PEOPLE v. HUTCHINS

Filed 2/20/07

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from judgment of the Superior Court of Los Angeles County, C. Edward Simpson, Judge. Reversed and remanded with directions.

Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael C. Keller and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

________________________________________________________________________

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts II, III, IV, V, VI, and VII of the Discussion.

Appellant Clifton Hutchins argues the trial court applied an incorrect legal standard to determine whether a peremptory challenge was based on purposeful race discrimination, resulting in violations of People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson). In the published part of this opinion, we conclude that the trial court applied the wrong standard in making its ruling, requiring conditional reversal.[1] In the unpublished portion of this opinion, we consider appellants other contentions that: (1) the admission of the contents of a laboratory report violated his Sixth Amendment rights to confrontation and cross-examination; (2) the court abused its discretion in denying his motion for mistrial; (3) the court erred in concluding that two counts of rape occurred on separate occasions, within the meaning of Penal Code section 667.61, former subdivision (g) (as amended by Stats. 1998, ch. 936,  9);[2](4) a $27,546.72 restitution order is unauthorized; and (5) the abstract of judgment must be corrected to reflect the correct number of presentence credits. Appellant also requests that we review the in camera Pitchess[3]proceedings for abuse of discretion. We have done so. We agree that the third and fifth arguments have merit, and find no error with respect to the other three or the Pitchess proceedings. We conditionally reverse the judgment, and remand with directions.

FACTUAL AND PROCEDURAL SUMMARY

The Peoples third amended information charged appellant with seven counts of rape, pursuant to section 261, subdivision (a)(2) (counts 1, 5, 7, 9, 13, 14, & 16); two counts of forcible oral copulation, pursuant to section 288a, subdivision (c)(2) (counts 15 & 17); three counts of first degree burglary, pursuant to section 459 (counts 2, 8 & 10); peeking, pursuant to section 647, subdivision (i) (count 3); and possession of cocaine for sale, pursuant to Health and Safety Code section 11351 (count 4). It was alleged that sexual offense counts 1, 7, 9 and 13 through 17 were committed during the commission of a burglary, within the meaning of subdivisions (d)(4) and (e)(2) of section 667.61, the One Strike law. It was also alleged that sexual offense counts 1, 5, 7, 9, and 13 through 17 were committed against more than one victim, within the meaning of subdivision (e)(5) of the One Strike law. Finally, it was alleged that counts 2, 8 and 10 also violated section 462, subdivision (a) and constituted a violent felony, within the meaning of section 667.5, subdivision (c). A jury found appellant guilty as charged, and found all the allegations true. Appellant filed a timely notice of appeal.

DISCUSSION

I

In September 2005, the trial court held voir dire proceedings. When the People exercised a peremptory challenge to excuse a black juror, appellant objected based on Wheeler. Finding that appellant had made a prima facie showing of purposeful race discrimination, the court asked the prosecutor her reasons for excluding the potential juror. The prosecutor explained that the potential juror was excused because she had been on a hung jury, and stated, I dont keep jurors who are on hung jur[ies]. To support her position, the prosecutor pointed out that she also had excused another potential juror who had been on a hung jury. After a lengthy dialogue with counsel, the court stated, Im really troubled by the fact that the People would exercise a peremptory challenge on the one Black female thats on a [panel], and the only reason being, that juror has been on a deadlocked [jury] before. You can provide me with some authority that is a permissible, nondiscriminative basis upon which to exclude a witness. I will read that authority. Otherwise, Im inclined to grant the motion and to disallow the peremptory challenge on the basis that I believe it was motivated for racial purposes.

The next day, the People filed a written opposition to the Wheeler motion and appellant filed a written motion to quash the jury panel and support his Wheeler arguments. The court heard further arguments on the matter and concluded that because the prosecutor also had excused another potential juror who had been on a hung jury, I cannot say there has been proof of racial discrimination in the Peoples utilization of the peremptory challenges by clear and convincing evidence. That is the standard that was set forth by the Supreme Court in [Miller-El v. Dretke (2005) 545 U.S. 231].

A prosecutors 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. [Citations.] Such a practice also violates the defendants right to equal protection under the Fourteenth Amendment to the United States Constitution. [Citations.] (People v. Avila (2006) 38 Cal.4th 491, 541.) When a defendant believes his or her constitutional rights are being violated by the exercise of a peremptory challenge, Batson requires that the defendant [f]irst . . . make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Citation.] 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 v. California (2005) 545 U.S. 162, 168.) 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. (Purkett v. Elem (1995) 514 U.S. 765, 768 (per curiam).) The trial court is required to make a sincere and reasoned evaluation based on the circumstances before it. (People v. Reynoso (2003) 31 Cal.4th 903, 919.)

Appellant argues that because the court used the incorrect clear and convincing evidence standard in deciding the Wheeler motion, his conviction must be reversed based on Wheeler and Batson error. We agree that the opponent of a peremptory challenge generally does not have the burden of proving purposeful race discrimination by clear and convincing evidence. Although the trial court cited Miller-El v. Dretke, supra, 545 U.S. 231, its reliance on that case was misplaced. That case involved review of a denial of habeas relief sought under 28 U.S.C. 2254, following the Texas trial courts prior determination of fact that the States race-neutral explanations were true . . . . (Id. at p. 240.) The United States Supreme Court stated that [u]nder the Antiterrorism and Effective Death Penalty Act of 1996 [(AEDPA)], Miller-El may obtain relief only by showing the Texas conclusion to be an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C.  2254(d)(2). Thus we presume the Texas courts factual findings to be sound unless Miller-El rebuts the presumption of correctness by clear and convincing evidence.  2254(e)(1). (Ibid., italics added.) The standard set out in Miller-El v. Dretke does not apply here because this case does not fall under the AEDPA.

We have found no California case law explicitly holding that the burden of the party opposing a peremptory challenge is preponderance of evidence. But preponderance of evidence is the general standard of proof in this state. Section 115 of the Evidence Code states: Except as otherwise provided by law, the burden of proof requires proof by a preponderance of evidence. Other state and federal courts have held that the opponent of the peremptory challenge must prove purposeful race discrimination by a preponderance of evidence. (See, e.g., decisions from Colorado [Valdez v. People (Colo. 1998) 966 P.2d 587, 590], Connecticut [State v. Peeler (Conn. 2004) 841 A.2d 181, 192], Illinois [People v. Lovelady (Ill.Ct.App. 1991) 582 N.E.2d 1217, 1226], New Jersey [State v. Gilmore (N.J. 1986) 511 A.2d. 1150, 1166], and Texas [Guzman v. State (Tex.Crim.App. 2002) 85 S.W.3d 242, 255, fn. 48]; and federal cases from the Second Circuit [Harris v. Kuhlmann (2d Cir. 2003) 346 F.3d 330, 343 [NY]], the Sixth Circuit [Roberts ex rel. Johnson v. Galen of Virginia, Inc. (6th Cir. 2003) 325 F.3d 776, 780 [KY], U.S. v. Gibbs (6th Cir. 1999) 182 F.3d 408, 439 [OH], U.S. v. Tucker (6th Cir. 1996) 90 F.3d 1135, 1142 [MI]], and federal district courts in New York [Youngblood v. Brown (S.D.N.Y. Dec. 1, 2006) ____ F.Supp.2d_____ [2006 WL 3462585, *6], Covington v. Lord (E.D.N.Y. 2003) 275 F.Supp. 2d 352, 357, Brown v. New YorkState (W.D.N.Y. 2005) 374 F.Supp.2d 314, 324] and Illinois [U.S. v. Stephens (N.D.Ill. June 9, 2006) ____ F.Supp.2d ____ [2006 WL 1663447, *2].) We conclude that preponderance of evidence, the general standard in California jurisprudence, applies to the final step of a Wheeler/Batson challenge: whether the neutral reasons offered to justify a peremptory challenge are genuine or pretextual.

The People argue that even if the court applied the wrong standard, the record supports a finding that the prosecutors exercise of a peremptory challenge was race-neutral. They also argue that because the court made a sincere and reasoned evaluation, the courts ruling should not be disturbed. The record, however, does not indicate whether the trial court would have granted appellants Wheeler motion if it believed the burden of proving purposeful race discrimination was a preponderance of evidence, rather than clear and convincing evidence.

On remand from the United States Supreme Court, the California Supreme Court, in People v. Johnson (2006) 38 Cal.4th 1096, 1103-1104, held that where the trial court had erred in its decision regarding the first Batson step, and for that reason had not reached the other two, it was proper to remand the case to the trial court for further proceedings. Ordinarily, factors to be considered in determining whether remand is appropriate are the length of time since voir dire, the likelihood that the court and counsel will recall the circumstances of the case, the likelihood that the prosecution will remember the reasons for the peremptory challenges, as well as the ability of the trial judge to recall and assess the manner in which the prosecutor examined the venire and exercised other peremptory challenges. (People v. Williams (2000) 78 Cal.App.4th 1118, 1125.)

Here, vior dire occurred a little over a year ago, there are detailed trial transcripts, both sides filed a written motion on the issue, and the prosecutor took notes during voir dire. (See People v. Rodriguez (1996) 50 Cal.App.4th 1013, 1024-1025.) Based on the circumstances presented, we believe that a limited remand is appropriate so that the trial court may reconsider the third Batson step under the proper legal standard. (See People v. Tapia (1994) 25 Cal.App.4th 984, 1014, 1031-1032 [remanding to the trial court after it applied the wrong standard of whether peremptory challenges were supported by good cause].)

On remand, we direct the trial court to consider whether the appellant met his burden of proof under a preponderance of evidence standard. If the [trial] court finds that, due to the passage of time or any other reason, it cannot adequately address the issues at this stage or make a reliable determination, or if it determines that the prosecutor exercised [her] peremptory challenges improperly, it should set the case for a new trial. (Johnson, supra, 38 Cal.4th at p. 1104.) If it finds that appellant has not carried his burden of proving, by a preponderance of evidence, that the prosecutors peremptory challenge was based on purposeful race discrimination, it should reinstate the judgment. (See ibid.)

II

At trial, Suzanne Perez, a criminalist with the Los Angeles County Sheriffs Department, testified regarding a laboratory report prepared by Steven Phillips, an analyst at the sheriffs department. Phillips did not testify because he was unavailable. In his report, Phillips concluded that the substance found at appellants residence was cocaine. When Perez was asked about Phillipss conclusion regarding the substance, appellant made a hearsay objection. The objection was implicitly overruled.

Appellant does not appeal the hearsay ruling, but argues that the admission of Phillipss laboratory report violated his Sixth Amendment rights to confrontation and cross-examination, as pronounced in Crawford v. Washington (2004) 541 U.S. 36 (Crawford). Appellant asserts that laboratory reports, such as the one admitted in his case, are testimonial because they are prepared with litigation and testimony as a purpose. Appellant did not object to the admission of the laboratory report on the basis of the Sixth Amendment or Crawford at trial. Because appellant was tried approximately a year and a half after Crawford was decided, his argument on that basis has been forfeited. (See People v. Burgener (2003) 29 Cal.4th 833, 869; People v. Johnson (2004) 121 Cal.App.4th 1409, 1411, fn. 2.) Appellant argues that under People v. Partida (2005) 37 Cal.4th 428, an objection that the evidence was hearsay implies an objection that it violates the right to confront and cross-examine and allows for appellate review on that basis. The Supreme Court implicitly rejected this argument in People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1024-1028, in holding that defendants, who made hearsay objections in the trial court, had forfeited their confrontation clause challenge by failing to raise it below. In doing so, the court cited Partida. (Id. at p. 1024, 1028, fn. 19.)

In any event, the argument lacks merit. The laboratory report does not bear testimony, or function as the equivalent of in-court testimony. (People v. Johnson, supra, 121 Cal.App.4th at p. 1412; see also People v. Salinas (Jan. 12, 2007, F049017) ____ Cal.App.4th ____ [2007 WL 80850].) Further, even if Crawford applies to the admission of routine documentary evidence, [appellant] had a full opportunity to cross-examine [Perez] on the foundational showing made for the document. In our view, this meets the requirements of Crawford. (People v. Salinas, supra, ___ Cal.App.4th ___ [2007 WL 80850 at p. *3].) Perez explained the analysis procedure, the different tests that were run on the sample, and the results of Phillipss report. She testified that she reviewed the laboratory report and that it was the business practice of the sheriffs department to prepare the report as the sample is being analyzed. If there had been problems with how the report was generated or how the testing was done, or if there were questions about methodology or acceptance of the testing procedures by the scientific community, [appellant] had the chance to explore these areas through the cross-examination of [Perez]. The record reveals that [Perez] was not asked any question that [s]he was unable to answer. (Ibid.)

Nor is the high courts more recent decision in Davis v. Washington (2006) ____ U.S. ____ [126 S.Ct. 2266] helpful to appellants position. In Davis, the court held that statements elicited from a 911 call interrogation were not testimonial because the circumstances of the call indicated its primary purpose was to enable police assistance to meet an ongoing emergency. (Id. at p. 2277.) The caller was not acting as a witness; she was not testifying. What she said was not a weaker substitute for live testimony at trial. (Ibid.) On the other hand, the court held that statements elicited from a police interrogation that was part of an investigation into possibly criminal past conduct are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial. (Id. at p. 2278.) We agree that Crawford issues cannot be circumvented by the admission of public records, such as police reports that contain testimonial statements given by those in formal police interrogations who might be witnesses at trial. [Citations.] The type of documentary evidence in question here, however, does not contain witness statements. In this case, the report is admitted only to show recorded test results. (People v. Salinas, supra, ___ Cal.App.4th ___ [2007 WL 80850 at p. *3].)

Finding there is no Crawford violation, we reject appellants argument that counsel was ineffective for failing to object to the admission of the laboratory report based on Crawford error. An attorney is not ineffective for failing to make a meritless objection. (People v. Ochoa (1998) 19 Cal.4th 353, 432.) We also reject appellants claim that his due process rights were violated as a result of Crawford error.

III

At trial, detective Tory Riley explained that when physical evidence is taken to the sheriffs department, a laboratory receipt is generated. This receipt includes, among other things, a description of the evidence, the victims name and the detectives name. Each receipt is in triplicate form. When Mark A. Davis, appellants trial counsel, went through discovery documents, he found some discrepancies. There were two laboratory receipts with the same identifying number, J-191252. Both receipts identified the detective as Riley, but one bore the name Elizabeth R. (one of appellants rape victims), while the other bore the name Elizabeth Robles.[4]

Davis brought out these discrepancies during his cross examination of Riley. Riley stated that she filled out the Elizabeth R. receipt, but that the other receipt was not in her handwriting. Davis then stated, [w]hat we have here are two chains of custody . . . .  Is there any way can you tell me how that can happen? Riley answered, I have no idea how that would happen, and added, I have no idea where you got that [second receipt]. There were also two receipts with the identifying number J-203526. One receipt was filled out by Riley for a rape kit and bore the name Diane W. (another one of appellants rape victims), while the other was in different handwriting and had the phrase rape kit scratched out. These discrepancies also were brought out during cross-examination. Riley again stated that she did not know why there were two laboratory receipts with the same number.

The next day, the prosecutor informed the court that she had written on the receipts: [a]fter looking at that lab receipt . . . [w]hen I received those copies, they were very hard to read because theyre triplicate forms. So by the time you Xerox it, the words dont come out. So as a courtesy to [the] defense, I had written in information on there to give them an idea of what lab receipts refers to what. There must have been an error in one of them that I wrote where I put Elizabeth Robles. Davis then informed the court that he had been planning to use the discrepancies to argue to the jury that there was additional evidence out there under the same receipt numbers, and moved for mistrial. The court denied the motion, without prejudice, and stated, [w]hen we gather together the exhibits, I can make sense out of what [the prosecutor] has told us.

Davis then attempted to admit the laboratory receipts into evidence, but the court ruled them inadmissible based on lack of foundation. Later, Davis orally renewed his mistrial motion, stating that he had relied on the discrepancies in the laboratory receipts in my preparation for this case as something that would be brought out and actually fitted into what our theory of the case or the theory of the . . . case that I had intended to argue. . . .  And so but being as they were presented, tried to do it in as dramatic fashion as I can for the benefit of the jurors, and obviously theyre going to be expecting me to talk about that. Ill be shocked and appalled if they didnt ask a question what about these two pieces of evidence that defense counsel . . . brought out. And I just think that thats going to put us at a disadvantage in argument. The motion was denied.

Appellant asserts that the court abused its discretion in denying the mistrial motion in three ways: First, the court erred in believing that the issue revolved around the foundation for the admission of the defense exhibits. Second, the court erred in not considering the extent of prejudice to appellants ability to present his defense due to the bombshell discovery that it was the prosecutor herself who had altered the documents. Third, the court rejected any attempts by the defense to explain to the jury what had happened (and who altered the documents) in order to minimize the prejudicial impact of the evidence. A trial court should grant a mistrial only when a partys chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial. (People v. Bolden (2002) 29 Cal.4th 515, 555.)

With respect to appellants first argument, the court engaged in an analysis of whether the defense exhibits, the laboratory receipts, were admissible because appellant sought to introduce the laboratory receipts into evidence. But the court did not refer to the admission of defense exhibits either time it denied appellants mistrial motion.

Appellants second argument also fails. Davis orally argued prejudice to the trial court, and to the extent he argued it, we presume the court listened to and considered his argument. (See Evid. Code, 664.) Appellant states that the prejudicial impact on the defense was clear. Accordingly, because there is no indication that the court did not consider the extent of prejudice argued, we do not find that the court abused its discretion on this basis.

Appellants final argument is that the court abused its discretion in denying the mistrial motion because it did not attempt to dilute the prejudicial effect of the discovery that the prosecutor had altered the evidence receipts by providing an admonition or explanation to the jury. First, appellant did not request a curative admonition or explanation when making his mistrial motions. And to the extent the court denied his motion to admit the second lab receipts as evidence, it explained that appellant had failed to lay a proper foundation. The court could have reasonably believed that an admonition or explanation was not required because Rileys testimony regarding the discrepancies in the laboratory receipts could have caused the jurors to doubt the reliability of the physical evidence, favoring the defense. A motion for a mistrial may properly be refused where the court is satisfied that no injustice has resulted or will result from the events of which the complaint ensues. (People v. Slocum (1975) 52 Cal.App.3d 867, 884.) For the same reasons, we reject appellants claim that the prosecutors misconduct required a mistrial.

Because the court could have reasonably concluded that appellants chances of receiving a fair trial were not irreparably damaged, we find no abuse of discretion.

IV

Before trial, appellant filed a motion pursuant to Pitchess v. Superior Court, supra, 11 Cal.3d 531, seeking discovery of the personnel files of seven law enforcement employees. The court denied the motion as to everyone but Officer Art Frank, and restricted the scope of the in camera review to neglect of duty. Appellant does not dispute the narrow extent of the review. After conducting the review of Franks file, the court ordered disclosure of the information of one complainant and one witness, under protective order. Appellant requests that we review the sealed transcripts of the in camera review for abuse of discretion, as set out in People v. Mooc (2001) 26 Cal.4th 1216. The People have no objection. After conducting an independent review of the sealed transcripts, we find no abuse of discretion.

V

Appellant argues the court erred in concluding that rape counts 7 and 13 occurred on separate occasions, within the meaning of Penal Code section 667.61, former subdivision (g).

In August 2001, appellant entered Elizabeth R.s bedroom, rushed at her, put his hand over her mouth and told her not to scream. He positioned her on the bed and penetrated her vagina with his penis. Elizabeth R. testified that she then heard a car, at which point appellant left the bedroom and went into the living room. She states: I heard his footsteps a while and he seemed to stand still, and then he came back in, came back into the bedroom. Appellant again penetrated her vagina with his penis, changing positions intermittently. The sexual assault lasted 50 to 60 minutes. A jury found appellant guilty of three counts of rape (counts 7, 13 & 14). Finding that counts 7 and 13 were committed on separate occasions because appellant left the bedroom between the rapes, the trial court sentenced him to two consecutive terms of 25 years to life, pursuant to former subdivision (g) and subdivisions (d)(4) and (e)(2) of the One Strike law. The court imposed and stayed a middle term of six years for count 14.

Former subdivision (g) of section 667.61 (the One Strike law) permits only one life sentence for any offense or offenses committed against a single victim during a single occasion. (Stats. 1998, ch. 936, 9.) In People v. Jones (2001) 25 Cal.4th 98, 107 (Jones), the Supreme Court held that for the purposes of [section] 667.61, [former] subdivision (g), sex offenses occurred on a single occasion if they were committed in close temporal and spatial proximity. In so interpreting the statute Jones refused to apply the test adopted under section 667.6 to determine whether forcible sex crimes were committed against the victim on separate occasions under section 667.6, subdivision (d), namely, whether the defendant had a meaningful opportunity to reflect between the attacks. [5] (People v. Fuller (2006) 135 Cal.App.4th 1336, 1342 (Fuller).)

Noting that the Legislature used the term single occasion in the One Strike law, while using separate occasions in section 667.6, subdivision (d), Jones explained that applying the meaningful reflection test to the One Strike law appears inconsistent with the reference by the Legislature in the latter [part of former subdivision (g)] to multiple victims during a single occasion. In the case of a defendant who sequentially assaults multiple victims even in close temporal and spatial proximity, it would be difficult to imagine the crimes ever occurring during a single occasion under [section] 667.61, [former] subdivision (g), because the perpetrator would virtually always have an opportunity for reflection when changing victims. . . .  [] Further, given the harshness of the punishment dictated by [section] 667.61, [former] subdivision (g) of life imprisonment and the lack of definitive legislative direction, the rule of lenity also points to the conclusion that the Legislature intended to impose no more than one such sentence per victim per episode of sexually assaultive behavior. (Jones, supra, 25 Cal.4th at pp. 106-107.)

Appellant argues the trial court erred by applying the wrong standard to determine whether counts 7 and 13 were committed on a single occasion or separate occasions because it believed the test involved whether the defendant had time to reflect. We agree. In announcing its tentative opinion, the court stated: with respect to Elizabeth R., I am of the tentative view to impose a full, separate, and consecutive sentence on count 13. I believe I agree with the Peoples position, that with respect to the events surrounding Elizabeth R., that when the defendant left the bedroom, went into the living room in response to a noise that may have sounded like a passing automobile, that he had an opportunity to reflect upon the crimes that he was committing. He had an opportunity to decide, again, to return to the bedroom and continue his assault, sexually assaultive behavior on Elizabeth. The following colloquy then occurred:

[Prosecutor]: Thank you, Your Honor. I would like to address the courts ruling, tentative on count 13 which impose[s] the 25 to life on [defendant]. . . .  What the People did in their motion is described to the court that there are basically two tests involved in this case. What we have is the because were dealing with a life case, the life offenses which under 667.6[1] category require the test under [Jones], and that would require that the court find that the crimes were not committed in the single occasion. Such, they were committed close, temporal, or spacial proximity if there are more than one instance on the same victim. The court, in finding that [defendant] was sentenced to 25 to life on count 13. Referred, I believe, to the language of 667.6(d), which refers to having separate occasions and separate occasions is defined differently than the single occasion and whether or not the defendant had reasonable opportunity to reflect on [his] actions, is the test in deciding whether or not to run non-life sentences full term consecutive. So what I would, I will basically ask the court to do is, if the court is going to find that [defendant] in count 13 should be sentenced to a consecutive 25 to life, I would ask that the court make a finding that the crimes as to Elizabeth R. did not occur on a single occasion as defined under the line of [section 667.61, former subdivision (g) cases] such that . . . they were not committed in close temporal and spacial proximity.

The Court: I think that finding is implicit in the sentence and implicit in what I said. That in light of the facts involving the assault on . . . Elizabeth R., there was an interruption in the initial sexual assaultive behavior. And the court is of the view that there was an opportunity for the defendant to re-think his criminal activity and he re-thought his criminal activity, in my mind and re-engaged on it on a separate occasion although on the same date and in the same location. If you want me to say that that is a finding of the court, Ill say thats a finding of the court.

[Prosecutor]: We believe that it also did not occur in close temporal and spacial proximity under as required by [the Jones] case.

The Court: How could it be in a different spacial I think youve made your I think youve made your point on it.

[Prosecutor]: Okay.

The Court: I am confident under [Jones] that in the facts with respect to Elizabeth R. that two consecutive 25 year to life sentences are legal.

The court then adopted the tentative sentence as its ruling.

The court applied the wrong test in basing its decision on its belief that appellant had an opportunity to reflect between the two rapes. Although the court stated that a finding of close temporal and spatial proximity was implicit, that is not shown in the colloquy, and the court continued its analysis of whether counts 7 and 13 occurred on separate occasions by considering whether appellant had time to reflect. The court did not engage in an analysis of whether the rapes occurred in close temporal and spatial proximity.

Appellant argues that because the record does not support a finding of separate occasions under the correct legal standard, his second indeterminate life sentence is unlawful under former subdivision (g) of the One Strike law. Citing People v. Scott (1994) 9 Cal.4th 331, the People argue that appellants argument has been forfeited because he did not object to the sentence in the trial court. We disagree. When failure of proof by the prosecution results in a trial record that is inadequate to support a sentence, Scott does not require an objection at sentencing to preserve a claim of error. (People v. Hiscox (2006) 136 Cal.App.4th 253, 259; see also People v. Garza (2003) 107 Cal.App.4th 1081, 1091.) Although the record supports a finding of separate occasions under the meaningful reflection test set out in section 667, subdivision (d), it does not support that finding under the test set out in Jones. That is, the record does not show that counts 7 and 13 did not occur in close temporal and spatial proximity.

In Jones, supra, 25 Cal.4th at page 101, the defendant forced his female victim into the backseat of a car and committed forcible oral copulation for approximately 30 minutes. He then forced her to recline on the seat and raped her, and then committed three counts of forcible sodomy in the period of an hour. (Ibid.) The trial court imposed three consecutive indeterminate life sentences for the forcible oral copulation count, the rape count and one sodomy count. (Id. at p. 102.) The Supreme Court found that these offenses occurred on a single occasion because they occurred during an uninterrupted time frame and in a single location. (Id. at p. 107.) Thus, the court held that only one indeterminate life sentence could be imposed under section 667.61, former subdivision (g). (Ibid.)

In Fuller, supra, 135 Cal.App.4th at page 1339, the defendant forced his female victim to have intercourse with him twice in the bedroom, the two acts separated only by a brief change in position. They then got dressed and went into the living room. After obtaining her cellular phone number, discussing whether they would see each other again, and preparing to leave, [the defendant] changed his mind and forced her to have intercourse with him in the living room. The court held that all three rapes occurred on a single occasion because they occurred within about an hour while both [the defendant and the victim] remained inside her apartment. The only movement was the short distance from her bedroom to the living room. [The] [d]efendant kept [his victim] under his continuous and uninterrupted control during the entire time of the incident. Thus, there was close temporal and spatial proximity between the three offenses. (Id. at p. 1343.) Accordingly, the court held that only one indeterminate life sentence could be imposed. (Ibid.)

The People argue this case is distinguishable from Jones because the rapes did not occur in an uninterrupted time frame. Although the two rapes were separated by appellant leaving the bedroom to investigate the sound of a car, there is no evidence in the record that shows how long he was gone. Elizabeth R. testified that she heard his footsteps a while and he seemed to stand still, and then he came back in, came back into the bedroom, but this is not enough to support an inference that the interruption lasted for a meaningful period of time. To conclude that the rapes did not occur in close temporal proximity would require speculation regarding the length of time appellant was in the living room. The rapes occurred in close spatial proximity because Elizabeth R. was raped in the same place, on the bed in her bedroom. Thus, the record does not support a finding that the rapes did not occur in close temporal and spatial proximity.

The People argue that this case is also distinguishable from Fuller because Elizabeth R. was not under appellants continuous and uninterrupted control. Although appellant left the bedroom for an unspecified period of time, Elizabeth R. was naked and believed he left to investigate the sound of a car. She heard him walk to the living room, stand still and come back to the bedroom. Elizabeth R. testified that appellant was a large man, 62 or 63, and fill[ed] up the majority of the doorjamb. And according to her, she was scared to death because I actually thought what ran through my head, hes going to cut my throat and hes going to put me in my closet. These facts do not demonstrate that Elizabeth R. was free of appellants continuous and uninterrupted control at any time during the sexual assault.

Because the record does not support a finding that counts 7 and 13 occurred on separate occasions, we must reverse the sentence of 25 years to life for count 13 and remand for resentencing.

VI

The trial court ordered appellant to pay $27,546.72 of restitution to the Victims Compensation and Government Claims Board, pursuant to section 1202.4, subdivision (f). Appellant argues that he had no notice of this order because the probation report recommended only $200 of restitution, pursuant to section 1202.4, subdivision (a). We disagree; appellant received adequate notice. One week before the sentencing hearing, the People filed a sentencing memorandum, requesting that the court impose $27,546.72[6]of restitution to the victims compensation fund. The memorandum was addressed to the court and to appellants counsel, and was referenced at the sentencing hearing, where appellant did not argue lack of notice. Appellant does not dispute that he received this memorandum.

Appellant also argues that the $27,546.72 restitution order is not supported by substantial evidence and must be stricken. To support its request, the People attached a bill from the Victim-Witness Assistance Program to their sentencing memorandum. This bill shows that $27,546.72 was paid to four of appellants victims for income support, mental health expenses and medical expenses, and requests that restitution in the same amount be made to the Victims Compensation and Government Claims Board. The bill is not accompanied by a statement made under penalty of perjury by the custodian of records that those bills were submitted to and were paid by the board. ( 1202.4, subd. (f)(4)(B).) Accordingly, appellant argues that the evidence is insufficient because it is unverified and unsubstantiated and does not comply with the foundational requirements under [section] 1202.4, subdivision (f)(4)(B).[7]

Appellant did not object to the restitution order, in any form, in the trial court. Thus, the People argue that appellants claim has been forfeited. We agree. [C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal. (People v. Scott, supra, 9 Cal.4th at p. 356.) The waiver rule applies to the imposition of a section 1202.4 restitution order because it is a discretionary sentencing choice. (See People v. Smith (2001) 24 Cal.4th 849, 853) Appellant argues that because the restitution order was unauthorized, no objection was required. [A] sentence is generally unauthorized where it could not lawfully be imposed under any circumstance in the particular case. (Scott, at p. 354.) Here, the alleged error, the lack of an accompanying statement from the custodian of records, could have been cured at the sentencing hearing had there been an objection. (See People v. Hiscox, supra, 136 Cal.App.4th at p. 259; People v. Valtakis (2003) 105 Cal.App.4th 1066, 1071.) The restitution order was not unauthorized and appellants claim has been waived.

Anticipating waiver, appellant argues his counsel was ineffective for failing to object to the restitution order. To prevail on a claim of ineffective assistance of counsel, the defendant must show counsels performance fell below a standard of reasonable competence, and that prejudice resulted. (People v. Anderson (2001) 25 Cal.4th 543, 569; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688.) If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed. (Strickland v. Washington, supra, 466 U.S. at p. 697.)

Appellant has failed to establish prejudice. It is not sufficient to show the alleged errors may have had some conceivable effect on the trials outcome; the defendant must demonstrate a reasonable probability that absent the errors the result would have been different. (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.) Appellant argues that [h]ad counsel objected, the prosecution would have had to provide proper proof of restitution as required by [section] 1202.4, subdivision (f)(4)(A). The restitution request would have been subject to stricter scrutiny and any unsubstantiated portion of the order would have been deleted. However, appellant has not shown there is a reasonable probability that had counsel objected, restitution would have been ordered in any amount less than $27,546.72. Accordingly, we reject appellants ineffective assistance of counsel claim.

VII

Appellant argues that he is entitled to 1,447 days of custody credit and 217 days of conduct credit. The abstract of judgment erroneously shows 217 days of custody credit only. The People concede error and point out that appellant is entitled to 1,448 days of custody credit and 217 days of conduct credit. We agree. Appellant was arrested on November 7, 2001 and sentenced on October 24, 2005, entitling him to 1,448 days of custody credit. Fifteen percent of 1,448 is 217.2. Rounding to the nearest whole number, not exceeding 15 percent, appellant is entitled to 217 days of conduct credit.[8] (People v. Duran (1998) 67 Cal.App.4th 267, 270.) The abstract of judgment is modified accordingly. (See People v. Acosta (1996) 48 Cal.App.4th 411, 427-428.)

DISPOSITION

The judgment is reversed and the cause is remanded to the trial court for reconsideration of its ruling on the Wheeler/Batson challenge under a preponderance of evidence standard. If the trial court finds that it cannot adequately address the challenge or make a reliable determination, or if it determines that the prosecutor exercised her peremptory challenge improperly, the reversal is to stand and the trial court is ordered to set the case for a new trial.

If the trial court determines that appellant has not met his burden of proving purposeful race discrimination, the judgment shall be reinstated, modified as follows: the indeterminate life sentence on count 13 is reversed and the trial court is ordered to resentence appellant on that count; the trial court is also directed to amend the abstract of judgment to reflect appellants new sentence on count 13 and the correct number of presentence credits; and the superior court clerk is directed to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.

CERTIFIED FOR PARTIAL PUBLICATION.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

MANELLA, J.

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[1] Certified for publication are the initial paragraph, the Factual and Procedural Summary, part I of the Discussion, and the Disposition.

[2] All statutory references are to the Penal Code unless otherwise indicated.

[3]Pitchess v. Superior Court (1974) 11 Cal.3d 531.

[4] The last name of appellants victim is not Robles.

[5] The Legislature amended section 667.61, effective September 20, 2006, which now states: For any offense specified in paragraphs (1) to (7), inclusive, of subdivision (c), the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions, as defined in subdivision (d) of [s]ection 667.6. ( 667.61, subd. (i).)

[6] Although the first page of the sentencing memorandum erroneously sets the amount at $24,546.72, a corresponding footnote states, see attached orders. The attachment shows the amount requested is $27,546.72, which is in bold and underlined.

[7] Section 1202.4, subdivision (f)(4)(B) reads: The amount of assistance provided by the Restitution Fund shall be established by copies of bills submitted to the California Victim Compensation and Government Claims Board reflecting the amount paid by the board and whether the services for which payment was made were for medical or dental expenses, funeral or burial expenses, mental health counseling, wage or support losses, or rehabilitation. Certified copies of these bills provided by the board and redacted to protect the privacy and safety of the victim or any legal privilege, together with a statement made under penalty of perjury by the custodian of records that those bills were submitted to and were paid by the board, shall be sufficient to meet this requirement.

[8] See section 2933.1.