Chism

A jury convicted defendant Calvin Dion Chism of the first degree murder (Pen. Code, § 187, subd. (a) (count one)) 1 and attempted robbery (§§ 211, 664 (count two)) of Richard Moon, and the second degree robbery of Jung Ja Chung (§ 211 (count three)). 2 The jury found true the special circumstance allegation that the murder was committed during the attempted commission of a robbery (§ 190.2, subd. (a)(17)(A)). It also found true allegations that a principal in counts one and two was armed with a firearm (former § 12022, subd. (a)(1)), and that defendant personally used a firearm in the commission of all three counts (former § 12022.5, subd. (a)(1); see now § 12022.5 subd. (a)). The trial court found true the allegation that defendant had suffered one prior serious or violent juvenile adjudication within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).

The jury was unable to reach a penalty verdict, and the trial court declared a mistrial. Another jury was impaneled. After a retrial of the penalty phase trial, the second jury returned a verdict of death as to count one.

*1279 The trial court denied defendant’s motion for new trial…

Concurring and Dissenting.—I join the majority in upholding defendant’s convictions for murder, robbery, and attempted robbery, as well as his death sentence. But I disagree with the majority’s rejection of defendant’s claim that the trial court erred when it applied the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) to double his five-year sentence for robbery. (See maj. opn., ante, at p. 1334.)

Defendant argues that because his prior “strike” was an adjudication in juvenile court, as to which he had no right to trial by jury, the federal Constitution’s Sixth Amendment right to a jury trial barred the trial court from using the prior juvenile adjudication to double his sentence for robbery. The majority disagrees, relying on this court’s previous rejection of a similar claim in People v. Nguyen (2009) 46 Cal.4th 1007 [ 95 Cal.Rptr.3d 615 , 209 P.3d 946 ] (Nguyen).

*1338 I dissented in Nguyen . As my dissent explained, “the Sixth Amendment’s right to a jury trial does not permit a trial court to impose additional punishment that is based on prior juvenile criminal conduct for which there was no right to a jury trial.” (Nguyen, supra, 46 Cal.4th…

Concurring and Dissenting.—Defendant Calvin Dion Chism, a black man, was sentenced to death for the murder of Richard Moon, a white store clerk. At the first penalty phase, the jury hung 10 to two in favor of death. It is undisputed that the two holdouts were black women. In selecting the second penalty phase jury, the prosecutor exercised peremptory strikes against the first two black jurors available for challenge. When defendant challenged both strikes as racially motivated (see Batson v. Kentucky (1986) 476 U.S. 79 [ 90 L.Ed.2d 69 , 106 S.Ct. 1712 ] (Batson); People v. Wheeler (1978) 22 Cal.3d 258 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ] (Wheeler)), the prosecutor gave reasons for each strike. The trial court denied defendant’s motions, and this court now upholds the trial court’s rulings.

Today’s opinion marks the second time in 12 months that this court has rejected a claim of improper discrimination in jury selection despite indications in the record that the strike of a black female juror was substantially motivated by discriminatory intent. (See People v. Williams (2013) 56 Cal.4th 630, 698-699 [ 156 Cal.Rptr.3d 214 , 299 P.3d 1185 ] (dis. opn. of Werdegar, J.) [“as to at…

I. FACTS

A. Guilt Phase

1. Prosecution Evidence

a. Riteway Robbery On May 18, 1997, defendant entered the Riteway Market (Riteway or market) in Compton alone and asked the lone clerk, Jung Ja Chung, for hair gel.

2 Chung said she did not have any, and defendant left. Defendant quickly returned with codefendant Johnson and three accomplices. One accomplice approached Chung, pointed his gun at her, and demanded money. Defendant went behind the counter and told Chung to open the cash register. Defendant took cash from the register and a nine-millimeter Glock handgun (the Glock) that the owner kept under the counter. The other robbers took various items. Defendant pointed the Glock at Chung as he followed his accomplices out of the store. At trial, defendant’s California Youth Authority (CYA) parole officer, Kenneth Lipkin, viewed the Riteway surveillance videotape of the robbery and recognized defendant as the person who first entered the market and later pointed the Glock at Chung as he left. Lipkin recognized defendant’s voice on the tape saying, “We’re in the house. They don’t have a video,” “There’s a Glock,” and “187.” Lipkin noted that defendant’s “187” comment was a…