P. v. Jackson

Filed 9/28/06 P. v. Jackson CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, David Mintz, Judge. Affirmed.

Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

INTRODUCTION

Defendant and appellant Vince Lamont Jackson appeals from the judgment entered following a jury trial that resulted in his conviction for possession of a controlled substance in a jail facility. Jackson was sentenced to a prison term of four years.

Jackson contends the trial court erred by denying his Wheeler/Batson motion[1] and allowing him to be impeached with his prior convictions. Jackson also requests that we review the sealed record of the trial court’s Pitchess[2] examination to determine whether the court abused its discretion by failing to order disclosure. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. People’s case.

Jackson was a trusty, or helper, at the Los Angeles County Men’s Central jail. One of Jackson’s duties was cleaning up trash outside cells. On October 19, 2004, Deputy Sheriff Dennis Salcedo was on duty at the jail as a “prowler.” Deputy Salcedo’s duties included searching inmates when they returned from seeing visitors or from court. Salcedo was working in a “day room,” or inmate break room, when he observed Jackson enter. Jackson stated he was placing some Top Ramen soup in his bag. As a routine matter, Salcedo asked to search Jackson, who consented. Jackson emptied his pockets. His left pocket contained an off-white substance, later determined to be .07 grams of a substance containing cocaine base, wrapped in a white wrapper.

b. Defense case.

Jackson testified that his responsibility as a trusty included keeping the “rows” in front of the inmate cells clean, including removing trash. His practice was either to sweep or pick up trash. Inmates ate meals in their cells and commonly tossed food wrappers and other refuse out from their cells onto the “row.” Jackson had been cleaning the row when a woman vendor came by selling food and snacks, and asked him to help her with her cart. Jackson, who had been picking up trash, placed small pieces of trash in his pocket. The vendor gave Jackson a soup package in return for his help. Jackson had no idea that the trash he had picked up contained cocaine. 2. Procedure.

Trial was by jury. Jackson was convicted of possession of a controlled substance in a jail facility (Pen. Code, § 4573.6).[3] After the trial court denied Jackson’s Romero[4] motion, Jackson admitted a prior “strike” conviction.[5] (§§ 667, subds. (b) -- (i), 1170.12, subds. (a) -- (d).) The trial court sentenced Jackson to a prison term of four years. It imposed a court security assessment, a restitution fine, and a suspended parole revocation fine. Jackson appeals.

DISCUSSION

1. The trial court did not err by denying Jackson’s Wheeler/Batson motion.

During voir dire, Jackson moved for a mistrial, contending the prosecutor had exercised three of seven peremptory challenges against African-American prospective jurors, leaving only one other African-American on the venire panel. The trial court concluded defense counsel had established a prima

facie case and asked the prosecutor to explain her reasons for excusing prospective juror nos. 1, 2, and 20.

After hearing the prosecutor’s reasons for excusing each of the three African-American jurors in question (discussed infra), the trial court denied the Wheeler/Batson motion. It explained, “I do believe the prosecutor had legitimate bona fide non-racial reasons for excluding [prospective] jurors 1, 2 and 20. I find the explanations to be credible and believable. I think that the reasons had nothing to do with their racial background.”

a. Applicable legal principles.

“A prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias -- that is, bias against ‘members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds’ -- violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution. [Citations.] The United States Supreme Court has recently reaffirmed that Batson states the procedure and standard to be used by trial courts when motions challenging peremptory strikes are made. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 541; Johnson v. California (2005) 545 U.S. 162, __ [125 S.Ct. 2410, 2416]; People v. Gray (2005) 37 Cal.4th 168, 186; People v. Cornwell (2005) 37 Cal.4th 50, 66-67.)

Here, the trial court found, and the parties do not dispute, that Jackson made out a prima facie case. Therefore we move directly to an evaluation of the prosecutor’s proffered explanations. “Although there may be ‘any number of bases on which a prosecutor reasonably [might] believe that it is desirable to strike a juror who is not excusable for cause . . . , the prosecutor must give a clear and reasonably specific explanation of his legitimate reasons for exercising the challeng[e].’ [Citation.]” (Miller-El v. Dretke (2005) 545 U.S. 231, ___ [125 S.Ct. 2317, 2324].) “ ‘What is required are reasonably specific and neutral explanations that are related to the particular case being tried.’ [Citation.]” (People v. Reynoso (2003) 31 Cal.4th 903, 917.)

When a trial court makes a “sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror, we accord great deference to its ruling, reviewing it under the substantial evidence standard.” (People v. Jurado (2006) 38 Cal.4th 72, 104-105; People v. Avila, supra, 38 Cal.4th at p. 541; People v. Guerra (2006) 37 Cal.4th 1067, 1104-1105.) We presume the prosecutor uses peremptory challenges in a constitutional manner, and we give deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. (People v. Avila, supra, at p. 541; People v. Guerra, supra, at pp. 1104-1105; People v. Burgener (2003) 29 Cal.4th 833, 864.)

b. Prospective Juror No. 20.

Prospective Juror No. 20 was an assistant animator who had attended a friend’s criminal trial. He believed that police officers lied in that case. The prosecutor believed Prospective Juror No. 20’s responses showed “a distrust of the police.” The prosecutor explained, “Given that we only have police officers as witnesses, I think that would influence his ability to be fair and

impartial . . . .”

Jackson does not argue that the prosecutor lacked legitimate, race-neutral reasons for excusing Juror No. 20. A prospective juror’s expressed belief that police officers are dishonest, or negative view of or experiences with officers, are legitimate race-neutral bases for the exercise of a peremptory challenge, where officers are witnesses. (People v. Avila, supra, 38 Cal.4th at pp. 544-545; People v. Guerra, supra, 37 Cal.4th at p. 1102.) Indeed, before the prosecutor offered an explanation for her exercise of the peremptory challenges, the trial court opined, “I can clearly understand why the People chose to excuse Juror Number 20.” Accordingly, we conclude substantial evidence supports the trial court’s finding that the prosecutor’s challenge to Prospective Juror No. 20 was not based upon group bias.

c. Prospective Juror No. 1.

Prospective Juror No. 1 was employed by the federal Housing and Urban Development Department, in the area of economic development. He had earned a Juris Doctor degree but had never worked as a lawyer. When explaining why she excused Prospective Juror No. 1, the prosecutor expressed concern that Prospective Juror No. 1’s “legal training would influence and interfere with his ability to be a fair and impartial juror.” She opined, “He was a J.D. He never practiced as an attorney . . . . Just putting it in very simple terms, he’d want to be the lawyer. And if there was something that he did not like was being done, I think he would hold it against the prosecution.”

Contrary to Jackson’s argument, we do not believe it is inherently implausible that a prosecutor would be genuinely concerned that a juror who had earned a law degree might be inclined, consciously or unconsciously, to use his or her legal knowledge in deciding the case. (Cf. People v. Reynoso, supra, 31 Cal.4th at p. 925, fn. 6 [“Indeed, an attorney could peremptorily excuse a potential juror because he or she feels the potential juror’s occupation reflects too much education, and that a juror with that particularly high a level of education would likely be specifically biased against their witnesses, or their client’s position in the case. As long as such a peremptory challenge was nondiscriminatory and ‘legitimate’ in the sense that it does not deny equal protection of the law [citation], it would be lawful and valid.”].) Prospective jurors are typically asked during voir dire whether they, or persons close to them, have legal training. Because the prosecutor’s stated concerns regarding the potential effect of Prospective Juror No. 1’s legal experience was plausible, the record contains substantial evidence supporting the trial court’s finding. (See People v. Gray, supra, 37 Cal.4th at p. 192.)

d. Prospective Juror No. 2.

Prospective Juror No. 2 worked in banking. Her brother-in-law and several friends worked for the Los Angeles Police Department. Her nephew had been charged with possession of drugs. Her sister had used cocaine in the past and had completed a treatment program. In explaining her challenge to Prospective Juror No. 2, the prosecutor stated, “I think that her ties as far as with drugs are too close. She gave me what I deem to be a couple of hard stares. . . . I did not get a lot of warmth coming from her.” The prosecutor believed that the prospective juror had not seemed forthcoming; “she’s holding back. I think she does have strong feelings. I don’t think she’s being very open about it.” The prosecutor observed that when another juror had stated that he would favor the police and would tend to believe police officers do not lie, Prospective Juror No. 2 looked at Prospective Juror No. 1 and rolled her eyes, which the prosecutor interpreted to mean, “how could somebody be so naive.” The record contains plausible race-neutral reasons for the prosecutor’s exercise of a peremptory challenge against Prospective Juror No. 2. As noted supra, a prospective juror’s view that police officers are dishonest, or her negative experiences with police, constitutes a race-neutral basis for the exercise of a peremptory challenge where officers are expected to be witnesses. (People v. Avila, supra, 38 Cal.4th at pp. 544-545; People v. Guerra, supra, 37 Cal.4th at p. 1102.) Peremptory challenges based upon counsel’s personal observations of prospective jurors’ body language and manner of answering questions are proper (People v. Reynoso, supra, 31 Cal.4th at p. 917), and a juror’s perceived hostility to a prosecutor is a race-neutral basis for excusal. (People v. Ward (2005) 36 Cal.4th 186, 202.) Neither the trial court nor defense counsel below contradicted the prosecutor’s account of Prospective Juror No. 2’s demeanor, suggesting the prosecutor’s description was accurate. (See id. at p. 202 [trial court’s finding that the prosecutor’s stated reasons were sincere and genuine is entitled to great deference where based on the prospective juror’s appearance and demeanor].) Likewise, in a drug possession case, a juror’s relative’s arrest for a drug-related crime is a race-neutral and plausible basis for the exercise of a peremptory challenge. (See People v. Jurado, supra, 38 Cal.4th at p. 105.)

Jackson correctly points out that Miller-El v. Dretke, supra, 125 S.Ct. 2317, suggested that a comparative juror analysis should be conducted in evaluating whether a prosecutor’s proffered race-neutral explanation conceals racial bias. “If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson‘s third step.” (Id. at p. 2325.) Assuming arguendo that a comparative juror analysis must be undertaken on appeal where the issue was not raised below (People v. Avila, supra, 38 Cal.4th at p. 546; People v. Jurado, supra, 38 Cal.4th at p. 105; People v. Guerra, supra, 37 Cal.4th at pp. 1103, 1106), such an analysis here fails to demonstrate purposeful discrimination.

Jackson urges that the prosecutor’s proffered justification for excusing Prospective Juror No. 2 -- relatives’ drug use and arrest for possession of drugs -- was equally applicable to five white jurors whom the prosecutor did not excuse. Jackson points out that Prospective Juror No. 3 stated she had two friends who were addicted to cocaine, one of whom was “involved in” a criminal case because of the drug use. Prospective Juror No. 7 stated he had had friends who used marijuana, cocaine, and crystal methamphetamine, but no longer associated with them. Prospective Juror No. 10 stated that her cousin had used cocaine and heroin, and resided in a “sober living” facility at the time of voir dire. Prospective Juror No. 15 stated that her cousin had died after years of drug use. Prospective Juror No. 11’s cousin had “been involved with” drugs and had been in prison. Like Prospective Juror No. 2, each of these jurors stated that their experiences with friends or relatives who had used drugs would not affect their ability to be fair in defendant’s case.

However, Jackson’s comparative analysis fails to take into account the prosecutor’s additional proffered explanations, that Prospective Juror No. 2 rolled her eyes as if to indicate skepticism when another juror stated a belief that police officers were honest, and gave the prosecutor “a couple of hard stares.” The juror’s demeanor, in combination with her statements regarding her relatives’ experiences with drug use, establishes that Prospective Juror No. 2 was not similarly situated to the other jurors discussed supra. Jackson does not identify any other juror who both gave similar responses regarding a relative’s drug offenses and indicated hostility to the prosecutor or skepticism regarding police officer honesty. (See People v. Jurado, supra, 38 Cal.4th at p. 105.)

e. Purported failure to conduct sufficient inquiry. Finally, we reject Jackson’s contention that the trial court failed to conduct a sufficient inquiry into the prosecutor’s stated reasons for her peremptory challenges. A trial court must make a sincere and reasoned attempt to evaluate the prosecutor’s explanations, but is “ ‘not required to make specific or detailed comments for the record to justify every instance in which a prosecutor’s race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine.’ [Citation.] Inquiry by the trial court is not even required. [Citation.] ‘All that matters is that the prosecutor’s reason for exercising the peremptory challenge is sincere and legitimate’ “ in the sense of being nondiscriminatory. (People v. Guerra, supra, 37 Cal.4th at pp. 1100-1101, italics added; People v. Reynoso, supra, 31 Cal.4th at p. 919.) “This is particularly true where the prosecutor’s race-neutral reason for exercising a peremptory challenge is based on the prospective juror’s demeanor, or similar intangible factors, while in the courtroom.” (People v. Reynoso, supra, at p. 919; People v. Ward, supra, 36 Cal.4th at p. 200.) Accordingly, no detailed trial court findings regarding the reasons for each peremptory challenge were necessary. The prosecutor’s stated reasons for exercising each peremptory challenge were neither contradicted by the record nor inherently implausible. (People v. Ward, supra, at p. 205.)

In sum, based on our review of the record, we conclude substantial evidence supported the trial court’s findings that the prosecutor’s peremptory challenges were based on genuine, nondiscriminatory reasons rather than group bias.

2. The trial court did not abuse its discretion by permitting Jackson to be impeached with his prior convictions.

a. Additional facts.

When Jackson indicated he wished to testify, the prosecutor sought to introduce evidence of Jackson’s numerous prior felony convictions to impeach him. Defense counsel sought to exclude evidence of all the prior convictions. At issue, inter alia, were convictions for auto burglary in 1984; grand theft auto in 1985; and voluntary manslaughter, kidnapping, forcible oral copulation with a child under 14 years of age, attempted murder, grand theft, two counts of forcible rape and two counts of second degree robbery, in 1989. Defense counsel argued the convictions were remote in time and unduly prejudicial under Evidence Code section 352. He further argued that, if any of the convictions were admitted, they should be “sanitized,” i.e., referenced only as felonies involving moral turpitude.

The trial court denied Jackson’s request. It found all the crimes involved moral turpitude and were highly probative on the issue of Jackson’s credibility. It rejected Jackson’s remoteness argument, observing, “This isn’t a situation where he committed an offense in 1989, served a short period of time in custody and then remained crime free for 15 or 16 years. This is a situation where he committed nine serious offenses. Received a lengthy prison sentence. Served his sentence and was out a very brief period of time before he reoffended.” The court concluded sanitizing the prior convictions would have given the jury too little information to evaluate Jackson’s credibility. “I don’t think simply saying that a . . . voluntary manslaughter or an attempted murder is a crime of moral turpitude allows the jury to consider the crime in its proper context.” The court concluded the probative value of the evidence outweighed any unfair prejudicial effect. The court did, however, omit any reference to the forcible oral copulation victim’s age on grounds that information was particularly inflammatory.

Jackson subsequently admitted pleading guilty to auto burglary in 1984; grand theft in 1985; and voluntary manslaughter, kidnapping, oral copulation, attempted murder, grand theft auto, two counts of forcible rape and two counts of second degree robbery, in 1989.

b. Discussion.

“ ‘Sections 788 and 352 of the Evidence Code control the admission of felony convictions for impeachment. Together, they provide discretion to the trial judge to exclude evidence of prior felony convictions when their probative value on credibility is outweighed by the risk of undue prejudice. [Citation.]’ [Citation.]” (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.) The trial court is guided by four factors when determining the admissibility of prior convictions: (1) whether the prior conviction reflects adversely on honesty or veracity; (2) whether the prior conviction is remote in time; (3) whether the prior conviction is for the same or substantially similar conduct as the charged offense; and (4) whether fear of prejudice will prevent the defendant from testifying. (Ibid.) “These factors need not be rigidly followed. [Citation.]” (Ibid.) A trial court’s admission of a prior conviction for impeachment will not be disturbed unless the ruling exceeds the bounds of reason and results in a miscarriage of justice. (People v. Green (1995) 34 Cal.App.4th 165, 182-183.)

Here, Jackson’s prior convictions all involved moral turpitude and reflected adversely on his credibility. (People v. Mendoza, supra, 78 Cal.App.4th at p. 925 [“California courts have repeatedly held that prior convictions for burglary, robbery, and other various theft-related crimes are probative on the issue of the defendant’s credibility.”]; People v. Zataray (1985) 173 Cal.App.3d 390, 399-400 [auto theft and simple kidnapping involve moral turpitude]; People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1435 [voluntary manslaughter involves moral turpitude]; People v. Hinton (2006) 37 Cal.4th 839, 888 [convictions for murder and attempted murder involved moral turpitude and were therefore admissible for impeachment]; People v. Lewis (1987) 191 Cal.App.3d 1288, 1295 [forcible rape involves moral turpitude]; People v. Rowland (1992) 4 Cal.4th 238, 259, fn. 1 [forcible oral copulation involves moral turpitude].)

Jackson contends that, because the non-theft-related crimes did not directly involve dishonesty, they were not probative on the issue of his credibility. Therefore only the robbery and theft priors should have been admitted. We are unpersuaded. While it may be easier to infer that a witness is lying if his prior crimes involved dishonesty, a readiness to lie can be inferred from a defendant’s commission of crimes indicating a “ ‘general readiness to do evil.’ “ (People v. Castro (1985) 38 Cal.3d 301, 315; People v. Chavez (2000) 84 Cal.App.4th 25, 28-29.) “[I]t is undeniable that a witness’ moral depravity of any kind has some “tendency in reason” [citation] to shake one’s confidence in his honesty. . . . There is then some basis -- however tenuous -- for inferring that a person who has committed a crime which involves moral turpitude other than dishonesty is more likely to be dishonest than a witness about whom no such thing is known.” (People v. Castro, supra, 38 Cal.3d at p. 315, fn. omitted.)

Although the 1984, 1985, and 1989 convictions occurred between 15 and 20 years before the charged crime, “convictions remote in time are not automatically inadmissible for impeachment purposes. Even a fairly remote prior conviction is admissible if the defendant has not led a legally blameless life since the time of the remote prior. [Citations.]” (People v. Mendoza, supra, 78 Cal.App.4th at pp. 925-926; People v. Green, supra, 34 Cal.App.4th at p. 183.) Jackson did not lead a legally blameless life between the prior convictions and charged crime. The trial court explained that Jackson had been incarcerated for much of the intervening period. He was paroled in 2001, remained out of custody for approximately one year, was reincarcerated, was paroled again in 2004, was on parole for approximately five months, and was reincarcerated when he committed the instant crime. (See People v. Tamborrino (1989) 215 Cal.App.3d 575, 590 [where a defendant avoided “trouble with the law” between convictions due to his incarceration, remoteness of prior convictions was not significant]; People v. Massey (1987) 192 Cal.App.3d 819, 825.)

As to the third factor, none of the prior crimes involved drug possession. Therefore, this factor pointed toward admission of the priors. (People v. Mendoza, supra, 78 Cal.App.4th at p. 926.) Likewise, the final factor tended toward admission of the priors, in that Jackson was not deterred from testifying.

“[T]here is no limitation on the number of prior convictions with which the defendant’s credibility can be impeached. [Citations.] Whether or not one or more prior convictions can be admitted is merely one of the factors that must be weighed against the danger of prejudice. [Citation.]” (People v. Mendoza, supra, 78 Cal.App.4th at p. 927; People v. Johnson (1991) 233 Cal.App.3d 425, 459.) Here, impeachment with only one or two of the priors would have given Jackson a “ ‘false aura of veracity.’ “ (People v. Mendoza, supra, at p. 927.) A series of relevant crimes is more probative of credibility than a single lapse. (People v. Hinton, supra, 37 Cal.4th at p. 888; People v. Green, supra, 34 Cal.App.4th at p. 183.)

Nor are we persuaded that the trial court abused its discretion by declining to “sanitize” the prior convictions, as requested by defense counsel. Sanitizing prior convictions is sometimes appropriate when the prior convictions and charged crime are the same, or similar. However, sanitization is not automatically required. (See generally People v. Green, supra, 34 Cal.App.4th at p. 183; People v. Foreman (1985) 174 Cal.App.3d 175, 182.) Numerous cases have permitted impeachment even with prior convictions that are identical to the charged offense. (See, e.g., People v. Johnson, supra, 233 Cal.App.3d at pp. 458-459 [no error in failing to sanitize prior murder conviction in murder case]; People v. Green, supra, at pp. 173, 183 [defendant impeached with four identical convictions]; People v. Muldrow (1988) 202 Cal.App.3d 636, 647 [defendant impeached with six prior convictions, three of which were identical to a charged offense]; People v. Castro (1986) 186 Cal.App.3d 1211, 1217 [five identical prior convictions not inadmissible as a matter of law].) Here, the fact the prior convictions were not similar to the charged offense weighed against sanitization. While the prior convictions were indeed serious, they did not involve drugs, and therefore had no tendency to suggest Jackson had a propensity to commit drug-related offenses. “Defendant, having chosen to testify in his own behalf, is not entitled to a false aura of veracity.” (People v. Foreman, supra, at p. 182.)

In sum, the record reveals that the trial court was aware of its discretion and considered the relevant factors. Moreover, the jury was instructed on the proper use of the priors. (CALJIC No. 2.23.) We therefore conclude that the trial court did not abuse its discretion by admitting the prior convictions for impeachment.

3. Review of in camera Pitchess examination. Before trial, Jackson sought discovery of Deputy Salcedo’s personnel records pursuant to Pitchess v. Superior Court, supra, 11 Cal.3d 531, for complaints regarding dishonesty, excessive force, bias, and “coercive conduct.” The trial court concluded good cause existed to examine the deputy’s personnel records for material related to “fabrication of statements.” On March 24, 2005, the trial court conducted an in camera review of Deputy Salcedo’s records and concluded no discoverable material existed. Jackson requests that we review the sealed record of the trial court’s Pitchess review to determine whether the trial court abused its discretion by failing to order disclosure of information.

Trial courts are vested with broad discretion when ruling on motions to discover peace officer records (People v. Samayoa (1997) 15 Cal.4th 795, 827; People v. Memro (1995) 11 Cal.4th 786, 832), and we review a trial court’s ruling for abuse. (People v. Mooc (2001) 26 Cal.4th 1216, 1228; People v. Hughes (2002) 27 Cal.4th 287, 330.) We have reviewed the sealed transcript of the in camera hearing conducted on March 24, 2005. That transcript constitutes an adequate record of the trial court’s review of any documents provided to it, and reveals no abuse of discretion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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[1] People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79.

[2] Pitchess v. Superior Court (1974) 11 Cal.3d 531.

[3] All further undesignated statutory references are to the Penal Code.

[4] People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

[5] The information alleged eight prior “strike” convictions; however, before trial the People’s motion to dismiss seven of the eight prior conviction allegations was granted.