If that's
supported by the person, it gives cause to question whether or
not they're going to support our system here. It's disobeying
the law. [~] I did not see the eye rolL It may have occurred.
She was definitely not connecting with Ms. Smith. I believe
she was not connecting with Ms. Smith from the get-go, not just
when Ms. Smith had asked the questions about Black Lives
Matter. [~] ... So with that said, now I have to evaluate this
juror just under the cause challenge. I just wanted to make
those remarks in general. [~] Ms. Williams consistently, 1
would agree with Mr. Kuluk, said that she could be fair. She
said that she can set aside her feelings about sentencing based
on race. Her comments with regard to Black Lives Matter, she
did not - - she said, 'I don't agree with property destruction.'
So it's not as though she is stating that she supports the actions
that have been taken by some followers of the movement. [~
So 1 appreciate the fact that this is a very close call, Ms. Smith.
1 appreciate the fact that the defense doesn't thing it's a clo'se
call at all. They vigorously object. [~] I'm still placing Ms.
Williams on the side of the fact that she said she could be fair.
And I know the Ghent factors permit me to make that decision,
but 1 just haven't crossed the line with it." (7 Supp. RT 1258­
1261. Italics added.)

The court denied the challenge for cause.

2. September 26, 2016 addendum

The prosecutor told the court, regarding her cause challenge,

that the juror was 1) openly hostile when she questioned the juror

about Black Lives Matter; 2) disagreed that there was a "contingent

within" Black Lives Matter that destroys property and riots; 3) had

78

strong, negative opinions about law enforcement; 4) arrived late; 5)

wanted nothing to do with the case; 6) had her arms crossed, and 7)

was a former security guard "and that does not make you into law

enforcement." (5 RT 1207-1208.)

Again, these pretext reasons do not amount to cause and any

reasonably honest prosecutor should know that. And again, most of

the prosecutor's reasons have no factual support in the record. Other

questions, especially those relating to Black Lives Matter, were

racially charged and designed to get a hostile response from the juror,

connecting her support for Black Lives Matter with criminal activity.

Further, a sitting male, white juror, Juror 169, stated on his

questionnaire that he belonged to, was affiliated with, or donated

money to the ACLU and Amnesty International, groups involved with

prisoner rights and rights of those accused of crimes. I5 (1 Supp. CT

164.) And, the prosecutor did not ask the juror one question about his

membership, affiliation, and/or donations to those organizations.

15 The American Civil Liberties Union supports Black Lives

Matter and has worked with Black Lives Matter to achieve legal
change regarding oppressive and illegal state action. (See, Black
Lives Matter Is Still Here - And Avoiding the Mistakes of Their
Predecessors, by Jeffery Robinson, ACLU Deputy Director and
Director of the Trone Center for Justice and Equality, July 16, 2018
[Newsweek, 7/13/18].)
79

 3. September 21, 2016 peremptory challenge

When it came time to exercise peremptory challenges the

prosecutor struck the juror. The defense objected on Batson/Wheeler

grounds. (16 Supp. RT 2810.)

The .defense noted that the juror was an African American .

woman, was challenged because of her race, and in their support as to

establish a prima facie case, pointed to aggressive questioning by the

prosecutor of the juror regarding Black Lives Matter. The defense

also stated that the juror was someone with a law enforcement bent, in

that she had worked previously in security and thought about working

for the Contra Costa County Sheriff s Department as a dispatcher.

Defense counsel then said:

"Ms. Smith, in making a cause challenge here, I think this

was part ofa - - what we say was a part ofa bigger strategy to
bring cause challenges against virtually all African-American
jurors. [~] I know the Court's well aware that it's improper for
the judge to tell the D.A. sufficient reasons, right, that's been a­
- discussed in many of the appellate decisions that it's
inappropriate for the court to give the prosecution at the time of
a Batson-Wheeler challenge justifications. [~ However, it
appears as though there was a process by making cause
challenges that were not necessarily warranted, and the D.A.
sought out the Court's ruling on those cause challenges
justifications to later be used as pretext for striking black
jurors, and we saw that with Juror 275." (16 Supp. RT2810­
2811. Italics added.)

80
 The court did not find that the defense had established a prima

facie case. "I don't even think this is close." (16 Supp. RT 2812.)

The court then asked the prosecutor whether she wished to

place anything on the record. The prosecutor stated that she did. She

then proceeded to state the following:

"I think this is going to be a clear and prime example of our

appellate court of Batson-Wheeler completely out of control. On this

jury, ready to be sworn, is (sic) two African-American females. It's

approximately 25 per cent African-American of the woman who are

sitting in the jury. This is a clear example of how defense attorneys

exploit what truly is a needed opportunity and try to, and do, make a

joke out ofjury selection. [~] With that said, 1 will place· my reasons

on the record after we finish jury selection." (16 Supp. RT 2812.) .

H. JUROR 313

1.. September 1, 2016 - voir dire

The juror, an African American woman, described her

community as "diverse, poor, [and] small." She also added, "I

describe Richmond as a small town in a good location (easy access to

other Bay Area locations). 1 think of it as a lovely community with

many good people. I've also been told that it is/was the murder

81

capital of the state. That has not been my experience." (8 Supp. CT

2201.)

The juror wrote that the factor that influenced her the most into

becoming the person that she is today was her religion. (8 Supp. CT

2202.) She either had owned or owns a business that recruits

executives within the pharmaceutical and biotech industries and had a

twenty-four- year-old son who had received a B.A. degree in public

health. (8 Supp. CT 2203-2204.)

The juror herself had received a B.A. degree in Pan-African

studies. (8 Supp. CT 2204.)

She had served on a jury before and that jury had reached a

verdict. (8 Supp. CT 2209.)

She did not know whether any family member, or anyone close

to her had been accused of, investigated for, arrested for, charged

with, or convicted of any crime. (8 Supp. CT 2210.) She also did not

know whether any family member or anyone close to her had ever

been a victim of a crime. (8 Supp. CT 2211.)

The juror also stated that she could follow the law as given by

the court without any reservations. (8 Supp. CT 2215-2216,2218.)

82

 The court began questioning the juror. The court's first

question to the juror was in reference to question 33, about family

members being arrested or charged with a crime. The court then, said,

"Not knowing you, you wouldn't likely to be influenced; right?" The

juror responded, "Right," but then continued, "I had to think about it

so and I did - - it did come to my remembrance, I do have a cousin on

my father's side, my father's youngest sister's adopted son. I don't

know what the crime was, I don't know how long he was in prison,

but I know he was gone and I know he's back. And that's all I really

know about that." (5 Supp. RT 901.)

The juror did state that she could be a fair juror and the court

responded, "Great." (5 Supp. RT 902.)

As to the prosecutor, the juror answered directly and without

hesitation concerning the burden of proof, proof beyond a reasonable

doubt, and that she would decide the case only on the evidence before

her. (5 Supp. RT 927-928.) The juror also readily agreed that the

issue of punishment would not be considered as a juror and would

only apply the law as given by the judge. (5 Supp. RT 941.) And, the

juror would have no problem assessing credibility of any witness who

testified. (5 Supp. RT 951.)

83

 The prosecutor then asked the juror about Richmond and the

juror stated that she lived in unincorporated East Richmond Heights.

Regarding her feelings about Richmond the juror stated that based on

what she was told and what she heard there had been a change, but in

her personal experience the area "was exactly the same." (6 Supp. RT

957-960.)

During defense voir dire, the subject of the juror's prior jury

experience was raised. (6 Supp. RT 981.) She stated that the jury

looked at the evidence "and even though we believed one thing was

true, we .had to come back with a verdict that did not speak to that."

(6 Supp. RT 982.) The juror stated that "it was the manner in which

the evidence was handled. That was the problem." She continued, "If

[the evidence] had been handled appropriately, we would have been

able to do a different - - had a different outcome. But because it

wasn't,we had to go with what was presented." (6 Supp. RT 982­

983.)

Defense counsel continued his questioning. The juror

responded, "I wish I could just tell you. I really do. It was -- it was a

matter - - they had the blood, took the blood, and they didn't test it for

two years. And then they brought this scientist in and said this is what

84

can happen to blood - - if it's not tested for alcohol for two years.

That's what happened." (6 Supp. RT 983.)

The juror continued regarding speculation, "In our case, the

speculation would have been he said he lost count after ten drinks. So

we would have been speculating that his blood alcohol was a certain

level, but we didn't have that evidence so we couldn't convict on

that." (6 Supp. RT 984. Italics added.)

2 .. September 26, 2016 addendum

Regarding the reasons for her "cause" challenge to the juror the

prosecutor placed the following on the record: 1) the juror stated that

she was told that Richmond was the murder capital, but that was not

her experience; 2) the juror either chose not to accept reality or chose

not to see· what is around her in that she was oblivious to

circumstantial evidence of crime and gangs, something that she was

going to be asked to consider in the trial; 3) her prior jury service

("she said that it was a not guilty verdict"); and 4) "she chose to ignore

evidence in her prior jury experience.

Again, none of the reasons articulated by the prosecutor could

be a legally justified basis for a cause challenge. And more telling of

the prosecutor's discriminatory intent was the fact that she believed

85

she had exercised a cause challenge to this juror when she in fact had

not.

3.' September 21, 2016 peremptory challenge

The prosecutor moved to strike Juror 313. The defense

interposed a BatsonlWheeler objection. (16 Supp. RT 2813.)

Defense counsel stated that the juror, an African American

woman, was "incredibly middle-of-the-road with respect to all of her

answers. There simply is nothing that stands her out as justifying a

challenge other than race." (16 Supp. RT 2814.)

The court found that the defense had established a prima facie

case. (16 Supp. RT 2815.)

The prosecutor responded: "She was excused because she was

in a not guilty Dill verdict based on the fact that, quote: The blood

test was not tested for two years. Even though we all knew one thing,

we returned the opposite verdict. [~ And then went on to saythat the

person had admitted they had ten drinks but that would be speculation.

This juror does not understand circumstantial evidence. And based

on her not guilty verdict biting on a commonly used DUI defense,

which is essentially fabricated, that's my basis for excusing her. (16

Supp. RT 2815. Italics added.)

86

 The court, in her response, was quite concerned. The court

pointed out that she believed that Juror 313 was "unique" in that issue.

The court stated that the decision was a "tough one." (16 Supp. RT

2817.)

The court found that the defense had not carried its burden and

denied the motion. The court, in coming to that conclusion, relied on

a depublished California Court of Appeal case and two federal cases,

and the prosecutor's credibility. (16 Supp. RT 2820-2821.)

I. THE COURT COMMITTED ERROR REQUIRING

REVERSAL IN DENYING THE DEFENSE
BATSONIWHEELER CHALLENGES

After finding a prima facie case by the court the proponent of

the strike bears the burden of providing the court with an adequate,

nondiscriminatory explanation for the challenges. To meet this

requirement the proponent of the strike must provide "a clear and

reasonably specific" explanation of his "legitimate reasons" for

striking the jurors. (Batson v. Kentucky, supra, 476 U.S. at p. 98 & th.

20.) That, though, is a very low bar. Because "[u]nless a

discriminatory intent is inherent in the prosecutor's explanation," the

reason(s) will be deemed neutral. (Purkett v. Elem (1995) 514 U.S.

765, 768.)

87

 Nonetheless, occasionally prosecutors' justifications are so

charged with race that their "race-neutral" reasons fail to clear even

. the low hurdle of Batson's second step. Virtually all state courts,

except California, have given short shrift to prosecutors who use

strongly racially charged justifications to strike black jurors. Here, the

prosecutor used racially charged characteristics unrelated to the case

to eliminate African American jurors. (See, e.g., Jessie v. State, 659

So. 2d 167, 169 (Ala. Crim. App. 1994) [veniremember's residence in

"high crime" area not a valid race-neutral reason)]; State v. Coleman,

970 So. 2d 511, 514-17 (La. 2007) [citation to black juror's

involvement in discrimination suit coupled with reference to

defendant's race and defense counsel's voir dire on race was not race-

neutral].) 16 Such justifications are not simply inadequate, they

affirmatively betray evidence of racial bias and courts in California

should so find at the second stage.

16 See also, United States v. Bishop (9th Cir. 1991) 959 F. 2d 820,
827 (overruled on other grounds by United States v. Nevils (9th Cir.
2010) 598F. 3d 1158, 1167); ["the justification was tainted by
impermissible generalizations regarding racial groups and their
environment. The trial judge's credibility determinations therefore
are not in question. We need not reach the issue whether the
prosecutor's explanation was honest or merely a sham; rather, we
conclude that, even assuming it was sincere, the government's
explanation is not sufficient to satisfy Batson because 'a
discriminatory intent is inherent in the prosecutor's explanation;'''].)
88
 Assuming that this Court does not find the prosecutor's

reasons dripping with racial venom, once the proponent of the strike

provides his or her reasons the trial court must decide whether the

movant has proven purposeful discrimination. (Johnson v. California,

supra, 545 U.S. at p. 168.)

At this third step the credibility of the explanations becomes all

important. "[T]he critical question in determining whether a prisoner

has proved purposeful discrimination at step three is the

persuasiveness of the prosecutor 's justification for his peremptory

strike. At this stage, 'implausible or fantastic justifications may (and

probably will) be found to be pretexts for purposeful discrimination.'

In that instance the issue comes down to whether the trial court finds

the prosecutor's race-neutral explanations to be credible." (Miller-El

v. Cockwell, supra, 537 U.S. at p. 338. Italics added.)

At this third step courts must "undertake a sensitive inquiry into

such circumstantial and direct evidence of intent as may be available"

to reach its determination. (Batson v. Kentucky, supra, 476 U.S. at pp.

93, 95.) Therefore, before the court announces it ruling "all of the

circumstances that bear upon the issue of racial animosity must be

89

consulted." (Foster v. Chatman (2016) _ U.S. __; 136 S. Ct.

1737, 1748.)

To assess credibility the court may, and probably must,

consider at least the following: a prosecutor's history of BatsQn

violations (Currie v. McDowell, supra, 825 F. 3d at p. 610); the fact

that the prosecutor belonged to a district attorney's office with a

history or racial bias ["it reveals the that the culture of the District

Attorney's Office in the past was suffused with bias against African­

Americans in jury selection. This evidence, of course, is relevant to

the extent it casts doubt on the legitimacy of the motives underlying

the State's actions in petitioner's case"] (Miller-El v. Cockwell, supra,

537 U.S. at p. 347); a prosecutor's explanations that are contradicted

by the record (Foster v. Chatman, supra, 136 S. Ct. at p. 1750); a

prosecutor'~ "misrepresentation" about the reason for the strike of a

black juror that contradicted by the circumstances of similarly seated

white jurors (Id., at pp. 1749); a prosecutor's explanations that shift or

shift focus over time (Id., at pp. 1751-1752, 1755); a trial court's

failure to make a "specific finding" on the prosecution's demeanor­

based explanation (Snyder v. Louisiana, supra, 552 U.S. at pp. 479,

485); and a comparison between the struck black juror and the seated

90

white juror based solely on the prosecutor's stated reason for the

strike (Jd., at pp. 482-484).

Moreover, the trial judge may not engage in speculation as to

the reasons the proponent may have had in striking a juror. "The

Batson framework is designed to produce actual answers to suspicions

and inferences that discrimination may have infected the jury

selection process." (Johnson v. California, supra, 545 U.S. at p. 172.)

Therefore, courts are precluded from coming up with "good reasons"

a proponent "might have had" for a strike; courts are limited to

considering the "real reasons." (Id. ["[S]peculation 'does not aid our

inquiry into the reasons the prosecutor actually harbored' for a

peremptory strike"].) The trial court, and any reviewing court, must

obtain "a direct answer" from the strike proponent by "asking a

simple question." (Jd.)

Here the trial court failed to follow those rules. In the ruling

upholding the prosecutor's strikes the court did not make a sincere

and reasoned attempt to evaluate the prosecutor's proffered reasons.

Had she done so she would have found the prosecutor's reasons

wanting.

91

 The court,in evaluating the prosecutor's reasons, bastardized

precedent from higher courts in attempting to neuter both the

prosecutor' ~ personal history and the history of her office in engaging

in unconstitutional actions to remove African Americans from juries.

Thus, the court failed to take this relevant evidence into account and

use it as a factor to cast doubt on the legitimacy of the motives

. underlying the prosecutor's actions in this case.

At various points during jury selection, the court interposed

reasons why the prosecutor may wish to exercise a peremptory

challenge to an African American juror that the prosecutor had

attempted to excuse for cause. This, too, was improper. (See, Batson

v.Kentucky, supra, 476 U.S. at 97-98 & fn. 20; Johnson v. California,

supra, 545 U.S. at p. 172; Snyder v. Louisiana, supra, 552 U.S. at p.

477 [the prosecutor, not the judge, must supply the court with the race

neutral reasons for striking the juror].)

J

Further, the court injected into her reasoning "facts" that were

not part of the record, especially in her evaluation of the juror who

was a supporter of Black Lives Matter. This is impermissible and

denied appellant his right to due process. Moreover, the court never

92

 compared this juror, Juror 275, with a sitting white, male juror, Juror

169, an economic supporter of the ACLU and Amnesty International.

Finally, the court never really evaluated the prosecutor's

reasons regarding Juror 313. One of the reasons the prosecutor gaye

was because the juror had, according to the prosecutor, sat on a jury

that returned a "not guilty" verdict. Though one could easily infer

that is what occurred, the juror never said that the jury returned "not

guilty" verdict. Another reason given by the prosecutor was that the

juror could not follow the circumstantial evidence instruction. But

that reason seems to have been made up based upon pure speculation

by the prosecutor.

The prosecutor, in giving her reasons, misquoted what the juror

had said. The juror never said that the defendant in the case testified

or that the prosecution introduced any statement that the defendant

had made regarding his drinking. .She said "In our case, the

speculation would have been he said he lost count after ten drinks. So

we would have been speculating that his blood alcohol was a certain

. level, but we didn't have that evidence so we couldn't convict on

that." (6 Supp. RT 984, Italics added.)

93

 If there was no testimony regarding the defendant's drinking

habits and an expert testified that the results of the blood test were not

reliable after remaining in the vial for two years without being tested,

it seems that the juror; and the other eleven jurors, had no trouble with

properly analyzing the evidence, both direct and circumstantial, and

appropriately applying their evaluation of the evidence to the proof

beyond a reasonable doubt standard.

Each of the three African American female jurors who were

", /

stricken said they could be fair and that they· could judge the

credibility of each witness by the same standard. And, the "bias"

expressed by the prosecutor was the product of the prosecutor's

impermissible group assumptions, unsupported by· the record . and

based solely on the women's color.

Thus, this Court must reverse appellant's convictions.

Even if this Court finds some of the prosecutor's reasons valid

but others invalid, this Court 'must still reverse appellant's

convictions. (See, People v. Douglas (2018) 22 Cal. App. 5th 1162,

1172-1176 [courts should not allow those who have engaged ill

actions that are racially motivated and unconstitutional to prevail]).

94

 II

THE PROSECUTION PRODUCED INSUFFICIENT

EVIDENCE FOR THE JURy TO FIND THAT APPELLANT

HELD A GUN TO THE HEAD OF BRIEANNA·DOW

A. OVERVIEW

The prosecutor argued that persons passing the scene while

driving in cars observed appellant, with his hand extended towards the

head ofBrieanna, holding a gun to keep her at bay while Christopher

was killed by Silas. (33 RT 6052-6053, 6062-6063, 6072-6073, 6078,

6083~6084, 6088, 6118.)

As will be shown below, there was insufficient evidence

presented for a jury to fmd the facts necessary for a fmding of section

12022.53, subdivision (b).

B. RULES REGARDING SUFFICIENCY OF THE

EVIDENCE

In reviewing the evidence to support a criminal conviction or an

enhancement, a court will review the entire record in the light most

favorable to the judgment below to determine whether it discloses

substantial evidence, i.e., evidence that is reasonable, credible, and of .

solid value, from which a reasonable trier of fact could fmd the

defendant guilty beyond a reasonable doubt . (People v.

. Johnson (1980) 26 Ca1.3d 557, 578; Jackson v. Virginia (1979) 443

95

 u.s. 307, 315-319; People v. Redmond (1971) 71 Cal. 2d 745, 756

["the appellate court can give credit only to 'substantial' evidence,

i.e., evidence that reasonably inspires confidence and is 'of solid

value"']; People v. Carrasco (2006) 137 Cal. App. 4th 1050, 1058.)

"By definition, 'substantial evidence' requires evidence and not mere

speculation . . . about any number of scenarios that may have

. occurred." (People v. Thomas (1992) 2 Cal.4th 489, 545.) However,

"if the circumstances reasonably justifY the trier of fact's findings,

reversal of the judgment is not warranted simply because the

circumstances might also reasonably be reconciled with a contrary

finding." (People v. Lindberg (2008) 45 Ca1.4th 1, 27.)

C. RULES REGARDING USE OF A FIREARM

In Counts one, two, and three appellant was found by the jury to

have personally used a firearm. (§ 12022.53, subd. (b).)

"Use" for purposes of a firearm enhancement means, among

other things, "to carry out a purpose or action by means of," to "make

instrumental to an end or process," and to "apply to advantage."

(People v. Chambers (1972) 7 Cal. 3d 666,672.) One who-fires a gun

at another has used the weapon, .as has one who aims the gun at a

victim, or holds or exposes the gun in a menacing fashion at a victim

96

when that exposure is accompanied by words threatening a more

violent use .. (People v. Jacobs (1987) 193 Cal. App. 3d 375, 381.)

Whoever pointed the gun at Brieanna surely used a fIrearm

within the meaning of the statute. The question though, is whether the

prosecution produced evidence of solid value to demonstrate that

appellant was that person.

As will be shown below, the prosecutor's evidence fell short of

the mark.

D. THE LACK-OF SOLID EVIDENCE

1. Susan Laub

Susan Laub, according to the prosecutor, described appellant as

someone who was outside of a car or cars, raised his arm, apparently

while "holding a gun, and fIred "[a] couple of times, shoot[ing] the

people who were facing him."17 (14 RT 2804-2810.) She saw one of

the persons go down or fall. She then screamed and burst into tear.

(14 RT 2812.) Ms. Laub described the person that she saw, the one

who faced her with the gun who shot, as a heavy-set male black,

wearing a light or white t-shiIt, with short hair, even though she

admitted that she was not paying attention to what the people on the

17 Later in her direct examination she described the number of

shots that she heard as "several." (14 RT 2812.)
97

side of the road were wearing. The man she saw with the gun ran

around the other people standing there, got into a white car, and drove

away.I8 (14 RT 2815-2816,2816,2831,2833.)

Two days after the event Ms. Laub was shown some

photographs by the police. The prosecutor asked her whether she was

able to identify anyone from "those photo -- this array." Ms. Laub

answered, "Not 100 percent." But Ms. Laub did not identify

appellant. I9 (14 RT 2814,2820.)

18 Later that evening Laub talked with Detective Klawuhn by

telephone. Klawuhn testified that Laub described a person who she
saw alongside of the road as "somebody she saw with a gun." She
described that person, according to Klawuhn, "as a heavyset black
male with dark skin wearing a light-colored T-shirt with short or
close-shaven hair and minimal or no facial hair." (16 RT 3149.) The
police report authored by Klawuhn, though, states that Laub described
this person as the shooter ["Susan saw a subject raise his hand, while
holding a gun. The subject shot the gun three times 'point blank.'
The subject then got into one of the vehicles (white color (sic)
vehicle)].
19 According to the police report, Ms. Laub viewed a series of
photo arrays at her house on October 16, 2012. The photo array
containing appellant (set #3 with appellant in position #4) was shown
to Ms. Laub. She told the police that the person in position # 1 was
"the only photo that looked similar to the subje.ct she saw with the gun
[J, but she could not say 'it was him,'" but the person in position #1
was close.
The photo array containing Michaels (set #2 with Michaels in
position # 2) was also shown to Ms. Laub. Upon viewing the photos
Ms. Laub said "none of them look right. But, number 2 looks closest
to number I." According to the report, Ms. Laub felt that the subjeCts
98

 Laub .also attended a live line-up almost three weeks later, on

November 6. (14 RT 2814, 2822.) She also did not positively

identify appellant. 20

This testimony does not supply the kind of evidence necessary

to find substantial evidence that appellant held a gun in the direction

of Brieanna to keep her at bay while Sheldon shot Chris. Ms. Laub's

testimony states that the person who held the gun to Brieanna and held

in photo # 1 of set # 3 (appellant's photo display) and photo #2 of set

#2 had similar shaped faces.
The photo array containing Silas (set #1 with Silas in position #
3) was shown to Ms. Laubalso. Upon viewing the photos she told the
police that "she doubted everything" and was unable to identify
anyone.

20 In the live line-up appellant was placed in position # 3. Upon

initially viewing the line-up Ms. Laub said, "If you say that one of
these men is absolutely it, then it would be number five but he didn't
have as much facial hair when I saw him." She then said, "I don't
know. I can't help you. I'm sorry. I wish I could." The police then
had the subjects turn around. Ms. Laub, after viewing the backs of the
subjects stated, "I didn't see the back of him at all because he was
facing me." The subjects then turned to one side. Ms. Laub said that
she could exclude #s 1, 2, 4, and 6. She added, "Three and five are
both the right size and the right build and their facial structure is
correct. NC?w that I'm looking at them from the side, it looks more
like number three than it does number five." She then said that she
could not be positive about it, though number three's chin and lips
seemed "very familiar" to her. Ms. Laub finished by saying, "I keep
hoping that if I stare at number three or number five long enough it
will suddenly say yes that's absolutely him, but I ... I can't make that
determination with one hundred per cent surety. I'm sorry, I wish I
could be more help."
99

her at bay was the same person who shot her. According to the

prosecution's evidence, only one gun was used to kill both Brieanna

and Chris and that was Silas's gun. The person who shot Brieanna

immediately left the scene in a white car, similar to how the

prosecutor describes Silas's actions, and returned to the apartments in

a white car. (10 RT 2217-2218, 2293, 2298.) No one described two

guns at the scene and no one described an exchange of weapons.

Singularly, or together with other witnesses, Ms. Laub does not

supply substantial evidence that appellant used a gun.

2. Michael Moss

Mr. Moss was a passenger in a car going east being driven by

his wife, Patricia. As they were driving his attention was directed

towards two cars parked on the side of the road. Two people were

standing near those cars, a man and a woman. That man, wearing

what looked like a white t-shirt, pointed a gun at the woman. The

man who raised the gun was stocky, weighing about 200 pounds. The

person who raised his arm then shot the woman, causing the woman

to fall to the ground. 21 . (14 RT 2836-2842.)

21 .Mr. Moss' initial description was as to the male - African

American, medium complexion,5' 6", 250 pounds, short black hair,
wearing a ~hite tank top and dark pants. His initial description of the
100

 Mr. Moss was unable to identify the shooter. (14RT 2843.)

This testimony, again, was no help for the prosecution. The

person who pointed the gun at the female fired the weapon, killing

her. There is no testimony of any second gun, any exchange of a

weapon, and the shooting happened almost immediately after the gun

is pointed in the direction of the female.

3. Patricia Moss

Driving east bound with her husband Ms. Moss, the driver of

the car saw a man lying on the ground who she believed was dead. (1

RT 75.) She described the man lying on the ground as an African

American male, clean-cut, wearing a white t-shirt and dark pants. 22 (1

RT 76.)

In addition to the man lying on the ground she also saw a black

man standing. She described this man as being dressed exactly li~e

the man who she believed to be dead, white t-shirt, dark pants, and·

clean cut. . She further stated that the man standing had a "very

shaped-out build," like he worked out with weights. {I RT 76-77.)

female wa.s African American, 5' 8", 150 pounds, wearing a colorful
bandana on her head. (16 RT 3116.)
22 Christopher Zinn was 6' 1" tall, weighed 228 pounds, had long
braided hair, a beard and a mustache. (19 RT 3688-3689.)
101
She described the man who was standing hair as neat, very neat; no

dreadlocks and no bushy cut. 23 (1 RT 77.)

She also did not make an identification.

4. Miguel Solis

While driving on Buchanan Road towards Antioch Mr. Solis

saw a car impeding traffic on the side of the road. He saw three

people were outside of the car and he thought he saw an additional

person inside the car. (14RT 2885-2887.)

Of the three people outside the car one was an African

American male, with a light complexion, 5' 10" tall, and heavyset,

23 An earlier description by Ms. Moss was - African American

male with a stocky build, short hair, wearing a white tank top and dark
colored pants. (16 RT 3117.)
. On October 16, 2012 when she spoke with Detective Fawell
Ms. Moss gave the following description of the incident. While
driving, her husband alerted her to some cars parked along side the
road. Ms. Moss took her eyes off the road to look in that direction.
She saw two cars parked by the side. She then turned her attention to
the road in order to safely pass the cars. Just as she drove by she
heard the sound of one loud gunshot, followed by a number of
gunshots in rapid succession. Ms. Moss looked back toward the cars
and saw an African American male lying on the side of the road and
an African American male standing nearby. Her husband yelled at her
to "get the hell out of here," which she did .
. Her entire description of the person on the ground was black,
male, adult, wearing a white tank top. She also told Detective Fawell
that she did not see the suspect or the victim's face and would not be
able to identify them. (See,·l RT 143-146 [audio recording of taped
conversation held on October 16, 2012 between Ms. Moss and
Detective Fawell.)
102
maybe 220 pounds who was posturing or aggressive toward the other

two, a male and a female. He described that aggressive person as

having dreads coming down "at least below [his] neck" and being

shirtless. (14 RT 2888-2889.)

The witness described the second African American male as

also being at least 5' 10", heavyset. He described the woman an being

African American and heavyset. (14 RT 2890-2891.)

Mr. Solis also described the color of the car that he saw on the

side of the road as "red, reddish color, something like that." (14 RT

2891-2892.)

Within five minutes after leaving the location of the car by the

side of the road Mr. Solis heard five to twelve gun shots that were

fired from one gun in rapid succession. (14 RT 2892-2893.)

Mr. Solis attended a live line-up on October 24, 2012. At that

line-up he identified Silas as the person he saw at the side of the road

acting aggressively toward the other two individuals. (14 RT 2904­

2905.)

Mr. Solis never testified about seeing any person holding a gun

that was pointed in the direction of the other two persons. He only

103

heard one gun firing the shots and that gun fired the shots in rapid

succeSSIOn.

In short, there was no substantial evidence that appellant held

Brieanna at gun that evening. The enhancement should be dismissed.

5. Alexandra Hansen

Ms. Hansen was in a car traveling on Buchanan Road in the

direction of Antioch when she observed a small, blue car on the side

of the road with its passenger door open. Three people were outside

the car. One, a very tall man with broad shoulders and wearing a

wife-beater t-shirt, had "a lot of tattoos" and was yelling and looking

aggressively toward or at the other two people. The person yelling

had long dreads, about to his shoulders and was over 6' 0" and

weighed maybe 200 pounds. A second person there was a female, a

little over 5' tall and wearing a white shirt. The third person was

another male. He was a little shorter than the man who was yelling

but weighed substantially more than the man who was yelling. This

man's hair was short, kind of "buzz cut." (14 RT 2852~2855.)

She saw no one with a gun, heard no gunshots, and did not

identify anyone.

104

 6. Michael Huegenergradt

The witness was driving west bound on Buchanan Road when

he saw a dark-colored boxy car on the side of the road. That cat's

passenger door was open. Near that car he saw three people, two

males and one female. Michael described the female as a bigger

woman, either black or Samoan. He also described the first male as

large and either black or Samoan. He described the second male as

black.

One male was closer to the car, facing the other two. The male

closer to the car appeared angry. The other male responded, but not in

an angry manner.

Michael did not see any of the three persons with a gun nor did

he hear any gunshots. (14 RT 2867-2871, 2872-2873.)

7. Ryan Thomas

Ryan was driving on Buchanan Road toward Pittsburg when he

saw what appeared to be an argument on the opposite side of the

roadway. He pulled his car over to the side of the road and observed

people standing outside or near a blue or grey car, arguing. (15 RT

2951-2952.)

105

 Two men and one woman were standing near the car. The

woman was dark skinned and stood on one side of the car. The taller

black man had dreads as did the other "light-skinned dude." The

"light-skinned dude" had his shirt off and was arguing. The woman

seemed afraid. (15 RT 2952-2954.)

A short time later, while still observing the action that was

taking place behind him Mr. Thomas noticed some action, something

happening other than the persons just standing. (15 R T 2962.)

Later, Mr. Thomas called the police and went to the station.

(15 RT 2964-2966.) There he was shown photographs (People's

Exhibit 88). (15 RT 2967.) He picked out Sheldon, in photograph # 3

as looking like the person he saw at the scene who did not have a shirt

on. (15 RT 2971.)

E. LACK OF EVIDENCE

The evidence showed, in a light that was most favorable to the

prosecution, that the only time that appellant could have possessed a

weapon was at the trunk of the car, before he left the apartment

complex. That gun, at that point, was not used as is required for the

enhancement. And, there is no evidence of solid and substantial

weight to sustain a finding that he used a gun, either the gun from the

106

trunk or Silas's Beretta at the location where Christopher and

Brieanna were killed .

. This Court should find insufficient evidence to support the

jury's finding.

III

INSUFFICIENT EVIDENCE OF CONSPIRACY

A. BACKGROUND

In Count three of the information appellant was charged with

conspiracy to commit murder. The dates alleged were on or between

September 26, 2012 and October 22, 2012. The information

contained allegations of thirty-six overt acts. (15 CT 4715-4720.)

The prosecution's theory of the case was that the appellant and

others agreed to kill Christopher Zinn because. they believed he was

responsible for the taking of weapons. (33 RT 6068-6072.)

B. CONSPIRACY

No agreement amounts to a conspiracy unless one of the parties

to the agreement commits in California at least on·overt act, other than

the agreement, to affect the object of the conspiracy. (§ 184; People

v. Russo (2001) 25 Cal. 4th 1124,1131.)

107

 An overt act is an outward act done in pursuance of the crime

and in manifestation of an intent or design looking toward the

commission of the crime. The act need not constitute a crime or even

an attempt to commit the crime that is the object of the conspiracy.

Nor need the step or act be criminal in itself. (People v. Von Villas

(1992) 11 Cal. App. 4th 175,243-244.)

To support a conspiracy charge, the overt act must precede the

commission of the criminal offense that was the conspiracy's object.,

. (People v. Zamora (1976) 18 Cal. 3d 538, 560; People v. Brown

(1991) 226 Cal. App. 3d 1361, 1369.)

,Proof of a single alleged overt act by one of the conspirators is

sufficient to support a guilty verdict. Because members of a

conspiracy are bound by all acts of all members committed .in

furtherance of the conspiracy, once a conspiracy is established, an

overt act by" one member is sufficient to bind the coconspirators. It is

not necessary to the guilt of any particular defendant that appellant

personally committed the overt act, if he was one of the conspirators

when an overt act was committed. (People v. Russo, supra, 25 Cal. 4th

at p. 1135; People v. Cooks (1983) 141 Cal. App. 3d 224,312.)

108

 However, if the only overt act alleged are also charged as

substantive crimes, acquittal on the substantive crimes invalidates the

conspiracy conviction. (See, In re Johnson (1935) 3 Cal. 2d 32, 34­

36; Akhlaghi v. Superior Court (2008) 161 Cal. App. 4th 561, 565.)

Conversely, where overt acts are alleged in a conspiracy count other

)
than or in addition to the act constituting the substantive offense

charged against a defendant in another count, there is no inconsistency

iIi convicting the defendant of conspiracy but acquitting him of the

substantive offense. (People v. Eberhardt (1985) 169 CaL App. 3d

292,297.) .

C. THE PROBLEMS

The first problem regarding the sufficiency of the evidence

relates to the timing of appellant's acts, specifically as to overt act 33,

appellant holding a gun toward the head of Brieanna. This, though,

only occurred after Christopher had been shot and killed. Since the

object of the conspiracy was the killing ofChristopher, that had been

accomplished and everything that occurred subsequent to that could

not be used as an overt act.

109

 The second problem, as indicated above in argument II, there is

. insufficient evidence to find that appellant held a gun toward the head

of Brieanna.

Here at least one of the overt acts was insufficient, either

because the. it occurred after the conspiracy ceased or the evidence to

support it was insufficient. The question is whether the error was

harmless or not.

D. PREJUDICE

"In analyzing the prejudicial effect of error, however, an

appellate court does not assume an unreasonable jury. Such an

assumption would make it virtually impossible to ever find error

harmless. An appellate court necessarily operates on the assumption

that the jury acted reasonable, unless the record indicates otherwise."

(People v. Guiton (1993) 4 Cal. 4th 1116, 1127. Italics in original.)

As the court went on to say, "[i]f the inadequacy of proof is

purely.factual, of a kind the jury is fully equipped to detect, reversal is

not required whenever a valid ground for the verdict remains, absent

an affirmative indication in the record that the verdict actually did

rest on the inadequate ground. But if the inadequacy is legal, not

merely factual, that is, when the facts do not state a crime under the

110

applicable statute, as in [People v.] Green [(1980) 27 Cal. 3d 1],

the Green rule requiring reversal applies, absent a basis in the record

to find that the verdict was actually based on a valid ground." (Id., at

p. 1129. Italics added.)

Here there is an affirmative indication in the record that the

verdict actually did rest on the inadequate ground. The true finding to

the use of the weapon involved the same facts as overt act 33. The

jury was not asked to denote which overt act or acts it found to be

true.

Therefore, there is insufficient evidence to support the

conspIracy. Count three must be dismissed for insufficient evidence.

IV

THE COURT'S FAILURE TO GIVE A UNANIMITY

INSTRUCTION AS TO COUNT FOUR, A VIOLATION OF
SECTION 29800, VIOLATED DUE PROCESS

A. BACKGROUND

At trial the prosecution argued that appellant reached into the

trunk of a car, while still at the apartment complex, retrieved a gun, a

gun different than that possessed by Silas, and then climbed into a car

being driven by Michaels that left the apartment complex. (33 RT

6072.) The prosecutor also argued that merely displaying a gun in a

111

menacing manner, at the side of the road at a later time, was sufficient

for a finding of personal use of a weapon. (33 RT 6083-6084.)

Finally, she argued, specifically related to the unlawful possession of

a firearm, "[i]n order to prove that, I have to prove to you that the

defendant possessed a firearm. That's the firearm he's standing on the

side of Buchanan Road with towards Brieanna Dow, that he goes from

- - to the trunk of the car, according to Seville Davis, and retrieves;

that the defendant knew he possessed the firearm, and that the

defendant had been previously convicted of a felony." (33 RT 6118.)

As will be shown below, the court had a sua sponte duty to

provide the jury with a unanimity instruction. The court's failure

prejudiced appellant.

B. LEGAL RULES

Assertions of instructional error are reviewed de novo.

Whether or not the court should have given a "particular instruction in

any particular case entails the resolution of a mixed question of law

and fact," which is "predominantly legal." As such, it should be

examined without deference. (People v. Waidla (2000) 22 Cal. 4th

690, 733.)

112

 A jury verdict in California must be unanimous. (Cal. Const.,

art. I, § 16.) That constitutional rule means that each individual juror

must be convinced, beyond a reasonable doubt, that the defendant

committed the specific offense he is charged with. (People v. Russo,

supra, 25 Cal. 4th at p. 1132.) Therefore, when the evidence suggests

. ,

more than one discrete act, either 1) the prosecution must elect among

the acts, or 2) the trial court must instruct the jury that it must

unanimously agree that the defendant committed the same criminal

act. (Id.) The unanimity. instruction must be given sua sponte, even

in the absence of a defense request to give the instruction. (People v.

Riel (2000) 22 Cal. 4th 1153, 1199.)

A unanimity instruction is given to prevent the possibility that

jurors convict a defendant· based on different instances of conduct.

The giving of CALCRIM 3500 or 3502 "is intended to eliminate the

. danger that the defendant will be convicted even though there is no

single offense which all the jurors agree the defendant committed."

(People v. Russo, supra.) The unanimity instruction is "designed in

part to prevent the jury from amalgamating evidence of multiple

offenses, no one of which has been proved beyond a reasonable doubt,

in order to conclude beyond a reasonable doubt that the defendant

113

must have done something sufficient to convict on one count." (Id.)

The instruction is given to ensure that all twelve jurors unanimously

agree, and are unanimously convinced beyond a reasonable doubt,

which instance of conduct constitutes the charged offense.

The importance of the unanimity instruction is rooted in the

Fourteenth Amendment of the federal constitution and the

requirement that all criminal defendants be afforded due process of

law. The ~ailure to give a unanimity instructiOll lowers the

prosecutions' burden of proof and violates federal constitutional law.

(See, Francis v. Franklin (1985) 471 U.S. 307, 326; People v. Wolfe

(2003) 114 Cal. App. 4th 177,187-188.) Therefore, a failure to give

the instruction when it is warranted abridges the defendant's right to

due process, as it runs the risk of a conviction when there is not proof

beyond a reasonable doubt.

In deciding whether to give the unanimity instruction a court

must ask whether there is a risk that the jury may divide on two

discrete crimes and not agree on any particular crime. (See, People 'v.

Russo, supra, 25 Cal. 4th at p. 1135.)

Here, the prosecutor never elected which of the two gun

possessions, at the apartment or on the side of the road, constituted the

114

charged offense. Throughout the trial the prosecutor introduced

evidence supporting or, at least, attempting to support both instances

of evidence. The prosecutor's argument implied that the gun at the

apartment was the same as the gun on the side of the road, although

no evidence was presented to establish that the gun at the apartment

and the gun at the side of the road was actually the same gun. .

Thus, the prosecutor argued both instances of possession to the

JUry. As demonstrated by the prosecutor's closing argument, the

evidence in the case was not indicative of one discrete act. The record

reveals two discrete acts of possession, either of which could have

constituted the charged offense. First, the possession at the apartment

complex witnessed by Ms. Davis in which she testified that appellant

reached into the trunk: of a car and pulled out a gun. Second, at least

according to the prosecutor's theory of the case, appellant holding a

gun pointed in the direction of Brieanna at the side of the road after

Christopher had been shot.

On these facts, reasonable jurors could have divided on which

instance of possession they used to convict appellant of the charged

offense. Without a unanimity instruction, the could have combined

these facts, as the prosecutor did in her argument, to come to t~e

115

conclusion that appellant must have had possession of a firearm that

night, but disagreed on which instance constituted the charged

offense. That is exactly what a unanimity instruction is designed to

prevent.

Because the evidence presented a risk that the jury might divide

as to which act constituted the charged conduct, a unanimity

instruction was required. Therefore, the court should have obstructed

thejury, sua sponte, that they must unanimously agree which instance

of possession they were using to find appellant guilty of unlawful

possession of a weapon.

C. NO CONTINUOUS COURSE OF CONDUCT

EXCEPTION

A unanimity instruction is not "required when the· acts alleged

are so closely connected as to form part of one continuing transaction

or course of criminal conduct," or when the defendant offers

essentially the same defense to each of the acts, and there is no

reasonable basis for the jury to distinguish between them." (See,

People v. Percelle (2005) 126 Cal. App. 4th 164, 181-182.) The

justification for this exception is that there is no need for an

instruction when there is a single course of conduct because the jury

cannot distinguish between the separate acts. Additionally, the

116

instruction is unnecessary where appellant proffers the same defense

to multiple acts because the guilty verdict indicates that the ju!)'

rejected appellant's defense completely.

But this was not a case where appellant fired multiple rounds

using the same firearm while standing in the same location. (See,

People v. Flores (2007) 157 Cal. App. 4th 216, 223.) Because the

shots were fired repeatedly, within moments of each other, there

would be no reasonable basis for the jury to distinguish between each

gunshot.

The record here reveals the possibility of two distinct

possessions separated by time and space. The record also reveals that

the defendant contested each possession in a different way. As to

Seville Davis the defense was that she could not see what appellant

may have taken out of the trunk· of the car and had given inconsistent

statements about what she saw in the past. As to the gun at the side of

the road appellant brought forth evidence that no one identified

appellant, that appellant was not at the scene, and that the only person

with a gun on Buchanan Road was Silas.

117

 D. THE COURT'S FAILURE TO GIVE A UNANIMITY

INSTRUCTION WAS NOT HARMLESS

The failure to give a unanimity instruction IS federal

constitutional error. . (Chapman v. California (1967) 386 U.S.18, 24;

People v. Wolfe, supra, 114 Cal. Ap. 4th at p. 188.)

Applying Chapman, one cannot say that the jury unanimously

rested its verdict on the same instance of possession to convict

appellant. Under the facts here, this Court cannot conclude beyond a

reasonable doubt that each juror agreed on the particular criminal act

that formed the basis for the verdict. Therefore, the error was not

harmless and this Court must reverse.

v
THIS COURT MUST REMAND THE MATTER BACK TO

THE TRIAL COURT FOR AN EXERCISE OF DISCRETION

AS TO THE SECTION 12022.53 FINDINGS

Section 12022.53 provides sentence enhancements for the use

of firearms in the commission of felonies. Prior to the enactment of

Senate Bill No. 620, a trial court could not strike these enhancements.

(See former § 12022.53, subd. (h) ["Notwithstanding Section 1385 or

any other. provisions of law, the court shall not strike an allegation

under this section or a finding bringing a person within the provisions

of this section."].) However, effective January 1, 2018, Senate Bill

118

No. 620 replaced the prohibition on striking section 12022.53 firearm

enhancements with the following: "The court may, in the interest of

justice pursuant to Section 1385 and at the time of

sentencing, strike or dismiss an enhancement otherwise required to be

imposed by this section. The authority provided by this subdivision

applies to any resentencing that may occur pursuant to any other law."

(§ 12022.53, subd. (h).)

Where the trial court is unaware of the scope of

its discretion during sentencing, the appropriate remedy is to remand

the case for the court to exercise that discretion. (See People v.

Deloza (1998) 18 Ca1.4th 585, 599-600 [case remanded for

resentencing where "trial court misunderstood the scope of

its discretion to impose concurrent sentences for defendant's current

convictions, and erroneously believed consecutive sentences were

mandatory"]') Because Senate Bill No. 620 was not in effect at the

time of sentencing, the trial court lacked discretion to strike the

section 12022.53 firearm enhancements. In light of the retroactive

effect of Senate Bill No. 620, the trial court must be afforded the

opportunity.to exercise its newly granted discretion.

119

 Appellant respectfully requests that this Court vacate the

sentence and remand the matter for the trial court to exercise its

discretion on whether to strike the firearm enhancements.

VI

APPELLANT JOINS IN ARGUMENTS OF APPELLANTS

SHELDON SILAS, LAMAR MICHAELS, AND LINDA
CHANEY

Pursuant to California Rules of Court, rule 8.200, subdivision

(a) (5), appellant Reginald Whitley, joins in and adopts by reference

all issues and arguments applicable to appellant Whitley raised in the

brief of appellants Sheldon Silas, Lamar Michaels (specifically

arguments I, II, and III B), and Linda Chaney..

120

 CONCLUSION

For all the above stated reasons, appellant respectfully requests

that this Court reverse the judgment of conviction, and/or, in the

alternative, remand the matter back to the trial court for resentencing.

DATED: ~ It.\ \"1-0V\

Respectfully submitted,

arryM. Karl

Attorney for Appellant Reginald Whitley

121

 CERTIFICATE OF APPELLATE COUNSEL

Pursuant to California Rules of Court, rule 8.360, subdivision

(b)

I, Barry M. Karl, certify that:

The length of Appellant's Opening Brief does not exceed 25,

500 words, including footnotes;

In making this certification I am relying upon the word count of

the computer program used to prepare Appellant's Opening Brief;

The word count states that· Appellant's Opening Brief contains

23, 602 words.

DATED: ~ \'1\~\,

122

 CERTIFICATE OF MAILING

Re: People v. Sheldon Silas, et aI., No. A150512

First Appellate District, Division One
Superior Court No. 51407097

The undersigned declares under penalty ofperjury:

That I am a citizen of the United States; that I am over the age of eighteen
years and not a party to the within aforementioned action; that my business
address is 620 Jefferson Avenue, Redwood City, California 94063;

That I served a true and correct copy of the attached:

APPELLANT'S OPENING BRIEF

by placing said copy in an envelope addressed to and/or transmitted a PDF version

ofthis document by electronic mail to the following using the e-mail address'
indicated:

Attorney General, State of California Appeals Clerk

sfagdocketing@doj.ca.gov 1020 Ward Street
(Via TrueFiling) Martinez, CA 94553

District Attorney
First District Appellate Project appellate. pleadings@contracostada.org
eservice@fdap.org . (Via e-mail)
(Via TrueFiling)
Ross Thomas
Reginald Whitley (Via TrueFiling)

Alex Coolman Stephen Bedrick

(Via TrueFiling) (Via TrueFiling)

which envelope was then sealed and postage fully prepaid thereon and thereafter
was deposited, on the date set forth below, in the United States mail and/or
transmitted Via electronic mail on the same date set forth below at/from Redwood
City, California.

Executed'in Redwood City, California, this 14th day of May, 2019.