Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF126330A, Kenneth C. Twisselman II, Judge.
Rex Williams, under appointment by the Court of Appeal, for Defendant Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
Appellant Humberto Lopez appeals his convictions for misdemeanor sexual battery and misdemeanor assault. He contends (1) the trial court erred when it denied his motion pursuant to Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); (2) the misdemeanor assault must be reversed because it is an included offense of misdemeanor sexual battery; and (3) it was error to impose a Government Code section 70373 assessment because that code section was enacted after the date the offenses were committed.
We will reverse the misdemeanor assault conviction and strike the Government Code section 70373 assessment imposed for that conviction. In all other respects we will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On June 19 and 20, 2008, Lopez was working at the home of Maria Barron and her husband, Margarito, in Bakersfield doing weatherization. On the morning of June 20, Lopez was working in the house when Margarito left for work and Maria remained at home. At approximately 11:00 a.m., Maria went into the garage to do some laundry. She was standing at the washing machine when Lopez walked by and brushed his hand across her buttocks. Maria thought this might have been unintentional, so she ignored it.
Lopez asked where her husband was and Maria replied he was not at home. Lopez then asked her if she enjoyed watching pornographic movies and brushed the front of his body against her. Lopez handed a pair of panties to Maria and she recognized them as a pair that had been in her bedroom. Lopez told Maria that he had not been able to sleep the night before because he was thinking about her. He indicated he was very excited and had taken the underwear because he thought they belonged to her. Lopez then reached around Maria from behind and fondled her left breast. Although Maria struggled, Lopez was able to remove her left breast from under her dress.
Maria cursed at Lopez and tried to push him away. Lopez grabbed onto her arm with enough force to cause bruising. He lifted the back of her dress and touched her vagina through her clothing. As he did this, Lopez asked, “Have you ever had it from behind?” Maria broke free of Lopez’s grip, turned around, and saw him zipping up his pants. Lopez told her that things could happen to her family if she told anyone what he had done.
Maria ran into the kitchen and a few moments later her neighbor, Claudia, stopped by. Lopez walked in and said, “I have to leave now, ” and he left. Maria was too shocked and embarrassed to tell Claudia or anyone else what had happened. Later that afternoon, however, she told Claudia what had happened and then called 911.
Lopez was charged with one count of violating Penal Code section 243.4, subdivision (a), sexual battery, and one count of violating Penal Code sections 220 and 261, subdivision (a)(2), assault with intent to commit rape. On July 15, 2009, a jury found Lopez guilty of misdemeanor sexual battery on count 1 and misdemeanor assault on count 2.
Lopez was sentenced to three years probation on the condition he serve 120 days in the county jail on count 1. Imposition of sentence on count 2 was suspended. Among the fees and assessments imposed were a court security fee under Penal Code section 1465.8, subdivision (a)(1) and a Government Code section 70373 assessment on both counts 1 and 2.
DISCUSSION
Lopez raises three contentions on appeal: (1) the trial court erred in denying his Batson/Wheeler motion; (2) his misdemeanor assault conviction must be reversed because it is an included offense of the misdemeanor sexual battery conviction; and (3) it was error to impose a Government Code section 70373 assessment because that code section was enacted after the date the offenses were committed.
I. Batson/Wheeler Motion
Lopez argues that the prosecutor used peremptory challenges to excuse Hispanic jurors improperly and that the trial court erroneously denied his Batson/Wheeler motion. At the time Lopez made his initial motion pursuant to Batson/Wheeler, the prosecutor had used peremptory challenges to excuse two Hispanic jurors.
Factual summary
The prosecutor questioned Prospective Juror Ms. Garcia, who was a college student on summer break. She was working on an undergraduate degree in liberal studies. She did not have a career goal, but thought she might like to teach “little kids.” Her only work experience was her current summer job as a cashier at K-Mart.
The prosecutor passed Ms. Garcia for cause, but exercised a peremptory challenge to excuse her. Shortly after this, the defense excused Prospective Juror Mr. Ruiz on a peremptory challenge.
Later, the prosecutor questioned Prospective Juror Ms. Ponce, who stated that she was in graduate school and finishing a master’s degree in counseling psychology. Her studies included clinics in which she was counseling clients. She was planning to become a marriage and family counselor. Although she personally did not have any clients who had suffered a sexual assault, she had heard about sexual assault cases from other therapists as part of her training.
After the questioning of Ms. Ponce concluded, the prosecutor passed for cause. The trial court asked if the prosecutor wished to exercise any peremptory challenges, and the prosecutor exercised a peremptory challenge to excuse Prospective Juror Ms. Willis. The defense excused Prospective Juror Mr. Montoya and the prosecutor then excused Ms. Ponce. The defense asked for a sidebar, which was not reported.
After the sidebar, the parties continued with jury selection. The prosecutor exercised peremptory challenges to excuse Prospective Jurors Mr. Floyd and Mr. Kirby. The defense exercised peremptory challenges to excuse Prospective Jurors Mr. Ryan and Mr. Files.
At the conclusion of jury selection, the trial court noted that the defense had made a Batson/Wheeler motion after Ms. Ponce was excused, and the trial court found that no prima facie case was established. The trial court then offered to allow the defense to make a further record.
As additional evidence, the defense stated that the prosecutor had excused Mr. Kirby and Mr. Floyd, after excusing Ms. Ponce, and asserted that although they had “Anglo names, ” the two men were Hispanic. The trial court stated that it had looked at Mr. Kirby and Mr. Floyd and noted them as “white males.” The defense stated that Mr. Floyd, Ms. Ponce, and Ms. Garcia were students and that Mr. Kirby was unemployed. The defense opined that there was “a pattern.”
The prosecutor responded by stating that he thought Mr. Kirby and Mr. Floyd “probably” were White males. When the prosecutor started to offer comments on the “totality of the circumstances on cases like this, ” the trial court interrupted and stated it was “not finding a prima facie case.”
The trial court then stated that Ms. Garcia was very young, appeared to shy, quiet, and withdrawn, and not one who “wanted to express her opinions or question the opinion of other jurors, ” which the trial court found was a race-neutral reason to excuse her. The trial court also observed that Ms. Ponce had “specific contact with real cases involving issues of sexual abuse” and that because of her training in psychology she might give “specialized opinions as to how people would react to given situations, ” which the trial court found was a race-neutral reason to excuse her.
The trial court concluded by noting there were other Hispanics seated on the jury at the time the peremptory challenges were exercised as to Ms. Garcia and Ms. Ponce, and there were numerous other Hispanics in the venire panel waiting to be called. Also, a Hispanic was seated after Ms. Garcia and Ms. Ponce were excused.
Analysis
The prosecutor excused Prospective Jurors Garcia and Ponce by using peremptory challenges. Thereafter, Lopez made his Batson/Wheeler motion. The trial court ruled that Lopez had not established a prima facie case of discrimination. In determining whether the trial court erred in denying Lopez’s Batson/Wheeler motion, we examine the record before the trial court at the time it ruled. (People v. Mendoza (2000) 24 Cal.4th 130, 161.)
A trial court’s determination that no prima facie case has been established is reviewed de novo. (People v. Bonilla (2007) 41 Cal.4th 313, 342 (Bonilla).) When a trial court denies a Batson/Wheeler motion on the basis that no prima facie case was established, the appellate court considers the entire record of voir dire. (People v. Davenport (1995) 11 Cal.4th 1171, 1200.) If the record contains race-neutral reasons for the exercise of a peremptory challenge, the trial court’s ruling is upheld. (Ibid.)
In Wheeler the California Supreme Court held that “the use of peremptory challenges to remove prospective jurors on the sole ground of group bias” violates a defendant’s right under the California Constitution to a trial by jury drawn from a representative cross-section of the community. (Wheeler, supra, 22 Cal.3d at pp. 276-277.) Discrimination in the exercise of peremptory challenges likewise violates the defendant’s equal protection rights under the federal Constitution. (Batson, supra, 476 U.S. at pp. 84-89.) Wheeler recognized there is a general presumption “that a party exercising a peremptory challenge is doing so on a constitutionally permissible ground, ” but went on to explain that the presumption is rebuttable. (Wheeler, at p. 278.)
In assessing whether a defendant has established a prima facie case, courts look at whether (1) the prosecution has struck most, or all, of the members of the identified group from the venire; (2) the members of the identified group share only this one characteristic; (3) the prosecution failed to engage the jurors in questioning during voir dire; and (4) the defendant is a member of the identified group and the victim is a member of the group to which the majority of the remaining jurors belong. (Wheeler, supra, 22 Cal.3d at pp. 280-281.) The defendant must show “‘that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citation.]” (Johnson v. California (2005) 545 U.S. 162, 168.) Here, Lopez failed to make a prima facie case.
First, Lopez failed to establish that the prosecution used peremptory challenges to exclude most, or all, Hispanics from the jury. At the time Lopez initially made his Batson/Wheeler motion, the prosecution had excused only two Hispanic prospective jurors. As a practical matter, the peremptory challenge to only one or two jurors of an identified group “‘can rarely suggest a pattern of impermissible bias.’ [Citation.]” (People v. Bell (2007) 40 Cal.4th 582, 597-598.) When these prospective jurors were challenged by the prosecution, the jury included other Hispanics who had been accepted by the prosecution and the venire included many more Hispanics. Also, at the time Lopez made his Batson/Wheeler motion, he had exercised the same number of peremptory challenges to Hispanics as had the prosecution by striking Mr. Ruiz and Mr. Montoya. That the prosecution excused two Hispanics, without more, was insufficient to establish a prima facie case. (Bonilla, supra, 41 Cal.4th at p. 343.)
Second, Lopez failed to establish that Ms. Garcia and Ms. Ponce shared only one characteristic -- their Hispanic heritage. They shared another characteristic -- they both were students currently enrolled in college. As defense counsel pointed out, the prosecution excused at least three prospective jurors who were current college students, Ms. Garcia, Ms. Ponce, and Mr. Floyd. It does not matter that another prosecutor might have left college students on the jury. A legitimate reason for using a peremptory challenge need not make sense. (Purkett v. Elem (1995) 514 U.S. 765, 769.)
Third, Lopez did not, and could not, demonstrate that the prosecution failed to engage the challenged jurors during voir dire. The prosecution questioned both Ms. Garcia and Ms. Ponce, particularly Ms. Ponce. The prosecutor’s questioning elicited race-neutral reasons to excuse both jurors. Ms. Garcia was very young and lacked life experiences. “Youth and a corresponding lack of life experience can be a valid race-neutral basis for a peremptory challenge. [Citations.]” (People v. Gonzales (2008) 165 Cal.App.4th 620, 631.) Ms. Ponce was a student completing work for a master’s degree in counseling psychology and was currently working at a clinic. Courts have deemed a peremptory challenge to a prospective juror with a background in psychiatry or psychology to be race neutral. (People v. Landry (1996) 49 Cal.App.4th 785, 790.)
Finally, we address Lopez’s assertion on appeal that the trial court impermissibly speculated about the prosecutor’s reasons for exercising peremptory challenges. A trial court is to examine all the relevant facts to determine whether an inference of discrimination can be inferred from the record, or a race-neutral reason is apparent from the circumstances. (People v. Lancaster (2007) 41 Cal.4th 50, 75-77 (Lancaster).) The trial court properly did not ask the prosecutor for an explanation because Lopez had failed to establish an inference of discrimination from the totality of the circumstances. (Id. at p. 76.)
Lopez had the burden of producing evidence from which the trial court could infer a discriminatory purpose in the exercise of peremptory challenges. (People v. Cornwell (2005) 37 Cal.4th 50, 73-74.) Considering the totality of relevant facts, Lopez’s showing was meager, at best, and consisted of a claim of discriminatory purpose purely from the use of two peremptory challenges against Hispanics. This showing was insufficient to establish an inference of discriminatory purpose. (Lancaster, supra, 41 Cal.4th at p. 76.)
II. Whether Assault Is Necessarily Included Offense
Lopez contends his misdemeanor assault conviction must be reversed because it is a lesser included offense of his misdemeanor sexual battery conviction. The People contend the convictions are based on separate acts and both convictions should stand. We conclude Lopez is correct and the misdemeanor assault conviction must be reversed.
A lesser offense is necessarily included in the charged offense only if it meets either the “‘elements’ test” or the “‘accusatory pleading’ test.” (People v. Lopez (1998) 19 Cal.4th 282, 288 (Lopez).) “The elements test is satisfied when ‘“all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.” [Citation.]’ [Citations.] Stated differently, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citations.] [¶] Under the accusatory pleading test, a lesser offense is included within the greater charged offense ‘“if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.” [Citation.]’ [Citations.]” (Id. at pp. 288-289.)
“The determination of whether an offense is lesser included is made from either the wording of the information or the statutory language, and not from the evidence adduced at trial. [Citations.] ‘It is of no consequence that the evidence at trial might also establish guilt of another and lesser crime than that charged. To constitute a lesser and necessarily included offense it must be of such a nature that as a matter of law and considered in the abstract the greater crime cannot be committed without necessarily committing the other offense. [Citations.]’ [Citation.]” (People v. Steele (2000) 83 Cal.App.4th 212, 217-218 (Steele).)
Lopez was charged with a violation of Penal Code section 243.4, subdivision (a), felony sexual battery, in count 1. Count 2 alleged Lopez committed an assault with the intent to commit rape, a violation of Penal Code sections 220 and 261, subdivision (a)(2). The accusatory pleading charged Lopez in the language of the statutes. Sexual battery is not a lesser included offense of assault with the intent to commit rape because under the elements of these offenses as set forth in the statutes they require a different intent. (People v. Dixon (1999) 75 Cal.App.4th 935, 943.) Assault with the intent to commit rape requires that the defendant intend only to accomplish sexual intercourse; sexual battery requires that the defendant engage in the proscribed act for the purpose of sexual arousal, sexual gratification, or sexual abuse. (Ibid.)
Lopez was found not guilty of the charged offenses; he was found guilty of the lesser offenses of misdemeanor sexual battery pursuant to Penal Code section 243.4, subdivision (e), as to count 1, and of misdemeanor assault pursuant to Penal Code section 240 as to count 2.
Prior to the enactment of Penal Code section 243.4, there was no offense of sexual battery. Conduct now punishable under Penal Code section 243.4 previously was prosecuted as an assault or battery, depending on the nature of the offense. (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 2721 (1981-1982 Reg. Sess.) as amended Apr. 15, 1982, p. 4.) A defendant who commits a battery cannot be convicted of both battery and assault because “‘[a]n assault is a necessary element of battery, and it is impossible to commit battery without assaulting the victim.’ [Citation.]” (People v. Ortega (1998) 19 Cal.4th 686, 692-693.) Thus, assault is a lesser included offense of sexual battery under a statutory elements test. (People v. Carapeli (1988) 201 Cal.App.3d 589, 595 (Carapeli); People v. Alford (1991) 235 Cal.App.3d 799, 805 & fn. 6.)
Although the People concede the general rule that assault is a lesser included offense of sexual battery, the People contend the two offenses in this case are not based upon the same set of facts; therefore, both convictions may stand.
A lesser offense is included in the greater offense using the accusatory pleading test if the charging allegation in the information includes language describing the offense in such a way that, if committed as described, the lesser offense is necessarily committed. (Lopez, supra, 19 Cal.4th at pp. 288-289.) Under an accusatory pleading test, we cannot conclude that the assault conviction in this case was based on a separate act or a divisible course of conduct. (Ibid.; Carapeli, supra, 201 Cal.App.3d at p. 595.) The accusatory pleading does not set forth the factual basis underlying the offenses; it merely describes the charged offense using the language of the statute.
The People urge us to consider the evidence adduced at trial in determining whether the two convictions were based upon separate acts or a divisible course of conduct. This, however, we cannot do. “The determination of whether an offense is lesser included is made from either the wording of the information or the statutory language, and not from the evidence adduced at trial.” (Steele, supra, 83 Cal.App.4th at p. 217.) Even if we were able to consider the evidence adduced at trial, it appears the People in closing argued the offenses as an indivisible course of conduct, which would support a conclusion the assault is a lesser included offense of the sexual battery. (Carapeli, supra, 201 Cal.App.3d at p. 595.)
“Our courts have long held that multiple convictions are prohibited where one offense is necessarily included in another.” (Carapeli, supra, 201 Cal.App.3d at p. 595.) We therefore conclude the count 2 conviction for misdemeanor assault must be reversed.
III. Government Code Section 70373
Lopez argues that Government Code section 70373 does not apply to him because it went into effect after he committed the offenses, although before he was tried and convicted. He maintains the operative date for determining application of the statute is the date of the offense and not the date of conviction. The People contend Government Code section 70373 applies to all convictions rendered after January 1, 2009, regardless of the date of the commission of the offense. The People are correct.
Government Code Section 70373 was enacted as part of Senate Bill No. 1407 (2007-2008 Reg. Sess.). (Stats. 2008, ch. 311, § 6.5, eff. Jan. 1, 2009.) In relevant part, “To ensure and maintain adequate funding for court facilities, ” Government Code section 70373 imposes a $30 assessment on every conviction for a felony or misdemeanor criminal offense and $35 for each infraction, with certain limited exceptions. (Id., subd. (a)(1).) “The ordinary legal meaning of ‘conviction’ is a verdict of guilty or the confession of the defendant in open court, and not the sentence or judgment. [Citations.]” (People v. Castello (1998) 65 Cal.App.4th 1242, 1253.)
As this court held in People v. Phillips (2010) 186 Cal.App.4th 475, 478 (Phillips), the plain language of the statute controls and it calls for the imposition of a fee on every conviction. “‘The fact that defendant’s conviction flowed from antecedent criminal conduct is not addressed by the statute.’” (Ibid.) We concluded the Legislature intended the assessment to apply to convictions incurred after the effective date of the statute, regardless of the date of the underlying offense. (Id. at pp. 478-479; People v. Castillo (2010) 182 Cal.App.4th 1410, 1414-1415.)
Lopez was convicted on July 15, 2009. We conclude, therefore, the trial court properly imposed the Government Code section 70373 assessment on Lopez’s convictions. (Phillips, supra, 186 Cal.App.4th at p. 479.) Because we are reversing the misdemeanor assault conviction, however, we will strike the Government Code section 70373 assessment imposed for that conviction.
DISPOSITION
The count 2 conviction for misdemeanor assault is reversed. Fees and assessments imposed as to count 2, including the Government Code section 70373 assessment, are stricken. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward it to the appropriate authorities.
WE CONCUR: HILL, J. DETJEN, J.