Opinion
NOT TO BE PUBLISHED
Super. Ct. No. MF030771B
BLEASE, Acting P. J.
A jury found defendant Peter Manuel Arteaga guilty of the attempted first degree murder of Robert Shetterly (Pen. Code, §§ 664/187, subd. (a)), the first degree home invasion robbery of Dean Shetterly (§§ 211, 212.5, subd. (a)), the first degree home invasion robbery of Robert, and first degree burglary (§ 459). The jury also found true allegations defendant acted in concert with two or more other persons in committing the robberies. (§ 213, subd. (a)(1)(A).) The jury found not true allegations defendant personally inflicted great bodily injury on Robert during the commission of the attempted murder and robbery. (§ 12022.7, subd. (a).) In a bifurcated proceeding, the trial court found true allegations defendant’s prior conviction for attempted first degree burglary constituted a serious felony (§ 667, subd. (a)(1)) and qualified as a strike (§§ 667, subd. (d); 1170.12, subd. (b)). The trial court denied defendant’s motion to dismiss his prior strike conviction and sentenced him to life with the possibility of parole, plus 17 years in prison.
Further undesignated section references are to the Penal Code.
We refer to Robert and Dean Shetterly by their first names to avoid confusion. No disrespect is intended.
Defendant was sentenced to life with the possibility of parole for the attempted murder, plus five years for his prior conviction; and a consecutive 12 years (twice the middle term) for the first degree home invasion robbery of Dean. Sentences on the remaining counts were stayed pursuant to section 654.
Defendant appeals, contending the trial court erroneously denied his Wheeler-Batson motion; his attempted murder conviction is not supported by sufficient evidence; his sentence for attempted murder must be reduced because there is insufficient evidence of deliberation and premeditation; the trial court abused its discretion in denying his request to reopen closing argument; and the trial court erred in denying his motion to dismiss his prior strike conviction as untimely. We shall conclude that only the last contention has merit, affirm defendant’s convictions, vacate his sentence, and remand the matter to the trial court to allow it to consider in its discretion whether to dismiss the prior strike conviction.
People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69].
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the evidence in the light most favorable to the judgment. (People v. Davis (1995) 10 Cal.4th 463, 509.)
At all relevant times, Dean was living with his father Robert in Lathrop. On August 4, 2007, Dean returned home around 2:00 a.m. accompanied by Angela Smith. Robert and Guillermo Riberal, a friend of Dean’s, were there when they arrived, and Rachel Mount, a roommate, arrived a short time later. Dean went to bed not long after he returned home.
Thereafter, as Smith was attempting to leave, defendant, Jimmy Rodriguez, and another man pulled up in front of the house “throwing beer bottles and screaming and yelling and just acting totally belligerent.” The men got out of the car and rushed inside the house. Rodriguez dragged Dean out of bed, shoved him into the laundry room, and asked, “Where’s the thousand dollars at?” Dean handed Rodriguez his wallet and some additional cash. At that point, Robert entered the room, and Rodriguez “grabbed him around the back of the head....” Robert said, “Look, if [Dean] owes you guys anything or money... I’ll take care of it. Just don’t hurt my kid.”
One of the other two men again demanded one thousand dollars from Dean. When Dean said he did not know what the man was talking about, the man began hitting him. The man then threw Dean in his room, got on top of him, and threatened to stab him if he kept moving. Dean eventually broke free, ran out the front door, and jumped over a fence into a neighbor’s backyard. He then climbed through an open window and hid. He soon was discovered by his neighbor, who telephoned law enforcement.
Meanwhile, defendant, Rodriguez, and the third man pushed and kicked Robert across a patio and into a shed in the backyard, where they took turns beating Robert and raping Smith. That lasted about an hour. During the attack, Robert was struck with a cast iron frying pan, a ball peen hammer and a block of wood. Defendant and the third man “hit [Robert] with just about whatever they could get their hands on.” Defendant repeatedly struck Robert in the head with a block of wood. “[E]very time [Robert] would make a sound, [defendant] would just hit him again with it.” Rodriguez kicked Robert over 20 times; he did not hit him with any objects. All three men beat Robert, “[b]ut the guy [that was not on trial] is the one that just about killed him.”
At approximately 4:00 a.m., sheriff’s deputies responded to the neighbor’s call. They found Dean hiding in the bathroom. He explained that he had been awakened at his home by someone who beat him and took his wallet and that he had fled to his neighbor’s home to hide. Deputies placed Dean in their patrol car and went to his home to confirm his story.
When deputies arrived at Dean’s home, the front door was open, and there were three cars in the driveway, including a Toyota Camry with one of its rear doors open. The Toyota was registered to defendant, and defendant’s driver’s license and paperwork bearing his name were found inside the car.
As deputies approached the house, they heard the front door slam shut. At that point, they called for backup. Additional deputies arrived a few minutes later and secured the scene. Deputies heard some noises and thought someone may have left through an alley behind the house. Deputies knocked on the door and a few minutes later Mount answered. She was scared and had been hiding. She was the only person inside the house.
Deputies found Robert, Smith, and Rodriguez in the shed behind the house. Robert was lying on his back in a pool of blood. His face and head were covered in blood, and there were lacerations on the top of his head. He was semiconscious, moaning, and had trouble speaking. Deputies found a crowbar with a piece of cloth wrapped around one end, a cast iron frying pan that was dented on the bottom and appeared to have dried blood and hair stuck to it, and a block of wood with blood on it in the shed.
Rodriguez and Smith were having sexual intercourse approximately three feet away from Robert in the shed. The deputy who discovered them testified that the intercourse appeared to be consensual. Dean’s wallet and Robert’s keys were found in Rodriguez’s pocket.
Smith told one of the deputies she had been raped and was taken to the hospital for a sexual assault exam. The DNA from two individuals was found on a vaginal swab taken from Smith. There was one major and one minor contributor. The profile of the major contributor was the same as Smith’s own profile, and Rodriguez could not be excluded as a minor contributor. Defendant was eliminated as a contributor. There was a mixture of DNA from at least three individuals on Smith’s panties, consistent with one major and at least two minor contributors. The profile of the major contributor was the same as Rodriguez’s profile. The profile of one of the minor contributors was the same as defendant’s profile. Smith could not be excluded as the second minor contributor. Finally, DNA from at least three contributors was found on Smith’s shorts. The major contributor’s profile was the same as Rodriguez’s, and neither defendant nor Smith could be excluded as minor contributors. The probability that a random person would possess the same profile as the major contributor is 1 in 130 quintillion African Americans; 1 in 3 sextillion Caucasians; and 1 in 1.4 sextillion Hispanics. As for the mixtures that contained at least three contributors, the probability that a random person would possess a profile that was included in that mixture is 1 in 2.2 billion African Americans; 1 in 540 million Caucasians; and 1 in 450 million Hispanics.
Robert was taken to the hospital and found to have multiple skull fractures, some of which were depressed. There was bleeding in and around his brain. He also had numerous lacerations on his scalp, fractured ribs, and bleeding in his chest. When he arrived at the hospital, he was nonresponsive and remained unconscious for several days. He was in the hospital for approximately two weeks and spent most of that time in the intensive care unit.
Defendant was taken into custody roughly two weeks after the incident. He said he had been drinking with his cousin in Stockton on the night in question and ended up at a party in Lathrop. He was “pretty intoxicated” and could not remember where the party was or who was there. At some point, he fell and someone took his car keys. He slept at his mother’s house in Lathrop; he was living there at the time. When he woke up the next morning, he did not know where his car was. He did not know Dean, Robert, or Smith.
Defendant and Rodriguez were each charged with first degree attempted murder, two counts of first degree home invasion robbery, and first degree burglary. It was further alleged that defendant and Rodriguez personally inflicted great bodily injury on Robert. Defendant and Rodriguez were tried together. With the exception of the great bodily injury allegations, the jury found defendant guilty as charged. The jury was unable to reach a verdict as to Rodriguez on the attempted murder charge. With the exception of the great bodily injury allegation, the jury otherwise found Rodriguez guilty as charged.
I
During jury selection, defendant, who is Hispanic, objected to the prosecution’s use of its first two peremptory challenges to exclude one African American (C.M.) and one Hispanic (M.S.) juror. The trial court considered and overruled the objection, finding defendant had failed to make out a prima facie case that the prosecution was engaged in impermissible discrimination. Defendant renews these claims on appeal. We find no error.
“Both the federal and state Constitutions prohibit any advocate’s use of peremptory challenges to exclude prospective jurors based on race.” (People v. Lenix (2008) 44 Cal.4th 602, 612.) “There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination. [Citations.] To do so, a defendant must first ‘make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.”’” (People v. Bonilla (2007) 41 Cal.4th 313, 341.)
Where, as here, it is unclear “whether [the trial court] applied the correct ‘reasonable inference’ standard rather than the ‘strong likelihood’ standard” in concluding defendant did not make out a prima facie case of discrimination, “‘we review the record independently to “apply the [reasonable inference] standard and resolve the legal question whether the record supports an inference that the prosecutor excused a juror” on a prohibited discriminatory basis.’ [Citations.]” (People v. Bonilla, supra, 41 Cal.4th at p. 342.)
“In deciding whether a prima facie case was stated, we consider the entire record before the trial court [citation], but certain types of evidence may be especially relevant: ‘[T]he party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic-their membership in the group-and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly, ... the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court’s attention.’” (People v. Bonilla, supra, 41 Cal.4th at p. 342.)
Here, the jury, as seated, included at least two Hispanics, two African Americans, and one Filipino. Thus, the prosecutor neither struck all or most of the Hispanic or African American members from the venire. The prosecutor questioned C.M. and M.S. in some detail, and defendant does not contend that the prosecutor’s questioning of them was cursory or materially different from the questioning of other prospective jurors. While defendant is Hispanic, there were two Hispanics on the jury. And, while the victims were white, at least 5 of the 12 jurors were non-white. Finally, both C.M. and M.S. had characteristics, other than their race, that differentiated them from the community as a whole. C.M.’s brother had been charged with a crime and spent time in jail. “[A] prosecutor may reasonably surmise that a close relative’s adversary contact with the criminal justice system might make a prospective juror unsympathetic to the prosecution.” (People v. Farnam (2002) 28 Cal.4th 107, 138.) M.S. was unemployed, which the prosecutor viewed as “a very big red flag....” A prospective juror’s employment status is a permissible, race-neutral basis for a peremptory challenge. (See Stubbs v. Gomez (9th Cir. 1999) 189 F.3d 1099, 1106; United States v. Brown (7th Cir. 1994) 34 F.3d 569, 572.)
Having considered the entire record, we find that the record does not support an inference that the prosecutor excused either C.M or M.S. on a prohibited discriminatory basis.
Because we find the court did not err in concluding defendant failed to make out a prima facie case of discrimination, we decline defendant’s invitation to conduct a comparative juror analysis. (See People v. Howard (2008) 42 Cal.4th 1000, 1020.)
II
Defendant next contends his attempted murder conviction must be reversed because there is insufficient evidence that “the elements of that offense were committed by another.” Defendant’s contention is threefold. First, he claims “it is probable the jury found [him] guilty... on an aiding and abetting theory” based on its finding that he did not personally inflict great bodily injury on Robert. Second, he correctly notes that “aiding and abetting liability requires proof that the elements of the predicate offense were committed by another....” (People v. Perez (2005) 35 Cal.4th 1219, 1228 (Perez).) Third, he asserts that such proof is lacking here because “[t]he jury did not find the proof sufficient vis-à-vis Rodriquez and no other person was charged with or proved to have committed the attempted murder of Robert....” Defendant misapprehends the applicable law.
“[T]he commission of a crime is a prerequisite for criminal liability. If the defendant himself commits the offense, he is guilty as a direct perpetrator. If he assists another, he is guilty as an aider and abettor. It follows, therefore, that for a defendant to be found guilty under an aiding and abetting theory, someone other than the defendant must be proven to have attempted or committed a crime; i.e. absent proof of a predicate offense, conviction on an aiding and abetting theory cannot be sustained.” (Perez, supra, 35 Cal.4th at p. 1225.) We assume for purposes of argument only that defendant was found guilty under an aiding and abetting theory.
Viewed in the light most favorable to the judgment (People v. Davis, supra, 10 Cal.4th at p. 509), the evidence shows that Robert was struck with a variety of objects over an extended period of time. He had multiple skull fractures, some of which were depressed, and remained unconscious and nonresponsive for several days after the incident. While all three men beat Robert, the third man (not defendant or Rodriguez) “is the one that just about killed him.”
This evidence provides ample proof that the predicate offense -- the attempted murder of Robert-- was committed by another, if not defendant. That someone was not convicted as a direct perpetrator does not preclude defendant’s conviction as an aider and abettor. (See, e.g., People v. Wilkins (1994) 26 Cal.App.4th 1089, 1090 [person may be convicted as an aider and abettor even though the actual perpetrator is acquitted].) Perez does not hold otherwise.
III
Defendant claims his sentence for attempted murder must be reduced because there is insufficient evidence of premeditation and deliberation. He argues that “[a]t most, the evidence shows only an unplanned, impulsive act.” We disagree.
As a preliminary matter, “[w]e do not distinguish between attempted murder and completed first degree murder for purposes of determining whether there is sufficient evidence of premeditation and deliberation.” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1463, fn. 8.)
“All murder which is perpetrated... by any... kind of willful, deliberate, and premeditated killing... is murder of the first degree.” (§ 189.) In the context of first degree murder, “‘[t]he word “deliberate” means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. The word “premeditated” means considered beforehand.’” (People v. Perez (1992) 2 Cal.4th 1117, 1123, quoting CALJIC No. 8.20 with approval.) “Premeditation and deliberation do not require an extended period of time, merely an opportunity for reflection.” (People v. Cook (2006) 39 Cal.4th 566, 603.)
In People v. Anderson (1968) 70 Cal.2d 15, 27 (Anderson), the California Supreme Court articulated factors to consider in assessing the sufficiency of evidence to prove that a murder was premeditated and deliberate. “[T]he Anderson court identified three categories of evidence pertinent to the determination of premeditation and deliberation: (1) planning activity, (2) motive, and (3) manner of killing.” (People v. Perez, supra, 2 Cal.4th at p. 1125.) However, the court later emphasized that “[t]he Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive.” (Ibid.)
Viewed most favorably to the judgment, the evidence shows: (1) defendant and his cohorts went to the Shetterlys’ home to collect on a debt owed by Dean; (2) after Robert offered to settle any debt owed by Dean, one or more of the men pushed and kicked him across a patio and into a shed; (3) once inside the shed, the men, including defendant, alternated between beating Robert and raping Smith; (4) Robert was beaten with a variety of objects; and (5) the beating occurred over an extended period of time and continued long after Robert was completely incapacitated. This sequence of events shows a calculated and ruthlessly executed plan designed to ensure death, rather than an unconsidered impulsive act of violence. Even under Anderson, this is sufficient.
IV
Defendant next claims that the trial court erred in denying his request to reopen closing argument. We are not persuaded.
During deliberations, the jury asked a number of questions concerning the law of aiding and abetting. On the fifth day of deliberations, the jury asked, “Does aiding and abetting apply to the great bodily injury finding or must the person directly (personally) inflict the injuries?” The court responded that “Aiding and Abetting does not apply to the [section] 12022.7 Great Bodily injury finding” and referred the jury to “CALCRIM Instruction 3160 for the elements needed to find great bodily injury.”
On the sixth day of deliberations, the jury asked in pertinent part: “Do CALCRIM 400 and 401 apply to Count #1 [attempted murder]? Can we find a defendant guilty of attempted murder based on aiding and abetting?” The court responded in pertinent part: “Yes, CALCRIM 400 and 401 Aiding and Abetting apply to Count 1 Attempted Murder. [¶] Yes, you can find a defendant guilty of Attempted Murder based on Aiding and Abetting as long as the necessary elements to the crime have been proved beyond a reasonable doubt.”
On the seventh day of deliberations, the jury asked: “For Count #1 [attempted murder], if we find the defendant guilty by aiding and abetting, does the additional finding of ‘willful, deliberate and premeditated’ apply toward the aiding and abetting or to the attempted murder itself? Did the defendant premeditate aiding and abetting or attempted murder?” After some discussion between the court and counsel about how to respond to the jury’s question, Rodriguez’s counsel asked “to reopen [closing] argument... so we can, at least through our eyes, try to explain what we believe aiding and abetting means.” Defendant’s counsel joined in the request, noting that “the jury does seem confused on the aider and abettor theory.” The court denied the request, stating, “You had the chance to argue aiding and abetting during your closing arguments. Whether you chose to do it or not was up to you.” With counsels’ approval, the court sought clarification from the jury by submitting the following written questions: “Are you asking if an aider and abettor theory can apply to the special finding of willful, deliberate and premeditation? [¶] And are you asking what the intent of an aider and abettor must be to find the attempted murder was willful, deliberate and premeditated under an aiding and abetting theory?” The jury responded, “Yes, ” to the first question, and the court responded: “The theory of aiding and abetting also applies to the special finding of whether the attempted murder was willful, deliberate, and premeditated.”
While the court had the discretion to reopen closing argument, it did not abuse its discretion in refusing to do so here. (See People v. Young (2007) 156 Cal.App.4th 1165, 1171-1172 (Young).) In Young, the jury advised the court that it was deadlocked and that “it was unclear whether ‘there’s 100 percent understanding from everyone in the box... how the lesser charges work with the robbery.’” (Id. at p. 1170.) The court referred the jury to the instructions, and the foreperson responded that “the problem appeared to be a disagreement on ‘the perception of the facts’ and [he] did not believe any additional time would be helpful in reaching a verdict.” (Ibid.) The rest of the jury agreed that neither additional time nor instruction would be helpful. (Ibid.) The court asked whether further argument from the attorneys might be helpful, and some of the jurors indicated that it would be. (Ibid.) Accordingly, the court reopened closing argument for both parties. (Ibid.) In determining that the trial court acted within its inherent authority and did not abuse its discretion in reopening closing argument, we explained, “There is authority guiding the trial court’s actions with respect to the order of a jury trial and its obligations upon being faced with a deadlocked jury. Section 1093 delineates the order that trial procedures shall follow, including the direction that the prosecutor and defense counsel may argue the case to the court and jury upon the close of evidence. (§ 1093, subd. (e).) Section 1094 grants the trial court broad discretion to depart from the order specified in section 1093. Section 1140 entitles the trial court to ascertain whether there is a reasonable probability a jury deadlock might be broken. [Citations.] When the court is faced with a deadlocked jury, it must proceed carefully, lest its actions be viewed as coercive. [Citation.] At the same time, when faced with questions from the jury, including that they have reached an impasse, ‘a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury.’ [Citation.]” (Id. at pp. 1171-1172, fn. omitted.) “By asking if additional argument might be helpful, the court did no more than ascertain the reasonable probability of the deadlock being broken and a means by which that might be accomplished. When some of the jurors agreed additional argument might help them in reaching a verdict, it was not inappropriate for the court to seek to offer that alternative to aid the jury.” (Id. at p. 1172.)
Conversely, here, the jury had not advised the court that it was deadlocked. Moreover, the jury’s questions indicated that it needed additional guidance on the law of aiding and abetting, not that there was disagreement on the facts or the law’s application thereto. It cannot seriously be disputed that it is for the trial court, not counsel, to instruct the jury as to questions of law. (People v. Baldwin (1954) 42 Cal.2d 858, 871.) The court did so here, and defendant does not question the accuracy of the court’s instructions or responses to the jury’s questions. The trial court did not abuse its discretion in refusing to allow defendant, through his counsel, to argue the law. (Ibid.)
V
Finally, defendant contends the trial court erred in denying his motion to dismiss a prior strike conviction as untimely and argues the matter must be remanded for resentencing. The People concede the error but assert the matter need not be remanded because “the court’s comments indicated that it most likely would have not granted the motion on the merits in any event, ” and “had it done so, it would have been an abuse of discretion.” We agree the trial court erred in denying defendant’s motion as untimely. Because the court erroneously believed that it did not have the discretion to dismiss the prior strike and did not clearly indicate that it would not, in any event, have exercised its discretion to do so, the matter must be remanded for resentencing. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13 (Romero).)
At the sentencing hearing, defendant’s counsel sought to file a motion to dismiss defendant’s prior strike conviction. The court denied the motion as untimely, noting that “[p]ursuant to the Court’s Local Rules, Rule 2-101.1, the motion to strike prior convictions must be made pretrial....” The court later observed that “[a]lthough his strike was in 1998, [defendant] hasn’t led a law abiding life. His last conviction was in 2001, and he hasn’t done anything significant during that time period for the Court to find in the interest of justice that they would strike the strike. So even though I didn’t entertain the motion, it is doubtful that I would have stricken it.”
As the People concede, the trial court’s reliance on San Joaquin County Superior Court’s Local Rules, rule 2-101.1 was misplaced because it pertains to “motion[s] to strike prior convictions based upon the validity of those convictions” (Super. Ct. San Joaquin County, Local Rules, rule 2-101.1), and defendant’s motion to dismiss was not such a motion. Defendant’s motion to dismiss apparently was brought pursuant to section 1385 and Romero. Section 1385, subdivision (a) gives the trial court authority to order an action dismissed “in the furtherance of justice.” In Romero, the California Supreme Court held a trial court has discretion, pursuant to section 1385, subdivision (a), to strike in the interests of justice, a prior serious or violent felony which has been pled under sections 667 or 1170.12. (13 Cal.4th at p. 504.) A trial court may exercise such discretion “at any time during the trial, while the case is before the jury or even after a jury verdict.” (People v. Bordeaux (1990) 224 Cal.App.3d 573, 581.) Thus, defendant’s motion, which was brought prior to his sentencing, was timely.
Rule 2.101.1 states: “To the extent that a motion to strike prior convictions based upon the validity of those convictions is authorized by statutory or decisional law, such a motion must be made pretrial within the time prescribed in Rule 2-101(a).”
Turning to the issue of remand, in Romero, the court stated that remand is not necessary “if the record shows that the sentencing court was aware that it possessed the discretion to strike prior felony conviction allegations without the concurrence of the prosecuting attorney and did not strike the allegations, or if the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations.” (Romero, supra, 13 Cal.4th 497 at p. 530, fn. 13.)
Here, the trial court believed it lacked discretion to dismiss the prior strike because it erroneously concluded the motion was untimely. Moreover, it did not clearly indicate that it would not have dismissed the prior strike in any event. The court’s statement that “it is doubtful that [it] would have stricken it” leaves open the possibility that it would have exercised its discretion to dismiss the prior strike. We decline to substitute our judgment for that of the trial court. Rather, we shall remand this case to the trial court to allow it to exercise its discretion.
DISPOSITION
Defendant’s convictions are affirmed. The sentence is vacated and the matter is remanded to the trial court for the purpose of allowing it to consider in its discretion whether to dismiss defendant’s prior strike conviction. If the trial court dismisses the prior, it shall resentence defendant. If the trial court declines to dismiss the prior, it shall reinstate the sentence previously imposed.
We concur: RAYE, J. ROBIE, J.
Defendant was awarded 504 days of presentence custody credit. The recent amendments to Penal Code section 4019 do not operate to modify defendant’s entitlement to credit, as he was committed for a serious felony as defined in section 1192.7. (§ 4019, subds. (b), (c); Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.)