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THE PEOPLE, Plaintiff and Respondent,
v.
TODD JAMES GILBERT, Defendant and Appellant.

C050159

Court of Appeal of California, Third Appellate District, Sacramento

October 10, 2007

CANTIL-SAKAUYE, J.
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Defendant appeals from a 15-year state prison sentence alleging the court erroneously denied his Wheeler/Batson motion for mistrial based on group bias. (People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson).) We disagree that the court erroneously denied his Wheeler/Batson motion and will affirm the judgment.[1]

A jury convicted defendant Todd James Gilbert of infliction of corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a) — count one);[2] battery causing serious bodily injury (§ 243, subd. (d) — count two); and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1) — count three). In connection with count two, the jury found that defendant personally inflicted serious bodily injury. The aggravating factors charged in the information, some of which the jury found true and others untrue, are not material to this appeal.[3]
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I.

FACTS
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We need not discuss the facts underlying the offenses since they are not relevant to defendant's contention on appeal. Instead, we set forth the relevant facts from voir dire, defendant's challenge and the court's ruling.

A.
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Voir Dire of the Four Challenged Jurors

Prospective Juror R.I.

During voir dire examination by the court, R.I. stated that he had previously served as a juror on two cases, a fraud case and a DUI case, both of which went to deliberation. He stated that the experience did not affect his attitude about being a juror again. As a biologist for the Department of Fish and Game, R.I. explained that he had contact with wardens and had been "on a couple of search warrants" in environmental pollution cases to provide technical information. He had numerous friends including sworn peace officers in the department. R.I. also sits as a volunteer on the Sacramento Police Advisory Board which discusses various law enforcement policies. Based on that experience, he "h[e]ld [police officers] to a higher standard" and "expect[ed] more from them" "because they have arrest powers, but as far as their testimony, . . . it could go either way depending on the evidence." He was chapter president of the Japanese-American Citizens League when its offices were fire bombed along with others during a "ration of hate crimes" in 1992 or 1993 and worked with the police in their investigation in trying to "decoy the perpetrator in" the offices. As a result of the investigation someone was arrested and tried. R.I. went to court during the "hate crime trials" every day "to view the [jury] trial" in order to report back to the organization. He had some direct contact with both the district attorney and the criminal defense attorney. He had no negative feelings as a result of the trial or his contact with the attorneys and the experience would not affect him.
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During voir dire examination by defense counsel, R.I. stated that if he had been misquoted, he would correct it by talking to the person who misquoted him and clarify it with people who heard it. He further explained the hate crimes as having been directed at not only his Japanese-American organization, but also the NAACP, Jimmy Yee's office and the Office of Fair Housing and Employment. R.I. took the firebombing of his organization personally because it was aimed at someone he represented. He was still involved in the organization as a board member. As a member of the police advisory board, one of the policies discussed was racial profiling. He was aware there was a bill to change the pursuit policy and did not agree with the then police policy based on "some of the things [he had] seen on TV lately."

When questioned by the prosecutor, R.I. stated that the lack of scientific evidence in the current case would not make him uncomfortable in judging the evidence.
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Prospective Juror I.D.

During voir dire by the court, I.D. explained that she had never been on a jury or to court and knew no peace officers. She had a nephew who was arrested for burglary and was sentenced to prison. She did not maintain contact with him. Neither she nor her family had any problems with the way in which the matter was handled. She stated that her nephew's case did not make her uncomfortable sitting as a juror. She had a cousin who retired from the Oakland Police Department. Her ex-husband was arrested for DUI. Neither relationship affected her. She retired from Alameda County Department of Social Services. She worked in a strictly clerical capacity but read the reports about crime and child abuse. When asked about reading reports with issues of domestic violence, she stated "[n]ot really." She believed she could be fair to both sides.

When questioned by defense counsel, I.D. stated that when she worked for social services, she had at one time answered the phones but never met the public in person stating, "[y]ou did not want to meet with them in person."

When questioned by the prosecutor, I.D. stated that she had three grown children — her oldest daughter attended culinary school and her youngest daughter ran a daycare center.
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Prospective Juror G.A.

During voir dire by the court, G.A. stated that he had a couple of friends who had DUIs. With respect to the police as witnesses, defendant stated, "Um, it's — I don't know. I mean, I like to say every man is innocent until proven guilty. You have to listen to what he says. I can't really say that he is lying or he is there or that just because he has a uniform on, but, you know. [¶] . . . [¶] Well, I mean, you know, in some cases it could be hard because you don't know actually what happened or what the circumstances that, you know, that fell into place with that, you know, because they're doing their job, but, you know, they can also stretch it out, stretch the truth or do whatever. So you don't know. So, I mean, like I said, I would have to listen to it and see, you know, you know what was going on before, you know, I made my final judgment." G.A. had been arrested for DUI in 1997 "but it was not a big thing." He pled no contest. When asked whether he would treat a peace officer the same way as anyone else, G.A. stated, "I know it would be better if I didn't know he was a peace officer." The court asked, "Are you joking with me, sir?" G.A. responded that he was "just being honest." Thereafter, G.A. stated that he would have an open mind about an officer's testimony. G.A. knew, but denied having witnessed, people who had been physically abused and did not "understand why they still be with that person so on and so forth but that is their problem and they need to resolve it."
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Later, in camera, G.A. was asked about something he had circled on his juror questionnaire form, that he had been convicted of a felony. He stated that it was the DUI but did not know it was just a misdemeanor since it was his first one. He stated that he is a maintenance technician for an apartment complex. When he had to investigate a disturbance in one apartment belonging to a man, he witnessed a woman tearing the apartment up and grabbing the man's face. When G.A. intervened she put her hands in his face. He had to grab her and then called the police. He said it was "the first time [he had] seen a woman attack a man."

In response to the court's question about ever feeling threatened with violence, G.A. stated that he was maced when he refused to get off of Regional Transit when it was discovered he was riding without a ticket. He explained that the ticket machine was malfunctioning. When his case was called in court, it was dismissed. G.A. did not file a complaint.

In response to defense counsel's questions, G.A. stated that he could be fair to both sides. The prosecutor appears to have asked no questions of G.A.

Prospective Juror M.I.

In response to the court's voir dire, M.I. stated that he had volunteered in 2001 and 2002 for the Yuba City Police community outreach program. He had previously been a board member for the Pakistan-American Association and it had a community program. He had no particular feelings about peace officer witnesses. M.I. worked as an engineer on a state water project. His spouse worked for a private agency evaluating middle and high schools. He had no other comments, questions or concerns and stated that he could be fair.
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During defense counsel's questioning, M.I. clarified that the community outreach program for the city involved assisting the public in using a computer terminal to check for sex offenders in their neighborhoods.

M.I. later informed the court that he had omitted information from his questionnaire. He forgot to mention that he had been through an uncontested divorce in 2000, that he was a part-time student at UC Davis extension in the project management program, and that he was a notary public. Neither counsel had any questions about the added information.

B.

Defendant's Wheeler/Batson Motion

The prosecutor used her first, second and third peremptory challenges to remove I.D., G.A. and R.I., respectively. When the prosecutor used her seventh challenge to remove M.I., defense counsel raised Wheeler/Batson and moved for a mistrial, arguing that the prosecutor had excused "now of her seven challenges" four minorities, G.A. and I.D. who were both Black, M.I. who was Pakistani, and R.I. who was Japanese. Defense counsel stated, "I don't know why she would get rid of four out of seven challenges, four of them would be minorities." The court requested that defense counsel state a basis for her motion, noting that, "`I don't know why'" was insufficient grounds. With respect to G.A., defense counsel stated that G.A. had assured the court and parties that he could be fair to both sides as had all four who had been excused by the prosecutor. The court recalled that G.A. had a "manner of sort of going off on tangents" and "rambl[ed]." The court thought that would be sufficient cause. The court noted that I.D. had worked with victims was also sufficient cause. The court recalled nothing negative about R.I. With respect to M.I., the court found it difficult to understand him. The court asked the prosecutor to explain her reason with respect to R.I., finding that defense counsel had failed to make a prima facie showing for the other three but invited the prosecutor to make a record if she so desired.
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1. The Prosecutor's Explanation For Her Use Of The Challenged Peremptories

The prosecutor noted that I.D. worked for social services and the prosecutor was concerned about what she may have learned through that employment. The prosecutor also cited I.D.'s questionnaire, commenting that it was "somewhat confused," in that she was not responsive to the questions. Based on that, the prosecutor was concerned that she would have a difficult time in deliberations.[4]

With respect to G.A., the prosecutor cited his demeanor as well as his comment that he did not know why people stayed with their abusers. The prosecutor believed that G.A. might hold the People to a higher standard in the present case because the victim had stayed with her abuser. The prosecutor also cited his incident on RT and his confusion that his prior was a misdemeanor not a felony.

With respect to M.I., the prosecutor found him to be "extremely difficult to understand." The prosecutor was concerned that M.I. did not understand the purpose of voir dire in that he had forgotten to disclose some information. The prosecutor stated, "We want people to participate in the deliberations process and not stand by and wait until the last minute to bring up an idea which causes problems."

The prosecutor stated that she excused R.I. because he expects more from the police because of the arrest power. The prosecutor believed that he would hold officers to a higher standard with respect to writing reports and in testifying. The prosecutor was also concerned because he had sat through an entire hate crime trial and may have sat in on hearings outside the presence of the jury which may give rise to speculation and cause problems in deliberations in the present case.

Later, the prosecutor pointed out that even after her peremptory challenges, the panel had one Black woman and two Black men. The prosecutor noted that defense counsel had used peremptory challenges to excuse an Asian juror and an Indian juror.
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2. The Defense Response

Defense counsel stated that she had no problem understanding M.I. With respect to R.I., defense counsel noted that the prospective juror considered himself a victim. Defense counsel noted that I.D. had a cousin who had worked for the Oakland Police Department. And finally, with respect to G.A., defense counsel stated, "I just don't know what to say."

3. The Court's Conclusion

The court concluded that G.A. was "problematical" with his "mannerisms" and "attitude." The court found that the prosecutor had sufficient reason and there was no "strong suspicion" that the challenge was based on a racial reason. With respect to M.I., the court concluded that the prosecutor's reason that M.I. had the inability to fully respond to the questionnaire was reasonable. The court determined that the prosecutor's reasons for I.D. and R.I. were also reasonable. The court found no inference of a discriminatory purpose in excusing the jurors and denied the motion.

II.

DISCUSSION
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"`The use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution (People v. Wheeler[, supra, 22 Cal.3d at pp. 276-277]) as well as the equal protection clause of the Fourteenth Amendment to the United States Constitution. (Batson v. Kentucky [,supra,] 476 U.S. [at p.] 89 [ ]).' [Citation.] `A party who suspects improper use of peremptory challenges must raise a timely objection and make a prima facie showing that one or more jurors has been excluded on the basis of group or racial identity. . . . Once a prima facie showing has been made, the prosecutor then must carry the burden of showing that he or she had genuine nondiscriminatory reasons for the challenge at issue.' [Citation.] `"[T]he trial court must then decide . . . whether the opponent of the strike has proved purposeful . . . discrimination."' [Citation.]" (People v. Ward (2005) 36 Cal.4th 186, 200 (Ward).)

"`The trial court's ruling on this issue is reviewed for substantial evidence.' [Citation.] `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. [Citation.]' [Citation.] `[I]n fulfilling [this] obligation, the trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor's [nondiscriminatory] reason for exercising a peremptory challenge is being accepted by the court as genuine. This is particularly true where the prosecutor's [nondiscriminatory] reason for exercising a peremptory challenge is based on the prospective juror's demeanor, or similar intangible factors, while in the courtroom.' [Citation.]" (Ward, supra, 36 Cal.4th at p. 200.)

"The proper focus of a Batson/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. [Citation.] So, for example, if a prosecutor believes a prospective juror with long, unkempt hair, a mustache, and a beard would not make a good juror in the case, a peremptory challenge to the prospective juror, sincerely exercised on that basis, will constitute an entirely valid and nondiscriminatory reason for exercising the challenge. [Citation.] It matters not that another prosecutor would have chosen to leave the prospective juror on the jury. Nor does it matter that the prosecutor, by peremptorily excusing men with long unkempt hair and facial hair on the basis that they are specifically biased against him or against the People's case or witnesses, may be passing over any number of conscientious and fully-qualified potential jurors. All that matters is that the prosecutor's reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory. `[A] "legitimate reason" is not a reason that makes sense, but a reason that does not deny equal protection. [Citations.]' [Citation.]" (People v. Reynoso (2003) 31 Cal.4th 903, 924,italics omitted.)
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In Miller-El v. Dretke (2005) 545 U.S. 231 [162 L.Ed.2d 196] (Miller-El) and Johnson v. California (2005) 545 U.S. 162 [162 L.Ed.2d 129], the United States Supreme Court clarified the standards applicable to a defendant's motion claiming the prosecutor engaged in racial bias during jury selection.

In Johnson v. California, supra, 545 U.S. at pages 168-169, 173 [162 L.Ed.2d at pp. 138, 141], the United States Supreme Court rejected a test previously established by the California Supreme Court for a prima facie showing of racial bias. Thus, for a prima facie showing, instead of the "`more likely than not'" standard the proper standard is whether "`the totality of the relevant facts gives rise to an inference of discriminatory purpose.'"

Here, voir dire was held in April 2005. Johnson v. California, supra, 545 U.S. 162 [162 L.Ed.2d 129] was decided in June 2005. Thus, defendant contends that the trial court "necessarily applied the more stringent standard" but had it "applied the proper standard and also considered the showing of statistical disparity, it would have properly found a prima facie case of group discrimination . . . ."

The trial court initially stated that it found that defense counsel had not made a prima facie showing with respect to three of the prospective jurors; G.A., I.D., or M.I. Defense counsel only offered that the prosecutor had used four out of the first seven of her peremptory challenges to excuse minorities and that all four had assured the court that they could be fair. Such a showing is weak. With respect to the fourth prospective juror, R.I., the trial court invited the prosecutor to explain, implying that a prima facie showing had been made as to R.I. The prosecutor proceeded to explain her reasons for all four excused jurors. After the defense counsel responded, the court determined the prosecutor's reasons were race-neutral as to all four excused jurors.

Applying the standard set forth in Johnson v. California, supra, 545 U.S. at pages 168-169, 173 [162 L.Ed.2d at pp. 138, 141], we will assume that defense counsel made a prima facie showing with respect to G.A., I.D. and M.I. Moreover, the issue of defendant's showing is moot since the trial court subsequently considered the prosecutor's reasons for all four excused jurors. (Ward, supra, 36 Cal.4th at pp. 200-201, citing Hernandez v. New York (1991) 500 U.S. 352, 359 [114 L.Ed.2d 395, 405].)

Miller-El, supra, 545 U.S. at pages 251-252 [162 L.Ed.2d at p. 221] held that comparative juror analysis (i.e., comparing the traits of prospective jurors used by the prosecutor as grounds for removal to those of seated jurors) may be conducted in evaluating whether a prosecutor's facially neutral reason conceals racial bias and the trial judge is required to "assess the plausibility of that reason in light of all evidence with a bearing on it."

Assuming a comparative juror analysis is required when raised, defendant has not presented a comparative juror analysis argument. Thus, we will not conduct one ourselves. (See Miller-El, supra, 545 U.S. at p. 241, fn. 2 [162 L.Ed.2d at p. 215]; People v. Bradford (1997) 15 Cal.4th 1229, 1340; People v. Cooks (1983) 141 Cal.App.3d 224, 329; People v. Johnson (1962) 210 Cal.App.2d 273, 278.)

Defendant asserts if a prima facie case was established as to all four jurors, then the matter must be remanded because the prosecutor's reasons were "not necessary and irrelevant" and defense counsel "ha[d] no duty to rebut them." We do not agree. Defendant's analysis essentially ignores that although the trial court initially found no prima facie case for G.A., I.D. and M.I., it allowed the prosecutor to make a record. She did and defense counsel rebutted some of the reasons. "Although we generally `accord great deference to the trial court's ruling that a particular reason is genuine,' we do so only when the trial court has made a sincere and reasoned attempt to evaluate each stated reason as applied to each challenged juror. [Citations.]" (People v. Silva (2001) 25 Cal.4th 345, 385-386.) Here, the court found the prosecutor's stated reasons as to each excused juror to be race-neutral. Remand is not required because there are no further proceedings to conduct.

Defendant also complains that the trial court gave the prosecutor a "complete road map," that is, the race-neutral reasons to use. While the prosecutor reiterated some of the trial court's reasons, we need not decide whether the trial court's statement of reasons at the outset was improper. Defendant's claim that the court's "flawed" methodology suggests that the trial court may have found the prosecutor used racial grounds to challenge G.A., I.D. and M.I., makes no sense and finds no support in the record. Citing Paulino v. Castro (9th Cir. 2004) 371 F.3d 1083 at page 1090, defendant argues that "`[i]t does not matter that the prosecutor might have had good reasons to strike prospective jurors'" but rather "`[w]hat matters is the real reason they were stricken.'" The court's method expressing some of its reasons why it believed a prima facie showing had not been made simply shows that the trial court expressed its thoughts before giving the prosecutor an opportunity to do so, nothing more and nothing less. The prosecutor stated additional and/or different reasons for excusing some of the jurors. We thus consider the prosecutor's stated reasons for exercising her peremptory challenges to I.D., G.A., M.I. and R.I.

As to I.D., the prosecutor was concerned about her employment with social services, that is, what she may have learned having read reports, and also cited I.D.'s questionnaire as not responsive to the questions suggesting she would have a difficult time in deliberations. In rebuttal, defense counsel stated that I.D. had a cousin who had worked for the Oakland Police Department.

The prosecutor stated a nondiscriminatory reason for exercising her peremptory challenge to remove I.D. I.D. worked in a county's social services department and although clerical, stated that she read the reports and had dealt with the public on the telephone. Peremptory challenges based on experience in social services is a proper race-neutral reason. (People v. Trevino (1997) 55 Cal.App.4th 396, 411; People v. Perez (1996) 48 Cal.App.4th 1310, 1315.) The prosecutor's additional reason, that is, I.D.'s failure to respond to the questions was not rebutted by defense counsel so we assume that reason was accurate and it likewise is race-neutral.

As to G.A., the prosecutor believed that he may hold the People to a higher standard in the current case because the victim had stayed with her abuser and G.A. had commented he did not understand why victims stayed with their abusers. The prosecutor also cited his incident on Regional Transit, his confusion about his prior conviction and his demeanor. Defense counsel did not rebut any of these reasons, commenting, "I just don't know what to say."

The prosecutor stated several nondiscriminatory reasons for exercising her peremptory challenge to remove G.A. His beliefs about domestic violence victims and his confusion about his prior conviction were race-neutral reasons. His demeanor was also cited which the trial court confirmed. His answers to some of the questions the court asked support this conclusion. For example, when asked whether he would treat a peace officer the same way as anyone else, G.A. stated, "I know it would be better if I didn't know he was a peace officer." The court asked, "Are you joking with me, sir?" G.A. responded that he was "just being honest."

As to M.I., the prosecutor found him to be difficult to understand and was concerned that he did not understand the purpose of voir dire because he had failed to disclose some information at the outset. Defense counsel stated that she had no problem understanding M.I.

At trial, the only time defendant's rebuttal was responsive to the prosecutor's reasons for removal was as to M.I. and his accent. Defendant again challenges only the prosecutor's stated reasons for removing M.I. Defendant does not challenge the prosecutor's reasons for exclusion of the other three. Whether M.I.'s accent made him difficult to understand or not, the prosecutor stated another nondiscriminatory reason for exercising her peremptory challenge to excuse him and the record supports her reason. Some time after voir dire by the court and questioning by defense counsel, M.I. informed the court that he had omitted the following information from his questionnaire: he had been through an uncontested divorce in 2000, he was a part-time student at UC Davis extension in the project management program, and he was a notary public. The prosecutor stated that M.I. did not understand the purpose of voir dire in that he had failed to disclose information at the outset and his failure to timely disclose information may prove troublesome during deliberations. The trial court found the reason to be reasonable. The reason is supported by the record and a race-neutral reason. Defendant asserts that forgetting "minor details on a jury questionnaire" is "bogus" in light of M.I.'s work experience and education. We simply disagree.

As to R.I., the prosecutor stated she excused him because she believed that he would hold officers to a higher standard with respect to their reports and testimony. The prosecutor was also concerned because he had sat through an entire hate crime trial and may have sat in on hearings outside the presence of the jury which may cause problems in deliberations in the current case. Defense counsel noted that R.I. considered himself a victim.

The prosecutor's belief that R.I. would hold the police officer witnesses to a higher standard is a sufficient race-neutral reason as is her concern that there could be problems in deliberations with someone who had sat in on an entire trial and learned what may be discussed outside the presence of the jury.

When defendant made his Wheeler/Batson objection, the prosecutor noted that the panel included one Black woman and two Black men after the prosecutor excused four minorities. The court and defense counsel did not disagree with that assessment. "`While the fact that the jury included members of a group allegedly discriminated against is not conclusive, it is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection.' [Citation.]" (Ward, supra, 36 Cal.4th at p. 203.)

Defendant has failed to demonstrate that the prosecutor improperly exercised her peremptory challenges. We reject defendant's contention that the trial court erroneously denied his Wheeler-Batson motion.

DISPOSITION

The judgment is affirmed.

We Concur:

SCOTLAND, P.J.

MORRISON, J.

[1] In his opening brief, defendant contended that the trial court erred in failing to instruct the jury that great or serious bodily injury requires prolonged loss of unconsciousness. After the Attorney General filed his brief noting that defendant relied on overruled authority for his contention, defendant moved to withdraw the argument and to add new contentions. This court denied his motion to withdraw the argument but permitted counsel to file a supplemental brief. In his supplemental brief, defendant has raised only the Wheeler/Batson issue. With respect to the instructional issue originally raised in defendant's opening brief, we agree with the Attorney General and defendant's concession that the authority relied upon has been overruled. (People v. Escobar (1992) 3 Cal.4th 740, 745-753, overruling in part People v. Caudillo (1978) 21 Cal.3d 562.) Thus, we will not further discuss the issue raised in defendant's opening brief.

[2] Hereafter, undesignated statutory references are to the Penal Code.

[3] In bifurcated proceedings, defendant admitted other aggravated factors and a prior serious felony conviction allegation (§ 667, subd. (a)), as well as a strike prior (§§ 667, subds. (b)-(i), 1170.12).

[4] We granted defense appellate counsel's augmentation request for "[a]ll completed juror questionnaires." In response, the court received only 14 completed juror questionnaire forms. In his augmentation request, defense appellate counsel stated that the courtroom clerk informed him that the trial court's policy required retention of only seated juror questionnaire forms and that the others are discarded.