Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA280079, Barbara Johnson, Judge.
Law Offices of James Koester and James Koester for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jason C. Tran and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
A jury convicted Jose Amaya of first degree murder and dissuading a witness by force or threat and found true several special criminal street gang and firearm-use enhancement allegations. On appeal Amaya contends the trial court erred in excluding evidence directed to impeaching the credibility of the prosecution’s chief witness and evidence tending to prove a third party’s culpability for the murder. He also asserts the court erred by overruling his objection to the People’s purported use of racially-motivated peremptory challenges and failing during the sentencing proceeding to strike multiple firearm-use enhancements. We affirm.
FACTUAL AND PROCEDURAL HISTORY
1. The Information
Amaya was charged in a two count information with murder (Pen. Code, § 187, subd. (a)) (count 1) and dissuading a witness by force or threat (§ 136.1, subd. (c)(1)) (count 2). As to the murder count, the information specially alleged Amaya had personally used a firearm (§ 12022.53, subd. (b)), personally and intentionally discharged the firearm (§ 12022.53, subd. (c)) and, as a result of discharging the firearm, caused great bodily injury or death (§ 12022.53, subd. (d)). As to both counts, the information specially alleged the offenses were committed for the benefit of a criminal street gang (§§ 186.22, subd. (b)(1)(A) (count 1), 186.22, subd. (b)(4) (count 2)) and Amaya had suffered a prior conviction for attempted murder, a serious or violent felony within the meaning of section 667, subdivision (a)(1), as well as the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
Statutory references are to the Penal Code unless otherwise indicated.
2. The Trial
According to the evidence presented at trial, on February 18, 2004 Latrell Skinner was shot to death outside an apartment complex on West 40th Place in Los Angeles. Lewis Flint, a private security guard patrolling the apartment complex that night, identified Amaya, a member of the criminal street gang known as Dirty Old Men or DOM, as the person he saw spray painting the wall of the complex with the letters DOM and the number 40 with a line crossing out the number, a defiant challenge to The Rolling 40’s gang, a rival of DOM. Flint telephoned his brother Devone Blanche, a resident of the complex, to warn him someone was spray painting graffiti on the wall. After receiving his brother’s telephone call, Blanche stepped on to the balcony of his apartment and observed Amaya spray painting the wall. Blanche also saw a Hispanic male, whom Blanche knew by the names “Big Ese” and “Benny,” a member of the DOM gang, sitting with a female passenger in a silver car parked nearby. After he finished the graffiti, Amaya walked to the parked silver car, then returned to the complex and approached Skinner as he was walking past the complex. Amaya asked, “Where you from?” to which Skinner responded, “I don’t bang.” Skinner continued walking. Amaya shouted, “Bitch,” then shot Skinner in the back. Amaya walked to Skinner, who was lying face down on the ground, stood directly over him and shot him several more times in the back. Amaya then got in the back passenger seat of the silver car, and he and his companions drove away from the scene.
Lorena Gaeta, a friend of Amaya’s, testified she had seen Amaya at a party earlier that evening, at about 9:00 p.m. During the party, Amaya had asked to borrow her car, a four-door silver Pontiac Grand Am, telling her he needed to run an errand. Gaeta gave Amaya the keys to the car and remained at the party. She did not notice whether he had left with anyone. Amaya returned to the party with the car at 12:30 a.m and told Gaeta to return the car to the rental agency because there was something wrong with it. Although Gaeta had not experienced any problems with the car, she returned the car later that morning and exchanged it for a different rental car. Several days later, Amaya confessed to Gaeta he had “used the car for a gun-down, to gun somebody down” and threatened to harm her if she revealed that information to anyone.
Ronald Williams, the security director for the apartment complex, testified he had noticed a light-colored car double-parked across from the complex the night of the murder. Around the time of the shooting, he saw a man get out of the car and walk to the sidewalk in front of the complex and then heard the shots. Williams initially identified the man to the on-scene police officers as African-American, about 5 feet 6 inches to 5 feet 8 inches tall and weighing approximately 150 pounds. Amaya is a dark-complected Hispanic, 5 feet 11 inches tall and weighs 220 pounds. Asked about the discrepancy at trial, Williams explained he suffers from night-blindness due to cataracts and was not wearing his corrective eyeglasses that night. He conceded his description of the man’s race was a “guess.”
Los Angeles Police Officer Jeritt Severns testified as a gang expert. Severns opined the shooting was for the benefit of the DOM gang in their turf battle with the Rolling 40’s. According to Severns, the shooter would have identified Skinner, an African American, as a member of the Rolling 40’s because of his race, the area where he was walking and the colors of his clothing. Shooting a defenseless man in the back in Rolling 40’s territory was a statement by the DOM gang it could do whatever it took to control that particular area; and the graffiti painted that night on the wall of the apartment complex was intended to reinforce that impression.
The jury convicted Amaya of first degree murder and dissuading a witness by force or threat and found the gang-enhancement and firearm-use allegations true. In a bifurcated proceeding the court found true the allegation Amaya had suffered a prior conviction for attempted murder, a serious or violent felony within the meaning of sections 667, subdivision (a)(1), and the Three Strikes law. Amaya was sentenced to an aggregate state prison term of 87 years to life.
Amaya was sentenced to a base term of 25 years to life for first degree murder (count 1), doubled under the Three Strikes law to 50 years to life, plus a consecutive term of 25 years to life for the section 12022.53, subdivision (d), enhancement and an additional consecutive five-year term for the section 667, subdivision (a)(1), enhancement, for a total term on count 1 of 80 years to life. The court also sentenced Amaya to a consecutive seven-year term on count 2 pursuant to section 186.22, subdivision (b)(4)(C), which mandates a seven-year state prison sentence when the crime of dissuading a witness by force or threat (§ 136.1) is committed for the benefit of a criminal street gang. The court stayed sentence on the section 12022.53, subdivisions (b) and (c) enhancement allegations.
DISCUSSION
1. The Trial Court Did Not Err in Excluding Evidence of Gaeta’s Prior Uncharged Misdemeanor Conduct
Prior to trial Amaya sought to introduce evidence that Gaeta had been involved in money laundering, check washing and counterfeiting, each of which under the circumstances would qualify only as a misdemeanor offense under California law. Amaya’s counsel argued that Gaeta’s testimony -- that Amaya admitted he had used her car to “gun down” a person the night of Skinner’s murder -- was the most damaging evidence in the case against Amaya and therefore evidence about Gaeta’s uncharged acts of moral turpitude was critical to impeaching her credibility. Amaya’s counsel estimated the evidence of Gaeta’s uncharged misdemeanor conduct would take approximately two to three hours of court time.
The People objected to admission of the evidence, contending Gaeta had never been arrested for or charged with the offenses and thus evidence she engaged in the acts would require a parade of witnesses, ultimately creating a mini-trial on the issue. Following a hearing outside the jury’s presence, the court excluded the testimony under Evidence Code section 352. The court agreed permitting evidence of the uncharged conduct would require a substantial amount of trial time, as well as jury instructions “as to what counterfeiting is and what check washing is,” all of which “would confuse the issues in this case and would involve an undue consumption of time and would not be so probative that it would or should come in under [Evidence Code section ] 352.” Amaya contends this was error, effectively depriving him of his right to confrontation under the Sixth and Fourteenth Amendments to the United States Constitution.
Evidence Code section 352 provides, “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Amaya is correct that evidence of past misconduct involving moral turpitude is admissible to impeach a witness’s testimony even if the misconduct did not result in a misdemeanor or felony conviction. (See People v. Wheeler (1992) 4 Cal.4th 284, 297, fn. 7 (Wheeler) [Cal. Const., art. I, § 28, subd. (d), “makes immoral conduct admissible for impeachment whether or not it produced any conviction, felony or misdemeanor”]; see also People v. Castro (1985) 38 Cal.3d 301, 314 [misconduct involving moral turpitude may suggest a “readiness to lie”].) However, such evidence is subject to exclusion under Evidence Code section 352. (Wheeler, at p. 297, fn. 7.) As the Supreme Court explained, “In general, a misdemeanor -- or any other conduct not amounting to a felony -- is a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (Id. at pp. 296-297.)
The trial court engaged in precisely the analysis directed by the Supreme Court in Wheeler, supra, 4 Cal.4th 284. The court acknowledged that money laundering, check washing and counterfeiting would qualify as acts of moral turpitude, but concluded evidence that Gaeta actually had committed the acts alleged, to be provided by Amaya’s friends according to his offer of proof, would involve a “mini-trial” on this collateral issue and result in an undue consumption of time and confusion of the issues. Nothing in the record suggests the court abused its discretion in reaching that conclusion. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 [“[U]nder Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice’”].) Although Amaya’s counsel suggested he would only need two hours of trial time to present the pertinent evidence, the court found trying the issue would require multiple witnesses from several of the entities affected by Gaeta’s alleged conduct, including the bank, the theater and law enforcement, not only demanding an undue consumption of time, but also altering the focus of the trial. On this record, we cannot conclude the court’s decision to exclude the evidence of prior uncharged misdemeanor conduct under Evidence Code section 352 was an abuse of its broad discretion. (See, e.g., People v. Geier (2007) 41 Cal.4th 555, 582 [no error in excluding evidence under Evid. Code, § 352 where “admission of the evidence would have necessitated a minitrial on the question of Sloan’s whereabouts on the night of the murder thus creating the possibility of ‘confusing the issues, or of misleading the jury’”]; see also Wheeler, at p. 297, fn. 7 [when evidence purporting to show moral turpitude does not involve a prior felony conviction, “fairness, efficiency, and moral turpitude become more complicated issues”; “[c]ourts may take these facts into account when deciding under Evidence Code section 352 whether to admit evidence other than felony convictions for impeachment”].)
In light of our conclusion the trial court properly exercised its discretion under Evidence Code section 352 to exclude the impeachment evidence, Amaya’s contention exclusion of the evidence violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution is misplaced. “Although the right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility, ‘trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination.’ (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [106 S.Ct. 1431, 1435, 89 L.Ed.2d 674].) In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352.” (People v. Quartermaine (1997) 16 Cal.4th 600, 623; see also Holmes v. South Carolina (2006) 547 U.S. 319, 326 [126 S.Ct. 1727, 164 L.Ed.2d 503] [“[w]hile the Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury”].)
2. The Trial Court Did Not Commit Prejudicial Error in Excluding Evidence of a Prior Shooting in the Area
Amaya also sought to introduce evidence that Skinner’s cousin, Christopher Houston, had been injured in a shooting incident with an African-American man in a light-colored car at the apartment complex six weeks prior to Skinner’s murder. The incident took place after Houston was involved in an altercation with a female Rolling 40’s gang member or affiliate. Amaya argued the evidence permitted an inference the same third party who had shot and injured Houston also shot and killed Skinner six weeks later. The court excluded the evidence on relevance grounds, concluding it was too attenuated in time. Amaya contends the court’s ruling is erroneous and violated his right to due process under the Fifth and Fourteenth Amendments to the United States Constitution.
A criminal defendant has the right to present evidence of third party culpability if the evidence is capable of raising a reasonable doubt about his or her own guilt. (People v. Bradford (1997) 15 Cal.4th 1229, 1325.) As the California Supreme Court recently explained, “‘The principles of law are clear. . . . [T]he standard for admitting evidence of third party culpability [is] the same as for other exculpatory evidence: the evidence [has] to be relevant under Evidence Code section 350 and its probative value [can]not be “substantially outweighed by the risk of undue delay, prejudice, or confusion” under Evidence Code section 352.’ [Citation.] ‘At the same time, we do not require that any evidence, however remote, must be admitted to show a third party’s possible culpability. . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.’” (People v. Geier, supra, 41 Cal.4th at p. 581; see also Bradford, at p. 1325 [“[T]o be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to the defendant’s guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352”].)
Amaya contends the evidence Houston was shot by an African-American man driving a white car six weeks prior to Skinner’s murder at the same location could raise a reasonable doubt as to the identity of the shooter. He observes Ronald Williams had initially identified the shooter as an African-American man; and evidence of another shooting by an African-American man at the apartment complex supported that identification while undermining other evidence that Amaya, who is Hispanic, was the shooter. The trial court did not abuse its discretion in ruling a shooting at the same location six weeks earlier by an unidentified African-American man in a different col ored car, without much more, is not capable of raising a reasonable doubt about Amaya’s culpability as the shooter. (See generally People v. Hall (1986) 41 Cal.3d 826, 833 [the law does “not require that any evidence, however remote, must be admitted to show a third party’s possible culpability”].)
Amaya’s federal constitutional argument is similarly unpersuasive. Although “[f]ew rights are more fundamental than that of an accused to present witnesses in his [or her] own defense” (Chambers v. Mississippi (1973) 410 U.S. 284, 302 [93 S.Ct. 1038, 35 L.Ed.2d 297]), evidence proffered to show third party culpability “‘may be excluded without violating the federal Constitution where it does not sufficiently connect the other person to the crime, as, for example, where the evidence is speculative or remote, or does not tend to prove or disprove a material fact in issue at the defendant’s trial.’” (Holmes v. South Carolina, supra, 547 U.S. at p. 327; see also People v. Prince (2007) 40 Cal.4th 1179, 1243 [“‘[W]e . . . reject defendant’s various claims that the trial court’s exclusion of the proffered [third party culpability] evidence [under Evid. Code, §§ 350, 352] violated his federal constitutional rights to present a defense . . . . There was no error under state law, and we have long observed that, “[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s [state or federal constitutional] right to present a defense”’”].)
In any event, even if the exclusion of the evidence were error, the court’s ruling was not prejudicial. The evidence of Amaya’s guilt was strong. Blanche, who knew Amaya from the neighborhood and had seen him many times, identified Amaya as the shooter. The car in which Blanche saw the shooter flee the scene matched Gaeta’s car, which Amaya had borrowed the night of the shooting. Gaeta returned the car to the rental agency the following day at Amaya’s express request; and Amaya admitted to Gaeta he had used the car to “gun someone down.” Although Williams had initially identified the shooter as African-American, he admitted he suffered from night blindness and told the jury his description was based on “presumption” rather than direct observation. On this record it is not reasonably probable Amaya would have received a more favorable verdict had the evidence of a shooting at the apartment complex six weeks prior to Skinner’s murder been admitted. (People v. Hall, supra, 41 Cal.3d at p. 836 [improper exclusion of possible third party culpability evidence evaluated under harmless error analysis articulated in People v. Watson (1956) 46 Cal.2d 818, 837]; People v. Boyette (2002) 29 Cal.4th 381, 427-428 [Watson harmless error standard applies to exclusion of evidence on relevance grounds]; People v. Cunningham (2001) 25 Cal.4th 926, 999.)
Citing Holmes v. South Carolina, supra, 547 U.S. 319, Amaya asserts the improper exclusion of third party culpability evidence is subject to harmless error analysis for federal constitutional error under Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] [federal constitutional error requires proof of harmlessness beyond a reasonable doubt]. In Holmes the United States Supreme Court held the exclusion of third party culpability evidence pursuant to an arbitrary rule that serves no legitimate purpose -- in that case, a South Carolina law authorizing the exclusion of third party culpability evidence if it did not “overcome the forensic evidence against the [defendant] to raise a reasonable inference of [defendant’s] own innocence” -- deprives the defendant of his constitutional right to a fair trial. (Holmes, at pp. 324, 331.) Contrary to Amaya’s contention, Holmes did not hold that any error in the trial court’s exercise of its broad discretion to weigh the probative value of third party culpability evidence under well-established rules of evidence necessarily transforms what is traditionally a state law error (analyzed under People v. Watson, supra, 46 Cal.2d 818) to one of federal constitutional dimension. (See fn. 4, above.)
3. The Prosecutor Did Not Improperly Exercise Peremptory Challenges
a. Governing law
The exercise of peremptory challenges to remove prospective jurors on the sole ground of group bias violates both the California and the United States Constitutions. (People v. Ward (2005) 36 Cal.4th 186, 200, citing People v. Wheeler (1978) 22 Cal.3d 258, 276-277 and Batson v. Kentucky (1986) 476 U.S. 79, 89 [106 S.Ct. 1712, 90 L.Ed.2d 69].) The procedure and substantive standards trial courts properly use when considering motions challenging peremptory strikes are now well-established: “‘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.”’” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1008-1009.) “It is not until the third step that the persuasiveness of the justification becomes relevant.” (Purkett v. Elem (1995) 514 U.S. 765, 768 [115 S.Ct. 1769, 131 L.Ed.2d 834].) “[A]lthough a party may exercise a peremptory challenge for any permissible reason or no reason at all [citations], ‘implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.’” (People v. Huggins (2006) 38 Cal.4th 175, 227.)
“We review the trial court’s ruling on purposeful racial discrimination for substantial evidence. [Citation.] It is presumed that the prosecutor uses peremptory challenges in a constitutional manner. We defer to the court’s ability to distinguish ‘bona fide reasons from sham excuses.’ [Citation.] As long as the court makes ‘a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.’” (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1009.)
b. Substantial evidence supports the prosecutor’s race-neutral explanation for excusing prospective jurors numbers 26 and 31
After the prosecutor had utilized three of her first five peremptory challenges to excuse African-American prospective jurors, Amaya’s counsel objected to the prosecutor’s use of two more peremptory challenges to excuse prospective juror number 26 and prospective juror number 31, both African-Americans. The trial court found Amaya had presented a prima facie case for discrimination and heard the prosecutor’s stated reasons for the exercise of both peremptory challenges. The court then overruled the objections, finding the exercise of peremptory challenges to excuse jurors 16 and 31 was not motivated by race. The trial court also rejected Amaya’s contention that, when the voir dire answers of jurors 26 and 31 are compared to those of jurors 25 and 14, neither of whom is an African-American, it is clear the prosecutor used a stricter standard in evaluating African-American venire persons than similarly-situated non-African-American venire persons. The record supports the trial court’s ruling.
Prospective juror 26, an African-American who identified his occupation as “social work, psychology,” explained he had his own practice that involved working primarily with child victims referred to him by the Los Angeles County Department of Children and Family Services. He did not work with gang members. When the prosecutor asked how he felt about serving as a juror in a “gang case,” he replied, “I understand dynamically what gangs are to some extent and how they are formed and why people associate themselves with gangs. So I don’t necessarily have the same views that some others do.” He did not believe his decision as a juror “would be impacted based on [his] knowledge of gangs” but rather would be based on “what is presented” to him.
The prosecutor explained her reasons for excusing juror 26: “He is a psychologist. He indicated that he has information about why gangs -- in his opinion why gangs are formed based on his training and experience and why he may show different views than other jurors, which tells me that he has a psychological evaluation as to why people join gangs as opposed to them being a negative thing. It’s a family. And he has all these issues. This defendant is relatively young. He’s in his early 20’s. He counsels youngsters. I do not want any psychologist on my jury period. Especially one who has read books and information on the topic of gangs.”
Prospective juror 31, a divorced African-American woman with two children, identified her occupation as a financial counselor. Her cousin had been convicted of murder 16 years earlier but had since been released. She explained she had had contact with members of the “Sotel” street gang while she was in high school and one of her friends is married to an ex-member of the Sotel gang who is serving time in prison. When asked by the court to explain her reasons for excusing juror 31, the prosecutor stated: “First of all, let me put on the record I did not believe that individual is African-American. . . . This woman commented that her cousin was convicted of murder. She was involved with the Sotel gang when she was in high school. Those were her friends. And her friend is married to a gang member who is currently in prison. And it’s her background and her personal experiences that I do not find that she would be a good juror in this case.”
The prosecutor’s race-neutral explanation for excusing both jurors is plainly supported by substantial evidence in the record and thus is entitled to deference on appeal. (See People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1009.) Conceding as much, Amaya argues that, even though a race-neutral explanation is supported by the record, that explanation becomes highly suspect when the answers of jurors 26 and 31 are compared to the responses of similarly-situated non-African-American prospective jurors, in particular, prospective jurors 25 and 14.
“If a prosecutor’s proferred 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.” (Miller-El v. Dretke (2005) 545 U.S. 231, 241 [125 S.Ct. 2317, 162 L.Ed.2d 196]; see also People v. Avila (2006) 38 Cal.4th 491, 546-548 [utilizing comparative analysis as explained by the United States Supreme Court in Miller-El and upholding trial court’s finding defendant had not demonstrated purposeful discrimination].) When this analysis is presented and rejected by the trial court, our inquiry on appellate review is the same as with other issues involving claims of pretext: We consider whether substantial evidence supports the trial court’s determination the excusal was not the result of unlawful discrimination. (People v. Huggins, supra, 38 Cal.4th at p. 233 [“[T]he fundamental inquiry remains the same after Miller-El as before: is there substantial evidence to support the trial court’s ruling that the prosecutor’s reasons for excusing prospective jurors were based on proper grounds, and not because of the prospective jurors’ membership in a protected group? If so, then defendant is not entitled to relief”].)
Prospective juror 25, a single, non-African-American man who worked as a loan clerk, stated that both his brother and brother-in-law had worked in law enforcement. He did not know any gang members but said some of his friends had been in gangs before he had met them. Asked about his perception of gangs, he replied, “My knowledge of them is that there’s usually criminal activity involved, and that’s a perception that I have.” Asked by defense counsel how he would vote if it were shown Amaya was a gang member but insufficient evidence had been presented to prove Amaya’s guilt beyond a reasonable doubt, juror 25 replied, “The problem I have, my life experience is people usually associate together. So that’s my life experience. So I would bring that to a jury setting.”
Prospective juror 14, a single non-African-American woman with adult children, stated she had a cousin who was serving time in prison for murder along with the son of one of her close friends. Although her cousin was a gang member, she did not visit him in prison and had never witnessed any gang activity. She had a friend who was a Los Angeles police officer.
A comparison of the voir dire answers of prospective jurors 26 and 25 does not suggest the prosecutor’s non-discriminatory reasons for excusing juror 26 were pretextual. To the contrary, juror 26 held “different views than most people” on gangs and gang members, views that were significantly different from those held by juror 25, who expressed a pro-prosecution point of view. Moreover, juror 26 was a psychologist; his profession alone, as the prosecutor indicated, was a sufficient race-neutral ground for a peremptory excusal. (See, e.g., People v. Landry (1996) 49 Cal.App.4th 785, 790-791 [educational background in psychiatry or psychology or employment in similar profession was race-neutral explanation for exercise of peremptory challenge]; People v. Trevino (1997) 55 Cal.App.4th 396, 411-412 [peremptory exercised against venire person with experience in social services proper race-neutral reason].)
Comparing prospective juror 31 to juror 25 is also of no help to Amaya. Juror 31 was involved with gang members when she was younger; she also had a close friend who had been married to a gang member. Although juror 25 also had friends who were former gang members, he did not know them when they were gang members and expressed strong pro-prosecution views about gang members that juror 31 did not share. Nothing in the comparison undermines the court’s conclusion the prosecutor’s stated reasons for excusing juror 31 were sincere and not a pretext for discrimination.
Finally, comparing prospective juror 31 to juror 14 is similarly unpersuasive. Although juror 14, like juror 31, had a cousin that was a gang member, that “isolated and discrete” similarity does not raise the spectre of pretext when the stated reasons for juror 31’s excusal was not simply that she had a cousin in prison, but that she had been involved in high school with friends who were gang members. (See People v. Huggins, supra, 38 Cal.4th at pp. 234-236 [“isolated and discrete similarities” between rejected African-American prospective jurors, on the one hand, and non-African-American prospective jurors, on the other hand, does not compel finding of discriminatory intent when substantial evidence supports conclusion excusal was not based on the common characteristics but on other factors indicating the two prospective jurors were not similarly situated].) Thus, a comparison of jurors 31 and 14, like Amaya’s other comparisons, does not demonstrate the excusals were racially motivated.
4. The Trial Court Did Not Err in Staying Rather than Striking the Duplicative Firearm-use Enhancements
Amaya contends the court erred in staying, rather than striking, the section 12022.53, subdivision (b) and (c) firearm-use enhancements. The issue whether lesser firearm-use enhancements under section 12022.53 should be stricken, stayed or simply not imposed at all when separate firearm enhancements under sections 12022.53 are found true and the longest enhancement is imposed is currently pending before the Supreme Court in People v. Gonzalez, review granted March 14, 2007, S149898. Until directed to do otherwise, we continue to accept the reasoning of People v. Bracamonte (2003) 106 Cal.App.4th 704, 713 and find no error in the trial court’s decision to stay the lesser firearm-use enhancements. (Ibid. [when maximum § 12022.53, subd. (d), enhancement is imposed, it is error to strike lesser § 12022.53 enhancements; proper course of action under § 12022.53, subds. (f) and (h), is to impose and stay lesser § 12022.53 enhancements]; People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061-1062 [same].)
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., ZELON, J.