Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F06490
ROBIE, J.
Defendants Kolin Taze Sullivan and Michael St. Andrew, both white, were charged with various crimes resulting from a group beating they perpetrated against T. W., A. H., and J. Y., all of whom were black. After a jury trial, defendant St. Andrew was found guilty of assault with a deadly weapon on T. W. and J. Y., misdemeanor assault on A. H. (a lesser included offense of assault with a deadly weapon or by means of force likely to produce great bodily injury), and misdemeanor battery on T. W. (a lesser included offense of battery with serious bodily injury). Defendant Sullivan was found guilty of assault with a deadly weapon on T. W., J. Y, and A. H., and misdemeanor battery on T. W. (a lesser included offense of battery with serious bodily injury). As to both defendants, the jury found not true hate crime allegations. Both defendants were sentenced to state prison for four years.
A third defendant was also charged and convicted, but he has not filed an appeal.
Defendants appeal, raising together or individually the following six arguments: (1) the trial court erred in denying their Wheeler/Batson motion; (2) the trial court erred in granting the People’s Wheeler/Batson motion; (3) the trial court erred in its instruction to the jury that was based on a modified version of CALCRIM No. 403; (4) the prosecutor and trial court erred in their use of defendant St. Andrew’s verdict forms; (5) the trial court erred in failing to stay defendant Sullivan’s sentence for misdemeanor battery; and (6) the trial court erred in its award of pretrial credits.
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson).
Agreeing with defendants’ sentencing arguments only, we will order defendant Sullivan’s misdemeanor battery sentence stayed and his $100 restitution fine attached to that count stricken and defendant St. Andrew’s presentence credits modified. We therefore will affirm the judgments as modified.
FACTUAL AND PROCEDURAL BACKGROUND
We provide the following background facts with no help from the People. Although the People’s respondent’s brief contains a “statement of facts,” those “facts” are taken from the probation report, which does not contain the facts at trial but, rather, the facts from a police officer’s report.
On a Friday night in July 2005, A. H. was driving a red SUV on Broadway in Sacramento with her childhood friend J. Y. While they were talking, A. H. noticed that a truck with a boat in tow pulled up along side the SUV. The truck had about five white men inside playing loud music. When A. H. and J. Y. turned to look at the truck, one of the men in the truck yelled, “‘what the fuck you guys looking at.’”
As they all came to a stop sign, words were exchanged between J. Y. and the males in the truck. When they continued driving, some of the males in the truck yelled, “fucking niggers, pull over. What. What. What. Let’s get ‘em. Let’s get ‘em.” J. Y. “cuss[ed]” back at them.
A. H. and J. Y. noticed they were running out of gasoline, so they pulled up to a pump at a gas station. The males in the truck followed and parked in an adjoining lot. Witnessing these events was T. W., a black man who was walking home on Broadway.
J. Y. got out of the SUV, and defendant St. Andrew and the other white males got out of their truck, scaled a wall between the parking lot and gas station, and yelled “‘fucking monkeys’” and “nigger.” J. Y. responded, “‘well come on over here white boy. Come on over here if you want some of this.’” Defendant St. Andrew told one of the white males, “‘let’s get ‘em.’”
A. H. ran into the gas station market and “told them to call the police.” While inside, she saw two of the white males surround J. Y. J. Y. was able to retreat to the market, but he came back out when he saw one of the white males hitting his SUV with a boat oar.
A fight ensued between J. Y. and three of the white males. T. W. tried to diffuse the situation, screaming for them to “[s]top,” and grabbed the wrist of the tallest white male there. Defendant St. Andrew and another white male punched and beat J. Y. Defendant Sullivan swung the boat oar at T. W.
Deciding that J. Y. needed help, A. H. came out of the gas station market and punched defendant St. Andrew, knocking him down. The tallest white male tried to swing at J. Y., so T. W. grabbed the white male. The white male then head-butted T. W. in the stomach, knocking him down. A. H. went to help T. W. and knocked the white male off T. W. Defendant St. Andrew and two of the other white males kicked, stomped, and punched T. W. while defendant Sullivan hit T. W. and A. H. with the oar, causing it to break.
Eventually, T. W. moved away from the fight. J. Y. and A. H. went back inside the gas station market, with J. Y. returning to the fight scene with a fire extinguisher.
At about this time, police arrived. They shouted at the participants to “get down.” Defendant St. Andrew complied, but defendant Sullivan ran and was arrested a short distance away.
DISCUSSION
I
The Trial Court Did Not Err In Denying
Defendants’ Wheeler/Batson Motion
Defendants contend the trial court erred in denying their motion challenging the prosecutor’s excusal of the following prospective white male jurors: T. H., M. G., J. J., and M. S. In addition, defendant St. Andrew challenges the prosecutor’s excusal of A. L., also a white male. For the reasons that follow, we reject defendants’ claims.
A
Facts From Jury Selection
The prosecutor used her first peremptory challenge to excuse T. H., her second to excuse M. G., her third to excuse J. J., her sixth to excuse A. L., and her tenth to excuse M. S. During the prosecutor’s third peremptory challenge, defendants made a Wheeler/Batson motion, contending the prosecutor’s removal of T. H., M. G., and J. J. was motivated by race and gender bias. The court found defendants’ motion challenging the prosecutor’s excusal of T. H. and M. G. “candidly frivolous,” but found a prima facie case as to J. J. and asked the prosecutor to explain.
Although defendants cited only Wheeler in making their motion in the trial court, their challenge based on Wheeler preserved this issue under Batson as well. (People v. Williams (2006) 40 Cal.4th 287, 310, fn. 6.)
In response, the prosecutor stated that she had excused J. J. based on his voir dire answers that intimated he wanted all witnesses to be present, his vocation as a registered nurse that might have desensitized him to the injuries sustained by the victims in this case, and his demeanor that suggested “he might be struggling with legal concepts that have been mentioned.”
The trial court then ruled as follows:
“The challenge to the three individuals are the three people who are male whites. And let me take them one in turn. [M. G.], of course, was the person whose neighbor was [a] CHP officer who was [charged with] murder[]. He expressed frustration with the District Attorney’s Office. He was particular[] [about] th[e] [Sacramento County] District Attorney.
“He was declared an adverse witness in the context of his examination. His demeanor exhibited frustration even anger at that point to today’s date and that’s why I thought the motion as it extended to him as an individual was frivolous.
“Similarly, [T. H.] indicated he had a fundamental objection to laws that were--that made certain conduct subject to hate crimes. Words to the effect he couldn’t understand why that was the law and this was obviously a sincere conviction that was raised not in response to the question, but his own--his own--at his own request and it’s clearly a properly excusable juror that could have been a motion for cause, which I would have denied but would have been close given the demeanor he gave while answering the question.
“[J. J.], has from the Court’s perspective two problems. I believe, the explanation as given by the District Attorney is correct. The District Attorney’s [sic] advised the Court, indeed, advised defense counsel that two of the alleged victims in this case are not under subpoena. She does not know where they are. And she does not know if she’ll be able to produce them during trial.
“[J. J.]’s initial response is he would have a problem[,] words to the effect[,] that if all the witnesses were not here, it was discussed at some length with follow-up questions, but it was obviously a bell ringer in the Court’s mind when that answer was given and I went back and reviewed it on the record just a moment ago to ensure that my recollection was correct.
“I would note he also suffers the same defect that [another prospective juror] suffered with regard to having seen some prior news coverage and with the--always the attendant risk of having bubble and more detail about the incident, or maybe even false bubble-up in terms of remembering something in the news report that did not pertain to this case in connecting it to this case.
“It is the same reasons I articulated with regard to [the other prospective juror]. The explanation as a whole is appropriate. The Wheeler motion is denied.”
Later, when the prosecutor excused A. L., defendants again made a Wheeler/Batson motion based on the same concerns. After the court “made a prima facie determination,” the prosecutor explained that she had excused A. L. because his wife was a victim of an unsolved robbery, and he had served on a jury that had not reached a verdict. The court postponed ruling on the motion until it had reviewed the record. After a recess, the court made the following ruling:
“All right. The District Attorney has effected a total of six challenges, as [defense counsel] properly points out. Five of them have been Caucasian males. [T. H.] and [M. G.], uh, the challenges were obviously well-taken. There was clear basis for that.
“The court ruled on [J. J.] [Another prospective juror] was of course the attorney. There was no motion, Wheeler motion made but it obviously would be denied.
“Attorney--trial attorneys don’t like attorneys on their juries and, uh, I’ve had I think maybe one or two jurors--juries that have had trial lawyers on it the whole time I’ve been on the bench.
“Uh, [another prospective juror] is obviously a woman, and then we go to [A. L.] And I believe there is a race neutral explanation here, and it really centers on and that’s why I wanted to take, uh, the time to make sure, uh, I was correct because I wasn’t certain on this issue of whether or not the jury hung in the prior case that he was on, this domestic battery case in 1997.
“The truth is we don’t know for sure, but that’s the dominant inference from the answer given on the jury questionnaire, that they did not reach a verdict.
“And the Court did not ask the standard question that I ask in regards [sic] to that issue about jury service to the whole group of ten or so new prospective jurors that [A. L.] was a part of. I just missed it. That happens on occasion.
“And obviously, we have the questionnaires to cover for that potential error as well as the attorneys having the right to ask follow-up questions.
“Uh, attorneys, particularly district attorneys have a strong aversion to having jurors that have been on a jury that have . . . not been able to reach a verdict before for reasons that are obvious, either a bad experience or an inability to--possible inability to make a difficult decision.
“That is a race neutral explanation. It’s credible to the Court. I would indicate that the sequence of events with regard to my absence of memory, and [the prosecutor]’s reference to her notes on that point in the manner in which she or, uh, she did so, uh, persuade me that--that that was a genuine basis for the challenge.
“There was an alternative basis, but I’m not going to address that because one race neutral explanation is sufficient.
“The Wheeler motion is denied.”
Later, when the prosecutor excused M. S., defendants again made a Wheeler/Batson motion based on the same concerns. After the court “f[oun]d a prima facie case here,” the prosecutor explained that she had excused M. S. because he was a young male who lived with his mother, he was “going nowhere,” and he had a “close friend” who was “picked up” for possession of drugs for sale. In response, the court made the following ruling:
“All right. I’m going to deny the Wheeler motion here.
“First the numbers cited are somewhat inaccurate, so I should clarify them. Up to this point the District Attorney has exercised nine challenges.
“There were five white males, there’s one Caucasian female, . . . one Asian male. . . . One other Caucasian female, . . . and one additional Caucasian female. . . .
“Then of course we come to this gentleman, [M. S.]
“Pattern obviously is a factor. It’s discussed in a number of cases. But at its core, you have to look whether or not there is a genuine race neutral explanation.
“And we have here in [M. S.] a person who came across as mature--immature--excuse me--and somewhat flippant and lacked luster with regards [sic] to his, uh, future.
“I don’t know his exact age. I’m going to estimate it at twenty-three, he’s that range, and he’s still living at home.
“Uh, this is--uh, a race neutral explanation. This is the type of juror incidentally which frequently the defense challenges. But, uh, the issue is moot.
“The motion is denied.”
B
Law Regarding Wheeler/Batson
“A prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias--that is, bias against ‘members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds’--violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution,” and “also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution.” (People v. Avila (2006) 38 Cal.4th 491, 541.)
The United States Supreme Court reaffirmed the three-prong Batson test to be used by trial courts when motions are made challenging peremptory strikes: “First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.’” (Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 138].) The same three-prong test has been endorsed by our Supreme Court for proof of state constitutional claims. (People v. Bell (2007) 40 Cal.4th 582, 596.)
C
Prospective Jurors T. H. and M. G.
During voir dire, T. H. asked the court “to talk outside the presence of the prospective jurors . . . with regard to this hate crime allegation.” When the court granted his request, T. H. explained as follows: “I am just going to be blunt. I have an issue with the hate crime, that’s how my personal views on it. I don’t quite understand how something elevates t[he] crime to all of a sudden a hate crime.” When asked by the court whether his views were such that “it would be difficult or impossible for [him] to follow the law,” T. H. responded, “No, I think I could follow, but you know it is always in the back of your mind something that is just kind of there.” The prosecutor later excused T. H.
During voir dire, M. G. stated that he had “some bad experiences testifying and dealing with prosecution” in Sacramento County and that it “[t]ook awhile to get over it.” In a private voir dire ordered by the court, M. G. explained that when he was called to testify in a trial in which his neighbor, a retired CHP officer, was charged with murder, although M. G. “cooperated and gave them everything [he] knew,” he was “labeled as a hostile witness” by the prosecution “immediately within a minute of starting to talk.” M. G.’s neighbor was acquitted and “[i]t just gave [him] a bad taste for the prosecution, overzealous prosecutor comes to mind . . . .” When asked if he had “any lingering resentment toward the prosecution because of that or just that specific individual,” M. G. responded in part that he “still question[s] whether police and prosecutors are sometimes overzealous especially after that case.” When asked “would that affect your judgment in this case,” M. G. initially responded, “I would hope not. I don’t think it would, but like I said, I have got that lingering doubt.” He then promised the judge that he would do what the judge ordered him to do with regard to the law. The prosecutor excused M. G.
When defendants contended the prosecutor’s exclusion of T. H. and M. G. was motivated by race and gender bias, the court found defendants’ motion “candidly frivolous.” It later explained that because M. G. “expressed frustration with the Sacramento District Attorney’s Office” and “[h]is demeanor exhibited frustration even anger at that point to today’s date . . . that’s why I thought the motion as it extended to him as an individual was frivolous.” As to T. H., the court explained that “he had a fundamental objection to laws . . . that made certain conduct subject to hate crimes” and he therefore was “clearly a properly excusable juror [who] could have been a motion for cause, which I would have denied but would have been close given the demeanor he gave while answering the question.” Implied in these findings was a ruling that defendants failed to establish a prima facie case of Wheeler/Batson error as to both of these prospective jurors.
We conclude the trial court did not err in impliedly determining that a prima facie case had not been made as to both T. H and M. G. T. H. had an “issue” with the hate crime allegation, which was something that would “always [be] in the back of [his] mind.” And M. G. had a bad experience with the Sacramento County District Attorney’s Office which left him with a “lingering doubt” as to whether “police and prosecutors are sometimes overzealous.” These statements “serve as neutral bases for the peremptory challenge.” (People v. Williams, supra, 40 Cal.4th at p. 311.)
Defendants’ main objection with the trial court’s ruling on T. H. and M. G., however, seems to be that the court failed “to require the prosecutor to provide her race neutral explanation for excusing these particular panel members.” As even defendant St. Andrew concedes, the California Supreme Court has “condone[d] the trial court’s and appellate court’s articulation of [their] own assessment of potential race neutral grounds for excusal in finding that a prima facie case for discrimination in challenging a juror had not been made. (See People v. Williams, supra, 40 Cal.4th, at [pp.] 310-313.)” Insofar as defendant St. Andrew thinks Williams was wrongly decided, the argument fails, as we are bound to follow the precedent of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
For this reason, we reject defendant Sullivan’s request for a “limited remand to elicit the prosecutor’s alleged reasons” for excusing T. H. and M. G.
D
Prospective Juror J. J.
J. J. was a registered nurse who worked for First Health, a “medical management company.” He “provide[d] medical case management on workers[’] compensation claims and utilization review.” Outside the presence of other jurors, J. J. told the court that he recalled seeing something about the case on television pertaining to “the assault with an oar.” When the court asked him were he to have a “bubble-up” about something he heard on the news, if he could “totally disregard that and make a decision based upon what [he] heard here and s[aw] in this courtroom,” J. J. replied, “Yes.”
Later, when one of the defense attorneys asked if any of the prospective jurors “would . . . have any problems voting . . . one way or another” if some of the witnesses involved in the incident would not testify, J. J. responded, “I might.” He further explained that he “would be more concerned why . . . that person [was] being excluded.” When asked by defense counsel, “If you were told you couldn’t consider that, is that something you would be able to do,” J. J. replied, “I wouldn’t have a problem. My only concern, why would one individual who was a witness to an event be excluded from live testimony.”
The prosecutor later excused J. J. When defendants contended the prosecutor’s exclusion of J. J. was motivated by race and gender bias, the court found “a prima facie determination” and invited the prosecutor to respond.
The prosecutor explained that “one of the first things [J. J.] said that caused [the prosecutor] some concern” was that he “perhaps need[ed] all parties to be present,” which “caused [her] concern, because there is a good chance that two of the victims are unfound or unavailable for this trial” and she did not “want him plugging in his opinion or assuming anything that a defense lawyer says is correct as to those parties.” The prosecutor further expressed concern that J. J. was a “registered nurse and [she] had concerns that as a male registered nurse, he might be somewhat desensitized to the level of soft tissue injury and dental injuries that were incurred by this victim.” “In addition to that, the few times that [she] ha[d] looked up at him, . . . the impression [she] ha[d] received . . . is that he might be struggling with legal concepts that have been mentioned.”
The trial court found that “the explanation as given by the District Attorney is correct. The District Attorney’s [sic] advised the Court, indeed, advised defense counsel that two of the alleged victims in this case are not under subpoena. She does not know where they are. And she does not know if she’ll be able to produce them during trial. [¶] [J. J.’s] initial response is he would have a problem[,] words to the effect[,] that if all the witnesses were not here, it was discussed at some length with follow-up questions, but it was obviously a bell ringer in the Court’s mind when that answer was given and I went back and reviewed it on the record just a moment ago to ensure that my recollection was correct.”
The court added that J. J. also was problematic because he had “seen some prior news coverage” and there was the “risk of having bubble and more detail about the incident, or maybe even false bubble-up in terms of remembering something in the news report that did not pertain to this case in connecting it to this case.”
On appeal, defendants take issue with the prosecutor’s explanation that she excused J. J. in part because he was a nurse, noting that the prosecutor did not challenge a female prospective juror who was also a nurse, and the court’s supplying a reason not offered by the prosecutor, i.e., the news coverage that J. J. had seen on the incident. Contrary to defendants’ position, we must decide whether the prosecutor offered one “‘genuine, reasonably specific, race- or group-neutral explanation related to the particular case being tried’” (People v. Ervin (2000) 22 Cal.4th 48, 74-75) and whether there is “substantial evidence . . . to support the prosecutor’s assertion of a nondiscriminatory purpose . . . .” (Id. at p. 75).
Here, one of the reasons the prosecutor offered was that J. J. “perhaps need[ed] all parties to be present,” which “caused [her] concern, because there is a good chance that two of the victims are unfound or unavailable for this trial” and she did not “want him plugging in his opinion or assuming anything that a defense lawyer says is correct as to those parties.” (Italics added.) Indeed, J. J. stated in voir dire that he “might” have a problem “voting . . . one way or another” if some of the witnesses involved in the incident would not testify and explained he “would be more concerned why . . . that person [was] being excluded.” Although defendants parse the meaning of J. J.’s response and dispute the sufficiency of the prosecutor’s explanation on this point, if the trial court makes a “‘“sincere and reasoned effort”’” to evaluate the nondiscriminatory justification the prosecutor offers, the court’s conclusion is entitled to deference on appeal if supported by substantial evidence. (People v. Arias (1996) 13 Cal.4th 92, 136.) Our review of the record convinces us the court made such an effort and that it was supported by the substantial evidence we have just recounted. (People v. Ervin, supra, 22 Cal.4th at p. 76.)
E
Prospective Juror A. L.
In the voir dire questionnaire, A. L. stated that he had served on a jury in 1997 in a “domestic battery” case that had not “end[ed] in a verdict.” On the same questionnaire, A. L. also stated that his wife was “robbed at gunpoint.” During voir dire, A. L. explained that his wife was the victim of an unsolved robbery that occurred when she was working for Cost Plus, the culprit was never caught, but he did not have any frustration toward the “District Attorney, defense, [or] police for not catching the robber[].” A. L. was asked no questions regarding his prior jury service.
The prosecutor later excused A. L. When defendants contended the prosecutor’s excusal of A. L. was motivated by race and gender bias, the court “ma[d]e a prima facie determination.” In response, the prosecutor explained that she had excused A. L. because his wife was a victim of an unsolved robbery, and he had served on a jury that had not reached a verdict.
The court found the prosecutor’s explanation for excusing A. L. based on his prior record of jury service “a race neutral explanation” that was “credible” given the prosecutor’s “reference to her notes on that point.” The court did not address the “alternative basis” because it found that “one race neutral explanation is sufficient.”
On appeal, defendant St. Andrew questions whether the prosecutor’s “real reason” for excusing A. L. was his prior jury service, noting that she passed on excusing him even after she realized that he may have been part of a jury that did not reach a verdict. St. Andrew posits that if A. L.’s “prior jury service had actually been as important to the prosecutor as she claimed, she could have made further inquiries . . . .”
Contrary to defendant St. Andrew’s speculation, we will not infer an improper motivation behind the prosecutor’s excusal of A. L. simply because she did not follow up on A. L.’s written response of “no” to the inquiry in the jury voir dire questionnaire of whether the prior case in which he served as a juror “end[ed] in a verdict.” Rather, as the trial court noted, the “dominant inference from the answer given on the jury questionnaire, [was] that they did not reach a verdict.” The court found the prosecutor’s explanation for excusing A. L. credible given her reference to her notes. This review of the record convinces us the trial court made a “‘“sincere and reasoned effort”’” to evaluate the nondiscriminatory justification the prosecutor offered and its conclusion that the prosecutor’s reason was race-neutral and genuine is supported by the substantial evidence in the record that we have recounted.
F
Prospective Juror M. S.
In the voir dire questionnaire, M. S. stated that he worked in a grocer’s warehouse and that his “close friend” had been arrested for “intent to sell drugs.” During questioning by the court, M. S. clarified that he had yet to begin his job in the warehouse because his start date had been delayed by his jury service, and he was “[n]ot too sure” about his long-term career plans but would like to go back to school, noting that he had “studied film” at Cosumnes River College.
When M. S. was called into the box, the prosecutor excused M. S. and the defense made a Wheeler/Batson motion. The court “f[oun]d a prima facie case” and invited the prosecutor to respond. The prosecutor explained as follows: “quite candidly, he’s going nowhere and that bothers me. He’s young, we are dealing with young males. I have two male defense counsel. [¶] I have a young male who has no plans to go back to school. He lives at home with his mom. He had a close friend, even though he says he has not see him, five years ago he’s picked up for more than just possession of drugs. Looks like possession . . . for purposes of sale and I am just leery to leave him on this jury.”
The court found that the prosecutor offered “a genuine race neutral explanation” and denied the Wheeler/Batson motion. The court stated that M. S. is “a person who came across as mature--immature--excuse me--and somewhat flippant and lacked luster with regards [sic] to his, uh, future. [¶] I don’t know his exact age. I’m going to estimate it at twenty-three, he’s that range, and he’s still living at home. [¶] Uh, this is--uh, a race neutral explanation.”
On appeal, defendants speculate that the prosecutor’s explanations were pretextual. On the contrary, we find that the court’s conclusion that the prosecutor’s reason offered “a genuine race neutral explanation” for excusing M. S. is supported by substantial evidence: M. S. was still living at home with his mother, was “[n]ot too sure” about his long-term career plans, and had a self-described “close friend” who had been arrested for possession of drugs for sale.
G
Conclusion
In sum, we find no error under either the state or federal Constitution in the prosecution’s exercise of its peremptory challenges on prospective jurors T. H., M. G., J. J., A. L., and M. S.
II
The Trial Court Did Not Err In Granting
The Prosecutor’s Wheeler/Batson Motion
Defendant St. Andrew contends the trial court violated his state and federal constitutional rights by granting the prosecutor’s Wheeler/Batson motion that challenged the defense’s attempt to excuse Juror No. 4, a black female. As will be explained, we reject defendant St. Andrew’s contention.
A
Facts From Jury Selection
The defense exercised a peremptory challenge on Juror No. 4, and the prosecutor made a Wheeler/Batson motion. The court found “prima facie evidence . . . to support the Wheeler motion” and invited the defense to respond.
The defense, in essence, cited three concerns they had with Juror No. 4: (1) she would be “submissive to authority” and follow law enforcement; (2) she lacked “a lot of life experience”; and (3) she had a “giggl[y]” demeanor and was not paying attention.
The prosecutor was “kind of shocked at what [she was] hearing,” noting that she had not observed Juror No. 4 laughing and believed that everything Juror No. 4 had said sounded reasonable.
The court then reviewed Juror No. 4’s voir dire testimony and made the following ruling:
“The Court is going to make the finding that the rationale given by the defense attorneys is inadequate.
“The Court’s conclusion is that this is a racially based challenge. This is a sensitive issue for the attorneys involved and I apologize, but I am going to call it straight.
“This is a case which is a racial case because of the character of the hate crime allegations and the rationale as articulated to this court strikes me as awkwardly thin.
“This lady’s background, experience by way of employment and age is comparable to any other person on the jury, prospective jurors. She has had prior involvement in a criminal trial. She’s had military service. She’s had lengthy employment in the government sector and in the private business.
“There is just nothing here to show that she lacks background experience. This deference to authority comes out of her use of the word ‘sir’ once or maybe twice in regards [sic] to questions that I or the attorneys asked her.
“It was really the Court’s question that made something of it and connecting it with her military service and she commented that was a part of it but that was the way she was raised and that’s consistent with her demeanor being respectful and courteous in the context of her answers.
“The Court is attentive to the jury. I did not notice any unusual giggling. The Court style in doing voir dire is to try and keep it somewhat light consistent with the boundaries of engaging in something which is obviously serious, because I believe that promotes more candid, more flowing answers than a dryer or more rigid format.
“Counsel did not relate it to a specific point in time. Moreover, this Court made no such observation that it was and would have if it had been at all unique. There have been other occasions during the course of this jury selection when one or more of the prospective jurors would find something I’d say or attorneys said or another prospective juror somewhat humorous in the context of their own life of reference, but that doesn’t, that doesn’t constitute a basis for challenge.
“I am going to grant therefore the Wheeler motion.”
B
There Was No Error In Granting
The Prosecutor’s Wheeler/Batson Motion
“[D]efense counsel, like prosecutors, are precluded from peremptorily excusing prospective jurors on racial, ethnic or gender grounds.” (People v. Willis (2002) 27 Cal.4th 811, 813.) “The proper function on review” is “to determine whether the trial court’s conclusion”--that the defense’s subjective race-neutral reasons for exercising the peremptory challenge at issue here were sincere, and that the prosecution sustained its burden of showing “‘from all the circumstances of the case’ [citation] a strong likelihood that the peremptory challenge[] in question w[as] exercised on improper grounds of group bias--is supported by the record when considered under the applicable deferential standard of review.” (People v. Reynoso (2003) 31 Cal.4th 903, 924.)
Employing this deferential standard of review, we conclude the trial court’s decision to grant the Wheeler/Batson motion as to Juror No. 4 is supported by the record, when examining the three reasons the defense gave for excusing Juror No. 4.
With respect to the defense’s first reason--Juror No. 4 would be “submissive to authority” and follow law enforcement--the court found the explanation contradicted the record. While two of the defense attorneys explained that Juror No. 4 responded to the court by stating “yes, sir and no,” the court noted that Juror No. 4 had used the word “ ‘sir’” only once or twice. And when another defense attorney expressed apprehension that Juror No. 4 had served in the military, there was some concern about the legitimacy of that reason, as when the court asked defense counsel if he knew “how long ago that that was,” defense counsel replied, “That I do not recall.”
The record confirms that when the court conducted voir dire of Juror No. 4, she answered using the term “sir” to only two of the 14 questions posed to her by the court.
With respect to the defense’s second reason--Juror No. 4 lacked “a lot of life experience”--this again was contradicted by the record. The court stated that Juror No. 4’s “background, experience by way of employment and age is comparable to any other person on the jury, prospective jurors. She has had prior involvement in a criminal trial. She’s had military service. She’s had lengthy employment in the government sector and in the private business.” The record confirms the trial court’s conclusions, as Juror No. 4’s work history included work for a “production controller” at Travis Air Force Base, a customer service representative at “Greyhound Licensing, Incorporated,” and service in the Army. In life away from work, Juror No. 4 spent time on her computer and tended to her garden and yard. She had also served as a juror in a 2001 drug case, and she had a brother who had been arrested for petty theft 30 or 35 years ago.
And with respect to the defense’s third reason--Juror No. 4 had a “giggl[y]” demeanor and was not paying attention--the court’s and the prosecutor’s observations were to the contrary. The prosecutor stated she had not heard Juror No. 4 laughing and the court similarly had not noticed “any unusual giggling.”
Given these findings by the trial court and the support in the record, we find no error under either the state or federal Constitution in the court’s granting of the prosecutor’s Wheeler/Batson motion as to Juror No. 4.
III
The Court Did Not Err In Instructing The Jury
With A Modified Version Of CALCRIM No. 403
The prosecutor proceeded partly on a theory that defendant St. Andrew was guilty of the charged crimes, which included aggravated battery and aggravated assault, if he aided and abetted either the offense of simple assault or the offense of disturbing the peace using offensive words (Pen. Code, § 415, subd. (3)) (the target crimes) and the charged crimes were the natural and probable consequence of one of the target crimes. To explain these legal theories, the trial court instructed with modified versions of CALCRIM Nos. 400, 401, and 403.
All further statutory references are to the Penal Code unless otherwise indicated.
In a three-pronged attack on the version of CALCRIM No. 403 given here, defendant St. Andrew contends: (1) the instruction failed to inform the jury that the defendant’s confederate must have committed the charged crime; (2) “the instruction eliminated the requirement that the defendant have actual knowledge that an injury was likely”; and (3) the instruction erroneously allowed the jury to use the crime of disturbing the peace by offensive words as the target crime under the natural and probable consequences theory. For the reasons that follow, we reject defendant St. Andrew’s challenge to the modified version of CALCRIM No. 403.
A
Instructions Given Regarding
The Natural And Probable Consequences Theory
The trial court instructed the jury pursuant to CALCRIM No. 403 as follows:
“To prove the defendant is guilty of the crimes charged in Counts One to Five [which included aggravated battery and aggravated assault] under the natural and probable consequences theory of culpability, the People must prove that [¶]
“1.) The defendant is guilty of an assault in violation of Penal Code section 240.
“2.) [D]uring the commission of the assault[,] the crimes charged in Counts One, Two, Three, Four, or Five were committed and [¶]
“3.) Under all of the circumstances a reasonable person in the defendant’s position would have known that the commission of the crimes charged in Counts One, Two, Three, [F]our or Five was a natural and probable consequence of the commission of the assault in violation of Penal Code Section 240.
“A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.
“If the crimes charged in Counts One, Two, Three, Four or Five were committed from a reason independent of the common plan to commit the assault in violation of Penal Code Section 240, then the commission of the crimes charged in Counts One, Two, Three, Four or Five were not a natural and probable consequence of the assault in violation of Penal Code Section 240.
“To decide whether the crimes charged in Counts One, Two, Three, Four or Five, were committed please refer to the separate instructions that I have given you on those crimes.
“The People are alleging that the defendant originally intended to aid and abet either the assault in violation of Penal Code Section 240 or disturbing the peace with offensive words in violation of Penal Code Section 415.
“The defendant is guilty of the crimes charged in Counts One, Two, Three, Four, or Five if you decide that the defendant aided and abetted one of those crimes and the crimes charged in Counts One, Two, Three, Four or Five were the natural or probable result of one of these crimes.
“However, you do not need to agree about which of these two crimes the defendant aided and abetted.”
B
The Jury Was Correctly Instructed That The Perpetrator
In An Aiding And Abetting Theory Of Liability
Must Have Committed The Charged Offense
Comparing CALJIC No. 3.02 to CALCRIM No. 403, defendant St. Andrew contends the CALCRIM instruction “fails to inform the jury that the defendant’s confederate must have committed the non target offense.” He points out that CALJIC No. 3.02 contained the “missing element” “‘[t]hat a co-principal in that crime [the target crime] committed the crime[s] of ____ [charged offense].’” Defendant St. Andrew’s argument fails because the “missing element” is now supplied by CALCRIM No. 401, which the trial court also read to the jury.
“It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. [Citations.] ‘[The] fact that the necessary elements of a jury charge are to be found in two instructions rather than in one instruction does not, in itself, make the charge prejudicial.’ [Citation.] ‘The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.’ [Citation.]” (People v. Burgener (1986) 41 Cal.3d 505, 538-539, overruled on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 753.)
As read by the trial court, CALCRIM No. 401 instructed that “[t]o prove that a defendant is guilty of a crime based on aiding and abetting that crime,” the People must prove (1) “[t]he perpetrator committed the crime”; (2) “[t]he defendant knew the perpetrator intended to commit the crime”; (3) “[b]efore or during the commission of the crime the defendant intended to aid and abet the perpetrator in committing the crime”; and (4) “[t]he defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime.” (Italics added.) As a whole, then, the instructions given by the court, which included CALCRIM No. 401, provided the element defendant claims is missing from CALCRIM No. 403.
C
A Defendant Charged With Liability Under The Natural And Probable Consequences Doctrine Does Not Have To Act With The Requisite Mental State Applicable To The Charged Crime
Defendant St. Andrew contends CALCRIM No. 403 as given was also defective in that it failed to inform the jury that at the time a defendant aided and abetted the target crime, he had to have “actual knowledge of facts that [the charged crime] would directly result from his conduct under the natural and probable consequences theory.” According to defendant St. Andrew, “the jury was [erroneously] permitted to convict [him] of assault with a deadly weapon under the natural and probable consequence theory of aiding and abetting without a finding of all of the elements required for a finding of guilt as to the assault with a deadly weapon, i.e., actual knowledge of facts that a battery would directly result from his conduct under the natural and probable consequences theory.” The legal premise on which defendant St. Andrew bases his argument is incorrect.
In support of this proposition, defendant St. Andrew cites People v. Riva (2003) 112 Cal.App.4th 981, and the case on which Riva relies, People v. Williams (2001) 26 Cal.4th 779. These cases are not helpful to defendant St. Andrew because neither involves aid or and abettor liability for the charged crime which is the natural and probable consequence of the target crime.
To convict defendant St. Andrew of aggravated battery and/or aggravated assault under the natural and probable consequences theory of liability, the jury had to find he intended to aid and abet the target offense of simple assault or disturbing the peace by using offensive words and that the charged crime was a natural and probable consequence of the target crime. Contrary to defendant St. Andrew’s position on appeal, he did not have to act with the requisite mental state concerning the charged crime which is the natural and probable consequence of the target crime. (People v. Woods (1992) 8 Cal.App.4th 1570, 1600.) For this reason, defendant St. Andrew’s challenge to CALCRIM No. 403 as modified fails.
Although not raised by defendant St. Andrew, it could be argued that the jury in this case could have found defendants guilty of the charged crimes using the target crime of simple assault only because the modified version of CALCRIM No. 403 given here required the jury to find defendant guilty of the target crime of simple assault (instead of either the simple assault or disturbing the peace using offensive words). This is because the trial court inserted into some of the blanks on the form jury instruction only the target offense of simple assault and not also the target offense of disturbing the peace. To the extent this was error, it actually benefited defendants, because it could be argued that the error removed the disturbing the peace theory of liability from the jury’s consideration.
D
The Target Crime Of Disturbing The Peace Using Offensive Words May Be Used For A Finding Of Guilt On Aggravated Assault
In his third and final attack on the jury instructions in this case, defendant St. Andrew contends that the version of CALCRIM No. 403 given here erroneously allowed the jury to use the crime of disturbing the peace using offensive words as the target crime for a conviction of aggravated assault under the natural and probable consequences theory. In defendant St. Andrew’s view, aggravated assault is not a foreseeable consequence of this target offense. Defendant St. Andrew’s argument is belied by the definition of the target crime and the record at trial.
The target crime of disturbing the peace using offensive words is defined as “us[ing] offensive words in a public place which are inherently likely to provoke an immediate violent reaction.” (§ 415, subd. (3), italics added.) Here, defendant St. Andrew and his cohorts, who were white, yelled the word “nigger,” which is one of the most, if not the most, inflammatory of racial slurs at a black man and a black woman and followed them to a gas station. While in the parking lot, they continued yelling “nigger” and “fucking monkeys” at A. H. and T. Y., and defendant St. Andrew told one of his cohorts “let’s get ‘em.” A fight then ensued in which J. Y., A. H., and T. W. were all hit, some of whom were attacked with an oar. “[I]n light of all of the circumstances surrounding the incident” (People v. Nguyen (1993) 21 Cal.App.4th 518, 531) and the definition of the target crime of disturbing the peace using offensive words, the court did not err in instructing the jury that this offense could be the target crime for aggravated assault.
IV
Verdict Forms
Defendant St. Andrew contends he was deprived of his due process right to a fair trial when the prosecutor singled him out by projecting an enlarged version of his verdict forms on a screen and the court mentioned his name 47 times while reading the verdict forms. As will be explained, we reject defendant St. Andrew’s contention.
A
Background Facts
Before the People’s rebuttal closing argument, the court told the parties that its “inclination” was to read one set of verdict forms to the jurors and tell them “there is . . . exactly the same set for each other defendant with the only change being the name of the defendant.” The prosecutor later asked to project the verdict forms on a visualizer when she discussed the verdict forms in her argument to the jury. Defendant St. Andrew objected to the court’s reading of his verdict forms and to the prosecutor’s use of the visualizer, arguing it had a cumulative prejudicial effect. The court overruled the objection but said it would give the defense attorneys a second opportunity to give a closing argument after the prosecutor’s rebuttal. Defendant St. Andrew later requested a “strong admonition” with regard the use of his verdict forms by the court and the prosecutor.
In the prosecutor’s rebuttal closing argument, she used the verdict forms as follows: “So, let me go right to the verdict forms. These are the forms you are going to see. I have them in an order here that is easier for me to address. [¶] And I’ll take just as an example, Mr. St. Andrew’s verdict forms. You will have three separate packet verdict forms for each defendant. They are all charged exactly the same way for every crime, every allegation, every finding.”
All three defense counsel turned down the opportunity given to them earlier by the court to present a second closing argument.
After reading the instructions to the jury, the court read the following admonition:
“At this time, I’m going to read the forms of verdict as prepared by the clerk.
“I’m going to read the forms of verdict for Mr. St. Andrew, because he is first in the order of proof. The verdict forms for the other two defendants are exactly the same as the verdict forms for Mr. St. Andrew. Except where his name appears, Mr. Sullivan’s name will appear in his verdict forms and where Mr. St. Andrew’s name appears, [a third codefendant]’s name will appear in his verdict forms.
“I am reading Mr. St. Andrew’s verdict forms simply because he’s first by the way in the order of proof and has been throughout trial. It has no other significance of any kind.
“When [the prosecutor] referred to Mr. St. Andrew’s verdict forms by projecting [them] on the screen, it had no significance whatsoever other than it was the verdict form prepared and he was the first in the order of proof. Okay. Do you understand that?
“Okay. The verdict forms for all the defendants will read as follows individually with their appropriate names. Count One, defendant St. Andrew. The name will be changed according to the defendant, of course . . . .”
B
Defendant St. Andrew Was Not Deprived
Of His Right To A Fair Trial
“The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment. [Citation.] The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” (Estelle v. Williams (1976) 425 U.S. 501, 503 [48 L.Ed.2d 126, 130].) Contrary to defendant St. Andrew’s claim, he was not deprived of his right to a fair trial by the prosecutor’s and court’s use of his verdict form during trial.
The verdict forms given to the jury were complete and balanced, including options for verdicts for “guilty” or “not guilty” for the charged crimes and special allegations, and the forms named each defendant separately on three separate sets of verdict forms. The court instructed the jury on the elements of the crimes and special allegations as they related to all three defendants, not just defendant St. Andrew. The verdict forms as read referred the jury to the information, which named all three defendants. All three defendants were given the opportunity to address the issue of the verdict forms in a second closing argument. And finally, the court instructed the jury that it had read defendant St. Andrew’s verdict forms and the prosecutor had used them in her closing argument “simply because [defendant St. Andrew was] first by the way in the order of proof” and these things had “no significance whatsoever other than it was the verdict form prepared and he was the first in the order of proof.” For these reasons, defendant St. Andrew’s challenge to the use of his verdict forms fails.
V
Defendant Sullivan’s Sentence For Misdemeanor Battery Must Be Stayed And The Corresponding Restitution Fine Must Be Stricken
The trial court sentenced defendant Sullivan to three years in prison for assault with a deadly weapon on T. W. and “90 days[’] actual time” for misdemeanor battery on T. W. Defendant Sullivan contends the trial court should have stayed the sentence on the misdemeanor battery. As the People concede, defendant Sullivan is correct. Defendant Sullivan is also correct that the corresponding $100 restitution fine the court imposed for the misdemeanor battery count must be stricken.
Section 654 prohibits multiple punishments where the defendant commits more than one act in violation of different statutes when the acts comprise an indivisible course of conduct having a single intent and objective. “If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19.)
Here, defendant Sullivan had but one intent and objective when attacking T. W.--to hit him. He accomplished this by swinging an oar toward T. W., striking T. W. with it, causing the oar to break. As even the trial court found, “[i]t’s not in dispute that [defendant] Sullivan takes the oar, wheels the oar and assaults people with the oar.” Given these facts, the trial court erred by not staying punishment on defendant Sullivan’s conviction for misdemeanor battery.
It follows, then, the trial court must also strike the $100 restitution fine it imposed for the misdemeanor battery. (See People v. Le (2006) 136 Cal.App.4th 925, 932-935.)
VI
Defendant St. Andrew’s Credits
Although defendant Sullivan raises similar issues with respect to his credits, in his reply brief Sullivan clarifies that these arguments are relevant only if we do not order a stay on the misdemeanor battery sentence. Having ordered the stay, we do not address defendant Sullivan’s arguments relating to his credits.
The court awarded credit to defendant St. Andrew as follows: “He is entitled to credit for time served less the 40 days to which the Court has sentenced him on Counts Two [misdemeanor assault on A. H.], and Four [misdemeanor battery on T. W.].” Pursuant to the court’s invitation, the clerk recited St. Andrew’s credit as follows: “211 actual days, minus 40 days for your County Jail sentence actual, for 171 days plus 84 days good-time work-time, for a total of 255 days[’] credit.”
On appeal, defendant St. Andrew contends “[t]he court erred in deducting the misdemeanor sentences without first determining the total number of section 4019 credits to which [he] was entitled.” We agree.
When imposing sentence, the trial court is required to credit a defendant who has been in custody prior to sentencing with all his time in custody. (§ 2900.5, subd. (a).) The trial court is also required to award appropriate conduct credit. (§ 4019.) Here, defendant Sullivan had spent 211 days in local custody prior to sentencing. The court was required to calculate defendant’s section 4019 credits based on these 211 days (instead of subtracting the 40-day misdemeanor sentence and then calculating the credits).
Presentence conduct credit for the time defendant spent in a local facility is calculated under section 4019 “‘by dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total added to the original number of days spent in custody. [Citation.]’ [Citation.]” (People v. Williams (2000) 79 Cal.App.4th 1157, 1176, fn. 14; see id. at pp. 1175-1176.) As stated, defendant spent 211 days in actual custody. That number, divided by four and rounded down to the nearest whole number, equals 52; 52 multiplied by two equals 104. Thus, before taking into account the misdemeanor sentence, defendant St. Andrew’s presence credits were 211 actual days plus 104 conduct days, for a total of 315 days. The 40-day sentence on the two misdemeanors then should have been subtracted from the 315-day total, leaving 275 days of credit on his current sentence. The abstract of judgment must be amended to reflect these numbers.
DISPOSITION
The judgment as to defendant St. Andrew is modified to reflect that he is entitled to 211 days of actual credit plus 104 days of conduct credit for a total of 315 days of presentence credit. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment to reflect this change to defendant St. Andrew’s presentence credit and to forward a copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation.
The judgment as to defendant Sullivan is modified to reflect a stay on the misdemeanor battery conviction (count 4) and a deletion of the restitution fine of $100 for misdemeanor battery. As modified the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment to reflect these changes to defendant Sullivan’s sentence and to forward a copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation.
We concur: DAVIS, Acting P.J., BUTZ, J.