P. v. Stevenson
Damien Stevenson appeals his conviction for one count of assault by means likely to produce great bodily injury (GBI). The jury also found the attack was done for the benefit of a criminal street gang. Before this court, appellant asserts the trial court erred in: (1) denying his Wheeler Batson motion challenging the prosecutors use of preemptory challenges to remove African American prospective jurors from the venire panel; (2) admitting evidence the victim was shot by a third party during the assault; (3) admitting inadmissible hearsay statements of the victim to the police after the attack; and (4) misstating the language of CALJIC No. 9.11 in such a way as to misinform the jury as to the elements of assault. Appellant also complains the prosecutor engaged in misconduct by using the shooting evidence to prove the gang enhancement. None of appellants claims warrant reversal. Appellant did not establish Wheeler Batson violation because the record demonstrates prosecutor articulated plausible race neutral reasons for excusing the potential panelists. As for the complaints concerning the admission of certain evidence, court conclude the court did not abuse its discretion in concluding the shooting evidence was relevant to the assault and in finding the post-attack victims hearsay statements qualified as excited utterances. Concerning the courts recitation of CALJIC No. 9.11, any misstatement did not prejudice appellant. Finally, based on our review of the record, the prosecutor did not engage in misconduct in referencing the shooting during the examination of the gang expert. Consequently, Court affirm the judgment.
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