People v. Smith

I join in the panel's opinion but write separately to express a slightly different take on the trial court's observation that the prosecutor's having passed on opportunities to strike a same-race juror and a same-race alternate juror constitutes "powerful evidence" supporting the credibility of his proffered reasons at step three of the Batson / Wheeler 16 analysis.

*308 I.

At the third step of Batson / Wheeler , the focus is on whether the trial court finds the prosecutor's race-neutral explanations to be credible with respect to *881 the particular juror excused. As is the case with any inquiry into discriminatory treatment, the issue is context-sensitive, allowing a variety of circumstances to be taken into account. And among these circumstances is whether the prosecutor passed the panel-showing a willingness to accept its composition-with one or more same-race jurors included.

But attaching too much significance to the prosecutor's willingness to pass the panel with one or two same-race jurors serving on it "would provide an easy means of justifying a pattern of unlawful discrimination which stops only slightly short of total exclusion." ( People v. Snow (1987) 44 Cal.3d…

*864 This criminal prosecution is the result of multiple charges brought against two co-defendants-Jabrie Bennett and Andre Smith 1 (collectively, appellants)-in connection with a January 2013 altercation, between two groups of teenagers outside of the Bayfair BART station in San Leandro, which escalated to the point where shots were fired and Kenneth Seets, an innocent bystander, was killed. Bennett was additionally prosecuted for the attempted murder of Donnell Jordan, based on an unrelated incident that occurred two days prior to the BART shooting and involved the same gun. In the published portion of our opinion, we address and reject appellants' assertion that the prosecutor improperly used three of his peremptory challenges to excuse potential jurors because they were Black, in violation of Batson v. Kentucky (1986) 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 ( Batson ) and People v. Wheeler (1978) 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748 ( Wheeler ). In the unpublished portion of our opinion, we agree with Bennett that the trial court should reconsider his *865 sentence in light of *295 recent amendments to Penal Code section 12022.53, 2 and otherwise reject…