Opinion
A127943
08-25-2011
THE PEOPLE, Plaintiff and Respondent, v. ENRIQUE DAVALOS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. C161195)
Appellant Enrique Davalos was convicted by jury of two counts of attempted murder and two counts of assault with a deadly weapon. Davalos challenges his conviction on the ground of Batson/Wheeler error, arguing that the prosecutor exercised two peremptory challenges of prospective jurors on the basis of race in violation of the Fourteenth Amendment to the United States Constitution and article I, section 16 of the California Constitution. We uphold the trial court's finding that the challenges were not race-based. Davalos also argues the court erred in failing to strike certain sentencing enhancements. The People concede the error. We therefore order the abstract of judgment modified to strike the challenged enhancements and otherwise affirm the judgment.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
I. FACTUAL AND PROCEDURAL BACKGROUND
Davalos was charged by information with two counts of attempted murder of Marcel Honeycutt and Carlos Guajardo on November 15, 2008 (Pen. Code, §§ 664, subd. (a), 187, subd. (a); counts 1 and 2), and two counts of assault with a deadly weapon, a razor, against Honeycutt and Guajardo on the same date (§ 245, subd. (a)(1); counts 3 and 4). As to all four counts, it was alleged that Davalos personally inflicted great bodily injury on the victims (§ 12022.7, subd. (a)) and personally used a deadly or dangerous weapon (§ 12022, subd. (b)(1)).
All statutory references are to the Penal Code unless otherwise indicated.
The case was tried to a jury in January and February 2010. The trial evidence showed that on November 15, 2008, at about 10:30 p.m., Davalos approached Guajardo from behind in the area of the MacArthur BART station parking lot. Guajardo thought the person who approached him was pulling on his rosary, but when he looked down he saw a lot of blood and when he grabbed his neck his finger went inside his throat. He looked up and saw Davalos facing him with a razor in his hand saying, "Hey, hey" in an aggressive tone. Guajardo ran, passed out a few blocks away, and was taken to the hospital where he was treated for five days. At the time of the trial, he had a scar on his neck, his voice was lower, and he periodically woke up at night in pain.
At about 10:45 p.m. on the same date, Honeycutt was walking in the area of the MacArthur BART parking lot when he saw Davalos stagger and fall to the ground. He tapped Davalos on the shoulder, asked if Davalos was alright, and was waved off. As Honeycutt walked away, he heard someone approach him from behind and turned to see Davalos with his arm extended toward Honeycutt's neck making a slicing motion. Honeycutt stumbled backward, felt a burning sensation in his neck, saw that he was bleeding, and realized he had been cut. When he looked up, he saw Davalos waving his arms as if he was going to attack Honeycutt again. Honeycutt ran to a nearby motel, where a motel clerk assisted him. At the time of trial, he had a scar from the attack and was unable to feel the left side of his jaw.
At about 11:00 p.m. on the same evening, BART station agent Nancy Brown saw Davalos in a bloody shirt leaning against a BART ticket-vending machine trying to insert a razor blade in the dollar bill slot. At about the same time, Oakland Police Officer Stephen Mitchell saw Davalos in the area of the ticket machine approaching a woman with something metallic in his hand. Mitchell pointed his gun at Davalos and ordered him to lie on the ground and open his hands. After Mitchell made several similar commands and fired his Taser gun twice, Davalos complied and several razor blades fell out of his left hand.
The Batson/Wheeler Hearing
Trial commenced on January 19, 2010, with jury voir dire conducted from January 25 to January 28, 2010. After the jury was impaneled, the court noted that defense counsel had previously raised a Batson/Wheeler objection at an unreported sidebar conference and invited counsel to make his motion on the record. Defense counsel objected to the challenge of Panelist No. 129 as based on both her race and her combined race and gender (African-American female). He argued that the prosecutor's challenge of Panelist No. 107 also had no apparent justification other than the panelist's race. The court found that Davalos had made a prima facie showing under Wheeler, requiring the prosecution to justify its challenges.
We refer to jurors and prospective jurors by the three digit juror identification number provided at the time of voir dire to protect their privacy. (See, e.g., Code Civ. Proc., §§ 206, 237; People v. Bennett (2009) 45 Cal.4th 577, 618-619; Cal. Rules of Court, rule 8.332(b).) Following the Supreme Court's guidance, we refer to members of the venire panel who were not ultimately accepted by the court and counsel as prospective jurors or panelists rather than jurors. (See People v. Lenix (2008) 44 Cal.4th 602, 608, fn. 4 (Lenix).)
Counsel conceded that the prosecutor's challenge of a third African-American (Panelist No. 111) had a discernible nonracial basis. She said she had been sexually assaulted by a police officer. A fourth African-American panelist (Panelist No. 139) was excused on a peremptory challenge by the defense.
The prosecutor defended his challenge of Panelist No. 107 because his answers were "very terse," he "seemed in some ways upset with the process" and "seemed to stare over at me." He defended his challenge of Panelist No. 129 because she had difficulty with the concept of inferring intent from a person's actions, and because of her job and assertive character. He also questioned whether Panelist No. 129 was actually African- American. He noted that an African-American remained impaneled on the jury and that he had passed the jury with African-Americans on the panel.
After hearing the prosecutor's explanation of reasons and arguments of counsel, the court denied the motion, finding no purposeful discrimination.
The Verdict
The jury found Davalos guilty of all four counts and found the enhancements true. The court sentenced Davalos to an aggregate term of 16 years, eight months: a nine year upper term for count 1 plus three years for the great bodily injury enhancement and one year for the weapon use enhancement; a consecutive term of two years four months for count 2 plus one year for the great bodily injury enhancement and four months for the weapon use enhancement. Sentences on the other counts were stayed.
II. DISCUSSION
Davalos's sole challenge to his conviction is his claim that the prosecution exercised peremptory challenges to prospective jurors on a racially discriminatory basis. A. Governing Law
The California and federal Constitutions forbid a prosecutor from excluding prospective jurors from a jury for a racially discriminatory purpose. (Batson, supra, 476 U.S. at pp. 84-89, 95-96; Wheeler, supra, 22 Cal.3d at pp. 276-277.) The prosecution may not exercise peremptory challenges solely on the basis of presumed group bias, i.e., on the presumption "jurors are biased merely because they are members of an identifiable group distinguished on racial . . . or similar grounds." (Wheeler, supra, 22 Cal.3d at p. 276.) "The exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal." (People v. Silva (2001) 25 Cal.4th 345, 386 (Silva).)
"The Batson three-step inquiry is well established. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. (Rice v. Collins (2006) 546 U.S. 333, 338.) The three-step procedure also applies to state constitutional claims. [Citations.]
"A prosecutor asked to explain his conduct must provide a ' "clear and reasonably specific" explanation of his "legitimate reasons" for exercising the challenges.' (Batson, supra, 476 U.S. at p. 98, fn. 20.) 'The justification need not support a challenge for cause, and even a "trivial" reason, if genuine and neutral, will suffice.' [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citations.]" (Lenix, supra, 44 Cal.4th at pp. 612-613, parallel citations & fns. omitted; see also People v. Reynoso (2003) 31 Cal.4th 903, 917 (Reynoso).)While it may be difficult for a prosecutor to articulate the reasons for a challenge that is based in part on instinct, " 'a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.' (Miller-El [v. Dretke (2005)] 545 U.S. [231,] 252.)" (Lenix, at pp. 624-625.)
The Ninth Circuit granted habeas relief to the defendants in Reynoso, supra, 31 Cal.4th 903, on the ground that the California Supreme Court's determination that there was no Batson error was contrary to clearly established federal law and based on an unreasonable determination of the facts. (Reynoso v. Hall (9th Cir. 2010) 395 Fed.Appx. 344, 347-348.) The Attorney General did not petition for a writ of certiorari and the Ninth Circuit's decision became final. However, we are bound by the California Supreme Court's decision in Reynoso unless it has been overruled by a later decision of the California Supreme Court or a decision of the United States Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Plausibility is reviewed but not reweighed in light of the entire record. (Lenix, supra, 44 Cal.4th at p. 621, citing Miller-El v. Dretke, supra, 545 U.S. at pp. 265-266.) We review the trial court's finding for substantial evidence, giving " 'great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.]' " (Lenix, at pp. 613-614; Snyder v. Louisiana (2008) 552 U.S. 472, 477 (Snyder).)We presume the prosecutor acted in a constitutional manner. (People v. Burgener (2003) 29 Cal.4th 833, 864.)
"At the third stage of the Wheeler/Batson inquiry, 'the issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.' [Citation.] In assessing credibility, the court draws upon its contemporaneous observations of the voir dire. It may also rely on the court's own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her. [Citation.]" (Lenix, supra, 44 Cal.4th at p. 613, fn. omitted.) " 'As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies "peculiarly within a trial judge's province." [Citations.]' [Citation.]" (Miller-El v. Cockrell (2003) 537 U.S. 322, 339.) Absent " 'exceptional circumstances,' " we defer to the credibility findings of the trial court. (Snyder, supra, 552 U.S. at p. 477.)
A trial court's stage-three finding must be affirmed if it is supported by substantial evidence. (People v. Cruz (2008) 44 Cal.4th 636, 661 (Cruz).)Davalos has the burden on appeal to demonstrate that the trial court's ruling was not supported by substantial evidence. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) He fails to do so. B. Panelist No. 129
Panelist No. 129, an African-American woman, lived in Oakland, had a master's degree, and worked in special education for the Oakland Unified School District. The previous year, her good friend was robbed and murdered in Oakland while he was walking his dog at night, and a few months previously a former student was murdered in the student's grandparent's home. No one had been arrested in either incident. The panelist said she could nevertheless keep an open mind in this case. She had a close friend in the Richmond Police Department.
The prosecution disputed Davalos's contention that Panelist No. 129 was African-American. The court made no express finding on this question, but since the court did make a finding that there was a prima facie showing of discrimination, we will presume that she was.
The prosecutor exercised its ninth peremptory challenge to excuse Panelist No. 129. The prosecutor defended his challenge of Panelist No. 129 saying that "[g]iven her position and her job and her assertive character coming across . . . in addition to her feelings which would seem difficult to grasp around this concept of intent, I thought she would invariably be the sort of juror who would be much more difficult to convince in this legal concept than other jurors, and for those grounds . . . I exercised a peremptory challenge."
It was evident that the issue of specific intent in these assaults would likely be the principal contested issue at trial, and this panelist's responses strongly suggested that she might have difficulty inferring intent from the indirect evidence of the defendant's conduct. In response to an example of circumstantial evidence of intent suggested by the prosecutor, she said that even if a person were to have dropped a bowling ball on someone's head from a height of three stories she could not be sure the perpetrator intended to kill the victim. "[I]f I'm not that person, then I don't know for sure." Despite a lengthy inquiry by the prosecutor, when asked if it was "ever possible" to determine someone's intent based on his or her actions, she said, "Sometimes yes. Sometimes no." Another response she gave added to the impression that she might have unusual difficulty arriving at a guilty verdict even with a strong prosecution showing: she said "part of the reason that I went into education is because I care deeply about people and in general am very sympathetic," which might cause her to be unusually sympathetic to a mental state defense.
Davalos countered that Panelist No. 129 also made comments suggesting a pro-prosecution bias: she worked near the MacArthur BART station and thus might identify with the victims, and two of her close associates were victims of unresolved homicides. She also said, "I think my heart would go out to the victims." However, the question before us is not whether there was substantial evidence that would support a trial court finding that this challenge was tainted by racial bias, but whether there was substantial evidence to support the trial court's actual finding that it was not tainted by racial bias. There was. C. Panelist No. 107
Davalos focuses almost the entirety of his appellate argument on the peremptory challenge exercised on Panelist No. 107. We again conclude the trial court's finding that the prosecutor's challenge to Panelist No. 107 was not race-based is supported by substantial evidence.
Panelist No. 107, an African-American male, told the court during voir dire that he lived in Oakland and worked as a doorman at an apartment building in the Russian Hill neighborhood of San Francisco. He had previously worked as a hotel concierge and in hospitality and sales, he had a high school education, and he was single. He had never been arrested or charged with a crime and had never been a victim of a crime. He used the MacArthur BART station about twice a month. The prosecutor used his first peremptory challenge to excuse this panelist.
We note that Davalos did not initially claim a discriminatory purpose when the prosecution exercised its peremptory challenge to this juror. Defense counsel indicated that he did not object at the time because "[i]t was the first peremptory and I didn't know where this was going."
The prosecutor provided essentially three reasons why he challenged Panelist No. 107: his answers were "very terse"; on questioning by the defense he said he would be "extremely" open minded but did not provide similar answers when questioned by the prosecutor; and he "seemed in some ways upset with the process" and seemed to stare at the prosecutor.
The prosecutor said Panelist No. 107's "answers, and it may not have been entirely captured by the record, but I think the record could reflect that they were very terse." The transcript of the voir dire would tend to support the prosecutor's characterization of the answers given in response to both the prosecution and defense questions. Moreover, the prosecutor's attempts to get this panelist to expand on some of his answers were not very productive. For example, when the prosecutor tried to get the panelist to expand on his thoughts about the rule that a single credible witness is sufficient evidence to prove a crime, he received four responses along the lines of, "If that's the law, then that's the law" and "I don't have any thoughts about it." When he repeatedly asked the panelist about whether he would discount a witness's testimony based on his background, the most the panelist said was that it was wrong both morally and legally. The prosecutor and the trial court could reasonably characterize this pattern of responses as terse and the prosecutor could have inferred from this terseness that Panelist No. 107 was less than completely forthcoming in voir dire and thus presented a risk as a juror. (See Lenix, supra, 44 Cal.4th at p. 624 ["[v]oir dire is a process of risk assessment"].)
The prosecutor also said Panelist No. 107 was "the only juror who, when [defense counsel] followed up the question, 'can you keep an open mind,' out of every single person that we've examined here, he was the only person who voluntarily said I can be extremely open-minded, which is interesting in light of the fact that based upon [defense counsel's] questioning he sort of even indicated that sometimes this is a who-done-it, sometimes this is a what-is-it case, and sort of hinted at this is more of a what-is-it case. [¶] So it's interesting to me that someone, given the context of an attempted murder charge, saying I'm extremely open-minded and with respect to my questioning not really have the same sort of response. I don't know what his issue was, but I certainly wasn't comfortable keeping him on this jury."
The prosecutor further expressed his concern that Panelist No. 107 "seemed in some ways upset with the process, and I couldn't quite put my finger on it because he seemed to equally treat myself and [defense counsel] in this same manner. He seemed to stare over at me." Defense counsel responded, "My recall of the juror is that he showed about the same amount of interest in the proceedings as other jurors. When he was being questioned, he looked at us. When he was not being question[ed], he did what a lot of jurors do. They don't pay quite a bit of attention. He wasn't reading a novel. He wasn't dozing." As noted ante, defense counsel argued that none of Panelist No. 107's answers "indicate[d] any bias for or against either side. He was really, in all aspects, as far as I can see, pretty neutral." The court denied the motion without making any specific findings on the justifications offered by the prosecution.
Davalos argued at the hearing, and again argues here, that the prosecutor also provided another reason for exercise of the challenge in an off the record chambers discussion—that Panelist No. 107 wore a rose in his lapel one day during voir dire. Davalos cites this as an " 'implausible or fantastic justification' " giving rise to an inference of discriminatory intent. (See Purkett v. Elem (1995) 514 U.S. 765, 768 (Purkett).)The prosecution made no such claim in response to the court's invitation to rebut the prima facie showing, and there is nothing before us to show the context of this purported off the record comment. In any event, the proper focus of a Batson/Wheeler inquiry is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. (See, e.g., Reynoso, supra, 31 Cal.4th at pp. 917, 924-925, citing Purkett, at pp. 768-769 [noting that prosecutor can base challenge on panelist's grooming].) "[A] 'legitimate reason' is not a reason that makes sense, but a reason that does not deny equal protection. [Citations.]." Purkett, at pp. 768-769.
The court asked no questions and made no other relevant comments or findings during the parties' arguments. At the conclusion of the hearing, the court said, "The Court finds that the exercise of the peremptory was not purposeful discrimination of a recognizable group of individuals and so then the Wheeler-Batson is denied. I think there is enough on the record for the Court of Appeal to review the statements of the jurors, but that's my finding right now." While a " ' " 'sincere and reasoned effort' " ' " in evaluating a prosecutor's justifications does not in all instances require questioning or specific findings by the trial court, the court "must carefully evaluate the reasons given in light of the whole record and ask, when necessary, probing questions." (People v. Gonzales (2008) 165 Cal.App.4th 620, 632, citing Silva, supra, 25 Cal.4th at pp. 385-386; People v. Fuentes (1991) 54 Cal.3d 707, 714-715.) It is preferable for the trial court to make express findings on the prosecutor's justifications to allow for meaningful appellate review. (People v. Fuentes, at pp. 716, fn. 5, 718-719; Lenix, supra, 44 Cal.4th at p. 621 ["[b]oth the court and counsel bear responsibility for creating a record that allows for meaningful review"].)
Evaluations of demeanor are quintessentially within the province of the trial court. (Lenix, supra, 44 Cal.4th at p. 614.) "Where . . . the trial court is fully apprised of the nature of the defense challenge to the prosecutor's challenge of a particular peremptory challenge, where the prosecutor's reasons for excusing the juror are neither contradicted by the record nor inherently implausible [citation], and where nothing in the record is in conflict with the usual presumptions to be drawn, i.e., that all peremptory challenges have been exercised in a constitutional manner, and that the trial court has properly made a sincere and reasoned evaluation of the prosecutor's reasons for exercising his peremptory challenges, then those presumptions may be relied upon, . . . notwithstanding that the record does not contain detailed findings regarding the reasons for the exercise of each such peremptory challenge." (Reynoso, supra, 31 Cal.4th at p. 929; cf. People v. Long (2010) 189 Cal.App.4th 826, 847-848 [declining to rely on implied finding that demeanor justification was valid where other stated justification was contradicted by the record].)
The trial court accepted the race-neutral justifications offered by the prosecutor for the challenge as genuine and sincere. Our review of the voir dire transcripts does not show that those reasons are either contradicted by the record or inherently implausible.
1. Comparative Analysis
In contesting the sincerity of the prosecutor's justifications for challenge of Panelist No. 107, Davalos asks for the first time on appeal that we conduct a comparative juror analysis. He points only, however, to Panelist No. 144 and argues that her answers were equally terse and that the prosecutor's failure to challenge her demonstrated that "terseness" as a justification for the challenge of Panelist No. 107 was pretextual.Panelist No. 144 was passed by the prosecution before the defense used a peremptory challenge to excuse her. Although we may engage in comparative juror analysis for the first time on appeal, there are inherent limits in doing so. (Lenix, supra, 44 Cal.4th at p. 622-624.) "There is more to human communication than mere linguistic content. . . . Myriad subtle nuances may shape it, including attitude, attention, interest, body language, facial expression and eye contact. . . . [¶] . . . When a comparative juror analysis is undertaken for the first time on appeal, the prosecutor is never given the opportunity to explain the differences he perceived in jurors who seemingly gave similar answers. [¶] Moreover, the selection of a jury is a fluid process, with challenges for cause and peremptory strikes continually changing the composition of the jury before it is finally empanelled. . . . '[T]he particular combination or mix of jurors which a lawyer seeks may, and often does, change as certain jurors are removed or seated in the jury box. It may be acceptable, for example, to have one juror with a particular point of view but unacceptable to have more than one with that view. . . .' [Citation.] [¶] . . . Each juror becomes, to a certain degree, a risk taken. Voir dire is a process of risk assessment. . . . Two panelists might give a similar answer on a given point. Yet the risk posed by one panelist might be offset by other answers, behavior, attitudes or experiences that make one juror, on balance, more or less desirable. These realities, and the complexity of human nature, make a formulaic comparison of isolated responses an exceptionally poor medium to overturn a trial court's factual finding." (Ibid.) Our obligation to perform a comparative analysis does not supplant the requirement that we " 'accord significant deference to the factual findings on the question of discriminatory intent. [Citations.]' [Citation.]" (Cruz, supra, 44 Cal.4th at p. 659.)
Davalos points to nothing in the record providing any indication of the ethnicity of Panelist No. 144.
The prosecutor did not discuss his reasons for accepting Panelist No. 144, because he had no opportunity to do so. It may well be the case that Panelist No. 144's responses during voir dire could also be fairly characterized as "terse." But there is also evidence of other nonracial factors which would explain why the prosecutor did not challenge Panelist No. 144. First, she socialized with a former prosecutor, who was also the wife of a judge. Panelist No. 107 disclosed no similar connections with law enforcement. The prosecutor may have decided that this fact made her less of a risky choice. Second, Davalos's use of a peremptory challenge to excuse Panelist No. 144 strongly suggests that something about her answers or demeanor indicated she might be favorable to the prosecution. (But see Reynoso, supra, 31 Cal.4th at p. 927 [propriety of prosecution peremptory challenges must be determined without regard to propriety of defense peremptory challenges].)
In sum, the prosecutor's failure to challenge Panelist No. 144 does not undermine the prosecutor's justification of terseness as one of the bases for his challenge of Panelist No. 107. The justification also is neither inherently implausible nor contradicted by the record. In the absence of an inherently implausible justification for a peremptory challenge or a justification that is directly contradicted by the record, we still must defer to the trial court's judgment on the credibility of the justification.
2. Statistical Disparity and Pattern of Discrimination
Davalos also urges that the prosecutor's challenges of Panelist Nos. 107 and 129 demonstrated a pattern of racial bias. He asserts on appeal that only four African-Americans were questioned in the jury box and all four of these panelists were removed from the jury by peremptory challenges. A race-based challenge to even a single juror violates a defendant's constitutional rights. (Silva, supra, 25 Cal.4th at p. 386.) However, evidence of systematic discrimination during jury selection is relevant circumstantial evidence on the question whether a prosecutor's race-neutral justification for a particular peremptory challenge is credible. Davalos asserts that three of the prosecutor's nine peremptory challenges were used against African-Americans at the time defense counsel brought the motion and that 40 jurors had been called to the box.
There are several problems with this argument. First, Davalos conceded that there were valid, nondiscriminatory reasons for the prosecution's challenge to one of the four panelists (Panelist No. 111). Second, it was the defense that challenged the fourth African-American panelist (Panelist No. 139). Further, the record, indicates that an African-American was in fact impaneled on the jury and thus that five, rather than four, African-Americans were questioned on voir dire. The prosecutor asserted at trial, and the People assert on appeal that one African-American remained on the jury and Davalos did not challenge that assertion at trial and does not in his reply brief. During the Batson/Wheeler hearing, the prosecutor said, "[T]here is in fact an African-American juror on the panel" and neither the court nor defense counsel disagreed with this statement. The parties both fail to identify the impaneled African-American juror or to discuss his or her responses during voir dire, and we cannot determine from the record which juror he or she was. This is not insignificant, and the trial court presumably took that fact into consideration when ruling on Davalos's Batson/Wheeler claim. (See, e.g., Lenix, supra, 44 Cal.4th at p. 629 ["prosecutor's acceptance of the panel containing a Black juror strongly suggests that race was not a motive in his challenge of [another Black panelist]"; citing cases]; id. at p. 631, fn. 20 [prosecutor's decision not to challenge Hispanic juror undermines claim of bias against racial minority panelists]; see also U.S. v. Canoy (7th Cir. 1994) 38 F.3d 893, 900 [court may "rel[y] on the fact that the government waived available strikes and permitted members of a racial minority to be seated on a jury to support a finding that the government did not act with discriminatory intent in striking another member of the same minority group."].)
Defense counsel initially said there were five African-American panelists and then said there were four.
The extent of Davalos's statistical showing is therefore that the prosecution removed two of five prospective African-American jurors on the basis of disputed challenges (using two of his available peremptory challenges), and that the prosecutor had an opportunity to use a peremptory challenge to excuse an African-American juror and did not. Davalos has not provided a record that would allow us to conclude otherwise. In sum, nothing in the appellate record before us demonstrates that the prosecutor's justifications for his peremptory challenge to Panelist No. 107 was pretextual or that the trial court failed to make a sincere and reasoned effort to evaluate the sincerity of those justifications based on its first-hand observation of the voir dire and of the attorney's argument in defense of the challenge. Accordingly, we must affirm the trial court's denial of the motion. D. The Sentencing Enhancements
In addition to the attempted murder charges, Davalos was charged with assault with a deadly weapon against both Honeycutt and Guajardo (§ 245, subd. (a)(1); counts 3 and 4). As to these assault charges, it was alleged that Davalos personally inflicted great bodily injury on the victims (§ 12022.7, subd. (a)) and personally used a deadly or dangerous weapon (§ 12022, subd. (b)(1)). The jury found Davalos guilty of the assault charges and found the allegations true. The court stayed sentences on both the assault convictions and the assault-related enhancements.
Davalos argues, and the People concede, that a section 12022, subdivision (b)(1) enhancement cannot be imposed when use of a deadly weapon is an element of the associated offense. (§ 12022, subd. (b)(1) [providing enhancement applies "unless use of a deadly or dangerous weapon is an element of that offense"]; People v. McGee (1993) 15 Cal.App.4th 107, 110 (McGee)[construing former § 12022, subd. (b), which was redesignated § 12022, subd. (b)(1) by Stats. 1995, ch. 377, § 8].) Specifically, it cannot be imposed when the offense is assault with a deadly weapon or by means of force likely to produce great bodily injury pursuant to section 245, subdivision (a)(1). (McGee, at p. 110.) The section 12022, subdivision (b)(1) enhancement must therefore be stricken. (McGee, at p. 117.) We shall order the trial court to modify the abstract of judgment accordingly.
III. DISPOSITION
The section 12022, subdivision (b)(1) enhancements to the section 245, subdivision (a)(1) convictions are ordered stricken and the judgment is otherwise affirmed. The clerk of the superior court shall modify the abstract of judgment accordingly and send a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
Bruiniers, J. We concur: Jones, P. J. Simons, J.