Filed 11/4/15 P. v. Hill CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE ,
Plaintiff and Respondent
,

v.

DARRYL BER NARD HILL , Defendant and Appellant

. B258929
(Los Angeles County Super. Ct. No. KA102950 )

APPEAL from a judgment of the Superior Court of Los Angeles County , Douglas
Sortino , Judge

. Affirmed

. David W. Scopp , under appointment by the Court of Appeal, for Defendant and Appellant

. Kamala D. Harris , Attorney General, Gerald A. Engler , Chief Assistant Attorney General, Lance E. Winters , Senior Assistant Attorney General, and Michael R. Johnsen and Wyatt E. Bloomfield, Deputy Attorney s General, for Plaintiff and Respondent

.

_______________________ ____2

Appellant Darryl Bernard Hill appeals from his judgment of conviction of one
count of second degree robbery ( Pen. Code, 1 § 211 ) and one count of assault by means likely to produce grea t bodily injury (§ 245, subd. (a)(4) ) , with true finding s on the

sentence enhancement allegation s that Hill personally inflicted great bodily injury (§ 12022.7, subd. (a)). On appeal, Hill contends the pros ecution improperly exercised
one of its peremptor y challenges to excuse an African

- American prospective juror in
violation of Batson v. Kentucky (1986) 476 U.S. 79 ( Batson ) and People v. Wheeler (1978) 22 Cal.3d 258 ( Wheeler ). Hill also claims the evide nce was insufficient to support the jury’s finding s that he personally inflicted great bodily injury on the
victim during the commission of the charged crimes

. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. The Charges
The Los Angeles County District Attorney charged Hill with one count of second degree robbery (§ 211 ) and one count of assault by means likely to produce great bodily injury (§ 245, subd. (a)(4) )

. As to each count , it was a lleged that Hill personally inflicted great bodily injury during the commission of the offense (§ 12022.7, subd

. (a) ). It also was alleged that Hill had served three prior prison terms within the meaning of section 667.5, subdivision (b), and had two prior serious or violent felony convictions within the meaning of section 667, subdivision (a)(1), section 1170, su bdivision (h)(3), and/or the “Three Strikes” law (§§ 667, subds. (b)

- (i), 1170.12, subds. (a)

- (d)). Hill pleaded not guilty to each count and denied the enhancement allegation s.

1 All further statutory references are to the Penal Code.3

II. The Evidence at Trial
A. Prosecution Evidence
1. Trial Testimony On August 2 3, 2 013, at approximately 3:30 p .m., Evan Jackson went to Joo’s Market, a liquor store in Pomona, California, to purchase a drink. He was carrying $1,600 in his left front pants pocket. After parking his car, Jackson spoke briefly with a group of people stan ding in front of the store. Jackson then went inside the store where he was approached by Hill . Jackson had never seen Hill before that day . The two men
had a short conversation inside the store

. Immediately after Jackson walked out of the store, he was attacked by Hill and
two other men . One of the other men initially punched Jackson on the left side of his face, causing him to fall to the ground. All three men , including Hill, then began beating
him. Jackson felt all three men hit him in his face and stomach. He also felt himself being dragged on the sidewalk and lifted off the ground. At some point, Hill reached into Jackson’s left pants pocket and took his money

. Hill then rode away on a bicy cle while
the other two men fled on foot

. After th e assault
, Jackson ’ s left eye was severely bleeding and swollen shut . Jackson’s wallet, identification card, and $1,600 were taken
from him during the assault

. Jackson was transported by ambulance to a local hospital. Due to the severity of the injury t o his left eye, however, he had to be transferred to a different hospital for treatment by an eye specialist. Jackson required surgery on his left eye. As a result of the assault, he has a permanent scar over his left eye, continues to experience blurred
vision
, and must now wear prescription glasses to correct hi s vision in the affected eye.
Pomona Police Officer Michael Lee responded to the scene following the assault

. He obtained surveillance video from the liquor store, but did not locate any suspe cts at that time. The following day, Officer Lee saw Hill on a street two blocks from the store and recognized him from the surveillance video. After Jackson positively identified Hill

as one of the assailants
, Hill was placed under arrest

.4 2. Video Eviden ce At trial, the jury was shown the surveillance video of the assault. The video shows the area in front of the liquor store from two different angles. In the video, Jackson parks his car along a sidewalk directly in front of the store. He gets out of h is car and speaks to a group of people standing outside, including a woman in orange who was identified at
trial as Jolene Hall. As Jackson is talking to the group, Hi ll rides up on a bicycle, parks it near the store entrance, and walks inside. While Jac kson and Hill are inside the store, a group of three people congregate in front of the store and appear to be waiting for
someone to come outside . The group consists of Jolene Hall, a Hispanic man in a dark shirt and dark p ants, and an African

- American ma n in a white shirt and dark pants. A
few minutes later , Hill walks out of the store followed by Jackson. As Jackson is walking toward his car, the Hispanic man in a dark shirt and dark pants approache s Jackson and punches him once i n the left side of his face, knocking
Jackson to the ground. The Hispanic man then gets on top of Jackson and continues hitting him. Within a few seconds, Hill joins the assault. Hill initially bends over Jackson’s legs and appears to rifle through his pockets. With the His panic man still on top of Jackson, Hill moves toward Jackson’s head area and continues bending over him. The Hispanic man a nd Hill begin dragging Jackson on the ground as a third man, the
African

- American man in a white shirt and dark pants, joins the ass ault. All three men strugg le with Jackson on the ground while Jolene Hill walks around the group, appearing to encourage the assault. As Hill is bent over Jackson’ s head, Hi ll appears to apply direct physical force to Jackson’s head or upper body while t rying to restrain him

. Hill abruptly stands up, walks away from the group, and mounts his bicycle. The Af rican

- American
man kicks Jackson twice in his fa ce , and then walks over to Hill and appears to hand an item to him . Hill rides away on his bicycle w hi le Jolene Hall and the two other men flee
on foot in the same direction. Jackson is left lying face down on the ground.5

B. Defense Evidence Hill testified on his own behalf. On the afternoon of August 23, 2013, Hill rode his bicycle to Joo’ s M arket. When he arrived, Hill saw Jackson talking to a group of people outside the store. Hill knew two men in the group from the neighborhood. He
also knew a woman in the group, Jolene Hall, who appeared to be upset by something
Jackson had said to her. Hill d id not know Jackson and had never seen him before. Once inside the store, Hill had a brief conversation with Jackson. They then walked out of the store together where the group of people was waiting outside. One of the men in the

group said something to Jackson and socked him. That same man and another man then began beating Jackson. Hill was shocked by the assault and dropped a small bag of crack
cocaine that he had been carrying in his hand. Hill initially thought about trying to help Jackson, but d ecided he did not want to get involved. He did, however
, want to retrieve his bag, which had fallen on the ground and was underneath Jackson. Hill reached under Jackson to get his bag, but did not reach into Jackson’ s pockets. He then left on his bicycl e. Hill denied assaulting Jackson or robbing him during the incident

. Hill admitted that he had two prior felony convictions for commercial burglary and one prior felony conviction for making criminal threats.

III. The Jury Verdict The jury found Hill guilt y as charged of second degree robbery (§ 211 ) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4) ). The jury also found the allegation s that Hi ll personally inflicted great bodily injury on Jackson during the
commission of each crime to be true (§ 12022.7, s ubd. (a)). F ollowing the sentencing hearing, Hi ll filed a timely notice of appeal from his judgment of conviction.6 DISCUSSION
I. The Batson/Wheeler Motion On appeal, Hill first challenges the trial court’s denial of his Bats on/Wheeler motion. Hill, who is African

- American, contends that the prosecution violated his federal and state constitutional rights to equal protection and a jury drawn from a representative

cross

- section of the community by exercising one of its perempt ory challenges to excuse
an African

- American prospective juror. We conclude that this claim lacks merit.

A. Relevant Proceedings At the start of jury selection in Hill’s trial , a panel of 20 prospective jurors was
seated in the jury box for voir dire. Prosp ective Juror No. 12 (Juror Identification No. 8692) o n the panel w as an African

- America n female. She described herself as IT manager for a packaging company. She was single, did not have any children, and did not live with anyone else who was employed. She had served on three prior juries . In
two of the cases

― a criminal trial involving secon d degree murder and a civil trial involving personal injury

― the jury reached a verdict. The third case

― a criminal trial involving domestic abuse

― resulted in a hung jury. In response to the trial court’s question about whether any panel member had been

a victim of a crime, Prospective Juror No. 12 reported that her car had been vandalized 15 years earlier and that the police were unable to find the perpetrator , but she thought that “they did what they could.” Prospective Juror No. 12 did not respond when the panel

was asked as a whole whether any of them had any relatives or friends in law enforcement, or any relatives or friends who had been arrested for , charged w ith , or convicted of a crime. During voir dire by the parties, the prosecutor asked Prospective
Juror No. 12 and an other juror the following hypothetical: “ [T]he court tells you the laws. Speed limit is 65 miles per hour. You believe it should be 95. Evidence showed that the defendant was going 75. Can you apply the laws as the court instructs?” Prospective Juror No. 12 answered, “Yes.” The prosecutor did not ask Prospective Juror
No. 12 any other questions during voir dire.7

Of the panel of 20 pro spective jurors, three were excused for cause. In the first round of peremptory challenges, each side excused a juror. In the second round, th e prosecutor accepted the panel with Prospective Juror No. 12 among the potentially

em paneled jurors, and d efens e counsel exercised his second peremptory c hallenge. In
the third round, the prosecutor again accepted the panel with Prospective Juror No. 12
included as a member of the jury , and d efense counsel exercised his third peremptory challenge. In the fourth r ound, the prosecutor exercised her second peremptory challenge to excuse Prospective Juror No. 12

. Defense counsel then immediately made a
Batson/Wheeler motion, challenging the prosecutor’s use of a peremptory challenge to

remove Prospective Juror No. 12

. At sidebar, d efense counsel explained the basis for his motion: “The People have exercised two peremptories at this point. However, . . . I’ve looked at the panel at large,
and . . . I believe that there’ s only two African

- American American jurors
, . . . not just the panel that we have in front of us, but I think that includes the individuals in the audience.” The trial court noted that the basis for a Batson/Wheeler motion was not the racial makeup of the panel as a whole, but “whether there’s a va lid or invalid reason for rejecting one of a particular class.” Defense counsel responded that he believed he could make a prima facie showing of discrimination “based on percentages,” and that in this case, “we have the People excluding 50 percent of the potential African

- American American jurors.” Defense counsel also stated that his prima facie case was based on the fact that “half [of] the People’s peremptories have been at this point against

. . . African

American Americans.” With respect to the cha llenge used to excuse Prospective Juror
No. 12 , defense counsel asserted : “I didn’t see the grounds, but I feel like that’s skipping a step. I feel like the prima facie case is really about percentages and I think that’s what the first step is.”
In res ponse, the trial court stated: “Well, at this point I don’t find a prima facie case. I believe there’s one very obvious reason why a prosecutor might want to excuse this juror. I know in my notes on this jury, however, in the event that I am found to be wrong on appeal if there is a verdict in this case and if there is a prima facie case, do you8

want to justify it at this point, Miss Moore?” The prosecutor replied: “Well, your honor, I would agree . . . first of all, that the opposing counsel has not l aid a prima facie case.”
The trial court interjected: “No. I’m making that ruling. At the same time I see it

. . . as a glaring reason why you might want to exercise a peremptory, but in the event that the court of appeal, if there is a conviction, wer e to find me incorrect, prima facie case, I’ve given you an opportunity right now to give me your reason.” The prosecutor then responded: “ I believe this juror, if I recall correct ly
, she had some contact or relative in contact that was in prison. I al so found her to be

– somewhat appeared to me sometimes a little distracted. I did accept the panel and had no problem with the makeup of the panel prior to other jurors being excused and just chose to invoke my peremptory at that point. ” After noting tha t Prospective Juror No. 12 “was on a hu ng jury before,” the trial court asked the prosecutor , “Did that cause you any concerns?” The prosecutor replied : “It did, but the fact that she appeared more so to me distracted and that did cause me some concern, your honor, more than any thing. She just didn’t

seem to be paying, as when I noticed,

. . . much attention.” Defense counsel pointed out
that Prospective Juror No. 12 had not responded to the court’s question on whether she knew anyone who had been ch arg ed with a crime. T he prosecutor acknowledged that she was “working off o f memory ” and did not have her notes from the first day of voir dire. After confirming that the parties had no further argument on the matter, trial court stated: “[The] court is g oing to deny the Wheeler issue at this point. The court finds that
there ’s race neutral reasons for prosecutor’s exercise of a peremptory. I also note, as I indicated, [it] seemed to me there was a basis for a prosecutor right out front that would
be the hung jury issue which to me indicates that there was no prima facie case. At
least at this point it’s only the second peremptory th e People have exercised, and [the prosecutor] did pass twice with this juror indicating her willingness to accept the jury at least at some point with this juror. So the Wheeler [motion] will be denied.”9

B. Applicable Law

“ Both the state and federal Constitutions prohibit the use of peremptory strikes to remove prospective jurors on the basis of group bias. ( Batson , supra , 4 76 U.S. at p. 89;
Wheeler
, supra , 22 Cal.3d at pp. 276

- 277.)” ( People v. Scott (2015) 61 Cal.4th 363, 383 ( Scott )

. ) “ When a defendant assert s at trial that the prosecution’ s use of peremptory strikes violates the federal Constitution, the following p roce dures and standards apply.

‘ First, the defendant mu st make out a prima facie case “ by s howing that the totality of
the relevant facts gives rise to an infer ence of discriminatory purpose.” [Citatio n.] Second, once the defendant has ma de out a prima faci e case, the “ burden shifts to the
State to explain adequately the racial exclusion” by offering permissible race

- neutral justification s 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 pu rposeful racial discrimination.” [Citation.]’ [Citations.] The identical three

step procedure applies when the challenge is brought und er the California Constitution. [Citation .] ” ( People v. Cowan (2010) 50 Cal.4th 401, 447.)

“ A prima facie case of racial discrimination in the use of peremptory challenges
is established if the totality of the relevant facts gives ‘“ rise to an infere nce of discriminatory purpose. ” ’ [Citation.]” ( People v. Thomas (2014) 5 3 Cal. 4th 771 , 793

- 794. ) Among the “types of evidence [that] may prove particularly relevant” in evaluating
whether a prima facie case of discrimination exists “ are that a party has struck most

or all of the members of the identified group from the venire , that a party has used a disproportionate number of strikes against the group, that the party has failed to engage these jurors in more than desultory voir dire, that the defendant is a member of the identified group, and that the victim is a member of th e group to which the majority of the remaining jurors belong. [Citation.] A court may also consider nondiscriminatory reasons for a peremptory challe nge that are apparent from and ‘clearly established’ in the
record [citations] and that necessarily dispe l any inference of bias. [Citations.]” ( Scott , supra , 61 Cal.4th at p. 384 .) Where “ ‘ a trial court denie[s] a [ Batson/Wheeler ] motion because it finds no prima facie case of group bias was established, the reviewing court10

considers the entire re cord of voir dire. [Citation.] “If the record ‘ suggests grounds upon which the prosecutor might r easonably have challenged’ the jurors in question, we
affirm. ”’ [Citations.]” ( People v. Panah (2005) 35 Cal. 4th 395 , 439.)
Once a defendant establishes a prima facie case of discrimination , the burden shifts to the prosecutor to provide a non

- discriminatory reason for exercising the peremptory challenge. The prosecutor “‘ need only offer a genuine, reasonably specific,

race

- or group

- neutral explanation related to the particular case being tried. [Citations.] The justification need not support a c hallenge for cause, and even a “trivial” reason, if genuine and neutral, will suffice. [Citation.] ’” ( People v. Ervin (2000) 22 Cal. 4th 48
, 74

- 75.) “‘We review a tria l court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges “‘with great restraint.’” [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give grea t deference to the trial court’s ability to distinguish bona fide
reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions
are entitled to deference on appeal. [Citations.]’” ( People v. Lenix (2008) 44 Cal.4 th 602, 613

- 614, fn. omitted.)

C. The Trial Court Did Not Err in Denying the Batson/Wheeler Motion Hill argues that the trial court erred in denying his Batson/Wheeler motion because
th e totality of the record established that the prosecution acted with a discriminatory

purpose in exercising its peremptory challenges

. He specifically a sserts that the evidence
was sufficient to support an inference of race discrimination in the pros ecuto r’s use of

a peremptory challenge to excus e Prospective Juror No. 12 . He also claims that the prosecutor’s proffered reasons for excusing Prospective Juror No. 12 were facially invalid, and thus, a pretext for impermissible race discrimination

. We conclu de that the trial court properly denied the Batson/Wheeler motion because Hill failed to demonstrate a prima face case of discrimination in the prosecutor’s decision to peremptorily excuse Prospective Juror No. 12

.11

As a preliminary matter, we address Hil l’s argument regarding the proper standard
of review. We ordinarily review the trial court’s denial of a Batson/Wheeler motion “deferentially, considering only whether substantial evidence supports its conclusions.” ( People v. Bonilla (2007) 41 Cal.4th 3 13, 341.) However, in cases where it is un clear
whether the trial court applied the correct standard in finding that the defendant failed

to state a prima face c ase of discrimination
, “ ‘ we review the record independently ’” to
determine “‘“ whether the reco rd supports an inference that the prosecutor excused a juror” on a prohibited discriminatory basis.’” ( Ibid .; see also People v. Howard (2008) 42 Cal.4th 1000, 1017 [“[w] here

. . . it is not clear whether the trial court used the
reasonable inference stan dard,

. . . we review the record independently”].) H ill

asserts that independent review is required in this case because the trial court applied an inappropriately rigorous standard by finding that Hill could not state a prima face case of
discrimination unless he could show there was “no valid reason for excusing ” Prospective
Juror No. 12

. This misconstrues the record . The trial court’s reference to the validity of
reasons for excusing a juror was made during an exchange with defense counsel about
wheth er a prima facie case could be established by showing that the only African

American on a jury panel had been excused. In response to defense counsel’s statement
that a Batson/Wheeler motion could “be based on a single peremptory,” the trial court
noted t hat
, in such a case, “ typically . . . there’s no valid reason for excusing that person.”
C ontrary to Hi ll’s claim
, t he trial court never suggested that Hi ll had to prove there was no valid reason for excusing Prospective Juror No. 12 to make a prima facie showing of
discrimination , or that the reasona ble inference standard did not apply

. The trial court’s ruling is therefore subject to the substantial evidence standard of review. In any event, even under an independent rev iew of the record, we conclude t hat the trial court correctly
determined that Hi ll failed to state a prima facie case of discrimination

. In making the Batson/Wheeler motion, Hi ll’s counsel argued to the trial court
that he had establ ished a prima face case simply by showing that the pros ecutor had
excused one of two African

- American prospective jurors in the venire. Hi ll’s counsel explained that , at the time of the motion, the prosecutor ha d “exclud[ed] 50 percent of12

the potential African

- American American jurors ” in the venire, and had exercised “ half [of] the People’s peremptories ” to strike one African

- American juror

. Hill’s counsel
asserted that he could state a prima facie case “based on [the] percentages” alone. It is

true that “[t]he exclusion by peremptory challenge of a single juror on the bas is of race

or ethnicity is an error of constitutional magnitude requiring reversal.” ( People v. Silva (2001) 25 Cal.4th 345, 386

. ) However, the prima face showing is not made merely by establishing that an excluded juror was a member of a cognizable group. ( People v.
Bonilla
, supra , 41 Cal.4th at p. 343 ; People v. Bell (2007) 40 Cal.4th 582, 598.) Rather, “in drawing an inference of discrimination from the fact one party has excused ‘most

or all’ members of a cognizable group [citation], a court finding a prima facie case is necessarily relying on an apparent pattern in the party’s challenges.” ( People v. Bell
, supra , at p. 598, fn. 3.) “Such a pattern will be difficult to discern when the number of challenges is extremely small.” ( Peo ple v. Bonilla
, supra , at p. 343, fn. 12.)
In People v. Bonilla , for instance, the prosecutor struck the only two African

Americans in a 78

- person jury pool. ( People v. Bonilla
, supra , 41 Cal.4th at p. 342.) The California Supreme Court concluded that “‘ the small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible.’” ( Id . at p. 343.) As the Court explained, “‘“the exclusion of a single prospective juror may be the product of an improper group bias. As a practical matter, however, the challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion.”’ [Citations.]” ( Ibid

. ; see also People v. Garcia (2011) 52 Cal. 4th 706 , 747 [“ While no prospective juror may be struck on impro pe r grounds, we have found it ‘ “ impossible,” ’ as a practical matter, to draw the requisite inference where only a few members of a cognizable group have been excused and no indelible pattern of discrimination appears .”] ; People v. Howard
, supra , 42 Cal.4th a t p. 1018, fn. 10 [“The challenge of one or two jurors, standing alone, can rarely suggest a pattern of impermissible exclusion.”]; People v. Bell
, supra , 40 Cal.4th

at p. 598, fn. 3 [“Although circumstances may be imagined in which a prima facie case
coul d be shown on the basis of a single excusal, . . . to make a prima facie case after the excusal of only one or two members o f a group is very difficult.”].) In this case, the13

prosecution’s use of a single peremptory challenge to excuse one of only two Afr ican

Americans in the venire was insufficient, standing alone, to establish a prima facie case. On appeal, Hill contends that his prima facie showing of discrimination was based

on other relevant facto rs an d not merely on the race of the challenged juror

. In particular,
Hill claims that a discriminatory intent could be inferred from the fact that the prosecutor failed to engage Prospective Juror No. 12 “ in more than a desultory voir dire. ” However,

as the Attorney General correctly points out , the record shows that the prosecutor engaged in relatively limited questioning of the entire panel of prospective jurors that was originally called for voir dire , and with few exceptions, she was met with one

- word responses from the jurors that she questioned. Moreo ver, t here is no requirement that a prosecutor ask a prospective juror a minimum number of questions before deciding whether to accept or excuse the juror. Nor is there any requirement that the prosecutor exercise a peremptory challenge solely on the basi s of the verbal r esponses elicited in
voir dire. As our Supreme Court has recognized, “ [a] prospective juror m ay be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idi osyncratic

reasons. [Citation.]” ( People v. Lenix
, supra , 44 Cal.4th at p. 61 3.) Indeed, a peremptory challenge may be based on “no more than a ‘hunch’ about the prospective juror [citation], so long as it shows that the peremptory challenges were exercised for
reasons other tha n impermissible group bias .” ( People v. Williams (1997) 16 Cal.4th 635, 664.) Furthermore, in ruling that Hill had failed to make a prima facie showing of discrimination, the trial court expressly found that there was a non

- discriminatory reason evident in the record for the pro secutor to excuse Prospective Juror No. 12

. Specifically,
the trial court found that Prospective Juror No. 12 ’ s prior jury service in a case that
resulted i n a hung jury was a “very obvious” race

- neutral reason for excusing her

. On appeal, Hill does not dispute that prior experience serving on a hung jury can be a legitimate, non

- discriminatory explanation for a prosecutor’s exercise of a peremptory challenge. ( See People v. Manibusan (2013) 58 Cal. 4th 40 , 78 [“ circumstance that a prospective juror has p reviously sat on a hung jury is a legitimate, race

- neutral neutral14

reason for exercising a strike ”]; People v. Farnam (2002) 28 Cal. 4th 107 , 138 [juror’s prior service on a hung jury “‘ constitutes a legitimate concern for the prosecution, which seeks a ju ry tha t can reach a unanimous verdict’” ].) Instead, Hill asserts that Prospective
Juror No. 12 ’ s prior service on a hung jury was not a relevant consideration in determining whether he stated a prima facie case because such justification was first

propose d by the trial court rather than by the prosecutor. However, as our Supreme Court has explained, in evaluating whether a prima facie showing of discrimination has been made, a trial “court may

. . . consider nondiscriminatory reasons for a peremptory
chal le nge that are apparent from and ‘clearly established’ in the record [citations] and
that necessaril y dispel any inference of bias.” ( Scott , supra , 61 Cal.4th at p. 384; see also People v. Montes (2014) 58 Cal. 4th 809
, 854 [rejecting argume nt that trial c ourt improperly supplied its own reasons for excusing prospective juror in its first

- stage ruling because court was allowed to consider “ possible reasons for the peremptory challenges

. . . as part of its ruling that a pri ma facie case had not been made”)

. ] Therefore, at the first stage of its Batson/Wheeler inquiry, the trial court properly
considered Prospective Juror No. 12 ’s experience serving on a hung jury as

an objectively evident non

- discriminatory reason for the prosecuto r to excuse her. 2

2 After the trial court ruled that Hill had failed to establish a prima facie case, it invited the prosecutor to state her reasons for excusing Prospec tive Juror No. 12 on the record in the event that its first

- stage ruling was found to be erroneous on appeal. When the prosecutor explained that she had excused Prospective Juror No. 12 based on the juror’s distracted demeanor and alleged contact with a r elative in prison, the trial court asked her whether the juror’s prior experience on a hung jury “cause[d] [her] any concerns.” The prosecutor responded that “it did,” but that she was more concerned that Prospective Juror No. 12 appeared distracted durin g voir dire. At the second stage of the Batson/Wheeler inquiry, a trial court’s inquir y should be “confined to the prosecutor’s motive for ex ercising a peremptory challenge. The court is not permitted to substitute its conjecture or surmise for the actua l reasons declared by the prosecutor. ” ( People v. Phillips (2007) 147 Cal.App.4th 810, 818.) We need not decide, however, whether the trial court erred in raising Prospective Juror No. 12’s prior jury service at the second stage of its Bats on/Wheeler inquiry because the court properly concluded in its first

- stage ruling that Hill had failed to state a prima facie case.15

Other ci rcumstances appearing in the record support the trial court’s conclusion
that Hill failed to make a prima facie showing of discrimination . In particular, the
record shows that the prosecutor twice accepted a panel that included Prospective Juror
No. 12 as a member of the jury before excusing her

. ( People v. Clark (2011) 52 Cal. 4th
856 , 906 [“ there was no discernable pattern from which to infer discrimination ” where

“ the prosecutor passed [two prospective jurors] during several rounds of peremptory
challen ges before finally excusing them ” ]

. ) In addition
, both Hill and Jackson, the victim in this case, are African

- American and in the same protected class as Prospective Juror
No. 12

. ( People v. Cleveland (2004) 32 Cal.4th 704, 733 [ circumstance that both th e defendants and victim were of the same race as the challenged jurors supported fi nding
of no prima facie case of discrimination ] .) The totality of circumstances dispel s any inference of a discriminatory motive on the pa rt of the prosecutor in electing t o excuse Prospective Juror No. 12

. Hill argues that a discriminatory intent can be inferred because the only reasons offered by the prosecutor for excusing Prospective Juror No. 12 were facially invalid. He notes that the prosecutor provided two justifica tions to the trial court for the peremptory challenge : (1) the juror had a contact or relative in prison, and (2) the juror appeared to
be distracted during voir dire . Hill asserts that the first reason concerning a prior prison

contact was contradicted by the record because Prospective Juror No. 12 did not respond
to the court’s question to the panel members about whether they knew anyone who had
been arrested for, ch arged with, or convicted of, a crime. He claims that the second reason regarding a dist racted demeanor also was invalid on its face because Prospective
Juror No. 12 had a high

- level job , had prior jury experience, and provided concise, coherent answers to the court’s questions. Hill further contends that , if anything, Prospective Juror No. 12 demonstrated a bias in favor of the prosecution based on her prior experience as a victim of vandalism and car bur glary. As the California Supreme Court recognized in Scott , “[a] proffered justification that is facially discriminatory must be weighed wi th the totality of the relevant facts to determine whether they give rise to an inference of discriminatory purpose ” as part of the16

first stage of the Batson/Wheeler inquiry. ( Scott , supra , 61 Cal.4th at p. 391.) The court
also noted that a “ facially dis criminatory justificat ion advanced by the prosecutor

. . . would almost certainly raise an inference of discrimination and therefore trigger review of the next step of the Batson/Wheeler analysis. ” ( Id . at p. 39 2 .) In this case, however,
neither of the j ustifications proffered by the prosecut or for excusing Prospective Juror
No. 12 was discriminatory on its face, nor were they sufficient to support a n inference of purposeful discrimination when considered with the totality of the relevant facts

. The prima ry reason articulated by the prosecutor for exercising the peremptory challenge was Prospective Juror No. 12 ’s demeanor during voir dire. As the prosecutor explained, her decision to excuse Prospective Juror No. 12 was based “more than anything” on her co ncern that the juror “appeared . . . distracted” and “didn’t seem to
be

. . . paying much attention.” “It is well settled that ‘ [p]erempt ory challenges based on counsel’ s personal observations are not improper.’ [Citation.]” ( People v. Reynoso (2003) 31 Cal.4th 903
, 917 [n o Wheeler violation where party’ s stated reason for striking a prospective juror was that she was not paying attention to the proceedings and was not sufficiently involved in the selection process].) Indeed, “‘ race

- neutral reasons for peremptory challenges often invoke a juror’ s demeanor (e .g., nervousness, inattention)’” ( People v. Lenix
, supra , 44 Cal.4th at p. 614), and “‘ nothing in Wheeler disallows
rel iance on the prospective jurors’ body language or manner of ans wering questions as a basis for rebutting a prima facie case’ of exclus ion for group bias. ” ( People v. Reynoso
, supra , at p. 917.) While Hill disputes that Prospective Juror No. 12 was distracted during
voir dire given her c oherent responses to the c ourt’s questions, “[a ] ll that matters is that the prosecutor’ s reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory. ” ( Id . at p. 924.) The prosecutor’s main proffered reason for excusing Prospective Juro r No. 12

― her distracted
demeanor

― was non

- discriminatory on its face. The other reason advanced by the prosecutor for excusing the juror

― a contact in prison

— was not supported by the record. However, this proffered reason was also race

neutral on its face and may have been an honest mistake of fact by the prosecutor. The17

record shows that a number of prospective jurors who were questioned at the same time

as Prospective Juror No. 12 disclosed having a relative with a prior criminal conviction.
When defens e counsel pointed out that he recalled Prospective Juror No. 12 “not responding to the court’s questions about whet her she knew anyone that had been charged with a crime in the past
, ” the prosecutor acknowledged she was “working off of memory” and did “not have [her] notes” fr om the prior day of voir dire. At that point, the prosecutor had already made clear that her main objection to Prospective Juror No. 12
was based on demeanor. As our Supreme Court has observed, “[t] he purpose of a hearing on a Wheele r/Batson motion i s not to test the prosecutor’ s memory but to determine whether the reasons given are genuine and race neutral. ‘ Faulty memory

. . . that might engender a “mistake” of the type the pro secutor proffered to explain [a] peremptory challenge a re not necessarily associated with impermissible r eliance on presumed group bias.’ [Citation.] [An] ‘ i solated mistake or misstatement’ [citation] does not alone compel the conclusion that this reason was not sincere. ” ( People v. Jones (2011) 51 Cal. 4th 346 , 366.) When the totality of the rel evant facts is considered , the prosecutor’s misstatement that Prospective Juror No. 12 had a contact in prison did not give rise to an inference of discriminatory purpose.
Hill further contends that , because the tri al court evaluated the prosecutor’s stated reasons for excusing Prospective Juror No. 12
, this court should disregard the trial court’s
first

- stage ruling that Hill failed to state a prima facie case and instead direct our review to the third stage of the Batson/Wheeler inquiry. However, in the recent decision in
Scott , the California Supreme Court rejected this argument and held that a trial court’s evaluation of a prosecutor’s proffered reasons for exerc i sing a peremptory challenge did

not moot a prior f

inding that no prima facie case of discrimination exists . ( Scott , supra , 61 Cal.4th at pp. 391

- 392. ) In reachi ng this holding, the Court set forth the following specific procedure for appellate review of a Batson/Wheeler motion : “[W] here (1) the
trial c ourt has determined that no prima facie case of discrimination exists, (2) the trial court allows or invites the prosecutor to state his or her reasons for excusing the juror for the record, (3) the prosecutor provides nondiscriminatory reasons, and (4) th e trial court18

determines that the prosecutor’ s nondiscriminatory reasons are genuine, an appellate court should begin its analysis of th e trial court’ s denial of the Batson/Wheeler motion
with a review of the first

- stage ruling. [Citations.] If the appel late co urt agrees with the trial court’ s first

- stage ruling, the claim is resolved. If the appellate court disagrees, it can proceed directly to review of the third

- stage ruling, aided by a full record of reasons and the trial court’ s evaluation of their plausibility. ” ( Id . at p. 391, fn. omitted.) In this case, after hearing the basis for Hill’s Batson/Wheeler motion, the trial court express ly found that a prima facie case of discrimination did not exist . The court then asked the prosecutor if she want e d to state her reasons for excus ing Prospective
Juror No. 12 on the record “in the event that [the court is] found to be wrong on appeal. ” When the prosecutor replied that Hill had no t set forth a prima face case, the court
reiterated that it was “making that ruling,” but it also was giving the prosecutor an opportunity to respond “in the event that the court of appeal . . . were to find [ it ] incorrect” in its first

- stage ruling. For the reasons set forth above, we hold that the trial court properly deter mined that Hill failed to establish a prima facie case of discrimination in the prosecutor’s exercise of a peremptory challenge to excus e Prospective Juror No.
12

. This holding “is sufficient to resolve [Hill’s] claim of Batson/Wheeler error

. ” 3 ( Scott , s upra , 61 Cal.4th at p. 392 .)

II. The Personal Infliction of Great Bodily Injury Enhancement Hill also challenges the sufficiency of the evidence supporting the jury’s findings
that he personally inflicted g reat bodily injury in violation of section 12022.7

. Hill specific ally contends that the evidence at trial established that his physical contact with
Jackson was limited to Jackson ’s waist area, and thus, Hill could not have contribu ted to
the serious eye injury that Jackson sustained. We conclude that th e jury’s true findings
on the personal

- infliction enhancement s were supported by substantial evidence.

3 In light of our holding, we need not consider whether the trial court properly determined in its third

- stage ruling that the pros ecutor’s proffered reasons for excusing Prospective Juror No. 12 were genuine.19

To assess a claim of insufficient evidence in a criminal case, “we review the whole
record to determine whether any rational trier of fact could have fou nd the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict

- i.e., evidence that is reasonable, credible, and of solid value

- such that a re asonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the
evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determ ine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.]
A revers al for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s
verdict. [Citation.]” ( People v. Zamudio (2008) 43 Cal.4th 327, 357.) Section 12022.7, subdi vision (a), provide s a three

- year sentence enhancement for

“ [a]ny person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felo ny or attempted felony . . . .” A defendant “ need
not be the sole or def

inite cause of a specific injury” to support a finding that he or she personally inflicted great bodily injury on a victim

. ( People v. Modiri (2006) 39 Cal.4th 481, 486.) In cases where more than one person perpetrates an attack, “ the evidence is
often c onflicting or unclear as to which assailant caused particular injuries in whole or part. Thus, . . . those who participate directly and substantially in a group beating should not be immune from a personal

- infliction finding for the sole reason that the r esulting confusion prevents a showing or determination of this kind.” ( Id . at pp. 496

- 497.) In the context of a group beating
, a personal

- infliction finding can be made “ if [the] defendant personally applied force to the victim, and such force was suffic ient to produce grievous bodily harm either a lone or in concert with others.” ( Id . at p. 497.) Accordingly, w he re20

there has been a group assault and it is not possible to determine precisely which person caused which injury, personal infliction of great bodily injury ma y be found “ if the
defendant personally ‘appli[ed ] unlawful physical force’ to the victim,” and the physical
force used by the defendant was “ sufficient to produce great bodily injury either (1) by itself, or (2) in combination with other a ssailants. ” ( Id

. at p. 494.) Hill argues that the evidence was insufficient to support the personal

- infliction enhancements because the great bodily injury suffered by Jackson in the assault was the injury to his left eye, which the surveillance video sho wed was inflicted by the two other
assailants. Hill further asserts that the evidence conclusively established that his only
contact with Jackson was at Jackson’s waist area, and that he never punched or kicked Jackson during the assault. Hill’s argument , however, is not supported by the record. At trial, Jackson testified that , during the attack, all three assailants were “on top of [him] beating the crap out of [him].” Although Jackson could not identify which of his attackers inflicted which injury, he testified that he felt “all three” men hitting him in his face and stomach as he was “pleading for [his] life.” The video evidence presented to the jury at trial was consistent with Jackson’s testimony. The video showed that Jackson was brutally atta cked by three men, including Hill, and that each of the men personally used physical force on Jackson during the group assault. It is true, as Hill asserts, that there were two significant blows to Jackson’s face that were undisputedly inflicted by the ot her
assailants : (1) the initial punch by the Hispanic man which kno cked Jackson to the ground, and (2) the kick by the other African

- American man at the end of the assault. Contrary to Hill’s contention, however, the video does not demonstrate that his o nly physical contact with Jackson during the assault was near Jackson’s waist area. Rather, the video shows Hill moving from Jackson’s waist area to his head area as the attack progressed , and then struggling with Jackson on the ground while bending over his head

. The video also shows Hill and the Hispanic man dragging Jackson on the ground and all three assailants trying to restrain him as they searched the contents of Jackson’s pockets

. While the video does not clearly show whether Hill delivered any direct punches to Jackson’s left eye during the assault, it confirms that Hill used his hands and arms to21

apply physical force to Jackson in the vicinity of his head. In watching the video, the jury reasonably could have found that Hill’s arm movements wh ile he was bending over Jackson’s head and struggling with him on the ground were consistent with Hill striking
Jackson in the face or head , and thus, contributing to his severe eye injury. The totality
of the evidence presented at trial therefore reasona bly could support a finding that Hill personally used physical force on Jackson that , in combina tion with the force used by
the other assailants, was sufficient to caus e Jackson great bodily injury

.

DISPOSITION The judgment is affirmed.

ZELON, J.

We concur:

PERLUSS, P. J.

SEGAL , J.