P. v. Liggion

Filed 9/19/07 P. v. Liggion CA3

Opinion following remand from U.S. Supreme Court

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

A jury convicted defendant Jaquay Odell Liggion of willful discharge of a firearm at an inhabited dwelling (Pen. Code,  246^[1]--count one) and assault with a firearm ( 245, subd. (a)(2)--count two). He was sentenced to state prison for the upper term of seven years on count one. Count two was stayed pursuant to section 654.

Defendant appealed to this court, contending the trial court erred by (1) denying his Wheeler-Batson^[2]motion, and (2) imposing the upper term based on facts not found by the jury. In January 2006, this court affirmed the judgment, and the California Supreme Court denied review. (Review den. Apr. 19, 2006, S141792.)

In February 2007, the United States Supreme Court granted defendants petition for writ of certiorari, vacated our judgment, and remanded the cause to this court for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). (Liggion v. California(2007) ___ U.S. ___ [167 L.Ed.2d 60].) We recalled the remittitur from the trial court and ordered the parties to submit supplemental letter briefs addressing Cunningham. Finding no constitutional violation, we again affirm.

Facts

The facts of defendants offenses are not at issue and need not be recounted.

Discussion

I

Defendant contends the trial courts denial of his Wheeler-Batson motion was reversible error because (1) the reasons the prosecutor gave for striking two African-American prospective jurors were pretextual, and (2) the court abdicated its duty in failing to inquire further into those reasons. Neither point has merit.

Background

Defendant is African-American. During jury selection, defendant and his codefendant jointly made a Wheeler-Batson motion alleging that the prosecution had engaged in a systematic attempt to eliminate African-Americans from the jury panel. Defendant specifically cited the prosecutions peremptory challenges of Ms. S. and Ms. P., both women of African-American descent.^[3] The trial court found there was enough of a pattern to require the prosecution to explain its use of peremptory challenges on these jurors.

Regarding Ms. P., the prosecutor explained: As to juror number two, [Ms. P.], the factors I considered in terms of dismissing her was, [o]ne, it indicated in her questionnaire there were several numbers, items marked private. I believe her job she indicated private. I believe where she works she indicated private. Just many items that she marked private. I took that as being to me, indicated she was somewhat inattentive, maybe not as forthcoming. Also, a large factor from [Ms. P.] was her body language during the voir dire process. I took her kind of like towards myself, as being somewhat defensive. [] Obviously, she didnt want to be here. She indicated she did not want to serve. I do not want anyone or try to not to have anyone on my jury that doesnt want to be here. My theory is that shes going to be inattentive, not focus on the evidence, not listen to the argument, not going to abide by the law. [] Also, she indicated she could not sit in judgment over another individual. That was a question I posed to her that she answered as well . . . .^[4]

Defendants counsel responded to the prosecutors explanation as follows: As to Ms. [P.], again, I think that the explanation of -- I think [the prosecutor] used, she doesnt want to be here, I think its a double edged sword for all of the attorneys here, if she doesnt want to be here, it works just as much against the defense as it does to the prosecution. So, I dont think thats a valid explanation.

The trial court replied: Of course, the prosecution has to worry. The defense wins with one oddball. [] . . . []  The prosecution loses with one oddball. He runs that serious risk. And Ms. [P.] was clearly an oddball. [] Ive never had a juror who submitted a form who [sic] everything was -- maybe once before in all these years, where everything is private. I dont want to talk about anything.

Defendants counsel reiterated: If, during deliberations, my big concern with Ms. [P.], if she wants to get out of here, she doesnt want to be on the jury any longer, my concern [is] that shes going to vote for the majority, regardless of what it is. And I see that working against the defense.

Regarding Ms. S., the prosecutor explained: My main concern with [Ms. S.] was that she was still seeing an individual who was incarcerated. She indicated her boyfriend was on parole. That to me shows that she has some hostility or negative kind of perception of law enforcement. It indicated on the questionnaire that there were some incidents regarding [her] boyfriend, that that was the reason why he was incarcerated. Again, he -- she is still seeing him. [] . . . [] . . . I asked her specifically if she knew why [her] boyfriend was incarcerated and she indicated she did not know. She indicated, if I recall, that hes incarcerated now because of a parole violation, but the underlying offense she does not know. So my fear was it could be some crime of violence, maybe something similar. And basically that was one of the reasons I exercised the challenge upon her. [] Furthermore, as kind of a subset as well, I didnt take this into -- too much into account, but two of her sisters did also -- did sustain DUIs, but again, this wasnt a huge factor.

The codefendants counsel responded to the prosecutors explanation as follows: As to Ms. [S.], she knows nothing about her boyfriend who is a relatively short[-]term relationship as I recall, only seeing him for the last 30 to 60 days. All she knew is that he was in for a dirty test, didnt know anything more about him. I dont think there can be an inference of . . . bias against law enforcement based on the relationship, only 30, 60 days old. So, I think these are kind of flimsy excuses to systematically exclude the Afro Americans from the jury panel.

After hearing from all parties, the trial court denied the motion, stating:

Well, I think its a close question, but Im going to deny the motion.

I think these explanations are sufficiently justifiable for elimination in the excusing of these jurors. First of all, Ms. [P.] is an oddball. Ms. [P.] marches to a different drummer. Ms. [P.] is not happy with this system, doesnt want to be involved in it, to the extent she put down private for everything, and she is a loose cannon. And I think the defense likes loose cannons more than the prosecution, but who knows how shes going to act in there because she is a nonconformist, uncooperating citizen who is very resistant. Shes here because weve got a gun to her head.

So, shes just not the kind of a juror that the prosecution has the right to expect would be a conscientious juror, in trying to be [sic] justice in this case.

So, her body language, her resistance, the whole thing, makes her a have [sic] negative juror.

Ms. [S.], it is a little -- of concern that she has entered into a relationship with a guy on parole who is currently testing dirty, and has been returned. And she seems to have no information to speak of as to what is going on.

It just -- it raises [] the prosecutions suspicion, about her lawabidingness [sic] . . . and her getting involved in that particular relationship, particularly somebody who, from observations or what shes reported is ongoing, [is] having drug problems and testing dirty, which resulted in him being returned to prison.

Those raise questions about her judgment and concerns about the law-abiding process.

Analysis

The use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution (People v. Wheeler[, supra, 22 Cal.3d at pp. 276-277]) as well as the equal protection clause of the Fourteenth Amendment to the United States Constitution (Batson v. Kentucky[, supra,] 476 U.S. [at p.] 89). [Citation.] A party who suspects improper use of peremptory challenges must raise a timely objection and make a prima facie showing that one or more jurors has been excluded on the basis of group or racial identity. . . . Once a prima facie showing has been made, the prosecutor then must carry the burden of showing that he or she had genuine nondiscriminatory reasons for the challenge at issue. [Citation.] [T]he trial court must then decide . . . whether the opponent of the strike has proved purposeful . . . discrimination. [Citation.] (People v. Ward (2005) 36 Cal.4th 186, 200 (Ward).)

The trial courts ruling on this issue is reviewed for substantial evidence. [Citation.] We review a trial courts determination regarding the sufficiency of a prosecutors justifications for exercising peremptory challenges with great restraint. [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial courts ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.] [Citation.] [I]n fulfilling [this] obligation, the trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutors [nondiscriminatory] reason for exercising a peremptory challenge is being accepted by the court as genuine. This is particularly true where the prosecutors [nondiscriminatory] reason for exercising a peremptory challenge is based on the prospective jurors demeanor, or similar intangible factors, while in the courtroom. [Citation.] (Ward, supra, 36 Cal.4th at p. 200.)

The proper focus of a Batson/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. [Citation.] So, for example, if a prosecutor believes a prospective juror with long, unkempt hair, a mustache, and a beard would not make a good juror in the case, a peremptory challenge to the prospective juror, sincerely exercised on that basis, will constitute an entirely valid and nondiscriminatory reason for exercising the challenge. [Citation.] It matters not that another prosecutor would have chosen to leave the prospective juror on the jury. Nor does it matter that the prosecutor, by peremptorily excusing men with long unkempt hair and facial hair on the basis that they are specifically biased against him or against the Peoples case or witnesses, may be passing over any number of conscientious and fully qualified potential jurors. All that matters is that the prosecutors reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory. [A] legitimate reason is not a reason that makes sense, but a reason that does not deny equal protection. (People v. Reynoso (2003) 31 Cal.4th 903, 924 (Reynoso).)

A. Ms. P.

The prosecutor excused Ms. P. because she refused to disclose information on her questionnaire, which indicated to the prosecutor that she was somewhat inattentive, maybe not as forthcoming. The prosecutor explained, My theory is that shes going to be inattentive, not focus on the evidence, not listen to the argument, not going to abide by the law.

Defendant contends the prosecutors explanation was so nonsensical that it cannot be considered a reasoned explanation. He argues the prosecutors theory was so illogical, so much a non sequitur, as to suggest lack of genuineness. We disagree.

Ms. P.s questionnaire responses were ambiguous in that they could mean simply that she wanted to maintain the privacy of the particular facts requested.^[5] However, the responses could also reflect a broader unwillingness to participate in the trial and could foretell that she would be inattentive. Thus, the prosecutors stated reason for removing Ms. P. appears to be subjectively genuine. (Reynoso, supra, 31 Cal.4th at p. 924.)

Defendant protests that there is no logical link between a desire for privacy and a lack of attention or unwillingness to follow rules. However, it is sufficient that there is a logical link between the prosecutors premise (the oddly completed questionnaire) and his chosen inference (unwillingness to participate). Whether there is a logical link between one permissible inference (desire for privacy)and another alternative inference (lack of attention, etc.) is irrelevant.

The prosecutor did not deduce Ms. P.s unwillingness to participate solely from her questionnaire; he also relied on her having indicated that she did not want to serve and that she could not sit in judgment over another individual. Ms. P. had indicated that she was not really one thats too comfortable with serving on a jury, and that she would much rather be someplace else rather than right here. These are valid, racially neutral reasons for the prosecutions decision to challenge her. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1125 [jurors initial request to be relieved from jury service for work-related reasons supported exercise of peremptory challenge]; People v. Williams (1997) 16 Cal.4th 635, 665 [jurors belief that it was not in any human beings power to order the taking of anothers life supported exercise of peremptory challenge].)

Contrary to defendants argument, the trial court did not disregard the prosecutors stated reasons for excusing Ms. P. or hypothesize its own justifications. The courts description of Ms. P. as an oddball, a loose cannon, and a nonconformist, responded to the prosecutors argument that she refused to disclose on her questionnaire several items of standard information, such as the nature and location of her occupation. Although the prosecutor never called Ms. P. eccentric, idiosyncratic, iconoclastic or unusual, he did describe conduct that fell fairly within each of those terms. The prosecutor satisfied his burden of stating a racially neutral explanation for his own actions. (Miller-El v. Dretke (2005) 545 U.S. 231, 252 [162 L.Ed.2d 196] (Miller-El).)

B. Ms. S.

The prosecutor excused Ms. S. because she was still seeing a boyfriend who had been incarcerated for a parole violation following an underlying offense whose nature Ms. S. did not know. The prosecutor feared the underlying offense could be some crime of violence, maybe something similar to the crimes in this case. The prosecutor deduced that Ms. S. could have some hostility or negative kind of perception of law enforcement. In addition, as kind of a subset as well, I didnt take this into -- too much into account, but two of her sisters did also -- did sustain DUIs, but again, this wasnt a huge factor.

Defendant argues the prosecutors alleged reason for dismissing Ms. S. was no reason at all. We disagree.

Because the jury was not sequestered and future contact between Ms. S. and her boyfriend was foreseeable, the prosecutor could anticipate that Ms. S. could learn the nature of his underlying offense before the trial concluded. Thus, the prosecutors stated concern that the offense could be similar to those at issue in this case was proper. Even if the nature of the boyfriends underlying offense remained unknown, the facts that the boyfriend had been on parole, had violated his parole, and was again incarcerated, supported the prosecutors stated concern that Ms. S. could have some hostility toward, or negative perception of, law enforcement. Relatives adverse contacts with the criminal justice system have consistently been upheld as valid, race-neutral justifications for striking jurors. (People v. Arias (1996) 13 Cal.4th 92, 138; see Williams, supra, 16 Cal.4th at pp. 664-666; People v. Cummings (1993) 4 Cal.4th 1233, 1282.)

Defendant argues the prosecutors reason becomes even less plausible when considered in the context of other evidence before the court, which showed Ms. S. to be a prosecutors dream. Again, we disagree.

Ms. S.s best friend was her brother-in-law, a 20-year veteran of the California Highway Patrol, who commonly discussed his court cases with her. When asked if she would favor the testimony of a law enforcement officer over any citizen or anybody else, Ms. S. said, No.

Ms. S. testified on voir dire that a female neighbor had threatened her with a gun. Responding police officers searched the neighbors home, found the gun and removed it. The neighbor, who was not arrested or charged with a crime, later committed another crime against a different victim. Nevertheless, Ms. S. believed the officers did their job and helped solve the problem. She was grateful.

Thus, Ms. S. expressly denied that she would favor law enforcement. Nothing in her favorable experience with the officers who had disarmed her neighbor calls her denial into doubt. This record does not suggest that the prosecutors stated reasons for challenging Ms. S. were pretextual.

Defendant argues the prosecutors comment that two of Ms. S.s sisters had sustained DUIs should have been enough to cause the court to mistrust any other reason presented, because, by the time he spoke, the prosecutor had neglected to challenge three other prospective jurors whose siblings had suffered DUIs.^[6] We are not persuaded.

If a prosecutors 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 Batsons third step. (Miller-El, supra, 545 U.S. at p. 241.) We shall assume, as did our Supreme Court, that comparative juror analysis is properly undertaken for the first time on appeal. (Ward, supra, 36 Cal.4th at p. 203.)

Ms. M. testified that her sister had been arrested for a DUI 10 years previously; the sister was sent to a treatment center, which was a very good idea.

Mr. B. testified that his younger sister had had a DUI within the last two years. There was nothing shocking or disturbing about the incident.

Mr. S. testified that his brother had been arrested for a DUI a [l]ong time ago; he was drunk, [and he] deserved it.

Unlike these three prospective jurors, who voiced no adverse effects from their siblings predicaments, Ms. S. testified that it was terrible seeing her sister in jail. Her adverse experience highlights the prosecutors stated concern that Ms. S. may have some hostility or negative kind of perception of law enforcement. On this record, the prosecutors proffered reason for striking Ms. S. did not apply just as well to Ms. M., Mr. B., or Mr. S. (Miller-El, supra, 545 U.S. at p. 241.)

Defendant notes that five of the sitting jurors had family members who had suffered DUIs or worse. Juror 11 and his son had both been arrested for DUIs. Juror 11 had no problem with his own arrest, and believed his sons arrest was a blessing, in that it changed his life amazingly.

Juror 6s husband had been arrested for a DUI and had gone to jail for a few months. She believed the prosecutor and the court had been fair.

Juror 9 had had a DUI some years previously while a high school student. The police and the court treated [him] quite well.

One of Juror 2s best friends had been arrested for domestic violence, failed to complete a batterers treatment program, and was placed on house arrest. Juror 2 believed the friend probably got lucky to have received nothing more severe than house arrest. Juror 2 had another friend who had been arrested for a DUI.

Juror 10s son had been convicted of domestic abuse. The juror believed his son had been treated in a reasonably fair manner.

In short, none of the sitting jurors described their family members experiences with the criminal justice system in terms comparable to those used by Ms. S. Nothing suggests that the dismissal of Ms. S. was racially motivated. Defendants Wheeler-Batson motion was properly denied.

II

Defendant contends the trial court imposed an upper term sentence in a manner contravening Blakely v. Washington (2004)542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856]. We are not persuaded.

Cunningham held that under Californias Determinate Sentencing Law the middle term is the statutory maximum which a judge may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 873].) Thus, except for a prior conviction, any fact that increases the penalty for a crime beyond the middle term must be tried to the jury and proved beyond a reasonable doubt. (Ibid.)

The Attorney General asserts that defendant has forfeited the sentencing issue because he did not raise it in the trial court. Although imposition of sentence preceded not only the recent decision in Cunningham but also the high courts decision in Blakely, the Attorney General contends that defendants failure to object should not be excused because he, like the defendant in Blakely, could have argued that he was entitled to a jury trial on sentencing issues based upon the high courts earlier decision in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435].

In People v. Black (2007) 41 Cal.4th 799 (Black II), the California Supreme Court concluded that, at least with respect to sentencing proceedings similar to the one here at issue, preceding the Blakely decision, a claim of sentencing error premised upon the principles established in Blakely and Cunningham is not forfeited on appeal by counsels failure to object at trial. (Id. at p. 812.) We thus proceed to the merits of defendants contention.

The trial court first stated: In this matter, Im going to sentence [defendant] to the high term, which is seven years, for the violation of section 246. And there are a number of reasons that I elected to do that, and, of course, I have to justify the higher term by aggravated circumstances, which I think are clearly established in this case. (Italics added.)

The trial court then considered defendants eligibility for probation and determined that this was not an unusual case in which probation should be granted. ( 1203, subd. (e)(2).)

The trial court next addressed defendants prior record, as follows: And while the defendant is youthful, 23, somewhat youthful, and while his record is not truly significant, on the other hand, his record is not that de minimis either, in that we have a battery in 2002 [sic; 2001], in which his anger resulted in [him] and his father assaulting a person, fellow worker. And while that person was still on the ground, continued to assault that person, causing injury. So while it was a misdemeanor, it is still a violent offense.

Then we have the interesting case in May of 2001, where he is convicted of a misdemeanor of false -- 476, involving some kind of false paper in this case. They are described as counterfeit hundred-dollar bills, and he has four of them.

He is committing that while he still has a 242 pending just a few months since that earlier arrest. And the interesting thing to me, among the fact that that is a crime of some sophistication and boldness, is that the security people, when they apprehended him, they handcuffed him and hooked him to some kind of a bench while they went to fill [out] the reports.

Well, he was undaunted by this, or unaffected by this, because he proceeds to screw -- unscrew a bolt so that he can free himself and take off. That indicates a state of mind which is, catch me if you can. And when you catch me, Ill be out of here, if you dont tie me down pretty tightly.

Of course, we also have in this case is [sic] a refusal to identify himself and his factual, in fact, misidentification to avoid arrest in the beginning of this case. So all those show an attitude that makes his record, while not major, still [] notable and justifies, among other reasons, the denial of probation and refusal to grant probation.

The trial court then turned to the present case, in which it identified several aggravating circumstances. These included a threat of great bodily harm and callousness (Cal. Rules of Court, rule 4.421(a)(1)),^[7]some level of planning (rule 4.421(a)(8)), instigation of an incident involving others (rule 4.421(a)(4)), and engaging in grossly dangerous conduct that indicates a serious danger to society (rule 4.421(b)(1)).

After addressing all of these factors, the trial court concluded: And so I will at this time, it is the judgment and sentence of this [c]ourt that the defendant is committed to the state prison for the term of seven years, which is the higher term for the aggravating reasons I have presented. (Italics added.)

Under established authority, the same fact may be used both to deny probation and to support imposition of an upper term sentence. (Black II, supra, 41 Cal.4th at p. 817, citing People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12.) Here, the court used defendants prior record to justify the denial of probation and refusal to grant probation, and it relied on the aggravating reasons I have presented, necessarily including that prior record, to justify the upper term. We thus reject defendants contention that the court relied on a number of factors, all related to the [present] crime, to the exclusion of defendants prior convictions. (Italics added.)^[8]

The court in Black II explained that, under the line of high court decisions beginning with Apprendi, supra, 530 U.S. 466, and culminating in Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856], the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is legally essential to the punishment (Blakely, supra, 542 U.S. at p. 313), that is, to any fact that exposes a defendant to a greater potential sentence than is authorized by the jurys verdict alone (Cunningham, supra, 549 U.S. at p.___ [127 S.Ct. at p. 863]). The Sixth Amendment question, the Court has said, is whether the law forbids a judge to increase defendants sentence unless the judge finds facts that the jury did not find (and the offender did not concede). [Rita v. United States(2007) 551 U.S. ___, ___ [168 L.Ed.2d 203, 215, 127 S.Ct. 2456, 2466, italics in Rita.] For this reason, we agree with the Attorney Generals contention that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (Black II, supra, 41 Cal.4th at p. 812, italics in original.)

In this case, the trial courts finding of aggravating factors related to the present offenses did not violate defendants right to jury trial because the single aggravating circumstance of his prior convictions renders him eligible for an upper term sentence.

The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.] [R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. [Citation.] (Black II, supra, 41 Cal.4th at p. 818.)

The determinations whether a defendant has suffered prior convictions, and whether those convictions are numerous or of increasing seriousness (Cal. Rules of Court, rule 4.421 (b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court. (McGee, supra, 38 Cal.4th at p. 706.) (Black II, supra, 41 Cal.4th at pp. 819-820, fn. omitted, italics added.)

Defendants first prior adult offense occurred in February 2001 and yielded a misdemeanor battery ( 242) conviction in September 2001. A battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. ( 243, subd. (a), italics added.)

Defendants second prior adult offense occurred in May 2001 and yielded a misdemeanor conviction of passing a fictitious bill ( 476) in June 2001. A person who passes such a bill with the requisite intent is guilty of forgery. ( 476.) Forgery is punishable by imprisonment in the state prison, or by imprisonment in the county jail for not more than one year. ( 473, italics added.)

Applying the methodology of Black II, misdemeanor forgery is more serious than misdemeanor battery because the jail term for the former may be twice as long as for the latter.

Thus, the record supports a finding that defendants prior offenses were of increasing seriousness, even though his corresponding convictions were rendered in the opposite order. Although the trial court did not expressly find increasing seriousness, it properly included defendants priors in its litany of aggravating circumstances.^[9]

Because defendants prior convictions rendered him eligible for the upper term sentence he received, there was no Cunningham error in this case.

Disposition

The judgment is affirmed.

DAVIS , J.

We concur:

SIMS , Acting P.J.

HULL, J.

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^[1] Hereafter, undesignated section references are to the Penal Code.

^[2]People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson).

^[3] At trial, defendant also cited the prosecutions peremptory challenge of Mr. H. On appeal, defendant does not claim error with respect to that challenge.

^[4] On voir dire by the trial court, Ms. P. stated that she was a tax programmer assistant at the Franchise Tax Board. She indicated that she would prefer not to disclose where she lives. She further indicated that she did not live within eight blocks of the crime scene or in a neighborhood with a noticeable number of drive-by shootings.

^[5] The ambiguity is no less real when considered, as defendant urges, in the context of the current epidemic of identity theft.

^[6] Contrary to defendants contention, the record does not show that Mr. S. himself had suffered a DUI. Mr. S. stated, My brother was arrested for DUI. The court asked, You? and Mr. S. repeated, My brother was arrested for DUI.

^[7] Hereafter, references to rules are to the California Rules of Court.

^[8] Perhaps for this reason, defendant does not discuss the prior convictions in his supplemental brief.

^[9] Alternatively, it is not reasonably probable that a trial court, applying Black II, would fail to conclude that the prior offenses were of increasing seriousness. (E.g., People v. Davis (1995) 10 Cal.4th 463, 552; People v. Champion (1995) 9 Cal.4th 879, 934 [failure to state reasons for sentencing was harmless error].)