Filed 8/14/14 P. v. West CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A138978
v.
SHEILA I. WEST,                                                      (Alameda County
                                                                     Super. Ct. No. C170111)
         Defendant and Appellant.


         Sheila I. West appeals after a jury found her guilty of attempted voluntary
manslaughter (Pen. Code, §§ 192, subd. (a), 664), 1 possession of a firearm by a felon
(§ 29800, subd. (a)(1)), and assault with a firearm (§ 245, subd. (a)(2)). On appeal, she
argues the trial court erred in denying her Wheeler/Batson motion. (People v. Wheeler
(1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79.) We reject this argument,
but agree with appellant’s contention that sentencing errors require remand.
                        FACTUAL AND PROCEDURAL BACKGROUND
         Appellant, who had a prior felony conviction, fired several gunshots at a woman
during an argument. 2 In an amended information, the district attorney charged appellant
in count one with attempted second-degree murder (§§ 664, 187, subd. (a)), with
allegations that she personally and intentionally discharged a firearm (§ 12022.53,
subd. (d)) and personally inflicted great bodily injury (§ 12022.7); in count two with
         1
             Undesignated code references are to the Penal Code.
         2
        Because the issues raised on appeal deal solely with jury selection and
sentencing, the facts of appellant’s underlying crimes need not be recited in detail.


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assault with a firearm (§ 245, subd. (a)(2)) with allegations of personal firearm use
(§ 12022.5, subd. (a)) and great bodily injury (12022.7, subd. (a)); and in count three with
possession of a firearm by a felon (§ 29800, subd. (a)(1).)3
       During jury selection, the prosecutor excluded two prospective jurors, F.B. and
C.H., who, like appellant, were African-American women. C.H. was a Bay Area native
who recently lost her job in the accounting department at a law firm and started taking
night classes at a community college. Her significant other was a security guard who
owned a gun. She stated she had no feelings about police officers that would affect her
ability to be fair.
       F.B. was a chemical engineer who was retiring in one week. She had
unsuccessfully requested a hardship discharge because she planned to move to Colorado
to take care of her parents. Her son was a certified, legal marijuana grower in Colorado.
She reported she has neither negative nor positive feelings about police that would affect
her ability to be fair. However, as a 15-year-old in New Orleans, she and her brothers
were stopped by a police officer as they walked through a white neighborhood. She
described herself as having been “traumatized” when the encounter occurred. She
reported she has a good friend who is a sheriff’s deputy in Colorado whom she had talked
to about work a couple of times; another friend is a public defender in Florida whom she
rarely had talked to about work. Her houses in Colorado and Oakland had both been
burglarized, but she did not report the incident in Oakland because she suspected her
son’s friend did it and did not think reporting it would “make a difference.”
       The prosecutor used her fourth peremptory challenge to strike C.H. and her ninth
to strike F.B.; thereafter, appellant’s counsel made a Wheeler/Batson motion.
       The trial court did not find the necessary prima facie showing for the motion, and
a jury was selected. After the close of trial, the jury found appellant guilty in count one
of the lesser included offense of attempted voluntary manslaughter (§§ 192, subd. (a),



       3
           The information also alleged that appellant had multiple prior felony convictions.


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664), guilty in counts two and three as charged, and found the weapon and great bodily
injury allegations to be true. Appellant was sentenced to a total term of 10 years.4
       Appellant filed a timely notice of appeal.
                                       DISCUSSION
                                 I. Wheeler/Batson Claim
       The use of peremptory challenges to eliminate prospective jurors based on group
bias violates the equal protection clause of the Fourteenth Amendment to the United
States Constitution and the right of a criminal defendant to a trial drawn from a
representative cross-section of the community under article I, section 16 of the California
Constitution. (Batson v. Kentucky, supra, 476 U.S. at p. 89; People v. Wheeler, supra,
22 Cal.3d at pp. 276–277.)
       When a party makes a motion challenging a peremptory strike on these grounds,
trial courts follow the established, three-part Wheeler/Batson test for demonstrating
purposeful discrimination: “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.’ [Citation.] 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.’ ” (Johnson v. California
(2005) 545 U.S. 162, 168.)
       A defendant satisfies the requirements of the first step of a Wheeler/Batson motion
“by producing evidence sufficient to permit the trial judge to draw an inference that
discrimination has occurred.” (Johnson v. California, supra, 545 U.S. at p. 170.) An
inference is a “ ‘conclusion reached by considering other facts and deducing a logical
consequence from them.’ ” (Id. at p. 168, fn. 4.)


       4
        The court also ordered appellant to pay $3,000 in victim restitution as well as a
$241 restitution fine.


                                               3
       In ruling on whether a prima facie showing has been made, trial judges must use
their “ ‘ “powers of observation, their understanding of trial techniques, and their broad
judicial experience” ’ ” to consider “ ‘all circumstances of the case.’ ” (People v.
Howard (1992) 1 Cal.4th 1132, 1155.) Since the court observes counsel throughout voir
dire and uses such observation as a basis for ruling, its decision is given “ ‘considerable
deference’ ” on appeal. (Ibid.)
       We review the trial court’s ruling on the prima facie showing for substantial
evidence. (People v. Avila (2006) 38 Cal.4th 491, 541.) Where a trial court has
concluded the defense failed to make out a prima facie case, a reviewing court “should
consider the entire record of voir dire of the challenged jurors” to determine whether
evidence “support[s] the trial court’s ruling.” (People v. Gray (2005) 37 Cal.4th 168,
186; People v. Howard, supra, 1 Cal.4th at p. 1155.) Thus, “if the record ‘suggests
grounds upon which the prosecutor might reasonably have challenged’ the jurors in
question, we affirm.” (Howard, supra, at p. 1155.)
       It is not disputed that both prospective jurors were African-American women, a
cognizable group under Wheeler. (People v. Bell (2007) 40 Cal.4th 582, 597.) When
appellant’s counsel made the motion, he argued there were very few African-Americans
on the panel and the prosecutor removed C.H. and F.B. without a sufficient basis. The
court noted that there were still two other African-American women on the panel and
only two out of the prosecutor’s nine peremptory challenges were used against African-
American women. The court recalled the other seven peremptory challenges were
against three white males, one person of Indian descent, two white females, and one
Asian male.
       When appellant’s counsel made the Wheeler/Batson motion after the prosecutor
struck F.B., the court conceded it did not recall “anything remarkable one way or
another” about C.H. Although it ultimately concluded there had been no prima facie
showing, the court allowed the prosecutor to make a record under People v. Gray, supra,
87 Cal.App.4th 781. The prosecutor said she would restrict herself to matters not
appearing on the record and stated that C.H. was wearing a “very revealing” tank top


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although the weather was cold. The prosecutor stated this was “not proper” attire for a
courtroom.
       A juror may reasonably be dismissed for wearing inappropriate clothing. (See,
e.g., People v. Ayala (2000) 24 Cal.4th 243, 265 [“idiosyncratic dress and demeanor”
may justify peremptory challenges]; People v. Wheeler, supra, 22 Cal.3d at p. 275 [a
juror’s clothes or hair length may justify a peremptory challenge].) This is a race-neutral
ground for the prosecutor’s decision to strike C.H.
       The court enumerated many race-neutral reasons for the prosecutor’s decision to
exercise a peremptory challenge against F.B. The first was F.B.’s past experience with
the New Orleans police that left her “traumatized.” The court could recall no other
remaining juror on the panel who had had a similar experience. Appellant argues that
excusing a prospective juror because she was a victim of racial discrimination is itself a
form of discrimination. However, appellant cites no authority for that proposition.
“ ‘[E]very brief should contain a legal argument with citation of authorities on the points
made. If none is furnished on a particular point, the court may treat it as waived, and
pass it without consideration.’ ” (People v. Wilkinson (2004) 33 Cal.4th 821, 846, fn. 9.)
We treat this argument as waived. Appellant also contends that F.B.’s bad experience
with the police was 30 years old and it occurred in New Orleans—not Oakland. Even
though the event occurred three decades prior, the prosecutor may reasonably have been
concerned that this encounter, which was more negative than any other juror’s
experience, would subtly bias F.B. against any police testimony. In a case such as this
one, where police testimony played a role, F.B.’s experience in New Orleans could
provide substantial evidence supporting the trial court’s ruling.
       The court also recalled that F.B.’s son farms and sells marijuana. Further, the
court noted that F.B. had failed to report a burglary of her home in Oakland, creating
reasonable concern because “someone who’s upholding the law would want somebody to
be prosecuted” in such a situation. This provides additional race-neutral evidence




                                             5
supporting the trial court’s ruling. Based on its observations5 and experience, the court
reiterated no prima facie case had been made. We agree with respondent: the record of
voir dire and the court’s elaboration of possible reasons support the finding that there was
an insufficient showing to raise an inference of discrimination with regard to F.B.6
       As respondent argues, “[g]iven that the challenge to F.B. was reasonable in light
of the record, appellant’s Wheeler motion lost much of its force.” (See People v. Mai
(2013) 57 Cal.4th 986, 1076 (conc. opn. of Liu, J.) [noting the significance of the pattern
of the prosecutor’s decision to strike three black jurors was diminished by fact that the
prosecutor gave credible reasons for striking two out of three].) We agree: since there
were many race-neutral reasons to strike F.B. on the record, we are inclined to trust the
prosecutor’s reason for striking C.H. due to inappropriate dress.
       Appellant argues against each of the proffered reasons given by the trial court for
not finding a prima facie case. However, each reason does not exist in a vacuum. When
considered together, they constitute substantial evidence justifying the trial court’s ruling.
(See, e.g., People v. Jones (2013) 57 Cal.4th 899, 918 [holding that “the persuasive
power” of all of the prosecutor’s reasons for exclusion has a greater force than the
appellant’s individual reasons against each].)
                                     II. Sentencing Errors
       Appellant argues and respondent agrees that the trial court committed sentencing
errors as to counts two and three.
       When sentencing appellant to count two, assault with a firearm (§ 245,
subd. (a)(2)), the court stated, “The [firearm] use clause is § 12022.5(a), and I picked the
middle term of four years, and then I forgot to mention, count two is found on the

       5
        The court engaged in a comparative analysis regarding whether any jurors
remained on the panel who had had similar experiences to F.B. and concluded there was
none. The court added, “My test is always . . . if this were a white person, would I still
excuse them?”
       6
         Additionally, respondent sets out another race-neutral reason to excuse F.B. in its
briefing: she had requested a hardship discharge to leave and care for her parents; the
prosecutor may have worried F.B. would not be focused on the case.


                                              6
[section] 245 because of [section] 654 [requiring that a convicted defendant not be
punished for the same act under more than one provision of the Penal Code], that can’t be
opposed. So that’s just surplusage.” From this explanation, it appears that the court
stayed the execution of count two. This is a sentencing error because the court failed to
first pronounce sentence before staying the execution of it. (People v. Crabtree (2009)
169 Cal.App.4th 1293, 1327.)
       In count three, possession of firearm by a felon (§ 29800), the court failed to select
the lower, middle, or upper term and failed to specify the term imposed. (§ 1170,
subd. (b).) The court stated, “The 8 months that she would be liable for on the 12021,
I’m going to run that concurrent.” The court appeared to intend to impose a concurrent
term of eight months (apparently based on one third of the middle term of two years).
However, the rule requiring a sentence of one third of the middle term applies to
sentences consecutive, rather than concurrent, to the principal term. (§ 1170.1, subd. (a).)
“Because concurrent terms are not part of the principal and subordinate term computation
under section 1170.1, subdivision (a), they are imposed at the full base term, not
according to the one-third middle term formula, even though they are served at the same
time.” (People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3.)




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                                      DISPOSITION
          We remand for resentencing on count two so the court may impose the sentence
and then stay it. We also remand for resentencing on count three so the court may
impose a full low, middle, or upper term as a concurrent term. In all other respects, we
affirm.




                                                 SIMONS, Acting P.J.



We concur.




NEEDHAM, J.




BRUINIERS, J.




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