Filed 9/2/26 P. v. Smith CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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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.”
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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
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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
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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.)
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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.