Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. SF013408A. Gary T. Friedman, Judge.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
A jury found Salvador Garcia guilty of the commission of six crimes against his wife – felony penetration by foreign object (hands), felony assault with intent to commit penetration by foreign object (hands), felony sexual battery, felony assault with a deadly weapon (knife), felony criminal threats, and misdemeanor spousal battery – and found true various allegations of personal use of a deadly weapon (knife). (Pen. Code, §§ 220, subd. (a), 243, subd. (e)(1), 243.4, subd. (a), 245, subd. (a)(1), 289, subd. (a), 422, 654, 667.1, subds. (a), (e)(4), 12022, subd. (b)(1), 12022.3, subd. (a).)
The court sentenced Garcia to an aggregate determinate 3-year term and an aggregate indeterminate 15-to-life term. On count 1, the court imposed a 15-to-life term for penetration by foreign object (hands) (Pen. Code, § 289, subd. (a)) with personal use of a deadly weapon (knife) (§§ 667.1, subds. (a), (e)(4), 12022.3, subd. (a)). On count 2, the court imposed and stayed a 4-year (middle) term for assault with intent to commit penetration by foreign object (hands) (§§ 220, subd. (a), 289, subd. (a), 654) plus a 4-year (middle) term for personal use of a deadly weapon (knife) (§ 12022.3, subd. (a)) plus a 1-year term for personal use of a deadly weapon (knife) (§§ 654, 12022, subd. (b)(1)). On count 3, the court imposed and stayed a 3-year (middle) term for sexual battery (§§ 243.4, subd. (a), 654) plus a 1-year term for personal use of a deadly weapon (knife) (§§ 654, 12022, subd. (b)(1)). On count 4, the court imposed and stayed a 90-day term for misdemeanor spousal battery (§§ 243, subd. (e)(1), 654). On count 5, the court imposed a 3-year (middle) term for assault with a deadly weapon (knife) (§ 245, subd. (a)(1)). On count 6, the court imposed and stayed a 2-year (middle) term for criminal threats (§§ 422, 654) plus a 1-year term for personal use of a deadly weapon (knife) (§§ 654, 12022, subd. (b)(1)).
Later statutory references are to the Penal Code except where otherwise noted.
On appeal, Garcia argues (1) Batson/Wheeler error, (2) an insufficiency of the evidence of penetration in the penetration by foreign object count, and (3) impermissible multiple convictions of penetration by foreign object and of the lesser included offense of assault with intent to commit penetration by foreign object. We will order the conviction of the lesser included offense stricken from the judgment but will otherwise affirm the judgment.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnson v. California (2005) 545 U.S. 162, 173 (Johnson).
DISCUSSION
1. Jury Selection
Arguing Batson/Wheeler error, Garcia focuses his challenge on the court’s acceptance of the prosecutor’s reasons for excusing all Hispanic prospective jurors from the venire as race-neutral. The Attorney General argues there was no error.
A prosecutor’s use of peremptory challenges to excuse a prospective juror on the basis of group membership violates a criminal defendant’s federal constitutional right to equal protection of the laws and state constitutional right to trial by a jury drawn from a representative cross-section of the community. (People v. Gray (2005) 37 Cal.4th 168, 183-184; 14th Amend., U.S. Const.; art. I, § 16, Cal. Const.) To determine if the record shows a constitutional violation, we turn, first, to the record and, second, to the law.
On voir dire, the first Hispanic prospective juror at issue, No. 882647, stated that he worked as an equipment operator for a farming company and that his wife worked for a rose-growing company on a part-time basis. He had served on a criminal jury in a grand-theft case in which the jury reached a verdict. He thought nothing in that case affected his ability to be fair and impartial. He had no close friends or relatives in law enforcement and did not know Garcia, either lawyer, any potential witness, any private criminal defense attorney, anyone in the district attorney’s office, or anyone in the public defender’s office.
Asked if anything about the case or the charges would affect his ability to be fair and impartial, if crimes similar to the ones charged had affected his life or the life of anyone close to him, if he had ever had an unpleasant experience with law enforcement, and if he or a close friend or relative had ever been charged with or victimized by a crime, No. 882647 answered in the negative. He could think of no reason why he could not give both sides a fair trial. The prosecutor asked no questions of him.
The second Hispanic prospective juror at issue, No. 954911, stated that she worked as an office service supervisor, and that her husband worked as an industrial supervisor of maintenance and repair, for the Department of Corrections and Rehabilitation. Neither she nor her husband was a sworn peace officer. She had never served on a jury before. Six members of her family worked for the same state agency, and a former brother-in-law worked as chief of police in another county, but she thought none of those contacts would compromise her objectivity or fairness. She did not know Garcia, either lawyer, or any potential witness.
Asked if anything about the case or the charges would affect her ability to be fair and impartial, if crimes similar to the ones charged had affected her life or the life of anyone close to her, if she had ever had an unpleasant experience with law enforcement, and if she or a close friend or relative had ever been charged with a crime, No. 954911 answered in the negative. Asked if she or a close friend or relative had ever been victimized by a crime, she replied that no one but she had. Her vehicle had been stolen and found burnt two days later. She thought her ability to be fair and impartial would not be affected by that and could think of no reason why she could not give both sides a fair trial.
Asked if the burden of proof should be higher in a case charging a sex crime against a spouse with whom he or she had had sexual activity before, No. 954911 replied in the negative. Asked if she could put aside consideration of “the five P’s, pity, passion, prejudice, penalty, or punishment,” she replied in the affirmative. Asked if the prosecutor should be held to the burden of proof of all the elements of every count and if at the end of trial “we can look at you and know that you’re going to be fair,” she and other prospective jurors collectively replied in the affirmative. Asked individually if the charges were damaging and if she could put aside sexual language she might hear and just weigh the evidence, she replied in the affirmative. Asked individually if sexual language might bother her or induce her to think Garcia was guilty, she replied in the negative.
The third Hispanic prospective juror at issue, No. 1046149, stated that he worked as a rig supervisor, that he was divorced, and that his former wife, with whom he kept in contact, was still depressed at having been molested at a young age. Asked if he could put that aside and judge the case solely on the evidence and the law, he replied in the affirmative. Asked if anything about the case or the charges would affect his ability to be fair and impartial, if he was going to hold his former wife’s experience against Garcia, or if crimes similar to the ones charged otherwise had affected his life or the life of anyone close to him, he replied in the negative.
Asked if he or anyone close to him had ever had an unpleasant experience with law enforcement, No. 1046149 replied that he had not, but that his brother had, after his wife stabbed him. He not only witnessed the stabbing but also “separated them” to keep them “from going any further.” Asked if that would compromise his ability to be fair and impartial or affect his perception of Garcia’s case, he replied in the negative. Asked if he or a close friend or relative had ever been charged with a crime, he replied that a different brother had been charged with credit card fraud. Asked if he felt law enforcement, the prosecution, and the courts had treated his brother fairly, he replied in the affirmative. He acknowledged he could not “stay still in a seat very long” due to back surgery. The court assured him that if he needed to stand or move around he could do that “at any time.”
No. 1046149 said that he had close friends and relatives who worked as correctional and detention officers and that his association with those people would not compromise his ability to be fair and impartial. He had no prior jury service and no familiarity with Garcia, either lawyer, any potential witness, any private criminal defense attorney, anyone in the district attorney’s office, or anyone in the public defender’s office. He said he could think of no reason why he could not give both sides a fair trial.
After the prosecutor exercised a peremptory challenge (her third) to No. 954911, a peremptory challenge (her sixth) to No. 1046149, and a peremptory challenge (her ninth) to No. 882647, Garcia made a Batson-Wheeler motion. “Looking at the profile of the jury panel,” his attorney argued, “there have been very few Hispanic jurors there.” With reference to No. 954911, he stated, “There wasn’t anything about her answers, other than her nationality, that would cause her to be excluded as a juror.” As to No. 1046149, he commented, “If anything, the answers that he gave [about his former wife’s history as a child abuse victim and about his brother’s history as a stabbing victim] would normally go to the benefit of the prosecution.” With reference to No. 882647, he noted that the prosecutor “didn’t even ask him any questions because he really answered all questions appropriately, unbiased, and he stated that that was the case.” Characterizing the prosecutor’s exercise of peremptory challenges as “systematically excluding, knocking off Hispanic jurors, when we have no Hispanic jurors now in the jury box,” he requested a mistrial.
The court asked the prosecutor to articulate “factors involving the background” of each of the three Hispanic prospective jurors. As to No. 954911, the prosecutor stated, “I’m picking a panel of good people that I believe will get along. I was watching her body language and demeanor throughout the entire time,” on the basis of which she concluded she “was not comfortable” with No. 954911. With reference to No. 1046149, the prosecutor noted “first of all” that he was a divorced male, after which she expressed “tremendous concern” that one of his brothers was stabbed by his wife and that another of his brothers was charged with credit card fraud. Even though the court noted he could “stand up and so on and so forth” to accommodate his back problem, she opined that, “taking all of that together,” she saw no need “to inconvenience him” since there were “enough issues” to give her pause.
Without waiting for comments, if any, from the prosecutor about No. 882647, the court found “that from the totality of the facts that there’s a showing that’s been made that gives rise to an inference of discriminatory purpose.” The court noted that the burden had shifted to the prosecutor and asked her “to explain adequately the offering, if there are, of race-neutral justifications” for the dismissals of each of the three Hispanic prospective jurors.
In response, the prosecutor noted that No. 1046149’s marital status as a divorced male “in combination with some other things” gave her “a little bit of an alarm.” He had witnessed his brother’s wife stabbing him, but in a courtroom full of people she was “not going to start asking questions whether or not he thinks women in domestic violence cases are potentially all looney and crazy.” Those factors, together with his back problem and his other brother’s conviction of a crime, led her to feel he was not “an appropriate juror to sit in this particular case.”
With reference to No. 954911, on the basis of “her body language, attitude, and demeanor towards other female jurors” during jury selection, the prosecutor formed the “personal impression” that she was “uninvolved and unconcerned” and that she “didn’t particularly care to participate.” Elaborating, she said, “I’m a female prosecutor, I have a female victim, and I have female jurors on this case, and it’s been my experience as a prosecutor that picking a group that can be cohesive and get along is incredibly important.”
As to No. 882647, the prosecutor gave “the occupational status of both him and his wife” as her “reason for excluding him.” She thought he might have “some allegiance to the defendant or to the victim in a way that could be inappropriate on either side, both based on his wife’s experiences in their occupations, as well as his experiences in his occupation.” She “didn’t think that he’d be a good mesh” with the other prospective jurors and “didn’t want to take that there were any sort of issues in their occupations that could influence him one way or another.”
The court asked Garcia’s attorney if he had “anything to add by way of showing that there’s been a purposeful racial discrimination and exclusion.” Replying in the affirmative, he asked the court “to look at the cross-sectional makeup of the jurors” to find that “there aren’t very many Hispanics and all of the ones that were in the panel are all gone.” He characterized the prosecutor’s “cohesiveness” rationale as a “prejudicial” and “selective” way “to eliminate the Hispanics.” At that juncture, the court found that the prosecutor offered “race-neutral explanations” and that the defense made “no showing, to [the court’s] satisfaction, that the exclusions were for purposeful racial discrimination” and, on that basis, denied Garcia’s motion.
The record shows implementation by the court of the established three-step Batson/Wheeler procedure for determining whether the prosecutor’s use of peremptory challenges was constitutionally permissible. First, Garcia had – and, the court found, discharged – the burden of making out a prima facie case “‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’” (Johnson, supra, 545 U.S. at p. 168.) Second, the prosecutor had – and, the court found, discharged – the duty “‘to explain adequately the racial exclusion’” by offering permissible race-neutral justifications for the peremptory challenges at issue. (Ibid.) Third, the court had – and, the record shows, discharged – the duty to decide if the opponent of the peremptory challenges at issue “‘proved purposeful racial discrimination.’” (Ibid.)
“The existence or nonexistence of purposeful racial discrimination is a question of fact.” (People v. Lewis (2008) 43 Cal.4th 415, 469 (Lewis), citing Miller-El v. Cockrell (2003) 537 U.S. 322, 339.) Our duty is to review the court’s ruling under the deferential substantial evidence standard. (Lewis, supra, at p. 470.) Our inquiry focuses “on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons.” (People v. Reynoso (2003) 31 Cal.4th 903, 924 (Reynoso).) The crux of the issue is “whether the trial court finds the prosecutor’s race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.” (Miller-El v. Cockrell, supra, 537 U.S. at p. 339.)
In recent cases, the California Supreme Court has assumed without deciding that comparative juror analysis is appropriate for the first time on appeal in the third stage of Batson/Wheeler analysis. (Lewis, supra, 43 Cal.4th at p. 472, citing People v. Stevens (2007) 41 Cal.4th 182, 196; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1017-1024; People v. Ledesma (2006) 39 Cal.4th 641, 678; People v. Avila (2006) 38 Cal.4th 491, 574-575; People v. Huggins (2006) 38 Cal.4th 175, 232-235 (Huggins); People v. Guerra (2006) 37 Cal.4th 1067, 1106, disapproved on another ground by People v. Rundle (2008) 43 Cal.4th 76, 151.) In doing so here, we bear in mind that “the question is not whether we as a reviewing court find the challenged prospective jurors similarly situated, or not, to those who were accepted, but whether the record shows that the party making the peremptory challenges honestly believed them not to be similarly situated in legitimate respects.” (Huggins, supra, at p. 233; cf. Miller-El v. Dretke (2005) 545 U.S. 231, 239-252.)
Garcia proffers comparative juror analysis as to two prospective jurors seated on the panel. As to the first, he argues that non-Hispanic No. 1048200’s father was convicted of grand theft 25 years ago, but the record shows that he was charged, not that he was convicted. Garcia notes that No. 1048200, like No. 1046149, believed “the case had been handled fairly” and “would not affect her ability to be fair in this case,” but No. 1048200’s father was a charged perpetrator, not a victim like No. 1046149’s former wife. No. 1046149 had other complications – one brother was stabbed by his wife, another brother was charged with credit card fraud, and the sequelae of back surgery left him incapable of sitting still for long – that made him problematic to a degree No. 1048200 was not. As to the second prospective juror seated on the panel, Garcia notes that non-Hispanic No. 1004857’s brother-in-law was convicted of selling drugs a year ago. Like No. 1048200, however, No. 1004857 did not manifest multiple troubling factors as did No. 1046149, for example.
The record shows substantial evidence of the subjective genuineness of the prosecutor’s race-neutral reasons (Reynoso, supra, 31 Cal.4th at p. 924) and of the grounding of her rationale in accepted trial strategy (Miller-El v. Cockrell, supra, 537 U.S. at p. 339). Abundant evidence supports the court’s finding that the prosecutor’s explanations for exercising peremptory challenges to No. 882647, No. 954911, and No. 1046149 alike were credibly race-neutral. Due to the trial court’s unique position from which to assess prospective jurors’ demeanor, “‘a factor of critical importance in assessing the attitude and qualifications of potential jurors,’” deference by the reviewing court to the trial court is appropriate. (Lewis, supra, 43 Cal.4th at p. 483, quoting Uttecht v. Brown (2007) __ U.S. __, __ [127 S.Ct. 2218, 2224; 167 L.Ed.2d 1014, 1022].) Under the deferential substantial evidence standard, Garcia fails to show an entitlement to relief.
2. Sufficiency of the Evidence
Garcia argues an insufficiency of the evidence of penetration in the penetration by foreign object count. The Attorney General argues the contrary.
The record shows that Garcia’s wife testified he opened her vagina with his fingers “from the most inner part that he could.” The court and counsel characterized her use of her hands at the witness stand as a “movement with the hands inward to outward” with a “spreading motion.” After testifying, “Inside is, well, um, within,” and “on the outside, it’s on the exterior,” she testified that “he would open up my parts, my vagina, and he would look for something inside with using his fingers as if he were looking for something.” She testified, “My labia, he would spread it apart,” and, “I felt that since he had me spreading my legs, I felt that he was looking, that he was moving his fingers.” In reply to the court’s question, “Where?,” she testified, “In my vagina.” Congruently, a member of the church Garcia and his wife attended testified his wife told her Garcia put his fingers inside her vagina.
Our duty on a challenge to the sufficiency of the evidence – both circumstantial and direct – is to review the whole record in the light most favorable to the judgment for substantial evidence – evidence that is reasonable, credible, and of solid value – that could have enabled any rational trier of fact to have found the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318; People v. Prince (2007) 40 Cal.4th 1179, 1251 (Prince).) In the discharge of that duty, we presume in support of the judgment the existence of every fact a reasonable trier of fact could reasonably deduce from the evidence. (Prince, supra, at p. 1251.) Garcia’s insufficiency of the evidence argument is but a request that we reweigh the facts. That we cannot do. (People v. Bolin (1998) 18 Cal.4th 297, 331-333.)
3. Multiple Convictions
Garcia argues, the Attorney General agrees, and we concur that due to the impermissible multiple convictions of penetration by foreign object and of the lesser included offense of assault with intent to commit penetration by foreign object the conviction of the lesser included offense cannot stand. (See, e.g., People v. Reed (2006) 38 Cal.4th 1224, 1229; People v. Sanchez (2001) 24 Cal.4th 983, 987.)
DISPOSITION
The matter is remanded with directions to the superior court to strike the conviction of assault with intent to commit penetration by foreign object from the judgment, to amend the abstract of judgment accordingly, and to send to all appropriate persons certified copies of the amended abstract of judgment. (§§ 220, 289, subd. (a).) Garcia has no right to be present at those proceedings. (See People v. Price (1991) 1 Cal.4th 324, 407-408.) Otherwise the judgment is affirmed.
WE CONCUR: Cornell, Acting P.J., Kane, J.