Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F09268
BUTZ, J.Following a 12-day jury trial, defendant Deverick Lockett was convicted of two counts of kidnapping to commit rape (Pen. Code, § 209, subd. (b)(1)), and single counts of rape (§ 261, subd. (a)(1)), assault with intent to commit rape (§ 220), attempted rape (§§ 664, 261, subd. (a)(2)), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), and misdemeanor battery (§ 242), along with allegations that defendant kidnapped the rape victim (§ 667.61, subd. (d)(2)), moved her in a manner that substantially increased the risk of harm (§ 667.61, subd. (e)(1)), and inflicted great bodily injury (§§ 667.61, former subd. (e)(3), 12022.7, 12022.8). The trial court sustained a prior strike allegation (§§ 667, subds. (b)-(i), 1170.12) and sentenced defendant to a state prison term of 30 years plus 64 years to life.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court erred in finding no prima facie case of racial discrimination in the prosecutor’s exercise of peremptory challenges, and his conviction for attempted rape should be stricken as a lesser included offense of assault with intent to commit rape. Only this second contention has merit. We shall modify the judgment accordingly and, in all other respects, affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Cassie Doe
In the early morning hours of September 20, 2007, Cassie “Doe” was heading home when she stopped at a gas station to get cigarettes and use the restroom. She waved to the clerk as she left the station’s store. She next remembered waking up in the hospital in pain.
Twenty minutes after Cassie left the store, a passer-by told the clerk about noises coming from the dumpster. The clerk went to investigate and heard someone crying. He opened the door to the dumpster area and saw Cassie standing between two trash containers, naked from the waist down, beaten and bloody, and covering herself with some cardboard.
At first Cassie could not remember what happened, but later said she might have been sexually assaulted. A sexual assault examination revealed numerous abrasions and bruises, including genital injuries. She suffered six fractures to her face, leaving her with permanent injuries. Defendant’s DNA matched spermatozoa collected from Cassie.
Cydney Doe
On September 23, 2007, Cydney “Doe” noticed defendant walking towards her as she entered her Carmichael apartment complex. As Cydney went to the dumpster, defendant came from behind and repeatedly punched her in the head. As she was losing consciousness, Cydney began to scream. Defendant overpowered and dragged Cydney about 25 feet towards the laundry room by her arm and torso. He put her face down on her stomach on the back floor of the laundry room and said he would really hurt her if she made any more noise, as he unbuttoned the top button of her jeans. A neighbor who heard the screams saw defendant drag Cydney into the laundry room. The neighbor’s girlfriend then called 911.
James M., also a resident of the complex, saw defendant carrying Cydney by the waist, with his hand on her throat. James found defendant in the laundry room, straddling Cydney and tugging on her pants. James yelled out; defendant stood up and walked towards James, with his fists clenched and breathing heavily. As James backed out of the doorway, defendant punched him in the head, causing him to fall backwards into a bush outside the laundry room. Defendant fled and James pursued him but was unsuccessful after defendant hopped a six-foot, wrought-iron fence. James returned to assist Cydney.
Cydney was transported by ambulance to the UC Davis Medical Center. She had suffered a head wound requiring 50 stitches, along with several bruises and abrasions.
Police located defendant standing on a nearby corner and arrested him on a parole violation. Cydney later identified defendant as her attacker at a live lineup at the jail.
Stipulated Priors
The People presented evidence of two prior uncharged crimes and the parties stipulated to the facts.
In December 1996, defendant, carrying a knife, entered Denise “Doe’s” home while she slept in her second-story bedroom. The sound awakened her and she found defendant at the foot of her bed. He yelled at her to “shut up” and then jumped on the bed, pinned her down, and tried to stab Denise as she struggled. Defendant told Denise to take off her nightgown; he agreed to let her up to disrobe. Denise got up, pushed defendant, and jumped from the top stairs to the landing, smashing her face on the hardwood floor. As she ran outside, Denise heard defendant laughing as he walked down the stairs. On March 4, 1997, a charge of assault with intent to commit rape was found true by the juvenile court and defendant was committed to the former California Youth Authority (CYA).
In December 2003, defendant sexually assaulted a juvenile at the CYA in Stockton. On August 16, 2004, he pleaded guilty to sexual battery.
DISCUSSION
I. The Peremptory Challenges
Defendant contends the trial court erred in finding he had not established a prima facie case of discriminatory peremptory challenges by the prosecutor.
A. Background
Defendant’s claim involves the prosecution’s peremptory challenges against four African-American prospective jurors: N.S., N.R., T.H., and K.B.
Before working for Kaiser as a registered nurse, N.S. worked in Sacramento County Juvenile Hall and Alameda County Juvenile Hall, where she dealt with sexual assault victims as well as those accused of sexual assault. N.S. was sexually assaulted when she was four years old, but did not recall the details of the incident. She had a previous conviction for disturbing the peace. The court treated her fairly in her case, but the police officer did not, although this would not affect her ability to serve on a jury. In 1996, her former boyfriend was arrested for burglary with a gun and was serving a life term under a three strikes sentence.
N.R. worked events at Arco Arena. Asked if the questions to other prospective jurors caused her to question her ability to be fair, N.R. said, “Yeah. I think I will be fair because I had to hear everything.” After indicating she understood the People’s burden of proof, N.R. hesitated, stating, “It is tough because it is a horrible crime, ” and agreeing defendant would not be in court if he was not guilty. N.R. guessed she would hear everything first and then give her opinion. Her sister was sexually assaulted by their foster father but “he got away with it” because the laboratory lost the evidence. This made N.R. mad, but she would “push it to the side” and be a fair juror.
T.H. was a personal banker for Wells Fargo. She did not know anyone who was a victim of or had been convicted of a crime similar to those in this case. Asked by defense counsel about her understanding of defendant’s right not to testify, T.H. replied, “[T]here could be several avenues. If you have someone representing you and you trust them—if I am going to court for a divorce or what have you, I am paying someone to be my mouthpiece, based on what I told you happened and the evidence, or whatever.” Since some people “think they know what to say but do not have the proper effect, ” T.H. said, “[t]hat is why you have a professional to help you along with the process.” When the prosecutor asked if she understood defendant’s silence was not evidence, T.H. said, “I might not answer the way that you might think I should have, but the judge said listen to the evidence. I can’t listen to what he don’t [sic] say or what he did or didn’t say. I am going to listen to what you present.”
K.B. was a supervisor at a window company. Thirteen years ago, he stopped at a light rail parking lot while talking to some women, and was arrested for driving without a license and carrying an unlicensed gun. He served a two-week jail term for the gun offense. K.B. felt he was treated fairly by the courts, but the sheriff who arrested him treated him unfairly by claiming he fought the two women. He said there was no fight, which was just an excuse used by law enforcement to stop and see what was going on. The incident would not affect his ability to serve as a juror.
N.S. (the nurse) was on the panel of prospective jurors when the defense and the prosecution each exercised two peremptory challenges. N.R. (the events worker) and T.H. (the banker) were then called into the jury box for voir dire. After both parties passed for cause, the prosecutor exercised a peremptory challenge on N.S. After the defense exercised a peremptory challenge, the prosecutor followed by excusing N.R. The prosecution and defense then each exercised five more peremptory challenges, and K.B. (the window company supervisor) was called to the jury box for voir dire. The defense and prosecution passed for cause on the panel, and the defense passed on the next peremptory challenge. The prosecutor exercised a peremptory challenge on T.H., followed by defense counsel excusing a prospective juror, and the prosecutor exercising a peremptory challenge on K.B. After an unreported sidebar, defense counsel exercised a peremptory challenge, and the prosecutor accepted the panel. Defense counsel then exercised another peremptory challenge, seven more prospective jurors were called, and the trial court called a recess.
During the recess, defense counsel indicated her intention to file a Batson-Wheeler motion. Counsel alleged a “pattern of the prosecution dismissing potential jurors based on their apparent African-American lineage, ” believing there was no “race-neutral reason” for dismissing N.S., N.R., T.H., and K.B., which established a prima facie case of discriminatory peremptory challenges.
Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson); People v. Wheeler (1978) 22 Cal.3d 258.
The trial court said it had “been following this pretty closely, ” and did not believe defendant had made a prima facie case. The court noted two African-American jurors were on the panel just passed by the prosecutor. Continuing, the trial court declared that it identified race-neutral reasons for each of the contested peremptory challenges. After indicating the prosecutor would be allowed to give his reasons for the challenges, the trial court gave what it saw as race-neutral reasons for the contested peremptory challenges.
Regarding N.R., the trial court found “her responses to the questions indicated what I would just have to say was a lack of intelligence. She seemed to have difficulty appreciating the concepts that she had to be questioned about” and “was easily confused by the kinds of questions we were asking her.”
The trial court said K.B. “had a negative experience with law enforcement, the result of a misdemeanor for unlawful possession of a gun.” Also, the trial court “was not completely satisfied with the credibility of his response in connection with why he was arrested in the first place.”
T.H. was characterized by the trial court as “an intelligent woman” with “an executive kind of personality.” The trial court found that her answers, particularly in regard to defense counsel’s questions, “indicated that she was perhaps more sympathetic to the defense side of the case.” T.H.’s answers suggested she would use attorney argument as a “substitute for evidence” if defendant did not testify, which the trial court felt was more concerning to the prosecution and a valid reason for the peremptory challenge.
The trial court did not have its notes regarding N.S., but recalled she was “somewhat problematic.” The prosecutor interjected that N.S. “was a victim of a molest, ” and “a defendant in a [section] 415.” The trial court agreed, recalling it was troubled by her prior molestation but even more concerned “that she had been charged in a misdemeanor disturbing the peace incident, ” which “would have provided an adequate basis for the peremptory challenge.”
Asked to provide additional argument, the prosecutor said T.H.’s response to his question about defendant “seemed to infer that I was trying to belittle her” or make her sound unintelligent, thus offending her. The prosecutor also agreed that T.H.’s decision to treat attorney argument as evidence if defendant did not testify was an additional reason for the peremptory challenge.
The trial court told the prosecutor there appeared to be no race-neutral reasons for challenging the two African-American jurors who remained on the panel. Defense counsel said she disagreed with some of the court’s opinions but understood the ruling.
B. Analysis
“A prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias—that is, bias against ‘members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds’—violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution, ” and “also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution.” (People v. Avila (2006) 38 Cal.4th 491, 541.)
The United States Supreme Court reaffirmed the three-prong Batson test to be used by trial courts when motions are made challenging peremptory strikes: “First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] 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.’” (Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 138] (Johnson), fn. omitted.)
Defendant asserts the trial court applied the incorrect legal standard in finding he had not established a prima facie case of discrimination. Asserting defense “counsel can only know what can be observed, i.e., the racial composition of the jury panel, the race of his own client, and the manner in which a prosecutor exercises his peremptory challenges, ” defendant claims trial counsel established a prima facie case of discrimination by showing the prosecutor used four of its first 11 peremptory challenges to excuse four of the six African-American venire members.
Defendant takes issue with the trial court providing its own race-neutral reasons for the contested peremptory challenges. Citing Johnson, supra, 545 U.S. at page 172 [162 L.Ed.2d at pp. 140-141], he contends this is the exclusive province of the prosecutor, and the trial court should refrain from speculating as to why the jurors in question were challenged.
“The Batson framework is designed to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process. [Citation.] The inherent uncertainty present in inquiries of discriminatory purpose counsels against engaging in needless and imperfect speculation when a direct answer can be obtained by asking a simple question.” (Johnson, supra, 545 U.S. at p. 172 [162 L.Ed.2d at pp. 140-141].)
The trial court short-circuited the procedure established by Batson and Johnson. Defendant presented a prima facie case of discrimination—four of the prosecutor’s first 11 peremptory challenges were against four of the six African-Americans on the panel. At this point, the trial court should have asked the prosecutor to give race-neutral reasons for the challenges in question. The trial court instead bypassed Batson’s second step, giving its own views on the challenges before the prosecutor had a chance to explain.
The trial court’s error does not warrant reversal. “‘When a trial court denies a Wheeler motion without finding a prima facie case of group bias, the appellate court reviews the record of voir dire for evidence to support the trial court’s ruling. [Citations.] We will affirm the ruling where the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question.’” (People v. Guerra (2006) 37 Cal.4th 1067, 1101, disapproved on another point in People v. Rundle (2008) 43 Cal.4th 76, 151, itself disapproved on a different ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
The trial court’s ruling provided race-neutral reasons for the peremptory challenges as to three of the potential jurors. Asked to comment, the prosecutor explicitly agreed with the reasons given for one of the venire members, T.H., gave race-neutral reasons for excluding the fourth venire member, N.S., gave an additional race-neutral reason for challenging T.H., and implicitly ratified the reasons given with regard to the other two venire members. Those reasons are supported by substantial evidence.
Applying Guerra, we conclude reversal is not warranted because the record establishes race-neutral reasons for all of the challenges in question, and the prosecutor provided race-neutral reasons for two of the challenges.
Our holding does not contradict the rule that Batson error is reversible per se. (See Batson, supra, 476 U.S. at p. 100 [90 L.Ed.2d at p. 90].) Although allowing discriminatory peremptory challenges is not subject to harmless error, procedural errors under Batson can be harmless if the evidence establishes beyond a reasonable doubt that the jurors were excluded for race-neutral reasons. (See People v.Ayala (2000)24 Cal.4th 243, 264 [applying harmless error to ex parte hearing allowing prosecutor to give reasons for challenges].) The trial court did not commit substantive Batson error, as the record established there were race-neutral reasons for the allegedly discriminatory challenges. The trial court’s procedural error is harmless because the record establishes beyond a reasonable doubt that the challenges in question did not violate Batson.
II. Attempted Rape Is a Lesser Included Offense of Assault with Intent to Commit Rape
Defendant was convicted of attempted rape and assault with intent to commit rape in connection with his attack on Cydney Doe. Defendant contends, and the People agree, that his conviction for attempted rape should be vacated as a lesser included offense of assault with intent to commit rape.
Although a defendant may generally be convicted of more than one crime arising out of the same act or course of conduct (§ 954; People v. Reed (2006) 38 Cal.4th 1224, 1226-1227), the courts have created an exception to this rule where multiple convictions are based on “‘necessarily included offenses’” (Reed, at p. 1227, quoting People v. Montoya (2004) 33 Cal.4th 1031, 1034). If an offense is a lesser included offense under the statutory “elements” test (i.e., if all the elements of the lesser offense as defined by statute are necessarily included in the greater offense), the defendant may be convicted properly only of the greater offense. (Reed, supra, 38 Cal.4th at p. 1229; Montoya, supra, 33 Cal.4th at p. 1034.)
Assault with the intent to commit rape, section 220, is a form of attempted rape. (People v. Holt (1997) 15 Cal.4th 619, 674; People v. Ghent (1987) 43 Cal.3d 739, 757; People v. Rupp (1953) 41 Cal.2d 371, 382 [an “assault with intent to commit rape is merely an aggravated form of an attempted rape, the latter differing from the former only in that an assault need not be shown”], disapproved on other grounds in People v. Cook (1983) 33 Cal.3d 400, 413, fn. 13.) “If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed.” (People v. Moran (1970) 1 Cal.3d 755, 763.) We shall reverse the conviction for attempted rape.
DISPOSITION
The conviction for attempted rape (§§ 664, 261, subd. (a)(2)) is reversed. In all other respects, the judgment is affirmed. The trial court is directed to amend the abstract of judgment accordingly and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: ROBIE, Acting P. J., DUARTE, J.