Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SCE249592
ORDER MODIFYING OPINION AND DENYING REHEARING
HUFFMAN, Acting P. J.
THE COURT:
It is ordered that the opinion filed in this case on December 21, 2007, be modified as follows:
The third paragraph on page 18 beginning "Moreover, as to CY" through the end of that paragraph on page 19 is deleted and the following two paragraphs are inserted in its place:
Moreover, regarding CY, even if a comparison were made under Miller-El, supra, 545 U.S. 231 with Juror No. 11, whom Miller claims is the most similarly situated nonblack seated juror to CY to use to show that the prosecutor excused CY because of her race, such analysis does not prove purposeful discrimination on this record. Although both CY and Juror No. 11 had ex-boyfriends with drug problems caused by crystal methamphetamine and had agreed their boyfriends' behavior was not excused by the drugs, unlike CY, Juror No. 11 had two children, had previously served as a juror in a criminal case that had reached a verdict and had one relative who worked as a deputy sheriff and another who worked as a senior volunteer patrol officer with the police department. In addition, Juror No. 11 had no real awareness at the time of her relationship about the extent of her ex-boyfriend's drug addiction, and he had never done "anything terrible to anybody" while on drugs, whereas CY stayed with her ex-boyfriend even though she knew he had a drug problem and was committing crimes, including assault, for which he was arrested and imprisoned. Thus, a side-by-side comparison of CY and Juror No. 11 reveals that there were pertinent and legitimate dissimilarities between the two prospective jurors from which the prosecutor could honestly believe they were really not "similarly situated." (Miller-El, supra, 545 U.S. at p. 247; Huggins, supra, 38 Cal.4th at p. 233.)
Furthermore, the prosecutor had also peremptorily challenged at least six other jurors who either had a substance abuse problem or knew of a family member or friend who did. The prosecutor's decision to retain Juror No. 11 and other jurors who had relatives or friends with substance abuse problems may well have been motivated by countervailing factors in their background that lessened concerns about their potential bias to either party. Miller simply has not shown how a comparative juror analysis reveals any racially motivated striking of jurors in this case.
There is no change in judgment.
Appellant's petition for rehearing is denied.