People v. Henderson

Filed 3/30/20 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D076200

Plaintiff and Respondent, (Super. Ct. Nos.
FSB17002568, FSB17002569)
v.
ORDER DENYING REHEARING
IAN ALEXANDER HENDERSON et al., AND MODIFYING OPINION

Defendants and Appellants. [NO CHANGE IN JUDGMENT]

THE COURT:

The petition for rehearing is denied.

It is ordered that the opinion filed herein on March 13, 2020, be modified as

follows:

On page 24, the name "Hernandez" is removed from the second full paragraph and

replaced with the name "Henderson" so that the paragraph now reads:

Because we are vacating Henderson's sentence and remanding for further
sentencing proceedings, we need not decide whether the trial court abused or was
within its broad discretion in imposing a concurrent prison term on count 2.
(People v. Clancey (2013) 56 Cal.4th 562, 579 [court has broad discretion to
decide whether to run prison terms on multiple offenses concurrently or
consecutively].) On remand, the trial court must resentence Henderson after
deciding whether to exercise its discretion to strike his five-year prior serious
felony enhancement (see part VI, post). If the court elects consecutive sentences it
must state reasons for its decision. (People v. Sperling (2017) 12 Cal.App.5th
 1094, 1103 ["A trial court is required to state its reasons for imposing consecutive
sentences"]; see Cal. Rules of Court, rule 4.406(b)(5).) And while "[o]nly one
criterion or factor in aggravation is necessary to support a consecutive sentence"
(People v. Davis (1995) 10 Cal.4th 463, 552; see People v. King (2010) 183
Cal.App.4th 1281, 1323), the trial court is precluded from using the same facts to
impose a consecutive sentence and otherwise enhance Henderson's prison
sentence. (See Cal. Rules of Court, rule 4.425(b)(1).)

On page 36, the name "Hernandez" is removed from the disposition and replaced

with the name "Henderson" so that the disposition now reads:

"The sentences of Henderson and Marks are vacated and the matters
remanded with directions that the trial court resentence both defendants and in
doing so determine (1) whether to impose a consecutive or concurrent sentence for
Henderson's count 2 conviction; and (2) whether to strike Henderson's and Marks's
five-year enhancement under Penal Code sections 667, subdivision (a)(1) and
1385. In all other respects the
judgments are affirmed."

There is no change in the judgment.

BENKE, Acting P. J.

Copies to: All parties

2
Filed 3/13/20 (unmodified version)
CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D076200

Plaintiff and Respondent,

v. (Super. Ct. Nos.
FSB17002568, FSB17002569)
IAN ALEXANDER HENDERSON et al.,

Defendants and Appellants.

APPEALS from judgments of the Superior Court of San Bernardino, Michael A.

Knish, Judge. Judgments of conviction affirmed; sentences vacated and remanded with

directions.

Jason L. Jones, under appointment by the Court of Appeal, for Defendant and

Appellant Ian Henderson.

Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant

and Appellant Zavier Marks.

Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland,

Assistant Attorneys General, Charles C. Ragland, Scott C. Taylor and Marvin E. Mizell,

Deputy Attorneys General, for Plaintiff and Respondent.
 A jury convicted Ian Alexander Henderson and codefendant Zavier Michael

Marks of attempted murder (Pen. Code,1 §§ 664, subd. (a), 187, subd. (a); count 1) and

shooting at an inhabited dwelling (§ 246; count 2). With respect to count 1, the jury

found true allegations that the attempted murder was committed by both defendants

willfully and with deliberation and premeditation (§ 664, subd. (a)). It found not true

allegations as to both counts that the defendants committed the offenses for the benefit of,

at the direction of, or in association with a criminal street gang (§ 186.22, subd.

(b)(1)(C)). The court dismissed allegations that as to both counts, a principal either

used a firearm, discharged a firearm, or discharged a firearm causing great bodily injury

(§ 12022.53, subds. (b)–(e)). However, it found true allegations that Henderson and

Marks each suffered a single conviction constituting both a serious felony prior

conviction (§ 667, subd. (a)(1)) and a prior strike conviction (§§ 667, subds. (b)-(i),

1170.12, subds. (a)-(d)).

The court sentenced Henderson to a 29-year-to-life prison sentence: seven years to

life on count 1 doubled to 14 years to life by his strike prior, plus a consecutive middle

term of five years on count 2 doubled to 10 years, and an additional consecutive five

years for the serious felony prior conviction. It sentenced Marks to 19 years to life in

prison: seven years to life on count 1 doubled to 14 years to life by the strike prior

conviction, plus a concurrent midterm of five years on count 2 doubled to 10 years, and a

five-year enhancement for the serious felony prior conviction.

1 Undesignated statutory references are to the Penal Code.
2
 Henderson contends: (1) his count 2 conviction must be reversed because it is

barred by section 1387, under which a prosecutor may not refile charges that have

already been twice dismissed; (2) the prosecutor committed prejudicial misconduct

during his closing argument when explaining premeditation and Henderson received

ineffective assistance of counsel by counsel's failure to object to it; and (3) the trial court

erred by imposing a consecutive sentence on count 2 based on the same facts as

underlying its imposition of a serious felony prior conviction. Marks contends the trial

court erred by denying Henderson's motion alleging a prima facie case of discrimination

after the prosecutor exercised his first peremptory challenge against an African-American

juror (Juror No. 12, also referred to by the parties as J12-8). Marks joins Henderson's

first two claims and Henderson joins Marks's claim.

In supplemental briefing, both Henderson and Marks ask that the matter be

remanded for resentencing so that the trial court may exercise its discretion whether to

impose or strike the five-year sentence for their prior serious felonies. Pointing out the

court did not indicate at sentencing whether it would have stricken the five-year terms if

it knew it had discretion to do so, the People concede the matter should be remanded so

the court can exercise its discretion whether to strike those terms. We agree with the

concession. We vacate the defendants' sentences and remand with directions set forth

below. With the exception of Henderson's claim concerning imposition of his

consecutive sentence on count 2, which we direct the trial court to address on remand, we

reject the defendants' other contentions.

3
 FACTUAL AND PROCEDURAL BACKGROUND

Given the nature of defendants' appellate claims it suffices to just briefly

summarize the underlying facts of the offenses. We provide additional detail below as

necessary to resolve prejudice arguments.

At about 2:15 a.m. on March 26, 2017, three men seen in proximity to a vehicle

within an apartment complex asked the victim where he was from and whether he was a

"Blood or a Crip." After the victim said he was from Watts, they fired multiple rounds of

bullets at him, hitting the victim's hip after he dropped to the ground and tried to crawl

away, and also hitting occupied apartments. A security guard called police and gave

them the license plate number of the car when it drove out of the complex. An officer

found 24 bullet casings in the area.

At about 10:00 that morning an officer stopped the vehicle involved in the

shooting, finding Henderson in the driver's seat and Marks, another man, and a woman as

passengers. Police searching the vehicle found two loaded nine-millimeter handguns, a

large capacity magazine for one of the guns, and a cell phone. An additional search of

the car revealed a third loaded handgun, which was later determined by a firearms

examiner to have been the gun that fired eight of the rounds at the crime scene. The

examiner determined one of the 24 rounds was fired from one of the other two guns

found in the car. Federal officers performed an analysis on Henderson's phone and found

it had activated three cell phone towers in the San Bernardino area at about 2:17 a.m.,

about 1.5 miles from the crime scene.

4
 Neither Henderson nor Marks presented witnesses in their defense. Their third

codefendant, Edwurd Sanders, testified that he, Henderson and Marks drove to a strip

club that morning, drank alcohol and left at about 1:45 a.m. The jury could not reach a

verdict as to Sanders, and the court declared a mistrial as to him.

DISCUSSION

I. Operation of Two-Dismissal Rule and Exception of Sections 1387 and 1387.1

A. Legal Principles

Section 1387, subdivision (a) provides, with exceptions not applicable here: "An

order terminating an action pursuant to this chapter . . . is a bar to any other prosecution

for the same offense if it is a felony . . . and the action has been previously terminated

pursuant to this chapter . . . ." This statute sets out a " 'two-dismissal rule; two previous

dismissals of charges for the same offense will bar a new felony charge.' " (People v.

Trujeque (2015) 61 Cal.4th 227, 255; see also People v. Juarez (2016) 62 Cal.4th 1164,

1167.)

Section 1387.1, subdivision (a) constitutes an exception to that rule—allowing a

third opportunity for the People to pursue violent felony charges—if either of the prior

two dismissals was due to excusable neglect and the prosecution did not act in bad faith.

(People v. Trujeque, supra, 61 Cal.4th at pp. 255-256; People v. Standish (2006) 38

Cal.4th 858, 882; People v. Villanueva (2011) 196 Cal.App.4th 411, 425.) That section

provides: "(a) Where an offense is a violent felony, as defined in Section 667.5 and the

prosecution has had two prior dismissals, as defined in Section 1387, the people shall be

permitted one additional opportunity to refile charges where either of the prior dismissals

5
under Section 1387 were due solely to excusable neglect. In no case shall the additional

refiling of charges provided under this section be permitted where the conduct of the

prosecution amounted to bad faith." Thus, "if the previously charged and dismissed

felony is not a violent felony as defined in section 667.5, '[s]ection 1387 generally bars a

third prosecution of a felony, and certainly bars further prosecution when section 1387.1's

prerequisites are not met [e.g., a section 667.5 violent felony].' " (People v. Salcido

(2008) 166 Cal.App.4th 1303, 1310.)

These statutes, contained in Chapter 8 (entitled "Dismissal of the Action for Want

of Prosecution or Otherwise") are part of "a series of statutes, commencing with Penal

Code section 1381, [that] are a construction and implementation of the California

Constitution's speedy trial guarantee." (People v. Villanueva, supra, 196 Cal.App.4th at

p. 422.) That they protect that pretrial right is reflected in their legislative history, which

the California Supreme Court has already examined in several cases. In those, the court

addressed the " 'human problems the Legislature sought to address in adopting section

1387—" 'the ostensible objects to be achieved [and] the evils to be remedied.' " ' "

(People v. Juarez, supra, 62 Cal.4th at p. 1170; People v. Traylor (2009) 46 Cal.4th

1205, 1213-1214; Burris v. Superior Court (2005) 34 Cal.4th 1012, 1018.) It explained:

" 'Section 1387 implements a series of related public policies. It curtails prosecutorial

harassment by placing limits on the number of times charges may be refiled. [Citations.]

The statute also reduces the possibility that prosecutors might use the power to dismiss

and refile to forum shop. [Citations.] Finally, the statute prevents the evasion of speedy

trial rights through the repeated dismissal and refiling of the same charges.' " (Juarez, at

6
p. 1170, quoting Burris, at p. 1018.) This court and others have said that the purpose of

section 1387 is to " 'prevent improper successive attempts to prosecute a defendant.' "

(People v. Salcido, supra, 166 Cal.App.4th at p.1309; Berardi v. Superior Court (2008)

160 Cal.App.4th 210, 219; People v. Rodriguez (2013) 217 Cal.App.4th 326, 334; People

v. Cossio (1977) 76 Cal.App.3d 369, 372.)

"By providing that a single dismissal of a misdemeanor bars further prosecution

for the same offense but requiring two dismissals for felonies, '[s]ection 1387 reflects a

legislative judgment that because of the heightened threat to society posed by serious

crimes, more filings should be permitted for serious crimes than for minor ones.'

[Citation.] 'As further proof of this intent, while two filings are allowed for most

felonies, section 1387.1 carves out the most serious category of felonies, violent felonies,

and allows a third filing for these crimes under certain circumstances.' " (People v.

Juarez, supra, 62 Cal.4th at pp. 1170-1171.) Underlying the statutes is the compelling

public interest in prosecuting very serious felonies such that society should not pay the

price of procedural errors. (See Assem. Com. on Public Safety Analysis, Sen. Bill No.

709 (1987-1988 Reg. Sess.) as amended April 22, 1987, p. 2.; Dept. of Justice Bill

Analysis, Sen. Bill No. 708 (1987-1988 Reg. Sess.) March 17, 1987, p. 1.) Thus, the

People should be permitted to refile and hold a trial on the merits on such charges despite

having had to previously dismiss them due to errors on the part of the court, prosecution,

law enforcement agency or witnesses. (See People v. Woods (1993) 12 Cal.App.4th

1139, 1148-1149.)

7
B. Background

Before trial, defense counsel jointly moved to dismiss certain of the defendants'

charges on grounds they were twice previously dismissed and barred from further

prosecution under section 1387. The trial court conducted an evidentiary hearing on

the People's claim that the case fell within the exception to section 1387 set forth in

section 1387.1 for violent felonies. It found for purposes of that exception the dismissals

were the result of the People's excusable neglect, justifying the People's third filing of

all violent felonies under section 1387.1. The prosecutor pointed out the offense for

shooting at an inhabited dwelling (§ 246) with the accompanying gang allegation

(§ 186.22, subd. (b)) was a life offense, and all life offenses constituted violent felonies.

The court agreed, dismissing certain charges but retaining the section 246 charge, which

was renumbered in the fifth amended information as count 2.

The case thus proceeded against the defendants on the section 246 offense

notwithstanding the two prior dismissals, and the jury returned guilty verdicts on those.

However, the jury found not true the allegation under section 186.22, subdivision

(b)(1)(C) that defendants committed that offense for the benefit of, at the direction of, or

in association with a criminal street gang with the specific intent to promote, further, or

assist in criminal conduct by gang members. As indicated above, the trial court at

sentencing imposed a consecutive 10-year sentence on that conviction for Henderson, and

a concurrent 10-year sentence for Marks.

8
C. Contentions

Defendants contend that in view of the jury's not true finding on the gang

allegation, their convictions for shooting at an inhabited dwelling under section 246 are

nonviolent felonies that must be reversed as barred under section 1387's rule as to twice-

dismissed felony charges. Though they engage in a fairly lengthy discussion on the

point, they ultimately do not dispute that the section 246 charge with accompanying

gang allegation qualified as a violent felony under section 667.5, subdivision (c),

permitting the prosecutor to refile the charge a third time under 1387.1. (See People v.

Jones (2009) 47 Cal.4th 566, 576-578 [for purposes of applying section 12022.53,

subdivision (c) sentence enhancement a section 246 conviction committed to benefit a

street gang is a felony punishable by life imprisonment]; People v. Florez (2005) 132

Cal.App.4th 314, 318-319 [holding for purposes of limiting presentence conduct credit,

"the felony conviction for discharging a firearm at an inhabited dwelling house in

violation of section 246, committed for the benefit of a criminal street gang under section

186.22[, subdivision] (b)(4) qualifies as 'a felony offense listed in subdivision (c) of

Section 667.5' "].) However, defendants argue that as in the context of a time-barred

lesser included offense that must be dismissed on acquittal of the greater offense

(assertedly addressed in People v. Beasley (2003) 105 Cal.App.4th 1078), once the jury

in this case found the gang allegation not true, the section 246 conviction was "defective"

and "facially not permitted" under section 1387 or 1387.1, requiring its dismissal.

Interpreting section 1387.1, the People respond that the jury's later untrue finding

on the gang allegation does not warrant overturning defendants' section 246 convictions.

9
They maintain such a result would be inconsistent with the purposes of section 1387,

which involve curtailing abuses of prosecutors' power to refile before trial, not events

occurring after the jury's verdict. The People argue that even if a crime could be barred

by a jury's later not-true finding, in this case defendants forfeited any argument to the

contrary by failing to object on that ground after the verdict.

D. Analysis

As a threshold matter, we reject the People's forfeiture argument. The underlying

facts of defendants' offenses and the dismissals are undisputed, as are the jury's verdicts

and not-true findings on the gang allegations. Thus, the interpretation and operation of

sections 1387 and 1387.1 in these circumstances is a question of law that we may

consider for the first time on appeal. (People v. Runyan (2012) 54 Cal.4th 849, 859, fn. 3

[reviewing court "may consider new arguments that present pure questions of law on

undisputed facts"]; see People v. Gonzales (2018) 6 Cal.5th 44, 49; but see People v.

Jones (1998) 17 Cal.4th 279, 313 [defendant forfeited claim that section 654 barred

second prosecution for offenses by failing to object on that ground in the trial court].)

We nevertheless reject defendants' contentions. Our resolution of the issue on the

merits stands and falls on the Legislature's focus and intent behind the operation of

sections 1387 and 1387.1. The main goal of statutory interpretation is to effectuate the

Legislature's intent. (See Riverside County Sheriff's Dept. v. Stiglitz (2014) 60 Cal.4th

624, 630.) Thus, "the 'plain meaning' rule does not prohibit a court from determining

whether the literal meaning of a statute comports with its purpose or whether such a

construction of one provision is consistent with other provisions of the statute . . . .

10
Literal construction should not prevail if it is contrary to the legislative intent apparent in

the statute. The intent prevails over the letter, and the letter will, if possible, be so read as

to conform to the spirit of the act." (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735;

Riverside County Sheriff's Dept. v. Stiglitz, at p. 630; People v. Mullendore (2014) 230

Cal.App.4th 848, 854.)

Though section 1387 states it bars "any other prosecution for the same [twice-

dismissed felony] offense,"2 the Legislature's intent was to prohibit the refiling and

pursuit of previously-dismissed charges; section 1387 does not address convictions once

charges are properly brought. (Accord, People v. Trujeque, supra, 61 Cal.4th at p. 255

[section 1387's two dismissal rule means "two previous dismissals of charges for the

same offense will bar a new felony charge," italics added].) Accounting for that, we

cannot hold a court must dismiss a defendant's felony conviction under section 1387

because following the jury's guilty verdict it no longer qualifies as a violent felony.

Section 1387.1 authorized the third filing of defendants' count 2 charge which qualified

as a violent felony due to the accompanying gang allegation; once the renewed charge

was properly refiled, it is of no consequence to defendants' speedy trial rights or any

other legislative purpose behind either section 1387 or 1387.1 that the jury rejected the

2 Black's Law Dictionary defines "prosecute" as "[t]o commence and carry out (a
legal action)." (Black's Law Dict. (11th ed. 2019) p. 1476.) Earlier versions of the legal
dictionary have explained that "[t]o 'prosecute' an action is not merely to commence it,
but includes following it to an ultimate conclusion." (Black's Law Dict. (6th ed. 1990)
p. 1221.) We will not apply the latter meaning, however, when it is contrary to the intent
and purpose of the statute. (Riverside County Sheriff's Dept. v. Stiglitz, supra, 60 Cal.4th
at p. 630.)
11
gang allegation, resulting in a nonviolent felony conviction. In that case, notwithstanding

the jury's verdict, a defendant's conviction on the base felony offense does not violate

section 1387, which merely precludes refiling and "other prosecution" of the same felony.

Defendants cursorily argue that the convictions in this case "should be treated the

same as a time-barred lesser included offense conviction." But we see no comparison

between the operation of sections 1387 and 1387.1 on the one hand, and the rule that a

court must dismiss a jury's lesser included offense conviction barred by its statute of

limitations where the pleaded felony is not time-barred. The rules in the latter

circumstance are codified in different statutes with different underlying purposes and

intentions (in part, the importance of barring stale claims). (See People v. Sedillo (2015)

235 Cal.App.4th 1037, 1048, 1050 [applying plain language of sections 799 and 800,

which are penalty-based statutes of limitation, and holding "where . . . the jury acquits a

defendant of a premeditation finding on an attempted premeditated murder charge and the

statute of limitations has run on the attempted murder charge, the attempted murder

convictions must be dismissed"].)

II. Claim of Prosecutorial Misconduct

The trial court instructed the jury on premeditation and deliberation for the count 1

attempted murder as follows:

" 'If you find a defendant guilty of attempted murder under Count One, you must

then decide whether the People have proved the additional allegation that the attempted

murder was done willfully, and with deliberation and premeditation. [¶] . . . [¶] A

12
defendant deliberated if he carefully weighed the considerations for and against his

choice and, knowing the consequences, decided to kill.' . . . 'A defendant acted with

premeditation if he decided to kill before completing the act of attempted murder. The

attempted murder was done willfully and with deliberation and premeditation if either

the Defendant or a principal or both of them acted with that state of mind. [¶] The length

of time the person spends considering whether to kill does not alone determine whether

the attempted killing is deliberate and premeditated. The amount of time required for

deliberation and premeditation may vary from person to person and according to the

circumstances. A decision to kill made rashly, impulsively, or . . . ' with[out]3 'careful

consideration of the choice and its consequences is not deliberate and premeditated. On

the other hand, a cold, calculated decision to kill can be reached quickly. The test is the

extent of the reflection, not the length of time. [¶] The People have the burden of

proving this allegation beyond a reasonable doubt. If the People have not met this

burden, you must find that the allegation has not been proved.' " The trial court also

instructed the jury: "If you believe that attorneys' comments on the law conflict with my

instructions you must follow my instructions."

During closing arguments, the prosecutor argued that the totality of the evidence

showed the victim's shooting was not a random act but was planned and coordinated; that

the fact the defendants had gloves, loaded guns and extra magazines ready to go and the

3 The reporter's transcript appears to have a typographical error here (using "with"
instead of "without" as in the written CALCRIM No. 601 instruction), as defendants do
not argue the court misread the instruction.
13
fact they fired 24 rounds, hitting the victim who was trying to crawl to safety, made it

difficult to say they had no intent to commit murder. He then told the jury:

"And, again, as the judge explained, once you come back guilty on the attempt

murder, the next question is premeditation. Right? So the first question you're going to

ask after attempt murder is: Was this premeditated? So what does 'premeditation' mean?

It means that he took a moment to reflect, and he made a decision; right?

"So the example we commonly give is the yellow light; right? You're driving up

on the street. You see a yellow light change. It goes from green to yellow. What do you

do? You make a decision; right? You either make, 'Hit the gas,' or, 'You hit the brake.'

Now, it's quick, but you are making a decision; right? You are making an active

choice—right?—because you had the choice. You might be wrong. Maybe you hit the

gas, and it turned red on you. You run the red, and lights and sirens; right? You can

make the wrong choice, but you made a choice.

"That's different than someone who, you know, the kids are fighting in the back;

they look back, and they just drive right through. It's to make a choice.

"And, obviously, in a firearm case attempt murder can be done with anything; but

in a firearm case think about all the steps you have to do to fire a gun. You have to pull it

out. You have to point it, and you have to pull the trigger at least once; or in this case,

eight and 16 times. Okay?"

Defendants contend the prosecutor's remarks constituted prejudicial misconduct

because they misstated the law, specifically by "incorrectly conflat[ing] acting with a

specific intent to kill (basic attempted murder) with premeditation and deliberation."

14
They argue the difference between attempted murder and premeditated attempted murder

does not hinge on choosing to act versus accidentally acting; that deliberation hinges on

weighing the choice between acting and not. Defendants acknowledge that the Supreme

Court upheld a yellow-light analogy in People v. Avila (2009) 46 Cal.4th 680, but

distinguish that case, claiming the prosecutor here did not describe the possible weighing

of considerations that might go into running a yellow light such as distance or road

conditions, but focused solely on whether the act was purposeful versus unintentional.

They argue "[i]t is reasonably likely the jury understood the prosecutor's analogy about

intentionally driving through a yellow light to mean exactly what the prosecutor said it

meant: that premeditation and deliberation requires nothing more than making a choice to

kill. That if the defendants intentionally shot at [the victim], then premeditation and

deliberation was also established."

A. Legal Principles

Prosecutors are granted wide latitude during arguments, and are permitted to draw

from matters not in evidence that are common knowledge or illustrations drawn from

common experience, history or literature. (People v. Ghobrial (2018) 5 Cal.5th 250,

289.) A prosecutor will commit misconduct, however, " ' "when his or her conduct either

infects the trial with such unfairness as to render the subsequent conviction a denial of

due process, or involves deceptive or reprehensible methods employed to persuade the

trier of fact." [Citation.] . . . "When attacking the prosecutor's remarks to the jury, the

defendant must show" that in the context of the whole argument and the instructions there

was " 'a reasonable likelihood the jury understood or applied the complained-of

15
comments in an improper or erroneous manner.' " ' " (People v. Beck (2019) 8 Cal.5th

548, 657; see also People v. Cowan (2017) 8 Cal.App.5th 1152, 1159.) 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.' " (People v. Centeno

(2014) 60 Cal.4th 659, 667.) The reviewing court must consider the challenged

statements in the context of the argument as a whole to make its determination. (People

v. Cowan, at p. 1159.)

Though it is improper for a prosecutor to misstate the law (People v. Cortez (2016)

63 Cal.4th 101, 130), such misstatements "are generally curable by an admonition from

the court." (People v. Centeno, supra, 60 Cal.4th at p. 674.) Thus, "[a]s a general rule a

defendant may not complain on appeal of prosecutorial misconduct unless in a timely

fashion—and on the same ground—the defendant made an assignment of misconduct and

requested that the jury be admonished to disregard the impropriety." (People v. Beck,

supra, 8 Cal.5th at p. 657; People v. Ghobrial, supra, 5 Cal.5th at pp. 289-290.)

B. Defendants Forfeited the Misconduct Claim

Here, neither Henderson's nor Marks's defense counsel objected to the prosecutor's

yellow light remarks on grounds the argument constituted misconduct and/or somehow

reduced the People's burden of proof on the issue of premeditation and deliberation.

They did not request an admonition from the court, which under the circumstances would

have cured any harm. Under the above-summarized principles, defendants forfeited the

claim. (People v. Ghobrial, supra, 5 Cal.5th at pp. 289-290; People v. Tully (2012) 54

Cal.4th 952, 1037-1038; People v. Avila, supra, 46 Cal.4th at pp. 710-711.) We address

16
the arguments in any event to resolve the defendants' accompanying ineffective

assistance of counsel claim.

C. Claim of Ineffective Assistance of Counsel

" 'In order to establish a claim of ineffective assistance of counsel, defendant bears

the burden of demonstrating, first, that counsel's performance was deficient because it

"fell below an objective standard of reasonableness [¶] . . . under prevailing professional

norms." [Citations.] Unless a defendant establishes the contrary, we shall presume that

"counsel's performance fell within the wide range of professional competence and that

counsel's actions and inactions can be explained as a matter of sound trial strategy."

[Citation.] If the record "sheds no light on why counsel acted or failed to act in the

manner challenged," an appellate claim of ineffective assistance of counsel must be

rejected "unless counsel was asked for an explanation and failed to provide one, or unless

there simply could be no satisfactory explanation." [Citations.] If a defendant meets the

burden of establishing that counsel's performance was deficient, he or she also must show

that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding would have been

different." ' " (People v. Lopez (2008) 42 Cal.4th 960, 966; see Strickland v. Washington

(1984) 466 U.S. 668, 690, 694.)

There are at least two reasons why defendants' ineffective assistance claim fails.

First, the record does not disclose defense counsels' reasons for remaining silent. There

is a plausible tactical reason for their omission; namely counsel could have decided to

refrain from objecting to avoid drawing the jury's attention to arguments detrimental to

17
the defense case. (See, e.g., People v. Harris (2008) 43 Cal.4th 1269, 1290.) The

decision whether to object to an argument is an inherently tactical one that is not

ordinarily reviewable on appeal. (Harris, at p. 1290; People v. Frierson (1991) 53 Cal.3d

730, 749.) And usually, " 'where counsel's trial tactics or strategic reasons for challenged

decisions do not appear on the record, we will not find ineffective assistance of counsel

on appeal unless there could be no conceivable reason for counsel's acts or omissions.' "

(People v. Nguyen (2015) 61 Cal.4th 1015, 1051.) Under these principles no ineffective

assistance of counsel appears here.

Second, the argument fails for the absence of a showing of prejudice. (People v.

Fairbank (1997) 16 Cal.4th 1223, 1241 ["If it is easier to dispose of an ineffectiveness

claim on the ground of lack of sufficient prejudice, which we expect will often be so, that

course should be followed"]; In re Fields (1990) 51 Cal.3d 1063, 1079.) "A defendant

must prove prejudice that is a ' "demonstrable reality," not simply speculation.' " (People

v. Fairbank, at p. 1241.) Thus, it is not sufficient to show that the alleged errors may

have had some conceivable effect on the trial's outcome. Instead, a defendant must

demonstrate a "reasonable probability" that the result would have been different were it

not for the deficient performance. (People v. Woodruff (2018) 5 Cal.5th 697, 761-762.)

" 'A reasonable probability is a probability sufficient to undermine confidence in the

outcome.' " (Ibid., quoting Strickland v. Washington, supra, 466 U.S. at p. 694.)

As to prejudice, defendants argue the prosecutor's argument affected the

fundamental guarantee of due process and a fair trial in that it diluted the People's burden

of proof by suggesting that if the shooting was intentional, it was necessarily

18
premeditated and deliberate. The contention goes to whether the prosecutor's argument

was misconduct by misstating the law on premeditation and deliberation, not whether it is

reasonably probable the jury would have reached a different conclusion absent the

assertedly improper statements. And, we do not see the prosecutor's challenged

assertions as trivializing or impacting the burden of proof, on which the court repeatedly

and correctly instructed the jury. Defendants suggest the prosecutor's argument and the

reaction to it by defense counsel and the court is akin to what occurred in People v.

Centeno, supra, 60 Cal.4th 659. In Centeno, involving a prosecutor's misleading

hypothetical using an image of the state of California and repeated use of the word

"reasonable," the court held it is error to suggest the prosecution's burden of proof is

satisfied if the prosecution's evidence presents a reasonable account. (Id. at pp. 670,

672.) The court explained a prosecutor may not argue that deficiencies in the defense

evidence can make up for shortcomings in the prosecution's case. (Id. at p. 673.)

Centeno held a prosecutor may not "confound[ ] the concept of rejecting unreasonable

inferences with the standard of proof beyond a reasonable doubt" by arguing the jury can

find the defendant guilty based on a "reasonable" account of the evidence. (Ibid.) The

prosecutor's remarks here are nothing like those of the prosecutor in Centeno, and as we

explain below, the evidence is nowhere near as close as in that case.4

4 In Centeno, the sole primary witness, the victim, denied her previous story and
refused to answer questions, raising serious credibility issues. (People v. Centeno, supra,
60 Cal.4th at pp. 662-664.) In her closing argument the prosecutor in part argued the
jury's decision "has to be based on reason. It has to be a reasonable account" and the
19
 Here, as summarized above, the trial court admonished the jury that to the extent

an attorney's statements regarding the law conflicted with the court's instructions, then the

jury was to follow the court's instructions. It also gave the jury the legal definitions of

premeditation and deliberation, instructions that defendants do not challenge. The jury

did not express confusion or uncertainty regarding those legal definitions, and absent a

showing to the contrary, we presume the jury followed the court's instructions. (People v.

Krebs (2019) 8 Cal.5th 265, 335.) Nothing from this record rebuts this presumption.

The jury ultimately determined that defendants' attempted murder was

premeditated and deliberate. Contrary to Henderson's claim that the evidence on

premeditation and deliberation was not overwhelming, we conclude there was abundant

trial evidence to support the jury's verdicts and findings. Defendants concede there is

"strong" evidence showing they were the individuals in the complex. The record

conclusively demonstrated defendants' intent to kill, evidenced by among other things the

fact they brought loaded firearms with them to the apartment complex, and after asking

the victim where he was from and whether he was a gang member, drew their weapons

law required them to look "at the entire picture, not one piece of evidence, not one
witness . . . ." (Id. at p. 666.) The prosecutor continued: " 'Is it reasonable to believe that
a shy, scared child who can't even name the body parts made up an embarrassing,
humiliating sexual abuse, came and testified to this in a room full of strangers or the
defendant abused Jane Doe. That is what is reasonable, that he abused her. [¶] Is it
reasonable to believe that Jane Doe is lying to set-up the defendant for no reason or is the
defendant guilty?' . . . 'Is it reasonable to believe that there is an innocent explanation for
a grown man laying [sic] on a seven year old? No, that is not reasonable. Is it reasonable
to believe that there is an innocent explanation for the defendant taking his penis out of
his pants when he's on top of a seven-year-old child? No, that is not reasonable. Is it
reasonable to believe that the defendant is being set-up in what is really a very
unsophisticated conspiracy led by an officer who has never met the defendant or he['s]
good for it? That is what is reasonable. He's good for it.' " (Ibid.)
20
and shot at the victim no less than 24 times as he dropped to the ground and tried to crawl

to safety. This evidence overwhelmingly suggests the defendants had ample time to

consider and reflect before firing their guns at him while he tried to get away.

Defendants point out the jury did not find the gang allegation to be true, suggesting that if

the jury did not find a gang motive, it may not have thought defendants entered the

apartment complex looking for trouble, but rather based their premeditation finding on

evidence the defendants made a rash decision to shoot in an instant. But as the People

point out, the jury was instructed that the People were not required to prove motive for

any allegation, thus the jurors may not have rejected a gang motive even while finding

the allegation untrue. Based on this record, defendants have failed to demonstrate a

"reasonable probability" that the result would have been different in count 1 had their

trial counsel objected to the prosecutor's challenged statements. (See People v. Woodruff,

supra, 15 Cal.5th at p. 762.) The evidence overwhelmingly demonstrated not only

defendants' guilt for attempted murder, but that the attempted murder was premeditated

and deliberate. As such, defendants have not shown the required prejudice to establish

ineffective assistance of counsel, and this claim fails. (See Strickland v. Washington,

supra, 466 U.S. at p. 687; People v. Lucas (1995) 12 Cal.4th 415, 436.)

III. Henderson's Challenge to the Count 2 Consecutive Sentence

At sentencing, the People asked the court to impose a consecutive sentence on

Henderson in view of the multiple victims, including children, who were sleeping in their

homes when the defendants fired their weapons. Acknowledging it had discretion on that

point, the court reviewed the considerations under California Rules of Court, rule 4.425

21
in making its decision whether to sentence Henderson concurrently versus

consecutively.5

Ultimately, the court adopted the People's position, stating: "Although it is a close

decision, the court agrees ultimately with the prosecution. I will make the term on count

2 consecutive to the term on count 1. [¶] The court's reasoning is as follows: And I

think a major factor on that is Mr. Henderson's prior conviction of a violent felony

involving a firearm, his sentence of 12 years in prison on that case. He was still on parole

on that case. He was the one that I think brought the people to the apartment complex.

He was the one that had the gang affiliation. And so those factors in the court's mind

outweigh the factors that argue for a concurrent sentence. And I also feel those people in

5 "The court: The factors that are suggested in [California Rules of Court, rule
4.425] for the court to consider in concurrent versus consecutive are, (Reading:) [¶]
'Were the crimes or . . .' 'objectives predominantly independent . . . ' So I think that's a no
probably. [¶] Were they, (Reading:) [¶] '. . . committed at different times or separate
places . . . ' 'or a single period of aberrant behavior.' [¶] Probably a single period of
aberrant behavior. [¶] The third factor: Separate acts of violence or threats of violence. I
think they were; because, as [the prosecutor] pointed out, there were different [sic].
There was the victim of the shooting, and then there were those people in the house
sleeping. It's kind of a different or distinct victim. [¶] . . . [¶] And the court has a
discretion [sic] to consider anything else. I don't think the court is limited. [¶] And I
think against Mr. Henderson is the fact that he has a prior violent felony, even though it
was not immediate. It was in 2011 or 2009 was the date of the arrest for the robbery,
attempted murder that ended up being assault with a firearm. That's certainly something
against Mr. Henderson. [¶] Mr. Henderson was the only person in the trial where
gang—I think it was the clearest on Mr. Henderson that he was involved with the gang.
[¶] In favor of Mr. Henderson is the fact that the jury did not find true the . . . gang
enhancement. And, also, that it appeared—although it wasn't clear—that he was the
driver. I think—well, he was the driver. I think that was clear. It was fairly clear he may
not have been a shooter in the case. So those are things that favor him. [¶] The things
that don't favor him are the violent felony, and the fact that he was driving and probably
brought them to the place, and that he was the only one that had the gang affiliation, and
the fact there were two separate victims."
22
the apartment were seriously victimized by the shooting. [¶] So the court is required . . .

to give a statement of reasons, and those are the court's reasons for the consecutive

sentence."

When sentencing codefendant Marks, the court elected to run the count 2 sentence

concurrently, stating: "Even though it is a very close call, and I think it could go either

way, I think, Mr. Marks, I'm going to give you the benefit of the doubt based on—I think

a major factor for Mr. Henderson was the 12 years prison sentence on the violent felony

that he committed, and Mr. Marks doesn't have that history. So . . . based on that, the

court is going to do it concurrently."

Henderson contends the trial court erred by imposing a consecutive sentence on

his count 2 conviction while at the same time sentencing codefendant Marks

concurrently. Though Henderson acknowledges his counsel did not object at the time, he

maintains there was no forfeiture because given the court's recitation of additional factors

sufficient to support the consecutive sentence, an objection would not have been

appropriate, and it only later became apparent that the court was relying so heavily on his

prior felony conviction at Marks's sentencing hearing, at which he and his counsel were

not present, giving him no meaningful opportunity to object. Henderson argues the

consecutive sentence must be stricken because it is apparent from the court's remarks

during codefendant Marks's sentencing hearing that the reason for the sentence was his

prior felony and not the other factors, which amounts to an improper dual use of the same

fact for the court's imposition of the five-year enhancement under section 667,

subdivision (a). According to Henderson, but for the court's reliance on the

23
impermissible prior conviction—the "major factor" in the court's decision—it is

reasonably probable he would have been sentenced differently. The People concede that

the trial court erred if it used Henderson's 2011 prior conviction to impose the serious

felony prior conviction enhancement and the consecutive sentence on count 2, but they

argue the error was harmless because the court considered other factors.

Because we are vacating Hernandez's sentence and remanding for further

sentencing proceedings, we need not decide whether the trial court abused or was within

its broad discretion in imposing a concurrent prison term on count 2. (People v. Clancey

(2013) 56 Cal.4th 562, 579 [court has broad discretion to decide whether to run prison

terms on multiple offenses concurrently or consecutively].) On remand, the trial court

must resentence Hernandez after deciding whether to exercise its discretion to strike his

five-year prior serious felony enhancement (see part VI, post). If the court elects

consecutive sentences it must state reasons for its decision. (People v. Sperling (2017) 12

Cal.App.5th 1094, 1103 ["A trial court is required to state its reasons for imposing

consecutive sentences"]; see Cal. Rules of Court, rule 4.406(b)(5).) And while "[o]nly

one criterion or factor in aggravation is necessary to support a consecutive sentence"

(People v. Davis (1995) 10 Cal.4th 463, 552; see People v. King (2010) 183 Cal.App.4th

1281, 1323), the trial court is precluded from using the same facts to impose a

consecutive sentence and otherwise enhance Hernandez's prison sentence. (See Cal.

Rules of Court, rule 4.425(b)(1).)

IV. Claim of Racially Discriminatory Peremptory Challenge

24
 Defendants contend the trial court erred by denying Henderson's motion in which

he asserted the prosecutor exercised his first peremptory challenge against one of two

African-American jurors in the jury box in violation of Batson v. Kentucky (1986) 476

U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258 (collectively Batson/Wheeler). In

denying the motion, the trial court found Henderson, who is African-American, had made

out a prima facie case of discrimination, but ruled it believed the prosecutor excused the

juror for a nondiscriminatory purpose: because the juror complained about an important

work conference she had to attend and the prosecutor did not want a distracted or

frustrated person serving on the jury.

A. Background

Jury selection in defendants' case occurred over the course of several days in early

October 2017. Beforehand, the trial court told the prospective jurors the trial schedule

would require them to return to court the last two weeks of the month. During

questioning, one of the jurors, prospective juror No. 12 in seat 8 (referred to by the

parties as J12-8), advised the court and counsel that she had a prepaid work conference to

attend later that month, and that if she missed it, her employer, a school district, would be

out $500. She later described it as a very important and "legendary" conference.

The following day, in response to the court's questioning, prospective juror No. 12

informed the court that nobody else could go to the conference in her place. After she

was placed in the jury box, she answered questions about her background and said she

could be a fair juror. She stated that though she had family in law enforcement, she

would be open to considering a law enforcement officer witness's credibility. She agreed

25
she could focus on the jury instructions and follow the law.

After the court proceeded to allow peremptory challenges the next day, counsel

revisited the issue with prospective juror No. 12 after telling the jurors their job was to

figure out the truth, and to look at the total case as a package:

"[Prosecutor]: [Prospective juror No.] 12, are you okay with that? You're quiet

this morning, so I'm going to—

"The court: She wants to go to her conference.

"[Prosecutor]: I know. She's like, 'What do I say to get out of here?" Well,

should we just talk about that now? [¶] How important is this conference for you?

"[Prospective juror No. 12]: It's very important.

"[Prosecutor]: Okay. And I talked about that positive attitude. I don't want

to stick the other 11—I don't think you're a negative person; but if you're bothered by it,

or upset by it—

"[Prospective juror No. 12]: Yes.

"[Prosecutor]: —I don't want that either.

"[Prospective juror No. 12]: I have a positive attitude generally. I am bothered

by it, only because it was prearranged and prepaid, and I would—I would sit on a trial,

which I have June of 2016, but because of that, I am you know, but I'll do what I have to

do and what I'm told to do; but I'm just if—if you want honesty, you know, I would like

to. And, you know, and everybody's—every attorney has made a comment about it, and

it kind of got a little complex, because you asked for the truth, and I—I said I had

something pre-arranged. And it's not just going. It's just the idea that it was pre-

26
arranged, prepaid, and it's professional development. And had the trial not involved

those dates, that would be different.

"[Prosecutor]: That's fair. [¶] And I think jury duty's never convenient.

"[Prospective juror No. 12]: Right. I—I get that.

"[Prosecutor]: Nobody ever gets the mail and goes, 'Yes'—

"[Prospective juror No. 12]: I know.

"[Prosecutor]: —"finally."

"[Prospective juror No. 12]: Right.

"[Prosecutor]: But I don't think it should be overly onerous. . . . I don't want

someone to—you know, I don't want—it's going to bother everybody. It's going to be a

distraction for everybody. I don't want it to overly burden anybody. I don't think that's

fair.

"[Prospective juror No. 12]: And I did serve in June the first day of my summer

break, so—

"[Prosecutor]: You've paid the price. You're saying you already paid a little bit. I

got it.

"[Prospective juror No. 12]: So I didn't say, 'Oh, it's my summer break.' I served.

"[Prosecutor]: . . . I understand where you're coming from, and I appreciate it;

and it's not to pick on you. It's that—

"[Prospective juror No. 12]: I know.

"[Prosecutor]: —everything else about you says, 'Great juror.' So I hate to lose

you, but I—I also don't want this to be a burden.

27
 "[Prospective juror No. 12]: All right.

"[Prosecutor]: Okay."

After questioning other prospective jurors, the prosecutor exercised his first

peremptory challenge by excusing prospective juror No. 12. The trial court remarked:

"Enjoy your conference."

Following the challenge, Henderson's counsel made his Batson/Wheeler motion,

which the other counsel declined to join. He argued Henderson was African-American

and thus in a protected class, and it was important that he have people with similar

backgrounds on the jury. Counsel argued that because prospective juror No. 12 said she

could be fair and apply the law, the only reasonable inference of counsel's challenge was

to eliminate a person in the same protected class as Henderson. The prosecutor argued a

prima facie case had not been made as there was still an African-American male in the

jury box, and there were several African-Americans in the general panel. The court

found a prima facie case had been made as "[t]he client of the [objecting] counsel . . . is a

member of that class, and . . . it is one of only two that's on the jury."

Asked to explain why he exercised the challenge, the prosecutor said: "I find

[prospective juror No.] 12 would have been a very good juror, but she's been mentioning

her conference since the first minute we walked in, and she mentioned it at hardships.

She's mentioned it multiple times yesterday, and she's mentioned it multiple times today.

And I've made a very active point, and I'll continue to make it, which is I don't want

jurors who are distracted or in any way frustrated at having to serve at this time because

of something going on in their lives. And I think [prospective juror No.] 12 has been

28
very clear and very deliberate about that. Otherwise, I would have kept her. She looks

like a great juror, but I'm not going to treat her differently than anybody else."

The trial court denied the Batson/Wheeler motion: "I listened carefully to [the

prosecutor's] questioning, and there is very strong conviction in my mind that that was

the reason that he excused her, the reason that he stated, and it was not for a

discriminatory or prohibited purpose."

B. Legal Principles

The California Supreme Court recently set forth the relevant law: " 'Both the state

and federal Constitutions prohibit the use of peremptory challenges to remove

prospective jurors based on group bias, such as race or ethnicity.' " (People v. Rhoades

(2019) 8 Cal.5th 393, 423, quoting Batson, supra, 476 U.S. at p. 97; Wheeler, supra, 22

Cal.3d at pp. 276-277.) " '[T]here "is a rebuttable presumption that a peremptory

challenge is being exercised properly, and the burden is on the opposing party to

demonstrate impermissible discrimination." ' " (People v. Armstrong (2019) 6 Cal.5th

735, 766.)

On a Batson/Wheeler motion, the following procedures apply: " ' "First, the

defendant must make out a prima facie case 'by showing that the totality of the relevant

facts gives rise to an inference of discriminatory purpose.' [Citation.] Second, once the

defendant has made out a prima facie case, the 'burden shifts to the State to explain

adequately the racial exclusion' by offering permissible race-neutral justifications for the

strikes. [Citations.] Third, '[i]f a race-neutral explanation is tendered, the trial court must

then decide . . . whether the opponent of the strike has proved purposeful racial

29
discrimination.' " ' " (People v. Rhoades, supra, 8 Cal.5th at p. 423; People v. Smith

(2018) 4 Cal.5th 1134, 1147.) The defendant throughout retains the ultimate burden of

persuasion regarding discriminatory motive. (Smith, at p. 1147.)

Once a defendant satisfies his or her burden to make a prima facie showing of

group bias, the adequacy of the prima facie showing becomes moot and the reviewing

court skips to the third stage to decide whether the trial court properly credited the

prosecutor's reasons for challenging the prospective jurors in question. (People v. Smith,

supra, 4 Cal.5th at p. 1147.) At this third stage, the moving defendant must show it was

more likely than not that the challenge was improperly motivated. (People v. Armstrong,

supra, 6 Cal.5th at p. 766; People v. Woodruff, supra, 5 Cal.5th at p. 753.) It is the

"genuineness of the justification offered, not its objective reasonableness, [that] is

decisive." (Armstrong, at p. 767.) " '[T]he "critical question . . . is the persuasiveness of

the prosecutor's justification for his peremptory strike." [Citation.] Usually, "the 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.] " 'As with

the state of mind of a juror, evaluation of the prosecutor's state of mind based on

demeanor and credibility lies "peculiarly within a trial judge's province." ' " [Citation.]

Thus, in reviewing a trial court's reasoned determination that a prosecutor's reasons for

striking a juror are sincere, we typically defer to the trial court and consider only

30
"whether substantial evidence supports the trial court's conclusions." ' " (Smith, at p.

1147; see Woodruff, at p. 753.)

" '[O]ne form of circumstantial evidence that is relevant, but not necessarily

dispositive, on the issue of intentional discrimination' is a comparison of the treatment of

an excused juror with other similarly situated jurors. [Citation.] '[E]vidence of

comparative juror analysis must be considered . . . even for the first time on appeal if

relied upon by the defendant [if] the record is adequate to permit the urged comparisons.'

[Citation.] But when, as here, a defendant 'wait[s] until appeal to argue comparative juror

analysis,' our 'review is necessarily circumscribed,' and we 'need not consider responses

by stricken panelists or seated jurors other than those identified by the defendant.'

[Citation.] We review the trial court's ruling on the question of purposeful racial

discrimination under a deferential substantial evidence standard, so long as ' "the trial

court has made a sincere and reasoned attempt" ' to evaluate each nondiscriminatory

justification offered." (People v. Smith, supra, 4 Cal.5th at pp. 1147-1148.)

C. Analysis

Defendants contend that had the court considered a comparative juror analysis,

comparing the People's treatment of prospective juror No. 12 with other similarly situated

jurors, it would have concluded the prosecutor's primary motivation behind his

peremptory challenge was race-related. Defendants refer to one other juror, prospective

juror No. 1, who they infer was not African-American, and her answers indicating she

could be fair and follow the court's instructions, but nevertheless did not want to serve as

a juror. Defendants point out the prosecutor did not excuse prospective juror No. 1 but

31
excused prospective juror No. 12, suggesting he had the latter juror's race in mind when

he made his challenge. According to defendants, the exclusion of even one prospective

juror for impermissible race-motivated reasons is structural error requiring reversal.

As a threshold matter, defendants' counsel did not raise any issue of comparative

analysis in the trial court, and thus the People were not given an opportunity to explain

perceived differences between seated jurors and prospective juror No. 12. (Accord,

People v. Bryant (2019) 40 Cal.App.5th 525, 542, citing People v. Lenix (2008) 44

Cal.4th 602, 623; People v. Winbush (2017) 2 Cal.5th 402, 442 [" ' "a formulaic

comparison of isolated responses [is] an exceptionally poor medium to overturn a trial

court's factual finding" ' " concerning the subjective reasonableness of a prosecutor's

proffered reasons for excusing a juror].) "As our Supreme Court explained in Lenix,

'comparative juror analysis on a cold appellate record has inherent limitations. [Citation.]

. . . On appellate review, a voir dire answer sits on a page of transcript. In the trial court,

however, advocates and trial judges watch and listen as the answer is delivered. Myriad

subtle nuances may shape it, including attitude, attention, interest, body language, facial

expression and eye contact.' [Citation.] While we may consider comparative juror

analysis for the first time on appeal, the record must be adequate to allow such

comparison." (Bryant, at p. 542; see also People v. Armstrong, supra, 6 Cal.5th at p.

780.)

Here, we cannot say the record is adequate to permit the necessary comparison.

Proceeding to that analysis in any event based on the portions of the record highlighted

by defendants on appeal, we are compelled to uphold the trial court's ruling. "As our

32
high court has explained, for a comparative analysis to be probative, a seated juror must

have a ' "substantially similar combination of responses," in all material respects' to an

excused juror. [Citation.] 'Although jurors need not be completely identical for a

comparison to be probative [citation], "they must be materially similar in the respects

significant to the prosecutor's stated basis for the challenge." ' " (People v. Bryant, supra,

40 Cal.App.5th at p. 540, quoting People v. Winbush, supra, 2 Cal.5th at p. 443.)

We see no such material similarity in the responses of prospective juror No. 1 and

prospective juror No. 12. In response to questioning, prospective juror No. 1 stated she

would try to come with an open mind and listen to all the evidence, and agreed her job

was to deliberate with the other jurors. She agreed she was comfortable with the idea of

talking to and learning from the other jurors but reaching her own decision. Prospective

juror No. 1 then indicated she had never before served on a jury. Defense counsel asked

if she wanted to serve in this case, and she responded: "I guess it would be—I guess.

Not—to be honest, not really." When asked why, she said, "I don't know. I just I don't

know. I just don't really want to be here." Acknowledging she could not leave unless she

was excused, she stated she would "[n]ot serve" because of "[t]he job itself" if given a

choice, stating, "I just don't know if I would be able to—I don't know. I just don't know

if I would be able to just sit here, and have to listen to everything, and just I don't know.

These are people's lives that I don't know if I'm—I'm not sure if I would make the right

decision." When asked whether if forced to be on the jury she would be the kind of juror

defense counsel would want, she said, "No."

33
 This by no means reflects a " 'substantially similar combination of responses,' in

all material respects, to [prospective juror No. 12]." (People v. Winbush, supra, 2 Cal.5th

at p. 442.) Prospective juror No. 12 expressed reticence in serving as a juror only

because of a prepaid, important work-related conference she wished to attend, not

because she felt incompetent to make a proper decision in the case. Her responses and

attitude were entirely unlike those of prospective juror No. 1.

Here, the trial court considered and evaluated the genuineness and neutrality of the

prosecutor's stated reasons for excusing prospective juror No. 12, taking him at his word

and finding his peremptory challenge was supported by a permissible motive. Its

credibility determination is amply supported by prospective juror No. 12's repeated focus

on her desire to attend her work-related event. Applying the appropriate deferential

standard of review, we conclude substantial evidence supports the trial court's assessment

of the prosecutor's stated reasons. (People v. Smith, supra, 4 Cal.5th at p. 1147.)

V. Reconsideration Under Senate Bill No. 1393

Both Henderson and Marks were sentenced in January 2018. Effective January 1,

2019, while their appeals were pending, the Legislature enacted Senate Bill No. 1393,

which amended sections 667, subdivision (a)(1) and 1385, subdivision (b) to give trial

courts discretion to dismiss, in the interest of justice, five-year prior serious felony

enhancements. (People v. Jimenez (2019) 32 Cal.App.5th 409, 426; People v. Garcia

(2018) 28 Cal.App.5th 961, 971.) Under the versions of those statutes applicable when

the court sentenced the defendants, the court had no such discretion, but instead was

required to impose an additional five-year consecutive term for " 'any person convicted of

34
a serious felony who previously had been convicted of a serious felony.' " (Garcia, at p.

971; see People v. Franks (2019) 35 Cal.App.5th 883, 892.)

"[I]t is appropriate to infer, as a matter of statutory construction, that the

Legislature intended [Senate Bill No.] 1393 to apply to all cases to which it could

constitutionally be applied, that is, to all cases not yet final when [Senate Bill No.] 1393

becomes effective on January 1, 2019." (People v. Garcia, supra, 28 Cal.App.5th at p.

973.) The People concede Senate Bill No. 1393 applies retroactively to both Henderson's

and Marks's nonfinal cases. " '[W]hen the record shows that the trial court proceeded

with sentencing on the . . . assumption it lacked discretion, remand is necessary so that

the trial court may have the opportunity to exercise its sentencing discretion at a new

sentencing hearing.' " (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) Remand

is not required, however, if "the record shows that the trial court clearly indicated when it

originally sentenced the defendant that it would not in any event have stricken [the

previously mandatory] enhancement." (Ibid.; People v. Franks, supra, 35 Cal.App.5th at

p. 892; People v. McVey (2018) 24 Cal.App.5th 405, 419.)

The People concede that the trial court here gave no such indication. (Compare,

People v. Franks, supra, 35 Cal.App.5th at p. 893 [record affirmatively showed trial

court would not exercise its discretion to strike prior serious felony enhancement when it

said, " 'I will not exercise my discretion, which I might have, to strike the punishment of

either the strike prior or the 667(a) five-year prior that is to be imposed in this case' "].)

We agree with the People's concession, and conclude remand is appropriate to permit the

trial court to exercise its discretion whether to strike the prior serious felony

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enhancements. We express no opinion on how the trial court should exercise its

discretion on remand. (See People v. Jimenez, supra, 32 Cal.App.5th at p. 426.)

DISPOSITION

The sentences of Hernandez and Marks are vacated and the matters remanded with

directions that the trial court resentence both defendants and in doing so determine (1)

whether to impose a consecutive or concurrent sentence for Hernandez's count 2

conviction; and (2) whether to strike Hernandez's and Marks's five-year enhancement

under Penal Code sections 667, subdivision (a)(1) and 1385. In all other respects the

judgments are affirmed.

O'ROURKE, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.

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