Filed 2/7/19; pub. & mod. order 3/1/19 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    FIRST APPELLATE DISTRICT

                                              DIVISION FOUR


THE PEOPLE,
        Plaintiff and Respondent,                              A141594

v.
ANDRE SMITH,                                                   (Alameda County
                                                               Super. Ct. No. C172416B)
        Defendant and Appellant.
THE PEOPLE,
        Plaintiff and Respondent,                              A142094

v.
JABRIE BENNETT,                                                (Alameda County
                                                               Super. Ct. No. C172416A)
        Defendant and Appellant.



        This criminal prosecution is the result of multiple charges brought against two co-
defendants—Jabrie Bennett and Andre Smith1 (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

        1
        After their introduction, we generally refer to the individuals involved in these
proceedings by their last names. However, individuals with the last name Smith—other
than co-defendant Smith—will be referred to by their first names for purposes of clarity.
                                                           1
two days prior to the BART shooting and involved the same gun. Both Bennett and
Smith raise numerous claims of error on appeal. Together, they assert 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 (Batson) and
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnson v.
California (2005) 545 U.S. 162, 165. Bennett separately claims that the trial court
committed two instructional errors and made two improper evidentiary rulings, all of
which were prejudicial. He additionally maintains that, even if his convictions are
otherwise affirmed, his matter should nevertheless be remanded for possible resentencing
due to an intervening change in the law related to firearm enhancements. For his part,
Smith separately challenges the denial of his new trial motion on several different
grounds. We affirm the convictions of both Bennett and Smith. However, we agree with
Bennett that the trial court should reconsider his sentence in light of recent amendments
to Penal Code section 12022.53,2 and therefore remand Bennett’s case for possible
resentencing.
                                     I. BACKGROUND
A.     The BART Shooting of Kenneth Seets
       On January 19, 2013, two sets of teenagers found themselves at an AC Transit bus
station immediately adjacent to the Bayfair BART terminal in San Leandro. In addition
to himself, Bennett’s group included his girlfriend, Antilea Beal, Beal’s cousin, Ylea
Means, and Means’ boyfriend, Roland Smith. The members of this group had just come
from the Bayfair Mall and were talking and smoking marijuana. A second group arrived
comprised of Smith, his brother Askari Smith, and an acquaintance, Ryan Purry. Askari
stated that Smith and Purry had initially appeared to be having a disagreement, but then
they shook hands and all three smoked marijuana together. Since the two groups were
standing near a bus, multiple video cameras on that bus recorded the subsequent
altercation between them.


       2
           All statutory references are to the Penal Code unless otherwise specified.
                                               2
       Specifically, a verbal exchange started when someone in Smith’s group
(apparently Askari) asked Roland if he knew them and why he was staring at them.
Askari testified that Roland was “mugging,” that is, looking hostilely at them. During
some back and forth, largely between Beal and Askari, Beal reportedly made the
statement: “Got something bigger than y’all poor [or little] ass niggas.” Askari took this
to mean that she had a gun. A bystander testified that someone from Smith’s group said
something like: “You won’t be able to do anything when there is a gun pointed at you.”
And Bennett told Smith’s group to stop talking to his girl like that.
       Shortly thereafter, Smith appeared to grip something near his waist and walk
towards Bennett’s group. Smith later admitted to the police that he was clenching a gun
tucked into his waistband. He claimed he just wanted the other group to shut up and
leave them alone. According to Roland, however, as Smith advanced, he said: “I’ll
spark this” or “I’ll clear it out.” Roland believed this meant Smith would start shooting.
Although there were obvious credibility issues given the circumstances—and no firearm
could later be seen by a forensic analyst on relevant video—Roland, Beal, and Bennett all
testified that they saw Smith with a gun. Bennett then pulled out a semiautomatic firearm
he had been carrying in a duffle bag and started shooting in Smith’s direction while
backing up. He fired two or three shots and then hit a pole and fell down. After he got
back up, he continued to fire, emptying his clip. Askari testified that after Bennett fell, he
heard more shots and saw Smith on the ground. Askari then pulled out his own handgun
and fired approximately five shots. Seets, a 50-year-old man who had been waiting for
the bus, was fatally shot by a bullet which was later determined to be consistent with
having been fired by Bennett’s weapon.
B.     The Attempted Murder of Donell Jordan
       On January 17, 2013, two days before the BART shooting described above,
Donell Jordan—a 17-year old high school student—was discovered lying in the street
near 89th and Hillside in Oakland with a gunshot wound to his lower back. Jordan told
the police officer who responded to the scene that he had been shot by someone he had
seen before, a black male who wore dreadlocks. Thereafter, Jordan repeatedly refused to

                                              3
identify his assailant. However, his cousin, Nicole Walton, told the police that Jordan
had identified Bennett as the shooter when she visited him in the hospital shortly after the
incident. In addition, Jordan reportedly pulled up a picture of Bennett on Facebook and
Walton took pictures of the Facebook page, which she later transmitted to the police.
These pictures were introduced at trial. After Walton identified Bennett to the police,
investigators compared the cartridge casings from the BART shooting and the Jordan
shooting. The 11 casings recovered from the Jordan shooting and the 9 casings recovered
from the BART shooting all came from the same gun, the Sig Sauer .22 semi-automatic
rifle that the police had located in a bush after the BART shooting.
       At trial, Jordan admitted that he knew Bennett from the neighborhood; that he had
been to Bennett’s house; and that the two had smoked marijuana together on several
occasions. Bennett lived about two blocks from where Jordan was shot. Jordan further
testified that, during the two months before he was shot, his relationship with Bennett
deteriorated and, on the day of the shooting, he and Bennett exchanged words while
Jordan was on his way to school. Bennett hit Jordan, and then Jordan hit Bennett several
times, causing him to stumble. Jordan remembered seeing a long black gun, but could
not say who was holding it. He ran away, hearing 9 or 10 shots fired before he was
ultimately shot in the back as he moved out from behind a car where he had taken cover.
Jordan denied ever telling Walton that Bennett was the shooter.
C.     Procedural History
       As a result of these incidents, an information was filed by the Alameda County
District Attorney on September 20, 2013, charging Bennett and Smith with the murder of
Seets (§ 187, subd. (a)). The information further alleged with respect to this murder
charge that both Smith and Bennett personally used a firearm during the commission of
the crime (§§ 12022.5, subd. (a), 12022.53, subds. (b) & (g)) and that Bennett personally
and intentionally discharged a firearm and personally inflicted great bodily injury
(§§ 12022.53, subds. (c) & (d), 12022.7, subd. (a)). Bennett was also charged with the
attempted premeditated murder of Jordan (§§ 187, subd. (a), 664, subd. (a)), with
attendant great bodily injury, use of a firearm, and discharge of a firearm allegations (§§

                                             4
12022.5, subd. (a), 12022.53, subds. (b)–(d) & (g), 12022.7, subd. (a)). Finally, Bennett
was charged with assault with a semiautomatic firearm in connection with the Jordan
shooting, again with great bodily injury and firearm use allegations (§§ 245, subd. (b),
1203.06, subd. (a)(1), 12022.5, subd. (a) & 12022.7, subd. (a)). Smith, in addition to the
Seets’s murder, was charged with possession of a firearm by a felon (§ 29800, subd.
(a)(1)).3
       At trial, the prosecutor argued that Bennett was guilty of the murder of Seets under
a theory of transferred intent, as Seets was killed accidentally while Bennett was
attempting to kill Smith. He maintained, however, that Smith was a concurrent cause of
Seets’s death and was therefore also guilty of murder under a “provocative act” theory.
Specifically, the prosecution argued that, by putting his hand on the gun in his waistband
and walking forward aggressively toward Bennett’s group, Smith committed a
provocative act sufficient to make him culpable for Seets’s murder based on Bennett’s
foreseeable reaction. Bennett argued that he was not guilty of Seets’s murder because he
fired his weapon in either complete or imperfect self-defense, fearing Smith was going to
shoot. Smith claimed that his behavior was insufficient to support a murder charge. As
for the charges related to Jordan, Bennett asserted that he was not the shooter, having
purchased the gun used at the BART station on the day in between that shooting and the
shooting of Jordan.
       On March 13, 2014, the jury found Bennett guilty of the second degree murder of
Seets, the first degree attempted murder of Jordan, and assault with a semiautomatic
firearm with respect to the Jordan incident. It additionally found all corresponding
enhancements and special allegations with respect to these crimes to be true. Smith, in
contrast, was acquitted on the murder charge, but found guilty of unlawful possession of
a firearm.


       3
         Since Smith was a juvenile when he committed the underlying offense for this
charge, the information was later amended to reflect a violation of section 29820,
subdivision (b): possession of a firearm by a person who committed an enumerated
offense which resulted in a juvenile court wardship.
                                             5
       Thereafter, on April 11, 2014, the trial court sentenced Bennett to a prison term of
15 years to life on the murder count and a consecutive prison term of seven years to life
on the attempt murder count. In addition, consecutive enhancements of 25 years to life
were imposed on each of these counts, as then mandated by section 12022.53,
subdivision (d). The assault count and all other enhancements were stayed. Thus, in
total, Bennett received a sentence of 72 years to life. With respect to Smith’s gun
possession charge, in contrast, the trial court imposed and suspended execution of the
aggravated term of three years, and admitted him to probation for a five-year period.
Appellants’ timely notices of appeal now bring the matter before this court.
                    II. CLAIM OF BATSON/WHEELER ERROR
       Bennett and Smith, who are Black, argue that they were deprived of their
constitutional rights to equal protection and a representative jury because the prosecutor
exercised peremptory challenges in this case to exclude certain Black prospective jurors.4
(See Batson, supra, 476 U.S. 79; Wheeler, supra, 22 Cal.3d 258.) The law in this area is
well settled. “ ‘[A] party may exercise a peremptory challenge for any permissible
reason or no reason at all’ [citation] but ‘exercising peremptory challenges solely on the
basis of race offends the Fourteenth Amendment’s guaranty of the equal protection of the
laws’ [citations]. Such conduct also ‘violates the right to trial by a jury drawn from a
representative cross-section of the community under article I, section 16, of the California
Constitution.’ ” (People v. Smith (2018) 4 Cal.5th 1134, 1146 (Smith).) “ ‘The
“Constitution forbids striking even a single prospective juror for a discriminatory
purpose.” ’ ” (People v. Hardy (2018) 5 Cal.5th 56, 76 (Hardy), quoting Foster v.
Chatman (2016) 578 U.S.___, ___ [136 S.Ct. 1737, 1747], quoting Snyder v. Louisiana
(2008) 552 U.S. 472, 478.)
       When a defendant alleges discriminatory use of peremptory challenges, a three-
step procedure applies. “ ‘First, the trial court must determine whether the defendant has


       4
         This claim of error was initially raised by Bennett on appeal, but Smith has since
joined in Bennett’s arguments as permitted by rule 8.200(a)(5).

                                             6
made a prima facie showing that the prosecutor exercised a peremptory challenge based
on race. Second, if the showing is made, the burden shifts to the prosecutor to
demonstrate that the challenges were exercised for a race-neutral reason. Third, the court
determines whether the defendant has proven purposeful discrimination. The ultimate
burden of persuasion regarding racial motivation rests with, and never shifts from, the
opponent of the strike.’ ” (People v. Jones (2011) 51 Cal.4th 346, 360 (Jones); see also
Smith, supra, 4 Cal.5th at p. 1147.)
       If, under the second stage of a Batson/Wheeler analysis, a prosecutor is asked to
justify his or her conduct in exercising peremptory challenges, that prosecutor must
provide a ‘ “ ‘clear and reasonably specific’ ” ’ explanation of his or her ‘ “ ‘legitimate
reasons’ ” ’ for exercising the challenges. (Jones, supra, 51 Cal.4th at p. 360.) “ ‘The
prosecutor’s justification does not have to support a challenge for cause, and even a
trivial reason, if genuine and race neutral, is sufficient. The inquiry is focused on
whether the proffered neutral reasons are subjectively genuine, not on how objectively
reasonable they are. The reasons need only be sincere and nondiscriminatory.’ ” (Hardy,
supra, 5 Cal.5th at p. 76.)
       Thereafter, under the third stage of a Batson/Wheeler inquiry, the “ ‘ “critical
question” ’ ” facing the trial court “ ‘ “is the persuasiveness of the prosecutor’s
justification for his peremptory strike.” ’ ” (Smith, supra, 4 Cal.5th at p. 1147, quoting
Miller-El v. Cockrell (2003) 537 U.S. 322, 338–339.) Generally, resolution of this issue
“ ‘comes down to whether the trial court finds the prosecutor’s race-neutral explanations
to be credible. Credibility can be measured by, among other factors, the prosecutor’s
demeanor; by how reasonable, or how improbable, the explanations are; and by whether
the proffered rationale has some basis in accepted trial strategy.’ [Citation and footnote
omitted.] In assessing credibility, the court draws upon its contemporaneous
observations of the voir dire. It may also rely on the court’s own experiences as a lawyer
and bench officer in the community, and even the common practices of the advocate and
the office that employs him or her.” (People v. Lenix (2008) 44 Cal.4th 602, 613
(Lenix).)

                                              7
       In addition, at the third stage of a Batson/Wheeler review, “ ‘a defendant may
engage in “comparative juror analysis”; that is, [the defendant] may compare the
responses of the challenged jurors with those of similar unchallenged jurors who were not
members of the challenged jurors’ racial group.’ ” (Hardy, supra, 5 Cal.5th at p. 77.)
The individuals compared for purposes of such an analysis “ ‘need not be identical in
every respect aside from ethnicity[,] . . . [b]ut they must be materially similar in the
respects significant to the prosecutor’s stated basis for the challenge.’ ” (Ibid.) This form
of circumstantial evidence “ ‘is relevant, but not necessarily dispositive, on the issue of
intentional discrimination.’ ” (Smith, supra, 4 Cal.5th at pp. 1147–1148.)
       “[C]omparative juror evidence is most effectively considered in the trial court
where the defendant can make an inclusive record, where the prosecutor can respond to
the alleged similarities, and where the trial court can evaluate those arguments based on
what it has seen and heard.” (Lenix, supra, 44 Cal.4th at p. 624.) However, we must
consider such evidence, even if raised for the first time on appeal, whenever it is relied
upon by the defendant and the record is adequate to permit the urged comparisons.
(Smith, supra, 4 Cal.5th at p. 1148.) Nevertheless, our review under such circumstances
is “ ‘necessarily circumscribed.’ ” (Ibid.) For instance, a reviewing court “need not
consider responses by stricken panelists or seated jurors other than those identified by the
defendant in the claim of disparate treatment.” (Lenix, supra, 44 Cal.4th at p. 624.)
       Finally, as a general matter, our review of a trial court’s denial of
a Batson/Wheeler motion is deferential, “examining only whether substantial evidence
supports its conclusions. [Citation.] ‘We review a trial court’s determination regarding
the sufficiency of a prosecutor’s justifications for exercising peremptory challenges
“ ‘with great restraint.’ ” [Citation.] We presume that a prosecutor uses peremptory
challenges in a constitutional manner and give great deference to the trial court’s ability
to distinguish bona fide reasons from sham excuses.’ ” (Lenix, supra, 44 Cal.4th at pp.
613–614; see also Smith, supra, 4 Cal.5th at pp. 1147–1148 [since “ ‘ “ ‘evaluation of the
prosecutor’s state of mind based on demeanor and credibility lies “peculiarly within a
trial judge’s province” ’ ” . . . in reviewing a trial court’s reasoned determination that a

                                               8
prosecutor’s reasons for striking a juror are sincere, we typically defer to the trial
court’ ”].) Moreover, where, as here, “ ‘comparative juror arguments are made for the
first time on appeal, . . . the prosecutor was not asked to explain, and therefore generally
did not explain, the reasons for not challenging other jurors. In that situation, the
reviewing court must keep in mind that exploring the question at trial might have shown
that the jurors were not really comparable. Accordingly, we consider such evidence in
light of the deference due to the trial court’s ultimate finding of no discriminatory
purpose.’ ” (Hardy, supra, 5 Cal.5th at p. 77.)
       Of course, restraint in this context does not mean abdication. (Hardy, supra, 5
Cal.5th at p. 76.) “ ‘ “Although we generally ‘accord great deference to the trial court’s
ruling that a particular reason is genuine,’ we do so only when the trial court has made a
sincere and reasoned attempt to evaluate each stated reason as applied to each
challenged juror.” ’ ” (Ibid., italics added.) Moreover, while “ ‘[s]ome neutral reasons
for a challenge are sufficiently self-evident, if honestly held, such that they require little
additional explication[,] . . . when it is not self-evident why an advocate would harbor a
concern, the question of whether a neutral explanation is genuine and made in good faith
becomes more pressing.’ ” (Id. at p. 77.) And, “ ‘[t]hat is particularly so when . . . an
advocate uses a considerable number of challenges to exclude a large proportion of
members of a cognizable group.’ ” (Ibid.)
       With this established framework in mind, we turn to the specifics of the trial
court’s Batson/Wheeler analysis in this case.
A.     Trial Court Process and General Conclusions
       During jury selection in these proceedings, defense counsel objected on
Batson/Wheeler grounds after each of the prosecutor’s four peremptory challenges to
Black jurors. At the close of the voir dire, the trial court considered all four of the




                                               9
defense’s Batson/Wheeler motions at length, ultimately denying them all. Appellants
here challenge the trial court’s determination as to three of these four prospective jurors.5
       In ruling on the motions before it, the trial court made certain findings applicable
to all of the jurors in question. Preliminarily, it found that appellants had made out a
prima facie case that the prosecutor had improperly exercised peremptory challenges
based on race. Next, the trial judge detailed his own experiences as a lawyer and bench
officer in the community, describing a career in Alameda County which included being a
superior court judge for almost five years; a municipal court judge for over 27 years; and,
before that, a lawyer with a criminal practice. Finally, with respect to numbers, one
Black prospective juror was successfully challenged for cause by the defense, four Black
jurors were peremptorily challenged by the prosecutor, one Black juror (Juror No. 2) was
seated on the jury, and another Black juror was seated as an alternate. The trial court
noted that the prosecutor had ample opportunity to challenge both Juror No. 2 and the
Black alternate juror and declined to do so, a factor he found “powerful evidence”
supporting the credibility of the prosecutor’s proffered reasons for excusing jurors.
       Before we turn to the individual circumstances of the three challenged prospective
jurors here at issue, we note that the Attorney General, characterizing the trial court’s
detailed Batson/Wheeler analysis as “highly assiduous and serious,” argues that the
court’s findings of no discriminatory intent are entitled to deference. Our own review of
the extensive record leads us to a similar conclusion. Indeed, we would add to the
Attorney General’s observations that the trial court’s consideration of these difficult
questions was both astute and meticulous. Certainly, it constituted a “sincere and
       5
          The fourth juror challenged below, Doris P., had a son who was serving a prison
sentence after a conviction for voluntary manslaughter. Doris P. thought the verdict was
“a little harsh” and stated that the fairness of the criminal justice system is sometimes
questionable. The prosecutor defended his use of a peremptory challenge in this context,
stating: “I can’t imagine a DA in this county that would leave a mother of a son
convicted of manslaughter, doing time in prison, on their jury.” The trial court, citing
numerous cases, agreed that it is “entirely reasonable” and race-neutral to excuse a juror
whose close relative has had a serious and negative experience with the criminal justice
system. Appellants do not question this conclusion.

                                             10
reasoned attempt” to evaluate the prosecutor’s decisionmaking in this case, and is
therefore entitled to deferential review on appeal.6
B.     Prospective Juror Pierre M.
       On his jury questionnaire, Pierre M., a 30-year-old Black man, indicated that he
believed the justice system was inherently flawed because the laws were manmade.
When asked to explain his reasoning for challenging Pierre M., the prosecutor cited this
belief. In addition, he pointed to a colloquy he had with Pierre M. during voir dire in
which the prospective juror questioned the one witness rule. As the prosecutor
elaborated: “[D]espite [Bennett’s trial counsel] saying that there is physical evidence
connecting the two crimes in this case, the BART shooting and the shooting at 89th and
Hillside, the bottom line is that the case, the shooting on Hillside may well depend on
evaluations of credibility. Certainly, the same gun was used, but in terms of the

       6
         In reaching this conclusion, we reject appellants’ suggestion that de novo review
is appropriate on this record because the trial court applied an improper legal standard in
denying their Batson/Wheeler claims. Specifically, appellants argue that the trial court
incorrectly relied on the fact that the prosecutor left one Black juror on the jury to find no
evidence of racial discrimination in this case. It is true that the fact that the prosecutor
“passed” or accepted a jury containing a Black juror is not the end of our inquiry.
(People v. Snow (1987) 44 Cal.3d 216, 225 (Snow).) Such a rule “would provide an easy
means of justifying a pattern of unlawful discrimination which stops only slightly short of
total exclusion.” (Ibid.) However, our high court has repeatedly held that “[w]hile the
fact that the jury included members of a group allegedly discriminated against is not
conclusive, it is an indication of good faith in exercising peremptories, and an appropriate
factor for the trial judge to consider.” (People v. Turner (1994) 8 Cal.4th 137, 168; see
also People v. Gutierrez (2017) 2 Cal.5th 1150, 1170–1171; People v. Blacksher (2011)
52 Cal.4th 769, 802; Lenix, supra, 44 Cal.4th at p. 629; People v. Cornwell (2005) 37
Cal.4th 50, 70, disapproved on other grounds as stated in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22; Snow, at p. 225.) That is exactly what the trial court did here.
Among many other factors, it concluded that the retention of one Black juror and one
Black alternate supported a finding that the prosecutor’s race-neutral reasons for his
peremptory challenges were credible. We see no legal error. However, even were we to
conclude that the trial court improperly inflated the importance of this factor by finding it
“powerful evidence” of the prosecutor’s lack of discriminatory intent—and even were we
to assume that this amounted to legal error sufficient to vitiate our otherwise deferential
review of the trial court’s Batson/Wheeler conclusions—we would reach the same result
under a de novo standard of review.
                                             11
arguments that [defense counsel] is going to be making, he is going to suggest that either
or both [Walton] and [Jordan] are lying about Mr. Bennett being the shooter, and that
they should be disbelieved. And to break that down just a little bit more, specifically that
[Jordan] was not telling the truth when he told his cousin that he was shot by the
defendant. [¶] I can’t have somebody on the jury—or certainly don’t want somebody on
the jury who has questions to a law with respect to whether one is sufficient for the proof
of any fact.”
       The trial court found both of the grounds articulated by the prosecutor to be valid
and race-neutral reasons for excusing Pierre M. In addition, based on its “own
independent recollection of the voir dire process,” the trial court found credible the
prosecutor’s assertion that he had “excused all jurors who he felt there were some either
inequalities in our criminal justice system or he had reservations about the effectiveness
of the criminal justice system.” In a similar vein, the trial court opined that, based on its
observations, the prosecutor “also excused all jurors, regardless of race, who expressed a
reluctance to apply the one witness rule.”
       As the trial court properly recognized, both the inability to follow the law and a
belief that the criminal justice system is flawed are valid, race-neutral reasons for
exercising a peremptory challenge. (See People v. Elliott (2012) 53 Cal.4th 535, 569–
570 [prospective juror’s criticisms of the judicial system are permissible and race-neutral
reason for peremptory challenge]; People v. Clark (2011) 52 Cal.4th 856, 907 [“A
prospective juror’s distrust of the criminal justice system is a race-neutral basis for his
excusal.”]; People v. Howard (2008) 42 Cal.4th 1000, 1017 [prospective juror’s
reluctance to follow the law valid basis for peremptory challenge].) Appellants
nevertheless argue that the prosecutor’s proffered reasons are not supported by the record
and that similarly situated non-Black jurors were not excused. We disagree.
       With respect to the one witness rule, Pierre M. did initially tell the trial court
generally that he had no problem with following the law as stated by the court. However,
during another juror’s voir dire, Pierre M. interjected, asking about the definition of
“scientific evidence.” The prosecutor stated that scientific evidence could include things

                                              12
such as fingerprints or DNA. In response, Pierre M. stated: “Given the case where you
have, you have one person and you have maybe two witnesses that said ‘I saw this person
do that,’ I think I would definitely have challenges with convicting a person based on one
or two witnesses because those two witnesses could be in collaboration or anything. So I
mean without any scientific evidence, I don’t know what you categorize as scientific
evidence, but without any solid evidence, it’s not going to, you know, I can’t convict
someone based on he said/she said.” (Italics added.) Even after the prosecutor explained
the one witness rule, Pierre M. maintained: “If the law was that one witness said that
they saw someone do something, commit a crime, would that be sufficient evidence? I’d
have a lot of trouble with that.” (Italics added.) The prosecutor then pointed out that at
trial Pierre M. might find one witness compelling, or might not, and asked if that helped
Pierre M. “to some extent?” Pierre M. replied “Yes.” Appellants argue that, by the end
of this colloquy with the prosecutor, Pierre M. had accepted the one witness rule. This is
by no means clear, however, and—given the magnitude of his difficulty with the
concept—we accept the trial court’s conclusion that the prosecutor provided a credible,
race-neutral reason for challenging Pierre M.
       As for Pierre M.’s statement that the justice system is inherently flawed because
the laws are manmade, appellants claim that this was a religious-based assertion and that
Pierre M. had otherwise reported that he held no religious beliefs that would interfere
with his ability to serve as a juror. It was not unreasonable, however, for the prosecutor
to credit Pierre M.’s specific statement over his more general one. Certainly, there is
nothing in this record of sufficient concern to support rejection of the trial court’s
reasoned finding that the prosecutor’s stated justification was genuine. In this regard, we
reject appellants’ claim of pretext based on the prosecutor’s apparent failure to challenge
four non-Black jurors with similar views. Preliminarily, we agree with the Attorney
General that none of the views expressed by these other jurors appear as problematic as




                                              13
the concern articulated by Pierre M.7 More fundamentally, however, appellants do not
establish that any of these jurors also had significant problems with the one witness rule
(or any other similarly serious disqualifying issue), and thus their attempt at comparative
juror analysis fails at the outset. (See Hardy, supra, 5 Cal.5th at p. 77 [compared jurors
“ ‘must be materially similar in the respects significant to the prosecutor’s stated basis for
the challenge’ ”]; see also id. at p. 83 [“[P]arties with limited peremptory challenges
generally cannot excuse every potential juror who has any trait that is at all problematic.
They must instead excuse those they believe will be most problematic under all the
circumstances.”].)
C.     Prospective Juror David L.
       David L., a 60-year-old Black man, reported during voir dire that he had been
“born deaf,” was “hard of hearing,” and used a combination of hearing aids and lip
reading in order to understand others. David L. stated that he had made sure that he
could hear everything said in the courtroom by sitting in the front. He claimed he had, in
fact, heard everyone, except for a single prospective juror who had spoken softly and did
not use the microphone. He did not see his hearing deficit as a problem. David L. further
recounted that he previously sat on a jury in a criminal case that successfully reached a
verdict. The prosecutor exercised a peremptory challenge to excuse David L. from the
jury, and also argued to the court that the prospective juror’s hearing issues might be
grounds to excuse him for cause. The trial court disagreed, indicating that David L. had
expressed no problems hearing in court and finding it significant that he had been
successful serving on a previous jury. Although the court stated that it was “not in any
way diminishing [the prosecutor’s] concerns,” it felt the record was insufficient to
support removal of David L. for cause.


       7
         For example, Bennett argues that Juror No. 1 was similar because she stated that
the criminal justice system was “imperfect.” However, what this juror actually said was
that the criminal justice system was “[i]mperfect but way ahead of most countries in the
world. Grateful for it after working in DR Congo with no criminal justice system.”
Thus, overall, this juror actually felt positively about the system.
                                             14
       After the trial court made this ruling, the prosecutor further explained his position
as follows: “[M]y concern wasn’t whether he’d be able to sit and listen to witnesses who
took the stand and testified. I think there are ways that he could be accommodated in
that. [¶] My real concern was over particular snippets of audio that the People would
consider important in the case and not just important in the words that were said
specifically by Miss Antilea Beal at the BART station shootings but sort of the inflection,
the tone of her voice, how she said it in light of other things that were audible or said.
And these were things . . . that [David L.] would have to be able to hear without resorting
to some of the tools that people who are hard of hearing often can resort to, which is
moving themselves closer to a witness or sort of supplementing amplified hearing with an
ability to read lips . . . . These would be words spoken by Miss Beal that are difficult to
hear even on repeated hearing.” The prosecutor further noted: “[I]t’s not just my
impression. The preliminary hearing magistrate, in a courtroom where we had the audio
amplified, said he didn’t hear what I indicated was audible on the tape. [¶] So I think it’s
a struggle to hear. And I think that’s what left me of a mind that, despite [David L.’s]
best effort, this would be an important piece of evidence that he may well not be able to
hear no matter what kind of assistance we tried to provide him.”
       Thereafter, in ruling on the Batson/Wheeler motion with respect to David L., the
trial court properly opined that a proffered excuse need not rise to the level of a challenge
for cause so long as it is race-neutral. The court noted, however, that the prosecutor felt
very strongly (though “entirely appropriately”) about the cause challenge. It found that
challenge important in the Batson/Wheeler context because it concluded that “it shows
[the prosecutor’s] good faith belief that [David L.] should not serve because he would not
be able to hear and thus be able to be presented and receive testimony, critical evidence,
which [the prosecutor] believes in good faith.” On this basis, the trial court found the
prosecutor’s challenge of David L. to be both “totally race neutral” and genuine.
       The record appears to corroborate the trial court’s conclusion. However,
appellants cite several arguments in support of their claim that the prosecutor’s challenge
of David L. due to his hearing issues was pretextual. Preliminarily, appellant’s citation to

                                              15
Crittenden v. Chappell (9th Cir. 2015) 804 F.3d 998, 1005, 1012—for the proposition
that making a meritless cause challenge of a minority juror can evince discriminatory
intent—is misplaced on these facts. This was not a situation where it was “well
established” that the prosecutor’s objection “did not warrant a for-cause challenge.” (Id.
at p. 1005.) Rather, although the trial court ultimately concluded that the factual record
was insufficient to support the cause challenge, it stated that its decision should not be
viewed as “in any way diminishing [the prosecutor’s] concerns” and it later characterized
the prosecutor’s beliefs underlying the cause challenge as strong, “entirely appropriate[],”
and genuine.
       In addition, while it is true that David L. stated, and the trial court subsequently
found, that the prospective juror could hear “everything in the courtroom,” that was not
the impetus for the prosecutor’s challenge. Rather, as detailed above, the prosecutor was
concerned that David L. would not be able to discern words and tone on the audio
recordings which he felt were central to the case. Moreover, while transcripts were
available, it is reasonable to believe that the prosecutor wanted jurors to hear for
themselves the inflammatory tone of Bennett and Beal shortly before the BART shooting.
Further, as the Attorney General points out, there were disputes at trial regarding whether
the transcripts were accurate. And, indeed, the trial court instructed the jury as follows:
“Reasonable minds may differ at counsel table as to whether this transcript is totally
accurate or not . . . . If there is any discrepancy in your mind as to what the words are that
you hear on the audio portion of these recordings, any discrepancy between what you
hear with your own ears and what you see on the page, you accept the words as you hear
them as evidence that you may consider in this case.” In addition, while appellants argue
that the words on the tapes were not relevant, it was not unreasonable, on these facts, for
the prosecutor to believe that the prosecution would be aided to the extent the jurors
could discern for themselves the words spoken immediately before the shooting by the
individuals involved in escalating the confrontation. And, the trial court found this belief
to be genuine. (Hardy, supra, 5 Cal.5th at p. 76 [“The inquiry is focused on whether the
proffered neutral reasons are subjectively genuine, not on how objectively reasonable

                                             16
they are. The reasons need only be sincere and nondiscriminatory.”]; Lenix, supra,
44 Cal.4th at p. 613 [reasonableness of prosecutor’s explanation supports credibility
finding].)
       Finally, appellants’ attempt at comparative juror analysis with respect to David L.
is also unavailing. Specifically, appellants point out that Juror Nos. 4 and 7, neither of
whom was Black, each indicated that they had hearing issues, but were not challenged by
the prosecution. Juror No. 4, however, simply stated during voir dire that it was “a little
difficult” the previous day to hear “some of the things because I have a cold and my ear
was plugged but today has been fine.” Obviously, temporary hearing loss due to illness
is not comparable to David L.’s hearing issues. Similarly, Juror No. 7 commented during
voir dire that, while he could hear the judge, he had “[b]arely” been able to hear others
during the morning session when there was no juror microphone. When asked whether
he could hear other jurors that afternoon, after a microphone had been provided, Juror
No. 7 responded: “Yes, pretty much.” Again, there was no indication that this juror had
a serious or systemic hearing issue. Thus, the treatment of these sitting jurors gives us no
basis to question the trial court’s reasoned conclusion that the prosecutor challenged
David L. based on a genuine belief that his hearing deficit would be problematic given
the specifics of the evidence involved in this case.8
D.     Prospective Juror Domanique J.
       On his jury questionnaire, Domanique J.—a 22-year-old Black man who had
recently moved to California—indicated that he held a bachelor of fine arts degree in
dance and had attended a high school for the performing arts in New York City.
Domanique J.’s questionnaire also disclosed that he had an aunt who had been arrested
for “drug trafficking”; that he had visited her in jail; and that he, himself, had been

       8
         We decline to address Bennett’s argument, made for the first time in his reply
brief, that the dismissal of David L. violated the prospective juror’s civil rights as a
disabled person. (See People v. Mickel (2016) 2 Cal.5th 181, 197 [“Ordinarily, we do not
consider arguments raised for the first time in a reply brief.”].) We note only that the
prosecutor’s reason for utilizing the peremptory challenge was race-neutral and that
David L.’s rights are not at issue in these proceedings.
                                              17
arrested for public intoxication. Domanique J. was uninterested in reading material or
video entertainment involving: “Criminal, court, Law & Order, News.” And he stated
that: “The Criminal Justice System works for the most part but there are cases where I
feel the system has not worked.”
       During voir dire, the prosecutor asked Domanique J. more about his lack of
interest in criminal justice-related entertainment, which elicited the following response:
“I just, I don’t find crime or anything dealing with the court interesting. I mean, if it was
up to me, I would rather just not be here.” With respect to his arrest for public
intoxication, Domanique J. elaborated: “At the time, like the arrest, I guess you would
say I didn’t feel like I was treated fairly, but I definitely got off very easy. So—.” When
asked about his aunt’s arrest, Domanique J. stated that she was convicted of trafficking
drugs (marijuana) and spent four or five years in jail; he was close to her; he “was living
there at the time,” although he did not go to court with her; he visited her in jail three
times; and, when she was released earlier that year, he spoke with her about her case.
The prosecutor challenged Domanique J. immediately after he was questioned.
       Later, when asked to explain his reasons for the challenge, the prosecutor
highlighted the fact that Domanique J. questioned “whether the criminal justice system
works for the most part.” The prosecutor also noted that “at a time when he was living
with his mother, she was arrested and charged and convicted of drug trafficking.” The
prosecutor felt that “he was living with her at the time, and then the fact that he has
visited her in prison, certainly suggests someone who might be prone to sympathy at the
prospect of somebody going to prison for a crime.”
       As discussed above with respect to Pierre M., the trial court found that the
prosecutor’s challenge based on Domanique J.’s stated belief that the criminal justice
system was flawed was legitimate and race-neutral. As for the prosecutor’s other
articulated reason for challenging Domanique J., the trial court opined, correctly, that
“caselaw has repeatedly held that negative experience by the juror or a close relative of
the juror [with the criminal justice system], that is a bona fide and genuine and race
neutral reason to excuse the juror.” (See, e.g., People v. Cruz (2008) 44 Cal.4th 636, 655,

                                              18
fn.3 [citing cases]; Wheeler, 22 Cal.3d at p. 277, fn. 18 [stating that a “personal
experience” with conviction and incarceration “suffered either by the juror or a close
relative, has often been deemed to give rise to a significant potential for bias against the
prosecution”].) The court noted that Domanique J. “indicated that his mother was
arrested for drug trafficking, that he visited her in prison. He was living with her when
she was convicted of this crime.” Thereafter, the court went even further than the
prosecutor on this point, stressing Domanique J.’s own experience with the criminal
justice system: “[H]e, himself, had a contact with the criminal justice system, that he had
a negative experience with that. He felt that he was not treated fairly, although he seems
to admit and acknowledge that what he was arrested for was public intoxication, and he
served a very lenient sentence, even by his own standards, which he admitted. But,
nevertheless, he harbors the feeling which he expressed here in court, that his experience
was a negative one. He doesn’t feel that he was fairly treated by the criminal justice
system.”
       On appeal, appellants make much of the fact that both the court and the prosecutor
got certain facts wrong during discussion of the Batson/Wheeler motion involving
Domanique J. Specifically, appellants point out that was Domanique J.’s aunt, not his
mother, who was arrested; claim that he was not living with his aunt at the time; and
stress that, contrary to the prosecutor’s justification, Dominque stated that the criminal
justice system does “work for the most part.” However, “[w]hile a prosecutor’s
credibility may be questioned if the prosecutor ‘mischaracterizes a juror’s testimony in a
manner completely contrary to the juror’s stated beliefs,’ a prosecutor’s ‘mistake in good
faith, such as an innocent transposition of juror information,’ does not support a finding
that the prosecutor is not credible.” (Sifuentes v. Brazelton (9th Cir. 2016) 815 F.3d 490,
512; see also People v. O’Malley (2016) 62 Cal.4th 944, 980 [“prosecutor’s mistaken
reference . . . alone does not establish that the prosecutor’s stated reasons were pretexts
for discrimination”]; People v. Williams (2013) 56 Cal.4th 630, 661 [no Batson/Wheeler
violation when the prosecutor excused a prospective juror for a factually erroneous but


                                             19
race-neutral reason]; People v. Williams (1997) 16 Cal.4th 153, 189 [“a genuine
‘mistake’ is a race-neutral reason”].)
       Here, while misstatements were certainly made, we do not find them significant.
As such, they do not supply a basis for finding the prosecutor not credible. For example,
it is true that Domanique J. did not, as the prosecutor stated, question “whether the
criminal justice system works for the most part.” Rather, he said: “The Criminal Justice
System works for the most part but there are cases where I feel the system has not
worked.” Thus, while he misspoke, the prosecutor was correct in his belief that
Domanique J. felt that the system sometimes does not work. And, as stated above, the
trial court found this proffered justification (flawed criminal justice system) to be credible
and race-neutral. Similarly, with respect to the incarcerated relative, it was clearly
Domanique J.’s aunt rather than his mother. Moreover, when asked whether they were
close, Domanique J. stated: “Yes. I was living there at the time, I didn’t go [to] the
court, but I was around her, the relatives when it was going on.” While this was perhaps
ambiguous as to whether the prospective juror lived in the same house or just in the same
geographic area as his aunt, at bottom, the record supports that Domanique J. had a close
relative; that he was around her while she went through the court process; that she was
incarcerated for a significant period on drug trafficking charges; and that he visited her
multiple times during her incarceration. The trial court found this a valid and race-
neutral reason to challenge Domanique J. and we see no error in this regard, despite the
minor misstatements that were made.
       Finally, we reject again appellants’ attempt to marshal comparable jurors, here
arguably to show that they had experiences with incarceration similar to Domanique J.,
but were not challenged by the prosecutor. Juror No. 3’s questionnaire disclosed that, 30
years ago, the juror had visited an inmate at Vacaville Prison. The individual apparently
was not a relative or close friend. Juror No. 12 indicated that “years ago” she picked up
her brother at the Santa Rita Jail after he had been arrested on a domestic violence charge
for which he was never prosecuted. And Juror No. 12 stated that he worked as a
counselor at a correctional facility for six months during graduate school. Obviously,

                                             20
none of these experiences compares with visiting a close relative convicted of a serious
crime on multiple occasions while she was incarcerated. Appellants also suggest the
same comparable jurors on the issue of the fairness of the criminal justice system that
they advanced in their challenge to Pierre M. But this attempt fails here for the same
reason: None of those jurors had any other serious disqualifying issue, such as
Domanique J.’s experiences regarding his aunt’s incarceration or Pierre M.’s problems
with the one witness rule. Thus, they were not similarly situated.9
       In sum, the trial court here considered at length the prosecutor’s reasons for
challenging each of the three prospective jurors discussed above, concluded that all of the
proffered reasons were valid and race-neutral, and expressly found the prosecutor
credible and his justifications genuine. We see no Batson/Wheeler error on this record,
and certainly no abuse of discretion.
                    III. OTHER ISSUES RAISED BY BENNETT
A.     Jury Instructions on Transferred Intent and Imperfect Self-Defense
       As discussed above, Bennett’s defense to the BART shooting in which Seets, an
innocent bystander, was killed was that he was shooting at Smith and/or Askari in either
complete or imperfect self-defense. Complete self-defense is established when “the
defendant believes he or she is facing an imminent and unlawful threat of death or great
bodily injury, and believes the acts which cause the victim’s death are necessary to avert
the threat, and these beliefs are objectively reasonable.” (People v. Curtis (1994)
30 Cal.App.4th 1337, 1357 (Curtis); see also People v. Randle (2005) 35 Cal.4th 987,
994 (Randle), overruled on another ground in People v. Chun (2009) 45 Cal.4th 1172,
1201.) “Self-defense negates culpability for assaultive crimes, whether or not the assault


       9
          Indeed, the record supplies additional reasons to conclude that Domanique J.
was not similarly situated to these other jurors because, in addition to the two reasons for
the challenge advanced by the prosecutor, Domanique J. had also, himself, been
convicted of a crime, as the trial court noted. Further, Domanique J. appears to have also
had issues with the one witness rule and he expressed a lack of interest in the criminal
justice system and a desire not to serve as a juror. Thus, there were many race-neutral
reasons why his inclusion on the jury might have been troubling to the prosecutor.
                                             21
results in death.” (People v. Adrian (1982) 135 Cal.App.3d 335, 340.) In contrast,
“[i]mperfect self-defense applies where the defendant actually believes he or she is facing
an imminent and unlawful threat of death or great bodily injury, and actually believes the
acts which cause the victim’s death are necessary to avert the threat, but these beliefs are
objectively unreasonable. [Citation.] Imperfect self-defense is not a complete defense to
homicide. However, it negates malice aforethought and thereby reduces a homicide
which would otherwise be murder to voluntary manslaughter.” (Curtis, at pp. 1354–
1355; see also Randle, at p. 994; People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437,
1446 [“unreasonable or imperfect self-defense is not a true defense, but instead is a
shorthand description of one form of voluntary manslaughter, a lesser included offense of
murder”].)
       The additional wrinkle in this case is that Bennett killed an innocent bystander
rather than the individuals he claims to have perceived as an imminent and unlawful
threat. On these facts, the doctrine of transferred intent also applies. Under that doctrine,
“just as ‘one’s criminal intent follows the corresponding criminal act to its unintended
consequences,’ so too one’s lack of criminal intent follows the corresponding non-
criminal act to its unintended consequences. [Citation.] Thus, a defendant is guilty of no
crime if his legitimate act in self-defense results in the inadvertent death of an innocent
bystander.” (People v. Levitt (1984) 156 Cal.App.3d 500, 507 (Levitt), disapproved on
another point as stated in People v. Johnson (2016) 62 Cal.4th 600, 649, fn. 6; see also
People v. Mathews (1979) 91 Cal.App.3d 1018, 1023–1024.)
       Bennett’s trial counsel requested the following instruction discussing the
application of transferred intent to both complete and imperfect self-defense: “When a
person acts in self-defense and his act inadvertently results in the death of a[n] innocent
bystander, the crime, if any, is the same as if he had acted in self-defense against the
person he believed to pose an imminent threat of deadly peril. This rule applies to both
reasonable and unreasonable self-defense.” There was considerable discussion among
the court and counsel as to how this concept should be incorporated into the jury
instructions, with various counsel objecting to a number of different suggestions. In the

                                             22
end, the trial court went with a modified version of CALJIC 8.65, incorporating the Levitt
language set forth above: “When one attempts to kill a certain person, but by mistake or
inadvertence kills a different person, the crime, if any, so committed is the same as
though the person originally intended to be killed had been killed. [¶] The doctrine of
transferred intent is available as a defense. Just as one’s criminal intent follows the
corresponding criminal act to its unintended consequences, so [too] one’s lack of criminal
intent follows the corresponding non-criminal act to its unintended consequences. . . .
Thus, a defendant is guilty of no crime if his legitimate act in self-defense results in
inadvertent death of an innocent bystander.”
       On appeal, Bennett argues that the trial court’s instruction on transferred intent
was erroneous—not because it is an incorrect statement of the law—but because it is
incomplete and therefore misleading. Specifically, he asserts that it improperly failed to
instruct the jury that transferred intent could also apply to imperfect self-defense and thus
reasonable jurors would infer that the doctrine did not apply in that context. A criminal
defendant “ ‘has a constitutional right to have the jury determine every material issue
presented by the evidence.’ ” (People v. Lewis (2001) 25 Cal.4th 610, 645.) Thus, when
a defendant requests instructions on a legally correct defense, the charge must be given if
it is supported by evidence “ ‘ “sufficient to raise a reasonable doubt” ’ ” if believed by
the jury. (People v. Mentch (2008) 45 Cal.4th 274, 288.) When, as here, the argument on
appeal is that the instruction given was ambiguous, “ ‘we inquire whether there is a
reasonable likelihood that the jury misunderstood and misapplied the instruction.’
[Citations.] ‘ “ ‘ “[T]he correctness of jury instructions is to be determined from the
entire charge of the court, not from a consideration of parts of an instruction or from a
particular instruction.” ’ ” ’ [Citation.] The reviewing court also must consider the
arguments of counsel in assessing the probable impact of the instruction on the jury.”
(People v. Young (2005) 34 Cal.4th 1149, 1202 (Young).) Application of these standards
to the facts of this case makes clear that no instructional error occurred.
       First, as delineated above, the court properly instructed the jury regarding the
concept of transferred intent and indicated that it was also “available as a defense,”

                                              23
giving the example that no crime occurs when a defendant inadvertently kills an innocent
bystander while acting in “legitimate” self-defense. Nothing in the instruction indicates
that the example given was meant to be exclusive. In addition, the jury was instructed
regarding the elements of both complete and imperfect self-defense and was repeatedly
instructed regarding the consequences of a finding of imperfect self-defense in this case.
For instance, the jury was told on three separate occasions that murder requires malice
aforethought while manslaughter does not and that “[t]here is no malice aforethought if
the killing occurred . . . in the actual, but unreasonable belief in the necessity to defend
oneself or another person against imminent peril to life or great bodily injury.” The jury
was also instructed that the burden in this regard was on the People: “To establish that a
killing is murder and not manslaughter, the burden is on the People to prove beyond a
reasonable doubt each of the elements of murder and that the act which caused the death
was not done . . . in the actual, even though unreasonable, belief in the necessity to
defend against imminent peril to life or great bodily injury.” (Italics added.) As the
Attorney General correctly emphasizes, the only death at issue in this case was the death
of Seets, an innocent bystander who Bennett clearly did not intend to kill. Thus,
conviction for any crime would require the transfer of Bennett’s applicable mental state
from Smith and/or Askari to Seets. Under such circumstances, there would have been
absolutely no reason for instructing the jury repeatedly and at length with respect to
imperfect self-defense unless transferred intent was applicable in that context. It is
therefore exceedingly unlikely that the jury failed to understand that imperfect self-
defense was available as an option for reducing Bennett’s murder charge to
manslaughter.
       This conclusion is reinforced by our review of the closing arguments made to the
jury. (See Young, supra, 34 Cal.4th at p. 1202 [reviewing court must consider the
arguments of counsel in assessing the probable impact of the an instruction on the jury];
see e.g., People v. Garceau (1993) 6 Cal.4th 140, 189 [any possibility of confusion about
conspiracy instruction was diminished by the parties’ closing arguments], disapproved on
another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117–118.) Bennett’s trial

                                              24
counsel discussed complete and imperfect self-defense, noting that both cancel out
malice. He then explicitly laid out the manslaughter options available to the jury in this
case as follows: “Only if you find that that unreasonable belief in self-defense
accompanied the intent to kill, can you find [Bennett] guilty of voluntary manslaughter.
If you find that [the prosecutor] has failed to prove beyond a reasonable doubt that he
actually intended to kill Andre Smith, which then transfers to Kenneth Seets, then you
have to find him guilty of involuntary manslaughter.” (Italics added.) In addition, the
prosecutor acknowledged that imperfect self-defense is “something to discuss in this
case,” acknowledged that it was the People’s burden to prove that Bennett did not act
“reasonably and honestly in self-defense, or honestly but unreasonably in self-defense,”
and urged the jury to find that Bennett was “not in any way entitled to any reduction of
culpability because of self-defense law” due to the choices he made leading up to the
BART shooting.
       In sum, there is no reasonably likelihood, indeed no real likelihood at all, that the
jury misunderstood how to apply the concept of transferred intent on these facts.
B.     Impact of Provocative Act Murder Instruction on Self-Defense Claim
       As stated above, Smith was also charged with the murder of Seets under a
“provocative act” theory. Provocative act murder describes a type of murder in which,
during the commission of a crime, someone other than the defendant is provoked by the
defendant’s conduct into a response that results in death. (People v. Concha (2009)
47 Cal.4th 653, 663 (Concha).) Here, the prosecution argued that by putting his hand on
the gun in his waistband and walking forward aggressively toward Bennett’s group,
Smith committed a provocative act sufficient to make him culpable for Seets’s murder
based on Bennett’s foreseeable reaction. In this regard, the jury was instructed in
accordance with CALCRIM 560 that, to establish Smith’s guilt for second degree murder
under a provocative act theory, the People were required to prove: (1) that in exhibiting a
firearm in a rude, angry or threatening manner in violation of section 417, subdivision
(a)(2), Smith intentionally did a provocative act; (2) that Smith knew that the natural and
probable consequences of the provocative act were dangerous to human life and then

                                             25
acted with conscious disregard for life; (3) that, in response to Smith’s provocative act,
Bennett killed Seets; and (4) that Seets’s death was the natural and probable consequence
of Smith’s provocative act. The jury was further instructed that a person commits the
crime of brandishing for purposes of section 417, subdivision (a)(2), by drawing or
exhibiting a firearm (whether loaded or unloaded) in the presence of another person; in a
rude, angry, or threatening manner; and not in self-defense. Finally, the jury was told
that a “provocative act” in this context is an act that goes beyond what is necessary to
establish a brandishing violation and is one where the natural and probable consequences
are dangerous to human life—i.e., there is a high probability that the act will provoke a
deadly response. After deliberation, the jury acquitted Smith of any culpability for
Seets’s death.
       Bennett now challenges the trial court’s jury instruction on provocative act
murder. Specifically, he contends that the trial court erred in instructing the jury that
something beyond what was necessary to establish a brandishing violation was required
to prove a provocative act. He further argues that the instructional error was prejudicial
to him, even though targeted at Smith, because the prosecutor tried Smith and Bennett on
conflicting theories. Under these circumstances, Bennett asserts, the stronger the
prosecution’s case for provocative act murder became against Smith, the weaker its case
for murder became against Bennett, because establishing that Smith committed a
“provocative act” supported Bennett’s claim of either complete or imperfect self-defense.
Thus, Bennett reasons, by improperly inflating the requirements for proving Smith
committed a provocative act, the court made it harder for Bennett to establish that he
acted in self-defense. We are not convinced.
       Preliminarily, on these facts, the trial court appears to have properly instructed the
jury that, to find Smith guilty of murder, he had to do something beyond merely
exhibiting his firearm. The idea behind a provocative act murder charge is that the
malice necessary for a murder conviction “may be implied if the defendant commits an
act with a high probability that it will result in death and does so with a base antisocial
motive or a wanton disregard for human life.” (People v. Briscoe (2001)

                                              26
92 Cal.App.4th 568, 583 (Briscoe).) Thus, “[i]n cases in which the underlying crime
does not involve an intent to kill . . . the mere participation in the underlying criminal
offense is not sufficient to invoke the doctrine of provocative act murder. The
provocative act must be something beyond that necessary to commit the underlying
crime.” (Id. at pp. 582–583; In re Aurelio R. (1985) 167 Cal.App.3d 52, 59–60
(Aurelio).) This is because some further act is required from which malice can be
implied. (Concha, supra, 47 Cal.4th at p. 662; see Aurelio, at p. 59 [noting that using a
gun to threaten employees into surrendering cash does not necessarily imply an intent to
shoot, and thus some further provocative act is required to establish the necessary state of
mind for murder].) In contrast, where the underlying crime necessarily supplies the
requisite malice, the crime, itself, becomes the provocative act. (See Aurelio R., at p. 60
[crime of driving into rival gang’s territory with specific intent to shoot a member of that
gang inherently involved intent to kill and thus no further provocative act need be
proven].) Since, in this case, Smith could have committed simple brandishing merely by
lifting his shirt and showing his gun in an angry manner—an act which does not
necessarily imply an intent to kill—it appears that the trial court correctly instructed the
jury that something more than brandishing was necessary in order to establish the
appropriate mental state to support a murder conviction.
       We need not finally resolve this issue, however, because we conclude that, even
were we to assume that Bennett has correctly identified instructional error, any such
assumed error was entirely harmless under the facts of this case. In short, the record—
which included multiple video recordings of the incident—clearly establishes that Smith
did do something in this case beyond simply exhibiting his firearm. Based on Smith’s
own admission, he put his hand on the gun at his waist, clenched it, and, as the video
shows, he then took a number of steps towards Bennett’s group. And Askari reported
that, as his brother walked toward Bennett, Smith had his hand on his gun and looked like
he was going to get it and shoot. The prosecutor expressly highlighted the importance of
these additional facts in his closing arguments, stating: “[Smith] admitted he had a gun.
He admitted he had his hand clenched on a gun. He admitted—and this is the additional

                                              27
act, in the provocative act murder theory, when it says, a person has to commit an act and
it can be a misdemeanor. The law provides for that. [¶] . . . [¶] So it is not just a simple
brandishing that [Smith] engages in. It is putting his hand on the grip of a gun and
walking forward under the circumstances of this case. That’s what his conduct is that is
implied malice. And it makes it a concurrent proximate cause.”10 In fact, Bennett’s own
argument on appeal—that Smith’s act of walking toward Bennett in a hostile manner
while visibly clenching a handgun was assault with a firearm under section 245,
subdivision (a)(2), and thus should have been viewed as sufficient in and of itself to
establish a provocative act—whether or not true, is just another way of saying that
something more than brandishing occurred here. Under these circumstances, had the jury
otherwise found that the requirements for provocative act murder had been met, the need
to find an act beyond mere brandishing would clearly not have stood in the way of a
conviction. Thus, any related instructional error was manifestly harmless.
C.     Exclusion of Purry’s Prior Statements
       During the trial in this matter, Bennett’s attorney filed a motion to admit certain
remarks made by Purry to BART detectives shortly after the BART shooting. Purry had
described an event which occurred when he, Smith, and Askari ran into each other
immediately before they walked over to the bus station together on the day of the
shooting. Specifically, he reported that Smith approached him, lifted his shirt to display a
handgun at his waistband, and asked Purry if he was ready to “ ‘funk,’ ” meaning to shoot
it out or go to war. Apparently, Smith was upset because he and Purry had previously


       10
          It is for this reason that we also question Bennett’s view of the interrelationship
between the murder charges brought against him and Smith, such that an error in an
instruction targeted at Smith’s culpability could cause prejudice to Bennett. The
evidence in this case showed what it showed. As illustrated above, the prosecutor
consistently argued that it was sufficient to convict both Smith and Bennett of murder.
And the jury was specifically instructed that more than one defendant could be found
culpable for Seets’s death if their conduct was “a substantial factor contributing to the
result.” The fact that the jury declined to convict Smith based on the evidence presented,
however, does not mean that the same evidence was necessarily insufficient to support
Bennett’s self-defense claims, especially his claim of imperfect self-defense.
                                             28
been housed in a group home together, but Smith was kicked out after a fight with Purry.
Purry claimed he was unsure about what to do, so he showed Smith part of a realistic toy
gun he was carrying in his waistband. He also asked Askari—who he knew—why his
brother (Smith) was threatening him. These actions appeared to deescalate the situation.
As Smith put it: “[W]e squashed it right there.” Askari testified at trial that he observed
Purry and Smith seeming to have a disagreement. Later, however, they shook hands, and
all three smoked marijuana together.
       During both the preliminary hearing and the trial in this matter, Purry invoked the
Fifth Amendment and refused to testify. The prosecutor offered Purry use immunity at
trial, but Purry still refused to answer questions. The trial judge then held Purry in
contempt of court. Since this made Purry unavailable as a witness (Evid. Code, § 240,
subd. (a)(6)), Smith’s trial counsel subsequently sought to admit his prior statements to
the police as declarations against interest (id., Evid. Code, § 1230.) Smith objected,
arguing that admission of the Purry evidence would violate his rights under the
confrontation clause of the Sixth Amendment. The trial court agreed, excluding the
evidence on Sixth Amendment grounds.
       Bennett now avers on appeal that the trial court’s refusal to admit Purry’s
statements violated his constitutional right to present a defense. He does not challenge
the trial court’s conclusion that admission of the evidence would have violated Smith’s
confrontation clause rights.11 Rather, Bennett asserts that the trial court erred by

       11
          Indeed, it would be difficult for him to do as, under Crawford v. Washington
(2004) 541 U.S. 36 (Crawford), it is generally a violation of the confrontation clause to
admit testimonial hearsay against a criminal defendant “unless (1) the declarant is
unavailable to testify and (2) the defendant had a previous opportunity to cross-examine
the witness or forfeited the right by his own wrongdoing.” (People v. Sanchez (2016)
63 Cal.4th 665, 680 (Sanchez), discussing Crawford.) Here, as described above, Purry
was unavailable and had never been subject to cross-examination, having refused to
testify both at the preliminary hearing and at trial. A testimonial statement is one “ ‘made
under circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.’ ” (Crawford, supra, 641 U.S. at
p. 52.) Thus, it is difficult to argue that Purry’s recorded statements to law enforcement
during the course of the investigation into the BART shooting were not testimonial
                                             29
elevating Smith’s constitutional right to confrontation over his constitutional right to
present a defense. He further contends that the trial court erred in failing to consider
admitting the evidence as to Bennett only, with a limiting instruction.
       Although Bennett expressly requested during trial that Purry’s statements be
admitted as declarations against interest, he failed to raise either of the specific
contentions he now asserts and thus has arguably forfeited them. (See People v. Smith
(2003) 30 Cal.4th 581, 629-630.) However, even if no forfeiture occurred, we need not
reach the merits of Bennett’s claims, including his alternative claim of ineffective
assistance of counsel. Rather, we conclude that exclusion of the Purry evidence, even if
error, was harmless under the facts of this case.
       As emphasized above, Bennett defended himself in the trial court with respect to
the BART shooting on the ground that he fired in either complete or imperfect self-
defense when Smith approached him in a hostile manner and displayed his handgun,
while clenching it. Bennett claims that the exclusion of Purry’s statements was
prejudicial because this evidence would have corroborated his own testimony that he saw
a handgun in Smith’s waistband and would have supported a pattern of aggressive
behavior by Smith. However, Purry’s statement could not corroborate Bennett’s claim
that he saw Smith’s gun, only that Smith had a gun. And, as the Attorney General points
out and as discussed above, Smith’s admission to the police that he had the gun in his
waistband, clenched it, and walked toward Bennett was already in evidence and
definitively established this fact. Thus, the Purry evidence was, at best, duplicative.
Moreover, given that Smith’s advance on Bennett’s group was captured on videotape, the
jury could judge for itself the level of threat telegraphed by Smith’s actions. Indeed, even


within the meaning of the Sixth Amendment. (See Sanchez, supra 63 Cal.4th at p. 687
[“ ‘[s]tatements taken by police officers in the course of interrogations are . . . testimonial
under even a narrow standard,’ ” quoting Crawford].) Finally, the dangers inherent in
improperly admitting such evidence were well illustrated in this case by the prosecutor’s
somewhat playful comments that he would “absolutely endorse” the admission of the
statements at issue because they would make Smith “look worse” and “nobody would get
to cross-examine [Purry].”
                                              30
if Smith had been similarly aggressive a few minutes previously, Bennett was not aware
of that when he made the decision to shoot first. He had only the same information that
was presented to the jury through videotape and the testimony of eyewitnesses to the
event. Thus, it is difficult to see how Purry’s statements could have aided Bennett’s
defense in any meaningful way. Indeed, if the jury saw the prior incident between Purry
and Smith as evidence that Smith would likely have deescalated after both parties showed
their guns, it might actually have harmed Bennett. Under such circumstances, it is not
reasonably probable that the jury would have reached a more favorable verdict had the
Purry evidence been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)12
Accordingly, we find any assumed error with respect to the exclusion of this evidence
harmless.
D.     Admission of Facebook Photo Captions
       As stated above, Walton, Jordan’s cousin, testified at trial that Jordan identified
Bennett as his assailant shortly after the shooting and showed her photos of Bennett on
Facebook. Walton took pictures of the photos and eventually forwarded them to the
police. As Bennett testified at trial, the photos depict he and a friend posing with guns,
with Bennett displaying his middle finger. Bennett’s objection to the admission of these
photos without some kind of limiting instruction was denied by the trial court. Later,
       12
           We reject Bennett’s assertion that the proper standard on review of this issue is
the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional
dimension. (See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) Although
“ ‘completely excluding evidence of an accused’s defense’ ” theoretically could impair
the accused’s constitutional right to present a defense, “ ‘evidence on a minor or
subsidiary point does not.’ ” (People v. Boyette (2002) 29 Cal.4th 381, 427–428.) “ ‘If
the trial court misstepped, “[t]he trial court’s ruling was an error of law merely; there was
no refusal to allow [defendant] to present a defense, but only a rejection of some evidence
concerning the defense.” ’ ” (Ibid.) As we explained above, exclusion of the Purry
evidence did not completely preclude Bennett from presenting his defense. Rather, his
own testimony, Smith’s admissions, the video surveillance, and the statements of
eyewitnesses all arguably supported his self-defense claim. (Compare People v. Carlin
(2007) 150 Cal.App.4th 322, 335 [where defendant testified on his own behalf, he was
not precluded from presenting a defense].) Thus, the appropriate standard is that
articulated by Watson rather than Chapman.

                                             31
Bennett moved to redact the captions which were posted along with the Facebook photos,
arguing that they were hearsay given Bennett’s testimony that he did not post them and
had not seen them on his Facebook feed. Reportedly, two of the captions read: “lil brie n
lil kc ya ya mobbin.” And the third stated: “mobbsta mobb get ya hammas up.” The
trial court denied the motion to redact the captions as well, admitting the three Facebook
photos as is.
       On appeal, Bennett does not challenge the admission of the photos. Rather, he
claims that the captions on the photos were inadmissible hearsay because there was no
evidence that he posted them or otherwise adopted them. The Attorney General, in
contrast, correctly points outs that we review evidentiary decisions for abuse of
discretion, keeping in mind that “a trial court has broad discretion to determine whether a
party has established the foundational requirements for a hearsay exception [citation] and
‘[a] ruling on the admissibility of evidence implies whatever finding of fact is
prerequisite thereto.’ ” (People v. DeHoyos (2013) 57 Cal.4th 79, 132.) Under this
standard, the Attorney General posits that the trial court could have found Bennett’s
testimony that he was unaware of the Facebook post not credible and/or could have
inferred that a friend would not post such pictures to Bennett’s Facebook page without
Bennett’s acquiescence, thereby finding the captions admissible as adoptive admissions.
(See id. at p. 133.)
       Preliminarily, we are not convinced that the challenged statements were admitted
for any kind of “truth,” other than as a colorful verbal description of what the photos,
themselves, already showed: two teenagers, “lil brie” (Bennett) and “lil kc,” playing at
being “mobbstas.” Thus, in a sense, the captions merely reflected what Bennett’s own
posturing already showed. However, we need not determine whether the trial court erred
in refusing to redact the photo captions here at issue because we once again conclude
that, even were we to assume error, it was harmless under the facts of this case. Bennett,
himself, testified that he was part of a close group of friends that called themselves the
Monster Mob after one of the girls in the group nicknamed “ ‘Little Monster.’ ” He
denied that they were a gang. In describing the incident during which the pictures were

                                             32
taken, Bennett stated that a friend brought two unloaded guns out of his parents’ bedroom
for Bennett and a third friend to see. He admitted that he agreed to take photos with the
guns; that the photos were of him and a friend posing with the guns; and that he was
holding up his middle finger in the photos because that was his standard (though
regrettable) picture pose. There was also evidence from Beal to the effect that Bennett
was trying hard to be a thug or gangster. Given the other evidence presented, the
wording in the captions added little to this ancillary issue.
       With respect to the BART shooting, for instance, the photos, themselves, could
certainly be viewed as supporting the conclusion that Bennett had some familiarity with
guns and was trying to be a “mobbsta,” determinations which could perhaps have
undermined his argument that he acted in either complete or imperfect self-defense.
Arguably, however, such evidence could also support an argument that he understood
street life and thus the danger inherent in Smith’s actions at the BART station. Certainly,
we do not see how the addition of the captions to the mix of evidence can be viewed as
materially and negatively impacting Bennett’s defense against this murder charge.
       With respect to the Oakland shooting, the evidence that Bennett was Jordan’s
shooter was strong. As we have discussed, the same gun Bennett used during the BART
shooting was also used two days earlier to shoot Jordan. Walton’s testimony,
corroborated by the Facebook photos, indicated that Jordan had identified Bennett as his
shooter while still in the hospital, well before the police were aware that the shell casings
from the two crimes matched. Further, although Jordan steadfastly refused to identify
Bennett as his shooter, at trial he admitted that he and Bennett had a physical altercation
immediately before the shooting. Bennett, for his part, admitted he knew Jordan, but
testified they did not have a bad relationship and he could not imagine why Jordan would
falsely accuse him. Although Bennett admitted he knew the name of the individual who
sold him the gun, he refused to disclose it. He conceded that he never investigated
whether the gun dealer knew who shot Jordan; admitted that the police did not match the
shell casings in the two cases until several months after Jordan identified him as the
shooter; and acknowledged the coincidence that he happened to have the same gun two

                                              33
days later at the BART station. Bennett defended himself by claiming that he purchased
the gun on January 18th, the day between the two shootings, and suggesting that Jordan
and Walton were somehow protecting Jordan’s actual shooter by incriminating Bennett.
Again, we can see no way in which the challenged captions could be viewed as materially
affecting Bennett’s guilt or innocence with respect to the charged shooting. We therefore
conclude that the admission of the photo captions, even if error, was harmless.13
E.     Remand for Resentencing
       Finally, we must consider, with respect to Bennett, a sentencing issue brought to
our attention in this case via supplemental briefing from the parties. At the time it
sentenced Bennett, the trial court had no discretion to strike the two firearm
enhancements it imposed under section 12022.53. (Former § 12022.53, subd. (h).)
Thereafter, in October 2017, the Legislature passed Senate Bill 620, which took effect on
January 1, 2018. Pursuant to this legislation, amended section 12022.53 now provides
that “[t]he 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.” (§ 12022.53, subd. (h); People v. McDaniels (2018) 22 Cal.App.5th 420, 424–
425 (McDaniels).) The authority provided by the amended statute “applies to any
resentencing that may occur pursuant to any other law.” (§ 12022.53, subd. (h); see also
§ 12022.5, subd. (c) [similar language applicable to enhancements under § 12022.5].)
Recently, our colleagues in Division One of this District concluded that newly amended
subdivision (h) of section 12022.53 applies retroactively to nonfinal judgments, such as
the one at issue in this appeal. (See McDaniels, at pp. 424-425.) Other Districts have
reached a similar conclusion with respect to both subdivision (h) of section 12022.53 and
subdivision (c) of section 12022.5. (See, e.g., People v. Billingsley (2018) 22




       13
          Bennett argues that the cumulative effect of the alleged errors at his trial require
reversal of his conviction, even if none alone were individually prejudicial. As our
review of the case has uncovered no substantial error in any respect, we also reject his
argument of cumulative prejudice. (See People v. Butler (2009) 46 Cal.4th 847, 885.)
                                             34
Cal.App.5th 1076, 1079-1080; People v. Vela (2018) 21 Cal.App.5th 1099, 1113-1114.)
Indeed, the Attorney General here concedes as much.
       Under such circumstances, “remand is required unless the record shows that the
trial court clearly indicated when it originally sentenced the defendant that it would not in
any event have stricken a firearm enhancement.” (McDaniels, supra, 22 Cal.App.5th at
p. 425.) The Attorney General posits that, under this standard, remand is unnecessary in
this case because the trial court’s actions at sentencing show that it would not strike the
firearm enhancements on remand. Specifically, the Attorney General points to the refusal
of the trial court to impose Bennett’s two sentences—32 years to life for the attempted
murder and 40 years to life for murder—concurrently rather than consecutively, despite
its serious consideration of the “many voices” that spoke on Bennett’s behalf. We agree
with the Attorney General that the trial court’s sentencing determination may indicate
that it believed something more than 40 years to life was appropriate on these facts.
However, even were we to deem this a clear indication of the trial court’s intent on that
point, nothing in the record rules out the possibility that the trial court might exercise its
discretion on remand to strike one of Bennett’s two firearm enhancements, or to strike
both in favor of shorter enhancements under other statutes that were previously stayed.
We thus conclude that remand on this issue is appropriate. “While we express no opinion
on how the court should exercise its discretion on remand, that discretion is for it to
exercise in the first instance.” (McDaniels, p. 428.)
                       IV. OTHER ISSUES RAISED BY SMITH
       All of Smith’s remaining arguments on appeal arise out of the trial court’s April
2014 denial of his new trial motion, filed after the jury found him guilty of unlawful
possession of a firearm. Smith’s burden to prove error on appeal in this context is a
heavy one. “The trial court has broad discretion in determining whether the evidence has
sufficient probative value to sustain the verdict [citation], and its order will not be
reversed on appeal ‘absent a manifest and unmistakable abuse of that discretion.’ ”
(People v. Dickens (2005) 130 Cal.App.4th 1245, 1252 (Dickens); see also People
v. Lightsey (2012) 54 Cal.4th 668, 729.) In particular, an “appellate court reviews the

                                              35
evidence in the light most favorable to the trial court’s ruling, drawing all factual
inferences that favor the trial court’s decision.” (Dickens, at p. 1252.) And, “[t]he trial
court’s factual findings, express or implied, will be upheld if supported by any substantial
evidence.” (Ibid.; see also People v. Johnston (2003) 113 Cal.App.4th 1299, 1303–1304
[“Generally, we review the record in a criminal appeal by reading it most favorably to the
prosecution, indulging every reasonable intendment in favor of the judgment.”])
       Here, Smith asserts that a new trial was warranted because there was insufficient
evidence of the corpus delicti of the offense absent his own admissions. He additionally
claims that certain statements made by jurors after deliberations support a new trial in this
case because they show that the jury did not follow the law in convicting him of unlawful
possession of a firearm. Finally, Smith argues that the prosecutor’s misconduct in
misstating the law of corpus delicti during his closing comments to the jury justifies a
new trial. We address and reject each contention in turn.
A.     Proof of Corpus Delicti
       Smith first argues that a new trial was required because there was insufficient
evidence that he possessed a firearm apart from his own admission to that effect. “To
convict an accused of a criminal offense, the prosecution must prove that (1) a crime
actually occurred, and (2) the accused was the perpetrator. Though no statute or
constitutional principle requires it, California, like most American jurisdictions, has
historically adhered to the rule that the first of these components—the corpus delicti or
body of the crime—cannot be proved by exclusive reliance on the defendant’s
extrajudicial statements.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1164-1165.) The
purpose of this rule is “to assure that ‘the accused is not admitting to a crime that never
occurred.’ ” (People v. Jones (1998) 17 Cal.4th 279, 301.) However, “[t]he amount of
independent proof of a crime required for this purpose is quite small; we have described
this quantum of evidence as ‘slight’ [citation] or ‘minimal’[citation]. The People need
make only a prima facie showing ‘ “permitting the reasonable inference that a crime was
committed.” ’ [Citation.] The inference need not be ‘the only, or even the
most compelling, one . . . [but need only be] a reasonable one’ ” (Id. at pp. 301-302.)

                                             36
       Under these standards, we agree with the Attorney General that the corpus delicti
of the charged crime was established in this case. Bennett testified that Smith lifted his
shirt up and he saw a gun. Beal testified that she “definitely” saw Smith clutching an
object as he moved towards them. And, when asked whether she told the police that she
saw Smith grabbing the handle of a gun, Beal replied: “Yes, sir, that’s what I made of
it.” In addition, Roland testified both that he saw Smith with a gun and that Smith put his
hand to his waist as he walked toward Bennett’s group “like he had a gun.” And Smith’s
own brother stated that when Smith was walking towards Bennett’s group, he looked like
he was going to get his gun and shoot. While the credibility of these witnesses was
certainly open to question, their testimony supplies some evidence from which the jury
could reasonably infer that Smith had a gun. In addition, the jury could have reasonably
inferred from viewing video of the BART shooting that Smith’s posture as he advanced
towards Bennett’s group suggested that he was armed.
       Moreover, Smith’s argument that Bennett, Beal, and Roland lacked credibility and
thus their statements that he had a gun do not supply substantial evidence of that fact
misapprehends the corpus delicti requirement. “[O]nce the necessary quantum of
evidence is present to satisfy the corpus delecti rule, the defendant’s extrajudicial
statements may be considered for their full value to strengthen the case on all issues.”
(In re I.M. (2005) 125 Cal.App.4th 1195, 1205.) Because, as stated above, there was
some evidence that Smith possessed a gun during the BART shooting aside from his
admission on that point, the trial court could then properly consider Smith’s admission in
finding that there was substantial evidence supporting the jury’s verdict. We see no
abuse of discretion.
B.     Juror Statements Regarding Deliberation
       We next reject Smith’s argument that, in reviewing the trial court’s denial of his
new trial motion, we should consider statements reportedly made by certain jurors after
the verdicts in this case. Specifically, a declaration filed by Smith’s trial counsel in
support of his new trial request indicates that three jurors told counsel after the trial that
they did not believe the testimony of Bennett, Beal, and Roland that they saw Smith’s

                                              37
gun. Instead, the only evidence that they considered in convicting Smith of gun
possession was Smith’s own admission that he had a gun on the day of the BART
shooting. In addition, according to Smith’s trial counsel, she ran into a fourth juror
several days later who confirmed that the jury only considered Smith’s admission in
reaching its verdict. This, despite the fact that the jury had been expressly instructed in
accordance with CALJIC 2.72 that “[n]o person may be convicted of a criminal offense
unless there is some proof of each element of the crime independent of any admission
made by him outside of this trial.”
        However, as the Attorney General correctly points out: “Hearsay evidence
offered in support of a new trial motion that is based on alleged jury misconduct
ordinarily is insufficient to establish an abuse of discretion in either denying the motion
or declining to conduct an evidentiary hearing.” (People v. Manibusan (2013)
58 Cal.4th 40, 55; see also People v. Dykes (2009) 46 Cal.4th 731, 811 [“ ‘ “a jury
verdict may not be impeached by hearsay affidavits” ’ ”]; People v. Villagren (1980)
106 Cal.App.3d 720, 729 [same].) Moreover, the type of hearsay offered in this case—
focusing as is does on the deliberative process of the jurors in reaching their verdict—is
expressly inadmissible under Evidence Code section 1150. Pursuant to that statute:
“Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may
be received as to statements made, or conduct, conditions, or events occurring, either
within or without the jury room, of such a character as is likely to have influenced the
verdict improperly. No evidence is admissible to show the effect of such statement,
conduct, condition, or event upon a juror either in influencing him to assent to or dissent
from the verdict or concerning the mental processes by which it was determined.” (Evid.
Code, § 1150 subd. (a), italics added.) The reason for this rule is clear: “Asking jurors to
revisit the process by which they reached a verdict plainly opens the door to postverdict
jury tampering, harassment of jurors, and instability of verdicts.” (People v. Gonzales
(2012) 54 Cal.4th 1234, 1281; see also People v. Steele (2002) 27 Cal.4th 1230, 1262
[“Not all thoughts ‘by all jurors at all times will be logical, or even rational, or, strictly
speaking, correct. But such [thoughts] cannot impeach a unanimous verdict; a jury

                                               38
verdict is not so fragile.’ ”]; People v. Morris (1991) 53 Cal.3d 152, 231 [“ ‘[A] verdict
may not be impeached by inquiry into the juror’s mental or subjective reasoning
processes, and evidence of what the juror “felt” or how he [or she] understood the trial
court’s instructions is not competent.’ ”], disapproved on other grounds in People v.
Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) Since reliance on the proffered juror
statements in this case would have been patently improper, the trial court did not abuse its
discretion in refusing to grant a new trial based on this inadmissible evidence.
C.     Prosecutor’s Closing Statements Regarding Corpus Delicti
       Finally, we consider Smith’s claim of prosecutorial error.14 Smith argues that the
prosecutor misstated the law of corpus delicti in his rebuttal closing argument.
Specifically, he points to the following argument by the prosecutor: “Now, the job for
you is to assign criminal responsibility to various actors who were responsible, and
somebody’s admission can come in for that, including when she says, we can’t prove he
had a gun outside of his admission. You don’t need anything more than that. You don’t
need anything more than that. And if he admits he had a gun, you can take that as a
proved fact.”
       “ ‘ “A prosecutor’s misconduct violates the Fourteenth Amendment to the United
States Constitution when it ‘infects the trial with such unfairness as to make the
conviction a denial of due process.’ [Citations.] In other words, the misconduct must be
‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’
[Citation.] A prosecutor’s misconduct that does not render a trial fundamentally unfair
nevertheless violates California law if it involves ‘the use of deceptive or reprehensible
methods to attempt to persuade either the court or the jury.’ ” ’ ” (People v. Tully (2012)
54 Cal.4th 952, 1009–1010.)




       14
           As suggested by People v. Hill (1998) 17 Cal.4th 800, 823, fn.1, we use the term
“prosecutorial error” rather than “prosecutorial misconduct” when referring to the
challenged conduct in this case in order to more accurately reflect that no showing of bad
faith is required to establish the error.
                                               39
       It is error for the prosecutor to misstate the applicable law. (Hill, supra,
17 Cal.4th at p. 829.) However, “ ‘[t]o prevail on a claim of prosecutorial misconduct
based on remarks to the jury, the defendant must show a reasonable likelihood the jury
understood or applied the complained-of comments in an improper or erroneous
manner.’ ” (Dykes, supra, 46 Cal.4th at pp. 771–772.) In particular, “we presume the
jury treated the court’s instructions as statements of law, and the prosecutor’s comments
as words spoken by an advocate in an attempt to persuade.” (People v. Sanchez (1995)
12 Cal.4th 1, 70, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390,
421, fn. 22; see also Dykes, at p. 772 [“ ‘In conducting this inquiry, we “do not lightly
infer” that the jury drew the most damaging rather than the least damaging meaning from
the prosecutor’s statements.’ ”].) Generally, a trial court’s rulings on prosecutorial
misconduct are reviewed for abuse of discretion. (People v. Peoples (2016)
62 Cal.4th 718, 792–793.)
       In the present case, when read in context, it is not entirely clear what the
prosecutor was suggesting when making the challenged assertions. He appears to have
been arguing about the murder charge on which Smith was acquitted, rather than the gun
possession charge which is here at issue. However, we need not determine whether his
brief comments otherwise amount to prosecutorial error because, on this record, we
cannot find that there is a “reasonable likelihood” the jurors would have relied upon the
prosecutor’s statements and ignored the law as articulated to them by the court. First, we
note that Smith’s own trial attorney, in her closing argument, commented: “Lawyers are
not the final word of the law. We tend to mangle things . . . . The judge will tell you
what the law is, and he knows it. And he has it written down, and he is not going to make
a mistake. But I might.” She also specifically referenced corpus delicti; informed the
jurors they would receive an instruction; correctly stated the law; and argued that there
was no corroborating evidence that Smith had a gun. Thereafter, at stated above, the jury
was expressly instructed that “[n]o person may be convicted of a criminal offense unless
there is some proof of each element of the crime independent of any admission made by
him outside of this trial.”

                                             40
       In addition, the jury was instructed that “the statements made by counsel in their
closing statements [are] not evidence in the case.” The jury was also admonished by the
court that it should only apply the law as set forth in the court’s instructions: “If there is
a variance between what any attorney says the law is and what I tell you it is, you accept
the law as I state it to you.” Indeed, variations on this sentiment were repeated twice by
the trial court immediately prior to the closing arguments in the case and once
immediately after the closing arguments as the court was instructing the jury on the
applicable law. Further, during the closing arguments, themselves, objections by trial
counsel that an attorney was misstating the evidence or the law were routinely denied by
the trial court with an admonition similar to the following: “I have previously stated the
rules by which you may consider the statements made by either or any counsel during
argument, that you will consider all remarks of counsel in light of those principles.”
Under these circumstances, we simply cannot find a reasonable likelihood that the jury
credited a isolated comment by the prosecutor over the repeated statements of the trial
court with respect to the law and the proper deliberative process. Thus, the trial court’s
decision not to grant a new trial on this ground cannot be deemed an abuse of
discretion.15
                                     V. DISPOSITION
            Bennett and Smith’s convictions are affirmed, but Bennett’s case is remanded
for the trial court to exercise its discretion with respect to possible resentencing.




       15
          Smith’s trial counsel did not object to the specific statements here challenged,
and the Attorney General argues that Smith has thereby forfeited this issue. (See Tully,
supra, at p. 1010 [“ ‘a claim of prosecutorial misconduct is not preserved for appeal if
defendant fails to object and seek an admonition if an objection and jury admonition
would have cured the injury’ ”].) Smith, in contrast, avers that no forfeiture occurred
because any further objections during argument would have been futile. While the record
seems to indicate that the trial court was willing to remind the jury of its responsibilities
in this context whenever a concern was brought to its attention, given our conclusion that
no prejudicial error occurred, we need not reach the Attorney General’s forfeiture claim.
                                              41
                                                             Reardon, J.*


We concur:


_________________________
Streeter, Acting P.J.


_________________________
Tucher, J.




*
  Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.


A141594, People v. Smith / A142094, People v. Bennett

                                                        42
43
                       STREETER, ACTING P.J., CONCURRING

         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.
                                                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 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 216, 225 (Snow).) Although the
permissibility of taking into account the prosecutor’s willingness to accept same-race
jurors has often been repeated over the years (ibid.; see People v. Turner (1994) 8 Cal.4th
137, 168, disapproved on another point in People v. Griffin (2004) 33 Cal.4th 536, 555,
fn. 5; People v. Gutierrez (2017) 2 Cal.5th 1150, 1170–1171; People v. Blacksher (2011)
52 Cal.4th 769, 802 (Blacksher); People v. Jones (2011) 51 Cal.4th 346, 362; People v.
Lenix (2008) 44 Cal.4th 602, 629 (Lenix); People v. Kelly (2007) 42 Cal.4th 763, 780
(Kelly); People v. Cornwell (2005) 37 Cal.4th 50, 70 (Cornwell), disapproved on another
point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22), this cautionary language

         16
         See Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978)
22 Cal.3d 258 (Wheeler), overruled in part by Johnson v. California (2005) 545 U.S. 162,
165.
                                                1
from Snow warrants emphasis. It is not just a stray side comment. The Snow court
discusses the issue at some length, at one point expressly overruling a case that was
apparently based on the premise that “if the jury panel contains at least a minimum
number of members of the cognizable group to provide defendant a representative cross-
section of the community, he cannot complain of the prosecutor’s pattern of unlawful
discrimination in the use of his peremptory challenges.” (Snow, supra, 44 Cal.3d at p.
225 [disapproving People v. Davis (1987) 189 Cal.App.3d 1177, 1190–1191].)
                                                        II.
         Stepping back and starting from first principles in this area, I note that,
historically, the vice here was systematic exclusion of women and African Americans
from jury service. (See Taylor v. Louisiana (1975) 419 U.S. 522 [exclusion of women];
Glasser v. United States (1942) 315 U.S. 60 [same], superseded on other grounds as
stated in Bourjaily v. United States (1987) 483 U.S. 171, 181; Peters v. Kiff (1972) 407
U.S. 493 [exclusion of African Americans]; cf. Smith v. Texas (1940) 311 U.S. 128
[exclusion of African Americans from grand jury service].)
         Adapting these systematic exclusion cases to the issue of discriminatory use of
peremptory challenges, our Supreme Court, in Wheeler, supra, 22 Cal.3d 258, addressed
a situation where the prosecutor struck every single one of the African Americans on the
venire in that case. (Id. at pp. 262–265.) Because sweeping African Americans from the
jury pool was based on a belief in “group bias,” the Court found a violation of the
defendant’s right to an impartial jury drawn from a representative cross-section of the
community under article I, section 16 of the California Constitution. (Id. at pp. 276–
278.)
         Although the precise doctrinal basis of Wheeler is no longer much discussed,
Wheeler’s familiar three-step framework of analysis to detect discriminatory use of
peremptory challenges remains vital under current law, having been embraced and
effectively merged with the holding in Batson, supra, 476 U.S. at pages 94–98. But
there remains a significant difference between Wheeler and Batson. Batson, like
Wheeler, was a case in which the prosecutor used his strikes to sweep all African

A141594, People v. Smith / A142094, People v. Bennett
Americans from a petit jury. (Id. at. p. 83.) While adopting the same three-step approach
to analysis that Wheeler did, the high court held that “[p]urposeful racial discrimination
in selection of the venire violates a defendant’s right to equal protection because it denies
him the protection that a trial by jury is intended to secure.” (Id. at p. 86.)
         Today, in practice, there is no recognized difference between Wheeler and
Batson—hence the commonly used label Batson/Wheeler—but vestiges of Wheeler’s
doctrinal foundation remain in some of the Batson/Wheeler case law. I think the undue
weight the trial court in this case attached to the prosecutor’s acceptance of two same-
race jurors illustrates that. The whole point of Wheeler was to root out systematic
exclusion of members of protected groups. Thus, under Wheeler, it was an effective
rebuttal to show that while the prosecutor may have engaged in some discrimination, the
discrimination was not systematic enough to violate article 1, section 16 of the California
Constitution.17
         Not so any more. Things changed in the years following Batson, as shown most
clearly in Snyder v. Louisiana (2008) 552 U.S. 472 (Snyder), where the high court made
clear that the Constitution forbids striking even a single prospective juror for a
discriminatory purpose. (Id. at p. 478.) Under the now governing equal protection frame
of analysis, the stages of proof are identical to those outlined in Wheeler, and indeed at
step one, which tests for whether a prima facie case has been made out, the focus
continues to be in part on whether the prosecutor’s pattern of using strikes shows
systematic exclusion of a protected group. (See Batson, supra, 476 U.S. at pp. 96–97.)
But once a prima facie case is made out and the prosecutor has been required to proffer
race-neutral reasons at step two, the focus shifts to whether discriminatory intent has been



         17
          That is why most of the post-Batson cases citing Snow are not step three cases,
where the issue is the prosecutor’s intent in excusing a particular juror, but step one
cases, where the issue is whether the pattern of strikes is sufficient to make out a prima
facie case. (See Turner, supra, 8 Cal.4th at p. 168; Kelly, supra, 42 Cal.4th at p. 780;
Blacksher, supra, 52 Cal.4th at p. 802; Cornwell, supra, 37 Cal.4th at p. 70.)

A141594, People v. Smith / A142094, People v. Bennett
shown in striking a particular juror, after taking all relevant circumstances into account.
(See Miller-El v. Cockrell (2003) 537 U.S. 322, 338–340, 342–347.)
         Our Supreme Court follows the same three-step mode of analysis, ending at step
three with its individualized focus on discriminatory intent. (People v. Williams (2013)
56 Cal.4th 630, 649; Jones, supra, 51 Cal.4th at pp. 363–369; Lenix, supra, 44 Cal.4th at
pp. 613, 628–631.) Systematic exclusion remains highly relevant at step one, but at step
three the peremptory excusal of even a single prospective juror violates Batson/Wheeler
in California just as it does throughout the country under Snyder. The net result is that
we now have, in effect, a “zero-tolerance” policy when it comes to discriminatory use of
peremptory challenges under state and federal law.
                                                        III.
         Applying the California Supreme Court’s Batson/Wheeler step three cases on this
record, it is certainly not correct to say, as the trial court did here, that the prosecutor’s
acceptance or willingness to accept a same-race juror and a same-race alternate was
“powerful” evidence rebutting the prima facie case of discrimination the trial court
recognized had been established. At Batson/Wheeler step three, the issue was whether
the prosecutor’s proffered reasons for excusing David L., Pierre M., and Domanique J.—
in each case, focusing on those particular jurors—were pretextual, not whether his
decision to pass on some other juror was free of discrimination. Certainly, the
prosecutor’s acceptance of two others may have been indicative of good faith, but good
faith in and of itself was not the issue. Many perpetrators of discrimination are sincere.
         Psychological science on what is known as “moral credentials” and “moral
licensing” in the field of implicit bias tells us that, sometimes, discrimination is masked
by a discriminator’s attempt to demonstrate lack of prejudice on a prior occasion.
(Quintanilla & Kaiser, The Same-Actor Inference of Nondiscrimination: Moral
Credentialing and the Psychological and Legal Licensing of Bias (2016) 104 Cal. L.Rev.
1, 9–10.) Anticipating the need to apply concepts of implicit bias to the discriminatory
use of peremptory challenges, Justice Marshall, concurring in Batson, said that “outright
prevarication by prosecutors [is not] the only danger here. ‘[I]t is even possible that an

A141594, People v. Smith / A142094, People v. Bennett
attorney may lie to himself in an effort to convince himself that his motives are legal.’
[Citation.] A prosecutor’s own conscious or unconscious racism may lead him easily to
the conclusion that a prospective black juror is ‘sullen,’ or ‘distant,’ a characterization
that would not have come to his mind if a white juror had acted identically. A judge's
own conscious or unconscious racism may lead him to accept such an explanation as well
supported. . . . [Sometimes] prosecutors’ peremptories are based on their ‘seat-of-the-
pants instincts’ as to how particular jurors will vote. . . . Yet ‘seat-of-the-pants instincts’
may often be just another term for racial prejudice.” (Batson, supra, 476 U.S. at p. 106
(conc. opn. of Marshall, J.).)




A141594, People v. Smith / A142094, People v. Bennett
                                                        Streeter, Acting P.J.



I concur:


_________________________
Tucher, J.




A141594, People v. Smith / A142094, People v. Bennett




A141594, People v. Smith / A142094, People v. Bennett
Filed 3/1/19

                          CERTIFIED FOR PARTIAL PUBLICATION*

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      FIRST APPELLATE DISTRICT

                                                DIVISION FOUR

THE PEOPLE,
         Plaintiff and Respondent,                       A141594

v.                                                       (Alameda County
ANDRE SMITH,                                             Super. Ct. No. C172416B)
         Defendant and Appellant.


THE PEOPLE,                                              A142094
         Plaintiff and Respondent,
                                                         (Alameda County
v.                                                       Super. Ct. No. C172416A)
JABRIE BENNETT,
                                                         ORDER MODIFYING OPINION;
         Defendant and Appellant.                        FOR PARTIAL PUBLICATION;
                                                         AND DENYING REQUEST FOR
                                                         REHEARING [NO CHANGE IN
                                                         JUDGMENT]


         THE COURT:
         It is ordered that the opinion filed February 7, 2019, be modified as follows:
         1.       The opinion in the above matter was not certified for publication in the
Official Reports when filed on February 7, 2019. For good cause it now appears that the
opinion, as modified herein, but with the exception of parts III. and IV., shall be included
in the Official Reports and it is so ordered.

*
 Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts III. and IV.
A141594, People v. Smith / A142094, People v. Bennett
         2.       The first paragraph of the opinion is hereby deleted and replaced with the
following:

                 This criminal prosecution is the result of multiple charges brought against
         two co-defendants—Jabrie Bennett and Andre Smith18 (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 (Batson) and People v.
         Wheeler (1978) 22 Cal.3d 258 (Wheeler). In the unpublished portion of our
         opinion, we agree with Bennett that the trial court should reconsider his sentence
         in light of recent amendments to Penal Code section 12022.53,19 and otherwise
         reject appellants’ numerous other contentions.


         3.       The petition for rehearing filed by appellant Jabrie Bennett on February 20,
2019, and joined in by appellant Andre Smith by notice filed February 22, 2019, is
hereby DENIED.


The modifications and orders contained herein effect no change in the judgment.




Dated:                      .                           _________________________
                                                        STREETER, ACTING P.J.



         18
         After their introduction, we generally refer to the individuals involved in these
proceedings by their last names. However, individuals with the last name Smith—other
than co-defendant Smith—will be referred to by their first names for purposes of clarity.
         19
              All statutory references are to the Penal Code unless otherwise specified.
A141594, People v. Smith / A142094, People v. Bennett
Trial Court:                                            Alameda County Superior Court

Trial Judge:                                            Hon. Jeffrey W. Horner

Counsel for Respondents:                                Xavier Becerra, Attorney General; Gerald A.
                                                        Engler, Chief Assistant Attorney General;
                                                        Jeffrey M. Laurence, Senior Assistant Attorney
                                                        General; Donna M. Provenzano, Supervising
                                                        Deputy Attorney General; David H. Rose,
                                                        Deputy Attorney General


Counsel for Appellants:                                 Juliana Drous (Smith); Stephen B. Bedrick, by
                                                        Court-Appointment under the First District
                                                        Appellate Assisted Case System (Bennett)




A141594, People v. Smith / A142094, People v. Bennett
