People v. Smith

• Decision Date: 07 February 2019
• Docket Number: A142094,A141594
• Citation: 32 Cal.App.5th 860,244 Cal.Rptr.3d 289
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Andre SMITH, Defendant and Appellant. The People, Plaintiff and Respondent, v. Jabrie Bennett, Defendant and Appellant.

32 Cal.App.5th 860

244 Cal.Rptr.3d 289

The PEOPLE, Plaintiff and Respondent,

v.Andre SMITH, Defendant and Appellant.

The People, Plaintiff and Respondent,

v.Jabrie Bennett, Defendant and Appellant.

A141594

A142094

Court of Appeal, First District, Division 4, California.

Filed February 7, 2019

As Modified on Denial of Rehearing March 1, 2019

Certified for Partial Publication.^*

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)

Reardon, J.^*

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 two days prior to the BART shooting and involved the same gun. In the published portion of our opinion, we address and reject appellants’ assertion that the prosecutor improperly used three of his peremptory challenges to excuse potential jurors because they were Black, in violation of Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 ( Batson ) and People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 ( Wheeler ). In the unpublished portion of our opinion, we agree with Bennett that the trial court should reconsider his sentence in light of recent amendments to Penal Code section 12022.53,² and otherwise reject appellants’ numerous other contentions.

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.

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 Donnell Jordan

On January 17, 2013, two days before the BART shooting described above, Donnell 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 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 (§§ 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.

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...