People v. Smith CA2/6

Opinion

Filed 9/2/26 P. v. Smith CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B341271 (Super. Ct. No. BA498400) Plaintiff and Respondent, (Los Angeles County)

v.

SHAWN LAVAL SMITH,

Defendant and Appellant.

Shawn Laval Smith appeals the judgment entered after a jury trial. He entered dual pleas of not guilty and not guilty by reason of insanity. In the guilt phase of the trial, the jury convicted him of first degree murder, i.e., murder committed with premeditation and deliberation. (Pen. Code, §§ 187, subd. (a), 189, subd. (a).)1 It found true an allegation that, in the commission of the offense, appellant had personally used a deadly weapon – a knife. (§ 12022, subd. (b)(1).) The jury also found 1 All statutory references are to the Penal Code. true a special circumstance allegation that he had intentionally killed the victim by means of lying in wait. (§ 190.2, subd. (a)(15).) In the sanity phase of the trial, appellant waived his right to a jury trial. The trial court found that he was sane when the offense was committed. Appellant was sentenced to life without the possibility of parole plus one year for the deadly weapon enhancement. Appellant is African American, and the victim was Caucasian. Appellant contends that, during closing argument at the jury trial, his counsel violated the Racial Justice Act (RJA, § 745) “by comparing him to an animal, a monster, and a beast.” Appellant notes that counsel made the comparison in support of his “theory . . . that appellant did not kill the victim by means of lying in wait or with premeditation and deliberation but rather killed the victim in a sudden explosion of violence . . . .” “In short,” appellant argues, “trial counsel asked the jurors to find appellant not guilty of first-degree murder because appellant ‘was an animal acting like an animal.’ ” We agree with People v. Midell (2025) 113 Cal.App.5th 1060, 1065 (Midell): “Because the comparisons made here were part of a tactically developed defense theme designed to negate the intent elements of the . . . offense[] charged [and the special circumstance allegation], [appellant] is procedurally barred from now using them as a basis for reversal on appeal.” We also conclude that defense counsel’s alleged use of animal imagery in the circumstances of this case did not violate the RJA or constitute ineffective assistance of counsel. Accordingly, we affirm.

2 Facts Brianna Kupfer was working as “a part-time design consultant” in a furniture store in Los Angeles. On January 13, 2022, Kupfer was alone inside the store. She was 24 years old. Appellant entered the store and told Kupfer that he “need[ed] a price on . . . a living room set.” After engaging in a brief, nonthreatening conversation with Kupfer, appellant exited the store. He remained outside for a short interval and then reentered the store. Appellant ordered Kupfer to “[g]et down on the floor right now.” Kupfer screamed while appellant stabbed or cut her at least 46 times with a knife. “The cause of death was sharp force injuries.” Appellant fled. He left behind the knife and an audio recording device. The device recorded appellant’s conversations with Kupfer. It also captured audio of the killing. Appellant’s DNA was on the device. Appellant’s and Kupfer’s DNA was on the knife. A surveillance video showed Kupfer running toward the store’s front door. Appellant ran toward Kupfer in what appeared to be “an attempt to cut her off.” The audio recording device recorded remarks that appellant had made a few weeks before the killing. The remarks disclose hostility toward people generally, but especially toward women. Appellant said, “I’m ‘a (sic) kill all you all mother fuckers . . . . That’s all . . . that’s on my mind, killing you all mother fuckers . . . .” “I’m destroying everything. And, I mean, everything. I do not like bitches, girl. . . . You all primary targets, girl.” “. . . I will smoke you all mother fucker, girl.”

3 The RJA “The RJA commands: ‘The state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin.’ (§ 745, subd. (a).) [¶] A defendant may establish a violation of the RJA by a preponderance of the evidence in four ways, including as relevant here, if, ‘[d]uring the defendant's trial, in court . . . an attorney in the case . . . used racially discriminatory language about the defendant's race . . . ,’ unless ‘the person speaking is relating language used by another that is relevant to the case or if the person speaking is giving a racially neutral and unbiased physical description of the suspect.’ (§ 745, subd. (a)(2).)” (Midell, supra, 113 Cal.App.5th at p. 1071.) “ ‘Racially discriminatory language’ means language that, to an objective observer, explicitly or implicitly appeals to racial bias, including, but not limited to, racially charged or racially coded language, [or] language that compares the defendant to an animal . . . . Evidence that particular words or images are used exclusively or disproportionately in cases where the defendant is of a specific race . . . is relevant to determining whether language is discriminatory.” (§ 745, subd. (h)(4).) “The stated purpose of the RJA is ‘to eliminate racial bias from California’s criminal justice system.’ (Stats. 2020, ch. 317, § 2, subd. (i).) . . . [T]he Legislature explained, ‘Because use of animal imagery is historically associated with racism, use of animal imagery in reference to a defendant is racially discriminatory and should not be permitted in our court system.’ (Stats. 2020, ch. 317, § 2, subd. (e).) The RJA's goal ‘is not to punish . . . bias, but rather to remedy the harm to the defendant’s 4 case and to the integrity of the judicial system.’ (Stats. 2020, ch. 317, § 2, subd. (i).)” (Midell, supra, 113 Cal.App.5th at p. 1071.) Defense Counsel’s Closing Argument to the Jury Defense counsel told the jury: “The motive for doing what was done here, . . . it’s not thought out with reason and logic. No, it comes from deep in the dark recesses of the subconscious mind. It’s triggered by something external. [¶] And then, as happened in this case, it explodes to the surface in an instant, like [the volcanic eruptions of] Krakatoa or Vesuvius, causing destruction to whatever is in front it.” “[The killing] was the opposite of premeditated. It was . . . explosively impulsive . . . . There was no deliberation by the killer.” Counsel argued: “[T]he decision to literally attack [Kupfer] and/or kill her was made” “when she started to run” toward the front door of the store. “[T]he drive to capture her in flight came from some force deep inside . . . . Humans have buried and suppressed into our subconscious vestiges of our ancestral past, including our role as predators, and . . . to a predator, the movement of a fleeing prey can trigger this instinct and prompt pursuit. The act of fleeing signals vulnerability which, by sheer instinct, not reasoned thought, the predator will exploit.” Defense counsel continued: “The decision to attack Brianna Kupfer happened in an instant. To say that the perpetrator engaged in something like reflective contemplation is ludicrous. . . . [T]his was an animal acting like an animal . . . .” “He had to be in something that we might call ‘beast mode.’ ” “[T]his was[] an animal urge. That’s what you hear on the audio recording of the event, a sudden urge that came forth in a fraction of a second.” Before appellant killed Kupfer, he “sensed she was reaching out [to others] for help . . . because he has that 5 animal, acute animal instinct” that he had developed while living on the street as a homeless person. In explaining why the case had generated substantial media attention, defense counsel said: “You might say that in this tragedy, we actually have the, sort of, mythical archetypes . . . . For example, we can say that the suspect here was kind of like the big bad wolf; friendly at first, and then there’s the transformation to slaughtering little red riding hood’s grandmother, or we can also have the character of the shape shifter, changing from a customer to a monster. We have also . . . the princess, or the young innocent, the ingenue. That would be Brianna Kupfer.” Defense counsel accused the prosecution of exploiting the public’s emotional response to the killing: “[T]he prosecution has been able to leverage the emotional response to the intangibles in this case, to move . . . the needle, from . . . second degree [murder] to first degree to special circumstances, not because the facts fit going all the way [there], they are the opposite of that, but rather, because of the emotional reaction of this case, of a primeval ancient fear, and old story, that of the dark monster emerging from nowhere to kill the young innocent girl.” Appellant claims defense counsel said “appellant was like ‘a lion on the Masai Mara [that] knows it has to sneak through the underbrush, and only commence the attack before the wildebeest or Thomson’s gazelle, or whatever, even knew it was there.’ ” (Italics added.) But counsel did not compare appellant to the hypothetical lion on the Masai Mara. Such a comparison would have been contrary to counsel’s argument that the lying-in-wait allegation was not true. Counsel distinguished appellant’s acts from the lion’s conduct. Counsel told the jury, “Here, there 6 clearly was no surprise, because the suspect was already interacting with Ms. Kupfer for a while, that’s not surprise.” Appellant Is Barred From Asserting the RJA Claim under the Doctrine of Invited Error Appellant is barred from asserting the claim pursuant to the invited error doctrine. “ ‘The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court [or his attorney] at his behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal. . . .’ ” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.) Here, “defense counsel's comments [during closing argument] were an affirmative and tactical decision that reflect[s] the central theme of [appellant’s] defense . . . .” (Midell, supra, 113 Cal.App.5th at p. 1073.) As appellant states in his opening brief, the central theme was that he “did not kill the victim by means of lying in wait or with premeditation and deliberation but rather killed the victim in a sudden explosion of violence . . . .” We reject appellant’s claim that, by “failing to object to his own racially discriminatory language,” defense counsel “was ineffective under the Sixth Amendment.” “ ‘Counsel is presumed competent and informed as to applicable constitutional and statutory law.’ [Citation.] [Appellant] fails to direct us to anything in the record indicating counsel was ignorant of the RJA.” (Midell, supra, 113 Cal.App.5th at p. 1073.) Appellant was tried in 2024, long after the RJA became effective on January 1, 2021. “ ‘Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel 7 [citation], and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” ’ ” (People v. Weaver (2001) 26 Cal.4th 876, 925-926; see also People v. Fosselman (1983) 33 Cal.3d 572, 581 [“Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission”].) We cannot say that defense counsel had no rational tactical purpose for his use of animal imagery during closing argument. Furthermore, as we discuss in the next section of this opinion, counsel’s statements did not violate the RJA. Counsel’s Statements Did Not Violate the RJA Here In determining whether defense counsel violated the RJA, “[t]he operative question is whether an objective observer would understand counsel's comments as explicitly or implicitly appealing to bias against [the defendant] because of his race, ethnicity, or national origin.” (People v. Barrera (2026) 19 Cal.5th 919, 981 (Barrera).) “The RJA does not categorically prohibit uses of animal imagery; it instead prohibits those uses of animal imagery that are objectively understood as appealing to racial bias.” (Id. at p. 984; see also People v. Bankston (2026) 19 Cal.5th 786, 866 [“The RJA . . . does not categorically prohibit other uses of animal imagery that do not raise the serious racial fairness concerns to which the RJA is directed”].) “[W]e must carefully consider context when determining whether particular statements violate the RJA.” (Ibid; see also id. at p. 857 [“careful consideration of context often marks significant differences in meaning”].)

8 Considering the context of defense counsel’s alleged use of animal imagery, an objective observer would not have understood counsel’s comments “as explicitly or implicitly appealing to bias against [appellant] because of his race, ethnicity, or national origin.” (Barrera, supra, 19 Cal.5th at p. 981.) An objective observer would have understood that counsel was trying to persuade the jury that, like a wild animal, appellant had acted impulsively when he killed Kupfer, and the killing was a sudden, unplanned action. Therefore, appellant was at most guilty of second degree murder. Had the jury accepted counsel’s argument, appellant would have avoided his current sentence of life imprisonment without the possibility of parole. The penalty for second degree murder is imprisonment for 15 years to life. (§ 190, subd. (a).) In view of the overwhelming evidence that appellant was the actual killer, a second degree murder conviction would have been a victory for the defense. Defense counsel did not violate the RJA by saying that appellant “was kind of like the big bad wolf” in the story about Little Red Riding Hood. Counsel made clear that he was trying to explain to the jury why the case had attracted the attention of the media. Counsel asked the jury: “[W]hat is it about this case that attracted local and national TV trucks? You probably saw it out in the street, by the courthouse.” “[W]hy do we have reporters sitting here and a packed gallery? Why is this trial being broadcast all over Los Angeles, and maybe even to the world?” Appellant “has not offered any evidence to suggest that the manner in which [defense counsel] used the term ‘wolf,’ singly or in combination with other descriptions, is ‘used exclusively or disproportionately in cases where the defendant is of a specific 9 race, ethnicity, or national origin.’ (§ 745, subd. (h)(4).) He likewise has not demonstrated how the term wolf is ‘historically associated with racism.’ (Stats. 2020, ch. 317, § 2, subd. (e).)” (People v. Demolle (2026) 19 Cal.5th 1117, 1200-1201 (Demolle).) Appellant complains that defense counsel “repeatedly compared appellant’s conduct in this case to an ‘animal predator’ hunting its prey.” In the entire reporter’s transcript there is but only one instance where counsel used the term “animal predator.” Counsel said, “You can slide all the way to the [] continuum to the lowest levels of intelligence and for that matter even the criminal or even the animal predator world and they all have an in nature situational awareness of time, space, body language of their prey.” But in the next sentence counsel argued that, until Kupfer “bolted for the door,” appellant had not acted in a predatory manner: “The suspect wasn’t waiting for an opportunity. Actually, he was far from doing that. In fact, there was no plan of anything at that point, just sustain his interaction with this attractive, friendly young lady . . . .” Defense counsel used the term “predator” several times during his argument, but the mere use of this term did not constitute a violation of the RJA. Our Supreme Court recently stated, “We . . . conclude that ‘[e]ven if the use of the term [“predator”] in some contexts has a [dehumanizing effect], [defendant] fails to explain how, in this context, the prosecutor's comment constituted an implicit “appeal[ ]” to racial bias.’ ” (Demolle, supra, 19 Cal.5th at p. 1199, brackets in original.) The same conclusion applies to defense counsel’s use of the term “predator” in the context of his closing argument. “While the term ‘predator’ can refer to animal behavior, it also can refer to human behavior.” (People v. Chhuon and Pan (2026) 19 Cal.5th 10 1018, 1104; see also People v. Quintero (2024) 107 Cal.App.5th 1060, 1077 (Quintero) [“The terms ‘predator’ and ‘prey’ . . . are race-neutral terms”].) Counsel said that, in seeking an unwarranted conviction of first degree murder with a lying-in-wait special circumstance, the prosecution was taking advantage of the “primeval ancient fear . . . of the dark monster emerging from nowhere to kill the young innocent girl.” “The term [‘monster’] itself is race-neutral, and its use here does not suggest either implicit or explicit bias against [appellant].” (Quintero, supra, 107 Cal.App.5th at p. 1077.) Moreover, during argument Appellant’s trial counsel warned the jury about the dangers of implicit bias in this case involving a Black defendant and a White female victim: “[A] case like this naturally evokes [passions.] [¶] Anyway, using passion is a way to ignore the law and the facts of the case, so as to seek a more satisfying final chapter to this story.” Counsel continued: “There’s something about what Shawn Smith is in that photo, and what Brianna Kupfer is. What is going on with that? It is something that we don’t want to think about, much less even speak of? Let’s put it another way.

“What is the one thing that we consciously notice looking at those photos there? And then, after we notice that, maybe, because we’re all good people, we try not to think about that again, and you don’t have to be a Freudian psychoanalyst to understand that thoughts that are suppressed, they always resurface, manifesting 11 themselves usually in the form of later on of displaced emotional energy.

“The thing we can’t talk about or even think about here in this case is, ironically, I would put it to you why this case has attracted so much attention to so many people. I would say try to imagine from those photos if the dynamic you see between those two, the physical qualities, the cultural and societal qualities were the opposite, try to imagine if they were the opposite of what they are, if that was the case. I guarantee you—”

Given these prophylactic statements to the jury, we conclude that defense counsel’s use of animal imagery here was not an appeal to racial bias. (§ 745, subds. (a)(2), (h)(4); Midell, supra, 113 Cal.App.5th at p. 1079.)2 It was a conscious and tactical attempt to secure a second degree murder conviction in lieu of a special circumstance first degree murder conviction.

2 Because defense counsel’s comments did not violate the RJA here, we need not consider appellant’s argument that “[t]he trial court erred when it failed to inquire into whether a conflict of interest existed after appellant’s trial counsel violated the RJA in closing argument.” (Bold omitted.)

12 Disposition The judgment is affirmed. NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

CODY, P. J.

BALTODANO, J.

13 Mildred Escobedo, Judge Superior Court County of Los Angeles ______________________________ Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, Steven E. Mercer, Deputy Attorney General, for Plaintiff and Respondent.