People v. West CA1/5

Filed 8/14/14 P. v. West CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

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

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

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