People v. Smith

Opinion

ORTEGA, J.

We reverse the judgment in part because of error committed during jury selection and affirm the judgment in part.

Background

Defendant Timothy L. Smith was convicted by a jury of first degree murder (Pen. Code, §§ 187, subd. (a), 189)

1

(count one) and street terrorism (§ 186.22, subd. (a)) (count two) in the shooting death of a security guard at a taco stand. Firearm enhancements and a street gang enhancement were found true (§§ 12022, subd. (a)(1), 186.22, subd. (b)). In charges arising out of a separate incident, defendant pled guilty to street terrorism and carrying a loaded firearm (§§ 186.22, subd. (a), 12031, subd. (a)) (counts three and four). He received a sentence of 34 years to life.

2

During jury selection in the homicide case, the prosecutor peremptorily excused several Black jurors and defendant brought a motion pursuant to

People

v.

Wheeler

(1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748], The trial court found, prima facie, that the prosecutor was systematically excusing Blacks and required her to justify the peremptory challenges. The court accepted her explanation and denied the

Wheeler

motion.

The prosecutor excused another Black juror and defendant renewed his

Wheeler

motion. This time the trial court rejected the prosecutor’s explanation. But rather than excusing the panel and calling for a new venire, the court reseated the excused juror and the trial proceeded.

The sole issue on appeal is whether the trial court’s failure to call for a new panel constitutes reversible error.

Discussion

The California Supreme Court in

People

v.