People v. Silas

68 Cal.App.5th 1057

284 Cal.Rptr.3d 48

The PEOPLE, Plaintiff and Respondent,

v.Sheldon Vaughn SILAS et al., Defendants and Appellants.

A150512

Court of Appeal, First District, Division 1, California.

Filed September 17, 2021

Alex Coolman, San Francisco, under appointment by the Court of Appeal, for Sheldon Silas.

Barry M. Karl, Redwood City, under appointment by the Court of Appeal, for Reginald Whitley.

Stephen B. Bedrick, Oakland, under appointment by the Court of Appeal, for Lamar Michaels.

Ross Thomas, San Francisco, under appointment by the Court of Appeal, for Linda Chaney.

Xavier Becerra and Rob Bonta, Attorneys General; Lance E. Winters, Chief Assistant Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General; Rene A. Chacon, Supervising Deputy Attorney General; Moona Nandi, Deputy Attorney General, for Plaintiff and Respondent.

Easha Anand, San Francisco, James W. Craig, MacArthur Justice Center; Daniel A. Rubens, Elizabeth Cruikshank, Tiffany R. Wright, Sarah H. Sloan, Orrick Herrington & Sutcliffe, Ezekiel R. Edwards, Jason D. Williamson, Cassandra Stubbs, American Civil Liberties Union Foundation, Shilpi Agarwal, American Civil Liberties Union Foundation of Northern California, Elias Batchelder, Office of the State Public Defender, Stephen K. Dunkle, John T. Philipsborn, California Attorneys for Criminal Justice, Elisa Della-Piana, Tifanei Ressl-Moyer, Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, for Amici Curiae on behalf of Defendants and Appellants

Humes, P.J. Defendants Sheldon Silas, Reginald Whitley, Lamar Michaels, and Linda Chaney, all of whom are Black, were tried for various crimes related to the murders of Christopher Zinn and Brieanna Dow, who were also Black. During jury selection, defendants brought Batson / Wheeler¹ motions to challenge the prosecutor's exercise of peremptory strikes against three Black prospective jurors, including one who expressed support for Black Lives Matter. The trial court denied the motions, and the seated jury, which had two Black members, returned convictions on all the charged crimes.

We conclude that the Batson / Wheeler motion involving the prospective juror who expressed support for Black Lives Matter was improperly denied.

Defendants established a prima facie case of discrimination at the first stage of the Batson / Wheeler analysis, and the prosecutor's proffered reasons for the strike—that the juror was hostile when asked about supporting Black Lives Matter and had "anti-prosecution issues"—should not have been credited. Thus, insufficient evidence supports the conclusion at the third stage of the analysis that the peremptory strike was not " ‘motivated in substantial part by discriminatory intent.’ " ( Foster v. Chatman (2016) 578 U.S. 488, 136 S.Ct. 1737, 1754, 195 L.Ed.2d 1 ( Foster ).) Because the error was structural, we reverse the judgments and remand for a new trial.²

I.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2012, 24-year-old Zinn and his girlfriend, 21-year-old Dow, were shot to death in an unincorporated area of Contra Costa County between Pittsburg and Antioch. Evidence was presented at trial that Silas and Whitley, brothers and members of a San Francisco street gang, suspected Zinn, a fellow gang member, had stolen guns from them. Shortly before the murders, the brothers attacked Zinn outside his and Dow's apartment building, where Whitley and Chaney—Whitley's girlfriend—also lived. Zinn and Dow ran away, and Silas and Whitley pursued them in two separate cars, one of which was driven by Michaels, the brothers’ cousin. A few minutes later, both victims were shot to death on the side of the road. The prosecution's theory at trial was that Silas was the actual killer and Whitley and Michaels were aiders and abettors.

Silas, Whitley, and Michaels were originally charged in October 2012. Subsequently, Chaney and Lisa Arnold—Silas and Whitley's mother—were charged in the same case with various counts related to attempts to dissuade two witnesses from testifying and a count of accessory after the fact. Chaney was also charged with 49 felony counts of entering jail grounds as an ex-convict.

After the male defendants waived time, Chaney and Arnold were tried together in the fall of 2014. Chaney was found guilty of all counts of entering jail grounds as an ex-convict, but she was acquitted of one count of witness dissuasion, and the jury hung on the remaining three counts against her.³ The lone holdout juror on the hung counts was Black.

Trial of the three male defendants and retrial of Chaney on the three hung counts began in October 2015. During jury selection, the prosecutor exercised peremptory challenges against a total of six Black potential jurors. The trial court found no Batson / Wheeler violation as to any of the six, and the seated jury had no Black members except for one alternate juror. After jury selection concluded but before the presentation of evidence began, the court granted a mistrial because Whitley's original trial counsel unexpectedly died.

The trial at issue began in August 2016. The operative information charged Silas, Whitley, and Michaels with two counts of murder, one count of conspiracy to commit murder, and other firearms-related felonies.⁴ Numerous sentencing enhancements were also alleged, including multiple-murder and gang-murder special circumstances, firearm enhancements, and gang enhancements.⁵ In addition, it was alleged that Silas and Michaels were released on bail when they committed the offenses.⁶ Chaney was charged with one count of conspiracy to dissuade a witness, one count of witness dissuasion, and one count of being an accessory after the fact, all felonies. It was also alleged that she committed the latter two crimes for the benefit of a street gang.⁷

During jury selection, the prosecutor exercised peremptory challenges against three Black prospective jurors, and each challenge was the subject of a Batson / Wheeler motion. The trial court found that no prima facie case of discrimination was established as to the first two jurors, both of whom the prosecutor had unsuccessfully challenged for cause. As to the third challenge, the court found a prima facie case, but it accepted the prosecutor's reasons for the challenge and denied the motion. The seated jury had two Black members.

The jury convicted the male defendants of first degree murder of Zinn and conspiracy to commit murder, Silas and Whitley of first degree murder of Dow, and Michaels of second degree murder of Dow. The jury also found true as to all male defendants the gang-murder special circumstance for both murders and the multiple-murder special circumstance, as well as all other accompanying enhancements charged.⁸ In addition, the jury found Silas guilty of possessing an assault weapon, Whitley guilty of being a felon in possession of a firearm, and Michaels guilty of possessing an assault weapon and unlawful firearm activity, and found true the gang allegations accompanying these counts. Finally, Chaney was found guilty of all three counts charged against her, but the jury found not true the accompanying gang allegations.

Silas was sentenced as follows: (1) for the murder of Zinn, life without the possibility of parole (LWOP), plus consecutive terms of 25 years to life for personally and intentionally discharging a firearm causing death, 10 years for committing the crime for a gang's benefit, and two years for the bail enhancement; (2) for the murder of Dow, LWOP, plus consecutive terms of 25 years to life for personally and intentionally discharging a firearm causing death and 10 years for committing the crime for a gang's benefit; and (3) for possession of an assault weapon, three years plus a consecutive term of four years for committing the crime to benefit a street gang. The trial court indicated that Silas's total term was LWOP plus 70 years to life plus seven years.⁹

Whitley was sentenced on both murder convictions to LWOP, plus a consecutive term of 25 years to life for a principal's personal and intentional discharge of a firearm causing death. For the conviction of being a felon in possession of a firearm, he was sentenced to three years plus a consecutive term of four years for the accompanying gang enhancement, for a total term of LWOP plus 50 years to life plus seven years.

Michaels was sentenced for Zinn's murder to LWOP, plus consecutive terms of 25 years to life for a principal's personal and intentional discharge of a firearm causing death and two years for the bail enhancement. Michaels was sentenced for Dow's murder to 15 years to life, plus a consecutive term of 25 years to life for a principal's personal and intentional discharge of a firearm causing death. For possession of an assault weapon, he was sentenced to three years plus a consecutive term of four years for the accompanying gang enhancement, and for unlawful firearm activity, he was sentenced to eight months plus a consecutive term of one year for the accompanying gang enhancement. Thus, he received a total term of LWOP plus 67 years to life plus eight years, eight months.

Finally, Chaney was sentenced to four years for dissuading a witness, plus a consecutive term of seven years for her other convictions from the previous trial, for a total term of 11 years.

II.

DISCUSSION

Defendants contend that their three Batson / Wheeler motions should have been granted. We agree with them with regard to the motion involving Juror 275.

A. The Batson/Wheeler Framework

"The prosecution's use of peremptory challenges to remove prospective jurors based on group bias, such as race or ethnicity, violates a defendant's right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution and [the defendant's] right to equal protection under the Fourteenth Amendment to the United States Constitution." ( People v. Blacksher (2011) 52 Cal.4th 769, 801, 130 Cal.Rptr.3d 191, ...