PEOPLE v

PEOPLE v. PHILLIPS

Filed 2/14/07

CERTIFIED FOR PUBLICATION

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

THE PEOPLE,

Plaintiff and Respondent,

NICHOLAS PHILLIPS,

Defendant and Appellant.

C050503

(Super. Ct. No. 04F04069)

APPEAL from a judgment of the Superior Court of Sacramento County, James L. Long, J. Affirmed.

Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, Stan Cross, Supervising Deputy Attorney General, and Susan Rankin Bunting, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Nicholas Phillips was found guilty by a jury of robbing a Togo's sandwich shop. (Pen. Code, § 211.)^{^[1]} Defendant waived jury trial on enhancements that were based on a prior serious felony conviction (§ 667, subds. (a), (b)-(i)), and the trial court found the enhancements true. The trial court denied probation and sentenced defendant to a state prison term of 11 years.

Defendant appeals, contending the trial court erred by denying his Batson-Wheeler^{^[2]} motion. The principal question before us is whether it was proper for the trial court to require explanations for only two of the three prospective jurors who were the subject of defendant's motion. We conclude that it was and shall affirm the judgment.

BACKGROUND

Defendant, who is African-American, brought a Batson-Wheeler motion during voir dire after the prosecuting attorney exercised three of four peremptory challenges to excuse African-American prospective jurors. With respect to one of the prospective jurors, the trial court noted:

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Description	In denying motion for mistrial based on alleged racial bias in exercise of peremptory challenges, it was proper for the trial court to require explanations for only two of the three prospective jurors who were the subject of the motion, where court did not find that there was a prima facie showing of bias as to the third prospective juror. Prosecutor's objectively verifiable mistake in excusing prospective juror, a result of erroneously attributing to that person information in the juror questionnaire of another venire member with the same surname, constituted a legitimate race - neutral explanation for challenge where court properly had accepted original explanation for challenge before prosecutor realized, and explained, that there had been a mistake. Trial court did not err in accepting prosecutor's explanation that prospective juror's body language suggested a desire to avoid jury service.
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