Filed 2/18/21 P. v. Bell CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B305103
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. YA098886
v.
KENNETH EUGENE BELL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Alan B. Honeycutt, Judge. Affirmed.
Kristin Traicoff, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr. and Eric J. Kohm,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Kenneth Eugene Bell was convicted of simple
assault committed for the benefit of a criminal street gang. On
appeal, he argues that during jury selection, the prosecutor
unconstitutionally discriminated on the basis of race by using two
of her five peremptory challenges to strike Black women from the
panel. We affirm.
PROCEDURAL BACKGROUND1
By information filed April 26, 2019, defendant was charged
with one count of assault with a deadly weapon (Pen. Code,2
§ 245, subd. (a)(1); count 3), in which he personally inflicted great
bodily injury (§ 12022.7, subd. (a)), committed for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)(B)).3 The information
also alleged defendant had been convicted of four prior felonies
that constituted strike priors (§§ 667, subds. (b)–(j), 1170.12),
serious-felony priors (§ 667, subd. (a)(1)), and prison priors (§ 667,
subd. (b)). Defendant pled not guilty and denied the allegations.
After a bifurcated trial at which he did not testify,
defendant was found not guilty of count 3 but guilty of the lesser-
included offense of simple assault (§ 240). The jury found the
gang allegation (§ 186.22, subd. (a)) true. Defendant waived his
right to a jury trial on the prior convictions and later admitted
them.
1Because the facts of this case are irrelevant to the issues raised on
appeal, we do not address them.
2 All undesignated statutory references are to the Penal Code.
3Counts 1 and 2 concerned other defendants who are not parties to
this appeal.
2
The court denied defendant’s motion to strike the prior
convictions and sentenced him to an aggregate term of 16 months
in state prison—one-third the mid-term of two years, doubled for
the prior strike—to run consecutively to his sentence in case
No. TA141249.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends that during jury selection, the
prosecutor unconstitutionally discriminated against Prospective
Juror Nos. 2125 and 7665 on the basis of race. We disagree.
1. Legal Principles and Standard of Review
Both the state and federal constitutions bar lawyers from
striking prospective jurors based on their membership in
cognizable protected groups. (People v. Wheeler (1978) 22 Cal.3d
258 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 (Batson).)
Race is a protected classification.
“When a party raises a claim that an opponent has
improperly discriminated in the exercise of peremptory
challenges, the court and counsel must follow a three-step
process. First, the Batson/Wheeler movant must demonstrate a
prima facie case by showing that the totality of the relevant facts
gives rise to an inference of discriminatory purpose. … [¶]
Second, if the court finds the movant meets the threshold for
demonstrating a prima facie case, the burden shifts to the
opponent of the motion to give an adequate nondiscriminatory
explanation for the challenges.” (People v. Gutierrez (2017)
2 Cal.5th 1150, 1158 (Gutierrez).)
Once the prosecutor establishes a race-neutral justification
for striking a prospective juror, the court must make a “ ‘sincere
3
and reasoned attempt’ ” to evaluate the credibility of the
explanation. (Gutierrez, supra, 2 Cal.5th at p. 1159.) “This [third
step] of the Batson/Wheeler inquiry focuses on the subjective
genuineness of the reason, not the objective reasonableness.” (Id.
at p. 1158.) “[W]hen it is not self-evident why an advocate would
harbor a concern [about a particular juror], the question of
whether a neutral explanation is genuine and made in good faith
becomes more pressing. That is particularly so when, as here, an
advocate uses a considerable number of challenges to exclude a
large proportion of members of a cognizable group.” (Id. at
p. 1171.) Thus, “a truly ‘reasoned attempt’ to evaluate the
prosecutor’s explanations [citation] requires the court to …
determine not only that a valid reason existed but also that the
reason actually prompted the prosecutor’s exercise of the
particular peremptory challenge.” (People v. Fuentes (1991) 54
Cal.3d 707, 720.)
When the trial court denies defendant’s motion at the
prima facie stage, “we apply the standard the high court
articulated in Johnson [v. California (2005)] 545 U.S. 162, and
undertake an independent review of the record to decide ‘the
legal question whether the record supports an inference that the
prosecutor excused a juror on the basis of race.’ [Citation.] Under
Johnson, a defendant satisfies the requirements of Batson’s first
step ‘by producing evidence sufficient to permit the trial judge to
draw an inference that discrimination has occurred.’ [Citations.]
The defendant ‘should make as complete a record of the
circumstances as is feasible.’ [Citation.]” (People v. Taylor (2010)
48 Cal.4th 574, 614.)
Where the court denies the defendant’s motion at the third
stage, our standard of review depends on the depth and quality of
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the court’s inquiry. We accord the court’s ruling great deference
if—and only if— the court “has made a sincere and reasoned
attempt to evaluate each stated reason as applied to each
challenged juror.” (People v. Silva (2001) 25 Cal.4th 345, 385–
386.) If the court has not made such an attempt, we review its
ruling de novo. (Gutierrez, supra, 2 Cal.5th at p. 1159.)
Here, the court explicitly found defendant had not
established a prima facie inference of discrimination for Juror
No. 7665. The record is less clear about its findings for Juror
No. 2125, however.
When the court turned its focus to Juror No. 2125, it simply
stated that nothing about that juror stood out. Unsolicited, the
prosecutor then offered a reason for the strike—the juror’s
hesitance about applying the one-witness rule. But the court did
not, at that point, rule on whether defendant had raised an
inference of discrimination for that juror (step 1); nor did it
address whether it believed the prosecutor’s stated reason was
genuine (step 3). Instead, it said: “I do find that a race neutral
reason has been proffered. I do believe it is an inappropriate
challenge for cause and the request for mistrial is denied.”
As defendant notes, this ruling does not obviously correlate
with any step of the Batson/Wheeler analysis. Our reading
suggests, however, that the court here treated the prosecutor’s
remarks as an argument about whether an inference of
discrimination existed (step 1) rather than as a race-neutral
justification the court was required to evaluate (step 3). Under
this view, the court’s remark about an “inappropriate challenge
for cause” refers to defense counsel failing to make a prima facie
showing, not the propriety of prosecutor’s strike. As such, we
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limit our analysis of this issue to the prima facie stage of the
Batson/Wheeler process.4
2. Defendant did not meet his prima facie burden.
“Although the question at the first stage concerning the
existence of a prima facie case depends on consideration of the
entire record of voir dire as of the time the motion was made
[citation], we have observed that certain types of evidence may
prove particularly relevant. [Citation.] Among these are that a
party has struck most or all of the members of the identified
group from the venire, that a party has used a disproportionate
number of strikes against the group, that the party has failed to
engage these jurors in more than desultory voir dire, that the
defendant is a member of the identified group, and that the
victim is a member of the group to which the majority of the
remaining jurors belong. [Citation.] A court may also consider
nondiscriminatory reasons for a peremptory challenge that are
apparent from and ‘clearly established’ in the record [citations]
and that necessarily dispel any inference of bias. [Citations.]”
(People v. Scott (2015) 61 Cal.4th 363, 384.)
In this case, defendant made a meager showing in support
of his Batson/Wheeler challenge. At the hearing, defense counsel
relied solely on the fact the prosecutor had exercised two of her
five peremptory challenges against Black prospective jurors.5
4We note, however, that we would use the same standard of review,
and reach the same conclusion, under step 3 as well.
5 Defense counsel made the following record: “[The prosecutor] initially
excused [Juror No. 2125] as her third peremptory challenge, and that
juror was a Black woman and my client is Black, just for the record. [¶]
She has just now excused [Juror No. 7665], [who] was called to go [to
6
“Such evidence, without more, is insufficient to create an
inference of discrimination, especially where, as here, the number
of peremptory challenges at issue is so small. [Citations.]” (People
v. Taylor, supra, 48 Cal.4th at p. 643.) For example, in
Hawthorne, the California Supreme Court held that the
defendant had not made a prima facie showing of discrimination
where his motion was based solely on the assertion that the
prosecutor used three of 11 peremptories to excuse Black
prospective jurors and the record was silent as to both the
number of African–American prospective jurors, if any, that were
included in either the entire jury venire or the jury panel when
the challenge was made and the racial composition of the jury
that ultimately tried and convicted defendant. (People v.
Hawthorne (2009) 46 Cal.4th 67, 79–80; see People v. Bonilla
(2007) 41 Cal.4th 313, 343 & fn. 12 [“an inference of
discrimination is difficult to discern from a small number of
challenges”].)
Nor does our independent review of the record reveal any
other basis for concluding these jurors were excused because of
their race. Although defendant, like Prospective Juror Nos. 2125
and 7665, is Black, the record here does not disclose the racial or
ethnic makeup of the juror pool. As such, nothing suggests the
prosecutor struck most or all of the Black jurors.
On the other hand, the record does disclose race-neutral
reasons for excusing Juror Nos. 7665 and 2125. Juror No. 2125
was initially skeptical of the rule that the testimony of one
the jury box] and counsel excused her before she did so. There was also
another Black woman [presumably Juror No. 2125], and I would just
make a motion for a mistrial based on Wheeler/Batson.”
7
witness can be sufficient to prove a defendant’s guilt, although
she ultimately accepted it.6 That prospective juror also indicated
that she’d be more comfortable convicting if the defendant
confessed, which the defendant in this case had not.
Next, although Juror No. 7665 had no problem with the
one-witness rule, she said sitting in judgment of a criminal
defendant would be “a very difficult decision.” She explained, “I
think it’s a heavy thing to have to be a judge, a juror of something
like this in a criminal case. I mean, honestly, I don’t want to be
responsible for saying aye or nay or whatever. That is kind of
heavy to me.” It would be “a big responsibility,” she explained,
“and it’s also scary. I would say, oh, no, he didn’t do it. Or oh,
yeah, he did. And I just don’t—that’s a little heavy to me.” It
would be reasonable to believe such hesitation could lead to a
hung jury.
Based on the limited record before us, therefore, we
conclude that defendant did not establish a prima facie case of
discrimination as to either prospective juror.
6 To be sure, the prosecutor accepted other prospective jurors who
expressed skepticism about the one-witness rule, but the record does
not reveal the race of those jurors, and, in any event, the comparative
juror analysis approved by the court in Miller-El v. Dretke (2005) 545
U.S. 231, does not apply to the prima facie stage of the Batson
analysis. (People v. Lenix (2008) 44 Cal.4th 602, 622, fn. 15; People v.
Bonilla, supra, 41 Cal.4th at p. 350 [“Whatever use comparative juror
analysis might have in a third-stage case for determining whether a
prosecutor’s proffered justifications for his [or her] strikes are
pretextual, it has little or no use where the analysis does not hinge on
the prosecution’s actual proffered rationales, and we thus decline to
engage in a comparative analysis here.”].)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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