Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA324901. Sam Ohta, Judge. Affirmed.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Carl N. Henry, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Defendant Rudolfo Rene Rodas appeals from his conviction of multiple counts of lewd acts upon M.R., a child under the age of 14 years, and one count of continuous sexual abuse of M.R. He contends (1) the trial court erred in denying his Batson-Wheeler motion and (2) the great bodily injury finding is not supported by sufficient evidence. We affirm.
Defendant was charged by amended information with 11 counts of lewd acts upon a child under 14 years of age (Pen. Code, § 288, subd. (a)) (counts 1 through 11); sending harmful matter (Pen. Code, § 288.2, subd. (a))(count 12); and continuous sexual abuse (Pen. Code, § 288.5, subd. (a))(count 13); a personal infliction of great bodily injury enhancement (Pen. Code, § 667.61, subd. (b) and § 12022.7) was alleged as to count 8. The prosecutor dismissed counts 1 through 7 and 12. The jury found defendant guilty of the remaining counts and found true the great bodily injury enhancement. Defendant was sentenced to 43 years to life in prison. He filed a timely notice of appeal.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
At trial, there was no dispute that defendant continuously sexually abused M.R., that she was under 14 years old, and that he impregnated her. The only disputed issue was whether M.R.’s pregnancy was sufficient to establish the great bodily injury enhancement. Because the issues on appeal involve only jury selection and the sufficiency of the evidence issue, we need not provide details of the underlying abuse.
Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio)), the evidence established that M.R. was about four years old in 1998 when she, her mother (B.G.) and two brothers began living with defendant, whom M.R. thought of as her father. In June 2007, M.R. was 13 years old when B.G. discovered that M.R. was pregnant. At first reluctant to name the father, M.R. eventually disclosed that it was defendant. In a tape recorded interview with police, defendant admitted having sex with M.R. on multiple occasions beginning just after Christmas in 2006 and that he was the father of her baby.
When Dr. Ian Tilley examined M.R. on June 29, 2007, she was in the second trimester of her pregnancy. An abortion is more difficult to perform safely at this stage of a pregnancy. When done by dilation and extraction, the method chosen for M.R., the risks include bleeding, infection, perforation of the uterus and permanent sterility. In M.R.’s case, the procedure took two-days and required M.R. to stay overnight in the hospital. During the procedure, a local numbing solution was applied before devices were placed in M.R.’s cervix to slowly dilate it. In addition, Misoprostol pills were inserted to assist the dilation process. The procedure is generally uncomfortable and the pills cause cramping that is as painful as labor contractions. After M.R.’s cervix was adequately dilated, the extraction process began. Although M.R. was given a sedative and a relaxant, full anesthesia was considered too risky so she was awake during the procedure and it was very uncomfortable for her. M.R. was given pain medications, including Vicodin while she was still in the hospital; upon discharge, M.R. was prescribed non-narcotic pain medication.
M.R. recalled that on the day she arrived at the hospital, she was given pills that caused stomach cramps so severe that she could not sit up or stand. The next day, the doctors performed the procedure in stages. M.R. was awake but numbed from the waist down; despite being numbed, the procedure was very painful. Her stomach still hurt the next day.
DISCUSSION
1Batson-Wheeler
Defendant contends the conviction must be reversed because the trial court erred in denying his Batson-Wheeler motion. He argues that the prosecutor improperly dismissed single men with no children. We find no error.
Group bias is bias against members of an identifiable group distinguished on racial, religious, ethnic, or other suspect classifications. When a prosecutor uses peremptory challenges to strike prospective jurors because of group bias, she violates a criminal defendant’s right to trial by a jury drawn from a representative cross-section of the community under both the Fourteenth Amendment to the United States Constitution and article I, section 16 of the California Constitution. (People v. Bell (2007) 40 Cal.4th 582, 596 (Bell).) The federal constitutional right was established by Batson, and the California counterpart was recognized by Wheeler. (Bell, at p. 596.) The right applies to gender discrimination (People v. Jurado (2006) 38 Cal.4th 72, 104) but not to discrimination based on marital or parental status (People v. Arias (1996) 13 Cal.4th 92, 139 (Arias); People v. Perez (1994) 29 Cal.App.4th 1313, 1328-1329). The defendant need not be a member of the targeted group. (Bell, at p. 597.)
When a Batson-Wheeler motion is made, the trial court conducts a three-part inquiry. First, the defendant must make out a prima facie case by showing that the totality of the circumstances gives rise to a reasonable inference of discriminatory purpose. (Bell, supra, 40 Cal.4th at p. 596.) A prima facie case requires nothing more than evidence or circumstances that give rise to a reasonable inference of discrimination. (Johnson v. California (2005) 545 U.S. 162 (Johnson); Bell, at p. 596.) Second, if the defendant makes out a prima facie case of discriminatory purpose, the burden shifts to the prosecution to adequately explain its peremptory challenges by offering bias-neutral justifications for the strikes. Third, if such an explanation has been given, the trial court must decide whether the defendant has proven purposeful discrimination. (Bell, at p. 596.)
On appeal, where, as here, the trial court applies the “reasonable inference” standard, we determine whether substantial evidence supports the trial court’s findings. (People v. Bonilla (2007) 41 Cal.4th 313, 341-342.) Reversal is appropriate only if “the record as a whole shows purposeful discrimination,” despite the neutral explanations given. (People v. Silva (2001) 25 Cal.4th 345, 384; People v. Gonzales (2008) 165 Cal.App.4th 620, 629.) Some types of evidence to be considered in making this determination are whether the party has used a disproportionate number of his peremptories against the identified group and whether the only shared characteristic among the challenged jurors is their membership in this group. (Bonilla, at p. 342.)
Here, it was defense counsel who first introduced the subject of childlessness during voire dire: “Now, a lot of you don’t have children.... There’s going to be witnesses or a witness that is a child, and if you don’t have children, a lot of times it’s difficult to tell whether a child is telling the truth or not.” Later, the prosecutor exercised peremptory challenges on the following 11 prospective jurors:
No. 12 (single female)
No. 15 (single female)
No. 27 (single male)
No. 30 (single male)
No. 31 (single female)
No. 41 (single female)
No. 42 (single male)
No. 45 (single female)
No. 47 (single male)
No. 48 (single female)
No. 54 (single male)
Following the prosecutor’s exercise of a peremptory challenge to Juror No. 54, defense counsel objected, under Batson-Wheeler, that the prosecutor was “systematically taking off males who are single with no children.” After stating that 5 of the 11 prospective jurors excused by the prosecutor were men, and identifying those jurors, the trial court found that defense counsel had not established “an inference of discriminatory purpose” and the prosecutor was therefore not required to justify her peremptory challenges. Accepting the trial court’s invitation to justify her peremptory challenges if she wished to do so, the prosecutor explained: “My justification is they’re single with no children. I don’t think it is impermissible. I’m looking for jurors with children unless there is another reason I would want to keep them on. My basis for excusing them is based on their marital status and the fact that they do not have any children.” Thus, the prosecutor stated a group bias-neutral justification for her strikes –marital and parental status. We find no error.
The only reasonable inference from the trial court’s statement that 5 of the 11 prospective jurors excused by the prosecutor were men is that the other six were women. Our own review of the record reveals that all 11 challenged jurors were single and did not have children. Thus, the record supports the prosecutor’s bias-neutral justification: single people without children. Defendant’s assertion that “there was nothing which indicated that the prosecutor in appellant’s case equally excused unmarried women or unmarried women without children” is not supported by the record. On the contrary, the prosecutor challenged more single, childless female prospective jurors than similarly situated male prospective jurors.
2. There Was Substantial Evidence of Great Bodily Injury
Defendant contends there was insufficient evidence to support the jury’s true finding on the great bodily injury enhancement. He argues that, contrary to the prosecutor’s suggestion that defendant caused the hazards and discomforts of the abortion, “the risks referenced by the prosecutor were just that, risks, and appellant did not perform the abortion.” We find substantial evidence of great bodily injury.
The rules for reviewing sufficiency of the evidence are well established. “[W]e review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose... evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]... [W]e review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.]... A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s verdict. [Citation.] [¶] The same standard governs in cases where the prosecution relies primarily on circumstantial evidence. [Citation.] We ‘must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]’ [Citation.] ‘Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.]’ [Citation.]” (Zamudio, supra, 43 Cal.4th at pp. 357-358.)
Section 12022.7, subdivision (a) provides for an additional three year prison term for a defendant found to have personally inflicted great bodily injury on any person during the commission of a felony. Subdivision (f) of section 12022.7 defines great bodily injury as “a significant or substantial injury.” The injury must also be “beyond that inherent in the offense.” (People v. Cross (2008) 45 Cal.4th 58, 64 (Cross), internal citations and quotations omitted.) In Cross, our Supreme Court recently held that a pregnancy without medical complications that results from unlawful but nonforcible sexual conduct with a minor can support a finding of great bodily injury. (Id. at p. 61.) The court explained that “when victims of unlawful sexual conduct experience physical injury and accompanying pain beyond that ‘ordinarily experienced’ by victims of like crimes [citations], such additional, ‘gratuitous injury’ will support a finding of great bodily injury [citation].” (Id. at p. 66.) In Cross,after noting that the 13-year-old victim’s fetus was 22 weeks old and the size of “two-and-a-half softballs,” the court concluded:“We need not decide in this case whether every pregnancy resulting from unlawful sexual conduct, forcible or otherwise, will invariably support a factual determination that the victim has suffered a significant or substantial injury, within the language of section 12022.7. But we conclude that here, based solely on the evidence of the pregnancy, the jury could reasonably have found that 13-year-old K. suffered a significant or substantial physical injury.” (Id. at p. 66.) In a concurring opinion, J. Baxter added that, although the majority correctly observed that the abortion itself could not support a finding of personal infliction of great bodily injury because the defendant did not personally perform the abortion, the circumstances of the abortion could properly be considered in assessing the gravity of the pregnancy injury. (Id. at p. 69.)
Here, there is no dispute that defendant’s sexual abuse of M.R. resulted in her becoming pregnant and that M.R. was 13 years old when the pregnancy was terminated. There was evidence that M.R. carried the baby for 18 weeks. M.R.’s age, the fact she had never delivered a baby before and the late stage of the pregnancy made the termination a more complicated, risky and painful procedure. In accordance with instructions from the police (Peo. Exh. 1), the doctor performing the abortion collected as evidence a recognizable leg and foot about the size of an adult’s little finger. Giving special weight to the observation of Justice Baxter in his concurring opinion in Cross, this evidence of M.R.’s pregnancy and the circumstances of the abortion supports the great bodily injury finding.
It is Los Angeles Police Department policy to collect a recognizable part of the fetus’s anatomy in the case of a late stage termination.
Defendant argues that Cross is distinguishable because in Cross there was evidence that the 22-week-old fetus was the size of “two-and-a-half softballs” whereas here there was no evidence of the size of M.R.’s 18-week-old fetus; to the extent the size can be extrapolated from age, defendant argues, M.R.’s fetus was likely smaller than the fetus in Cross because it was younger. These distinctions make no difference to the result in this case. An 18-week pregnancy is no less injurious to a 13-year-old victim of sexual abuse than is a 22-week pregnancy and the size of the fetus at the time of the abortion is not solely determinative.
DISPOSITION
The judgment is affirmed.
WE CONCUR: FLIER, J. BIGELOW, J.