There was no Wheeler error where two Hispanic jurors expressed uncertainty about being able to rely on the interpreter’s translation. During appellant’s trial for second degree robbery, the prosecutor excused two Hispanic prospective jurors because they expressed uncertainty about their ability to put their own Spanish fluency aside and accept the translations of the interpreter. On appeal, appellant contended that the prosecutor exercised group bias in excusing the two jurors. The appellate court rejected the argument. The trial court made a sincere inquiry into the prosecutor’s reasons for challenging the jurors. Substantial evidence supported the trial court’s decision to credit the prosecutor’s race-neutral reasons for excusing the jurors.
The trial court committed prejudicial error when it imposed the upper term sentence based entirely on facts not found by the jury. At appellant’s sentencing hearing, the prosecutor argued for the upper term based on the fact that appellant induced others to participate in the crime, he occupied a position of leadership in its commission, and the offense showed planning and sophistication. They did not mention appellant’s criminal record. The court relied on the planning and sophistication to impose the upper term. While appellant’s prior convictions were included in the probation report, they were neither cited by the prosecutor in his argument nor mentioned by the trial court as an aggravating factor warranting the upper term sentence. Nothing in Black II suggests that the mere fact of a prior conviction mentioned in the probation report but not mentioned by the trial court can justify the imposition of an upper term. The fact that the trial court could have hypothetically imposed the upper term without committing error begs the question whether the court committed error in imposing the upper term the way it did. “We review the trial court’s reasons – we don’t make them up.” Resentencing was required.