Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. Nos. SS062070, SS072424
Mihara, J.
Defendant Pierre Leonard Page was convicted by jury trial of forcible rape (Pen. Code, § 261, subd. (a)(2)) and sexual battery (Pen. Code, § 243.4, subd. (a)), and he admitted allegations that he had suffered a prior strike and serious felony conviction (Pen. Code, §§ 667, subd. (a), 1170.12). Defendant was committed to state prison for a term of 17 years. On appeal, he contends that his convictions must be reversed because (1) the trial court erred in denying his Wheeler/Batson motion and in denying his motion for a new trial based on the court’s denial of that motion, and (2) the trial court abused its discretion in denying his mistrial motion after a witness mentioned that defendant was on probation for burglary, and this ruling violated his Fifth Amendment right. He also contends that the trial court miscalculated the Penal Code section 290.3 fines. We conclude defendant has presented no basis for reversal of his convictions, but the trial court’s calculation of the Penal Code section 290.3 fines and associated assessments requires a remand for reconsideration.
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
I. Factual Background
Defendant and A. became acquainted in 2006 when they were both attending Hartnell College. Defendant told A. that he was having a hard time and was hungry, and she would give him food and let him “hang out” at her home. She also let him sleep on her couch. Several times defendant asked her for money, and she gave him a total of $25 or $30. He said he would pay her back, but she did not expect him to do so and he did not.
Two or three months prior to June 2007, after he had been visiting her home for a couple of months, defendant initiated a sexual encounter with A. by wrestling her to the ground and getting on top of her. A. was “not really sure if it was a smart idea,” but she “didn’t say no” and “just gave in to him and let it happen.” After that sexual encounter, defendant and A. had consensual sex on two to five additional occasions at A.’s home. A. generally made defendant some food, and they watched a movie “or something” on these occasions. A couple of times defendant spent the night. These were the only occasions when defendant visited her home during this period. They did not become boyfriend and girlfriend but simply remained friends.
A. contradicted herself on cross-examination at trial and testified that there were occasions when defendant visited her home and they did not engage in sexual intercourse.
During the month or two prior to June 2007, A. did not see or speak with defendant. A. resumed her relationship with her ex-boyfriend and decided that she did not want to be “involved” with defendant. A.’s boyfriend told her that she needed to “cut off everyone I was involved with other than him.”
On the morning of June 13, 2007, A. spoke to defendant on the telephone and told him that she needed to talk to him. He showed up at her home about 30 minutes later. A. was wearing only a robe and watching television in her living room when defendant arrived. Her boyfriend had left an hour or two earlier. When defendant arrived, he seemed “stressed out,” and he told her that he “just had a rough day.” He sat down on her couch, and she asked him what was wrong. He began telling her about the “situation he just went through,” and A. sat down on the couch and listened. She told him she was “sorry that happened.” Defendant asked her “what do you have on under there” and tried to “tug on” her robe. A. pulled her robe tightly closed, and defendant tried to feel under it. She “told him no,” but he put his hand inside her robe and touched her breast and “started leaning over me.” A. “told him not to do that.”
A. testified at trial that she could not recall whether she called defendant or he called her.
A. informed defendant that she was “back with my boyfriend,” and defendant seemed “surprised.” He got up, took a DVD out of his pocket, and put it in A.’s DVD player. A. observed that it was a pornographic DVD. They had never before watched a pornographic DVD together. A. stood up and said “what are you doing” and “this ain’t happening.” A. told him to remove his DVD and leave, and she said she “didn’t want to have sex with him or anything.” A. went to remove the DVD from the player. She looked over her shoulder and saw that defendant had unzipped his pants, exposed his penis, and put on a condom. She said: “[W]hat are you doing?” She also said: “I’m not feeling you. I’m not feeling this.” Defendant came up behind her and grabbed her from behind. A. told him to “stop,” and he said “ ‘Come on, oh, come on, one more time.’ ” A. continued to say no, and she tried to push him off of her. Defendant had his arm around her so that both of her arms were immobilized. A. continued to tell him to stop, and defendant again said “come on” and “just... let me have it.” A. said “no.” Defendant said “just let me have it one more time.” He told her to “give me what’s mine,” referring to her “private part” as “his.”
A. tried to turn around and push him off of her, and she told him to stop because he was hurting her arm. Defendant kept trying to touch her between her legs. When A. tried to push him away, they fell to the ground. As she fell, she knocked over some papers, some books, and her phone. A. ended up on her knees and elbows on the floor. She tried to get up. A. was “scared,” and she told defendant to “stop” and “not to do anything to me.” Defendant told her: “just give it up, don’t fight me. Just let it happen.” A. could feel his penis against her buttocks. A. kept telling him “no,” but defendant tried to “force” his penis into her vagina. A. continued to try to pull away from him.
A police officer who went to A.’s home testified that he did not notice any papers on the floor.
A. turned around and tried to push defendant off of her. He got in between her legs and held her wrists. Defendant tried to open her legs, and he told her to “[s]top trying to fight it” and “loosen your legs up.” A. kept telling defendant to stop. He “forcefully opened” her legs with his hands and put his penis in her vagina. A. asked him “why he was doing this to me.” Defendant “just had this cold look in his eye,” and he said nothing. A. kept crying and asking defendant “[w]hat did I ever do to hurt you? And I said that, you don’t love me. Why are you doing this to me?” At this point, defendant stopped and left her lying on the ground and crying. He went into her bathroom, and she put her robe back on.
A. looked for her cell phone “to call for help,” but she could not find it. Her phone had been on her couch before defendant arrived. When defendant returned from the bathroom, she told him to get out. He gathered his “stuff” and left. A. “called him an asshole, and I was cursing and screaming.” Defendant “called me an asshole back.” A. went and knocked on a neighbor’s door, but no one answered. A. got dressed and went to see her friend J., who worked at the Hartnell College career center. A. knocked on the back door of the career center, and J. found her there shaking, crying and appearing “really scared.” J. contacted the police. The only physical finding during a sexual assault exam was that A. had a small bruise on the lower inside of her right leg. A. reported pain in her vagina and flank.
II. Procedural Background
In July 2006, defendant had been charged by complaint with a July 2006 residential burglary (Pen. Code, § 459). Defendant pleaded guilty. In August 2006, imposition of sentence was suspended, and defendant was placed on formal probation. Although he was ordered to serve a six-month jail sentence, most of this jail sentence was suspended on condition that he enroll at Hartnell College. In February 2007, he admitted violating his probation, and his probation was revoked and reinstated. He was in jail from February 16 to April 28. In July 2007, a petition was filed alleging that defendant had again violated his probation.
Defendant was thereafter charged by amended information with forcible rape (Pen. Code, § 261, subd. (a)(2)) and sexual battery (Pen. Code, § 243.4, subd. (a)) on A. It was further alleged that he had suffered a prior strike and serious felony conviction (Pen. Code, §§ 667, subd. (a), 1170.12) based on the 2006 burglary conviction.
A misdemeanor battery (Pen. Code, § 243, subd. (e)) count was also charged, but it was dismissed by the prosecution at the commencement of trial.
Defendant moved in limine to bifurcate the prior conviction allegations and to exclude evidence of his burglary conviction at the trial of the rape and sexual battery counts. He asked the court to “order the District Attorney to admonish all State witnesses to not testify or allude to anything regarding Defendant’s prior felony conviction and subsequent probation unless/until the Defendant either testifies or introduces such information into evidence.” Defendant asserted in his motion that “[t]he sustaining of a timely objection by the Court would not provide sufficient protection from an irrevocably tainted jury.” The trial court granted these two in limine motions. The court also granted the prosecution’s in limine motion for admission of the prior burglary conviction as impeachment evidence if defendant testified at trial.
On the second day of jury selection, defendant made a Wheeler/Batson motion. The motion was denied. The jury was sworn that afternoon, and testimony commenced. The evidence was presented over about four days. A police officer testifying for the prosecution mentioned that A. had said defendant was on probation for burglary. The remark was stricken, and the jury was instructed to disregard stricken testimony. Defendant thereafter testified on his own behalf and admitted that he had suffered a prior burglary conviction.
The jury was instructed on both consent and reasonable belief in consent. Jury deliberations began on May 6. On the afternoon of May 7, the jury submitted several notes. One note requested readbacks of portions of A.’s testimony, portions of defendant’s testimony, and portions of a police officer’s testimony about her interview of defendant. Another inquiry read: “Please address us about your directives that if Mr. Page believed A[.] consented then he can’t be convicted of rape. [¶] We need you!” The court did not address these notes until the following morning. In response to the last inquiry, the court referred the jury to CALCRIM 1000 and CALCRIM 3406. The court explained that it was the prosecution’s burden to prove that defendant did not actually and reasonably believe that A. consented.
That day, May 8, the jury informed the judge: “We are deadlocked.” The court addressed the jury that afternoon regarding this note and told the jury that one of the jurors needed to be replaced with an alternate due to medical reasons. The court asked the jurors to begin deliberations the next morning with an alternate juror replacing the excused juror and “see if a fresh perspective... makes things changes [sic] for you in the manner you’re able to approach the case tomorrow.” “When an alternate is substituted in, you are to begin deliberating over again. Now obviously, that doesn’t mean that you’re going to be suddenly having amnesia about what’s been discussed the past two days.” “But you do need to include [the replacement juror] kind of from the beginning of the analysis and really try to have a fresh start on your deliberations once you get him joining you tomorrow.”
The jury was instructed to “begin your deliberations again, from the beginning” and to “set aside and disregard... the earlier deliberations and decide this case as if those earlier deliberations had not taken place.”
The next day, May 9, the jury asked for “a definition of ‘unabiding [sic] conviction.’ ” After almost six hours of deliberations on May 9, the jury reached a guilty verdict on the rape count. An additional hour of deliberations on the next court day produced a guilty verdict on the sexual battery count. Defendant waived his right to a jury trial on the prior conviction allegations, and the court found those allegations true. The court also found that defendant had violated his probation in the burglary case.
Defendant moved for a new trial on the ground that the court had erred in denying his Wheeler/Batson motion and his Fifth Amendment rights had been violated because the police officer’s mention of his probation for burglary had compelled him to testify. The court denied the new trial motion.
Defendant was committed to state prison to serve a 17-year term in the rape and sexual battery case. The court imposed a concurrent term for the burglary case. The court ordered defendant to pay $1,080 in “fines and assessments” under Penal Code section 290.3. Defendant filed timely notices of appeal in both the burglary case and the rape and sexual battery case.
He raises no contentions on appeal regarding the judgment in the burglary case.
III. Discussion
A. Wheeler/Batson Motion
Defendant contends that the prosecutor’s peremptory challenge to prospective juror No. 732393 (hereafter Prospective Juror 3) was exercised on racially discriminatory grounds. He contends that the trial court erred in denying his Wheeler/Batson motion. Defendant also contends that the trial court should have granted his new trial motion based on the denial of his Wheeler/Batson motion because a comparative analysis of the responses of Prospective Juror 3, prospective juror No. 849986 (hereafter Prospective Juror 6), and prospective juror No. 760037 (hereafter Prospective Juror 7) demonstrates that the prosecutor’s claimed basis for her challenge to Prospective Juror 3 was pretextual.
1. Background
Voir dire revealed that Prospective Juror 3 was a retired female food service worker who had completed only the eighth grade. She had difficulty seeing without her glasses, which she was not wearing during voir dire. Prospective Juror 3 had served on a jury twice before but could only recall one of those cases, a civil case. She said that serving as a juror would “just [be] interfering with my golf game.” Prospective Juror 7 was a female fire captain paramedic who worked professionally with a lot of police officers. She had served on two prior juries in criminal cases. Prospective Juror 6 was a female nurse.
When the prosecutor questioned the prospective jurors, she inquired whether “there is anyone here who does not think it’s sufficient to say no, that they feel that a woman must physically resist?” Prospective juror No. 746808 (hereafter Prospective Juror 8), a female prospective juror who had been sexually assaulted 20 years earlier, responded to the prosecutor’s inquiry by mentioning “a case somewhere in the nation” where there was “consensual sex and halfway through she said no, and he continued, and so, he’s -- this man is up on rape charges.” The prosecutor asked her what she thought about that, and she said she “d[id]n’t know” and “[i]t’s a tough one.” Prospective Juror 8 elaborated that she was “not sure” whether that was rape and “would have to hear more about that case” to decide.
The prosecutor then asked Prospective Juror 6 “what do you think about the scenario that [Prospective Juror 8] talked about?” Prospective Juror 6 responded: “Again, you know, like I would have to hear more. I mean saying no and doing what at the same time. I mean, you know, is it saying no, do you have to be physical? If you’re saying no and pulling somebody on top of you or you know what I mean? I need more information than just saying no. Like the situation or whatever.”
The prosecutor asked Prospective Juror 3 “what are your thoughts on this issue?” She responded: “Well, my thoughts [sic] is a lot of times when someone says no, they don’t mean no. They can just, you know, it can go both ways.” “Well, a lot of times women say no and they don’t mean no. And so –[.]” The prosecutor asked: “And so would it not be, then, enough for you if a woman had said no, you would require more than that to decide it?” This colloquy ensued: “[Prospective Juror 3]: It all depends on how she says it. [¶] [The Prosecutor]: So, how would she need to say it? [¶] [Prospective Juror 3]: Forceful. [¶] [The Prosecutor]: Forceful? [¶] [Prospective Juror 3]: Yes. That’s right. I mean no. Stop. You know? [¶] [The Prosecutor]: And that would be enough for you? [¶] [Prospective Juror 3]: Yes. That would be enough for me.”
Next, the prosecutor asked Prospective Juror 7 “what are your thoughts on that?” This colloquy followed: “[Prospective Juror 7]: I think I would have to hear all the information. [¶] [The Prosecutor]: Generally, do you feel that words are enough or do you feel that a woman has to, say, hit or kick or something of that sort? [¶] [Prospective Juror 7]: I think the words could be enough if they were forcefully with intent said. [¶] [The Prosecutor]: What do you mean ‘with intent’? [¶] [Prospective Juror 7]: Meaning no. [¶] [The Prosecutor]: Meaning no? So you don’t think that no always means no? [¶] [Prospective Juror 7]: No. Not necessarily. [¶] [The Prosecutor]: Under what circumstances do you think it doesn’t mean no? [¶] [Prospective Juror 7]: I don’t know. A lot of different circumstances no doesn’t mean no. [¶] [The Prosecutor]: Well, in the circumstances of two individuals regarding sexual intercourse. [¶] [Prospective Juror 7]: I think you need to say no in a forceful way.”
Prospective Juror 7 served on the jury.
Prospective Juror 6 subsequently assured the prosecutor that she would not “require a higher degree of proof” where the defendant and the complaining witness “had a prior sexual relationship.” She also said that she thought she “would be able to determine a witness’[s] credibility based upon observing them and their testimony.”
Prospective Juror 3 assured defendant’s trial counsel that she understood that it was defendant’s right to choose not to testify and “that doesn’t mean he’s guilty because he’s not testifying.”
The prosecutor thereafter exercised a peremptory challenge to Prospective Juror 3. Defendant’s trial counsel contested the challenge under Wheeler/Batson. The court noted that both defendant and Prospective Juror 3 were African-American, and that Prospective Juror 3 was the sole African-American on the current panel, although “there appears to be one or more African American panelists remaining that have not been called.” Defendant’s trial counsel said he did not “see any race neutral reason to strike” Prospective Juror 3. The trial court found, “[u]nder the demographic circumstances... that there has been an adequate prima facie showing to invite any response or comments from [the prosecutor].” The prosecutor responded: “Upon my questioning, [Prospective Juror 3] indicated that sometimes no meant no and sometimes it meant yes. And that she would need evidence that it was forcefully said, the fact that no was said, no would not be sufficient for her on its face. [¶] Further, during questioning, not only of her but the other jurors in questioning them in the group, there were times I felt she was scowling at me, didn’t seem particularly engaged with me. I felt she did not connect with me as an attorney. That’s why I challenged her.”
The trial court verified the accuracy of the prosecutor’s recounting of Prospective Juror 3’s responses to questioning about the meaning of no and the need for “a certain level of forceful communication of that lack of consent.” The court asked defendant’s trial counsel to respond. Defendant’s trial counsel contended that Prospective Juror 3’s responses were neutral between the prosecution and the defense because she had stated “a true proposition.” The court responded: “I don’t know how it is not race neutral that a prosecutor in a case with facts of this type would [not] want to leave someone on the jury who says sometimes no does not mean no.” The court noted that “what we’re talking about is whether there is race neutral basis for the exercise of a preemptory not having to do with implicit bias or any cause standard.” It found that the prosecutor “has advanced a race neutral justification for excusing [Prospective Juror 3] in this context.” The court denied defendant’s motion.
The court made no finding regarding the validity of the prosecutor’s assertion that Prospective Juror 3 had been “scowling” at her.
After he was convicted, defendant moved for a new trial on the ground that Prospective Juror 3 had been dismissed for a racially discriminatory reason. At the hearing on the motion, defendant’s trial counsel argued: “After we delved into the transcript, we found two other jurors who made almost identical statements to the African-American juror who was struck by the District Attorney. And the two white females were left on the jury and not struck.” The prosecutor argued that the two other jurors “did not make identical statements.” The court denied the motion. “I think there is an appropriate basis again demonstrated by the prosecutor for exercising the challenge and find that it was not improperly exercised purely on the basis of protected class membership.”
2. Analysis
“Both the federal and state Constitutions prohibit any advocate’s use of peremptory challenges to exclude prospective jurors based on race. [Citations.] Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution.” (People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix).) “The Batson three-step inquiry is well established. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” (Lenix, at pp. 612-613.)
Here, defendant challenges the trial court’s implied finding that defendant failed to prove that the prosecutor’s challenge was exercised on the basis of race. At the second stage, “[a] prosecutor asked to explain his conduct must provide a ‘ “clear and reasonably specific” explanation of his “legitimate reasons” for exercising the challenges.’ ” (Lenix, supra, 44 Cal.4th at p. 613.) “At the third stage of the Wheeler/Batson inquiry, ‘the issue comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.’ ” (Lenix, at p. 613.) “[I]t is the trial court’s duty to ‘assess the plausibility’ of the prosecutor’s proffered reasons for striking a potential juror ‘in light of all evidence with a bearing on it.’ ” (Lenix, at p. 625.) “ ‘In this situation, the trial court must evaluate not only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the [prospective] juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the [prospective] juror by the prosecutor. We have recognized that these determinations of credibility and demeanor lie “ ‘peculiarly within a trial judge’s province,’ ” [citations], and we have stated that “in the absence of exceptional circumstances, we would defer to [the trial court].” [Citation.]’ ” (Lenix, at p. 614.)
“It should be discernable from the record that 1) the trial court considered the prosecutor’s reasons for the peremptory challenges at issue and found them to be race-neutral; 2) those reasons were consistent with the court’s observations of what occurred, in terms of the panelist’s statements as well as any pertinent nonverbal behavior; and 3) the court made a credibility finding that the prosecutor was truthful in giving race-neutral reasons for the peremptory challenges.” (Lenix, supra, 44 Cal.4th at p. 625.) “[T]he court must be satisfied that the specifics offered by the prosecutor are consistent with the answers it heard and the overall behavior of the panelist. The record must reflect the trial court’s determination on this point [citation], which may be encompassed within the court’s general conclusion that it considered the reasons proffered by the prosecution and found them credible.” (Lenix, at pp. 625-626.)
“Review of a trial court’s denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions. [Citation.] ‘We review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges “ ‘with great restraint.’ ” [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.]” (Lenix, supra, 44 Cal.4th at pp. 613-614.)
Defendant premises his contention on comparative juror analysis. “[E]vidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by defendant and the record is adequate to permit the urged comparisons.” (Lenix, supra, 44 Cal.4th at p. 622.) Here, the record is adequate to evaluate the comparison that defendant makes. However, we must keep in mind that “comparative juror analysis is but one form of circumstantial evidence that is relevant, but not necessarily dispositive, on the issue of intentional discrimination.” (Lenix, at p. 622.) “[T]he 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, at p. 624.) “While an advocate may be concerned about a particular answer, another answer may provide a reason to have greater confidence in the overall thinking and experience of the panelist. Advocates do not evaluate panelists based on a single answer. Likewise, reviewing courts should not do so.” (Lenix, at p. 631.)
Defendant argues that the voir dire responses of Prospective Jurors 3, 6, and 7 were “substantively identical” on the question of whether “no meant no.” He argues: “[B]ecause the record reflects essentially similar responses by an excused minority panelist and two seated, non-minority [panelists], the prosecutor’s insistence that differences existed where none can be discerned could only have been viewed as insincere....”
We disagree with defendant’s claim that the voir dire responses of these three prospective jurors were “substantively identical.” Prospective Juror 3 repeatedly expressed the belief that “a lot of times women say no and they don’t mean no.” (Italics added.) Prospective Juror 7’s comments were less emphatic and more limited. She stated that no did “[n]ot necessarily” mean no, and, when asked when no did not mean no, she replied that there were “[a] lot of different circumstances [where] no doesn’t mean no.” Nothing in Prospective Juror 7’s comments indicated that she believed that women “a lot of times... say no and they don’t mean no.” Prospective Juror 6’s comments were even more distinguishable from those of Prospective Juror 3. She simply suggested that a person’s “physical” actions might contradict the person’s “saying no” if the verbal statement occurred at same time as the person was “pulling somebody on top of” the person. The prosecutor, and the court, could have reasonably concluded that Prospective Juror 6’s comments did not indicate that she thought women “a lot of times... say no and they don’t mean no.”
Because the voir dire responses of Prospective Juror 3 on this issue were more adverse toward the prosecutor’s case than those of Prospective Juror 7 and Prospective Juror 6, a comparative analysis of those responses does not provide substantial support for a finding of discriminatory intent. A comparative analysis also should not be limited to those responses alone. Because an attorney does not “evaluate panelists based on a single answer,” the trial court’s, and our, evaluation of the credibility of the prosecutor’s race-neutral justification must also take into account “other answers, behavior, attitudes or experiences that make one juror, on balance, more or less desirable.” (Lenix, supra, 44 Cal.4th at pp. 624, 631.) Here, Prospective Juror 3 was a retired non-professional woman with little education and poor eyesight, while Prospective Jurors 6 and 7 were employed as a nurse and as a paramedic. A prosecutor might legitimately believe that the nature of their professions made Prospective Jurors 6 and 7 more desirable jurors notwithstanding their responses regarding the meaning of “no.”
As we must “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” (Lenix, supra, 44 Cal.4th at pp. 613-614), we can only conclude on this record that the evidence supports the trial court’s finding that the prosecutor’s nondiscriminatory justification for her challenge to Prospective Juror 3 was credible. Hence, the trial court did not err in denying defendant’s Wheeler/Batson motion.
Defendant contends that, even if the trial court did not err in denying his Wheeler/Batson motion, the court erred in denying his new trial motion based on the court’s denial of the Wheeler/Batson motion. He claims that the trial court applied the “wrong standard” in ruling on the new trial motion because it stated that the prosecutor’s challenge “was not improperly exercised purely on the basis of protected class membership.” (Italics added.) Defendant argues that this statement indicates that the trial court may have believed that the prosecutor’s challenge was “partly” based on race.
The trial court’s ruling on the new trial motion was based on its express finding that “there is an appropriate basis again demonstrated by the prosecutor for exercising the challenge and [I] find that it was not improperly exercised purely on the basis of protected class membership.” (Italics added.) It is inconceivable that the trial court would have characterized as “an appropriate basis” for the challenge a justification that was “partly” based on race. The key question before the trial court in relation to defendant’s Wheeler/Batson motion was whether the prosecutor’s race-neutral justification was a pretext for racial discrimination. We can see nothing in this record to indicate that the trial court believed that a racially discriminatory justification was “an appropriate basis” for a challenge so long as it was joined with a race-neutral justification for the challenge. Defendant’s interpretation of the court’s statement lacks any support. The trial court did not err in denying defendant’s new trial motion based on the denial of the Wheeler/Batson motion.
B. Testimony That A. Said Defendant Was “On Probation For Burglary”
Defendant contends that the trial court abused its discretion in denying his mistrial motion and thereby deprived him of his rights to due process and a fair trial under the federal and state constitutions. He also maintains that the trial court’s ruling prejudicially impaired his ability to exercise his Fifth Amendment right.
1. Background
Salinas Police Officer Yolanda Rocha testified for the prosecution about her interview with A. in August 2007, two months after the June 2007 incident. During the prosecutor’s direct examination, the following colloquy occurred: “Q [by the prosecutor]. Did A[.] tell you about any help she provided to Mr. Page? [¶] A. She said Mr. Page was on probation for burglary and she -- [¶] MR. KELLER [defendant’s trial counsel: Objection. Your Honor, may we approach? [¶] THE COURT: Yes.” After a brief unreported side bar conference, the court told the jury that there would be a short break because “the attorneys have raised an issue with me, some questions I would like to explore with them in a little greater detail.”
Defendant had two trial attorneys, but it is not necessary for us to differentiate between them.
Outside the presence of the jury, defendant’s trial counsel moved for a mistrial due to “a violation of Mr. Page’s Fifth Amendment right to not incriminate himself.” He pointed out that Rocha’s testimony had violated the court’s in limine ruling and put “in front of the jury that Mr. Page is a convicted criminal.” Defendant’s trial counsel noted that Rocha’s remark was unresponsive to the question. “[W]e can’t unring this bell. The jury heard it. And it is irrevocably tainted at this point.” Defendant’s trial counsel argued that “an instruction would only compound the problem” by “draw[ing] more attention to it.”
The prosecutor stated that she had admonished Rocha regarding the in limine ruling, and her question should not have elicited that testimony. She asserted that the jury had not been “irrevocably tainted” because it “has no way of knowing that we’re talking about a felony, misdemeanor, that it’s first-degree burglary or anything like that.” The prosecutor contended that the error could be “cured by instructing the jury and admonishing them as to giving it no consideration as to its truth or for anything else.”
The trial court considered whether the jury could be instructed that Rocha had no knowledge of defendant’s probationary status, her testimony may not be accurate, the testimony was stricken, and it was not to be considered by the jury for any purpose. Defendant’s trial counsel insisted that such an instruction would be “problematic” because it would call more attention to the remark. He insisted that the error “can’t be cured.” The trial court disagreed and concluded that “we can adequately compose a curative instruction which will address this issue.” The court denied the mistrial motion.
The court provided counsel with a proposed curative instruction. “Specifically, what I’m proposing is that I state to the jurors that in her testimony just before our break, Ms. Rocha referred to Mr. Page as being on probation. [¶] And I don’t know whether you’re asking that I repeat for burglary or not. Ms. Rocha has no personal knowledge about that subject, and so her statement may or may not be correct. [¶] Nothing about Ms. Rocha’s status as a police officer gives her personal knowledge in this regard. As a result I’m ordering that her statement be stricken from the record. [¶] I’m also ordering that you disregard her statement, not consider it for any purpose, and that you treat it as though it was not made.”
Defendant’s trial counsel pointed out that the proposed instruction was inaccurate because Rocha did have personal knowledge that defendant was on probation. He asked that there be no curative or any other limiting instruction if the court was going to deny the mistrial motion because “it just calls more attention to it.” The court agreed to “abide by that.” Defendant’s trial counsel did make a motion to strike the testimony, which the court granted.
The prosecutor asserted that a limiting instruction was required unless defendant “is waiving any and all appellate rights regarding this issue.” Defendant’s trial counsel made it clear that he was not waiving any rights, and the court said it did not believe that he was required to do so.
The court proposed that it strike “Ms. Rocha’s most recent answer before our break” and instruct the jury with CALCRIM 222 prior to closing arguments. Defendant’s trial counsel responded: “That’s fine.” The prosecutor asked the court to give CALCRIM 222 “right now.” The court declined to do so in light of the defense request that it not do so.
Defendant’s trial counsel explained the defense’s reasoning for declining a curative instruction. “I did see two jurors when the word came out, ‘probation,’ they looked at each other and rolled their eyes. And I don’t want to hear one more thing about it. That’s why.” The court responded: “And I didn’t see that, but I have no reason to question you paying attention to the jury that way.”
The jury returned (after a recess of about an hour), and the court made the following statement to the jury. “[W]e’ve been working on a few issues so that you didn’t have to sit here and either listen to that or sit here while we discussed it in another room. [¶] We will resume, then, with Ms. Johnson’s [the prosecutor’s] examination of Officer Rocha. [¶] Before we do that, by way of explaining, another type of legal ruling that I make sometimes is just to clean up the testimonial record here, and sometimes I’ll either rule on objections, rule on answers, strike information from the record, and so that is what I’ll be doing. [¶] I’ll be striking Officer Rocha’s last statements before our break and inviting, then, Ms. Johnson to go ahead with her examination at this time.” The prosecutor then resumed her direct examination of Rocha. Rocha was the prosecutor’s final witness in her case-in-chief.
After the close of the prosecutor’s case-in-chief, outside the presence of the jury, defendant renewed his mistrial motion, and the court again denied it. The defense then requested that it be given until the next morning to determine whether defendant would testify. The court granted this request, and it then brought the jury back in and told the jury to return the next morning. After the court had entertained a couple of scheduling questions from jurors, a juror asked: “Just prior to the 2:00 o’clock break, did I understand that we were to disregard Officer Rocha’s testimony?” The court responded: “There was -- just her last response there before we took a break. I did strike that from the record. You’ll be disregarding that. Along with any other items that were stricken from the record as the witnesses testified. You won’t be considering that for any purposes.” The jury was then excused for the day, and the court and counsel held an instruction conference.
The next morning, the defense announced that defendant would be testifying. His trial counsel stated: “Part of the reason we made that decision, your Honor, too, was the events of yesterday and the things that came out on the witness stand encouraged us to continue to do this today.” The court admonished defendant that he had a right not to testify and confirmed that he was aware that his prior conviction would be admissible if he testified. Defendant acknowledged his understanding of his rights. He then testified. Early in his testimony, defendant acknowledged that he had been on probation for residential burglary at the time of the June 2007 incident. Defendant explained that he had pleaded guilty to that offense in July 2006.
Defendant testified that his relationship with A. had been sexual from the very beginning, and they had sex every one of the five times he visited her home. Defendant recalled that A. had called him on the morning of June 13, 2007, and he had subsequently gone to her home. He expected to have sex with her. Defendant had brought a pornographic movie with him, and he put the movie on when he arrived at A.’s home. Defendant testified that he and A. “started fondling.” She never said she did not want to have sex. He stood up, pulled down his pants, and put on a condom. They proceeded to have sex on the floor. Defendant testified that A. never told him to stop, and they did not speak during these activities. However, at one point, A. said “you don’t love me,” and defendant, who had already ejaculated, stopped having sex with her. He then noticed that the condom had broken. Defendant went to the bathroom and cleaned himself off with a wash rag. He returned to the living room, removed the movie from the DVD player, and placed it in his pocket. A. accused him of taking her cell phone. He denied it, and he showed her that he had his own cell phone. Defendant then left A.’s home. Defendant testified that he believed that his sexual relations with A. were consensual. He testified that he had told Rocha when she interviewed him: “ ‘Why would I have raped her if we’ve already had sex in the past.’ ”
On cross-examination, defendant conceded that he initiated the “fondling,” and he could not recall if A. touched him back. He also admitted that there was no kissing. Defendant testified that he could recall none of the specifics of the sexual activities except that he had intercourse with A. from behind with her on her knees. He asserted that A. was silent throughout these activities, and she never asked him to stop. Defendant eventually admitted that his relationship with A. had not been sexual at the beginning, and he could not recall when it became sexual.
Rocha testified on rebuttal that defendant had told her “he couldn’t have raped her if they had already had sex in the past.” He also told Rocha that A. had “tensed up her legs to prevent him from penetrating her.”
The trial court instructed the jury prior to arguments. It again instructed the jury to disregard any testimony that had been stricken. “If I ordered certain testimony stricken from the record, you must disregard it and not consider that particular testimony for any purpose.”
The prosecutor’s opening argument made it clear to the jury that the case was a credibility contest. “You have the opportunity to observe both A[.] and the defendant testify and it’s up to you to determine who you found to be credible.” She did not mention defendant’s prior conviction or probation. Defendant’s trial counsel’s closing argument confirmed that the case was a credibility contest. He argued that A. was lying, and he pointed out inconsistencies in her statements and testimony. Defendant’s trial counsel argued that the sexual activities were consensual and that defendant had not used force.
After the jury’s verdicts, defendant brought a new trial motion in which he argued that his Fifth Amendment right had been violated by Rocha’s disclosure of his prior conviction. His trial counsel argued that “[w]e felt we were compelled” to put defendant on the stand after the court denied the mistrial motion because “[t]he bell was already rung.” At the hearing on the new trial motion, defendant’s trial counsel argued that “once Officer Rocha made her statements, we felt we had no choice –[.]” The court responded: “You felt you had no choice, but, didn’t you indeed have other options which you rejected? You rejected my offer of a detailed curative instruction, and I understand strategically you perhaps didn’t want to call more attention to the statement than less, but nonetheless it appears to be an option.” Defendant’s trial counsel asserted that “the jurors... said they didn’t believe Mr. Page’s testimony.” He said that the jurors had told him that “if Mr. Page had not testified,” “that would have made this decision a lot more difficult.” The prosecutor noted that “when we spoke to [the jurors], and we spoke to them together, [every juror] said his probation status and conviction was not remotely a consideration, including the two women [defense counsel] was referring to.” The jurors “agreed that they did not consider his probation or prior conviction... in reaching their verdict in this case.” The court denied defendant’s new trial motion.
2. Analysis
Defendant contends that the trial court abused its discretion in denying his mistrial motion and that this error was prejudicial.
“[E]xposing a jury to a defendant’s prior criminality presents the possibility of prejudicing a defendant’s case and rendering suspect the outcome of the trial.” (People v. Harris (1994) 22 Cal.App.4th 1575, 1580 (Harris), italics added.) “Whether in a given case the erroneous admission of such evidence warrants granting a mistrial or whether the error can be cured by striking the testimony and admonishing the jury rests in the sound discretion of the trial court.” (Harris, at p. 1581.) “ ‘A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ ” (People v. Wharton (1991) 53 Cal.3d 522, 565, internal citations omitted; People v. Williams (1997) 16 Cal.4th 153, 211.) “Whether a particular incident is incurably prejudicial requires a nuanced, fact-based analysis.” (People v. Chatman (2006) 38 Cal.4th 344, 369-370 (Chatman).) “A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.” (People v. Bolden (2002) 29 Cal.4th 515, 555 (Bolden).) In evaluating whether the trial court abused its discretion in denying the mistrial motion, “[w]e presume the jury followed the court’s instructions.” (People v. Avila (2006) 38 Cal.4th 491, 574.) “It is only in the exceptional case that ‘the improper subject matter is of such a character that its effect... cannot be removed by the court’s admonitions.’ ” (People v. Allen (1978) 77 Cal.App.3d 924, 935 (Allen).) “The finding of exceptional circumstances depends upon the facts in each case.” (Ibid.)
“A witness’s volunteered statement can, under some circumstances, provide the basis for a finding of incurable prejudice.” (People v. Ledesma (2006) 39 Cal.4th 641, 683.)
Defendant contends that Rocha’s mention of defendant’s burglary conviction was incurably prejudicial, and the trial court was obligated to grant his mistrial motion. Defendant relies on People v. Ozuna (1963) 213 Cal.App.2d 338 (Ozuna) and People v. Roof (1963) 216 Cal.App.2d 222 (Roof) to support the proposition that a mention of a criminal conviction is always incurably prejudicial.
In Ozuna, Ozuna was charged with the murder of his girlfriend. There were no witnesses other than Ozuna, and Ozuna told the police that the gun had accidentally fired. His first trial ended in a mistrial. At his second trial, a police officer testified that Ozuna had stated he was an “ex-convict.” Ozuna’s mistrial motion was denied, but this testimony was stricken and the jury was admonished to disregard it. Ozuna did not testify at trial, but his statement to the police was introduced. Ozuna was convicted of voluntary manslaughter. (Ozuna, supra, 213 Cal.App.2d at pp. 339-341.) The Court of Appeal stated that “ex-convict” was “a hateful word” which could not be “unregistered” from the jurors’ minds by the court’s admonition, and it reversed. (Ozuna, at p. 342.)
In Roof, Roof was charged with grand theft after he accepted money from two individuals for work that he did not perform. (Roof, supra, 216 Cal.App.2d at p. 224.) Roof testified at trial and admitted that he had used the money for his personal expenses, but he asserted that he lacked fraudulent intent because he was trying to meet his obligations to perform the work. (Roof, at pp. 224, 226.) A police officer testified at trial that Roof had mentioned to him that he had been charged with contributing to the delinquency of a minor. The trial court interrupted the officer’s testimony at that point and stated: “ ‘All right, we can forget about that. Let us proceed.’ ” No request was made for any further admonition. (Roof, at p. 225.) Citing Ozuna, the Roof court stated: “Among the facts which are generally considered to be incapable of obliteration from the minds of the jurors by the court’s direction is the fact that the accused has been previously charged with or convicted of a crime.” (Roof, at pp. 225-226.) The court found that the testimony was incurably prejudicial and reversed. (Roof, at pp. 226-227.)
While Roof and Ozuna took the position that the minds of jurors can never be cleansed of exposure to evidence that a criminal defendant was previously convicted of a crime, we cannot accept that this is invariably true. When a trial court confronts a mistrial motion, it has the opportunity to engage in a “nuanced, fact-based analysis” (Chatman, supra, 38 Cal.4th at pp. 369-370) of whether the exposure is so “exceptional” (Allen, supra, 77 Cal.App.3d at p. 935) that no admonition could possibly remove it (Ibid.) and the defendant’s “chances of receiving a fair trial have been irreparably damaged.” (Bolden, supra, 29 Cal.4th at p. 555.) We do not believe that, as a matter of law, every time a jury is improperly exposed to any evidence of a criminal defendant’s prior conviction the trial will necessarily be rendered unfair and must invariably end in a mistrial. Instead, we think that the trial court is in the best position to evaluate whether the exposure is amenable to remediation, and we should review the trial court’s resolution of this question under the deferential standard of review that applies to all other trial court rulings on mistrial motions.
Here, the information to which the jury was exposed was quite limited. Rocha stated: “[A.] said Mr. Page was on probation for burglary.” Rocha’s testimony was immediately interrupted by an objection, and the jury was thereafter instructed that this testimony had been stricken and that it was to be disregarded. Because Rocha did not state that defendant was in fact on probation for burglary but only that A. had told her that defendant was on probation for burglary, rational jurors who were instructed to disregard this testimony probably would have concluded that this information was simply inaccurate and would have disregarded it as instructed by the court. As this case did not involve a burglary offense or anything similar, the nature of the prior offense was unlikely to affect the jury’s view of the merits of this case. While evidence that defendant had been convicted of burglary certainly would tend to harm his credibility, defendant’s credibility was not at issue at the time the trial court denied the mistrial motion. Rocha was the final prosecution witness, and no decision had been made on whether defendant would testify on his own behalf. The trial court had already ruled that the prosecution could properly introduce evidence of defendant’s burglary conviction if he chose to testify, so Rocha’s stricken testimony could never have played any role in evaluating defendant’s credibility. Under these circumstances, we can find no abuse of discretion in the trial court’s “fact-based” determination that Rocha’s testimony was not so “exceptional” that it could not be cured by admonition and that defendant’s opportunity to obtain a fair trial had not been “irreparably damaged.” (Chatman, supra, 38 Cal.4th at pp. 369-370; Allen, supra, 77 Cal.App.3d at p. 935; Bolden, supra, 29 Cal.4th at p. 555.)
Defendant contends that Rocha’s testimony and the trial court’s ruling on his mistrial motion violated his Fifth Amendment right because the “strategic considerations confronting the defense” with regard to whether defendant should testify were “irrevocably altered.” This argument appears to be primarily premised on defendant’s claim that the trial court’s mistrial ruling was erroneous. However, defendant also suggests that, “regardless of the efficacy of the court’s solution of ordering the testimony stricken and eventually instructing the jury to disregard it,” defendant could not “afford to risk trusting in the jurors’ fidelity to their oath.” He appears to be contending that, even if the trial court properly concluded that the jury’s exposure to Rocha’s testimony was curable, his Fifth Amendment right was violated because he disagreed with the court.
We can find no Fifth Amendment violation here. The trial court reasonably concluded that the jury’s exposure to Rocha’s testimony was curable, and it effected a cure by striking the testimony and instructing the jury to disregard it. Defendant opposed any additional curative efforts, and the trial court acceded to his wishes. Any influence the trial court’s proper ruling may have had on defendant’s strategic decision to waive his Fifth Amendment right would not render that decision involuntary, and therefore would not violate defendant’s Fifth Amendment right. We also note that, although defendant claims that his decision to testify was based on the jury’s exposure to Rocha’s testimony, he has not met his burden of establishing that this was true. (In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1452 [defendant bears burden of demonstrating error on the record]; People v. Green (1979) 95 Cal.App.3d 991, 1001.) Had defendant not testified, the jury would have been faced with A.’s uncontradicted testimony describing a forcible rape. His strategic decision to testify plainly suggested that he had calculated that his prospects for acquittal would be heightened if he provided the jury with his testimony contradicting A.’s account of the incident. The fact that the record does not establish that defendant’s decision to testify was driven by the jury’s exposure to Rocha’s testimony rather than by a calculated decision to turn the case into a credibility contest confirms that defendant has failed to establish a violation of his Fifth Amendment right.
C. Penal Code Section 290.3 Fines
Defendant contends that the trial court erred in imposing $1,080 in Penal Code section 290.3 fines. He claims that the court should have imposed only $600 in fines. The Attorney General contends that the court should have imposed $800 in fines. We conclude that a remand is required for the court to properly specify both the amount of the Penal Code section 290.3 fines and the amounts of the associated penalty assessments.
“Every person who is convicted of any offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine.” (Pen. Code, § 290.3, subd. (a).)
Defendant was convicted of two offenses specified in subdivision (c) of Penal Code section 290. (Pen. Code, § 290, subd. (c).) Defendant claims that each of these offenses was a “first conviction” within the meaning of Penal Code section 290.3, and the court should have imposed two $300 fines. The Attorney General contends that a defendant who suffers two qualifying convictions in a single proceeding has suffered both a “first conviction” and a “second” conviction within the meaning of Penal Code section 290.3. This issue was considered and resolved in favor of the Attorney General’s interpretation by the Second District Court of Appeal in People v. O’Neal (2004) 122 Cal.App.4th 817 (O’Neal). (O’Neal, at pp. 822-823.) Defendant simply ignores O’Neal, cites no authority whatsoever to support his contention, and does not respond to the Attorney General’s argument. We agree with the Second District’s reasoning in O’Neal and therefore conclude that defendant was subject to a total of $800 in Penal Code section 290.3 fines.
The difficulty we encounter is that, at the sentencing hearing, the court ordered that “under Penal Code section 290.3, you will pay fines and assessments of $1,080.” (Italics added.) Because the trial court’s $1,080 figure purported to include both the Penal Code section 290.3 fines and their associated assessments, we cannot simply order the amount reduced to $800. Defendant’s Penal Code section 290.3 fines were subject to an assessment of $5 for each $10 of fine under Government Code section 70372, an assessment of $5 for each $10 of fine under Government Code section 76000, an assessment of $10 for each $10 of fine under Penal Code section 1464, and an assessment of 20 percent of the fine under Penal Code section 1465.7. (People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1249 (Valenzuela); People v. Walz (2008) 160 Cal.App.4th 1364, 1371-1372 (Walz).) Thus, the assessments themselves add up to an additional 220 percent on top of the total of the Penal Code section 290.3 fines. $800 in fines under Penal Code section 290.3 would be subject to assessments of $1,760, and the total of the fines and the assessments would be $2,560. The trial court’s order that defendant pay $1,080 is inconsistent with this figure.
The court’s minute order stated that it had ordered defendant to “[p]ay restitution in the amount of $1,080.00 pursuant to PC 290.3.” The abstract of judgment stated that defendant had been ordered to “[p]ay victim restitution fine of $1080.00 pursuant to PC 290.3.” These restitution references were obviously inaccurate because defendant was separately ordered to pay $900 in restitution, and Penal Code section 290.3 is not concerned with restitution. The probation report recommended that defendant be ordered to “[p]ay a $1,080.00 fine pursuant to Section 290.3 PC.”
Although Penal Code section 290.3 fines are mandatory, the court has the authority to omit these fines if it “determines that the defendant does not have the ability to pay the fine.” (Pen. Code, § 290.3, subd. (a).) The record before us does not permit us to evaluate whether the trial court’s imposition of $1,080 in Penal Code section 290.3 fines and associated assessments may have resulted from a determination that defendant lacked the ability to pay the full $2,560 or instead resulted from a miscalculation of either the fines or the assessments. A remand is the appropriate remedy to allow the court to reconsider this issue. (Valenzuela, supra, 172 Cal.App.4th at pp. 1249-1250; Walz, supra, 160 Cal.App.4th at pp. 1370-1371.)
IV. Disposition
The judgment is reversed, and the matter is remanded to the trial court for the sole purpose of permitting the court to reconsider the amount that should be imposed for the Penal Code section 290.3 fines and their associated assessments.
WE CONCUR: Bamattre-Manoukian, Acting P. J., Duffy, J.