Mai

Defendant Hung Thanh Mai was convicted by the court, as charged, of the first degree murder of Don Joseph Burt (Pen. Code, §§ 187, 189). 1 The court further found true, as a special circumstance, the allegation that the killing was intentional, and that defendant knew or should have known the victim was a peace officer engaged in the performance of duty. *994 (§ 190.2, subd. (a)(7) (section 190.2(a)(7).) A penalty jury returned a death verdict. The automatic motion for modification of the verdict (§ 190.4, subd. (e)) was denied, and defendant was sentenced to death. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); Pen. Code, § 1239, subd. (b).) We will affirm the judgment in its entirety.

FACTS

A. Guilt and special circumstance evidence.

As to the criminal charge of first degree murder and the peace officer special circumstance allegation, defendant waived his jury trial, self-incrimination, and confrontation rights, and stipulated that the court would determine those issues from the preliminary hearing transcript. That transcript included the following evidence.

About 8:30 p.m. on July 13, 1996, Bernice Sarthou pulled into Pepe’s Mexican restaurant…

The trial court in this case denied defendant’s objection to the prosecutor’s peremptory strikes of all three black prospective jurors with the following statement: “Well, the court finds that no discriminatory intent is inherent in the explanations, and the reasons appear to be race neutral, and on those grounds the court will deny the Wheeler motion.” Because defendant has not shown that it was more likely than not that the strikes were racially motivated, I agree that his claim must be denied. I cannot agree, however, with aspects of today’s opinion that improperly defer to the trial court’s ruling and, in so doing, fail to evaluate defendant’s claim in the manner that high court precedent requires.

Batson v. Kentucky (1986) 476 U.S. 79 [ 90 L.Ed.2d 69 , 106 S.Ct. 1712 ] (Batson) set forth a three-step framework for evaluating a claim that a peremptory strike was based on race. “First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citation.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial…

FACTS

A. Guilt and special circumstance evidence. As to the criminal charge of first degree murder and the peace officer special circumstance allegation, defendant waived his jury trial, self-incrimination, and confrontation rights, and stipulated that the court would determine those issues from the preliminary hearing transcript. That transcript included the following evidence. About 8:30 p.m. on July 13, 1996, Bernice Sarthou pulled into the Pepe‘s Mexican Restaurant on North Placentia Avenue just south of its intersection with Nutwood Avenue in Fullerton. The sun was still up, so she was wearing her prescription sunglasses. She left her car and entered the restaurant, but saw it was full, so she returned to her car and got into the drive-through line. As she did so, she saw a patrol car, with its lights flashing, stopped behind a white BMW. A young Vietnamese male was sitting in the driver‘s seat of the BMW, and a uniformed officer was sitting in the patrol car. When Sarthou looked at the BMW‘s driver, he leaned forward, gripped his steering wheel, and gave her a ―hard stare.‖ As the drive-through line moved forward, Sarthou lost sight of the two cars she had seen. She ordered…