People v. Simon CA2/1

Filed 1/29/16 P. v. Simon CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B258672

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA130460) v.

HERBERT LEE SIMON, SR.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Allen Joseph Webster, Jr., Judge. Affirmed. Cynthia L. Barnes, 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, Assistant Attorney General, Victoria B. Wilson, Deputy Attorney General, Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent. ____________________________________________

A jury convicted appellant Herbert Lee Simon of one count of corporal injury to a spouse or cohabitant, in violation of Penal Code section 273.5,1 and one count of attempting to dissuade a witness, in violation of section 136.1, subdivision (a)(2), plus enhancements. On appeal, Simon contends that, pursuant to Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), the trial court erred by denying his challenges to the racial composition of the jury. We disagree and affirm.

FACTS AND PROCEEDINGS BELOW Because the issue Simon raises on appeal pertains only to the jury selection process, we relate the facts of the case only briefly. On October 15, 2013, Simon stabbed his girlfriend with a knife. The police officers who detained him observed him to behave erratically, and he told a nurse at the police station that he had taken PCP and cocaine before the incident. As the case neared trial, jail officials recorded phone calls in which Simon told his girlfriend not to come to court to testify, and that if she did come to court, she should testify that she could not remember what happened or who stabbed her. An information filed January 2, 2014, as amended on April 3, 2014, charged Simon with one count of attempted murder, in violation of sections 664 and 187, subdivision (a), one count of attempting to dissuade a witness, in violation of section 136.1, subdivision (a)(2), and one count of corporal injury to a spouse or cohabitant, in violation of section 273.5, subdivision (a). During jury selection, the prosecution used peremptory challenges to remove two African-American men from the jury pool. In each case, Simon objected, contending that the prosecutor’s action constituted purposeful discrimination on the basis of race. Simon himself is African-American. In each case, the trial court found that Simon had established a prima facie case of racial discrimination, but that the peremptory challenge