Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. INF050942. David W. Perkins, Judge. (Retired judge of the Los Angeles Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Barry O. Bernstein and Alison Minet Adams for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Quisteen S. Shum and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Defendant Michael Arubo Garza appeals from his conviction of 19 felony counts of sexual conduct with a minor, including violations of Penal Code sections 288, subdivision (c) (counts 1 and 3), 288a, subdivision (b)(2) (counts 2, 4, 11, and 12), 288, subdivision (c)(1) (counts 5-10, 13, and 14), 261.5, subdivision (d) (counts 15 and 16), and 261.5, subdivision (c) (counts 17-19). Defendant contends the matter should be remanded for resentencing because the imposition of the aggravated term for count 15 violated his right to trial by jury. He also argues the judgment should be reversed because (1) his prosecution for ongoing consensual sexual conduct with the minor as separate felonies carrying different penalties violates equal protection principles; (2) the trial court erred in overruling defense objections to hearsay evidence; and (3) the prosecutor improperly excused jurors based on group bias. We conclude that any errors were harmless, and we affirm.
All further statutory references are to the Penal Code unless otherwise specified.
II. FACTS AND PROCEDURAL BACKGROUND
In the 1998-1999 and 1999-2000 school years, when M. was in sixth and seventh grades, defendant, a teacher and coach at her school, coached her in volleyball, basketball, and track and field. Defendant was “the cool teacher” — the most popular teacher at the school, and everyone looked up to him. M. sometimes visited defendant in his classroom during lunch breaks with other students, and he occasionally gave her and other students rides home from practices.
In September 2000, M., who was then 13 years old, entered eighth grade. She continued playing sports, and defendant was her coach. She saw him every weekday, and he gave her rides home from practices. He had become a friend of her family. M. grew closer to defendant, and they began discussing personal matters. Defendant told M. about problems with his wife, and she told him about her family and friends and about crushes she had. Defendant began complimenting M. on her appearance, and she developed a crush on him and daydreamed about being his wife some day.
Defendant and M. exchanged photographs and began writing letters to each other. They developed a code for expressing love for each other. Defendant gave M. gifts for Christmas and for her 14th birthday (in January 2001). M.’s parents did not know about the gifts. Defendant told M. to keep their relationship secret.
One day in 2000 or 2001, M. was taking care of defendant’s daughter in his classroom. When defendant returned, he and M. played cards, and then defendant pulled her towards him and kissed her. Before he drove her home, he gave her a French kiss, which made her uncomfortable because it was the first time that had happened to her.
Two or three weeks later, M. stayed home from school because she was sick. Defendant telephoned her and said he had not seen her in school that morning. Around lunchtime, he brought her food. While they were in M.’s bedroom, he kissed her and touched her breasts and genital area. Defendant was then 28 or 29 years old.
A couple of weeks later, defendant suggested that M. tell her parents she was sick and stay home again. Defendant visited her at her house. He removed her pants and kissed her breasts, stomach, lower abdomen, and inner thighs. When he began to kiss her genital area, she pushed him away and asked him to stop. He apologized for having “gotten carried away.”
A third time, again at defendant’s suggestion, M. again stayed home from school after telling her parents she was sick. Defendant again visited her at the house. While they were kissing on the couch, defendant grabbed M.’s hand and placed it on his penis.
M. began sneaking out of the house, without her parents’ knowledge, in the middle of the night. Defendant picked her up around the corner so her parents would not see him. They drove to various places and performed sexual acts in his truck, including oral sex and genital fondling. M. would then slip back into her house through the rear sliding door. Her younger sister, with whom she shared a room, was asleep when she left and when she returned.
Some time between January and June 2001 when M. was 14, they had sexual intercourse for the first time. M. testified they had sexual intercourse in defendant’s truck 40 or 50 times after that.
In 2001, an incident occurred at the school during which defendant’s wife, Susanna Serrato, confronted defendant and M. with letters they had written each other and yelled at them for destroying her marriage. Serrato also went to the school principal. Following that incident, an investigator spoke to M. at the school in the presence of her parents, teacher, and principal. M. told them there was nothing inappropriate going on between her and defendant. She denied everything because she and defendant had earlier agreed to keep their relationship secret. The investigator believed her.
On Valentine’s Day in 2002 when M. was 15, she sneaked out of the house and spent the night with defendant at his cousin’s apartment. They performed oral sex on each other and had sexual intercourse. Through March and April 2002, M. continued to sneak out of her house, meet defendant, and have sexual intercourse, including in his truck and at his aunt’s house.
M. turned 16 in January 2003. She and defendant continued to meet and have sexual intercourse several times after that. In October 2003, defendant and his friend took M. and her friend to a pool hall. Because the establishment would not serve alcohol to the two girls, defendant bought a drink, sipped it, and passed it to M. by kissing her. That night, defendant and M. had sexual intercourse at his house.
M. described defendant’s penis as circumcised with birthmarks or small discolorations on it, which she sketched on a diagram. She identified a photograph of his penis.
In December 2004, Serrato’s sisters “jumped” M., and a fight ensued. M. and the sisters were taken to the principal’s office. A sheriff’s deputy asked what had happened, whether it was related to the 2001 investigation, and if it had anything to do with defendant. M. stated it did not. M. and the sisters were suspended from school after the fight, and Serrato got a restraining order against M.
In January 2005, M. had a boyfriend, and she told him about the situation with defendant. He insisted she talk to someone, and she told a school counselor and her parents about her relationship with defendant.
In February 2005, M. had a medical examination. A detective falsely told her she had tested positive for syphilis. Defendant was arrested, and he denied having sexual intercourse with M. The detective told defendant she had reason to believe M. had syphilis. While defendant was released from custody, he telephoned M. and insisted he did not give her the disease.
Four witnesses testified in defendant’s defense that he was not the type of person who would have inappropriate sexual conduct, and they had never observed any inappropriate behavior on his part.
The jury found defendant guilty on all 19 counts.
The trial court sentenced defendant to 15 years in prison, including the aggravated term of four years for count 15, the middle term of one year for count 16, and consecutive sentences of eight months on each of 15 other counts. The trial court stayed the sentences for counts 10 and 11 under section 654.
III. DISCUSSION
A. Aggravated Sentence for Count 15
Defendant contends the matter should be remanded for resentencing because the imposition of the aggravated term for count 15 violated his right to a jury trial under Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296, because the factors the trial court relied on in imposing the sentence were not found by the jury, and he did not waive his right to a jury trial on those factors.
1. Background
The trial court selected count 15 as the principal count. The trial court found as factors in aggravation that the victim was particularly vulnerable (see Cal. Rules of Court, rule 4.421(a)(3)), that defendant took advantage of his position of trust and confidence (rule 4.421(a)(11)), and that the crimes involved planning (rule 4.421(a)(8)). The trial court explained, “Once again the defendant occupied a position of trust. He was a teacher and a coach. He had influence and power over the victim like many other students at the school. They for all practical purposes worshipped the defendant. They believed he could do no wrong and he betrayed their trust.
All further references to rules are to the California Rules of Court.
“The victim was particularly vulnerable. When the sexual molestation began, she was in a classroom at the school. He began the lewd conduct at the school in the classroom in full view of his daughter on the date that he was supposed to be teaching.
“This conduct occurred over a period of years and the defendant had plenty of time to reflect between each and every incident regarding the consequences of his actions and he made a conscious decision to continue the criminal conduct regardless of the damage caused to the victim.
“What I consider one of the most [sic] factors in this case is the [c]ourt is convinced that she wouldn’t have fallen victim to anybody else but this particular defendant because of the position and trust that he occupied at the school. I don’t think that she would be in the position that she is in today having suffered through this entire period of time with him had it been anybody else, and so he violated that particular trust this victim had, and I think that is one of the most important factors here.
“Additionally, defendant planned each and every time and location for the sexual acts and instructed the victim to sneak out of her home so her parents would not know what was going on.
“The defendant, knowing she was under age, supplied the victim with alcohol and insured she would drink alcohol by giving it to her mouth to mouth prior to any sexual acts.
“The defendant, who was personal friends with the victim’s parents, deceived them of his relationship with their daughter, even though as a teacher he had the duty and best interest of the child and failed to so act.
“And which is so obvious from today’s hearing, the defendant has shown no remorse. He is not even here. He has shown no remorse. He has shown no remorse that I know of during this entire period.” The trial court found the absence of prior convictions to be the sole factor in mitigation.
2. Forfeiture
Defendant contends the trial court erred in failing to obtain a waiver of his right to a jury trial on the factors in aggravation. However, on the day the jury reached its verdicts, defendant had been ordered to return to court, but he failed to show up. The trial court eventually concluded defendant had voluntarily absented himself from the proceedings and continued as if he were there. The court clerk read the jury verdicts in defendant’s absence. The trial court excused the jury and set the matter for sentencing.
On the date of the sentencing hearing, defendant did not appear, and his counsel said he did not know where defendant was. The court proceeded with sentencing after hearing from defendant’s counsel and the prosecutor. Defendant had indicated to an investigator that he wanted to wait until after the sentencing hearing to see how much prison time he would get before turning himself in.
It is apparent that the trial court’s failure to take an on-the-record waiver of a jury trial as to the aggravating factors was created by defendant’s own conduct and was thus not error. Moreover, as discussed below, any error was harmless.
3. Analysis
In Cunningham, the Supreme Court held that the imposition of an aggravated term sentence under California’s determinate sentencing law violates a defendant’s constitutional right to a jury trial when based solely on the trial court’s factual findings. (Cunningham, supra, 127 S.Ct. at p. 860.) However, Cunningham error is harmless if the court “concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury . . . .” (People v. Sandoval (2007) 41 Cal.4th 825, 839 (Sandoval).) Here, we reach such a conclusion.
First, the evidence of the victim’s vulnerability was overwhelming. M. was in the sixth grade when defendant met her. He was her coach in all the sports she played, and she looked up to him and admired him. She was only 14 and in the eighth grade when defendant’s sexual acts began. The jury would undoubtedly have found true that M. was a vulnerable victim. (See Sandoval, supra, 41 Cal.4th at p. 842 [noting that the record did “not reflect such a clear-cut instance of victim vulnerability that we confidently can conclude the jury would have made the same findings, as might be the case if, for example, the victims had been elderly, very young, or disabled, or otherwise obviously and indisputably vulnerable”].)
Second, the evidence of planning was overwhelming. The first incident occurred when defendant brought lunch to M. when he found out she was sick at home. The second and third incidents occurred when he asked her to pretend she was sick and to stay at home where he visited her. Numerous other incidents occurred when M. sneaked out of the house and met him around the corner as they had prearranged. The jury would undoubtedly have found true beyond a reasonable doubt that the manner in which the crimes were carried out indicated planning.
Finally, the evidence that defendant had abused his position of trust and confidence was overwhelming. Defendant first met the victim in his role as coach, and later as a well-liked teacher at her school. Defendant became friends with M.’s parents. The jury would undoubtedly have found true beyond a reasonable doubt that defendant abused his position of trust and confidence.
Thus, based on our review of the record, we conclude the jury would have found true beyond a reasonable doubt those aggravating factors on which the trial court relied, and the error in failing to submit those factors to the jury was harmless beyond a reasonable doubt. (People v. Sandoval, supra, 42 Cal.4th at p. 839.)
B. Equal Protection Challenge
Defendant argues the judgment should be reversed because his prosecution for ongoing consensual sexual conduct with the minor as separate felonies carrying different penalties violates equal protection principles because the statutes criminalize consensual sexual conduct based on the specific acts and relative ages of the participants.
1. Forfeiture
The People argue that defendant failed to raise his equal protection claim in the trial court, and he has therefore forfeited his claim on appeal. (See People v. Carpenter (1997) 15 Cal.4th 312, 362 [holding that a defendant could not raise an equal protection challenge for the first time on appeal].) The People have nonetheless fully briefed the issue, and we will therefore exercise our discretion to address the merits of the issue.
2. Analysis
Both the federal and California Constitutions provide that no person shall be deprived of equal protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a).) “‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but ‘whether they are similarly situated for purposes of the law challenged.’ [Citation.]” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253) “If persons are not similarly situated for purposes of the law, an equal protection claim fails at the threshold. [Citation.]” (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.)
When a showing is made that two similarly situated groups are treated disparately, the court must then determine whether the government has a sufficient reason for distinguishing between them. “In resolving equal protection issues, the United States Supreme Court has used three levels of analysis. Distinctions in statutes that involve suspect classifications or touch upon fundamental interests are subject to strict scrutiny, and can be sustained only if they are necessary to achieve a compelling state interest. Classifications based on gender are subject to an intermediate level of review. But most legislation is tested only to determine if the challenged classification bears a rational relationship to a legitimate state purpose. [Citations.]” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200 (Hofsheier).)
Although we first observe that defendant has not identified two similarly situated groups for purposes of the threshold showing required to bring an equal protection challenge, we will nonetheless proceed to the next step of the analysis. Defendant contends strict scrutiny applies to his equal protection claim because the statutes criminalize private consensual sexual conduct based on the specific acts and relative ages of the participants. He argues that “[a]bsent an arbitrary morality based classification based upon the young woman’s age, there would be no crime here at all,” and “[a]bsent an arbitrary, morality based distinction based on [defendant’s] age, these would be punishable as misdemeanors, and probation could be granted.”
However, in Hofsheier, the court applied the rational relationship test to hold that requiring the defendant to register as a sex offender under section 290 based on his conviction of oral copulation with a 16-year-old girl denied him equal protection because a person convicted of unlawful sexual intercourse with a minor under the same circumstances would not be subject to the mandatory registration requirement. (Hofsheier, supra, 37 Cal.4th at pp. 1200-1207.) We need not resolve the issue of which level of scrutiny applies to defendant’s claims because, as we discuss more fully below, we would reach the same result even under the most stringent standard.
Defendant challenges sections 261.5, subdivisions (c) and (d), 288, subdivision (c)(1), and 288a, subdivision (b)(2) on the ground that they punish older violators more harshly than youthful violators. He cites Lawrence v. Texas (2003) 539 U.S. 558 (Lawrence)for the proposition that privacy rights preclude such disparate treatment. Notably, however, the Supreme Court in Lawrence emphasized that its holding did not apply to children: “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. . . . The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.” (Id. at p. 578.)
Defendant was convicted in counts 17 through 19 of violating section 261.5, subdivision (c), which provides: “Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, . . .”
Defendant was convicted in counts 15 and 16 of violating section 261.5, subdivision (d), which provides, “Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, . . .”
Defendant was convicted in counts 5 through 10, 13, and 14 of violating section 288, subdivision (c)(1), which provides, “Any person who commits [a lewd or lascivious act with defined intent], and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense, . . .”
Defendant was convicted in counts 2, 4, 11, and 12 of violating section 288a, subdivision (b)(2), which provides, “Except as provided in Section 288, any person over the age of 21 years who participates in an act of oral copulation with another person who is under 16 years of age is guilty of a felony.”
In People v. Gonzalez (1978) 81 Cal.App.3d 274 (Gonzalez), the court held that section 286, subdivision (c), which provided increased punishment for sodomy when the perpetrator was more than 10 years older than the victim, withstood strict scrutiny in the context of an equal protection challenge. The court explained that the state had a compelling interest “in the protection of children from sexual molestation by persons who are materially more mature.” (Gonzalez, supra, at p. 277.) The court continued, “Undeniably, there is a greater likelihood that a young child will succumb to the sexual blandishment of one who is much older than that the child will do so when the conduct is solicited by one close to the child’s own age. There thus exists a compelling state interest to classify as a special category sexual misconduct of a materially older person where the victim of the conduct is a young child. Classifications based upon the ages of the victim and the offender are necessary to carry out the state interest.” (Ibid.) Although Gonzalez addressed section 286 rather than the specific statutes challenged here, its reasoning is equally applicable and compelling with respect to defendant’s challenge.
We also find defendant’s reliance on Hofsheier unavailing. The court in that case found no rational basis for a81pplying the mandatory registration requirement to an adult defendant convicted of oral copulation on a 16-year-old girl when such a requirement would not have applied if he had been convicted of sexual intercourse with her under the same circumstances. (Hofsheier, supra, 37 Cal.4th at pp. 1193-1195.) The issue was whether different consequences could rationally apply to different types of sexual acts between the same victim and the same perpetrator. The court did not address any challenge similar to that defendant raises here, which is that classifications based on the relative ages of the victims and perpetrators are impermissible. We therefore reject defendant’s equal protection challenge.
C. Admission of Evidence
Defendant argues the trial court erred in overruling defense objections to hearsay evidence. He further argues that the evidence should have been excluded under Evidence Code section 352.
1. Background
The prosecutor questioned M. about an incident that occurred when she was in eighth grade, during which Serrato confronted M. in front of defendant at school and started yelling at her. Defense counsel objected on the basis of hearsay, and the trial court stated it would overrule the objection to the extent the testimony was offered to show there was a confrontation but would sustain the objection to the extent the prosecutor asked for statements. The trial court sustained an objection to M.’s testimony that Serrato had said M. had ruined Serrato’s marriage.
M. testified that while Serrato was yelling, she was holding letters that M. and defendant had exchanged. Serrato appeared to be upset about the letters. Defendant was present, and Serrato was also yelling at him; defendant kept telling her to stop.
The prosecutor asked M. what Serrato was yelling about, and the court sustained an objection of defense counsel to the question. The prosecutor stated he was offering the evidence as an excited utterance. Defendant objected to the evidence of Serrato’s statements on the grounds of lack of foundation and hearsay, citing Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
The trial court allowed M. to answer the question, and she testified, “She kept telling him what a pervert he was. And how he could have done that to herself and his daughter. And she kept telling me the same things. What I had done to their family and how I had broken up a marriage. And how I could have ever done that to their daughter.” Eventually, Serrato went to see the school’s principal.
During a recess at the trial, defense counsel further argued that the evidence was inadmissible under Crawford and Evidence Code section 1240 and requested a mistrial or a limiting instruction. The trial court overruled the Crawford objection. With respect to the argument that Serrato’s statements were admissible as excited utterances, the court stated, “It seems to me like it was done simultaneous within the conversation of the two parties at the time.” The trial court denied defendant’s request for a mistrial.
2. Analysis
Hearsay evidence is “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (Evid. Code, § 1200, subd. (a).) Hearsay evidence is generally inadmissible unless an exception to the hearsay rule applies. (Evid. Code, § 1200, subd. (b).) However, out-of-court statements not offered to prove the truth of the matter stated do not fall within the definition of hearsay. (People v. Jaspal (1991) 234 Cal.App.3d 1446, 1462.)
The testimony challenged on appeal is as follows: “She kept telling him what a pervert he was. And how he could have done that to herself and his daughter. And she kept telling me the same things. What I had done to their family and how I had broken up a marriage. And how I could have ever done that to their daughter.” We conclude that the challenged testimony was not hearsay because it was not offered to prove the truth of the matter asserted — obviously, it was not offered to prove that defendant was a pervert or that he and M. had broken up the marriage. Thus, we need not further examine whether the evidence fell within an exception to the hearsay rule under Evidence Code section 1240.
Defendant argues, however, that the evidence should have been excluded as more prejudicial than probative under Evidence Code section 352. Defendant did not object on that basis in the trial court, and he has therefore forfeited the argument on appeal. (Evid. Code, § 353, subd. (a), People v. Partida (2005) 37 Cal.4th 428, 431.)
Finally, even if the trial court erred in admitting evidence of Serrato’s statements, the error was harmless under any standard of evaluating prejudice. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence of defendant’s guilt was overwhelming. M. testified defendant repeatedly committed lewd and lascivious acts upon her, orally copulated her, and had sexual intercourse with her over a three-year period. M.’s testimony was corroborated by her knowledge of the exact location of unique skin discolorations on defendant’s penis and by a recorded telephone conversation between M. and defendant on March 30, 2005, during which he denied giving her syphilis. Love letters that defendant had sent her were admitted into evidence. Thus, any error in the admission of Serrato’s statements was harmless beyond a reasonable doubt.
D. Excusal of Jurors
Defendant argues the prosecutor improperly excused jurors based on group bias in violation of Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled on other grounds in Johnson v. California (2005) 545 U.S. 162, 165.)
1. Background
During jury selection, defense counsel objected to the prosecutor’s exercise of peremptory challenges to excuse three prospective jurors, D.M., N.A., and J.S., who appeared to be Hispanic. The trial court asked the prosecutor if he wished to respond, and the prosecutor stated he had excused D.M. so she could go to Mexico to be with her dying father. The prosecutor stated that N.A. was a younger person who had grown up in Coachella and who had no children. The prosecutor stated he needed a juror who was a little older and who would be able to “put together some circumstantial evidence.” The prosecutor stated that J.S. was also younger, and he had appeared in court with his shirt outside of his pants, had sauntered into court and slumped down in his seat, and appeared to be uninterested in what was going on.
On appeal, defendant does not challenge the excusal of D.M.
Defense counsel conceded that the illness of D.M.’s father was a nondiscriminatory reason to excuse her, but he disagreed with the prosecutor’s observations of J.S. and stated he thought the prosecutor’s justifications for excusing J.S. and N.A. were “a little specious.” The prosecutor noted that a man of Hispanic descent was still on the jury, and another prospective juror had a Hispanic surname.
The trial court found the prosecutor’s reason for excusing D.M. was valid and that the explanation for excusing N.A. and J.S. was justifiable. The trial court denied the motion.
2. Analysis
A party may not use peremptory challenges to remove prospective jurors solely on the basis of group bias; such a practice violates a defendant’s right to trial by a jury drawn from a representative cross-section of the community. (Wheeler, supra, 22 Cal.3d at pp. 276-277.) “Group bias is a presumption that jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds.” (People v. Fuentes (1991) 54 Cal.3d 707, 713.) A party who believes an opponent is using peremptory challenges for a discriminatory purpose must make a timely objection and must make a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” (Batson, supra, 476 U.S. at pp. 93-94.) To make a prima facie showing, the moving party must make as complete a record as possible, establish that the persons excluded are members of a cognizable group, and raise an inference that the challenged jurors were excluded because of being members of that group. (Johnson v. California (2005) 545 U.S. 162, 168.) The burden then shifts to the opposing party to provide a permissible, neutral explanation for the use of peremptory challenges. (Batson, supra, 476 U.S. at p. 94.) The trial court must then decide “‘whether the opponent of the strike has proved purposeful racial discrimination.’” (Johnson v. California, supra, 545 U.S. at p. 168.)
Here, the trial court implicitly found an inference of discriminatory purpose when it asked the prosecutor if he wished to be heard. The trial court’s decision that the prima facie showing was overcome is reviewed for substantial evidence. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1009.) We give great deference to the findings of the trial court, which observes “the demeanor of the attorney who exercises the challenge” and assesses that attorney’s credibility. (People v. Schmeck (2005) 37 Cal.4th 240, 275.)
Age, in and of itself, has not been defined a distinctive or cognizable group for purposes of Wheeler/Batson. (See People v. Ayala (2000) 24 Cal.4th 243, 278; People v. McCoy (1995) 40 Cal.App.4th 778, 783.) Thus, the prosecutor’s explanation that he exercised peremptory challenges as to N.A. and J.S. based on their youth was sufficient to overcome the prima facie showing of group bias.
Moreover, courts have recognized that a prospective juror’s body language, apparent inattentiveness, and manner of answering questions are proper bases for exercising peremptory challenges. (See, e.g., People v. Fuentes, supra, 54 Cal.3d at pp. 714-715.) And “a prosecutor may fear bias on the part of one juror . . . simply because his clothes or hair length suggest an unconventional life-style.” (Wheeler, supra,22 Cal.3d at p. 275.) Thus, the prosecutor’s explanation that he exercised a peremptory challenge as to J.S. because of his manner of dress, body language, and demeanor was sufficient to overcome the prima facie showing of group bias. We conclude there was no error under Wheeler and Batson.
IV. DISPOSITION
The judgment is affirmed.
We concur: GAUT, J., MILLER, J.