Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 05CF1570, Gary S. Paer, Judge.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lise Jacobson and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury found Dustin Hall Goepner guilty of residential burglary, robbery, unlawful vehicle taking, carjacking, felon in possession of a firearm, and found the allegation he personally used a firearm to be true. The court found Goepner had suffered a prior serious felony conviction (Pen. Code, § 667, subd. (a); all statutory references are to this code, unless otherwise specified) that also qualified as a prior prison term (§ 667.5, subd. (b)), and a strike under the Three Strikes law (§ 667, subds. (b) – (e)). He contends the trial court erred when it accepted the prosecutor’s race-neutral reasons for using peremptory challenges to excuse two of three black jurors. He also argues section 654 required the court to stay punishment on his conviction for being a felon in possession of a firearm, and asserts the court abused its discretion by refusing to strike his prior conviction. Finding no basis to overturn the judgment, we affirm.
I
Facts And Procedural Background
In May 2005, codefendant Nora Hartman, a strip club dancer, began a sexually intimate relationship with a wealthy customer. About a week after they met she and her boyfriend, defendant Goepner, accompanied the man to his home. She distracted the man while Goepner rummaged through the house. When the victim grew suspicious, Goepner confronted him with the victim’s handgun, and the duo fled with the victim’s Mercedes, cash, jewelry, and firearm.
After the crime, Goepner returned to his residence to enlist the aid of his brother and brother-in-law. Goepner’s brother took possession of the victim’s handgun while discussing the situation with Goepner. He placed the weapon in a bag and later concealed it in a storage yard behind a business. The men helped Goepner retrieve his car parked near the strip club where Goepner, Hartman, and the victim had met the night before. Police located the victim’s stolen Mercedes parked in a strip mall near the same nightclub.
A jury found Goepner guilty in March 2006. The court imposed a 25-year aggregate sentence comprised of a five-year midterm for carjacking doubled to 10 years because of Goepner’s prior strike, a consecutive 10-year term for personally using a firearm, and a consecutive five-year term for the prior conviction. It also imposed a doubled two-year concurrent term for firearm possession by a felon, and stayed punishment on the remaining counts and enhancements. (§ 654.)
II
Discussion
A. Wheeler/Batson Error
Joining an identical claim made by codefendant Hartman (Cal. Rules of Court, rule 8.200(a)(5)), which we rejected in her separate appeal (People v. Hartman (June 22, 2007, G037123) [nonpub. opn.]), Goepner argues the prosecutor violated his state and federal constitutional rights when she excused two African-American jurors during voir dire. After reconsidering the matter, we again reach the same result. Consequently, we restate the factual background and discussion from our prior opinion, modifying it only where necessary to reflect Goepner’s status as the appellant.
Defendant’s request to consolidate the appeals is denied as moot.
“1. Background Facts
“During jury selection, the prosecutor used peremptory challenges to dismiss two of three African-American female jurors, identified in the record as Jurors 173 and 117. After the second dismissal, [Hartman’s] lawyer moved to dismiss the jury panel under People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler) [party may not use peremptory challenges to systematically exclude jurors based on race], overruled in part on other grounds in Johnson v. California (2005) 545 U.S. 162. [Hartman’s lawyer] explained: ‘Juror 117 is the second African-American female that the [prosecutor] has dismissed . . . . She is one of — I have noticed three African-Americans who were in this panel. There was nothing about her responses that would indicate that she could not be fair.’
The Attorney General contends Goepner failed to join in Hartman’s motion and therefore did not preserve the issue for appeal. Goepner concedes his trial lawyer did not expressly join in the motion, but argues he implicitly did so because he later submitted the issue when the trial court asked both counsel whether they had “anything else” to say. To forestall a later habeas petition based on inadequate assistance of counsel, we address the issue.
“Juror 117 had just replaced another juror who the defense excused after the prosecutor had accepted the jury as constituted. Juror 117 did not undergo extensive questioning. She disclosed she previously had served on a jury in a criminal hit and run case and the jury had reached a verdict. Asked by the prosecutor if she had common sense, she replied affirmatively.
In our opinion in Hartman’s appeal, we remarked that prospective juror questionnaires were not in our record. Defendant sought to augment the record with any questionnaires, but the clerk of the superior court has since informed us the parties did not use questionnaires during voir dire.
“The court found [the defense had] stated a prima facie case and asked the prosecutor to provide a reason for the challenge. The prosecutor responded, ‘I hate to disappoint[] counsel but it had nothing to do with her race but had to do with her age. And what I am concerned with some sympathies toward [codefendant] and the fact that she is a single woman with kids and that she is in a similar age bracket, and I had my concerns. It had nothing to do with her race.’ Counsel interjected that the prosecutor previously had excused Juror 173, also an African-American woman. The prosecutor responded that Juror 117 ‘fits a profile, an attractive single woman of the same age, in the same age bracket as the defendant . . . with two children, and I have a concern that there may be some sympathies there.’
“The court asked how the jury would learn [Hartman] had children. The prosecutor explained she anticipated testimony that would reveal [Hartman] and her children lived with her niece’s family because [Hartman] had financial problems. The prosecutor explained it was irrelevant that the juror was unaware of these circumstances during voir dire because the jury would find those things out during trial and she had ‘to make a determination as a prosecutor if I think that there is going to be some problems in that regard.’ She emphasized ‘[i]t had nothing to do with her race at all. I left a black person on the jury. I have no problems with a black person being on the jury.’
[Hartman’s] counsel noted the prosecutor could not peremptorily excuse a juror based on race and sex, and that ‘counsel did nothing to inquire of this potential juror, when she had the opportunity, about her concerns . . . .’ The prosecutor responded she was prohibited from getting ‘into the facts of the case’ on voir dire, that she knew ‘what the facts are, and I know the profile of this woman, and . . . that is the basis upon which I made my decision.’ She stated ‘it’s a gut instinct I have as a prosecutor that the woman with this profile I do not want as a juror in this case. It has nothing to do with her race. I would have felt the same way if she was white or Hispanic. I have left other women on this jury.’ She reiterated that Juror 117 was ‘not just single with kids . . . . She’s in the same age range as one of the defendants, she’s an attractive woman as is one of the defendants, and I am just making a call as a prosecutor based on what I know the facts are . . . and . . . where sympathies may lie and . . . what I perceive and project is going to be the defense’ and ‘that this woman is not a woman that I want sitting as a juror in this case.’
“The court denied the motion, finding the prosecutor ‘in the court’s mind’ had ‘tendered a valid reason for prompting her exercise of the peremptory challenge’ and . . . ‘that is why she went ahead and tendered the challenge.’
“2. Substantial Evidence Supports the Trial Court’s Determination No Wheeler/Batson Error Occurred
“[Goepner] argues the prosecutor’s use of peremptory challenges violated the equal protection clause of the Fourteenth Amendment to the federal Constitution (Batson v. Kentucky (1986) 476 U.S. 79, 89) and [the] right to a jury drawn from a representative cross-section of the community under the California Constitution (Wheeler, supra, 22 Cal.3d at pp. 276-277).
“When a defendant raises a Wheeler/Batson claim during jury selection, the trial court must undertake a three-step analysis: ‘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.” [Citations.] [Fn. omitted.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ (Johnson v. California, supra, 545 U.S. at p. ___, 162 L.Ed.2d at p. 138.) Although the prosecutor bears the burden of production to offer a race-neutral explanation, the burden of persuasion never shifts from the opponent of the strike. (Purkett v. Elem (1995) 514 U.S. 765, 768.)’
“The party seeking to justify a suspect peremptory challenge must offer a genuine, reasonably specific, race or group-neutral explanation. (People v. Fuentes (1991) 54 Cal.3d 707, 718.) The justification need not support a challenge for cause, and even a trivial reason, if genuine and neutral, will suffice. (People v. Reynoso (2003) 31 Cal.4th 903, 924 (Reynoso); see also People v. Gutierrez (2002) 28 Cal.4th 1083, 1124 [difficulty focusing on evidence may justify peremptory challenge].) As Reynoso observed, ‘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.”’ (Reynoso, supra, at p. 924.)
“Thus, the issue is whether the trial court believes the prosecutor’s race-neutral explanations. (Miller-El v. Cockrell (2003) 537 U.S. 322, 339.) The trial court evaluates the prosecutor’s credibility by weighing several factors, including the prosecutor’s demeanor, whether the prosecutor’s explanations are reasonable or improbable, and whether the proffered rationale has some basis in accepted trial strategy. (Id. at pp. 338-339). We uphold the trial court’s ruling if supported by substantial evidence, ‘[b]ut we apply this deferential standard of review only when “the trial court has made a sincere and reasoned attempt to evaluate each stated reason as applied to each challenged juror.”’ (People v. McDermott (2002) 28 Cal.4th 946, 971.) With this procedure in mind, we turn to the facts underlying [Goepner’s] claim.
“Preliminarily, we note [neither defendant] challenged the dismissal of Juror 173, and therefore the prosecutor was not called upon to provide reasons for her dismissal. [Hartman’s] counsel referred to Juror 173 merely to remind the trial court the prosecutor had excused another female African-American earlier in the proceedings. Of course, the trial court, in evaluating whether the prosecutor’s reasons for excusing a particular juror, may consider the circumstances of earlier peremptory challenges to jurors belonging to the same cognizable group. (Reynoso, supra, 31 Cal.4th at p. 925 [trial court obligated to evaluate all the circumstances of the case].)
“Concerning Juror 117, the prosecutor explained she challenged this juror because she believed she might be unduly sympathetic to [Hartman]’s plight based on shared characteristics of age and appearance and that the juror and [Hartman] were both single mothers. [Goepner] argues the prosecutor’s reasons were ‘transparent,’ ‘clearly subjective,’ and ‘not believable,’ but concedes subjective factors may play a legitimate role in the exercise of peremptory challenges.
“Here, the trial court found the prosecutor had legitimate, nondiscriminatory reasons in exercising her peremptory challenges. The trial court accepted the prosecutor’s explanation as genuine, and we are in no position to second-guess that determination. (Reynoso, supra, 31 Cal.4th at p. 926.) We disagree with [Goepner] that the record demonstrates the prosecutor’s discriminatory intent. The prosecutor did not challenge another African-American juror who sat on the panel, nor did she challenge other female jurors. This supports the trial court’s conclusion race and sex did not animate the challenge to Juror 117 and is an indication of the prosecutor’s good faith. (See People v. Gray (2005) 37 Cal.4th 168, 187-188.) Moreover, the court did not adopt at face value the prosecutor’s representations, but asked several questions to satisfy itself the prosecutor’s reasons were genuine.
“[Goepner] complains the prosecutor failed to excuse similarly situated white females. This argument is premised on an event that transpired after the jury had been sworn and excused for the day. Goepner’s lawyer noted the prosecutor failed to excuse two Caucasian, single mothers in [Hartman]’s approximate age group who presented the same characteristics that prompted the dismissal of Juror 117. The court noted that all parties had accepted the jury, Goepner had not joined in [Hartman]’s Wheeler motion, and that his motion was untimely because the jury had been sworn.
“[Goepner] argues [the] motion was timely because it merely supplemented [Hartman]’s earlier Wheeler motion. [Goepner] also contends a comparative analysis of these jurors took place in the trial court and requests us to ‘consider this analysis within the context of the entire voir dire.’ [Goepner] is mistaken. Even assuming [the] motion was timely, [Goepner] failed to request the trial court to make a comparative analysis of these jurors, and therefore the prosecutor was not asked to explain why she accepted these particular jurors. Lacking this essential information, we cannot tell whether these jurors were similarly situated. To attempt an analysis here would be patently unfair to the prosecutor . . . .
“[Goepner] incorrectly asserts the prosecutor’s stated reasons for exercising her peremptory challenges did not directly relate to the case being tried. It is not implausible to surmise that a single mother might be sympathetic to a similarly-situated woman of the same age whose boyfriend appeared to play the dominant role in the crimes. Just as veteran defense counsel would be leery of prospective jurors who identify with a victim or police officer, so too a prosecutor might excuse a juror who identifies with a defendant. Here, the trial court could reasonably conclude the prosecutor had not simply concocted a ‘rational basis’ to exclude Juror 117.
Indeed, Juror 117 may have been an unfavorable juror for Goepner, which might explain his failure to more clearly join in or object to the prosecutor’s challenge. Had we concluded that Goepner forfeited the claim, counsel was arguably not ineffective for failing to object.
“The trial court was in the best position to assess the prosecutor’s credibility. It witnessed the prosecutor’s demeanor as she explained the basis for her challenge. The prosecutor offered a reasonable explanation for her challenge, which had a basis in accepted trial strategy. There is no basis to conclude as a matter of law that there was a racial motivation for the challenge.” (People v. Hartman, supra, G037123.)
Section 654, subdivision (a), provides in pertinent part, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Goepner contends section 654 required the trial court to stay his four-year sentence on the felon in possession of a firearm count, rather than imposing a concurrent sentence with the four-year term for carjacking. He claims section 654 prohibits separate punishment for both convictions because he harbored the same objective and the crimes occurred during a single, continuous act. He asserts the evidence demonstrated he “happened upon” the victim’s handgun at the scene and his possession continued only until he “reach[ed] a place of safety at his house.” We disagree.
Section 654 bars multiple punishment for acts comprising a course of conduct violating more than one criminal statute but constituting an indivisible transaction. (People v. Saffle (1992) 4 Cal.App.4th 434, 438.) In other words, a defendant may be punished only once if he or she harbored a single intent and all the crimes were incidental to one objective. (People v. Harrison (1989) 48 Cal.3d 321, 335.) But consecutive sentences may be imposed when a defendant entertains consecutive criminal goals or pursues different objectives simultaneously. (People v. Britt (2004) 32 Cal.4th 944, 952.) In sum, “if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1134.) Whether the defendant pursued multiple criminal objectives is a question of fact for the trial court, and will not be disturbed on appeal if supported by substantial evidence presented at trial. (People v. Akins (1997) 56 Cal.App.4th 331, 339.)
The California Supreme Court in People v. Bradford (1976) 17 Cal.3d 8 (Bradford) explained the analytical approach for applying section 654 to crimes committed by a felon in possession of a firearm. In Bradford, a police officer stopped the defendant for a traffic violation. The defendant wrested the officer’s revolver from him and fired several shots at the officer and a bystander before driving away. The defendant was convicted of assault with a deadly weapon on a peace officer, exhibiting a firearm against the bystander, and felon in possession of a firearm.
The defendant argued section 654 prohibited sentence on both convictions for assault with a deadly weapon and possession of a concealable firearm. The Supreme Court accepted the Attorney General’s concession on appeal, explaining: “The standard for applying section 654 in the circumstances of this case was restated in People v. Venegas (1970) 10 Cal.App.3d 814. . . . ‘Whether a violation of section 12021, forbidding persons convicted of felonies from possessing firearms concealable upon the person, constitutes a divisible transaction from the offense in which he employs the weapon depends upon the facts and evidence of each individual case. Thus, where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense.’ [Citation.] [¶] Defendant’s possession of [the officer’s] revolver was not ‘antecedent and separate’ from his use of the revolver in assaulting the officer. The punishment provided for violation of section 12021 is the lesser punishment for the two crimes [ ] . . . [and] its execution must be stayed. [Citations.]” (Bradford, supra, 17 Cal.3d at pp. 22-23.)
In People v. Ratcliff (1990) 223 Cal.App.3d 1401 (Ratcliff), the defendant used a gun to commit two robberies an hour and one-half apart. The Court of Appeal rejected his argument that imposing sentences for being armed during the robberies and being a felon in possession of a firearm violated section 654. Ratcliff explained: “Unlike in Bradford and Venegas, the defendant already had the handgun in his possession when he arrived at the scene of the first robbery. A justifiable inference from this evidence is that defendant’s possession of the weapon was not merely simultaneous with the robberies, but continued before, during and after those crimes. Section 654 therefore does not prohibit separate punishments. [Citation.] [¶] . . . [¶] Commission of a crime under section 12021 is complete once the intent to possess is perfected by possession. What the ex-felon does with the weapon later is another separate and distinct transaction undertaken with an additional intent which necessarily is something more than the mere intent to possess the proscribed weapon. [Citation.] In other words, in the case here, defendant’s intent to possess the weapon did not import or include the intent to commit the robberies.” (Ratcliff, at pp. 1413-1414, first italics in original, second italics added.)
Here, as in Ratcliff, defendant’s possession of the weapon was not merely simultaneous with the carjacking, but continued after he completed the crime. (Ratcliff, supra, 223 Cal.App.3d at p. 1413.) His act of retaining the weapon after the crimes suggests an intent to prevent anyone thwarting his prohibited possession, an intent separate and distinct from carjacking. Substantial evidence thus supports the trial court’s conclusion, and we cannot say the trial court drew unreasonable inferences from the evidence. The trial court is vested with broad discretion in making its factual determination, and we presume the existence of every fact reasonably deduced from the evidence. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313.)
C. Romero Motion
Finally, defendant argues the court abused its discretion in declining to strike or dismiss (§ 1385) a 1997 burglary conviction used to double his sentence under the Three Strikes law. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero).) He asserts that he has “suffered a life-long problem with mental illness and drugs,” and that even if the trial court had dismissed his strike, he would still “fac[e] a daunting prison sentence of 20 years.” He also complains that codefendant Hartman demonstrated more culpability in the commission of these crimes, but received only a five-year sentence. Goepner contends his excessive drinking on the night of the incident, his admission of guilt to the probation officer and expression of remorse, and his efforts to reform demonstrate mitigation which required the court to strike his prior conviction for sentencing.
The touchstone for a trial court’s ruling on a Romero issue, and for our review, is “whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes] scheme’s spirit, in whole or in part . . . .” (People v. Williams (1998) 17 Cal.4th 148, 161.) Our standard of review is deferential, not de novo; the issue is whether the trial court’s decision falls outside the bounds of reason. (Id. at p. 162; see People v. Carmony (2004) 33 Cal.4th 367, 374.) The Three Strikes law was “designed to increase the prison terms of repeat felons” within a spirit of “‘“fair prosecution of crimes properly alleged.” Citation.’” (Romero, supra, 13 Cal.4th at pp. 504, 531.)
As defendant notes, his crimes were serious. The record reveals the trial court considered defendant’s arguments and the relevant sentencing factors before declining to strike the prior conviction. Defendant has not shown the court’s decision was arbitrary or irrational. Put another way, “It is not enough to show that reasonable people might disagree about whether to strike one or more of [defendant’s] prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling . . . .” (People v. Myers (1999) 69 Cal.App.4th 305, 310.) So it is here. We discern no abuse of discretion on this record.
III
Disposition
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.