(Super. Ct. Nos. SF108520B & SF108562A)
The opinion of the court was delivered by: Mauro , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Fineness Deshawn Thompson was convicted of robbery, attempted robbery and assault with a firearm, and he was sentenced to prison for 17 years 8 months. He contends on appeal that the trial court erred in denying his Batson/Wheeler*fn1 motion.
The record supports the trial court's findings that the prosecutor's peremptory challenges were not based on race. We will affirm the judgment.
Over the course of three days in June 2008, defendant participated in numerous robberies during which he was either armed with, or personally used, a firearm. He was arrested and ultimately charged by amended information with six counts of robbery (Pen. Code, § 211; counts 1 through 6), one count of attempted robbery (Pen. Code, §§ 664/211; count 7) and two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2); counts 8 and 9).*fn2 The amended information alleged that, with respect to counts 1 through 3, defendant personally used a firearm (Pen. Code, § 12022.53, subd. (b)), and with respect to counts 4 through 9, defendant was armed with a firearm (Pen. Code, § 12022, subd. (a)(1)).
At the conclusion of trial, the jury found defendant guilty of counts 2, 4, 5, 6, 7 and 8, and found the related enhancements true. The jury found defendant not guilty of counts 1 and 3, and the trial court declared a mistrial on count 9, which was dismissed pursuant to a request by the People in the interests of justice. The trial court sentenced defendant to 17 years 8 months in prison.
This appeal focuses on the jury selection process before trial. The prosecutor exercised peremptory challenges to excuse three African American men, E.Y., R.E., and M. Defendant made a Batson/Wheeler motion, arguing that there was a reasonable inference they were discharged because of their race. The trial court found that defendant made a prima facie showing and invited the prosecutor to explain the reasons for excusing the prospective jurors.
The prosecutor explained that E.Y. "seemed to be a bit of a loose cannon," was very opinionated about the jury selection process, and "seemed kind of critical about the way [t]he [c]court was exercising its hardships and for cause excusing of jurors." The prosecutor found E.Y. "a bit unpredictable" and drew the impression that E.Y. would not "engage in a meaningful deliberation," but rather would "stick to his guns back in the jury room no matter what." Of greatest concern to the prosecutor was E.Y.'s statement that "he didn't want to be here," and seemed upset that the trial court was excusing other prospective jurors.
As for R.E., the prosecutor explained that, after the court denied his hardship request, R.E. said, "This trial's the last thing that's going to be on my mind," giving the impression he did not want to participate in the trial.
The prosecutor explained that M. "appeared to be younger" and, being from Alameda and the Bay Area, was "new to the area" and had "minimal ties" there. The fact that M. went to college in San Francisco and may have had a tattoo on his neck led the prosecutor to be concerned that M. "would have a liberal viewpoint and would be skeptical of . . . law enforcement's case." The prosecutor added that M. had returned late from lunch, a point that was confirmed by the court reporter. Later, during the second day of trial but outside the presence of the jury, the prosecutor recalled an additional reason for exercising a peremptory challenge as to M., namely that because defendant was contemplating calling an identification expert ("Stacy Rilea, ...