Filed 5/10/18 P. v. Deanda CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

FELIX PEREZ DEANDA,

Defendant and Appellant.

F072163

(Super. Ct. No. F11901686)


OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Hilary A. Chittick, Judge.
Audrey R. Chavez, 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, Catherine Chatman and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

Felix Perez Deanda (defendant) stands convicted, following a jury trial, of sexual intercourse with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a); counts 3 & 4) and oral copulation with a child 10 years of age or younger (id., subd. (b); counts 5 & 6). He was sentenced to 80 years to life in prison, and ordered to pay various fines. On appeal, he contends reversal is required because the trial court erroneously denied his Batson-Wheeler motion. We disagree and affirm.
FACTS
In light of the sole issue on appeal, we dispense with a detailed statement of facts concerning the charged offenses. Instead, we adopt, with minor alterations, the Attorney General’s summary, which we have verified is accurate.
“Between January 27, 2009 and December 2, 2010, siblings [B.], [T.], [S.], [M.], and [A.] were placed in foster care with [defendant] and his wife. At that time, [B.] was six years old and [T.] was five years old.
“During the time th[at B.] lived with [defendant], he molested her multiple times. According to [B., defendant] would unzip his pants and put his ‘private part’ in her mouth. That occurred ‘[m]aybe 16’ times. On two occasions, [defendant] took [B.] into the bathroom and ‘put his private part in [her] private part.’ On those occasions, [B.] indicated that ‘[w]hite stuff would come out.’
“[Defendant] also molested [T.] while she lived with him. [Defendant] entered the bathroom while [T.] was already inside, took off his clothes and ‘started putting his private part in’ [T.]’s ‘private part.’ [Defendant] did this to [T.] more than one time with her best guess being ten times. Some of the assaults occurred in [T.]’s bedroom or [defendant]’s bedroom. [Defendant] also put his ‘private part’ in [T.]’s mouth. This occurred five times.”
DISCUSSION
Defendant, who is Hispanic, challenges the trial court’s denial of his Batson-Wheeler motion, which was predicated on the prosecutor’s peremptory excusals of prospective jurors who were Hispanic women. Hispanics are a cognizable group for purposes of Batson-Wheeler analysis (People v. Trevino (1985) 39 Cal.3d 667, 686, disapproved on another ground in People v. Johnson (1989) 47 Cal.3d 1194, 1221), as are women (People v. Panah (2005) 35 Cal.4th 395, 438). The California Supreme Court has assumed Hispanic-surnamed women constitute a cognizable group. (People v. Garceau (1993) 6 Cal.4th 140, 171, overruled on another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117-118; see People v. Clair (1992) 2 Cal.4th 629, 652 [African-American women are cognizable subgroup].)
“ ‘ “The prosecution’s use of peremptory challenges to remove prospective jurors based on group bias, such as race or ethnicity, violates a defendant’s right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution and his right to equal protection under the Fourteenth Amendment to the United States Constitution.” ’ [Citations.]” (People v. Banks (2014) 59 Cal.4th 1113, 1145, overruled on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.) “ ‘There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination.’ [Citation.]” (People v. Parker (2017) 2 Cal.5th 1184, 1211.)
The Batson-Wheeler inquiry consists of three now-familiar, distinct steps. “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.’ [Citation.]” (Johnson, supra, 545 U.S. at p. 168; accord, e.g., People v. Sánchez (2016) 63 Cal.4th 411, 433-434.)
With these principles in mind, we turn to the facts of this case.
Voir Dire, The Motion, and The Trial Court’s Ruling
G.T. was one of the first 18 prospective jurors called to the box. In response to the questions asked of all prospective jurors, G.T. stated she had lived in Fresno County nearly her entire life. She had a two-year degree in business administration and had worked for the past 20 years as a paralegal and office manager for a civil litigation law firm, although she was now semiretired. She had four children, 13 grandchildren, and two great grandchildren. Of the grandchildren, roughly six were under the age of 10. All but one of those six were girls. Her former son-in-law had been accused of child molestation in Fresno County about 20 years earlier. The matter ended up going to court, but G.T. did not attend any of the hearings or know anything about the case, as it happened prior to her daughter getting together with him. G.T. did not believe anything that occurred with her former son-in-law, who was no longer part of her family, would affect her ability to be fair.
A.D. was also one of the first 18 prospective jurors called to the box. She was born and raised in Fresno, and was a high school graduate with some college. She was not married and had no children. Under questioning by defense counsel, A.D. stated she did not feel she would be fair, because she did not feel “personally knowledgeable to understand all of this,” as there was a lot she did not understand when “you guys” were talking. She acknowledged the charges made her uncomfortable, but felt she “[p]robably” could “do it[.]” When the prosecutor asked if she thought she could use her common sense and decide what happened, she answered affirmatively.
Several prospective jurors were excused, apparently for cause, following an unreported sidebar discussion. E.V. was among the prospective jurors replacing them in the box.
E.V. stated she had lived in Fresno most of her life. She was currently attending Fresno City College and working. She lived with her parents, had never been married, and did not have children. Under questioning by the court, she stated that her background was in Christianity, and she grew up believing, and continued to believe, what other prospective jurors previously mentioned about how they could not judge other people. She also stated that the more she heard and the more she thought about it, she thought there must be some truth to the allegations, but at the same time, she was not sure whether the “evidence” that had been brought up was true or not. She was trying to keep an open mind. She agreed with the court that she was sitting in a jury box, not a pew, and it was her responsibility as a person in this country to listen to the evidence and decide the case. She felt she could do that.
Under questioning by defense counsel, E.V. said part of her wanted to forget defendant had been charged, and just listen to the facts and decide later whether he was guilty. The other part asked why he was being accused of something and why it had gone as far as it had if defendant was not guilty. She agreed it would be in the back of her mind, throughout trial, that there must be some truth to the allegations if defendant was there. Under questioning by the prosecutor, she stated that decisions needed to be based on the facts that were presented, and she felt she could do that. She had experience as a counselor for a church camp, during which she spent a week with eight-year-old girls. She could go through the process of listening to a child and figuring out what the child was saying. Asked if she felt there might be an element of sympathy she felt for family members supporting defendant, or for defendant because he was elderly, E.V. responded that she did not feel she should invest any emotion into her decision. Jurors were trying to figure out if the allegations were true, not whether the family was affected by it.
After excusals for cause, the prosecutor exercised his first peremptory challenge against a non-Hispanic woman. A.L. was one of the next group of prospective jurors called to the box. She had lived in Reedley for the past 10 years and was a high school graduate. She worked at a retirement home.
Under questioning by defense counsel, A.L. said she had no issue with the district attorney having to prove defendant guilty beyond a reasonable doubt. She had known someone accused of something that person did not do, but was not familiar with anyone accused of a crime who did not commit the crime. She was aware it happened, however. She believed there were times when children might not be truthful. She understood that someone of any age could molest a child. She believed there were times when children could be molested and not tell. She also believed there were times when children might bring forth an untrue allegation about something that happened years ago.
Under questioning by the prosecutor, A.L. stated she had no experiences or thoughts about children in foster care that would affect her decision-making. Although she had no children of her own, she had an eight-year-old sister, as well as young nephews. She felt she could go through the process of listening to children and putting together the pieces of what they had said. She would listen to a child’s explanation of why he or she did not immediately report something bad that happened, and make her own judgment as to whether the explanation made sense.
After excusals for cause, the prosecutor exercised his next two peremptory challenges to excuse G.T. and A.D. More prospective jurors, including I.M. were then called to the box.
Under questioning by the court, I.M. related she had been a courtroom clerk in federal court for 15 years, had worked in the United States Attorney’s Office for six years, and had one son who was a California Highway Patrol officer and another who worked for the California Department of Corrections. She knew the judge in the present case. There was nothing about her background, the fact she knew the judge, or the fact she had family members in law enforcement that would affect her ability to be fair.
Under questioning by defense counsel, I.M. related that she had worked in the legal system in Fresno since 1990. She had seen “everything” as a court clerk. She had not been through molestation trials, but had been through child pornography trials. She found federal cases to be different from state court cases, because they were “at a higher standard.” The federal penalties were three times what they were in state court, and so there was “more burden and weight” on both sides. She knew the standard in both was beyond a reasonable doubt, but felt the nature of the evidence was often different. In federal court, particularly pornography cases, it was “not like a hearsay, he said/she said, it’s more of evidence that’s there.” She agreed with defense counsel that defendant was presumed innocent. She explained: “Because he could be my father or he could be . . . my grandfather. And then I have six sons — eight sons with my two stepsons, and so there are times when I’ve talked to my boys and I’ve told them, ‘You have to really be careful on how you treat women because you can be in a vulnerable situation.’ And it goes both ways on a man and a woman because it goes he said/she said. You know, there’s certain individuals that don’t like rejection so they’ll come up with stuff. But until they go to court or either a person pleas [sic] out or they go to trial, . . . whether they are found guilty or not guilty, they’re so much in that emotion.”
I.M. agreed with the prosecutor that federal cases often involved extensive investigations, wire taps, and “all the kind of cool things we hear and see on TV.” The prosecutor stated that in a molestation case such as this one, there were going to be a couple of young children who were going to come in and talk about their experiences, after which jurors would have to decide whether they were credible and what other evidence there was in the case, and then decide whether the charges were proven beyond a reasonable doubt. It was different than cases with wire taps and things that were more what people saw on television. The prosecutor then asked if I.M. felt she could do a good job evaluating the credibility of witnesses, and if it was something she was comfortable going through. She responded affirmatively. She agreed with the prosecutor that she had seen the process play out in federal court, in which she would quickly think a person was or was not telling the truth, and then would compare it against all the evidence to make a decision as to who was telling the truth.
The prosecutor asked I.M. to expound on what she had meant about the burden being higher in federal court. She explained that she did not see the United States Attorney’s Office, either when she worked there or when she interacted with them in her current position, bring cases to court unless they had a good case. She stated: “And when I say ‘a good case’ is the evidence, you know. There’s wire taps, . . . there’s photographs, you know. Now they can pinpoint you wherever you are with GPS. We did a big bank robbery case and those defendants were convicted because their cars had a GPS and they were able to get images of their car facing the store they were just robbing. Just, you know, you actually see the evidence, there’s pictures, you know, they’re there, there’s conversations. It’s not a he said/she said.” I.M. understood she was not going to get those types of evidence in this kind of case. Asked if she felt the prosecutor would be at a disadvantage because he could not deliver that kind of evidence to her, and whether that would somehow affect her decision, she responded that she did not know, because she had never been in this type of case. She added: “I just know that raising my sons, do I hear stories out there, . . . where, . . . like Bill Cosby, until you’re in the courtroom and you see what’s there — just like what happens — happening right now on, you know, the grand jury didn’t convict on certain things. There was one that had images and they didn’t convict, but we weren’t in the courtroom, we weren’t in the grand jury, we didn’t see what they had.” I.M. stated she could follow an instruction that the testimony of a single witness was sufficient to convict someone of a crime.
After an excusal for cause, the prosecutor exercised his fourth peremptory challenge to excuse a non-Hispanic woman, and his fifth such challenge to excuse A.L. Another group of prospective jurors was called to the box and questioned. The prosecutor subsequently used his sixth peremptory challenge to excuse a Hispanic male, his seventh to excuse a non-Hispanic male, and his eighth to excuse a non-Hispanic woman. More prospective jurors were called to the box and questioned. The prosecutor then used his ninth peremptory challenge to excuse E.V. After additional voir dire of new prospective jurors, the prosecutor exercised his 10th challenge to excuse I.M.
At that point, defense counsel made a Batson-Wheeler motion on the ground there was a pattern of the prosecutor eliminating Hispanic females from the jury. This ensued:
“THE COURT: Okay. All right. The Court will rule on the prima facie circumstances first, then I’ll give you an opportunity then to place on the record whatever you wish with respect to that.
“So let me go through some of the grounds for prima facie circumstances to try to make a determination whether in fact there is a prima facie case. . . . [¶] . . . [¶] . . . The defendant and the challenged jurors are members of the same cognizable group. That is not required; however, it is something the Court can consider, the same cognizable group, being Hispanic. The victims or witnesses are members of the cognizable group. . . . A representation was made to the Court that the alleged victims are Hispanic. I would note that the defendant and the victims are of the same race, so the case does not appear to the Court to have any group overtones, which is the third issue whether this has a divergent racial element to it. It does not seem to the Court that it does.
“The next issue is the pattern and timing of the challenges. The district attorney has exercised ten challenges. Of those ten challenges, five are Hispanic women. [¶] . . . [¶] . . . Three are what appear to the Court to be white females and two are what appear to the Court to be males. The Hispanic females are [G.T.], [A.D.], [E.V.], [A.L.], [I.M.]. . . . [¶] . . . [¶]
“Okay. The pattern and timing of the challenges basically is the second, third, fifth, eighth [sic; ninth] and ninth [sic; tenth] challenges by the People have been to Hispanic females. I don’t find that to be anything particularly with respect to a prima facie circumstance.
“The next issue is whether many or all of the cognizable group members in the panel were challenged. There still appear to the Court to be, for the purpose of Hispanics, at least one, two, three individuals who are . . . Hispanics and 2 Hispanic females in the current set of 12, and it appears to the Court there’s other Hispanic people sitting out in the audience, but we haven’t gotten to those people yet.
“It does not appear to the Court that these are disproportionate numbers. Nobody has passed, so I can’t consider whether anybody has passed when it contained cognizable numbers. Did the party ask the challenged juror any questions or were these essentially pro forma questioning? I will note that both counsel have been quite active in asking questions to all the jurors as near as the Court is able to tell. It does not appear to the Court there are [sic] any disparate questioning. There are no statements that the Court has noticed that suggest group bias.
“The jurors who are challenged do not share only one characteristic, that being their group association. They vary in a lot of ways.
“Do the challenged jurors have backgrounds which suggest that had they been non-cognizable group members they would not have been challenged? No. . . . [A]ll of them as near, as the Court recalls, have reasons that are not related to their status as Hispanic women that would make them subject to a challenge. And I’m not aware that [the prosecutor] has any history of Wheeler-Batson violations which the Court can look to. [¶] . . . [¶] . . . Which the Court should look to.
“So I don’t really find that there’s a prima facie case. Specifically also, the Court does note that both counsel are excusing a significant percentage of women.
“Now, that being said, . . . does anybody wish to be heard further just with respect to the prima facie case?
“Then what the Court normally does, . . . having found there is no prima facie case, I do permit the district attorney to state on the record his reasons for the challenges so that if on appeal the Court of Appeal disagree [sic] with me and says there was a prima facie case, he is permitted to state the reasons, the reasons for his challenges are part of the record.
“Do you want to be heard, [defense counsel], before the Court does that?
“[DEFENSE COUNSEL]: No.
“[PROSECUTOR]: I would be willing to do that, your Honor; however, I would ask if that . . . could occur after a jury is sworn so as not to reveal what I’m looking for in jurors and what bases I’m using in exercising my peremptory challenges.
“THE COURT: Okay, I’ll permit that. Since I found . . . no basis for a prima facie case, the Court will permit that to occur at a later point when we take a recess.
“[PROSECUTOR]: And the only other thing I would put on the record at this point is simply that I have never had a Batson-Wheeler found against me. In fact, in over 40 jury trials, this is the first time anyone has ever made a Batson-Wheeler motion against me . . . .
“THE COURT: Well, . . . Batson-Wheeler motions are not uncommon, and . . . if I were the defense counsel, I might have made one as well, so . . . I don’t have any problem with it. And I don’t have any problem with denying it because I don’t think there’s merit to it.”
The court later reiterated it had found no prima facie case, but permitted the prosecutor to state for the record his reasons for the peremptory challenges.
The prosecutor estimated approximately three quarters of the panel were women. With respect to G.T., he explained that, given the number of peremptory challenges available, he did not want her on the panel in light of the accusation against her former son-in-law, even though it was a long time ago. He also did not think G.T. had any negative feeling about someone with that kind of history coming into the family.
As for A.D., the prosecutor was concerned that she seemed to have a lack of life experience, and she said she did not feel knowledgeable about the situation. The prosecutor was also concerned she might have trouble being decisive.
The prosecutor stated he excused E.V. because she said, early on, that she could not judge someone and was struggling with the case. His concerns in that regard were never alleviated.
The prosecutor excused A.L. because of her lack of life experience and lack of experience with children. She also did not seem very friendly or communicative to him, and he looked for jurors who were friendly and would be likely to get along together.
The prosecutor’s concern with I.M. was that she was accustomed to cases that did not come down to a credibility determination. She also said she counselled her sons to be careful to not be in situations where they were accused of sexual misconduct. The prosecutor was unsure whether I.M. would be receptive to defendant’s statement that he had some kind of sexual contact with one of the children and that the child initiated it.
At the conclusion of the prosecutor’s explanation, the court stated, “Okay. Thank you,” and asked if there was anything else that needed to be put on the record. Both counsel said no.
Analysis
Defendant now contends the trial court erred by finding no prima facie case of discrimination. “To establish a prima facie case, a defendant’s ‘ “burden is simply to ‘produc[e] evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.’ ” ’ [Citation.]” (People v. Elliott (2012) 53 Cal.4th 535, 571.) Because the trial court here expressly found no prima facie showing and simply followed “ ‘better practice’ ” in nevertheless inviting the prosecutor to state his reasons (People v. Taylor (2010) 48 Cal.4th 574, 614, fn. 9), “we review the correctness of the court’s first stage rulings that defendant had not made out a prima facie case.” (People v. Sánchez, supra, 63 Cal.4th at p. 434; cf. People v. Chism (2014) 58 Cal.4th 1266, 1314 [when trial court determines defendant did not make prima facie showing but passes judgment on ultimate question of purposeful discrimination, case is first stage/third stage hybrid, and question of prima facie case is moot].) “[W]e review the record on appeal to determine whether there is substantial evidence to support the ruling. [Citations.] The record includes voir dire [citations] as well as any juror questionnaires [citation]. We sustain the ruling when the record discloses grounds upon which the prosecutor properly might have exercised the peremptory challenges against the prospective jurors in question. [Citations.]” (People v. Griffin (2004) 33 Cal.4th 536, 555, fn. omitted, disapproved on another ground in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32.) “Because [Batson-]Wheeler motions call upon trial judges’ personal observations, we view their rulings with ‘considerable deference’ on appeal. [Citations.]” (People v. Howard (1992) 1 Cal.4th 1132, 1155.)
We conclude substantial evidence supports the trial court’s ruling.
“Although the question at the first stage concerning the existence of a prima facie case depends on consideration of the entire record of voir dire as of the time the motion was made [citation], [the California Supreme Court has] observed that certain types of evidence may prove particularly relevant. [Citation.] Among these are that a party has struck most or all of the members of the identified group from the venire, that a party has used a disproportionate number of strikes against the group, that the party has failed to engage these jurors in more than desultory voir dire, that the defendant is a member of the identified group, and that the victim is a member of the group to which the majority of the remaining jurors belong. [Citation.] A court may also consider nondiscriminatory reasons for a peremptory challenge that are apparent from and ‘clearly established’ in the record [citations] and that necessarily dispel any inference of bias. [Citations.]” (People v. Scott, supra, 61 Cal.4th at p. 384.) While we may consider such reasons, the prosecutor’s statement of reasons is not relevant at the first stage. (People v. Sánchez, supra, 63 Cal.4th at p. 435.)
Defendant relies on what he terms “a [s]tatistically [s]ignificant [p]attern of [d]iscriminatory [s]trikes.” (Boldface omitted.) It is true that a prima facie case of discriminatory purpose can be based on statistical disparities alone. (See, e.g., Paulino v. Castro (9th Cir. 2004) 371 F.3d 1083, 1090-1091; Fernandez v. Roe (9th Cir. 2002) 286 F.3d 1073, 1078-1079.) We must consider the totality of the circumstances, however. Under the circumstances here, any numerical disparity falls short of a prima facie showing. (See, e.g., People v. Cunningham (2015) 61 Cal.4th 609, 664-665; People v. Banks, supra, 59 Cal.4th at p. 1147; People v. Streeter (2012) 54 Cal.4th 205, 223, disapproved on another ground as stated in People v. Harris (2013) 57 Cal.4th 804, 834; People v. Garcia (2011) 52 Cal.4th 706, 747-748; People v. Jones (2011) 51 Cal.4th 346, 362; People v. Cleveland (2004) 32 Cal.4th 704, 734.) The record supports the trial court’s determination the numbers were not disproportionate.
The record also supports the court’s finding that the prosecutor engaged in substantially more than merely desultory voir dire of the prospective jurors in question. (See People v. Cunningham, supra, 61 Cal.4th at p. 665.) Defendant argues the prosecutor repeatedly questioned only Hispanic females about sympathy toward grandparents and the elderly, thus suggesting a preconception in that regard. (See Splunge v. Clark (7th Cir. 1992) 960 F.2d 705, 707-708.) The prosecutor did ask E.V. and A.L. about feeling sympathy toward the elderly, but he also asked one of the ultimate trial jurors, whose ethnicity the record does not reveal. In addition, he asked such questions of the prospective jurors in general. The record thus belies the notion of a discriminatory preconception.
The record shows the prospective jurors at issue indeed varied in many ways. “Even if the struck [Hispanic female] jurors had nothing in common with each other besides their race [and gender], [those] circumstance[s] do[] not, in itself, create an inference that they were excused because of their race [and gender] where, as here, obvious bases for the prosecutor’s decision to excuse many of the jurors appear in the record.” (People v. Thomas (2012) 53 Cal.4th 771, 795.) For example, G.T. had a former son-in-law who had been accused of child molestation. A.D. stated she did not feel she would be fair and that she had insufficient personal knowledge so as to understand everything. E.V. believed her religion taught that she could not judge others. A.L. worked at a retirement home and did not have extensive experience with children. I.M. was accustomed to cases with extensive investigation and physical evidence, and stated she did not know if the prosecutor would be at a disadvantage because he could not deliver that here.
It appears defendant may be asking us to undertake, for the first time on appeal, a comparison of the prospective jurors whom the prosecutor struck with the ultimately seated trial jurors who were in the box at the time of the prosecutor’s peremptory challenges. The California Supreme Court has repeatedly held that, unlike in third-stage Batson-Wheeler cases, such comparative analysis is not compelled in first-stage cases such as the present one. (People v. Sánchez, supra, 63 Cal.4th at p. 439; People v. Harris (2013) 57 Cal.4th 804, 836; People v. Streeter, supra, 54 Cal.4th at p. 226, fn. 5; People v. Howard (2008) 42 Cal.4th 1000, 1019-1020; cf. People v. Lenix (2008) 44 Cal.4th 602, 622 [in third-stage Batson-Wheeler analysis, evidence of comparative juror analysis must be considered in trial court and for first time on appeal if relied upon by defendant and record is adequate to permit comparisons]; accord, People v. Gutierrez (2017) 2 Cal.5th 1150, 1173-1174.) Although Justice Liu would hold otherwise (People v. Sánchez, supra, 63 Cal.4th at pp. 488-494 (conc. opn. of Liu, J.); People v. Harris, supra, 57 Cal.4th at pp. 874-879 (conc. opn. of Liu, J.)), as has the Ninth Circuit Court of Appeals (Shirley v. Yates (9th Cir. 2015) 807 F.3d 1090, 1102, fn. 9 & cases cited; U.S. v. Collins (9th Cir. 2009) 551 F.3d 914, 921-922), we are bound to follow the decision of the majority of our state high court on the subject (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; People v. Williams (1985) 169 Cal.App.3d 951, 954; Wall v. Sonora Union High Sch. Dist. (1966) 240 Cal.App.2d 870, 872).
DISPOSITION
The judgment is affirmed.



DETJEN, J.
WE CONCUR:



HILL, P.J.



LEVY, J.