Opinion
F072487
03-14-2018
THE PEOPLE, Plaintiff and Respondent, v. FRANK SEPULVEDA, Defendant and Appellant.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF159457A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Frank Sepulveda was charged in count 1 with committing a lewd and lascivious act with L.S., a child under 14 years of age (Pen. Code, § 288, subd. (a)): in counts 2 and 3 with the continuous sexual abuse of M.S. and V.S., children under the age of 14 (Pen. Code, § 288.5, subd. (a)). As alternates to counts 2 and 3, Sepulveda was charged in counts 4 and 5 with committing lewd and lascivious acts with M.S. and V.S., children under the age of 14 (Pen. Code, § 288, subd. (a)). It was further alleged as to counts 2, 3, 4, and 5 that Sepulveda committed the offense against more than one victim (Pen. Code, § 667.61, subd. (e)(4)), and that he committed at least one qualifying violation against the same victim within the applicable limitation period (Pen. Code, § 803, subd. (f)(1)).
A jury found Sepulveda guilty of lewd or lascivious acts against L.S. (count 1); continuous sexual abuse of V.S. (count 3); and lewd or lascivious acts against M.S. (alternate count 4). Sepulveda was found not guilty of count 2 and alternate count 5. The multiple victim enhancement and statute of limitations allegations on counts 3 and 4 were found true.
The trial court sentenced Sepulveda to a total term of 15 years to life, plus a determinate term of 14 years in prison.
On appeal, Sepulveda contends the trial court improperly denied his Batson/Wheeler motions; that it improperly allowed evidence of Sepulveda's uncharged sex offenses; that it abused its discretion in denying Sepulveda's motion to strike a juror and his subsequent new trial motion; and that the prosecutor committed misconduct. We find no prejudicial error and affirm.
Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.
STATEMENT OF THE FACTS
Sexual Abuse of M .S. (Count 4)
Sepulveda and his wife have five children: four daughters, M.S., V.S., L.S., and N.S., and one son, F.S. Mrs. Sepulveda worked outside the house; Sepulveda had been unemployed for the past 15 years.
There is also an older half sister, J.S.
Sepulveda began touching M.S. inappropriately in approximately 1998, when she was 11 years old. The first time occurred when Sepulveda kept M.S. home from school. After everyone left the house, he called her into the backroom and told her to close the door, lock it, take off her clothes and lie down on the couch. Sepulveda then fondled her breasts and touched the inside of her vagina with his fingers. Sepulveda told M.S. not to tell anyone, and she complied out of fear.
M.S. was 27 years old at the time of trial.
The second time Sepulveda touched M.S. she was 13 years old. Again, he kept her home from school while the other children and his wife were gone. This time, while she was lying on the bed, he touched her vagina and had her perform oral sex on him, which she did because she was afraid he would beat her. She did not tell anyone because she was afraid of him.
M.S.'s trial testimony was somewhat inconsistent, as times recanting some statements and not recalling making others. During redirect examination, M.S. testified that a total of seven sexual acts had occurred.
According to M.S., Sepulveda repeatedly disciplined her with a belt and buckle, sometime with a golf club, and each time it left bruises. Sepulveda also verbally berated her, telling her she was worthless and not his child.
M.S. moved out of the house when she was about 15 years old, and she began using methamphetamine at some point during her teenage years. She moved back in with her parents when she was about 17 years old, although she was hardly ever at home. When M.S. was about 21 or 22 years old, Sepulveda apologized to her for the sexual abuse, and she forgave him. About a year later, M.S. found out Sepulveda had abused her sisters, V.S. and L.S., as well. M.S. then told her godfather, Sepulveda's brother Jaime, about the sexual abuse.
Sexual Abuse of V .S. (Count 3)
Sepulveda began sexual abusing his daughter, V.S., who was a year younger than M.S., when she was in elementary school. On one occasion, Sepulveda told the other children to go to the store and V.S. stayed in the house with him. When the others were gone, Sepulveda directed V.S. to take off her clothes and he then touched her leg, breasts, and vagina, over and under her clothes. On another occasion, he kept her home to clean the house, but then touched her legs and vagina, demanded she take off her clothes, and had sex with her. Afterwards, V.S. was terrified, but put her clothes back on and stayed busy. Sepulveda threated V.S. never to tell anybody. V.S. was often hit by Sepulveda, once with a gold club so hard her hand "shrivel[ed] up and [she] couldn't open it." According to V.S., Sepulveda was continually verbally abusive, calling the children "whores," "idiots," and "dumb asses."
V.S. was 26 years old at the time of trial.
Sepulveda continued to sexually abuse V.S. two to three times a week from the time she was in middle school through high school. Sometimes Sepulveda would rape V.S. when Mrs. Sepulveda was home, but he would take her to a dark room in the back of the house and warn her not to make a sound. He also made her perform oral sex on him almost every time he raped her. He continued to warn her not to tell anyone, not even a priest.
Sepulveda continued to abuse V.S. until she moved out of the house at age 19 and moved in with her boyfriend, whom Sepulveda disapproved of because he was African-American. On one occasion after V.S. moved out, Sepulveda took her to a bar and told he would accept her boyfriend into the family, but she would have to perform oral sex on him. V.S. refused.
V.S. eventually moved back home when she was about 20 years old and pregnant with her first child. During that time, Sepulveda tried to touch her inappropriately, but she "hop[ped] the front gate [of the house] to get away from him," walked to a church up the street and called her boyfriend. She did not return home again until she was about 23 years old. Eventually, she stopped talking to Sepulveda, believing it was best not to, especially since she had her own children and her boyfriend did not want them around Sepulveda.
Sexual Abuse of L .S. (Count 1)
Sepulveda inappropriately touched his daughter, L.S., in approximately 2012, when she was about 10 years old. On that occasion, Sepulveda told her to stay home from school with him, which he did at times. The two were watching television, on a pullout bed when Sepulveda told L.S. to lie down and take off her clothes. L.S. complied because she did not want to "get whipped." L.S. left on her bra and panties, and Sepulveda got on top of her and held her arms down while she cried. L.S. was able to push Sepulveda off, but he threatened to hit her if she told her mother. Although she did not tell her mother, L.S. did tell her little sister, N.S., who was about nine years old at the time. N.S. did not believe her. L.S. did not tell anyone else because she was afraid Sepulveda would "beat" her. Sepulveda had hit L.S. in the past with a belt, a shoe, a golf club, and a board, "[a]nything he could find." When he hit her with a golf club she blacked out.
L.S. was 13 years old at the time of trial.
Reporting the Abuse
V.S. and M.S. ultimately told Sepulveda's sister, S.M., about the sexual abuse. V.S. also told L.S., who said Sepulveda had touched her inappropriately as well. V.S. called S.M., who called law enforcement to report the abuse on March 9, 2015. V.S. and L.S. also told their mother, who denied any knowledge of the abuse and spoke to law enforcement on March 10, 2015.
Detective Joseph Galland spoke to L.S. in response to a Child Protective Services (CPS) referral. L.S. told him Sepulveda, on one occasion, took off all of her clothes except for her bra and underwear, told her to get into bed, and got on top of her. L.S. told the detective she pushed Sepulveda off and that he touched her chest, something she did not recall saying at trial.
After realizing Sepulveda had sexually abused her younger sister, M.S. also talked to law enforcement on March 11, 2015. M.S. told Detective Francisco Esguerra that Sepulveda had sexual intercourse with her for the first time when she was 13 years old. On a different occasion, Sepulveda raped her after she took a shower, and that the molestation occurred seven times a month.
Evidence Admitted Under Evidence Code Section 1108
Sepulveda's sister, S.M., testified that Sepulveda was three years older than her and started sexually abusing her at a very young age, when she was about five years old. Sepulveda pulled her into one of the bedrooms and attempted to have intercourse with her; she resisted and pushed, kicked and hit him with her arms. But he tore off her pants, held her down, held his hand over her mouth, and tried to insert his penis into her vagina until he was interrupted by someone at the door.
On another occasion, when S.M. was still five years old and they were again alone, Sepulveda took her into her parents' bedroom, threw her on the bed, punched her a few times, pulled off her pants and underwear, and then grabbed his penis and inserted it into her vagina. She felt "a lot of pain" and bled. Afterwards, he punched her again and told her not to say anything to their parents. He repeated this process the following day and "almost on a daily basis," sometimes "a couple times a day" until she was 14 years old and Sepulveda went into Job Corps.
While Sepulveda was away at Job Corps, their father was arrested for physically and sexually abusing S.M. When Sepulveda returned home and found out about the molestation charges against his father, he approached S.M., cornered her in the living room, held her and threatened her verbally, telling her not to say anything. At that time, S.M. was 15 years old and Sepulveda 18 years old. A couple of week later, Sepulveda attempted to rape S.M., but she fought him off. S.M. did not tell anyone because she was afraid of Sepulveda and his "propensity to be violent."
At some point later, during a family visit, Sepulveda asked S.M. for forgiveness, stating he could not help it that he fell in love with his sister. S.M. said she forgave him because he was her brother.
When S.M. learned about Sepulveda's sexual abuse of M.S. and V.S. in April 2013, she did not report it because they were over 18 years old and asked her not to. When S.M. learned in March 2015 about Sepulveda molesting L.S. she reported it to Child Protective Services because she was a minor and S.M. felt L.S.'s "life was in danger."
DISCUSSION
I. BATSON/WHEELER CLAIMS
Sepulveda first contends the trial court improperly denied his two Batson/Wheeler motions. We find no error. The federal and state Constitutions both prohibit a prosecutor's use of peremptory challenges to exclude prospective jurors based on race. (Batson, supra, 476 U.S. at p. 97; Wheeler, supra, 22 Cal.3d at pp. 276-277.) Although Sepulveda and the excused jurors at issue here share the same racial identity, a Batson/Wheeler challenge may be raised even if a defendant does not share the same racial identity as the excused jurors. (People v. Parker (2017) 2 Cal.5th 1184, 1212 (Parker).)
Because Batson/Wheeler error "is structural, damaging the integrity of the tribunal itself," the remedy is a new trial without any inquiry into harmless error. (People v. Gutierrez (2017) 2 Cal.5th 1150, 1154 (Gutierrez); Wheeler, supra, 22 Cal.3d at p. 283.)
With respect to the selection of a jury, "[t]here is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination." (People v. Bonilla (2007) 41 Cal.4th 313, 341.) A three-step procedure applies at trial when a defendant makes a Batson/Wheeler challenge. First, the defendant must make a prima facie showing that the prosecution exercised a challenge based on impermissible criteria. Second, if the trial court finds a prima facie case, then burden shifts and the prosecution "'must provide a "'clear and reasonably specific' explanation"'" of his race-neutral (i.e. legitimate) reasons for exercising the challenges. (People v. Winbush (2017) 2 Cal.5th 402, 433-434 (Winbush).) "[A] legitimate reason is one that does not deny equal protection." (People v. Lenix (2008) 44 Cal.4th 602, 613 (Lenix).) 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." (Id. at pp. 612-613.) At this third step, "'the trial court must determine whether the prosecution's offered justification is credible and whether, in light of all relevant circumstances, the defendant has shown purposeful race discrimination.'" (Parker, supra, 2 Cal.5th at p. 1211.) "[T]he adjudication of [a] Batson claim is, at bottom, a credibility determination." (Foster v. Chatman (2016) 578 U.S. ___ [136 S.Ct. 1737, 1765].)
A. Background
In this case, the combined jury panel contained approximately 75 jurors after the trial court prequalified three separate panels of potential jurors. From the combined panel, a group of 12 potential jurors was selected, seated in the jury box and examined through voir dire by the court and counsel. As each juror was excused, a replacement juror was selected from the panel. After the parties accepted the jury and the jurors were sworn in, three alternate jurors were selected and sworn.
Over the course of jury selection, four Hispanic jurors were seated in the jury box and examined during voir dire. The first two Hispanic jurors selected from the panel were C.O. and M.F., respectively. After the prosecutor used peremptory challenges to excuse C.O., a Hispanic woman, and then M.F., a Hispanic man, defendant made his first Batson/Wheeler motion. The trial court found a prima facie case of discrimination as to C.O. but not M.F. After the prosecutor set forth her reasons for excusing C.O. on the record, the trial court denied the defense's motion. The prosecutor then requested, and was granted, the opportunity to state on the record why it dismissed M.F. as well.
Three of those jurors were excused and are the subject of Sepulveda's Batson/Wheeler motions. The fourth juror, number 3661477, an older Hispanic man who worked with printing and graphics machinery, served on the jury. Additionally, we observe there was some dispute over whether a fifth potential juror with a Hispanic last name was in fact Hispanic. The defense took the position she was Caucasian. No determination was made by the trial court and that potential juror was excused by the defense.
Thereafter, J.G., a Hispanic male, was selected from the panel and examined. The prosecutor used a peremptory challenge to excuse him following voir dire and Sepulveda made his second Batson/Wheeler motion. As it did with M.F., the trial court found the defense failed to make a prima facie case of discrimination as to J.G. and denied the motion. (Parker, supra, 2 Cal.5th at p. 1211; accord, Gutierrez, supra, 2 Cal.5th at p. 1158.)
B. First Batson/Wheeler Motion (C.O. And M.F.)
1. Voir Dire of C.O.
In response to the trial court's voir dire examination, C.O. stated she was a full-time student at California State University-Bakersfield studying computer engineering. She was about to begin her second year there and was presently finishing two online programming courses. C.O. was unmarried, had not previously served on a jury and had no friends or family in law enforcement. Neither she nor anyone close to her had been impacted by sexual assault, sexual abuse or crimes similar to those Sepulveda was charged with. She had not had any unpleasant experiences with law enforcement and neither she nor anyone close to her had been the victim of or accused of a crime. C.O. had no knowledge of the case, and she said she could be fair and impartial.
In response to the prosecutor's voir dire examination, C.O. stated she did not have any upcoming projects or other deadlines related to her online programming classes, she had lived in Kern County her entire life and she had no children. C.O. also stated she was able to look only at the evidence presented and apply the law given. She said she was able to put aside speculation or curiosity regarding the evidence and the punishment Sepulveda faced, and focus on the evidence presented and the prosecutor's burden. C.O. said she could follow the law if it said neither party was required to produce all of the evidence; based on Sepulveda's age, she did not have feelings of leniency or sympathy, or any feelings of anger or hatred; she could set aside any emotion, look at the evidence and apply the law; and she would not discount a witness's testimony because of appearance or attitude, or because they "rubbed [her] the wrong way." She also stated she could keep an open mind toward the witnesses and the victims, including on the issue of late reporting of a crime, and she would not discount someone based on drug use or promiscuity.
The following voir dire examination, relevant to the prosecutor's subsequent stated justification for excusing C.O., then occurred:
"[THE PROSECUTOR]: If I have met—or if the law says that a single witness'[s] testimony is sufficient to prove a fact and you believe the witness beyond a reasonable doubt, are you still going to expect some physical evidence or a video or third-party witness in order to be able to convict?
"[DEFENSE COUNSEL]: Objection. That's the wrong standard on witnesses.
"THE COURT: Sustained as phrased. [¶] Maybe you can restate, please.
"[THE PROSECUTOR]: If the law says that a single witness'[s] testimony can prove a fact and if you evaluate that witness, that single witness, and you feel that witness is telling you the truth and you believe beyond a reasonable doubt that that fact has been proved, are you still going to expect additional physical evidence, such as video or a third-party witness or some other kind of evidence, before you would convict? If you do believe that that fact has been—an element has been met beyond a reasonable doubt, are you going to expect more?
"[C.O.]: No.
"[THE PROSECUTOR]: So you could, if that single witness goes up there, testifies, you listen to that witness, and you feel that that witness is completely telling you the truth beyond a reasonable doubt and what that witness says meets every single element, you can return a verdict of guilty just based on that. Can you do that?
"[DEFENSE COUNSEL]: Objection. That misstates the law.
"THE COURT: You have to look at all the evidence. [¶] Let me read this one instruction to you. I think I read it earlier, but it's very fundamental. Let me find it for you here in the 300 series.
"301, single witness'[s] testimony. [¶] The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all of the evidence.
"Would you be able to follow that instruction?
"[C.O.]: Yes.
"THE COURT: Thank you.
"[THE PROSECUTOR]: And my hypothetical to you, [C.O.], is if that witness testifies and you conclude, based upon all the evidence, that each and every element is met beyond a reasonable doubt, can you return a verdict of guilty or are you going to expect more, such as physical evidence, a videotape, or a third-party witness?
"[DEFENSE COUNSEL]: Objection. That misstates the law as to guilt.
"[THE PROSECUTOR]: Your Honor, can we have a sidebar briefly?
"THE COURT: I think counsel is referring to all available evidence.
"[DEEFNSE COUNSEL]: Correct, your Honor.
"[THE PROSECUTOR]: No, counsel is referring to [a] single witness'[s] testimony.
"[DEFENSE COUNSEL]: No.
"[THE PROSECUTOR]: Oh, you were referring to all available evidence[?]
"[DEFENSE COUNSEL]: Yes, counsel.
"THE COURT: Right. [¶] So let me read the 300, all available evidence, instruction. [¶] And remember, when these instructions are read to you, ladies and gentlemen, you're to consider them as a totality, as a group. You don't just pick one out and ignore the rest.
"300, all available evidence. [¶] Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant.
"Any problem following that instruction?
"[C.O.]: No.
"THE COURT: You may proceed.
"[THE PROSECUTOR]: So let me start—I'm going to give you a hypothetical. [¶] If at this point it's my job to meet the burden of [proof] beyond a reasonable doubt, I don't put on a single witness and I rest my case, what would your verdict be?
"[C.O.]: Well, I'd have to hear everything.
"THE COURT: I'm sorry?
"[THE PROSECUTOR]: There's no evidence.
"[C.O.]: No evidence?
"[THE PROSECUTOR]: I presented absolutely no evidence. We've started this case. I sit down and say the People rest. There's no evidence for you to consider. What would your verdict be?
"[C.O.]: Not guilty
"[THE PROSECUTOR]: Correct.
"THE COURT: Exactly, no proof beyond a reasonable doubt. [¶] You understand that presumption of innocence is the fundamental hallmark of our system of justice. And as a I mentioned before, I think, it's just as if the young gentleman is wearing a long-sleeve sweater or a sport coat. It doesn't come off throughout the entire trial. The only burden in a criminal case falls on the shoulders of the prosecution to prove the guilt of the accused as to each charge and each material element beyond a reasonable doubt. [¶] Any philosophical opposition to that burden?
"[C.O.]: No
"THE COURT: Thank you.
"[THE PROSECUTOR]: Now, my next part of that hypothetical is if I put a witness up there and I only put one witness, a single witness, and that witness testifies about every element of the charge that's alleged and you do not believe that witness beyond a reasonable doubt, what would your verdict be?
"[C.O.]: Not guilty."
The following voir dire question focuses on the prosecutor's stated justification for excusing C.O., which is the crux of the Batson/Wheeler challenge:
"[THE PROSECUTOR]: Okay. Now, if I put a single witness up there—understanding the laws that we have talked about so far, that a single witness can prove a fact, and neither party is required to provide all available evidence. If I put a single witness up there and that witness testifies about every single element of the charge and you are convinced beyond a reasonable doubt the truth of each and every one of those elements that that witness testified to, can you return a verdict of guilty, understanding that you believe that each and every element has been met beyond a reasonable doubt, or will you require additional physical
evidence, video, or third-party corroboration before you can return a verdict of guilty?
"[C.O.]: I'd require.
"[THE PROSECUTOR]: You'd require?
"[C.O.]: (Nods head.)
"[THE PROSECUTOR]: And even though each and every element has been met beyond a reasonable doubt[?]
"[C.O.]: Why?
"THE COURT: Did you kind of get lost in the length of the question?
"[C.O.]: Yeah, kind of." (Italics added.)
Now the attempted clarification or rehabilitation by the prosecutor:
"[THE PROSECUTOR]: We're picking on the specific law of a single witness'[s] testimony can prove a fact. And in this hypothetical, in this hypothetical, if the witness does not convince you beyond all reasonable double every single element, then it has not been proved, correct? Would you agree with me?
"[C.O.]: Yeah.
"[THE PROSECUTOR]: If the witness goes up there and proves every element—or testifies to each and every element and you are convinced beyond a reasonable doubt that she or he has testified and proven beyond a reasonable doubt each and every element, so the burden has been met, would you still require additional evidence, even though the burden has been met, before you can return a verdict of guilty?
"[C.O.]: No.
"[THE PROSECUTOR]: And why?
"[C.O.]: Because everything has been met already.
"[THE PROSECUTOR]: So if that evidence that I put up is sufficient to you as being met beyond a reasonable doubt and that standard has been met, you're not going to require more.
"[C.O.]: No.
"[THE PROSECUTOR]: I know that was really tough to go through. I'm sorry. I just wanted to make sure you could follow that."
The prosecutor moved on to examine C.O. regarding direct and circumstantial evidence, reasonable inferences, the prosecution's burden and whether C.O. could be fair to both sides, after which she passed on challenge for cause. Defense counsel also passed on challenge for cause and accepted the panel, but only after examining C.O., specifically noting her young age, her lack of previous jury service, and questioning whether she thought she could hold her own against "more experienced" members of the jury panel who might ask her to keep quiet during deliberation. The prosecutor then exercised a peremptory challenge to excuse a male juror, whose seat was filled by a retired Kern County Sheriff's Deputy. After voir dire, the defense excused the retired deputy and his seat was filled by a homemaker with adult children. After the newest panel member was examined, the prosecutor excused C.O.
After C.O. was excused, the parties each exercised another peremptory challenge and defendant accepted the jury panel. The prosecutor then excused an additional juror and the parties stipulated to the excusal of another juror. M.F. was selected to fill one of the two vacant seats.
2. Voir Dire of M.F.
M.F. was a high school graduate and, at the time of trial, he had been out of high school for two years. He worked as a welder's assistant after high school, but was laid off. He was then unemployed for approximately a year before becoming a sanitation worker. At the time of trial, he was unemployed, but was doing side work installing cable boxes and satellite dishes for a contractor. When M.F. was around 11 years old, his brother was convicted of more than one drug-related felony for which he served time in prison. M.F. did not remember the details and said his brother was now out of prison, employed in the oil fields and doing well.
After the parties examined M.F. and the other newly seated juror, the parties passed for cause and the defense accepted the panel. The prosecutor then excused M.F., which prompted defendant's first Batson/Wheeler motion challenging the excusals of C.O. and M.F.
3. Trial Court's Ruling
Defense counsel informed the court he was not challenging the venire panel as unfair and acknowledged that of three jury panels, there were numerous Hispanic names. But, he argued, "[t]he People haven't had a chance to excuse any Hispanics until two arrived. That's the defense position. That's the prima facie showing, because both said they could be fair. There are no surviving Hispanics that have been called, none before [C.O. and M.F.] and none since, although there's an open seat now." The trial court considered the potential jurors who had been excused, requested a readback of C.O.'s examination, clarified it was discussing the prima facie showing and then ruled as follows:
Counsel argued that defendant had a right to a jury of his peers, by which he apparently meant a jury that included Hispanic jurors. However, a criminal defendant does not have a "right to a 'petit jury composed in whole or in part of persons of [the defendant's] own race' [citation;] he ... [has] the right to be tried by a jury whose members are selected by nondiscriminatory criteria." (Powers v. Ohio (1991) 499 U.S. 400, 404; People v. Williams (1997) 16 Cal.4th 635, 663; accord, Winbush, supra, 2 Cal.5th at p. 447.)
"THE COURT: I don't feel in the excus[al] of [M.F.] that there was any indication of an inference of a discriminatory purpose from the totality of the circumstances. [¶] But as to [C.O.], I have a serious concern. Though she was young, she seemed to be very learned and attentive, and I would find that there would be an inference of a perhaps discriminatory purpose in excusing her. [¶] So could you state the race-neutral reasons?
"[THE PROSECUTOR]: Yes, your Honor. [¶] Ms. [C.O.], during my questioning, when I asked her if she would expect more physical evidence or video evidence or third-party corroboration, should I be able to still meet my burden of beyond a reasonable doubt along the lines of a single witness'[s] testimony can be sufficient to prove a fact, said that she would expect more. [¶] I did rehabilitate her a little bit.
"THE COURT: Now you're jogging my memory [about C.O.]. I had to read that single witness [jury] instruction [to her].
"[THE PROSECUTOR]: And that was the reason why I decided to kick her.
"[DEFENSE COUNSEL]: Brief reply, your Honor?
"THE COURT: Yes, sir.
"[DEFENSE COUNSEL]: That's not my recollection at all. [¶] She misspoke, because the question had about 75 words in it, and when your Honor explained it to her, she understood. [¶] She didn't need to be rehabilitated. She misunderstood an exceedingly long, lawyer-like, compound question, and she was nervous, but she immediately corrected herself. She misunderstood.
"THE COURT: I didn't read [(understand)] it that way. [¶] And that was the reason you excused her?
"[THE PROSECUTOR]: That's correct.
"THE COURT: Anything further?
"[DEFENSE COUNSEL]: I'll submit.
"THE COURT: I'm going to find that there was a lack of any discriminatory purpose. [A] [r]ace-neutral reason was given. And therefore, there's no indication that there was any type of genuine showing that she was excused on the basis of racial discrimination. Total opposite of that, absence of that."
Although the trial court did not find a prima facie showing of discrimination with respect to M.F., the prosecutor stated she excused him because his brother had been to prison and she did not want a juror on the panel who was going to think about punishment.
4. Applicable Law and Analysis
Prima Facie Case
At the first step of the Batson/Wheeler process, "the ... movant must demonstrate a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. The moving party satisfies this first step by producing '"evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred."'" (Gutierrez, supra, 2 Cal.5th at p. 1158.)
Although there were numerous Hispanic jurors in the venire panel, C.O. and M.F. were the first two Hispanic jurors to be seated for voir dire examination. Where there are few jurors in the group subject to the Batson/Wheeler challenge, the ability to draw an inference of discrimination from the excusal of some or even all is impacted. (Parker, supra, 2 Cal.5th at p. 1212.) As the California Supreme Court explained in a case involving the excusal of two out of three African-American jurors, "'"[T]he small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible. '[E]ven the exclusion of a single prospective juror may be the product of an improper group bias. As a practical matter, however, the challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion.'"'" (Parker, supra, at p. 1212, quoting People v. Bonilla, supra, 41 Cal.4th at p. 343.) Further, "removing members of an identifiable group, where the defendant is a member of that group, is a fact that 'may prove particularly relevant' to the first-stage inquiry. [Citation.] But a prima facie case of discrimination can be established only if the totality of the relevant facts gives rise to an inference of discriminatory purpose. A court, in particular, may also consider nondiscriminatory reasons 'that are apparent from and "clearly established" in the record [citations] and that necessarily dispel any inference of bias.'" (People v. Zaragoza (2016) 1 Cal.5th 21, 43, quoting People v. Scott (2015) 61 Cal.4th 363, 384 (Scott).)
With respect to M.F., the trial court ruled that the defense had not made a prima facie case showing, finding a "lack of racial discrimination." We find no error on the part of the trial court in this determination. The record discloses obvious race-neutral reasons for excusing M.F. The trial court specifically noted M.F. was "a rather young gentleman, graduated from high school, had several jobs, now unemployed, looking for work," and he had a brother who had been in prison. These relevant factors were proper concerns for the prosecutor. (See, e.g., People v. Arias (1996) 13 Cal.4th 92, 139 [prospective juror's youthful age, marital status, and failure to register to vote were proper concerns for the prosecutor because they suggested the juror was uninvolved in society]; People v. Garceau (1993) 6 Cal.4th 140, 172 [recognizing peremptory challenge may be used to excuse juror whose relatives have had negative criminal justice system experiences].) Considering all of the relevant factors and the totality of the evidence, we find the trial court properly found the defense did not establish a prima facie case of discrimination. (Johnson v. California (2005) 545 U.S. 162, 168.)
With respect to C.O., the trial court found the defense satisfied the first step of the Batson/Wheeler inquiry by making a prima facie case of discrimination. In ruling on defendant's first Batson/Wheeler motion concerning C.O. and M.F., the trial court expressly recognized the California Supreme Court's articulation of relevant first-step factors in Scott, supra, 61 Cal.4th at page 384. As the People do not challenge that determination regarding C.O. and the trial court is in a superior position to evaluate the totality of the circumstances, our focus on C.O. is confined to the third step and we express no opinion on what the outcome might have been had the motion been denied at the first stage. (Winbush, supra, 2 Cal.5th at p. 434.)
The trial court stated, "And for the record, I also relied on my reading of the case of People vs. Scott, probably one of the most recent cases on Batson-Wheeler in California, 61 Cal.4th 363, June 8th of 2015, and specifically at 384, and there's a list of relevant factors that the courts [use to] decide if there has been a Batson-Wheeler violation."
Prosecutor's Explanation
At the second step of the process, the burden shifts and the prosecution must provide a "'"'clear and reasonably specific'"'" explanation of his race-neutral (i.e. legitimate) reasons for exercising the challenges. (Winbush, supra, 2 Cal.5th at p. 434.) "'At this [second step] of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.'" (Purkett v. Elem (1995) 514 U.S. 765, 767-768.) "'[E]ven a "trivial reason" if genuine and neutral, will suffice.'" (Lenix, supra, 44 Cal.4th at p. 613.)
In this case, the prosecutor cited to the point during voir dire where C.O. said she would expect more evidence than a single witness to find a defendant guilty beyond a reasonable doubt and, although she was able to rehabilitate C.O. "a little bit," "that was the reason why I decided to kick her."
The prosecutor's last question to C.O. on this topic provided an obvious ambiguous, double negative, response: "So if that evidence that I put up is sufficient to you as being met beyond a reasonable doubt and that standard has been met, you're not going to require more[?]" (Italics added.) Answer: "No." (Italics added.)
When dismissing a juror, "a 'legitimate reason' is not a reason that makes sense, but a reason that does not deny equal protection." (Purkett v. Elem, supra, 514 U.S. at p. 769.) As explained below, we find the reason given by the prosecutor race-neutral, "an adequate nondiscriminatory explanation for the challenges" and more than "'"clear and reasonably specific,"'" as required by Gutierrez, supra, 2 Cal.5th at page 1158. We therefore proceed to step three, on which Sepulveda's challenge centers.
As the United States Supreme Court explained in Purkett v. Elem, supra, 514 U.S. at page 768, "It is not until the third step that the persuasiveness of the justification becomes relevant—the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. [Citations.] At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step three is quite different from saying that a trial judge must terminate the inquiry at step two when the race-neutral reason is silly or superstitious. The latter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." In Johnson v. California, supra, 545 U.S. at page 171, footnote 6, the court observed that even in the unlikely event that a prosecutor refused to provide a justification at the second stage, that refusal would simply be viewed as "additional support for the inference of discrimination raised by a defendant's prima facie case."
Trial Court's Evaluation
At the third and final step, the trial court must "evaluate[] the credibility of the prosecutor's neutral explanation." (Gutierrez, supra, 2 Cal.5th at p. 1168.) "To satisfy herself that an explanation is genuine, the presiding judge must make 'a sincere and reasoned attempt' to evaluate the prosecutor's justification, with consideration of the circumstances of the case known at that time, her knowledge of trial techniques, and her observations of the prosecutor's examination of panelists and exercise of for-cause and peremptory challenges. [Citation.] Justifications that are 'implausible or fantastic ... may (and probably will) be found to be pretexts for purposeful discrimination.' [Citation.] We recognize that the trial court enjoys a relative advantage vis-à-vis reviewing courts, for it draws on its contemporaneous observations when assessing a prosecutor's credibility." (Id. at p. 1159.)
"'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.'" (Winbush, supra, 2 Cal.5th at p. 434) "When the prosecutor's stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. But when the prosecutor's stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient." (People v. Silva (2001) 25 Cal.4th 345, 386.)
Credibility of Prosecutor's Explanation
At the outset, we recognize that the prosecutor passed on excusing C.O. once and then excused her on the second challenge round. Courts have recognized that passing over a juror later excused "may tend to indicate the prosecutor's good faith" and, therefore, weigh against a finding of discriminatory intent, but it is not dispositive. (Gutierrez, supra, 2 Cal.5th at p. 1170, see People v. Snow (1987) 44 Cal.3d 216, 225.)
The question on this specific Batson/Wheeler challenge is whether there is adequate, substantial evidence in the record to support the trial court's finding that the prosecutor's justification for striking C.O. was "'credible and whether, in light of all relevant circumstances, the defendant has shown purposeful race discrimination.'" (Parker, supra, 2 Cal.5th at p. 1211.)
The People argue that the trial court's determination the excusal of C.O. lacked discriminatory purpose should be accorded deference, and that the record supports the conclusion that C.O. was either unwilling or unable to follow the law, or had confusion and difficulty understanding the law. Sepulveda argues the trial judge failed to "'assess the plausibility of the prosecution's professed reason in light of all the evidence'" and is not supported by the record. We agree with the People and find the prosecutor's stated reason--- that C.O. was unable or unwilling to follow the law was inherently plausible and is supported by the record.
"'Credibility [of the offered justification] 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, supra, 44 Cal.4th at p. 613, fn. omitted.) Implausible or fantastic justifications offered at the second stage may not be sufficiently credible to pass muster at stage three. (Purkett v. Elem, supra, 514 U.S. at p. 768.) "In assessing credibility, the court draws upon its contemporaneous observations of the voir dire." (Lenix, supra, at p. 613.) This assessment may also take into account "the court's own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her." (Ibid.) Citing Johnson v. California, supra, 545 U.S. at page 170, Justice Lui stated in his concurring opinion in Gutierrez: "The ultimate issue is 'whether it was more likely than not that the challenge was improperly motivated.'" (Gutierrez, supra, 2 Cal.5th at p. 1182 (conc. opn of Lui, J.).)
"Johnson reaffirmed that when ruling on a Wheeler motion, the trial court 'must make "a sincere and reasoned attempt to evaluate the prosecutor's explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily ...." (People v. Hall (1983) 35 Cal.3d 161, 167-168.)' [Citation.] But in fulfilling that obligation, the trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor's race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine." (People v. Reynoso (2003) 31 Cal.4th 903, 919.)
But "'when the prosecutor's stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient.'" (Gutierrez, supra, 2 Cal.5th at pp. 1171-1172.)
Here, the prosecutor's reason for striking C.O. was inherently plausible and clear: she was either unable or unwilling to follow, or misunderstood, the law. The critical issue is whether the record supports this reasoning. (People v. Silva, supra, 25 Cal.4th at p. 386.) In assessing the prosecutor's stated reason, the trial court had before it the fact that the prosecutor focused her voir dire of the entire panel on the fact that she would be presenting a single witness on some of the important elements of the sexual abuse allegations, and wanted assurance from the potential jurors that they would not require more corroborative evidence, if they believed the single witness proved each element beyond a reasonable doubt. The topic of a single witness's testimony, and not requiring the People to provide every type of evidence to prove an element of a crime, was asked of most of the jury panel by the prosecutor before C.O. was questioned. C.O. was questioned for three and one-half transcript pages on this topic before she said she would require more. Her follow-up response was ambiguous. None of the other prospective jurors said they would require more than a single witness. Based on this context, the prosecutor's stated reason for challenging C.O is clear, obvious and entirely plausible—she was concerned that C.O. would not follow the instructions as read and would require more evidence beyond a single witness. Unlike Gutierrez, this reason is supported by the record. Importantly, nothing in the record contradicts the justification given by the prosecutor. Also, nothing in the record supports a challenge to the prosecutor's demeanor. Although defense counsel argued that he did not agree with the prosecutor's reasons for dismissing C.O., the trial judge specifically rejected that assertion. Finally, there is nothing in the record to support the argument that the trial court did not make a sincere and reasoned determination regarding the genuineness of the prosecutor's reasons.
See Gutierrez, supra, 2 Cal.5th at p. 1167, where the court used earlier questioning of other jurors to provide insight into the logic of the prosecution's questions.
See footnote 9, ante.
Also, the fact that the trial judge earlier stated that C.O. "seemed to be very learned and attentive" does not necessarily preclude the prosecutor from genuinely questioning her fitness as a juror in this case. Experience with jury nullification confirms that smart people sometimes do not follow instructions, if they disagree. Lastly, the fact that the trial judge stated he had to read the single witness instruction to C.O. can easily be read in different ways -- "Now you're jogging my memory [about C.O]. I had to read that single witness instruction [to her]." He did in fact read the single witness instruction to her, which he felt was necessitated by a defense counsel objection to the prosecutor's original line of questions on single witness testimony. He therefore felt he "had" to read it because of the objection. Recalling that he had read that instruction may simply have reminded him of C.O.'s responses and shows that he was paying close attention to the voir dire process.
Defense counsel stated that he thought C.O. merely "misspoke" because the question was convoluted. The trial court responded to defense counsel's assessment of O.C.'s response: "I didn't read [(understand)] it [(meaning her testimony)] that way." In essence, the trial could found the prosecutor's stated justification credible.
The trial judge obviously heard the prosecutor's questioning of earlier jurors on the single-witness issue, and their responses. He was clearly aware of the prosecutor's jury selection strategy to such an extent that follow up questioning of the prosecutor's reasons and justification for striking C.O. was unnecessary.
The trial judge stated he accepted the prosecutor's understanding of C.O.'s response, not defense counsel's, then reconfirmed the prosecutor's reasons, and specifically found the reason given was race-neutral and non-discriminatory. There was no global finding of neutrality as in Gutierrez.
Trial courts are not necessarily required to "question the prosecutor or make detailed findings" (People v. Silva, supra, 25 Cal.4th at p. 386), unless "the prosecutor's stated reasons are either unsupported by the record, inherently implausible, or both." (Ibid.) In such a case, "more is required of the trial court than a global finding that the reasons appear sufficient." (Ibid.) Here, the reason before the trial court for C.O.'s dismissal was supported by the record and was inherently plausible. In addition, the trial court specifically stated: "I'm going to find there was a lack of any discriminatory purpose. [A] [r]ace-neutral reason was given. And therefore, there's no indication that there was any type of genuine showing that she was excused on the basis of racial discrimination. Total opposite of that, absence of that." Based on the clear justification for C.O.'s dismissal, the trial court's findings are sufficient.
Compare the similar findings in Lenix, supra, 44 Cal.4th at page 611, which were found sufficient: "'Based on the representations that I have from [the prosecutor] ... I do not find those challenges to be motivated because of the fact that any of the jurors excused were members of a minority group but rather for other reasons not motivated by any kind of ethnicity or membership in any particular minority group, so I'm going to deny the Wheeler motion."
Although the dissent believes that further inquiry by the trial court was required under Gutierrez to demonstrate compliance with its obligations under Wheeler, there is no indication in the record that the court did not make a sincere and reasoned determination regarding the genuineness of the prosecutor's reasons. We conclude that Gutierrez does not compel anything beyond what is included in the present record.
As stated in Lenix, "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 then credible." (Id. at pp. 625-626.)
We find the trial court adequately considered the prosecutor's reasons for challenging C.O., the reasons were consistent with the court's observations of what occurred (having recalled reading the single-witness instruction to her), and the court made a credibility finding that the prosecutor was truthful in giving a race-neutral reason for the challenge. We conclude that the record sufficiently supports the trial court's denial of the Batson/Wheeler motion with respect to prospective juror C.O., and, in this instance, no more was required of the trial court. (Gutierrez, supra, 2 Cal.5th at pp. 1154, 1171-1172.)
C. Second Batson/Wheeler Motion (Excusal of J.G.)
1. Voir Dire of J.G.
J.G. was a full-time student about to begin his second year in computer science at California State University, Bakersfield. He hoped to go into video game developing with one of the major companies. J.G. had no close friends or relatives in law enforcement, did not know any of the potential witnesses and thought he could be fair and impartial.
J.G. explained that his brother received a DUI two to three months earlier and entered a plea deal. He thought his brother had been treated fairly by law enforcement and the legal process and did not have any ill-will towards the district attorney's office. J.G. stated he would judge all of the evidence presented to him and apply the law provided by the judge; he would put aside any speculation concerning punishment; he thought he could treat all witnesses equally, regardless of appearance or behavior; he would look at the evidence in its entirety to determine whether or not the victim was false reporting or whether there were other reasons for reporting late; and he understood the direct and circumstantial evidence and could reject unreasonable inferences and look only at reasonable inferences.
The prosecution passed for cause, as did the defense without asking J.G. any further questions. The defense accepted the panel and the prosecution excused J.G. The defense then brought a second Batson/Wheeler motion regarding the prosecution's peremptory challenge to excuse J.G., "a clearly Hispanic gentleman, both regarding name and appearance."
2. Trial Court's Ruling
The defense argued J.G. clearly stated he could be fair, that his young age should not be an issue to serve, and that all of his answers were "acceptable." The trial court noted there was a Hispanic juror currently on the panel, and defense counsel indicated the People "can only do one peremptory at a time ...."
The prosecutor reiterated there was a Hispanic juror in the jury, and noted defense counsel had excused two Hispanic women, Mrs. Flores and Ms. Trejo Rodriguez. The prosecutor indicated she would have accepted Ms. Trejo Rodriguez, and also that she had excused two white males since she excused M.F. Defense counsel replied:
"But needless to say, there is no defense to a Batson as to the Hispanics that I have excused. And I find it very disingenuous for the prosecutor to believe that former juror number 11, Ms. Flores, was Hispanic. She was white and everyone in this room knows it."
The trial court explained that skin color was not necessarily a clear indication of someone's race. Defense counsel agreed, but stated he found it disingenuous for the prosecutor to consider Ms. Flores Hispanic in the same vein as J.G. and M.F., and that the only thing "wrong" with J.G., according to the prosecutor, was his ethnicity.
The trial court, however, noted J.G.'s youth, as well as the fact that his brother had a DUI. Defense counsel argued this should not disqualify J.G. as there were other "sitting up there with DUI's." Defense counsel submitted that the prosecution had disqualified another Hispanic person for an improper purpose.
The trial court ruled, as follows:
"Based upon the totality of the circumstances in this case and my reading of People vs. Scott, which we've cited before, I don't think that any evidence is sufficient to permit the Court to draw an inference that discrimination was the basis for excusing [J.G.]. I find that there is no prima facie case that would, from the relevant facts, give rise to an inference of a
discriminatory purpose in excusing the gentleman. Respectfully deny the challenge."
The trial court asked both attorneys whether they wished to state any additional factors on the record as to why they had excused jurors. The prosecution stated it had excused J.G. "on a combination of factors":
"the fact that [J.G.] was both a student, without a lot of life experience, and his ultimate goal, which was a red flag for me, was the fact that he wanted to go into video games and virtual reality, that concerned me, because this is obviously not a situation where we can deal with virtual reality, but something that is very real for both the victims, as well as the defendant in this case. And that fact that he had a brother who had a DUI, my understanding it was not too long ago, and that was part of his experience. The combination of that caused me to want to kick him and use my peremptory challenge in this case."The trial court then stated, "All right. My ruling stands."
3. Lack of Prima Facie Case
As stated previously, at the first step of the Batson/Wheeler process, the "movant must demonstrate a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. The moving party satisfies this first step by producing '"evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred."'" (Gutierrez, supra, 2 Cal.5th at p. 1158; accord, Parker, supra, 2 Cal.5th at p. 1211.) But a prima facie case of discrimination can be established only if the totality of the relevant facts gives rise to an inference of discriminatory purpose. A court, in particular, may also consider nondiscriminatory reasons "'that are apparent from and "clearly established" in the record [citations] and that necessarily dispel any inference of bias.'" (People v. Zaragoza, supra, 1 Cal.5th at p. 43, quoting Scott, supra, 61 Cal.4th at p. 384.)
Considering all the relevant factors and the totality of the evidence, Sepulveda has failed to establish a prima facie case of discrimination. As previously mentioned, the trial court highlighted that there were "[q]uite a few" Hispanic names in the venire. Of the six potential Hispanic jurors called to the jury box, the prosecution excused three, the defense two, and one remained and ultimately served as a juror. In addition, the information elicited in voir dire showed J.G. was a young college student with a brother who had received a DUI in the past few months. While the trial court acknowledged that these reasons did not disqualify J.G. from being a juror, the court found "no prima facie case that would, from the relevant facts, give rise to an inference of a discriminatory purpose in excusing the gentleman." When asked if the prosecutor wished to put additional factors on the record for excusing J.G., the prosecutor noted a "combination of factors" - that he was a student, his lack of life experience, his ultimate goal of wanting to work in video games and virtual reality "because this is obviously not a situation where we can deal with virtual reality, but something that is very real for both the victims, as well as the defendant in this case." The prosecutor also noted J.G. had a brother who had a recent DUI. Although the trial court did not explicitly find the prosecutor's reasons were genuine and race-neutral, it did so implicitly when it stated, immediately after the prosecutor's reasons were given, that it's earlier ruling "stands."
As previously mentioned, a prosecutor can properly use a peremptory to excuse a juror whose is a student, youthful and lacks maturity (People v. Neuman (2009) 176 Cal.App.4th 571, 582 [fact that excused jurors were all "young students, inexperienced at life" supported trial court's finding of no prima facie case]), as well as one whose relative has had a recent experience with the criminal justice system (People v. Panah (2005) 35 Cal.4th 395, 442 [arrest of a prospective juror or a close relative is a gender-neutral reason for exclusion]).
Our review of the entire record shows that race neutral grounds exist on which the prosecutor might reasonably have excused J.G. We therefore affirm the trial court's finding that the prosecutor's reasons for exercising a peremptory challenge against J.G. were race neutral and nondiscriminatory.
II. SECTION 1108
Sepulveda contends the trial court erred by admitting the testimony of his sister, S.M., as propensity evidence under Evidence Code section 1108. Specifically, he claims counsel was ineffective for failing to object to admission of S.M.'s testimony on grounds the prosecution failed to present clear and convincing evidence Sepulveda had the capacity to understand the wrongfulness of his conduct with S.M. at the time, as required by Penal Code section 26. He also contends S.M.'s testimony should have been excluded under Evidence Code section 352, as it was misleading and created a substantial danger of prejudice. We find no error.
A. Background
Prior to trial, the trial court held an Evidence Code section 402 hearing on the admissibility of S.M.'s testimony, pursuant to Evidence Code section 1108.
S.M. was 43 years old at the time of the hearing and, on direct examination testified Sepulveda, her brother, sexually abused her from the time she was five years old and Sepulveda was eight years old, until she was approximately 15 to 16 years old and Sepulveda was 18 years old. S.M. testified the abuse, which included raping her and fondling her breasts and vagina under her clothes, took place "almost on a daily basis, several times a day." According to S.M., they were left alone often as children and Sepulveda would approach S.M. when no one was around.
S.M. testified that, when she was about 15 years old, after her father was arrested and imprisoned for physically and sexually abusing her, Sepulveda, who came home from Job Corps, asked her whether she told the police about him abusing her as well. S.M. explained that she did not tell the police at the time because she could not "bring another blow" to her mother and their family had been "through so much" with her father being imprisoned.
S.M. testified that, about five years before the current trial, she was at a family gathering when Sepulveda sked her for forgiveness, saying he was sorry but that he could not help that he "fell in love" with his sister.
S.M. testified that V.S. and M.S. told her about Sepulveda molesting them about two years before trial, and she told them about the abuse she suffered as well. She told V.S. and M.S. that reporting Sepulveda's abuse was up to them because they were both adults. But she reported Sepulveda to the police when she found out more recently that L.S. was being abused. She did so because L.S. was a minor.
S.M. testified that when she was younger, Sepulveda threatened to hurt her if she were to say anything. According to S.M., Sepulveda "always beat us up as kids pretty severely." She finally put a stop to the abuse when, at age 16, she began fighting back.
When asked on cross-examination how many times Sepulveda raped her, S.M. said it occurred "almost on a daily basis, sometimes several times a day" from age 5 to about 15. Defense counsel questioned the number of times, asking S.M. if she was molested "over 3,650 times." S.M. responded, "If that's the math, sir, yes."
S.M. also testified she was molested as a child by her father, grandfather, and an uncle. She reiterated that Sepulveda raped her three to four times a week for about 10 years in the family home and that she suffered "vaginal injuries," dealt with pain for many years, and was still dealing with pain.
Following S.M.'s testimony, the prosecutor argued her testimony was highly relevant and probative, "especially in consideration of the nature of the acts that took place." The prosecutor noted the acts were similar to the current charges "in both the nature of how the acts had taken place, [and] what kind of acts took place." The prosecutor also argued the testimony was relevant to explain the dynamics between S.M. and the current victims.
In argument against admission of the evidence, defense counsel heavily attacked S.M.'s credibility, specifically questioning the idea of an eight-year-old having "full erections ... able to achieve intercourse." Defense counsel also argued S.M.'s claim that she was molested about 3,650 times in a house where other people lived was "preposterous" and her testimony "violate[d] both the letter and spirit of 352," as it was misleading, distracting, and lacked complete and total credibility. Defense counsel maintained that, if S.M. was allowed to testify, Sepulveda would be viewed as a "monster" and must therefore be guilty.
The trial court stated it would invite the parties supplemental briefing "on 352 regarding the issue of degree of certainty of commission on the numerous times [S.M.] alleges," and whether the issue of frequency should exclude a portion or all of her testimony. After further discussion, the trial court ruled "352, probative value outweighs prejudicial impact if we admit some, but not all, and specifically the frequency issue."
The prosecution then clarified that it was allowed to question S.M. regarding the fact that Sepulveda molested her and what types of acts occurred, but not on the frequency or number; it would address the age at which the abuse occurred; the fact that the parents were out of the house; the apology Sepulveda offered S.M.; and the conversations S.M. had with V.S. and M.S. and the timing of the report. The prosecutor then stated that, if the defense wished "to open the door by going into the frequency, as well as the other relatives and so one and so forth, then that will be his option at that point." At defense counsel's request, the prosecution agreed to advise S.M. and caution her not to "blurt-out" any statements pertaining to the limited issues.
S.M.'s trial testimony was similar to that given in limine, although she went into detail on several instances of abuse. During cross-examination at trial, defense counsel immediately questioned S.M. about the number of times she was molested by Sepulveda and asked her if it was "over 3,650 times." Defense counsel also questioned S.M. on other relatives she accused of abuse and asked if the total abuse that occurred was "over 10,000." In one instance during trial, defense counsel asked S.M., "Can you honestly say that you have credibility regarding all the thousands of reportings that you haven't made, the fact that you go back to your brother? Do you have any credibility at all?"
During closing, defense counsel continued his assault on S.M.'s credibility, telling the jury to use their common sense in addressing the "preposterous" statement that, according to S.M., Sepulveda achieved a full erection at eight years of age and had intercourse with S.M. He repeated stated several times that common sense dictated Sepulveda could not have raped S.M. multiple times when he was eight and she was five years old. Defense counsel called S.M. "[p]ossibly the most absurd witness in history, ... a zero-credibility witness," and referred to her as "Miss lack of credibility."
During closing, the prosecutor told the jury to take into consideration that people forget details over time, and to look at "all the factors that contribute to why these victims may have reported late, why these victims have struggled on that stand as [defense counsel] accused them of not being able to do math." The prosecutor also stated,
"[W]hen you look at the evidence of sexual molestation of [S.M.], if you believe it is not more likely than not, then you would not consider her testimony in regards at all. But if you believe that it is more likely than not that the fact is true, then you would consider it as one of the factors in determining the defendant's guilt as to the other charges in this case."
After closing arguments, the trial court instructed the jury, in relevant part:
"You alone, ladies and gentlemen, must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, please use your common sense and experience.... You may believe all, part, or none of any witness' testimony. Kindly consider the testimony of each witness and decide how much of it you believe."
This instruction further included a list of factors to consider in evaluating a witness's testimony, including the ability to remember, behavior, attitude, and any influence of bias or prejudice, and instructed the jury it should accept the part of a witness's testimony it believed and ignore the rest.
The trial court also instructed the jury on the limited admissibility of S.M.'s testimony, stating it could only consider that evidence if the prosecution proved by a preponderance of the evidence that Sepulveda committed the uncharged offense:
"If you conclude that the defendant committed the uncharged offense, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision also conclude that the defendant was likely to commit and did commit lewd and lascivious act with a child under 14 years and continuous sexual abuse as charged here.
"If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all of the other evidence. It is not sufficient by itself to prove that the defendant is guilty of lewd and lascivious act with a child under 14 years and continuous sexual abuse. The People must still prove each charge and allegation beyond a reasonable doubt."
B. Substantial Evidence Supports the Trial Court's Implied Finding that the Penal Code Section 26 Presumption of Incapacity was Rebutted.
Character or disposition evidence is generally inadmissible to prove a defendant's conduct on a specified occasion. (Evid. Code, § 1101, subds. (a), (b).) Evidence Code section 1108 creates an exception: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." (Evid. Code, § 1108, subd. (a).)
Penal Code section 26 "creates a rebuttable presumption that a child under 14 is incapable of committing a crime." (People v. Cottone (2013) 57 Cal.4th 269, 280 (Cottone).) This presumption applies not only to charged offenses, but also applies where the prosecution offers propensity evidence under Evidence Code section 1108 regarding unadjudicated sexual offenses committed when the defendant was under age 14. (Cottone, supra, at p. 281.) To overcome the presumption, the prosecution bears the burden of proving "by clear and convincing evidence that defendant appreciated the wrongfulness of the unadjudicated sexual offense offered under [Evidence Code] section 1108." (Id. at p. 286.)
Whether or not a defendant had the capacity to appreciate the wrongfulness of his or her conduct, under Penal Code section 26, is a question of fact preliminary to the admission of evidence, determined by the trial court. (Cottone, supra, 57 Cal.4th at p. 285.) Here, the trial court made no explicit finding on the record regarding Sepulveda's capacity. Nevertheless, on appeal, "'"[w]e imply all findings necessary to support the judgment, and our review is limited to whether there is substantial evidence in the record to support these implied findings."'" (People v. Therman (2015) 236 Cal.App.4th 1276, 1279.) "'[W]e must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [quoting People v. Jones (1990) 51 Cal.3d 294, 314.)
The reason the trial court made no explicit findings regarding Sepulveda's capacity is because defense counsel never requested it do so. The defense did object to admission of S.M.'s testimony as propensity evidence pursuant to Evidence Code section 1108, on grounds that it violated Evidence Code section 352 and was far more prejudicial than probative. Because defense counsel made no objection on the presumption of incapacity provided by Penal Code section 26, Sepulveda has forfeited the issue. (See Cottone, supra, 57 Cal.4th at p. 292 [holding that "upon a defendant's timely objection, the trial court must find by clear and convincing evidence that the defendant had the capacity to commit an unadjudicated juvenile offense before admitting that evidence under [Evidence Code] section 1108."].)
Realizing the issue has been forfeited, Sepulveda brings instead a claim of ineffective assistance based on defense counsel's failure to object to the admission of S.M.'s testimony pursuant to Penal Code section 26. To establish relief from ineffective assistance of counsel, defendant must show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates; and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings. (Strickland v. Washington (1984) 466 U.S. 668, 687.)
Regardless of whether we assess the issue as one of trial court error or ineffective assistance of counsel for failing to object to admission of the challenged section 1108 evidence, the standard for assessing prejudice is the same: whether it is reasonably probable a result more favorable to Sepulveda would have been reached absent the error. (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Callahan (1999) 74 Cal.App.4th 356, 363.)
We cannot infer Sepulveda's knowledge of wrongfulness from "the bare commission of the act itself," but "reference may properly be made to the attendant circumstances of the crime, such as its preparation, the particular method of its commission, and its concealment." (In re Tony C. (1978) 21 Cal.3d 888, 900.) Here, there is clear evidence in the record that Sepulveda was aware of the wrongfulness of his conduct. From the beginning, he engaged in inappropriate sexual conduct with S.M. when he and his sister were left alone, and he threatened to hurt S.M. if she told anyone. The first time Sepulveda "attempted" to abuse S.M., he pulled her into one of the bedrooms, held her down and tried to insert his penis into her vagina, but stopped and "scrambled" and threw her down when someone came to the door. After that, on another occasion when she was still five, he again took her into a room when their parents were gone, punched her, and, after sexually abusing her, punched her again and warned her not to tell their parents. At least when viewed in the light most favorable to the judgment, as it must be in the present procedural posture, the evidence of method and concealment is sufficient to support the conclusion that Sepulveda had the capacity to understand the wrongfulness of his conduct with S.M., even though he was not yet 14 years old at the time of some of the incidents about which she testified.
Substantial evidence supports the trial court's implied finding that S.M.'s testimony was properly admitted as propensity evidence, because the presumption of incapacity provided by Penal Code section 26 was rebutted by clear and convincing evidence. As such, even if Sepulveda had not forfeited the issue, which he did, we would nevertheless find no error.
C. The Trial Court Did Not Abuse Its Discretion by Overruling Sepulveda's Evidence Code Section 352 Objection to the Propensity Evidence
As noted, the trial court admitted propensity evidence regarding uncharged acts of sexual abuse over Sepulveda's objection pursuant to Evidence Code section 352. We reject Sepulveda's claim that this was an abuse of discretion.
Evidence Code section 352 provides the trial court with discretion to exclude even relevant evidence "if its probative value is substantially outweighed by the probability that its admission would ... create a substantial danger of undue prejudice." It has been said that evidence is "'substantially'" more prejudicial than probative only if it "'poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome."'" (People v. Lindberg (2008) 45 Cal.4th 1, 49.) The term "'prejudicial' means uniquely inflammatory without regard to relevance." (People v. Zambrano (2007) 41 Cal.4th 1082, 1138, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.) Prejudice in this context is "not the prejudice or damage to a defense that naturally flows" from relevant probative evidence, but rather evidence that "'uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.'" (People v. Karis (1988) 46 Cal.3d 612, 638.) The principles of due process are not offended by the admission of relevant evidence unless it is so prejudicial as to render the trial fundamentally unfair. (People v. Falsetta (1999) 21 Cal.4th 903, 913 (Falsetta).) On appeal, we will not disturb the trial court's decision to admit evidence over an Evidence Code section 352 objection unless there is a clear abuse of discretion. (People v. Cox (2003) 30 Cal.4th 916, 959, overruled on other grounds in People v. Doolin, supra, at p. 421 & fn. 22.)
Given Sepulveda's flat denial that he inappropriately touched any of the victims of the charged offenses, S.M.'s testimony tending to show Sepulveda's willingness to commit sexual offenses, and to do so against children in particular, was probative. (See Falsetta, supra, 21 Cal.4th at p. 912.) Sepulveda repeatedly took advantage of his position as an older male in the house to sexually abuse young females he was related to. The fact that the uncharged offenses were committed many years before the charged offenses does not render them irrelevant. (See, e.g., Cottone, supra, 57 Cal.4th at p. 277-278, 286 [affirming admission of propensity evidence pursuant to Evidence Code section 1108 regarding uncharged offenses occurring 32 years before charged offenses].) Moreover, the various similarities between the charged and uncharged conduct tend to lend credence to the testimony of M.S., V.S., and L.S., and correspondingly to shed doubt on the defense's theory of the case.
In addition, there was nothing "uniquely inflammatory" about the uncharged offenses S.M. described. (See Zambrano, supra, 41 Cal.4th at p. 1138.) S.M.'s testimony was arguably "no stronger and no more inflammatory than the testimony concerning the charged offenses." (People v. Ewoldt (1994) 7 Cal.4th 380, 405.) Indeed, it was arguably less inflammatory, in that the offender described in S.M.'s testimony was himself a minor, while the charged offenses were committed by an adult against his own children. (See Graham v. Florida (2010) 560 U.S. 48, 67 [noting that juveniles are, by reason of their immaturity, less culpable when compared to adults].) Nothing in the record suggests to us any reasonable probability the jury disbelieved the testimony of M.S., V.S., and L.S., but nevertheless convicted Sepulveda based on the strength of S.M.'s testimony regarding the uncharged offenses, or that the jury's passions were inflamed by the evidence of Sepulveda's uncharged offenses.
Sepulveda notes the trial court, in its section 352 ruling, imposed a limitation by admitting "some, but not all, and specifically the frequency issue," and suggests that this was not respected. However, the record shows the prosecution did not question S.M. regarding the frequency of the acts, in accordance with the trial court's ruling. But when the prosecution asked S.M. "what is the next event that you recall taking place with your brother," she replied, "The rapes happened almost on a daily basis. Sometimes a couple of times a day." Defense counsel did not object to S.M.'s answer, and in cross-examination, repeatedly questioned S.M. about the frequency of the abuse, calculating that Sepulveda raped S.M. 3,650 times throughout the years, and challenging the credibility of her testimony. The trial court had given defense counsel discretion to question S.M. about those details if he chose to do so, and he did.
The trial court did not abuse its discretion in admitting the challenged evidence over Sepulveda's objection pursuant to Evidence Code section 352.
III. MOTION TO STRIKE SEATED JUROR AND SUBSEQUENT MOTION FOR NEW TRIAL
Sepulveda contends the trial court erred when it denied his motion to disqualify Juror No. 12 and in denying his subsequent motion for new trial on the same grounds. We disagree.
A. Background
During direct examination, the prosecutor was questioning V.S. about Sepulveda's abuse of her on a particular occasion. When V.S. paused in her answer, the court stated, "Here ma'am. Let me hand you some Kleenex. [¶] Where's the Kleenex? [¶] Thank you very much, sir." V.S. also replied, "Thank you," to which Juror No. 12 replied "You're welcome."
At this point, defense counsel objected to the interaction. Outside the presence of the jury, defense counsel elaborated on his objection, stating that it appeared the trial court wanted to offer V.S. a tissue, but that Juror No. 12, "in the interim, on his own volition ... who is geographically the closest, but for the alternates, to the witness box, handed [V.S.] a tissue box. She then said thank you. He said you're welcome." The trial court noted the tissue box was "almost in front of [Juror No. 12], or at least parallel with his right hand." While defense counsel noted Juror No. 12 was "being a gentleman," he nevertheless claimed Juror No. 12 violated the rule by speaking to a witness. Defense counsel asked that Juror No. 12 be disqualified.
The prosecutor argued the very brief interaction occurred in open court where everyone could see and hear the interaction, there was no inappropriate action by the juror, and "certainly" no indication of any prejudice or bias. The prosecutor suggested that, if defense counsel was so inclined, Juror No. 12 could be questioned to see if he was still able to be fair and impartial.
Defense counsel stated he had "no interest in examining" Juror No. 12, but wished him dismissed, as his actions were a "show of kindness, a show of lack of impartiality" toward V.S.
The trial court denied the motion, stating:
"From the totality of the facts, my recollection is that when I noticed her crying and sobbing with her eyes to her - eyes, rubbing them, I believe I said, for the record, where's my Kleenex box? I looked over here to my left where it normally is. It's a yellow box. [¶] And it just happened to be over there on the railing in front of juror 12, right next to the plastic cups and the water pitcher nearest to the gentleman. There are already two other kind of gray boxes of Kleenex to his right down the jury box towards seat seven. [¶] And then I noticed that he handed it - or put it on the witness stand and I thanked him for that. [¶] ... [¶] ... I don't find that this is inappropriate conduct. It's not offensive. It's neutral. At best, he was trying to be of assistance. And I find no prejudice to defense for his conduct. [¶] I don't find it's violative of any admonitions we've given to the jury in terms of communication. I don't feel that it's in any way compromised Mr. Sepulveda or the People's right to a fair trial."
Following trial, defense counsel brought a motion for new trial based, in part, on the trial court's failure to remove Juror No. 12. The motion was denied.
B. The Trial Court Did Not Abuse Its Discretion in Denying Sepulveda's Motion to Remove Juror No. 12 and Motion for New Trial.
"The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to a trial by jury guaranteed by the constitution." (Lombardi v. California St. Ry. Co. (1899) 124 Cal. 311, 317; accord, People v. Nesler (1997) 16 Cal.4th 561, 578; Cal. Const., art. 1, § 16; U.S. Const., 6th & 14th Amends.) To maintain the integrity of the process, potential jurors are screened for bias through the voir dire process. Those selected take an oath to follow court instructions designed to protect the deliberative process, eliminate outside influences, and generate a decision based solely on the evidence presented at trial. Jurors are told that to ensure both sides receive a fair trial, they are not to discuss the case with anyone and that deliberations must occur only in the jury room. (People v. Cissna (2010) 182 Cal.App.4th 1105, 1111.)
The trial court may discharge a juror who commits misconduct. (Pen. Code, § 1089.) We review the trial court's decision to retain or discharge a juror for abuse of discretion. (People v. Cowan (2010) 50 Cal.4th 401, 506 (Cowan).)
There is no doubt it would have been misconduct for Juror No. 12 to discuss the case with a nonjuror (in this case, a witness) during the course of trial. (People v. Linton (2013) 56 Cal.4th 1146, 1194.) "A juror's unauthorized contact with a witness is improper." (Cowan, supra, 50 Cal.4th at p. 507; see Pen. Code, § 1122, subd. (a)(1) [jurors should not converse with anyone on any subject connected to the trial].) However, contact between a juror and a witness may be nonprejudicial if the contact was "de minimis" (People v. Hardy (1992) 2 Cal.4th 86, 175) or if there is no showing that the contact was related to the trial (cf. People v. Woods (1950) 35 Cal.2d 504, 512 [mere showing that juror conversed with a witness is insufficient to raise a presumption of prejudice] but cf. People v. Pierce (1979) 24 Cal.3d 199, 207-209 [where juror discussed state of the evidence and the prosecutor's tactics with police officer witness, reversal required].)
Here, Juror No. 12 did not actually speak with V.S. about the case or about anything else; he merely replied "You're welcome" to both the trial court and V.S.'s statements of "thank you." We find Juror No. 12's response to both the trial court and V.S. inconsequential. Considering all of the circumstances, the trial court was well within its discretion in not removing Juror No. 12 from the jury. As such, Sepulveda's additional argument that the trial court erred when it denied his new trial motion based on the same claim also fails.
IV. PROSECUTORIAL MISCONDUCT
Finally, Sepulveda contends the trial court erred in denying his motion for new trial based upon prosecutorial misconduct. Sepulveda argues the prosecutor undermined his right to due process and a fair trial by (1) repeatedly testifying to matters outside the record, (2) by shifting the burden of proof to the defense, and (3) denigrating defense counsel. Sepulveda objected in each instance, but contends the misconduct is prejudicial. We disagree.
The standards governing review of claims of prosecutorial misconduct are well settled. (People v. Adams (2014) 60 Cal.4th 541, 568.) When a prosecutor's intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the misconduct violates the United States Constitution. (Ibid.) Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the court or jury. (Ibid.)
To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood that the jury understood or applied the complained-of comments in an improper or erroneous manner. (People v. Centeno (2014) 60 Cal.4th 659, 667; People v. Caldwell (2013) 212 Cal.App.4th 1262, 1269.) In our assessment of prosecutorial misconduct, we do not lightly infer that the jury drew the most damaging rather than the least damaging inferences from the prosecutor's statements. (Centeno, supra, at p. 667.) Although Sepulveda singles out words and phrases of claimed misconduct, we view the statements in the context of the whole argument and instructions. (Ibid.)
A. Matters Outside the Record
Sepulveda contends the prosecutor committed misconduct by testifying to matters outside the record in the following instances in closing and rebuttal.
In closing, concerning S.M.'s late reporting, the prosecutor told the jury late reporting was "quite common ... in these kinds of cases." Defense counsel objected, stating it was "evidence outside the courtroom for this case." The trial court asked the prosecutor to "rephrase," and the prosecutor then stated, "In sexual crimes late reporting occurs. And because late reporting occurs, we have a special instruction ... 3410. [¶] ... applicable to [M.S.] and [V.S.'s] charges."
At another point in closing, defense counsel argued that S.M. should have had injuries if she was abused repeatedly. In rebuttal, the prosecutor argued S.M. had no physical injuries from the alleged rapes because the rapes were not violent. Defense counsel objected, stating the prosecutor was misstating the testimony. The trial court advised the jury that they "are the sole judges of the facts and the evidence" and could ask for a full or partial read back of any witness' testimony during deliberations, if they so wished.
In rebuttal, the prosecutor stated, "You are not going to see injuries where there is not violence or excessive force or some kind of torture or some other mechanism taking place." Defense counsel again objected, stating the prosecutor was introducing evidence outside the record, and moved to strike. The trial court stated, "Again, counsel can argue the evidence and only the evidence and what can be reasonably inferred from the evidence. Argument and opening statements of counsel are not evidence ...."
And finally in rebuttal, the prosecutor argued defense counsel tried to "distract" the jury by saying younger sister, N.S., did not believe L.S., and so the jury should not believe her either. The prosecutor argued, "[N.S.] is not the juror that must make that determination. [N.S.] is a child, a child who does not have the common sense, the life experiences, the understanding of the law." Defense counsel again objected, stating the prosecutor was introducing outside evidence, and moved to strike. The trial court again stated counsel could "argue the evidence and what can be reasonably inferred from the evidence and comment on lifetime experiences and matters of common knowledge. We will be instructing you on the law shortly."
Referring to facts not entered into evidence is "'clearly ... misconduct' [citation], because such statements 'tend[ ] to make the prosecutor his own witness—offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, "although worthless as a matter of law, can be 'dynamite' to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence." [Citations.]' [Citations.] 'Statements of supposed facts not in evidence ... are a highly prejudicial form of misconduct, and a frequent basis for reversal.'" (People v. Hill (1988) 17 Cal.4th 800, 827-828.) However, "'counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience ....' [Citations.]" (Id. at p. 819.)
Here, in response to defense counsel's objections, the trial court admonished the jury to disregard matters outside the record. We presume the jury heeded the admonition to disregard those statements and any error was cured. (People v. Wash (1993) 6 Cal.4th 215, 263). In addition, we discern no impropriety in the remainder of the prosecutor's statements in which she makes reasonable inferences from the record or states matters of common knowledge.
B. Shifting the Burden of Proof
Sepulveda also contends the prosecutor improperly shifted the burden of proof to the defense in the following instances:
In defense counsel's closing, he argued S.M. lied about being abused by Sepulveda, noting she admitted she reported her father molested her, but she did not report her allegations that her brother, her grandfather and one of her uncles did as well. In rebuttal, the prosecutor addressed defense counsel's argument questioning why S.M. reported the abuse she received from her father, but not her brother, grandfather and uncle. "Now, [defense counsel] has also pointed out all kinds of probablys. [S.M.] probably said this in court. [S.M.] probably did this with the police. [¶] There's no evidence of that. The defense has the same subpoena powers as the People and they are able to have the witnesses come into this courtroom." Defense counsel objected, stating the prosecutor shifted the burden of proof. The trial court stated, "There is no burden on the defense to do anything.... Counsel may comment on the evidence and what can be reasonably inferred from the evidence and also comment on the state of the evidence and the failure of defense to call logical witnesses. That's what can be done under the law during final argument."
Also in closing, defense counsel questioned why the police did not follow up on M.S.'s story that she told Sepulveda's brother Jaime about the alleged molestations. In rebuttal, the prosecutor argued that defense counsel said that Jaime could have said "all kinds of things about [S.M.]; that he's her brother. [¶] Jaime is also [Sepulveda's] brother. If there was such information, the defense has the same subpoena powers as the People." Defense counsel objected, stating the prosecutor was again shifting the burden of proof. The trial court stated, "There's no burden on the part of the defense, other than what we may have commented on earlier, under the law. In closing argument the People may comment on the failure of the defense to call logical witnesses, the failure of defense to present material evidence, et cetera."
It is generally permissible for a prosecutor to comment on the state of the evidence or on the defendant's failure to call logical witnesses, introduce material evidence, or rebut the prosecution's case. (People v. Medina (1995) 11 Cal.4th 694, 755; see People v. Gonzales (2012) 54 Cal.4th 1234, 1275 ["it is neither unusual nor improper [for a prosecutor] to comment on the failure to call logical witnesses"].) However, a prosecutor may not suggest that "a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence." (People v. Bradford (1997) 15 Cal.4th 1229, 1340.)
A prosecutor's statements in closing argument must be viewed in context of the remainder of summation. (People v. Medina, supra, 11 Cal.4th at p. 756.) While Sepulveda views the prosecutor's comments as burden shifters, we see them as acceptable responses to defense counsel's argument. In any event, the jury was repeatedly told the burden of proof was on the prosecution and were properly instructed as such as well.
C. Denigrating Defense Counsel
Finally, Sepulveda asserts the prosecutor denigrated defense counsel. In rebuttal, the prosecutor noted defense counsel "attacked" V.S. about the number of times she said the sexual acts occurred - two to three times versus five times a week - and that she was "tricked" into admitting she lied because the numbers were inconsistent. Defense counsel objected, stating the prosecutor's remarks "denigrates counsel." The trial court stated, "I didn't take that as a personal degrading of counsel." The trial court then again told the jury it was to "sift through the evidence, determine what the evidence is," and could ask for full or partial read back in deliberation if it so wished.
A prosecutor commits misconduct by attacking the integrity of defense counsel or by casting aspersions upon counsel's character. (People v. Redd (2010) 48 Cal.4th 691, 734-735.) We agree with the trial court that the prosecutor's statement was not a personal denigration of counsel. Moreover, the trial court reminded the jury it was bound by the evidence.
D. Cumulative Impact
Lastly, Sepulveda contends that the cumulative effect of the prosecutor's misconduct compels reversal. We have identified only a few instances that were arguably misconduct, and have found them to be harmless. Viewed singly or in combination, there is no reasonable possibility that they affected the verdict. We reject Sepulveda's claim to the contrary. (See e.g. People v. Hines (1997) 15 Cal.4th 997, 1075.)
DISPOSITION
The judgment is affirmed.
/s/_________
FRANSON, J. I CONCUR: /s/_________
LEVY, ACTING P.J. MEEHAN, J., Dissenting.
My narrow concern in this case lies with the majority's affirmance of the trial court's ruling on defendant's motion challenging the excusal of potential juror C.O., brought pursuant to Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). In my view, the prosecutor's stated justification for excusing C.O., although facially neutral, lacks support in the record when viewed in the context of C.O.'s voir dire responses. The trial court then failed to meaningfully review the subjective genuineness of the justification. Critically, the trial court's express finding on the matter is affirmatively contradicted by the record. Under these circumstances, we cannot defer to the trial court's finding and are constrained under the law to reverse for Batson/Wheeler error. (People v. Gutierrez (2017) 2 Cal.5th 1150, 1172 (Gutierrez); People v. Lenix (2008) 44 Cal.4th 602, 621 (Lenix); People v. Silva (2001) 25 Cal.4th 345, 385-386 (Silva).) Accordingly, I respectfully dissent.
With respect to the prosecutor's justification, the People argue on appeal that C.O. was either unable to follow the law, or had confusion and difficulty understanding the law, as the majority sets forth above. The People also assert that "[b]ased on the trial court's word choice, it appears there was more to [C.O.] than her verbal responses, and that other telling aspects like her attention and body language affected the trial court's 'read' of [her]."
Regarding the contention there may have been more to C.O. than we are aware from the cold appellate record, I find this assertion undercut by the trial court's description of her as "learned and attentive." Regardless, while "[a] prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons" (Lenix, supra, 44 Cal.4th at p. 613), had C.O.'s demeanor been a factor, it was incumbent on the prosecutor and the trial court to create an adequate record on the issue (Id. at pp. 623-625; Silva, supra, 25 Cal.4th at p. 385). They did not do so and neither we nor the People may substitute our reasoning for that articulated by the prosecutor. (Miller-El v. Dretke (2005) 545 U.S. 231, 251-252 (Miller-El); Gutierrez, supra, 2 Cal.5th at p. 1159; Lenix, supra, at p. 621; Silva, supra, at pp. 385-386).
Returning to the articulated justification, I agree that concern over a potential juror's ability or willingness to follow the law presents a facially neutral and plausible justification, and, if genuine, a legitimate basis for excusal. However, "[a] Batson challenge does not call for a mere exercise in thinking up any rational basis" (Miller-El, supra, 545 U.S. at p. 252), and the record does not reflect that C.O. was unwilling or unable to follow the law or the proceedings (see People v. DeHoyos (2013) 57 Cal.4th 79, 107-108). The majority opinion recounts the relevant voir dire of C.O., but concludes nothing in the record contradicts the prosecutor's justification. I am not persuaded of this, because to select the single point at which C.O. tripped over the prosecutor's question and cast it as supportive of the prosecutor's concern C.O. would not follow the law is to ignore the context in which it occurred.
In my view, had the prosecutor articulated the basis for her concern with slightly more precision, it would have benefitted the record and assisted the trial court in the discharge of its duty under Batson/Wheeler. Nevertheless, I have no quarrel with the prosecutor's justification at the second step; I agree with my colleagues that it is facially neutral and the analytical focus is on the trial court's evaluation of the justification at the third step. (Purkett v. Elem (1995) 514 U.S. 765, 769.)
The majority also states that nothing in the record supports a challenge to the prosecutor's demeanor. As the record is silent on the issue, there is nothing to be discerned one way or the other regarding either the prosecutor's demeanor or the trial court's opinion on the matter. (See Snyder v. Louisiana (2008) 552 U.S. 472, 479 [where the record is silent on an issue of demeanor, there is no finding to which deference may be accorded].)
Technically, it is true that C.O. incorrectly answered the specific question cited by the prosecutor in justifying C.O.'s excusal. However, she had already answered the same question correctly, the record reflects a confusion created by the question that was recognized by the trial court and parties, and as soon as the matter was clarified, C.O. again answered the question correctly. Characterizing C.O.'s response as indicative or suggestive of her inability or unwillingness to follow the law divorces the response entirely from the context in which it occurred. Given the circumstances, I do not agree the excusal of C.O. based on a subjectively genuine concern she could not or would not follow the law is supported by the record.
Although the prosecutor's question was not a model of precision, I do not agree C.O.'s response was ambiguous. Nor is there any indication the prosecutor perceived it as such.
In Foster v. Chatman (2016) 578 U.S. ___, ___ [136 S.Ct. 1737, 1748], the United States Supreme Court reiterated, "We have 'made it clear that in considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted.' [Citation.] As we have said in a related context, '[d]etermining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial ... evidence of intent as may be available.'"
At the third step, the trial court has a duty to "make 'a sincere and reasoned attempt' to evaluate the prosecutor's justification ...." (Gutierrez, supra, 2 Cal.5th at p. 1159.) As the majority states, trial courts are not necessarily required to "question the prosecutor or make detailed findings." (Silva, supra, 25 Cal.4th at p. 386; accord, People v. Manibusan (2013) 58 Cal.4th 40, 76-77; People v. Williams (2013) 56 Cal.4th 630, 653; People v. Arellano (2016) 245 Cal.App.4th 1139, 1159-1160.) However, where, as here, the prosecutor's stated reason is unsupported by the record, more is required of the trial court. (Silva, supra, at p. 386; accord, Gutierrez, supra, at p. 1171; People v. Arellano, supra, at p. 1160).
Notably, the trial court found that defendant met his burden of making a prima facie showing of discrimination and in doing so, the court stated it had serious concerns over the excusal of C.O., whom it observed to be "learned and attentive." After the prosecutor set forth her justification for the excusal, the trial court recalled it "had to read [the] single witness [jury] instruction." Defense counsel countered that C.O. did not need to be rehabilitated and misunderstood or misspoke after the prosecutor asked a long, compound question. The trial court responded, "I didn't read it that way," and denied defendant's motion without further inquiry.
The trial court's statement suggesting C.O.'s response to the question at issue required the court to read a jury instruction is expressly contradicted by the record. While my colleagues suggest the trial judge's recollection may have reminded him of C.O's response and shows he was paying close attention to the voir dire process, I note the trial judge was aided here by a readback of C.O.'s examination prior to ruling and was not left to rely solely on his memory of voir dire.
Although the trial court did read the single witness jury instruction during voir dire, it did so prior to the question at issue in this case and in response to defendant's objection to a question. Nothing C.O. did or said prompted the reading of the instruction, and C.O. had in fact already answered the question correctly when the trial court read the jury instruction. The court then asked C.O. if she would be able to follow the instruction it read and she said yes. Although the prosecutor had already asked the single witness question, to which C.O. responded correctly, and the trial court had asked C.O. if she could follow the instruction, to which she responded she could, the prosecutor asked the question again. Defendant objected on the ground that the prosecutor had misstated the law. This prompted the court to read another jury instruction. After several more questions, the prosecutor returned to the single witness testimony issue and asked the lengthy, somewhat convoluted question on which C.O. tripped.
Regarding the court's subsequent statement made in response to defense counsel's argument, after C.O. answered that she would require more, the trial court asked if she got "lost in the length of the question." Thus, the record not only supports defendant's argument that C.O. did not need rehabilitated and was confused by the prosecutor's question, it reflects that the trial court shared that view contemporaneous with C.O.'s voir dire response. As such, this later statement, too, is unsubstantiated if not contracted by the record.
On appeal, we must "exercise great restraint in reviewing a prosecutor's explanations and typically afford deference to a trial court's Batson/Wheeler rulings ...." (Gutierrez, supra, 2 Cal.5th at p. 1172; accord, Silva, supra, 25 Cal.4th at pp. 385-386.) I am sensitive to the burden imposed on the trial court. However, we are bound by the law and the California Supreme Court has expressly acknowledged the challenges faced by trial courts in this context, explaining, "[W]e can only perform a meaningful review when the record contains evidence of solid value. Providing an adequate record may prove onerous, particularly when jury selection extends over several days and involves a significant number of potential jurors. It can be difficult to keep all the panelists and their responses straight. Nevertheless, the obligation to avoid discrimination in jury selection is a pivotal one. It is the duty of courts and counsel to ensure the record is both accurate and adequately developed." (Gutierrez, supra, at p. 1172; accord, People v. Winbush (2017) 2 Cal.5th 402, 434; Lenix, supra, 44 Cal.4th at p. 621; Silva, supra, at pp. 385-386.)
At the third step, "the Batson/Wheeler inquiry focuses on the subjective genuineness of the reason, not the objective reasonableness." (Gutierrez, supra, 2 Cal.5th at p. 1158; accord, Lenix, supra, 44 Cal.4th at p. 613.) In this case, it is my view that with respect to C.O., "the record does not permit us to find that the trial court met its obligations to make '"a sincere and reasoned attempt to evaluate the prosecutor's explanation"' and 'clearly express its findings.'" (Gutierrez, supra, at p. 1175.) For this reason, I believe we are constrained to reverse the trial court.
To be clear, nothing in the four corners of this record affirmatively reveals any discriminatory animus on the part of the prosecutor, but that is not the test under Batson/Wheeler. As the United States Supreme Court has stated, "'[f]or more than a century, this Court consistently and repeatedly has reaffirmed that racial discrimination by the State in jury selection offends the Equal Protection Clause.' [Citations.] [¶] The rub has been the practical difficulty of ferreting out discrimination in selections discretionary by nature, and choices subject to myriad legitimate influences, whatever the race of the individuals on the panel from which jurors are selected." (Miller-El, supra, 545 U.S. at p. 238.) "The Batson framework is designed to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process." (Johnson v. California (2005) 545 U.S. 162, 172.) "Some stated reasons are false, and although some false reasons are shown up within the four corners of a given case, sometimes a court may not be sure unless it looks beyond the case at hand. Hence Batson's explanation that a defendant may rely on 'all relevant circumstances' to raise an inference of purposeful discrimination." (Miller-El, supra, at p. 240.) Moreover, the constitutional concerns underpinning Batson and its progeny sweep more broadly than the defendant's individual right to trial by an impartial jury; racial discrimination harms racial minorities more generally and undermines the public's confidence in adjudication. (Miller-El, supra, at pp. 237-238.) I cannot conclude the trial court discharged its duty to meaningfully review the subjective genuineness of the prosecutor's stated reason for excusing C.O. where the record fails to support a concern that C.O. was unable or unwilling to follow the law—the only basis arguably articulated by the prosecutor—and the trial court's findings on the matter are contradicted by the record.
/s/_________
MEEHAN, J.