Filed 2/18/21 P. v. Bell CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

KENNETH EUGENE BELL,

Defendant and Appellant.

B305103

Los Angeles County

Super. Ct. No. YA098886

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.
2

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 lesserincluded 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.

1 Because 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.

3 Counts 1 and 2 concerned other defendants who are not parties to 

this appeal.
3

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 
4

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 
5

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 
6

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

4 We 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 
7

“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.”
8

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.”].)
9

DISPOSITION

The judgment is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

EGERTON, J.