Filed 1/30/01 Modified and Certified for Partial Publication 2/26/01 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Appellant Aldridge Currie was convicted after a jury trial of second degree murder, attempted robbery, and unlawful possession of a firearm by a felon. (Pen. Code, §§ 187; 664/211-212.5, subd. (c); 12021, subd. (a)(1).) The jury also found true two special allegations that appellant had used a firearm in the commission of the crimes of murder and attempted robbery. (§ 12022.5, subd. (a).) In bifurcated proceedings tried to the court, two prior prison term allegations were also found true. (§ 667.5, subd. (b).)

Appellant’s principal contention on appeal revisits a topic that has historically been the object of numerous challenges, namely, the composition of jury venires in Contra Costa County. He contends the trial court erred in denying his motion to quash the master jury list and jury venire, on the grounds that his rights under the Sixth Amendment to the United States Constitution, and article I, section 16, of the California Constitution, to trial by an impartial jury drawn from a representative cross-section of the community were denied.

Appellant’s other contentions are that the trial court erroneously denied his Wheeler/Batson motion; the trial court erroneously ruled that an instruction on imperfect self-defense was not available to him; the trial court failed to provide the jury with a unanimity instruction as to the act which constituted attempted robbery; the prosecutor committed misconduct in his closing argument to the jury; the trial court prejudicially abused its discretion by excluding as irrelevant appellant’s proffered evidence of the victim’s tattoos and alleged gang affiliation; and the trial court erred in imposing two firearm-use enhancements for the same act.

We conclude, however, that appellant failed to establish a prima facie case of systematic exclusion of African-American jurors in the jury selection process, and that his other claims are without merit.

We affirm the judgment of conviction.

I. FACTS AND PROCEDURAL HISTORY

Appellant admitted in his testimony at trial that he shot the murder victim, Santos Maldonado, after the two had an argument. It was appellant’s position that he acted in self-defense. On the other hand, the prosecution argued that appellant shot Maldonado while attempting to rob the victim of his drugs and money.

Maldonado was a drug dealer in the City of Pittsburg, who sold drugs with his girlfriend Ami Jurica. Maldonado and Jurica both were acquainted with appellant, whom they knew as "R.G."

On the evening of July 12, 1995, Jurica and Maldonado were in the latter’s car, selling drugs in front of the house of an acquaintance, Jerry Silva, on Eighth Street in the City of Pittsburg. Around 8:00 p.m., appellant waved at them, approached, and began talking to Maldonado. The two men soon started arguing about the ownership of a .357 handgun that Maldonado possessed. Appellant

claimed the gun was his, and that he had loaned it to their mutual acquaintance Silva, who had in turn loaned it to Maldonado. Appellant now wanted it back. However, Maldonado claimed to have purchased the gun from Silva. Inasmuch as Silva lived in the house in front of which Maldonado had parked his car, the two men went inside to see Silva and resolve their dispute.

When Maldonado and appellant returned to the parked car, John Marshall, who had approached Maldonado to buy a gram of methamphetamine for $20, momentarily interrupted the two men. After purchasing drugs, Marshall asked Maldonado if he was "packing" a gun. Maldonado, who was seated in his car, pulled out a .38-caliber handgun and showed it to Marshall and then placed the gun on the car seat.

As Marshall was speaking with Maldonado, appellant asked the latter how much "crank" (methamphetamine) he would sell for a "C note" ($100). Maldonado replied he would sell appellant an "eight ball" weighing three and one-half grams. Stating that he had money nearby and would be right back, appellant left. Meanwhile, Maldonado and Jurica waited in the vehicle for appellant to return with the money.

About 10 minutes later appellant returned, not with money but with a gun. He approached the driver’s side of the car where Maldonado was seated, and shot Maldonado in the neck. Jurica had been listening to music and did not see appellant return to the vicinity of the vehicle. Suddenly she heard the discharge of a gun. Jurica turned to see Maldonado slumped and immobile and, at the same time, appellant standing outside the car, holding a gun and looking "angry and shaky." Next, appellant tore off Maldonado’s gold chain, and rifled his clothing for drugs and money, yelling that he wanted the dope and money. Jurica handed appellant $40 in currency. Appellant started to flee, but then turned and pointed the gun at Jurica. She ducked down in the car, but no other shots were fired.

Jurica drove away from the scene of the shooting in the victim’s car. Reaching a pay phone at a nearby Jack-in-the-Box fast food restaurant, she dialed 911 and hailed down a passing police car. Pittsburg Police Officers David Zuniga and Robert Dupont responded and found Jurica covered with blood, crying, screaming, and hysterical. Maldonado was unconscious with a gunshot wound to the left side of the neck; he was "gasping for air" and "gurgling" blood. He was taken to the hospital where he was soon pronounced dead as a result of loss of blood and blood filling his lungs. Jurica told the police that appellant was the shooter, and she gave them his description which was broadcast to other police units. Jurica however was not at first truthful in telling the authorities all of the circumstances surrounding the shooting, including her involvement with Maldonado in drug sales, but she did so later after learning of his death.

Meanwhile, appellant had escaped to a nearby house that was occupied by a fellow drug user, Phillip Drake. Drake and his friend, ex-felon Wendy Nguyen, were both inside the Drake residence when appellant arrived. Appellant knocked on the door and demanded immediate admittance; he was carrying two guns, and was acting "real rushed." Appellant said he had just robbed and shot Maldonado "in the neck" and that his victim would not be criticizing him any more. Then, appellant went into a closet to take a "hit" i.e., do some drugs.

Later that evening, shortly before midnight, Officers Bruce Brown and Kirby McNesby, who had earlier heard a broadcast of the suspect’s description over police radio, spotted appellant near an apartment complex on Tenth Street. As appellant turned to walk into the complex, Officers Brown and McNesby parked their patrol vehicle and followed him, splitting up to cover both sides of the complex. Brown next spotted appellant as he was kneeling down near the east side of the complex. At gunpoint, Brown ordered him to stop and put his hands up, but appellant walked away to the other side of the complex in the direction taken by McNesby. McNesby took appellant into custody. Appellant was searched, and his pants pocket contained $90, in denominations of two twenties, two tens, and thirty ones. Moments later, Brown recovered a handgun in a utility box for the apartment complex, about 25 feet from the location where he first saw appellant inside the apartment complex. There was blood on the barrel of the weapon, with five rounds and one expended cartridge in the cylinder. Forensic testing showed the recovered weapon was consistent with the gun that fired the bullet removed from the victim’s body, although a positive match could not be made.

Appellant was charged with Maldonado’s murder; the robberies of Maldonado and Jurica; being a felon in possession of a firearm; the special circumstances allegation of robbery; two allegations of firearm-use; and two enhancements of prison term priors. The People sought the death penalty.

Appellant brought a motion to quash the master jury list and jury venire, contending that African-American jurors were underrepresented on the lists of potential jurors in Contra Costa County. The trial court ultimately denied appellant’s motion, ruling that he failed to make out a prima facie case that African-Americans are unconstitutionally excluded from Contra Costa County Superior Court venires. We discuss this issue and the facts relating to it in part II.A. of this opinion.

The matter proceeded to jury trial, and the prosecution adduced the evidence summarized above. Appellant presented evidence which tended to undercut the credibility of Jurica, based upon her involvement in various criminal activities, conflicting statements given to the police in an apparent effort to escape prosecution on drug charges, and a grant of immunity received in exchange for her testimony.

Appellant also introduced latent prints lifted from the inside of the victim’s car, which did not match appellant’s fingerprints, as well as the testimony of a longtime acquaintance, Robert Reeder. Reeder offered that appellant visited him at his apartment on the night of appellant’s arrest, and that he did not see him in possession of a gun. Reeder at first indicated appellant had been with him for hours, suggesting a possible alibi, but later testified appellant had only been with him a few minutes. Reeder acknowledged that the two men had been incarcerated in jail together after the shooting, but denied ever having discussed appellant’s case.

Appellant also testified. He acknowledged being a convicted felon, and that he shot Maldonado. However, he claimed to have done so in self-defense after the victim, whom he believed to be high on drugs, pulled a gun on him during an argument the two men were having over a gun appellant had loaned Silva. Appellant denied robbing or taking any property from either Maldonado or Jurica. It was only after Maldonado pulled out a gun and ordered, "get the fuck away from my car," that he shot Maldonado, allegedly in self-defense. Appellant’s testimony confirmed portions of evidence presented by the prosecution, such as his shooting of the victim, his flight to Drake’s house, his subsequent use of crack cocaine, and his hiding of the gun used in the shooting inside the utility box. Appellant also admitted lying to the police, telling them he knew nothing about the shooting, because he did not trust the police and was scared and high on drugs.

Evidence was also presented of the presence of methamphetamine, amphetamine, and alcohol in the victim’s blood. According to a defense medical expert, Dr. David Smith, the level of methamphetamine in Maldonado’s blood was consistent with chronic abuse, and he would expect such a person to exhibit symptoms of paranoia, impaired impulse control, and delusional thinking. Given the levels of alcohol and methamphetamine in the victim’s blood, and the hostile threatening environment that presented itself to the victim, Dr. Smith hypothesized that Maldonado could have experienced a "rage reaction," which would cause him to aggressively respond to a perceived threat.

The jury convicted appellant of second degree murder (count one), the attempted robbery of Maldonado (a lesser-included offense of count two), and unlawful possession of a firearm by a felon (count four). (§§ 187; 664/211-212.5, subd. (c); 12021, subd. (a)(1).) The two special allegations charging personal use of a firearm as to counts one and two were also found to be true. (§ 12022.5, subd. (a).) Appellant was acquitted on the charge of robbery as to Jurica (count three). In a bifurcated proceeding tried to the court, the two prison term priors were found to be true. (§ 667.5, subd. (b).) Appellant received an aggregate determinate term of nine years eight months in state prison, and a consecutive indeterminate term of 25 years to life for the murder and two firearm-use allegations.

II. DISCUSSION

A. Challenge to the jury venire panel

Our resolution of appellant’s claim that he made out a prima facie case showing African-American jurors were underrepresented on Contra Costa County Superior Court venires, and that such underrepresentation resulted from systematic exclusion, is a mixed question of law and fact. It requires that we apply de novo review to all legal issues, while accepting any factual findings of the trial court, if they are supported by substantial evidence. (People v. Ramos (1997) 15 Cal.4th 1133, 1154.)

We first review the applicable legal principles, before turning to the merits. The Sixth Amendment right to a jury trial encompasses the right to trial by an impartial jury drawn from a representative cross-section of the community. The right to an impartial jury applies at every stage of the jury selection process: the compiling of the master list of potential jurors, the selection of venires from that list, and the use of peremptory challenges to preclude potential jurors from serving. (People v. Bell (1989) 49 Cal.3d 502, 525.) A similar and coextensive right exists under the California Constitution: "Under the federal and state Constitutions, an accused is entitled to a jury drawn from a representative cross-section of the community. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16; Duren v. Missouri (1979) 439 U.S. 357, 358-367 [(Duren)]; People v. Howard (1992) 1 Cal.4th 1132, 1159.) That guarantee mandates that the pools from which juries are drawn must not systematically exclude distinctive groups in the community. (People v. Mattson (1990) 50 Cal.3d 826, 842 [(Mattson)].)" (People v. Horton (1995) 11 Cal.4th 1068, 1087-1088.) "The federal and state guarantees are coextensive, and the analyses are identical. (People v. Bell (1989) 49 Cal.3d 502, 525, fn. 10 (Bell); e.g., [People v.] Harris, [(1984)], 36 Cal.3d [36,] 48-49.)" (People v. Howard (1992) 1 Cal.4th 1132, 1159.)

"‘In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process." (Duren, supra, 439 U.S. at p. 364; Howard, supra, 1 Cal.4th at p. 1159.) The relevant "community" for cross-section purposes is the community of qualified jurors in the judicial district in which the case is to be tried. (See Mattson, supra, 50 Cal.3d at p. 844; Williams v. Superior Court (1989) 49 Cal.3d 736, 744-745.)

If a defendant makes a prima facie case showing that the fair cross-section requirement is violated, "the burden shifts to the prosecution to provide either a more precise statistical showing that no constitutionally significant disparity exists or a compelling justification for the procedure that has resulted in the disparity in the jury venire. (People v. Sanders (1990) 51 Cal.3d 471, 491.)" (Horton, supra, 11 Cal.4th at p. 1088.) As to appellant’s claim that he established a prima facie violation of the fair cross-section requirement, it is not disputed that the first prong is met in that African-Americans "are a cognizable group within the meaning of Duren. [Citation.]" (Bell, supra, 49 Cal.3d at p. 526.) We address the adequacy of appellant’s showing as to the second and third prongs under Duren’s three-prong test.

To satisfy the second prong, appellant must show that the number of African-Americans on venires from which juries are selected in Contra Costa County was "not fair and reasonable in relation to the number of such persons in the community." (Duren, supra, 439 U.S. at p. 364.) Here, he sought to do so by presenting statistical evidence that the number of African-Americans in Contra Costa County totaled 8.4 percent of the county’s adult population; but that only approximately 4.6 percent of the persons who appeared for jury duty in response to summons were African-Americans. The trial court found that appellant made a prima facie showing as to the second prong, in that comparative disparity statistics demonstrated "a constitutionally significant difference between the number of members of the cognizable group appearing for jury duty and the number in the relevant community." (Ramos, supra, 15 Cal 4th at p. 1155.) Denial of appellant’s motion was predicated upon his failure to meet the third prong under Duren, that is to prove that the underrepresentation of African-Americans on Contra Costa County superior court venires is due to their systematic exclusion in the jury selection process.

Appellant introduced statistical findings from three different studies to prove the percentage of underrepresented African-Americans on the county’s superior court jury venires. The results of these studies showed that African-Americans made up approximately 4.6 to 6.1 percent of superior court juries. According to a 1990 census, 8.4 percent of the adult population of Contra Costa County were African-American, approximately 75 percent of whom reside in one of the county’s four judicial districts, the Bay District.

With the foregoing statistical evidence as a backdrop, the initial inquiry is whether a disparity of this degree constitutes a prima facie showing under Duren’s second prong. As indicated ante, the lower court looked at these figures and found a "significant" underrepresentation of African-American jurors. It did so by utilizing the comparative disparity test, which measures the difference between the representation of African-Americans on jury venires against African-Americans in the general population, expressing the difference in percentage terms. Taking the telephone survey results as an illustration, a comparative disparity of 45.2 percent is shown (the percentage difference between the general population or 8.4 percent and the 4.6 percent representation on jury venires). Using another statistical test or methodology, the absolute disparity test, the result of the telephone survey would be expressed by comparing percentage points, i.e. a difference of 3.8 percent, rather than in a percentage. "Absolute disparity measures the difference between the percentage of members of the distinctive group in the relevant population and the percentage of group member on the jury wheel." (U.S. v. Royal (1st Cir. 1999) 174 F.3d 1, 6-7.)

In Bell, the challenge to the Contra Costa County jury venire involved similar allegations of underrepresentation of African-Americans. There, the statistical evidence disclosed that African-Americans constituted about 8 percent of the adult population and this distinctive group comprised approximately 3 percent of the prospective superior court jurors, an absolute disparity of 5 percent. The ultimate ruling in Bell however did not turn on the question of whether the defendant made out a prima facie case under Duren’s second prong. And, while we likewise do not base our ruling on this point, the court’s comment is nevertheless worthy of mention: "It does not appear that a disparity of this degree renders the representation of Blacks on jury venires less than fair and reasonable in relation to their numbers in the general population of Contra Costa County." (Bell, supra, 49 Cal.3d at p. 527.)

Although the disparity of underrepresentation shown by the record in this case is less than that found in Bell, we need not determine whether this showing exceeds the constitutional limit of permissible disparity. Nor need we resolve the means by which statistical disparity should be measured under the second prong of the Duren test. Instead, we conclude that appellant has not made a prima facie showing under the third prong–that the disparity was caused by the "systematic exclusion" of African-American jurors.

Appellant argues "that the chronic nature of the underrepresentation as well as Contra Costa County’s refusal to take steps to remedy this problem itself demonstrates systematic exclusion." Appellant points to various features of the jury selection process which he claims are constitutionally impermissible and a cause of the disparity. Appellant identifies these features as including the county’s failure to adequately follow-up on jurors who fail to appear after being summoned; the over-summoning of Bay District jurors; and the failure to make available adequate transportation for jurors in the Bay and Delta Districts.

The underrepresentation of African-Americans on Contra Costa County jury venires, arising from the higher rate of such jurors failing to appear in response to a summons, is a longstanding problem, dating back at least 20 years. Although this court (the First District Court of Appeal) and the California Supreme Court have repeatedly addressed this problem, no easy legal solution for it has been found.

However, the procedures employed by the county to summon and select

persons for jury service are, according to the undisputed evidence, entirely race-neutral. As the evidence disclosed and the trial court ruled, the disparity in representation is attributable to the disproportionately high rate of failures to appear by those summoned for jury service from the county’s Bay Judicial District, which is located in the City of Richmond. "Statistical underrepresentation of minority groups resulting from race-neutral . . . practices does not amount to ‘systematic exclusion’ necessary to support a representative cross-section claim. [Citations.]" (People v. Danielson (1992) 3 Cal.4th 691, 706.)

A prima facie case of systematic exclusion, under Duren’s third prong, cannot be established through appellant’s claim that the county has failed to adopt other measures, which he suggests might increase the racial representation of African-Americans on jury venires in Contra Costa County. Our high court has repeatedly admonished that such reference to measures not taken by the county is insufficient to establish a prima facie case of systematic exclusion: "‘Evidence that "race/class neutral jury selection processes may nonetheless operate to permit the de facto exclusion of a higher percentage of a particular class of jurors than would result from a random draw" is insufficient to make out a prima facie case. ([People v. Morales (1989) 48 Cal.3d 527,] 546, italics in original.)’" (Danielson, supra, 3 Cal.4th at p. 706; see also People v. Sanders (1990) 51 Cal.3d 471, 492-493.)

For example, appellant suggests Contra Costa County might reduce the high failure to appear rate among African-American jurors by instituting such affirmative measures as "insuring direct transportation" from west county to the site of the trial of this case in Martinez. Even the majority opinion in People v. Buford (1982) 132 Cal.App.3d 288, the only appellate decision crediting a defendant with making out a prima facie case as to Contra Costa County venires, rejected a similar suggestion. (See Buford, supra, at p. 299 ["And we certainly do not suggest that a county should engage in race conscious selection procedures in order to assure representative juries."].)

Contra Costa County is not constitutionally required—and may not even be constitutionally permitted—to implement racially disparate practices such as affirmative action quotas, busing, or other race-based programs in order to correct any underrepresentation caused by factors unrelated to exclusionary features of the jury selection process: "The Sixth Amendment forbids the exclusion of members of a cognizable class of jurors, but it does not require that venires created by a neutral selection procedure be supplemented to achieve the goal of selection from a representative cross-section of the population. (United States v. Cecil [(4th Cir. 1988)] 836 F.2d 1431, 1447-1449.)" (Bell, supra, 49 Cal.3d at p. 530, italics in original.)

The adoption of other measures, even if constitutionally permissible, would appear to be unavailing as a practical matter. The failure to appear rate for Richmond jurors remains constant, whether jurors are summoned to appear at the local Richmond courthouse or at the superior court in Martinez. In fact, to obtain sufficient jurors to operate the local Richmond courts, the county has been required to increase the frequency of summoning local Richmond residents for jury service. Appellant paradoxically assails the county for doing so, suggesting that local Richmond residents, who are likely to be African-Americans, would be less willing to serve given the greater frequency upon which they are summoned. Appellant however presents no evidence to support such speculation. Even if he were correct, such a phenomenon would not demonstrate the constitutionally impermissible "‘systematic exclusion’" of African-Americans allegedly caused by the county’s jury selection process. (Bell, supra, 49 Cal.3d at p. 530.)

In the final analysis, appellant has established nothing more than statistical evidence of disparity; he has not associated the underrepresentation of African-Americans with any constitutionally impermissible feature of the Contra Costa County jury selection process. The procedures employed by the county to summon and select persons for jury service are, according to the undisputed evidence, entirely race-neutral. The lower court found that the disparity in representation is attributable to the disproportionately high rate of failure to appear by those summoned for service from the Bay District. "Statistical underrepresentation of minority groups resulting from race-neutral . . . practices does not amount to ‘systematic exclusion’ necessary to support a representative cross-section claim. [Citations.]" (Danielson, supra, 3 Cal.4th at p. 706.) Nor, as we have found, is the county required to implement racially disparate practices to correct underrepresentation caused by factors unrelated to exclusionary features of the jury selection process.

The evidence presented by appellant fails to establish a prima facie case of systematic exclusion of a cognizable class in the jury selection process. The trial court did not err in making this finding. (Bell, supra, 49 Cal.3d at p. 530; Horton, supra, 11 Cal.4th at p. 1090; People v. Breaux (1991) 1 Cal.4th 281, 299.)

B. Claims of Wheeler-Batson Error during Jury Selection

Appellant contends the trial court committed Wheeler-Batson error when it ruled that the prosecutor had legitimate, nondiscriminatory reasons for exercising peremptory challenges as to two African-American jurors.

1. Standard of Review

"In People v. Wheeler, supra, 22 Cal.3d 258, the California Supreme Court held that peremptory challenges could not be constitutionally utilized by a prosecutor to exclude members of a cognizable group on the basis of group bias alone. [Citation.] In Batson v. Kentucky, [supra,] 476 U.S. 79, 96, the United States Supreme Court accepted a similar proposition. To implement these holdings, both courts adopted a like procedure. A defendant alleging an unconstitutional exclusion of some group from the jury must first make a prima facie showing of such exclusion. This is most often done by establishing a pattern of strikes eliminating most or all members of the group. [Citations.] Other factors to be considered include the nature of the questioning by the prosecutor, the racial or ethnic background of the defendant and the victim, and the similarity of the challenged jurors based on characteristics other than group membership. [Citations.] Once a prima facie case has been established, the burden shifts to the prosecution to demonstrate a neutral explanation for the challenge[s]. [Citation.]" (People v. Christopher (1991) 1 Cal.App.4th 666, 669-670, fn. omitted.)

"An appellate court reviews a trial court’s ruling on a motion under Wheeler and/or Batson for substantial evidence. [Citations.] Although such a ruling broadly resolves a predominantly factual mixed law-fact question, as a general matter, at least, it narrowly depends on the answer to a purely factual question, viz., whether the prosecutor acted with the prohibited intent—which in turn typically depends on the answer to another purely factual question, viz., whether the prosecutor’s customary denial of such intent is true [citations]. It follows that the determinations underlying a ruling of this sort, that is, whether the defendant bore his burden of a prima facie showing of the presence of purposeful discrimination and, if he succeeded, whether the prosecutor bore his consequent burden of a showing of its absence, are themselves examined for substantial evidence: they are each reducible to an answer to a purely factual question, as identified above." (People v. Alvarez (1996) 14 Cal.4th 155, 196-197.) The question of whether or not the prosecutor stated "adequate neutral reasons" for a challenge is however subject to "independent[] review[]" by an appellate court, as it "amounts to the resolution of a pure question of law . . . ." (Id. at p. 198, fn. 9.)

In our review we also must give "great deference" to the trial court’s ultimate finding, in denying appellant’s Wheeler motion, that there was a proper basis for the prosecutor’s exercise of her peremptory challenges. (See People v. Johnson (1989) 47 Cal.3d 1194, 1221-1222; People v. Arias (1996) 13 Cal.4th 92, 136.) Furthermore, if the record demonstrates that the trial judge made "‘a sincere and reasoned attempt to evaluate the prosecutor’s explanation’" (Johnson, supra, at p. 1216 quoting People v. Hall (1983) 35 Cal.3d 161, 167), we will not lightly overturn such factual findings by the trial judge who actually observed the voir dire. (Johnson, supra, at pp. 1216-1217.)

Here, the trial judge found the prosecutor’s exercise of peremptory challenges against African-American jurors constituted a prima facie showing of group bias, and thus called upon the prosecution to offer an explanation for the exercise of these challenges. After the prosecutor stated his reasons, appellant’s motions were denied, based upon the lower court’s rulings that the prosecutor’s justification was race-neutral, and that it was not pretextual or insincere. We review the record to determine whether substantial evidence supports this ruling, giving due weight and deference to the findings of the trial court. (Johnson, supra, 47 Cal.3d at pp. 1216-1217.)

2. The Prosecutor’s Exercise of Peremptory Challenges

The prosecutor exercised numerous peremptory challenges, including three challenges to African-American jurors, whom we identify here as jurors 210, 246, and 287. On appeal, appellant abandons his claim of Wheeler error as to juror 246, but he renews the claim as to jurors 210 and 287. We discuss them in turn.

a. Juror 210

Responding to the court’s inquiry, the prosecutor explained that he exercised a peremptory challenge as to juror 210, because this juror’s attitude towards the death penalty was not as favorable to the prosecution as that of the other jurors already seated in the jury box, including another African-American juror who had been accepted. In this regard, juror 210 had indicated she was "undecided" about the death penalty, which the prosecution was seeking in this case. The trial court found this explanation to be a race-neutral, appropriate explanation for the exercise the peremptory challenge: In the words of the trial judge: "She does indicate that she was undecided about the death penalty. She does make that comment, that’s true. [¶] All right, based upon the explanation given by [the prosecutor] in this case, I do not find that he excused this person just because she is an African-American. Has nothing to do with race. All right."

The fact that a juror has moral qualms against imposing the death penalty, or is unsure or undecided as to the propriety of this punishment, is a valid, race-neutral reason for the exercise of a peremptory challenge. (People v. Turner (1994) 8 Cal.4th 137, 171; People v. Walker (1988) 47 Cal.3d 605, 624.) Appellant does not dispute that juror 210 was a skeptic on the death penalty, or that her answers constituted a race-neutral basis for the prosecution’s actions. Instead, he conducts his own comparative analysis of the jury panel, concluding that this juror’s attitude towards the death penalty was no more defense-oriented than that of certain other jurors, some of whom were African-American and some of whom were not, and whom the prosecutor did not challenge. He asserts that juror 210 would otherwise have been pro-prosecution. From this, appellant claims the peremptory challenge was improper, because the reason enunciated by the prosecution was pretextual.

First, we are forbidden to conduct such a comparative analysis of the jurors for the first time on appeal. (See People v. Jones (1997) 15 Cal.4th 119, 162; People v. Williams (1997) 16 Cal.4th 635, 664; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Second, appellant’s comparative analysis is unconvincing, and discloses many of the defects which have led our Supreme Court to reject such false comparisons.

It is inaccurate to state that juror 210 was a pro-prosecution juror, quite apart from her skeptical views on the death penalty. Certainly there were some aspects in her background that might have appealed to the prosecutor, but there were others that would have appealed to the defense. For example, that this juror had taken classes in law enforcement with the thought of pursuing an occupation in this field might be viewed as a pro-prosecution response. On the other hand, the fact that this juror ultimately rejected that pursuit, had since experienced negative contact with the police, and had voiced unfavorable opinions regarding law enforcement authorities, would be circumstances more favorable to the defense. Most significant, however, are juror 210’s expressed doubts or undecided state of mind as to whether she could impose the punishment sought by the prosecution. As to the other jurors cited by appellant, although expressing some reservations, they all agreed they could impose the death penalty if the circumstances of the crime were "heinous" or "aggravating." On the other hand, juror 210 believed she could avoid having to vote for the death penalty by letting the judge decide the appropriate punishment. Upon learning this was not the case, she was surprised and apparently dismayed.

On the limited review we conduct, substantial evidence supports the trial judge’s ruling. It was not an abuse of discretion to reject appellant’s claim that the prosecutor’s challenge of juror 210 was based on her race, rather than her skepticism as to the death penalty. (See Arias, supra, 13 Cal.4th at p. 136.)

b. Juror 287.

The prosecutor explained that he challenged juror 287 because she was too liberal, and too sympathetic to drug abusers and persons who engaged in criminal activity, such as appellant. This juror was a member of the Mary Freeman Missionary Society; her husband was a drug abuser, as was appellant; and her husband had once been charged with a crime of violence, assault and battery. In addition, juror 287 expressed a preference for the penalty of life without parole over the death penalty. Further, to impose the death penalty, she would require proof of guilt "beyond a doubt" rather than proof of guilt beyond a reasonable doubt.

In rejecting appellant’s claim, the trial court ruled: "The Court notes that this is the third challenge of an African-American in this particular case. The Court has to and does look carefully to the reasons that [the prosecutor] has given for challenging this [juror] and the test isn’t whether or not she says she would consider the death penalty, the test is whether or not he has valid grounds for believing that she could not be, you know, or he has a non-racial basis for challenging this person. And he has articulated reasons. [¶] I do not believe that he’s lying. She does, in fact, have a husband who . . . apparently had an assault. There is a drug history in the past in the family. [¶] As far as her statement about not understanding the burden of proof, I believe she was explained that by the Court and I do not have any problem with her understanding that it is proof beyond a reasonable doubt. [The prosecutor] feels maybe she would have a problem with that. [¶] I’m not making my ruling based on that one particular factor. But he has articulated . . . race neutral reasons on his basis for excluding her. I do not find that it is based on, you know, simply because he wants to kick every . . . African-American off the jury. He does have an African-American here that’s still on the jury. Therefore, the motion is denied."

The fact that the juror’s husband was a drug abuser who had been accused of assault and battery was itself a valid, race-neutral reason for exercising the peremptory challenge. (See Williams, supra, 16 Cal.4th at pp. 664-665 [peremptory challenge proper where juror’s sons had criminal records].) Likewise, the juror’s liberal leanings and her membership ties to the Mary Freeman Missionary Society would suggest she had a tolerant attitude and sympathy for the underdog. While this may speak well of juror 287 as a person, it would also constitute valid reasons for a challenge. (See People v. Trevino (1997) 55 Cal.App.4th 396, 411-412.)

Appellant does not directly contend these reasons are not appropriate race-neutral grounds supporting the exercise of a peremptory challenge. Rather, he again conducts his own comparative analysis of the juror panel, and again reaches the conclusion that the prosecutor’s reasons were pretextual. Even if we were permitted to conduct such flawed comparisons, we would find the results unconvincing. Appellant attempts to compare juror 287 to other jurors who had disclosed having relatives with alcohol or drug problems. However, he studiously avoids comparing her to other jurors whose husbands had been prosecuted for crimes of violence, who were liberal members of philanthropic organizations, and who favored imposing the penalty of life without parole over the death penalty. In fact, the other jurors appellant cites in this comparison all favored the death penalty, or had stated that the existence of prior felony convictions (of which appellant had many) would be a significant factor in deciding whether or not to impose the death penalty.

There is ample evidence supporting the trial judge’s ruling that the prosecutor’s challenge of juror 287 was not based on her race, but on other race-neutral considerations. (See Arias, supra, 13 Cal.4th at p. 136.)

C. Instructions on imperfect self-defense

Next, appellant argues that the trial court erred when instructing the jury on imperfect self-defense, using the standard jury instruction, CALJIC No. 5.17. He first contends the trial court should have omitted the last or third paragraph of the standard instruction, which states in substance that a defendant cannot claim imperfect self-defense when he himself created the danger he faces. Appellant also makes two related claims: the trial court should have defined the terms "unlawful or wrongful conduct" and "legally justified," as used in the last paragraph of this instruction; and there was no substantial evidence to support this particular aspect of the instruction on imperfect self-defense.

The standard jury instruction, CALJIC No. 5.17, was drafted from People v. Flannel (1979) 25 Cal.3d 668, as reaffirmed by In re Christian S. (1994) 7 Cal.4th 768 (Christian S.). As given by the lower court, the instruction stated: "A person, who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully, but does not harbor malice aforethought and is not guilty of murder. This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief. Such an actual but unreasonable belief is not a defense to the crime of voluntary or involuntary manslaughter. [¶] As used in this instruction, an ‘imminent’ peril or danger means one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer. [¶] However, this principle is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary’s use of force, or attack." (We add italics to the last paragraph, which appellant contends should have been omitted.)

A defendant is entitled to an instruction on imperfect self-defense when the record contains evidence of a defendant’s actual (honest) belief he is facing an imminent and unlawful threat of death or great bodily injury, and he objectively, but unreasonably, believed the acts which caused the victim’s death were necessary to avert the threat. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1354-1355.) A defendant’s honest-but-mistaken belief may be the product of a delusion. (People v. Uriarte (1990) 223 Cal.App.3d 192, 197.)

"It is well established that the ordinary self-defense doctrine—applicable when a defendant reasonably believes that his safety is endangered—may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified. [Citations.] It follows, a fortiori, that the imperfect self-defense doctrine cannot be invoked in such circumstances." (Christian S., supra, 7 Cal.4th at pp. 773, fn. 1, italics added in last sentence.)

Appellant argues that the foregoing quoted and italicized language from Christian S., supra, which forms the basis of the last paragraph of CALJIC No. 5.17 is non-binding dicta. While we agree the language is dicta, it is nevertheless persuasive in representing the likely view of our high court on this point. (See People v. Rodriguez (1999) 73 Cal.App.4th 1324, 1330.) We are unwilling to endorse an instruction which would hold that a killer who reasonably acts in self-defense is barred from asserting this defense because he created the original peril, but that a killer who acts unreasonably, after creating the original peril, would not be so barred.

Appellant, however, claims the dicta from Christian S. is neither persuasive nor reflects a thorough analysis, and that it was error to draft a CALJIC instruction in reliance upon its reasoning. His argument rests upon the assertion that the Supreme Court’s analysis erroneously equated the concepts of self-defense and imperfect self-defense. More specifically, appellant states: "Because the self-defense and imperfect self-defense doctrines are qualitatively different and distinct, the rule restricting self-defense where the defendant creates the circumstances justifying the victim’s use of force should not apply to imperfect self-defense."

The distinction between the two doctrines is pointed out in People v. Barton (1995) 12 Cal.4th 186, 199-200: "The sole difference between true self-defense and ‘unreasonable self-defense’ is that the former applies only when the defendant acts in response to circumstances that cause the defendant to fear, and would lead a reasonable person to fear, the imminent infliction of death or great bodily injury [citations]; unreasonable self-defense, on the other hand, does not require the defendant’s fear to be reasonable. ([] Christian S., supra, 7 Cal.4th at p. 773.)"

Both doctrines require a defendant’s actual or honest belief in the need for self-defense. The early decisions of People v. Holt (1944) 25 Cal.2d 59 and People v. Montezuma (1931) 117 Cal.App. 125, discussed the inapplicability of self-defense in circumstances where the defendant’s own wrongful conduct created the need to kill. Each found that a wrongfully self-created belief in the need to exercise self-defense was not an honest belief, and therefore could "‘not be considered reasonable or sufficient in law to support a well-grounded apprehension of imminent danger to his person . . . .’" (Holt, supra, at pp. 65-66.)

Although appellant argues, as a matter of policy and logic, that this principle need not apply to the doctrine of imperfect self-defense, we remain unpersuaded. Rather, we adopt the reasoning of the Attorney General: "In short, a bedrock principle of perfect self-defense—and by logical extension imperfect self-defense—is that the defendant did not wrongfully create the perceived need to kill. That is, where the victim’s attack is justified by the defendant’s initial wrongful conduct, the defendant is scarcely in a position to claim his response to justifiable force was itself justifiable, or mitigated. Acting wrongfully, and then killing someone who justifiably responds to that wrongful act, is no more deserving of mitigation than justification." The last paragraph of CALJIC No. 5.17, even when read alone, does not recite an erroneous principle of law. It faithfully duplicated the language from the opinion in Christian S., supra, 7 Cal.4th at p. 773, fn. 1, which we find to be compelling.

As a separate ground of error, appellant contends the trial court should have omitted the last paragraph of CALJIC No. 5.17 because there was no substantial evidence to support a conclusion that appellant created the danger he faced. We cannot agree. The record contains considerable evidence that leads us to conclude that appellant created the circumstances which could have justified Maldonado’s use of force. For example, the evidence disclosed that the two armed men, Maldonado and appellant, were arguing over another handgun appellant claimed to own. According to appellant, as he approached the vehicle, the victim moved his gun from the car seat to an area between his legs. Maldonado did not point the gun at appellant, but the latter pulled his own gun from the waistband and held it at his side. From appellant’s own version of the facts, the appellant’s act of pulling his weapon can reasonably be viewed as an escalation of the verbal argument that was taking place, justifying the victim’s purported response of pointing his weapon at appellant. Maldonado’s act of reaching for his weapon, if this occurred at all, only took place after appellant had already introduced a gun into the verbal argument, thereby creating the dangerous situation. Although conflicting on this point, substantial evidence nevertheless exists showing that, if appellant was placed in peril, such peril was of his own making. In light of these facts, the lower court correctly refused appellant’s request for an instruction on imperfect self-defense that would have omitted the legal principle contained in the instruction’s final paragraph.

In a related argument, appellant contends the trial court had a duty to define the terms "unlawful or wrongful conduct" and "legally justified" as used in the following excerpt of CALJIC No. 5.17: "However, this principle is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary’s use of force [or] attack." (Italics added.) These terms have a technical meaning peculiar to the law, it is argued, and therefore it was error not to give explanatory instructions defining their meaning.

As a general rule, the trial court has a sua sponte duty to provide amplifying or clarifying instructions "‘where the terms used [in an instruction] have a technical meaning peculiar to the law.’" (People v. Purcell (1993) 18 Cal.App.4th 65, 71.) On the other hand, "[a] trial court has no sua sponte duty to give amplifying or clarifying instructions . . . where the terms used in the instructions given are ‘commonly understood by those familiar with the English language.’" (People v. Kimbrel (1981) 120 Cal.App.3d 869, 872, italics omitted.)

The Attorney General correctly observes that the premise of appellant’s argument is that not every unlawful or wrongful act creates circumstances that legally justify the use of deadly force in response. As an example, he points to appellant’s claim that unlawful conduct, such as a simple assault or an attempt to purchase drugs, could be misinterpreted by the jury as constituting the requisite "unlawful or wrongful conduct" legally justifying Maldonado’s exercise of deadly force in response.

"In reviewing a claim of error in jury instructions in a criminal case, this court must first consider the jury instructions as a whole to determine whether error has been committed. (People v. Epps (1973) 34 Cal.App.3d 146, 168; People v. Nichols (1967) 255 Cal.App.2d 217, 222-223.) We may not judge a single jury instruction in artificial isolation, but must view it in the context of the charge and the entire trial record. (People v. Haskett (1990) 52 Cal.3d 210, 235)" (People v. Moore (1996) 44 Cal.App.4th 1323, 1330-1331; see also People v. Pena (1984) 151 Cal.App.3d 462, 475.) Our analysis must not only recognize that jurors are intelligent persons, capable of understanding and correlating the instructions, but we must consider "the way in which a reasonable juror could have interpreted the instruction." (Sandstrom v. Montana (1979) 442 U.S. 510, 514; People v. Kegler (1987) 197 Cal.App.3d 72, 80.)

Considering the jury instructions as a whole, we do not find that further definition or amplification of these commonly understood terms was required in order for the jury to apply the legal principles of CALJIC No. 5.17. (See People v. Anderson (1966) 64 Cal.2d 633, 639-640; People v. Ordonez (1991) 226 Cal.App.3d 1207, 1229-1230; People v. Tatman (1993) 20 Cal.App.4th 1, 13.) First of all, CALJIC No. 5.17 discusses the killing relative to the defendant’s unreasonable belief in the necessity to defend against "imminent peril to life or great bodily injury." This language essentially directs the jurors to consider the doctrine of imperfect self-defense, focusing upon the actions of the victim and appellant in close temporal proximity to the killing, rather than upon attenuated wrongful or unlawful conduct.

Additionally, other self-defense instructions such as CALJIC No. 5.12 (justifiable homicide in self-defense), speak only of using deadly force in self-defense in order to avoid "death or great bodily injury." These instructions served to reinforce the notion that justification for Maldonado’s use of deadly force could only have been created by "wrongful or unlawful conduct" that threatened death or great bodily injury. Under the instructions given to the jury, appellant’s attempt to purchase drugs, or his purported assault on Maldonado by nondeadly force (of which there was no evidence), would not create a circumstance permitting the victim to use deadly force in response. Nor would appellant, in either instance, be precluded from invoking the doctrine of self-defense.

The trial court’s instructions did not cause the jury to misunderstand or misapply the unreasonable self-defense doctrine. Considered as a whole, the court’s instructions of law fairly informed the jury as to the nature of appellant’s unlawful or wrongful conduct which would created the circumstances legally justifying his victim’s use of force or attack.

Even if we were to find error, we would find it to be harmless. Reversal for improper instruction on a theory of manslaughter, such as imperfect self-defense, is not warranted unless it appears reasonably probable from the entire record that a defendant would have achieved a more favorable result in the absence of such error. (People v. Breverman (1998) 19 Cal.4th 142, 149.)

In the present case, the evidence supports the jury’s verdict of second degree murder. After the two men argued, appellant armed himself with a handgun, approached the vehicle, and shot Maldonado who was seated in his car. The evidence supports the jury’s implied finding that he made no effort to overtly harm appellant. Further, the jury was properly instructed as to the two degrees of murder, voluntary and involuntary manslaughter, justifiable homicide, self-defense and, as we have ruled, imperfect self-defense. Under the circumstances, it is not reasonably probable that appellant would have achieved a more favorable result even if different or more extensive imperfect self-defense instructions were required to have been given. (See Breverman, supra, 19 Cal.4th at p. 149; People v. Watson (1956) 46 Cal.2d 818, 836.)

D. Unanimity instruction as to the attempted robbery of Maldonado

Appellant also argues that the jurors should have been instructed that in order to convict appellant of the attempted robbery of Maldonado, they must unanimously agree on the act constituting the offense.

First, this contention is moot in light of the jury’s verdicts. Appellant was not convicted of the completed offense of robbery, but only of the attempted robbery of Maldonado. An attempted robbery does not require any taking, because it does not require that the act of robbery be completed. (See People v. Scott (1985) 173 Cal.App.3d 937, 942-943 [convictions for attempted robbery upheld, even though defendant did not complete taking of money from victims]; accord, People v. Birden (1986) 179 Cal.App.3d 1020, 1026.) In finding appellant guilty of the attempted robbery, rather than the completed offense as charged in count two of the information, the jury necessarily found the evidence insufficient to establish a taking of the victim’s gun, drugs, money, or gold chain.

Moreover, even if appellant had been found guilty of committing the completed crime of robbery, we would still conclude that a unanimity instruction was unnecessary, since appellant’s taking of the different items of personalty from Maldonado was so closely connected in time as to constitute one indivisible robbery. (See People v. Haynes (1998) 61 Cal.App.4th 1282, 1294-1296.) An attempt to rob a victim of any one of his belongings would have been substantially identical to an attempt to rob him of his other belongings, so that any juror believing one act took place would necessarily believe the others; no unanimity instruction was required, and its absence could not have been prejudicial. (People v. Beardslee (1991) 53 Cal.3d 68, 93; People v. Stankewitz (1990) 51 Cal.3d 72, 100.)

E. Claims of prosecutorial misconduct

The prosecutor committed misconduct in closing argument, appellant contends, by repeatedly attacking defense counsel’s strategy of raising the defense of self-defense. He suggests that a main theme of the prosecutor’s closing argument was that appellant’s trial counsel had abandoned his initial defense of lack of identity, switching instead to self-defense. In a related argument, appellant also contends that the prosecutor’s closing argument made reference to the fact that his testimony regarding the need for self-defense was offered only after appellant had listened to the prosecution’s case-in-chief, as well as the testimony from his own defense witnesses, and he then recognized the need to testify regarding a claim of self-defense to escape conviction at trial.

"The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutor’s . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." (People v. Hill (1998) 17 Cal.4th 800, 819, internal quotation marks omitted.) To obtain a reversal, a defendant must show it is reasonably probable he would have achieved a more favorable result absent the misconduct. (People v. Strickland (1974) 11 Cal.3d 946, 955.)

Here, the prosecutor suggested that appellant’s attempt to raise an issue of self-defense through his testimony was an instance of "any port in the storm," which occurred only after he heard the prosecution evidence and was able to tailor his story to its strengths and weaknesses. The prosecutor pointed out that appellant had at first been proceeding on theories of misidentification or alibi, by calling his friend Reeder, whose testimony on direct examination would have provided appellant with an alibi to the shooting. It was only after Reeder’s testimony collapsed in cross-examination that appellant took the witness stand, confirmed his presence at the crime scene, and claimed he shot Maldonado in self-defense.

It is not improper for a prosecutor to forcefully suggest that a defendant’s theory of self-defense was contrived, and we do not find the comments of this prosecutor as misleading or inflammatory in this regard. In truth, the comments of defense counsel in colloquy with the trial court confirmed this was exactly what happened: Appellant was relying on a defense of misidentification, and had not broached the subject of self-defense until appellant took the stand and testified to that effect. It was appellant’s testimony that caused the entire tenor of the defense case to suddenly shifted away from contesting appellant’s shooting of the victim, to raising the belated claim of self-defense. It was fair game for the prosecutor to comment on such events.

The prosecutor later returned to this theme in his closing argument, again suggesting that the defense was "an ID case, up until the defendant takes the stand and says, forget all that . . . ." There was an objection and allegation of misconduct. After trial counsel had the opportunity to argue outside the presence of the jury, the court overruled the objection and rejected appellant’s allegation of misconduct, ruling as follows: "The Court has read all the cases you cited to me . . . [the] Court is satisfied that the prosecutor did not cross the line. In my view, I believe, it was a fair comment that he made. He was arguing inferences from the evidence that was adduced at this trial. I do not believe that his comments were in any way impugning the integrity of the defense nor was he making any comments on recent fabrication of evidence."

Reference to this change in defense strategy came up yet again during the prosecutor’s rebuttal argument to the jury, when it was compared to a "misdirection play" in football. The court again overruled a defense objection to this metaphor. The prosecutor next attempted to make reference to certain comments of defense counsel from his opening statement at the commencement of trial, but a defense objection cut short his comments. The trial court barred further references to defense counsel’s opening statement, pointing out that "this is rebuttal argument. There’s only been one theory addressed by the defense [in the defense closing argument]. That is self-defense."

The prosecution called the jury’s attention to the testimony of Jurica. In particular, reference was made to the line of questioning of her on cross-examination by defense counsel, which failed to dispute her observations by raising any issue of self-defense. The prosecutor also made reference to the testimony of appellant’s friend Reeder, whose initial testimony afforded appellant a potential alibi defense. Based upon defense counsel’s understanding of the court’s earlier ruling, which precluded comment on his opening statement, the defense again objected and urged misconduct. The trial court properly overruled these objections, permitting the prosecutor to argue issues of self-defense.

The prosecutor once again returned to this topic of shifting defenses:

"Well, okay. He didn’t ask self-defense questions of Jurica who was there. Does not give [a] self-defense story to the police officer when he was arrested, or makes [sic] a statement to Wendy [Nguyen]. He takes [the] stand. Says, Yeah, I told Wendy that I had to shoot him. It was him or me, something to that [e]ffect. When was that question asked of Wendy? . . . When was Wendy asked, by the way, when Mr. Currie came in he didn’t say he robbed him. Didn’t he say he was acting in self-defense? Didn’t he tell you it was either him or Maldonado? Didn’t he say that?" [¶] [Defense counsel:] Objection -- misconduct. [¶] THE COURT: Objection is noted for the record. Overruled. [¶] [The prosecutor:] Now, again I’m not trying to go cast aspersions on defense counsel. What I’m going to ask you to look at is the evidence. Review the testimony, and I’ll tell you[,] during this whole trial, other than Mr. Currie, there was no evidence presented in self-defense."

We agree with the trial court that this argument by the prosecutor, and other similar comments in argument, did not cross the line into improper disparagement of defense counsel. (Cf. People v. Bain (1971) 5 Cal.3d 839, 845-847; Hill, supra, 17 Cal.4th at pp. 832-834.) Rather, these remarks were fair comment on the evidence, or lack thereof, presented to support appellant’s self-defense theory. (See Thompson, supra, 45 Cal.3d at pp. 112-113.) It was appropriate for the prosecutor to point out there was no evidence to support such a theory other than the testimony of appellant, and that appellant had ample opportunity to hear the other witnesses before he testified, and tailor his own testimony accordingly. (Portuondo v. Agard (2000) 529 U.S. 61, 73.) Appellant’s claims of misconduct were properly rejected. (See ibid.)

Finally, we do not conclude, as appellant implies, that the prosecutor argued defense counsel had fabricated evidence. (Thompson, supra, 45 Cal.3d at pp. 112-113.) Clearly such comments would have been misconduct. Instead, it appears that the prosecutor sought to avoid disparaging references to defense counsel, choosing instead to highlight those circumstances that tended to undermine the reliability of appellant’s own testimony. By so doing, he did not engage in misconduct. (See ibid.)

F. Exclusion of defense evidence that the victim wore tattoos.

This claim of error pertains to the trial court’s rejection of the defense’s proffered evidence, as irrelevant, that his victim (Maldonado) had numerous tattoos.

This issue arose during the cross–examination of prosecution witness Marshall, who had earlier testified he had interrupted the discussion or argument between appellant and Maldonado over the gun, in order to purchase methamphetamine. The prosecutor had inquired of Marshall whether the victim was the type of person who could be easily robbed. Marshall responded that Maldonado could not be easily robbed, and that he would get even with the robber if he were still alive.

In an apparent effort to demonstrate that Maldonado had many other potential enemies, defense counsel asked Marshall if the victim was always armed, dealt with armed customers, and was involved in sales of large quantities of drugs. Marshall agreed the victim was such a person. The following colloquy ensued:

"Q. And he belonged to -- His appearance -- He was covered in tattoos wasn’t he? [¶] [The prosecutor]: Objection. That’s irrelevant. [¶] THE COURT: Covered in tattoos? Let’s go over here folks. [¶] (DISCUSSION SIDEBAR) [¶] THE COURT: Go ahead. Where are you going? [¶] [Defense counsel]: What’s the objection? [¶] THE COURT: Irrelevant is the objection. [¶] [Defense counsel]: He has opened the door to what kind of person Mr. Maldonado was. [¶] THE COURT: By? [¶]  [Defense counsel]: By asking is he the type of person you would just walk up and rob. And so I think what he has done is opened the door to us talking about why he would have that opinion, which is not only his gun but his connection[s]. [¶] THE COURT: You have done that. [¶] [Defense counsel]: His affiliations and his tattoos. [¶] THE COURT: I’m not going to allow gang affiliations. [¶] [Defense counsel]: Why not? [¶] . . . [¶] [The prosecutor]: First of all that wasn’t the question. She asked if he had tattoos. So that had nothing to do with gangs. Secondly that has nothing to do with gangs. The prejudicial outweighs the probative value so far exceeds. Just because you ask what type of person doesn’t mean they can go into gangs. Besides they have no proof of that. The fact that he has tattoos, that is absurd. We are getting far afield again. [¶] . . . [¶] THE COURT: Do we have any evidence to establish that the shooting in any way is involved with gangs. Was there any evidence at all to gang shooting? [¶] [The prosecutor]: No. [¶] THE COURT: Have anything to do with the shooting was gang related? [¶] [Defense counsel]: We don’t know. [¶] THE COURT: Well, I think it has pretty well been established he had a gun. Carried a gun. He is a big dope dealer. Everybody knows. I’m sustaining the objection."

In reviewing a trial court’s determinations of relevance, as well as its rulings under Evidence Code section 352, we do not decide the matter de novo, and instead review only for an abuse of discretion. (People v. Babbitt (1988) 45 Cal.3d 660, 681-682; People v. Mayfield (1997) 14 Cal.4th 668, 748.)

The foregoing discussion between court and counsel demonstrates that the victim’s tattoos were not directly relevant to any issue in this case. Nevertheless, appellant now contends for the first time on appeal, that such evidence might have been relevant to his ultimate theory of self-defense, by showing the violent character of the deceased. Of course, appellant failed to make such an offer to the trial court, and we certainly cannot fault the court for not having anticipated appellant’s shift in defense strategy to one of self-defense. We also stress, as did the court below, that this was not a gang-related shooting; it was a shooting arising out of a personal altercation between appellant and the victim, according to appellant, or a robbery, according to the prosecution. Tattoos and gang affiliations were irrelevant, and it was not an abuse of the trial court’s discretion to exclude such evidence. (See People v. Malone (1988) 47 Cal.3d 1, 30.)

G. Firearm-Use Enhancements

Finally, appellant argues the trial court erred in imposing two sentencing enhancements for firearm-use under section 12022.5, subdivision (a), i.e., an enhancement of 10 years on count one (second degree murder) and an enhancement of four years on count two (the attempted robbery of Maldonado). He contends the four-year firearm-use enhancement must be stricken.

Appellant’s argument rests upon the notion that the second firearm-use enhancement duplicated the first such enhancement imposed attending the offense of second degree murder. However, as the jury and the trial court found, appellant’s use of the firearm in the commission of the murder was completed before he attempted to rob the victim, again using the same gun. In ruling that the firearm-use enhancement of four years did not have to be stayed pursuant to section 654, the trial court found the murder and attempted robbery offenses to be divisible transactions with separate intents and objectives. In effect, the lower court concluded that appellant formed the intent to rob after he had shot Maldonado, and therefore appellant’s actions did not constitute a single act against a single victim.

We observe that appellant does not challenge the correctness of the trial court’s sentence on the underlying charges of second degree murder and attempted robbery. Although he does not contend his sentence on the charge of attempted robbery must be stayed, he nevertheless claims that section 654 applies to preclude the imposition of separate sentences as to the gun-use enhancements attending the two offenses. "Where offenses are separately punishable, the gun use enhancements for each offense may be separately imposed." (People v. Sandoval (1994) 30 Cal.App.4th 1288, 1300.)

Appellant however contends the trial court improperly alluded to his use of a firearm against Jurica, and that it imposed the gun-use enhancement in the attempted robbery charge based upon his pointing of the weapon at Jurica in the commission of this offense. He reasons that, since he was not found guilty of robbing Jurica, the jury necessarily also found he did not use the gun against her. The acquittal on the charge of robbing Jurica does not indicate appellant never pointed his gun at her, or at Maldonado for that matter. Although the trial court may have been mistaken in its reference to Jurica, this statement was not the only reason given for imposing separate punishments on to the gun-use enhancements. Primary reliance was placed on the court’s finding that the murder and attempted robbery of Maldonado were divisible transactions. This finding alone justifies the court’s imposition of separate punishments as to the enhancements attending each crime. (See Sandoval, supra, 30 Cal.App.4th at p. 1300; People v. Tameka C. (2000) 22 Cal.4th 190, 200.)

Accordingly, we conclude that the trial court did not abuse its discretion in imposing separate punishments on the two gun-use enhancements.

III. DISPOSITION

The judgment of conviction is affirmed.

STEVENS, J.

We concur.

JONES, P.J.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

BY THE COURT:

The opinion in the above-entitled matter filed on January 30, 2001, was not certified for publication in the Official Reports. For good cause it now appears that the opinion should be partially published in the Official Reports, and it is so ordered. Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II.B through II.G.

It is further ordered that the opinion be modified as follows:

1. The third paragraph of the introduction to the opinion, which begins, "Appellant’s other contentions . . . " is deleted in its entirety.

2. The first sentence of footnote 3 on page 9 is modified to read as follows:

"The Attorney General claims we should consider figures from 6 percent to 4.6 percent, since approximately 6 percent of the jurors in appellant’s own venire were of African-American decent."

Appellant’s petition for rehearing is denied.

This modification does not effect a change in the judgment.

Dated:_____________________ ______________________________

JONES, P.J.

Trial Judge Hon. Garrett J. Grant

Trial Court Contra Costa County Superior Court

Counsel for Appellant C. Elliot Kessler, under appointment by the Court of Appeal, for defendant and appellant

Counsel for Respondent Bill Lockyer,

Attorney General,

David Druliner,

Chief Assistant Attorney General,

Ronald A. Bass,

Senior Assistant Attorney General,

Ronald S. Matthias,

Supervising Deputy Attorney General,

Martin S. Kaye,

Deputy Attorney General