Filed 10/16/13 P. v. Willis CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,                                                          B245061

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      No. SA078622)
         v.

MANUEL WILLIS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Antonio
Barreto, Jr., Judge. Affirmed and remanded.
         Law Offices of John F. Schuck and John F. Schuck, under appointment by the
Court of Appeal, for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen, Supervising
Deputy Attorney General, and Esther P. Kim, Deputy Attorney General, for Plaintiff and
Respondent.


                                     _____________________________
       A jury convicted defendant and appellant Manuel Willis of three counts of second
degree robbery (Pen. Code, § 211) 1 but found not true allegations he was armed with and
personally used a handgun (§§ 12022, subd. (a)(1), 12022.5, subd. (a)).2 In a separate
proceeding, the trial court found defendant had suffered a prior conviction under the three
strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), a prior serious or violent
conviction (§ 667, subd. (a)), and served prior prison terms (§ 667.5, subds. (a)-(b)).
Defendant was sentenced to a total term of 15 years in state prison, consisting of the
upper term in count 1 of five years, doubled pursuant to the three strikes law, plus a five-
year enhancement under section 667, subdivision (a). Sentencing on the prior prison
term findings was stayed.
       In his timely appeal, defendant contends: (1) he was denied his state and federal
constitutional rights to a representative and impartial jury because the trial court
erroneously denied his motions under Batson v. Kentucky (1986) 476 U.S. 79 (Batson)
and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) to prevent the prosecution from
striking five Black jurors; and (2) the trial court erroneously denied his request to strike a
prior serious and violent felony conviction allegation pursuant to People v. Superior
Court (Romero) (1996) 13 Cal.4th 497 (Romero). We affirm the judgment but remand
with directions to correct errors in the abstract of judgment.


                                           FACTS


       Defendant and another man robbed a Metro PCS cell phone store in Hawthorne
the evening of August 27, 2011. Police focused on defendant as a suspect because he left
his phone behind in the store and his fingerprints were on a contract he had been filling
out before the robbery. Defendant and his accomplice entered the store, and defendant


       1   All further statutory references are to the Penal Code unless otherwise stated.
       2 The same jury acquitted defendant’s cousin Brandon Willis on all three counts
of robbery.


                                               2
pretended to be interested in purchasing a new phone. Two employees, a male and a
female, were at the counter, and a third employee was in the renovation area in the back
of the store.
       While defendant was filling out a contract for a new phone, he pulled his shirt up
and showed the female employee what appeared to be a gun in his waistband. Defendant
told the employee to “get [her] hands away from the keyboard [because he was] about to
rob the place.” She complied. Defendant gathered the three employees and directed one
of the male employees to take him to the safe at the back of the store. Defendant and the
employee were unable to open the safe because the employee did not know the
combination. The employee was afraid because defendant started holding his right hand
inside his pants as if he had a gun and said, “Don’t make me shoot you.”
       Defendant testified the gun was not real. It was an “airsoft gun” that looked real,
and that he was “high” on drugs the day of the robbery. He admitted showing the gun to
the employee so he would comply. Defendant pulled the gun out from his waistband but
concealed the front of the gun with his finger so that the employee would not see the
orange tip, which would have shown the gun was a replica. Defendant told his
accomplice to “smoke the bitch” if the female employee moved. Two customers entered
the store during the robbery but left abruptly when defendant looked out of the back
office and said, “You all just got caught up in some shit.”
       Defendant filled a bag with about $10,000 worth of cell phones that were kept in
the back office. Defendant walked the male employee back to the front of the store and
directed the employees to open the cash registers, telling the female employee, “Hurry up
. . . don’t make me want to shoot you.” Defendant and his accomplice left the store with
the cell phones, blue tooth devices, and approximately $2,000 in cash.




                                             3
                                      DISCUSSION


Batson/Wheeler Motions


       Defendant contends the trial court committed reversible error under
Batson/Wheeler by finding no prima facie case of discrimination based on the
prosecutor’s use of peremptory challenges to excuse a total of five Black jurors during
jury selection. We disagree.
       The standard for reviewing a Batson/Wheeler motion is well established. State
and federal constitutional authority imposes a three-step inquiry: “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.]” (People v. Lenix (2008) 44 Cal.4th 602, 612-613 (Lenix).)
       The trial court’s determination that the prosecution’s motive for the challenge was
nondiscriminatory presents a question of fact, which we review using the substantial
evidence standard. (Hernandez v. New York (1991) 500 U.S. 352, 364–365; Lenix, supra,
44 Cal.4th at pp. 613-614.) Assessing the credibility of a prosecutor’s race-neutral
explanations is uniquely a function of the trial court. The court can measure the
credibility of a proffered rationale by a number of factors, including the prosecutor’s
demeanor, the reasonableness of the explanations, and whether they have some basis in
accepted trial strategy. (Ibid.; Miller-El v. Cockrell (2003) 537 U.S. 322, 338-339
(Cockrell).)




                                              4
       The trial court ruled that defendant failed to make a prima facie case of purposeful
discrimination as to each of his Batson/Wheeler challenges. With one exception,3 the
prosecutor stated on the record her race-neutral reasons for excusing each juror. After
jury selection but before testimony began, the court restated the basis for denying
defendant’s four Batson/Wheeler motions, describing race-neutral reasons why each juror
was excused. The court also noted the composition of the final jury, which included
three Black women and one Black man. In the court’s view, the number of Blacks on the
final jury was “disproportionate as to the population, and disproportionate as to the
number of people [the court] had in the entire voir dire to begin with.”
       Because the prosecutor identified nondiscriminatory reasons for exercising each
peremptory challenge, it is unnecessary to determine whether defendant established a
prima facie showing of a discriminatory purpose. (People v. Riccardi (2012) 54 Cal.4th
758, 786.) “‘Accordingly, we express no opinion on whether defense counsel established
a prima facie case of discrimination and instead skip to Batson’s third stage to evaluate
the prosecutor’s reasons for dismissing [the] African-American prospective jurors.’
[Citations]” (Id. at p. 787.)
       We examine the identified reasons for challenging the five excused Black jurors
with these principles in mind. We find no merit to defendant’s contentions that the
reasons were pretextual or reflected a discriminatory purpose.




       3 The prosecutor did not offer any reasoning for excusing one juror because the
court found defendant’s motion untimely as to that juror. Later, the trial court identified
its own race-neutral reasons for why the juror could be excused.



                                             5
Juror 3A4


       The trial court initially found untimely defendant’s motion as to Juror 3A because
the juror had already been excused well before defendant made a motion as to Jurors 3A
and 12B. The parties disagree about whether defendant adequately preserved the issue of
timeliness for this appeal. However, defendant did not raise the issue of timeliness in his
opening brief and only argued the prosecutor’s dismissal of Juror 3A was racially
motivated. Absent a showing of good cause, we will not consider an argument raised for
the first time in an appellate reply brief. (Authority for California Cities Excess Liability
v. City of Los Altos (2006) 136 Cal.App.4th 1207, 1216, fn. 2.) Ultimately, the court did
make findings identifying race-neutral reasons for excusing Juror 3A. Because defendant
does not offer a convincing argument that the reasons are invalid or pretextual, we find
the court’s implied denial of defendant’s Batson/Wheeler motion as to Juror 3A is
supported by substantial evidence.
       The prosecutor did not offer any reason for excusing Juror 3A, but the trial court
identified two different race-neutral reasons, impliedly finding defendant failed to make a
prima facie case that the prosecutor’s peremptory challenge was racially motivated.
Juror 3A was a Black female attorney who clerked for a summer in the public defender’s
office. A peremptory challenge may be exercised where the juror’s responses suggest a
pro-defense or pro-prosecution bias. (Wheeler, supra, 22 Cal.3d at p. 275.) Juror 3A
also acted strangely, fidgeting and unable to sit still. According to the court, “Some
people are fidgety, but that manner of acting standing alone made her stand out, in the
court’s eye, from anybody else.” A juror may be validly excused based upon body
language, facial expressions, hunches, and even for arbitrary reasons as long as those



       4  We refer to the excused jurors simply as “jurors,” rather than as “prospective
jurors,” for the sake of brevity and clarity. We also identify jurors by the number where
they were seated in the jury box, together with a letter to signify whether the juror
replaced a prior juror in that seat. So, for example, Juror 12B took seat 12 in the jury box
after Juror 12A was excused.


                                              6
reasons are not discriminatory. (See People v. Turner (1994) 8 Cal.4th 137, 165
(Turner), overruled on different grounds in People v. Griffin (2004) 33 Cal.4th 536, 555,
fn. 5; Wheeler, supra, at p. 275.) Both of the court’s observations about Juror 3A provide
substantial evidence of valid, race-neutral reasons for excusing that juror.


Juror 12B


       Juror 12B is a Black man who had previously served on a civil jury that was
unable to reach a verdict, as well as on a hung criminal jury. Juror 12B had been in the
minority on both cases.
       The prosecutor dismissed Juror 12B based on his prior experience on civil and
criminal juries that had been unable to reach verdicts and because Juror 12B was in the
minority on both cases. The trial court stated the same reason for denying the motion.
Prior experience on a hung jury is a valid reason for excusing a potential juror, as it
“constitutes a legitimate concern for the prosecution, which seeks a jury that can reach a
unanimous verdict.” (Turner, supra, 8 Cal.4th at p. 170.) The prosecutor also explained,
“He sat there during this entire process just looking forward, looking very upset about
being here, and not participating other than the fact that he answered [the court’s]
questions.” Absent evidence to the contrary, this is also a valid, race-neutral reason for
excusing a juror. (See, e.g., People v. Reynoso (2003) 31 Cal.4th 903, 925-926 (Reynoso)
[accepting prosecutor’s demeanor-based reason for excusing a juror “were neither
inherently implausible, nor affirmatively contradicted by anything in the record”].)


Juror 1A


       Juror 1A is a Black woman. Her responses to questions posed by the trial court
were brief, but they revealed a possible bias against the police. When asked whether
anyone close to her had a connection with the criminal justice system, she responded,
“Three of my family members are involved in a crime.” She simply responded “yes”


                                              7
when the court asked her whether she thought any of those people were not treated fairly
by law enforcement. Her responses to the court’s efforts to explore her concerns
demonstrate that she was not forthcoming with details:
       “Q: Okay. Let’s talk about that. Is that a family member, or friend, or what?
       “A: Family member.
       “Q: Okay. You don’t have to tell me the name of the person, just how close a
relative to you?
       “A: Close.
       “Q: Sorry?
       “A: My daughter’s father.
       “Q: Okay. And what was it about what happened there, you know, that made you
think, or somebody think, that maybe that person wasn’t treated fairly? Let me try it
another way. What kind of crime was it?
       “A: It was a weapons charge.
       “Q: Okay. Now, was it a situation where the person felt that possessing the
weapon, if that’s what they did, wasn’t really a crime? Or did they feel the police
searched them improperly in order to find it? What was it about?
       “A: The search.
       “Q: Okay. Thank you. All right.”
       Defense counsel later asked the entire panel some questions about the truthfulness
of police officers. “Does anyone here believe . . . that a police officer could also lie?”
“Does anyone here have a problem thinking that an officer might lie?” Juror 1A did not
respond verbally.
       Defendant argued to the trial court and also contends on appeal that the
prosecutor’s failure to pose any questions to Juror 1A is evidence of discriminatory
intent. The court compared Juror 1A’s answers to the answers of other jurors and found
no prima facie case that the prosecutor’s peremptory challenge was racially motivated. A
party’s failure to “engage in meaningful voir dire” on a topic important to that party can
suggest the stated reason for dismissing a juror is pretextual. (People v. Lewis (2008) 43


                                              8
Cal.4th 415, 476 (Lewis), citing Miller-El v. Dretke (2005) 545 U.S. 231, 246.) The court
may nevertheless find a party’s stated reasons for excusing a juror credible when the
party has not asked any questions of the juror. (Lewis, supra, at p. 477 [prosecutor could
reasonably believe that voir dire would not alleviate concerns about juror].)
       The prosecutor did not ask Juror 1A any questions, but she did have an
opportunity to observe the juror’s responses to questions posed by the trial court and
defense counsel. She explained she excused Juror 1A based on the juror’s “overreaction”
to defense counsel’s question about whether police officers lie. “Her reaction was such
that she believes, of course police lie . . . . It was more like police are liars.” The court
asked for more detail, and the prosecutor’s law clerk explained, “She rolled her eyes and
kind of moved her head back three times in a much more distinctive way than any other
juror who responded to the language.”
       The prosecutor also explained that Juror 1A appeared to feel very strongly that her
daughter’s father was mistreated by the system and hesitated when asked whether close
friends or relatives had been involved in the criminal justice system. Bad feelings about
the police can be a valid reason for exercising a peremptory challenge. (People v.
Johnson (1989) 47 Cal.3d 1194, 1215.) In fulfilling its obligation to make a sincere and
reasoned effort to evaluate the prosecutor’s explanation, “the trial court is not required to
make specific or detailed comments for the record to justify every instance in which a
prosecutor’s race-neutral reason for exercising a peremptory challenge is being accepted
by the court as genuine. This is particularly true where the prosecutor’s race-neutral
reason for exercising a peremptory challenge is based on the prospective juror’s
demeanor, or similar intangible factors, while in the courtroom.” (Reynoso, supra, 31
Cal.4th at p. 919.)
       Comparing Juror 1A’s answers to the answers given by other jurors, the trial court
concluded there was no purposeful discrimination. Before trial started, the court
reiterated its finding of no prima facie case, stating it believed the prosecutor’s
explanation that the challenge was based on the juror’s skepticism of law enforcement
and her physical demeanor.


                                               9
Juror 1C


       Juror 1C5 is a Black woman. When asked whether anything made her feel like she
could not listen to the evidence and make a decision without favoring one side or another,
she responded that she believed her cousin was wrongly considered an accomplice in a
robbery. Her cousin was the driver of the vehicle but purportedly did not have the same
intent to commit the robbery. The trial court explained the concept of aiding and abetting
and asked Juror 1C if the information changed her opinion of whether her cousin was
treated fairly. Juror 1C responded, “Not really.”
       The prosecutor explained she exercised a peremptory challenge based on
Juror 1C’s experience and feelings about her cousin’s case. “She still believed—believes
that her cousin was wrongly charged and convicted. [¶] . . . And even after the [trial]
court explained to her how a driver . . . could be guilty . . . of aiding and abetting, or of
anything that was charged against the actual perpetrators of the crime, she still did not or
could not agree with the court. I think she understands the concept of aider and abettor,
but I think her feelings are really strong about what happened to her cousin.” Despite
efforts to explain to the juror the aider and abettor theory of liability, the court noted that
Juror 1C “still indicated she felt it was unfair that her cousin was treated the way she was
in that matter.”
       Part of the prosecution’s strategy at trial was to demonstrate that defendant’s
accomplice aided and abetted defendant. A juror’s feelings about the fairness of that
theory of criminal liability would be a valid, race-neutral reason for exercising a
peremptory challenge. (See People v. Calvin (2008) 159 Cal.App.4th 1377, 1386
[“skepticism about the fairness of the criminal justice system is a valid ground for
excusing jurors”].) The credibility of a prosecutor’s race-neutral explanation is measured




       5 Juror 1C was originally in seat 15 when the court questioned her, and so the
record identifies this juror interchangeably as Juror 1 and Juror 15.


                                              10
by a number of factors, including “whether the proffered rationale has some basis in
accepted trial strategy.” (Cockrell, supra, 537 U.S. at p. 339.)


Juror 9A


       Juror 9A is a Black woman whose son had spent 13 months in custody for a
weapon possession charge. She claimed that her son was “in the wrong place at the
wrong time.” Pressed further, she stated that she blamed the police for her son’s
conviction. When the prosecution asked her if she thought her son was mistreated by the
police, she answered “I never said that he was mistreated, but I felt like they—he should
have—he shouldn’t have taken the blame for what wasn’t been up to him.”
       Juror 9A felt law enforcement officers were disrespectful on a separate occasion
when they chased an intruder into her apartment and did not give her sufficient
explanation as to why they were chasing the intruder. The trial court noted this “in and of
itself . . . [was] a ridiculous comment” since one would assume law enforcement officers
would be called if someone intruded into their home.
       The prosecution unsuccessfully moved to excuse Juror 9A for cause and then
exercised a peremptory challenge. The prosecutor referred back to her motion to excuse
the juror for cause to give a race-neutral reason for exercising the peremptory challenge.
She was concerned that Juror 9A was “clearly in some kind of denial about her son’s
illegal activities” and “blames the police for her son being in jail.” A juror’s feelings and
responses about a close relative’s negative interactions with law enforcement can be a
valid, race-neutral reason for a peremptory challenge. (People v. Adanandus (2007) 157
Cal.App.4th 496, 509 [prosecutor entitled to excuse juror from panel based on inference
drawn from juror’s responses to questions about her son’s criminal history that she was
not being forthright].)
       The trial court validly denied each of defendant’s four Batson/Wheeler motions.
Substantial evidence supports the court’s findings that the prosecutor was not motivated




                                             11
by race when she exercised a peremptory challenge as to the five Black jurors described
above.


Romero Motion


         Defendant contends the trial court abused its discretion in failing to strike his prior
conviction for attempted robbery pursuant to section 1385 and Romero, supra, 13 Cal.4th
497. Defendant argues he falls outside the spirit of the three strikes law because his prior
strike took place almost nine years earlier, and his actions in both the prior and current
offenses were driven by a painful medical condition, neurofibromatosis. We find no
merit in this argument.
         Section 1385 provides the trial court with discretion to strike a prior felony
conviction allegation in furtherance of justice. (Romero, supra, 13 Cal.4th at pp. 529-
530.) The court “must consider whether, in light of the nature and circumstances of his
present felonies and prior serious and/or violent felony convictions, and the particulars of
his background, character, and prospects, the defendant may be deemed outside the
scheme’s spirit, in whole or in part, and hence should be treated as though he had not
previously been convicted of one or more serious and/or violent felonies.” (People v.
Williams (1998) 17 Cal.4th 148, 161 (Williams).) A trial court must enter a statement of
reasons in the minutes of the court when dismissing a prior conviction; however, it is not
required to “‘explain its decision not to exercise its power to dismiss or strike.’” (People
v. Carmony (2004) 33 Cal.4th 367, 376 (Carmony).)
         This court reviews a ruling upon a motion to strike a prior felony conviction under
a deferential abuse of discretion standard. (Williams, supra, 17 Cal.4th at p. 162.) The
defendant bears the burden of establishing the trial court’s decision was unreasonable or
arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978
[presumption that trial court acts to achieve lawful sentencing objectives].) “Where the
record demonstrates that the trial court balanced the relevant facts and reached an
impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s


                                               12
ruling . . . .” (People v. Myers (1999) 69 Cal.App.4th 305, 310.) “[A] trial court does not
abuse its discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.)
       The trial court’s focus was “to try and determine from the defendant’s prior
conduct and what happened over time leading up to this case and what happened in this
case, whether he falls outside the spirit of the law.” Defendant was convicted of
attempted robbery in 2003 and then went to prison again on a felony conviction for
possession of narcotics in 2005. The court noted that defendant committed the current
offense while still on parole from his 2005 conviction, and he was having other problems
on parole. According to his parole officer, defendant was associating with known gang
members and tested positive for phencyclidine (PCP).
       Considering the facts of the current offense, the trial court emphasized that
defendant “was the primary actor in this case. He was the one that was . . . feigning the
presence of a weapon. He was the one that took possession of the property from the
victims, and apparently he’s the one that distributed the property . . . .” The court
disagreed with defense counsel’s characterization of the case as unsophisticated, pointing
out that it is not a sign of lack of sophistication “when you’re driving around looking for
a place to hit with the express intent that you are going to commit a robbery. And you’re
bringing with you what, apparently was a fake gun in order to instill fear in the people.
And then rounding them up in order to make good your crime and your escape.”
       The trial court also considered and rejected the argument that defendant’s actions
were driven by his drug addiction: “If being a drug abuser is enough, then we can forget
about the three strikes law because most people that are committing serious or violent
felonies have drug problems or alcohol or some kind of substance abuse because,
principally, that’s just the reason they do it.”
       In light of the factors considered, the trial court’s decision was not “so irrational or
arbitrary that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at
p. 377.) Accordingly, we hold that it did not abuse its discretion in denying defendant’s
Romero motion.


                                               13
Sentencing Errors


       We invited the parties to submit letter briefs addressing whether the abstract of
judgment correctly reflected the sentence imposed. The trial court imposed a five-year
consecutive sentence under section 667, subdivision (a) and either did not impose or
stayed enhancements under section 667.5, subdivisions (a) and (b). However, the
abstract reflects a five-year consecutive sentence under section 667.5, subdivision (b),
one stayed enhancement under section 667, subdivision (a), and two stayed
enhancements under section 667.5, subdivision (c).
       Defendant first contends the abstract of judgment should be corrected to reflect
one enhancement under section 667, subdivision (a) for a consecutive term of five years.
Defendant also contends the trial court erred in staying the enhancements under
section 667.5, arguing they must be stricken, rather than stayed. We agree with both
points and remand with directions to strike the enhancements under section 667.5 and
prepare an amended abstract of judgment reflecting a five-year consecutive sentence
under section 667, subdivision (a) to the Department of Corrections and Rehabilitation.
(See People v. Jones (1993) 5 Cal.4th 1142, 1149-1153 [remanding with directions to
strike the section 667.5, subdivision (b) enhancement].)




                                            14
                                     DISPOSITION


       The case is remanded for the trial court to correct sentencing errors consistent with
the directions stated above. In all other respects, the judgment is affirmed.




              KRIEGLER, J.




We concur:




              TURNER, P. J.




              KUMAR, J.*




*     Judge of the Los Angeles County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


                                             15
