Filed 11/4/15 P. v. Hill CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

DARRYL BERNARD 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 Attorneys 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 great bodily injury (§ 245, subd. (a)(4)), with true findings on the 

sentence enhancement allegations that Hill personally inflicted great bodily injury

(§ 12022.7, subd. (a)). On appeal, Hill contends the prosecution improperly exercised 

one of its peremptory 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 evidence was insufficient to 

support the jury’s findings 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 alleged 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, subdivision (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 allegations. 

 

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

II. The Evidence at Trial

A. Prosecution Evidence

1. Trial Testimony

On August 23, 2013, 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 standing 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 bicycle while

the other two men fled on foot. After the 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 to 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 his 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 suspects 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 Evidence

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 his 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, Hill rides up on a bicycle, parks it

near the store entrance, and walks inside. While Jackson 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 pants, and an African-American man 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 approaches Jackson and punches him once in 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 Hispanic man still on 

top of Jackson, Hill moves toward Jackson’s head area and continues bending over him. 

The Hispanic man and Hill begin dragging Jackson on the ground as a third man, the

African-American man in a white shirt and dark pants, joins the assault. All three men

struggle 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, Hill appears to apply direct 

physical force to Jackson’s head or upper body while trying to restrain him. Hill abruptly 

stands up, walks away from the group, and mounts his bicycle. The African-American 

man kicks Jackson twice in his face, and then walks over to Hill and appears to hand an 

item to him. Hill rides away on his bicycle while 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 Market. 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 did 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 decided 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 

bicycle. 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 guilty 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 allegations that Hill personally inflicted great bodily injury on Jackson during the 

commission of each crime to be true (§ 12022.7, subd. (a)). Following the sentencing 

hearing, Hill 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 Batson/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 peremptory 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. Prospective Juror No. 12 (Juror Identification No. 

8692) on the panel was an African-American 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 second 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 with, or 

convicted of a crime. During voir dire by the parties, the prosecutor asked Prospective 

Juror No. 12 and another 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 prospective jurors, three were excused for cause. In the first 

round of peremptory challenges, each side excused a juror. In the second round, the

prosecutor accepted the panel with Prospective Juror No. 12 among the potentially 

empaneled jurors, and defense counsel exercised his second peremptory challenge. In 

the third round, the prosecutor again accepted the panel with Prospective Juror No. 12

included as a member of the jury, and defense counsel exercised his third peremptory 

challenge. In the fourth round, 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, defense 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 valid 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 . . . AfricanAmerican Americans.” With respect to the challenge 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 response, 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 you 
8

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 laid 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, were 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 correctly, she had 

some contact or relative in contact that was in prison. I also 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 that Prospective Juror No. 12 “was on a hung 

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 anything. 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 charged with a crime. The prosecutor acknowledged that she 

was “working off of 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 going 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 the 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, 476 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 asserts at trial that the prosecution’s use of peremptory 

strikes violates the federal Constitution, the following procedures and standards apply. 

‘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.” [Citation.]’ [Citations.] The identical threestep procedure applies when the challenge is brought under 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 inference of 

discriminatory purpose.”’ [Citation.]” (People v. Thomas (2014) 53 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 the group to which the majority of 

the remaining jurors belong. [Citation.] A court may also consider nondiscriminatory 

reasons for a peremptory challenge that are apparent from and ‘clearly established’ in the 

record [citations] and that necessarily dispel 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 court 
10

considers the entire record of voir dire. [Citation.] “If the record ‘suggests grounds upon 

which the prosecutor might reasonably 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 challenge 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 trial 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 great 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.4th 

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 

the totality of the record established that the prosecution acted with a discriminatory 

purpose in exercising its peremptory challenges. He specifically asserts that the evidence 

was sufficient to support an inference of race discrimination in the prosecutor’s use of 

a peremptory challenge to excuse 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 conclude 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 Hill’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 313, 341.) However, in cases where it is unclear 

whether the trial court applied the correct standard in finding that the defendant failed 

to state a prima face case of discrimination, “‘we review the record independently’” to 

determine “‘“whether the record 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 standard, . . . we review the record independently”].) Hill 

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 

whether a prima facie case could be established by showing that the only AfricanAmerican 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 that, in such a case, “typically . . . there’s no valid reason for excusing that person.” 

Contrary to Hill’s claim, the trial court never suggested that Hill 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 reasonable 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 review of the record, we conclude that the trial court correctly 

determined that Hill failed to state a prima facie case of discrimination.

In making the Batson/Wheeler motion, Hill’s counsel argued to the trial court 

that he had established a prima face case simply by showing that the prosecutor had 

excused one of two African-American prospective jurors in the venire. Hill’s counsel 

explained that, at the time of the motion, the prosecutor had “exclud[ed] 50 percent of 
12

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 basis 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.” (People v. Bonilla, supra, at p. 343, fn. 12.)

In People v. Bonilla, for instance, the prosecutor struck the only two AfricanAmericans 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 improper 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 at 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 

could be shown on the basis of a single excusal, . . . to make a prima facie case after the 

excusal of only one or two members of a group is very difficult.”].) In this case, the
13

prosecution’s use of a single peremptory challenge to excuse one of only two AfricanAmericans 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 factors and 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. Moreover, there 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 basis of the verbal responses elicited in 

voir dire. As our Supreme Court has recognized, “[a] prospective juror may be excused 

based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic 

reasons. [Citation.]” (People v. Lenix, supra, 44 Cal.4th at p. 613.) 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 than 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 prosecutor 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 in 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 previously sat on a hung jury is a legitimate, race-neutral neutral 
14

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 jury that 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 

proposed 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 

challenge that are apparent from and ‘clearly established’ in the record [citations] and 

that necessarily 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 argument that trial court 

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 prima 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 prosecutor 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 Prospective 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 relative 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 during voir dire. At the second stage of the 

Batson/Wheeler inquiry, a trial court’s inquiry should be “confined to the prosecutor’s

motive for exercising a peremptory challenge. The court is not permitted to substitute its 

conjecture or surmise for the actual 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 Batson/Wheeler inquiry because the court properly concluded in its first-stage 

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

Other circumstances 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 

challenges 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 the 

defendants and victim were of the same race as the challenged jurors supported finding 

of no prima facie case of discrimination].) The totality of circumstances dispels any 

inference of a discriminatory motive on the part of the prosecutor in electing to 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 justifications 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, charged with, or convicted of, a crime. He claims that the second 

reason regarding a distracted 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 burglary.

As the California Supreme Court recognized in Scott, “[a] proffered justification 

that is facially discriminatory must be weighed with the totality of the relevant facts to 

determine whether they give rise to an inference of discriminatory purpose” as part of the 
16

first stage of the Batson/Wheeler inquiry. (Scott, supra, 61 Cal.4th at p. 391.) The court 

also noted that a “facially discriminatory justification 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. 392.) In this case, however, 

neither of the justifications proffered by the prosecutor for excusing Prospective Juror 

No. 12 was discriminatory on its face, nor were they sufficient to support an inference of 

purposeful discrimination when considered with the totality of the relevant facts.

The primary 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 concern that the juror “appeared . . . distracted” and “didn’t seem to 

be . . . paying much attention.” “It is well settled that ‘[p]eremptory challenges based on 

counsel’s personal observations are not improper.’ [Citation.]” (People v. Reynoso

(2003) 31 Cal.4th 903, 917 [no 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 

reliance on the prospective jurors’ body language or manner of answering questions as a 

basis for rebutting a prima facie case’ of exclusion 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 coherent responses to the court’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 Juror 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 raceneutral on its face and may have been an honest mistake of fact by the prosecutor. The 
17

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 defense counsel pointed out that he recalled Prospective Juror No. 12 “not 

responding to the court’s questions about whether 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” from 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 Wheeler/Batson motion is 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 prosecutor proffered to explain [a]

peremptory challenge are not necessarily associated with impermissible reliance on 

presumed group bias.’ [Citation.] [An] ‘isolated 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 relevant 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 trial 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 exercising a peremptory challenge did

not moot a prior finding that no prima facie case of discrimination exists. (Scott, supra, 

61 Cal.4th at pp. 391-392.) In reaching this holding, the Court set forth the following 

specific procedure for appellate review of a Batson/Wheeler motion: “[W]here (1) the 

trial court 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) the trial court
18

determines that the prosecutor’s nondiscriminatory reasons are genuine, an appellate 

court should begin its analysis of the trial court’s denial of the Batson/Wheeler motion 

with a review of the first-stage ruling. [Citations.] If the appellate court 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 expressly found that a prima facie case of discrimination did not exist. The court 

then asked the prosecutor if she wanted to state her reasons for excusing 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 not 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 determined that Hill failed to establish a prima facie case of discrimination 

in the prosecutor’s exercise of a peremptory challenge to excuse Prospective Juror No. 

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

3

 

(Scott, supra, 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 great bodily injury in violation of section 12022.7. Hill

specifically 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 contributed to 

the serious eye injury that Jackson sustained. We conclude that the jury’s true findings 

on the personal-infliction enhancements 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 prosecutor’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 found 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 reasonable 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 determine 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 reversal 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, subdivision (a), provides 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 felony or attempted felony . . . .” A defendant “need 

not be the sole or definite 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 conflicting 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 resulting 

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 sufficient to produce grievous 

bodily harm either alone or in concert with others.” (Id. at p. 497.) Accordingly, where
20

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 may 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 assailants.” (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 showed 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 attacked 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 other 

assailants: (1) the initial punch by the Hispanic man which knocked 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 only 

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 to 
21

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 while 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 reasonably could support a finding that Hill 

personally used physical force on Jackson that, in combination with the force used by 

the other assailants, was sufficient to cause Jackson great bodily injury.

DISPOSITION

The judgment is affirmed.

ZELON, J.

We concur:

PERLUSS, P. J.

SEGAL, J.