Dunn

A jury convicted defendant John Donald Dunn of first degree murder (Pen. Code, §§ 187, 189) 1 and found he personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)). The trial court modified the verdict (§1181, subd. 6) to second degree murder because the court was not satisfied beyond a reasonable doubt that the killing was deliberate and premeditated. Sentenced to the upper term of five years for the section 12022.5 enhancement and to a term of fifteen years to life for second degree murder, defendant appeals claiming the trial court erred in denying his Wheeler motions (People v. Wheeler (1978) 22 Cal.3d 258 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ] [hereafter Wheeler]), committed Doyle error *1043 (Doyle v. Ohio (1976) 426 U.S. 610, 618 [ 49 L.Ed.2d 91, 98 , 96 S.Ct. 2240 ]), and erred in imposing the upper term for the section 12022.5 enhancement.

In the published portion of this opinion, we reject defendant’s contention that a comparative analysis of the prospective jurors who were excused by the prosecutor’s peremptory challenges and those who were chosen to serve on the jury reveals that the race-neutral reasons stated by the prosecutor for…

I concur in the judgment and in parts II and III of the opinion. As to part I, I concur in the result on the view that it is compelled by the California Supreme Court’s decision in People v. Montiel (1993) 5 Cal.4th 877 [ 21 Cal.Rptr.2d 705 , 855 P.2d 1277 ] and is supported by the recent decision of the United States Supreme Court in Purkett v. Elem (1995) _ U.S. _ [ 131 L.Ed.2d 834 , 115 S.Ct. 1769 ].

The defendant challenges the striking of Black jurors on the ground the reasons offered by the prosecutor for their exclusion were pretextual in that the same reasons could have been applied to strike other jurors who were not challenged. The use of such comparative data is ruled out by People v. Montiel, supra, That rule has not been overturned by Purkett v. Elem, supra,

But if comparative data may not be used to show that the reasons offered for striking Black jurors are pretextual, such data also may not be used to show they were not pretextual, as the majority suggests. What may be shown at this (third) stage of review is the “persuasiveness of the justification.” (Purkett v. Elem, supra, ___U.S. at p. __ [ 131 L.Ed.2d at p. 839 ].) As the United States Supreme Court has…

[Opinion certified for partial publication. [*] ]

OPINION

SCOTLAND, J.

A jury convicted defendant John Donald Dunn of first degree murder (Pen. Code, §§ 187, 189) [1] and found he personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)). The trial court modified the verdict (§ 1181, subd. 6) to second degree murder because the court was not satisfied beyond a reasonable doubt that the killing was deliberate and premeditated. Sentenced to the upper term of five years for the section 12022.5 enhancement and to a term of fifteen years to life for second degree murder, defendant appeals claiming the trial court erred in denying his Wheeler motions ( People v. Wheeler (1978) 22 Cal.3d 258 [ 148 Cal. Rptr. 890 , 583 P.2d 748 ] [hereafter Wheeler ]), committed Doyle error ( Doyle v. Ohio (1976) 426 U.S. 610, 618 [ 49 L.Ed.2d 91, 98 , 96 S.Ct. 2240 ]), and erred in imposing the upper term for the section 12022.5 enhancement.

In the published portion of this opinion, we reject defendant's contention that a comparative analysis of the prospective jurors who were excused by the prosecutor's peremptory challenges and those who were chosen to serve on the jury…