Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC60181
RIVERA, J.
This matter involves the separate appeals by defendants Edgar Cardelas, Anastasio Flores, Celestino Guillermo, and Gerardo Macias Resendiz (collectively defendants), who following a jury trial were found guilty of committing, among other things, rape in concert. (Pen. Code, § 264.1.) On appeal, defendants, individually and collectively, raise numerous claims of error. We reject all such contentions and affirm.
For purposes of clarity, at times we will refer to defendants individually by their last names.
All further undesignated statutory references are to the Penal Code.
I. STATEMENT OF THE CASE
In an amended indictment filed on January 10, 2006, defendants were charged with numerous crimes in connection with the rape of Emily Doe. Specifically, each of the defendants was charged with one count of kidnapping for rape (§ 209, subd. (b)(1) (count 1)); four counts of rape in concert (§ 264.1 (counts 3, 4, 5, & 6)); one count of penetration in concert by a foreign object (§ 264.1 (count 7)); and one count of assault with force likely to produce great bodily injury (§ 245, subd. (a)(1) (count 8)). The kidnapping count included a serious felony enhancement (§ 1192.7, subd. (c)(20)). Each of the rape in concert counts and the penetration in concert by foreign object count included enhancements for committing a serious felony (§ 1192.7, subd. (c)(34)), great bodily injury (§ 12022.8), and kidnapping (§ 667.61, subds. (d)(2) & (e)(1)). The assault count included a great bodily injury enhancement (§ 12022.7, subd. (a)). All charges against Resendiz included allegations under Welfare and Institutions Code section 707, subdivision (d). Additionally, Flores was charged with one count of assault with the intent to commit rape (§ 220 (count 2)), which included a serious felony enhancement (§ 1192.7, subd. (c)(29)). Cardelas was also charged with one count of threatening a witness (§ 422 (count 9)) and one count of attempting to dissuade a witness (§ 136.1, subd. (c)(1) (count 10)); each additional count against Cardelas included a serious felony enhancement (§ 1192.7, subds. (c)(37) (count 10) & (c)(38) (count 9)).
On June 5, 2007, the trial court granted in part defendants’ motions for acquittal pursuant to section 1118.1, by striking the sentencing enhancements concerning great bodily injury (§§ 667.61, subd. (e)(3) (counts 3 7), 12022.7, subd. (a) (count 8), 12022.8 (counts 3 7)).
On June 20, 2007, the jury returned its verdicts as follows: All four defendants were found not guilty of kidnapping for purposes of rape (§ 209, subd. (b)(1) (count 1)). Each defendant was found guilty of four counts of rape in concert (§ 264.1 (counts 3, 4, 5, & 6). The jury convicted Cardelas, Flores, and Resendiz of assault with force likely to cause great bodily injury (§ 245, subd. (a)(1) (count 8)); Guillermo was found not guilty of this offense. Additionally, the jury convicted Cardelas of making criminal threats (§ 422 (count 9)) and attempting to dissuade a witness (§ 136.1, subd. (c)(1) (count 10)). As to Flores, the jury returned a verdict of not guilty of assault with intent to commit rape (§ 220 (count 2)), but convicted him of the lesser included offense of sexual battery (§ 243.4, subd. (a)). As to Resendiz, the jury found true the allegations under Welfare and Institutions Code section 707, subdivision (d)(1).
Following a deadlock on the offense of penetration in concert by foreign object (§ 264.1 (count 7)), the trial court declared a mistrial as to this count; the trial court also declared a mistrial on all further undecided counts and allegations.
On November 14, 2007, the trial court sentenced defendants as follows: Cardelas was sentenced to state prison for a term of 42 years, consisting of four full consecutive upper terms of nine years each for counts 3, 4, 5, and 6, a full consecutive upper term of four years for count 8, plus a full consecutive middle term of two years for count 10; a full consecutive upper term of three years for count 9 was stayed under section 654. Flores was sentenced to 23 years in state prison, consisting of four full consecutive lower terms of five years each for counts 3, 4, 5, and 6, a full consecutive lower term of two years for count 8, plus a consecutive one-year lower term for count 2, representing one-third of the middle term. Guillermo was sentenced to 36 years in state prison, consisting of four full consecutive upper terms of nine years each for counts 3, 4, 5, and 6. Resendiz was sentenced to state prison for 40 years, consisting of four full consecutive upper terms of nine years each for counts 3, 4, 5, and 6, and a full consecutive upper term of four years for count 8.
II. EVIDENCE AT TRIAL
A. Prosecution Evidence
On the afternoon of May 28, 2005, Emily Doe went to the grocery store, which was about three miles away from her apartment in Fremont. Around 7:00 p.m., Emily was walking home with several bags of groceries, when Flores and Guillermo drove up and asked her for directions to the mall. Guillermo said his name was Luis, and Flores said his name was Alfredo. After asking for directions, the men offered to give her a ride home. However, they drove her to the mall instead of her apartment; Emily went into the mall with Flores and Guillermo. Flores and Guillermo spoke to Emily in English, but spoke to each other in Spanish, most of which Emily could not understand.
On direct examination, Emily testified that one of the men offered to give her a ride home; however during cross-examination, she testified that she did not remember if the men offered her a ride or if she asked them for a ride.
After visiting the mall, Flores and Guillermo stopped at a gas station and asked Emily to buy alcohol for them. Emily refused to buy the alcohol and asked them to drive her home, which they did.
Once at the apartment, Emily told Flores and Guillermo that she was going to a nearby dance club. Flores and Guillermo offered to drive her to the club. Emily changed her clothes. Flores, Guillermo, and Emily left the apartment between 7:30 p.m. and 8:15 p.m.
Guillermo drove and Flores got into the back seat with Emily. Emily gave Guillermo directions to the club in English. Initially, Guillermo complied with the directions. However, instead of going to the club, Guillermo got onto Interstate 880, heading south. When Emily told Guillermo to turn around, he continued to drive toward San Jose. Flores and Guillermo spoke to each other in Spanish, which Emily could not understand. When she asked why they were heading south, one of them responded in English that they had to pick up a friend.
They stopped at a Mexican restaurant in Milpitas or San Jose, where they met up with Cardelas, who called himself Gary. Cardelas went back into the restaurant. Flores, Guillermo, and Emily then went to a gas station, where Emily bought a six-pack of beer at Guillermo’s and Flores’s request. They shared the six-pack while waiting to pick up Cardelas from work. After finishing the beer, they returned to the restaurant to get Cardelas.
They then drove to Guillermo’s house, where Guillermo retrieved a sweatshirt for Emily. Next, they went to Cardelas’s apartment in San Jose, where they ate food from the Mexican restaurant. While at the apartment, Flores sat close to Emily, touched her on the arm and leg, and tried to kiss her. She told him “no” three times, and pushed him away.
Next, they drove to another apartment and picked up Resendiz, who was wearing a white hooded sweatshirt. Resendiz got in the back seat with Emily. They made another stop at a gas station and more beer was purchased. When Emily stated several times that she wanted to go home, the men responded to her less and spoke to each other in Spanish. When she became more upset and demanding about going home, Cardelas told her in English, “ ‘No it is San Francisco or nothing.’ ”
Flores, however, drove to a beach in Half Moon Bay; they arrived at the beach close to midnight. During the drive, all four men continued to speak to each other in Spanish, leaving Emily out of the conversation. On the way to Half Moon Bay, Cardelas was trying to hug Emily.
Once at the beach, Emily started calling defendants liars and yelling at them to take her home. Defendants responded by laughing at Emily and telling her to get out of the car. Emily got out of the car and attempted to use one of the nearby portable toilets, but it was too dark to use it. Flores walked her to a bridge and told her she could use the restroom on the other side. Emily heard the voices of a man and a woman coming from the direction of the stairs to the beach. When she tried to walk toward the stairs, Flores directed her to the bridge and walked her across it. Flores tried to watch Emily as she urinated behind a bush; she told him to go away but he still tried to watch her.
When Emily finished urinating, Flores grabbed her all over her body and reached into her underwear, touching the inside of her vagina with his finger. Emily tried to push him away, but he pulled her to the ground. As Flores was on top of Emily, he continued to grab her all over her body. When Emily slapped Flores, he got mad and started to loosen his belt buckle. In a pleading voice, she said “ ‘No’ ” and Flores stopped and got up.
As Emily and Flores started walking back across the bridge, Cardelas, Guillermo, and Resendiz ran toward them, yelling and hollering. All four men grabbed her, picked her up in the air, and stuck their fingers in her vagina as they put her down on the ground. Emily struggled and kicked her legs. Eventually, the men got control of her arms and legs. As Emily was screaming, Resendiz covered her mouth and nose, suffocating her. She stopped fighting and was raped several times.
Resendiz was the first one to rape Emily. As he raped her, he slapped her across the face. Then, Cardelas raped her while the other three men stood by. Emily believed that if she tried to fight Cardelas, she would be beaten or killed. Next, Guillermo raped her. As Guillermo raped Emily, Resendiz “stomped” on her face with his foot, breaking a bone in her cheek. After Guillermo raped her, Resendiz raped her again. Flores beat Emily and held her down during the rapes.
Meanwhile, two college students, Alicia Riley and William Greene, had driven to the beach in Half Moon Bay; they arrived between 11:00 and 11:30 p.m. They parked their car, walked down the stairs to the beach, and spread out a blanket on the sand. No one else was on the beach. After a while, Riley saw people at the top of the stairs. One young Latino man, resembling Guillermo, came down to the beach. He said something in English that Riley could not understand, so she spoke to him in Spanish. The man asked for a cigarette in Spanish; Riley responded that they did not have any cigarettes. After an uncomfortable pause, the man slowly backed away; and while speaking English, he said in a flirtatious way, “hey[, ] mamita, you are pretty.” Greene put his arm around Riley; the man then walked back up the stairs to where the other people were standing. Riley and Green were scared. They stayed on the beach for a few minutes, then left. When they got past the bridge, they heard punching sounds, a woman screaming, and a male voice saying, “shut up, shut up.” They went back to their car and called the police.
After the fourth rape, Guillermo held onto to Emily’s arm, as the other men surrounded her and led her on the path to the car. Cardelas was smiling and waving Emily’s underwear. Then, Guillermo pulled Emily on top of him on the grass and touched her chest with his hands. During this time, Guillermo encouraged Flores to rape her. The left side of Emily’s face was swelling up and she could taste blood.
Emily heard sirens; defendants said the cops were coming and they started to run to the car. Resendiz did not run to the car, but ran away across the parking lot. Flores drove the car to the start of the path. As Cardelas took Emily to the car, he told her over and over again in English, “ ‘If you say anything, your life is over.’ ” Once Flores, Guillermo, and Cardelas were in the car with Emily, a police car pulled up behind them. In the car, Cardelas repeatedly threatened Emily, telling her, “ ‘If you say anything, your life is over.’ ”
Sergeant Mark Reed, of the Half Moon Bay Police Department, approached the car. Emily’s hand was over her face. She made eye contact with Sergeant Reed, moved her hand away to show the injury to her face, and nodded her head slightly. Sergeant Reed nodded slightly and called for a cover unit. Again, Cardelas threatened Emily’s life.
After the cover unit arrived, Emily got out of the car and went to the side of the patrol car. An ambulance arrived and took Emily to the hospital. About an hour later, Resendiz walked up to the police officers and surrendered.
At the hospital, a CT scan of Emily’s face revealed a fracture of her left maxillary sinus. The force that would be required to cause this type of injury varies, but it would be a “targeted” or specific blow that caused it. Emily’s face was bruised under both eyes. Her lips were swollen, with a laceration on her lower lip and an abrasion on her upper lip.
Emily had swelling in her clitoral hood and labia majora, which indicated a “recent incident” of genital trauma. She also had a small laceration on her perineum, which was caused by some sort of blunt force.
A search of the scene revealed one condom on the bridge, and one condom under it. The DNA inside the condom found on the bridge was consistent with Resendiz’s DNA. The inside of the condom found under the bridge had a mixture of DNA, with the major non-sperm fraction being consistent with Flores. Also, Resendiz and Emily could not be excluded as possible minor contributors of the non-sperm fractions of this DNA mixture. Emily’s DNA was on the outside of both condoms.
A sample DNA swabbing was taken from the outside of Cardelas’s penis and scrotum. The penile sample contained a non-sperm fraction that was consistent with Emily’s DNA. The scrotal sample contained a mixture of DNA from which Emily and Cardelas could not be excluded as contributors to the non-sperm fraction.
Resendiz’s underwear was seized and analyzed. The underwear had crotch stains, which contained sperm fractions consistent with Resendiz’s DNA, and had mixtures of non-sperm fractions from which Resendiz and Emily could not be excluded as contributors.
Guillermo’s shirt had a blood stain, with the major source of DNA being consistent with Emily, and the minor source being consistent with Guillermo. The fly area of Guillermo’s boxer shorts contained a sperm fraction matching his DNA. The underwear also contained a mixture of non-sperm fractions, with the major contributor being Emily and the minor contributor being Guillermo.
B. Defense Evidence
A forensic expert in blood analysis testified that when Guillermo’s blood sample was drawn on May 29, 2005, at approximately 10:00 a.m., his blood alcohol level was.03 percent. Alcohol is eliminated from the body at a rate of.02 percent per hour. At that rate, Guillermo’s blood alcohol level when he was taken into custody at about 2:00 a.m. would have been approximately.19 percent. The other three defendants and Emily had blood alcohol levels of.00 percent at the time of their respective blood tests.
Tyrone Botelho shared an apartment with Emily. When he left the apartment on the morning of May 28, 2005, he was not aware of any alcohol in the apartment. Botelho returned that evening to find Emily’s brother at the apartment and a nearly empty bottle of vodka. Botelho did not know who drank the vodka; Emily did not come home that night.
A private investigator measured various distances at the scene, and noted the location of the Ritz Carlton Hotel and nearby homes.
Emily told a different private investigator that the man whose name began with an “ ‘A’ ” was not involved in the rape.
III. DISCUSSION
Defendants raise numerous collective and individual issues on appeal. To the extent certain issues are limited to a particular defendant, such claims will be addressed separately. Otherwise, the claims will be addressed as if brought by all of the defendants.
A. Motion to Sever (Flores)
Flores contends the trial court violated his state and federal due process rights by failing to grant his motion to sever his trial from that of his codefendants. We are not persuaded.
Prior to trial, Flores filed a motion to sever his trial and to exclude extrajudicial statements of codefendants. Denying the motion, the trial court ruled that no defendant’s statement would be allowed in the prosecution’s case. Rather, a defendant’s statement would be allowed for impeachment purposes only, after notice and an opportunity to be heard. None of the defendants testified at trial.
1. Applicable Law and Standard of Review
“Section 1098 expresses a legislative preference for joint trials. The statute provides in pertinent part: ‘When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.’ [Citations.] Joint trials are favored because they ‘promote [economy and] efficiency’ and ‘ “serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.” ’ [Citation.] When defendants are charged with having committed ‘common crimes involving common events and victims, ’... the court is presented with a ‘ “classic case” ’ for a joint trial. [Citation.]” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40 (Coffman).)
Nevertheless, severance may be appropriate “ ‘in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.’ (Fns. omitted.)” (Coffman, supra, 34 Cal.4th at p. 40, quoting People v. Massie (1967) 66 Cal.2d 899, 917.)
“ ‘ “[T]o obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.” ’ [Citation....] When, however, there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance. [Citation.]” (Coffman, supra, 34 Cal.4th at p. 41, italics omitted; see People v. Cummings (1993) 4 Cal.4th 1233, 1286 [antagonistic defenses alone do not compel severance].)
“A court’s denial of a motion for severance is reviewed for abuse of discretion, judged on the facts as they appeared at the time of the ruling. [Citation.] Even if a trial court abuses its discretion in failing to grant severance, reversal is required only upon a showing that, to a reasonable probability, the defendant would have received a more favorable result in a separate trial. [Citation.]” (Coffman, supra, 34 Cal.4th at p. 41.)
Aside from abuse of discretion under section 1098, a reviewing court “ ‘may nevertheless reverse a conviction where, because of the consolidation, a gross unfairness has occurred such as to deprive the defendant of a fair trial or due process of law.’ ” (People v. Cleveland (2004) 32 Cal.4th 704, 726, quoting People v. Turner (1984) 37 Cal.3d 302, 313 (Turner) [overruled on another ground in People v. Anderson (1987) 43 Cal.3d 1104, 1149].)
2. Analysis
This was a “ ‘ “classic case’ ” ” for joint trial because defendants were charged with common crimes involving common events and the same victim. (Coffman, supra, 34 Cal.4th at p. 40.) Flores predicated his motion to sever on the extrajudicial statements made by each defendant, contending those statements could not be edited to delete the portions implicating the other defendants as required by Bruton v. United States (1968) 391 U.S. 123, 135-137, and People v. Aranda (1965) 63 Cal.2d 518, 530 531. In denying the motion, the trial court ruled that the prosecutor could not introduce evidence of defendants’ statements without the court’s permission. Because the statements were not to be introduced, there was no Aranda/Bruton problem and the court properly denied the motion to sever. (See Turner, supra, 37 Cal.3d at p. 312.)
Flores nevertheless contends he was severely prejudiced by the joint trial because the evidence against him was weaker than that against the other defendants, and the prosecutor “strategically used joinder as a tool to fill in the evidentiary gaps with regards” to Flores. According to Flores, his only criminal liability, if any, was as an aider and abettor because he, unlike the other defendants, did not rape Emily. This argument is premised on a fundamental misunderstanding of the law. “In order to be found guilty of the crime of rape in concert, a defendant must ‘voluntarily acting in concert with another person, ’ commit the crime of rape ‘by force or violence and against the will of the victim.’ (§ 264.1.) He may do so ‘either personally or by aiding and abetting the other person.’ (Ibid.)” (People v. Keovilayphone (2005) 132 Cal.App.4th 491, 496.) In other words, “rape in concert can be committed by two different methods: either by personal commission or by aiding and abetting the perpetrator.” (Id. at p. 497; see also People v. Champion (1995) 9 Cal.4th 879, 933 [rape in concert by holding victim’s family at gun point in another room], disapproved on another ground in People v. Combs (2004) 34 Cal.4th 821, 860; People v. Lopez (1981) 116 Cal.App.3d 882, 887-888 [rape in concert even without active participation]; People v. Barnett (1976) 54 Cal.App.3d 1046, 1049 [oral copulation in concert although not in room when act took place].)
Thus, contrary to Flores’s assertion, the evidence against him was not weaker, but rather established a different method of committing rape in concert. Moreover, we have no trouble finding substantial evidence that Flores aided and abetted his codefendants. Although Flores never raped Emily, he struck her, beat her, and held her down while other defendants raped her. When he was not restraining Emily, Flores stood forebodingly on the bridge as Cardelas raped her. Emily testified that she thought she would be beaten or killed if she tried to fight Cardelas. Clearly, Flores’s actions and presence contributed to terrorizing Emily and overcoming her resistance, thereby facilitating the rapes by codefendants. (People v. Jones (1989) 212 Cal.App.3d 966, 970 (Jones).)
In sum, no gross unfairness occurred from the consolidation of Flores’s trial with the other defendants, such as to deprive him of due process. Although he argues at length that the attorneys for the other defendants undermined his case by their cross-examinations of witnesses and by their arguments to the jury, nothing in the record suggests that the jury was unable to assess the guilt or innocence of each defendant on an individual and independent basis. (Coffman, supra, 34 Cal.4th at p. 40.) “ ‘[N]either antagonistic defenses nor the fact that... one defendant incriminates the other amounts, by itself, to unfair prejudice.... That different defendants alleged to have been involved in the same transaction have conflicting versions of what took place, or the extent to which they participated in it, vel non, is a reason for rather than [italics added] against a joint trial. If one is lying, it is easier for the truth to be determined if all are required to be tried together.’ [Citations].” (People v. Hardy (1992) 2 Cal.4th 86, 169, fn. 19.)
B. Batson/Wheeler Motion
Defendants contend that the prosecutor’s peremptory challenge of an African-American juror denied their constitutional rights to trial by a jury drawn from a representative cross-section of the community.
1. Background
From the prospective jurors available to sit on the jury, the prosecutor struck four African-American women. As to the first two African-American women, the trial court found no prima facie case had been established. As to the remaining two African-American jurors, S.B. and L.B., the trial court accepted the prosecutor’s reasons for striking these jurors. The instant appeal is limited to the prosecutor’s decision to strike L.B.
According to her juror questionnaire, L.B. was retired from her employment at Bank of America, where she had worked for 32 years. By the time of her retirement, L.B. had risen to the level of a vice-president at the bank. For the past 10 years, L.B. had worked as a program manager at Our Kids First, where she was in charge of operations and supervised the after-school program and personnel. She was a college graduate with a degree in psychology; she also had training in business administration. She was married with two adult children. L.B. had several friends employed in various law enforcement fields. Although neither L.B. nor her immediate family had any personal involvement in the criminal justice system, her first cousins had been in prison. L.B. stated that she could be fair, and that if defendants were guilty they needed to serve time. L.B. also stated that she “would need eviden[ce] to judge fairly.”
During voir dire, L.B. was questioned briefly by the prosecutor. L.B. indicated that she could sit through the trial in a healthy manner. She described Our Kids First as an after-school and summer-day-camp program.
Later, Guillermo’s trial counsel asked L.B. the following question: “Do you think it’s conceivable or possible that a woman can make a false claim to having been raped?” L.B. responded, “Yes[, ]” and the trial court immediately told defense counsel that his time was up; L.B. was not asked any further questions.
On the next round of challenges, the prosecutor peremptorily challenged L.B. Defense counsel jointly objected to the prosecutor’s striking of L.B. pursuant to Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258. In finding a prima facie case, the trial court explained its ruling as follows: “I’m going to find a prima facie case. [¶] However, I think we’d be in a [different situation] if [Guillermo’s counsel] had not asked his last question, which was No. 1, directed to her when it should not have been because she was not among the most recent group. And No. 2, did not give the DA a chance to rehabilitate since he was done with his time. [¶] But I’m going to find a prima facie case.”
In response, the prosecutor asserted that the challenge was based on the fact that “[t]his juror is now entertaining the possibility of doubting Emily and that her claims are false.” The other thing that gave the prosecutor “cause for concern” was that L.B. has “first cousins, plural, that have served time in prison. She also devotes her time to helping at-risk youth with [Our] Kids First.”
In denying the Batson/Wheeler motion, the trial court explained that “the straw that broke the camel’s back was that last question [Guillermo’s counsel] asked. I think that the way it was phrased and the way it was answered gave the prosecution a reason to believe that it was biased.” The trial court also found the prosecutor’s other reasons for excusing L.B. were valid.
2. Applicable Law
The law applicable to Batson/Wheeler claims is well settled. “ ‘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 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.]’ ” (People v. Davis (2009) 46 Cal.4th 539, 582.)
In this case, the trial court ruled that defendants made a prima facie showing; and then after hearing the prosecutor’s reasons for the challenge, the court determined that there were valid reasons for excusing L.B. Thus, this case is a third stage Batson/Wheeler inquiry. “ ‘[T]he critical question in determining whether [a party] has proved purposeful discrimination at step three is the persuasiveness of the prosecutor’s justification for his peremptory strike.’ [Citation.] The credibility of a prosecutor’s stated reasons ‘can be measured by, among other factors... how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.’ ” (People v. Hamilton (2009) 45 Cal.4th 863, 900 (Hamilton).) All relevant circumstances may be relied upon in determining whether there has been purposeful discrimination, including disparate treatment of similarly situated panelists. (People v. Lenix (2008) 44 Cal.4th 602, 616, 622 (Lenix).) “If a prosecutor’s proffered reason for striking a [B]lack panelist applies just as well to an otherwise-similar non[-B]lack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.” (Miller El v. Dretke (2005) 545 U.S. 231, 241.) “Comparative juror analysis is evidence that, while subject to inherent limitations, must be considered when reviewing claims of error at Wheeler/Batson’s third stage when the defendant relies on such evidence and the record is adequate to permit the comparisons.” (Lenix, supra, 44 Cal.4th at p. 607.)
“The existence or nonexistence of purposeful racial discrimination is a question of fact. [Citation.] We review the decision of the trial court under the substantial evidence standard, according deference to the trial court’s ruling when the court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror. [Citations.] ‘[T]he trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor’s race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine.’ [Citation.] ‘We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]’ [Citation.] A prosecutor’s reasons for exercising a peremptory challenge ‘need not rise to the level justifying exercise of a challenge for cause.’ [Citation.] ‘ “[J]urors may be excused based on ‘hunches’ and even ‘arbitrary’ exclusion is permissible, so long as the reasons are not based on impermissible group bias.” ’ ” (Hamilton, supra, 45 Cal.4th at pp. 900-901, fn. omitted.)
3. Analysis
a. Sufficiency of the Evidence
Substantial evidence supports the prosecutor’s stated reasons for striking L.B., and the trial court reasonably concluded the reasons were race-neutral. The prosecutor indicated that, in his view, L.B.’s answer to the question posed by Guillermo’s counsel alone served as a valid race-neutral reason for excusing her because L.B. was “now entertaining the possibility of doubting Emily and that her claims are false.” Although L.B.’s answer to the question was a simple “Yes, ” the prosecutor evidently detected something in the way she answered the question. In denying the motion, the trial court also perceived something about L.B.’s demeanor, expressly noting “the way” she answered the question.
“In practical terms, observing potential jurors may reveal as much about them as counsel may learn from listening to them. As if to underscore the importance of the visual aspect of jury selection, the legal term used to describe this process-‘voir dire’-is itself a combination of two French verbs meaning ‘to see’ and ‘to say.’ (See Cassell’s French-English Dict. (1982) pp. 259-260, 757.) The importance of observation during voir dire extends to court and counsel alike. During voir dire, the trial judge has had an opportunity to observe counsel’s behavior as well as the demeanor of prospective jurors. These observations inherently affect the trial court’s ruling on a [Batson/]Wheeler motion.” (People v. King (1987) 195 Cal.App.3d 923, 932 (King).)
“Jury selection is, in itself, an inexact science, based as often on hunches and inferences about human behavior as on hard facts. By their very nature, peremptory challenges particularly lend themselves to the application of popular psychology, the consideration of unarticulated values, and the varied experiences-both at trial and in life-of the attorneys who use them. As a result, a decision to exercise a peremptory challenge may be based on factors that an appellate court cannot see when reviewing a cold record.” (King, supra, 195 Cal.App.3d at p. 932.)
Here, without having had the benefit of observing voir dire as the trial court did, we afford great deference to the trial court’s determination that the prosecutor provided a valid race-neutral reason for excusing L.B. (Lenix, supra, 44 Cal.4th at pp. 613-614.) The believability and credibility of Emily was crucial to this case. Under these circumstances, the prosecutor’s concern that L.B. was “entertaining the possibility of doubting Emily and that her claims are false” was as an entirely valid reason for peremptorily challenging L.B. (See People v. Chambie (1987) 189 Cal.App.3d 149, 158 159 [prospective juror’s statement that she thought there a great possibility that a woman might lie about being raped was proper consideration justifying peremptory challenge]; King, supra, 195 Cal.App.3d at p. 933 [prosecution properly challenged older male juror who likely had traditional values and might consider that victim was “ ‘asking’ ” to be raped].)
b. Comparative Juror Analysis
For the first time on appeal, defendants attack the credibility of the prosecutor’s stated reasons for excusing L.B. based on a comparative juror analysis of the non-African-Americans the prosecutor left on the jury. According to defendants, these non-African-American jurors had some of the same characteristics (i.e., relatives in prison, sympathy for children) of those cited by the prosecutor as reasons for excusing L.B., thus undermining the credibility of those reasons. Although we will address defendants’ comparative juror analysis on the merits, we note they failed to offer any such argument in the trial court. We are thus left to speculate on a cold record as to what legitimate grounds, if any, the prosecutor might have perceived for distinguishing among these assertedly similar prospective jurors.
We approach such a review with caution: “[C]omparative juror analysis on a cold appellate record has inherent limitations. [Citation.]... There is more to human communication than mere linguistic content.... Myriad subtle nuances may shape it, including attitude, attention, interest, body language, facial expression and eye contact.... [¶]... When a comparative juror analysis is undertaken for the first time on appeal, the prosecutor is never given the opportunity to explain the differences he perceived in jurors who seemingly gave similar answers. [¶] Moreover, the selection of a jury is a fluid process, with challenges for cause and peremptory strikes continually changing the composition of the jury before it is finally empanelled.... ‘[T]he particular combination or mix of jurors which a lawyer seeks may, and often does, change as certain jurors are removed or seated in the jury box. It may be acceptable, for example, to have one juror with a particular point of view but unacceptable to have more than one with that view....’ [Citation.] [¶]... Each juror becomes, to a certain degree, a risk taken. Voir dire is a process of risk assessment.... Two panelists might give a similar answer on a given point. Yet the risk posed by one panelist might be offset by other answers, behavior, attitudes or experiences that make one juror, on balance, more or less desirable. These realities, and the complexity of human nature, make a formulaic comparison of isolated responses an exceptionally poor medium to overturn a trial court’s factual finding.” (Lenix, supra, 44 Cal.4th at pp. 622-624.)
The comparative analysis offered by defendants does little to further their claim of racial bias. Defendants call attention to four jurors, Jurors Nos. 1, 7, and 10, and Alternate Juror No. 1, who each had relatives involved in the criminal justice system. Defendants further point out that Juror No. 10 also worked as a teacher’s aide in a kindergarten class, making her “just as sympathetic to children as the prosecutor suspected [L.B.] would [have] be[en].”
However, unlike L.B., none of these jurors expressed any opinion regarding the possibility of a woman lying about being raped. Rather, it appears L.B. was the only juror who was asked this question. Although advocates (and reviewing courts) do not evaluate panelists based on a single answer (Lenix, supra, 44 Cal.4th at p. 631), due to the timing of the question, the prosecutor was unable to further question L.B. about her response, thereby denying him the opportunity to have greater confidence in the overall thinking of L.B. regarding the subject of a rape victim’s credibility (see ibid.), which was a crucial issue in the instant case.
In sum, we conclude defendants’ proposed comparisons do little to demonstrate prosecutorial bias against African-American jurors.
4. Conclusion
We are satisfied that no Batson/Wheeler error occurred, and that the trial court fairly and correctly determined that the prosecutor had adequately rebutted defendants’ prima facie case by demonstrating a convincing nonracial reason for exercising a peremptory challenge against L.B.
C. Sufficiency of the Evidence (Guillermo)
Guillermo contends insufficient evidence supports the jury’s verdict that he was guilty of four counts of rape in concert. We reject this contention.
1. Applicable Law and Standard of Review
Section 264.1 provides, in pertinent part, that “in any case in which the defendant, voluntarily acting in concert with another person, by force or violence and against the will of the victim, committed an act described in Section 261, 262, or 289, either personally or by aiding and abetting the other person, ... [the defendant] shall suffer confinement in the state prison for five, seven, or nine years.”
“The purpose behind the increased punishment provided for by the ‘in concert’ statute is to discourage ‘gang type’ sexual assaults. [Citation.] It also exhibits a legislative recognition that rape is even more reprehensible when committed by two or more persons. [Citation.]” (Jones, supra, 212 Cal.App.3d at p. 969.) As discussed, section 264.1 punishes persons acting together who either personally commit the act or assist others in its commission. (Jones, at p. 969.)
When determining whether the evidence was sufficient to sustain a conviction, “our role on appeal is a limited one.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) In reviewing the sufficiency of the evidence, we do not weigh the evidence or evaluate the credibility of witnesses. (People v. Young (2005) 34 Cal.4th 1149, 1181 (Young).) Rather, “the test of whether evidence is sufficient to support a conviction is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.]” (People v. Holt (1997) 15 Cal.4th 619, 667.) “We draw all reasonable inferences in support of the judgment.” (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears that “ ‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331 (Bolin).)
2. Analysis
Guillermo points out that Emily initially told the police she was unsure if Guillermo raped her. However, at trial, she testified that she was certain that Guillermo was the third person who raped her. He argues that the evidence shows that he may have been on the beach where the college students were during some period of time. He further contests the DNA evidence against him, arguing that the testing was potentially contaminated because his boxer shorts were mixed with other clothing in a bag. Guillermo also points out that the evidence at trial showed that he was extremely intoxicated at the time of the incidents, which “obviously also had an effect on the specific intent necessary to support a conviction for rape in concert under the aiding and abetting theory on which three of the [four] rapes charged against [him] were based.”
By these arguments, Guillermo implicitly seeks to reweigh the evidence and reevaluate witness credibility. However, such determinations are within the exclusive province of the fact finder, not the reviewing court. (Young, supra, 34 Cal.4th at p. 1181.) Emily testified that she was raped four times, sometimes while she was held down by one or more of the defendants and sometimes while defendants stood by ready to force her into submission if she resisted. As to Guillermo, Emily testified that he had put his penis in her vagina, and that as he was raping her Resendiz “stomped” on her face with his foot. Then, after the fourth rape, Guillermo pulled Emily on top of him, and he encouraged Flores to rape her. From this evidence a reasonable trier of fact could find each defendant guilty beyond a reasonable doubt of committing four counts of rape in concert by either personally committing the act or by assisting others in its commission. (Jones, supra, 212 Cal.App.3d at p. 969.)
To the extent Guillermo argues that his intoxication negated the specific intent necessary to aid and abet the rapes committed by the other defendants, the jury was properly instructed with CALCRIM No. 3426, regarding the effect of voluntary intoxication on the requisite specific intent. This instruction was a correct statement of the law, and we presume the jury understood its role in evaluating the evidence of Guillermo’s intoxication. (People v. Delgado (1993) 5 Cal.4th 312, 331 (Delgado).)
Viewed in the light most favorable to the judgment, the evidentiary record is sufficient to sustain Guillermo’s convictions for rape in concert.
D. Alleged Prosecutorial Misconduct
Defendants individually and collectively raise three arguments relating to the prosecutor’s alleged misconduct. Each argument fails to withstand analysis. A prosecutor’s conduct violates a defendant’s federal constitutional rights only when the behavior comprises a pattern of conduct so egregious as to infect the trial with such unfairness as to make the conviction a denial of due process. (Darden v. Wainwright (1986) 477 U.S. 168, 181; see also People v. Guerra (2006) 37 Cal.4th 1067, 1124 (Guerra), disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) “ ‘Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [state] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.’ [Citation.]” (Guerra, supra, 37 Cal.4th at p. 1124.) The focus is on the effect of the prosecutor’s action on the defendant, not on the intent or bad faith of the prosecutor. (People v. Crew (2003) 31 Cal.4th 822, 839.)
1. Leading Questions to Victim
Flores contends that the prosecutor committed prejudicial misconduct by asking Emily a series of leading questions.
On direct examination, Emily testified that as she and Flores started to walk back across the bridge, the other three defendants started running toward her; they grabbed her, picked up in the air, touched her, and stuck their fingers in her vagina. Emily explained that all four defendants, including Flores, grabbed her, touched her, and fingered her vagina while they put her on the ground.
On cross-examination by Cardelas’s counsel, Emily testified that three defendants ran toward her and picked her up; Flores then joined them in grabbing her and fingering her vagina. When cross-examined by Flores’s trial counsel, Emily testified that three people picked her up, and that Flores’s hands were on her while she was being held in the air.
On redirect, Emily testified that after the three men picked her up, Flores was holding her arm down and helping to cover her mouth. She testified that all four men were holding her down when her body was being penetrated. The prosecutor sought further clarification about Flores’s involvement: “[The Prosecutor:] [Flores’s defense counsel] yesterday asked you words to the effect of ‘Well, didn’t you tell my investigator that [Flores] never raped you’; is that correct? [¶] [Emily:] Yes, he said that. [¶] [The Prosecutor:] Emily, did [Flores] though strike you? [¶] [Emily:] Yes. [¶] [The Prosecutor:] Beat you? [¶] [Emily:] Yes. [¶] [The Prosecutor:] Hold you down? [¶] [Emily:] Yes. [¶] [The Prosecutor:] Allow the others to rape you? [¶] [Emily:] Yes. [¶] [Counsel for Cardelas]: I will object to all these leading questions. [¶] The Court: Overruled.”
For the first time on appeal, Flores contends his constitutional rights to due process and a fair trial were violated because there was no factual support for these leading questions. Assuming, without deciding, that this issue is properly before us, we find no such misconduct.
The record indicates that Flores’s trial counsel did not object to this line of questioning, and counsel did not otherwise join in the objection raised by Cardelas’s trial counsel.
Evidence Code section 767 vests a trial court with broad discretion to decide when to permit the use of leading questions on direct or redirect examination. (People v. Williams (1997) 16 Cal.4th 635, 672 (Williams); People v. Spain (1984) 154 Cal.App.3d 845, 853-854 [the issue is not one of constitutional dimension but instead concerns the trial court’s discretion].) “A question is ‘leading’ if it ‘suggests to the witness the answer the examining party requires.’ [Citations.] [¶] One treatise on evidence offers this explanation on leading questions: ‘A question may be leading because of its form, but often the mere form of a question does not indicate whether it is leading. The question which contains a phrase like “did he not?” is obviously and invariably leading, but almost any other type of question may be leading or not, dependent upon the content and context.... The whole issue is whether an ordinary man would get the impression that the questioner desired one answer rather than another. The form of a question, or previous questioning, may indicate the desire, but the most important circumstance for consideration is the extent of the particularity of the question itself.’ [Citation.] Another treatise says that a question is leading if it ‘ “instructs the witness how to answer on material points, or puts into his mouth words to be echoed back, ... or plainly suggests the answer which the party wishes to get from him.” ’ [Citations.] And [another] treatise... states that ‘A question calling for a “yes” or “no” answer is a leading question only if, under the circumstances, it is obvious that the examiner is suggesting that the witness answer the question one way only, whether it be “yes” or “no.” ’ [Citation.]... [H]owever: ‘When the danger [of false suggestion] is present, leading questions should be prohibited; when it is absent, leading questions should be allowed.’ [Citation.]” (Williams, supra, 16 Cal.4th at p. 672.)
Even if the prosecutor’s questions to Emily on redirect were “leading, ” in the sense that they suggested “yes” or “no” responses, the questions were properly allowed by the trial court. “A leading question is permissible on direct [or redirect] examination when it serves ‘to stimulate or revive [the witness’s] recollection.’ [Citation.]” (Williams, supra, 16 Cal.4th at p. 672.) That was the situation here. Emily had previously testified on direct examination that Flores had joined in the attacks after the other three defendants picked her up. She further testified that Flores had participated in touching her body, sticking his finger in her vagina, and holding her down. Then, on cross-examination, she testified that “three” people picked her up. On redirect examination, the prosecutor sought clarification regarding the extent of Flores’s involvement. The possibility of improper suggestion was remote, as Emily had already testified about Flores’s role in the attacks. Under these circumstances, the trial court did not abuse its discretion by permitting the prosecutor to revive Emily’s recollection on redirect examination, even if his questions were leading.
2. Argument Regarding Defendants’ Use of Spanish Language
Emily testified that she had a limited ability to understand Spanish. She explained that defendants spoke to each other in Spanish, and they responded to her questions in English. However, on the way to Half Moon Bay, defendants primarily conversed amongst themselves in Spanish. The prosecutor argued that defendants were able to plan their attacks on Emily by discussing them in front of her in Spanish, because she did not understand enough Spanish to comprehend what they were saying.
Defendants argue that the prosecutor made use of their native tongue to impermissibly inject racial prejudice into the trial. We disagree. Evidence of defendants’ specific conduct was relevant and admissible on the issue of planning. (See, e.g., Guerra, supra, 37 Cal.4th at p. 1128.) Thus, the prosecutor could properly argue that defendants’ conversations amongst themselves in Spanish were consistent with planning their attacks on Emily. The prosecutor’s argument did not prevent the jury from inferring that defendants spoke to each in Spanish due to their limited English proficiency. In sum, nothing in the prosecutor’s argument appealed to racial prejudice. Rather, the prosecutor’s argument amounted to a fair comment on the evidence, which did not result in a fundamentally unfair trial or one marred by deceptive or reprehensible methods.
3. Argument Regarding Cross-examination
Defendants claim the prosecutor committed prejudicial misconduct by arguing that Emily was “raped and beat[en]... again” on the witness stand. They claim this alleged misconduct violated their state and federal constitutional rights to due process.
In arguing to the jury about Emily’s demeanor, the prosecutor stated: “Did she seem happy? Did she seem excited? Did it look like she wanted to sit here day after day and tell a roomful of strangers and her four rapists what it was like. [¶] What is her motive for lying? Did it look like she was lying? Did it look like it was fun to be examined and questioned again and again and again and relive the worst day of her life in front of you all?... [¶] Ladies and gentlemen, Emily was not eager to engage people. She was not eager to talk about it. She was not eager to have her body exposed to you. What does she do? She withdraws. She plays dead, just like she did with the defendants. The same thing she did on cross-examination. She withdrew because she was tired of being beaten, being exposed-” At which point, Flores’s counsel objected to “the insinuation that cross-examination of a witness is the same as being beaten.” The trial court denied the requests for a mistrial made by each defendant, but admonished the jury that the prosecutor’s comments equating cross-examination with being beaten were improper; the trial court ordered the jury to disregard all such improper comments.
“Improper remarks by a prosecutor can ‘ “so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.” ’ [Citations.] Under state law, a prosecutor who uses deceptive or reprehensible methods to persuade either the court or the jury has committed misconduct, even if such action does not render the trial fundamentally unfair. [Citations.] [¶] Nevertheless, as a general rule, to preserve a claim of prosecutorial misconduct, the defense must make a timely objection and request an admonition to cure any harm.” (People v. Frye (1998) 18 Cal.4th 894, 969 (Frye), disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
“A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel. [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 832.) “To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]” (Frye, supra, 18 Cal.4th at p. 970.)
Here, defense counsel preserved this ground for appeal by objecting to the prosecutor’s remarks. We conclude, however, that defendants have failed to establish that the prosecutor’s ill-advised remark constituted misconduct. “Although it is misconduct for a prosecutor to make comments calculated to arouse passion or prejudice [citation], the comments... challenge[d] here were not so calculated.” (People v. Mayfield (1997) 14 Cal.4th 668, 803.) A reasonable juror would take the prosecutor’s argument as an explanation for why Emily’s testimony should be believed even though she withdrew from questioning and was not an otherwise engaging witness.
In any event, even if the prosecutor’s remark constituted misconduct (a view we do not take), defendants have failed to show they suffered prejudice as a result of the prosecutor’s brief comment. After advising the jury that the prosecutor’s comment was not proper, the trial court ordered the jury to disregard it. The jury was also instructed that it was required to determine the facts from the evidence presented at trial (CALCRIM No. 200), and that the remarks made by the attorneys were not evidence (CALCRIM No. 222). The jury is presumed to have followed the trial court’s instructions. (Delgado, supra, 5 Cal.4th at p. 331.)
The prosecution’s case against defendants was extremely strong. Defendants drove Emily to a dark and secluded place, where they forcefully overcame her resistance. The nearby college students heard a woman screaming and a male voice saying “shut up, shut up”; they also heard what sounded like punching sounds. Emily testified that she was raped four times, sometimes while she was held down by one or more of the defendants and sometimes while defendants stood by ready to force her into submission if she resisted. She was raped first by Resendiz (who slapped in her the face as he raped her), followed by Cardelas, Guillermo, and then again by Resendiz. While Guillermo was raping Emily, Resendiz “stomped” on her face with his foot. Then, after the fourth rape, Guillermo pulled Emily on top of him and encouraged Flores to rape her. Emily testified that Flores held her down, beat her, and allowed the other defendants to rape her.
On this record, we conclude defendants have failed to meet their burden of showing they suffered prejudice or were denied a fair trial as a result of the prosecutor’s statements.
E. Cumulative Error
Finally, defendants contend that even if harmless individually, the cumulative effect of the trial errors mandates reversal. Because we have rejected all of their claims, we perforce reject this contention as well. (Bolin, supra, 18 Cal.4th at p. 335.)
IV. DISPOSITION
The judgments are affirmed.
We concur: RUVOLO, P.J., REARDON, J.