P. v. Bautista
Filed 5/20/13 P. v. Bautista CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(San
Joaquin)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
JUAN CARLOS De JESUS
BAUTISTA,
Defendant and Appellant.
C069652
(Super. Ct. No.
LF11367A)
A jury
convicted defendant Juan Carlos De Jesus Bautista of
(Pen. Code, §§ 664/187, subd. (a)) (unless otherwise stated section references
that follow are to the Penal Code), two counts of assault with a firearm (§
245, subd. (a)(2)), and actively participating in a
(a)). The jury also found true
allegations that the defendant personally and intentionally discharged a
firearm causing great bodily injury
(§§ 12022.53, subds. (c) & (d), 12022.5, subd. (a)), that defendant caused
great bodily injury (§ 12022.7, subd. (a)), and that defendant committed the
offenses for the benefit of, or in association with, a criminal street gang (§
186.22, subd. (b)).
Following
his conviction, defendant was sentenced to an indeterminate term of 40 years to
life in prison, as well as additional sentences which the trial court stayed
depending on the finality of other charges and enhancements. The trial court also imposed a $200 restitution
fine with a 10 percent administrative surcharge fee, or $20.
Defendant
appeals contending the trial court should have
granted his Batson/Wheeler motion due to the prosecutor’s alleged
race-based exercise of a single peremptory juror challenge. (Batson v. Kentucky (1986) 476 U.S. 79
[90 L.Ed.2d 69]; People v. Wheeler (1978) 22 Cal.3d 258.) Defendant also contends the trial
court erroneously imposed the 10 percent surcharge on the $200 restitution
fine. We conclude the trial court
properly denied defendant’s Batson/Wheeler
motion and that the $20 administrative surcharge on the $200 restitution
fine was proper. We therefore affirm the
judgment. We grant the People’s request
to correct the abstract of judgment, which fails to reflect the sentence
imposed and stayed for the gang enhancement on the attempted murder
charge.
Facts and Proceedings
Given the nature of defendant’s
claims on appeal, we dispense with a detailed recital of the underlying facts
and instead focus on jury selection, specifically, the prosecutor’s peremptory
challenge of prospective juror P.S.
Jury Questionnaire
During the
jury selection process, prospective jurors were given a 77-question
questionnaire. In response to the jury
questionnaire, P.S. stated she was employed by the California
as a hospice social worker and worked in the compassionate release advocacy
program conducting medical parole workups.
She also maintained a private therapy practice. She had lived in San
Joaquin County for
five years.
Question 18
asked whether she had any training in psychiatry, psychology or medicine. P.S. responded “yes,†explaining she was a
“Licensed Clinical Social Worker in Corrections,†and that she was a “Certified
Correctional Health Care Professional for medical treatment ‘constitutional
level of care’ to inmate population.â€
In response
to Question 35, which asked whether she could keep an open mind throughout the
trial, P.S. responded she could and that “Every one [sic] deserves a fair trial for many reasons. Human error, justice is blind, constitutional
rights, cost to public of possibility of having to reprocess or conviction of
an innocent person.â€
Question 40
asked whether she believed it would be possible for “any witness to swear to
tell the truth and yet lie under oath?â€
P.S. stated “yes,†explaining that “they may (believe) what they have
saw hear experienced or believe about their experience with the event they are
recalling.â€
Voir Dire
P.S.
confirmed during voir dire that she was a licensed clinical social worker for
the Department of Corrections and that she worked with hospice patients and
assisted with getting inmates out and situated under the compassionate release
program. She also stated she had a small
private therapy practice in town.
P.S. said
she would not have a problem making her own decision, and when asked what she
thought about the defendant being charged with attempted murder, use of a gun
and gang activity, she responded she “need[ed] to see what the data is. I need to see the evidence,†but that she was
“okay†with the charges. She also stated
a gang member might not cooperate with police for several reasons including
loyalty and to protect themselves.
When asked
how gangs fit into the current crime problem P.S. responded, “From the media
and from what I understand, it’s a large population of people that get involved
with gangs, get involved with crime.
Bottom line.†She also stated she
would return a guilty verdict if she felt the prosecutor had met the reasonable
doubt standard.
Peremptory Challenge of
P.S.
The
prosecution exercised its fourth peremptory challenge to excuse P.S. Defense counsel objected claiming the
prosecutor had only dismissed P.S. based on her last name. The trial court found the defense had
established a “prima facie case†of an inference of discriminatory purpose
because P.S. had “a Hispanic last name,†and asked the prosecution to explain
the basis for the challenge.
The
prosecutor stated he excused P.S. because (1) she was not a long-term resident
of the county, (2) she was a Department of Corrections advocate and a licensed
clinical social worker who dealt with constitutional level of care as noted in
Question 18 on the jury questionnaire, and (3) based on certain other
questionnaire responses, specifically Question 35 (that everyone deserves the
right to fair trial due to possible human error and potential wrongful
convictions), and Question 40 (that a person may swear to tell the truth but
nevertheless lie under oath because they may actually believe an event occurred
in a certain manner even though they are mistaken). Defense counsel responded that the prosecutor
did not ask P.S. about any of those topics and that his concerns were “non
issues.†After considering the
prosecutor’s justifications and defense counsel’s response, the trial court
denied the Batson/Wheeler motion
finding the prosecutor dismissed P.S. because of valid, race-neutral
reasons.
Discussion
I
Both the
federal and California Constitutions prohibit counsel from using peremptory
challenges to exclude prospective jurors based on race. (Batson, supra, 476 U.S. at p. 97); Wheeler, supra, 22 Cal.3d at pp. 276-277.) “Doing so violates both
the equal protection clause of the United States Constitution and the right to
trial by a jury drawn from a representative cross-section of the community
under article I, section 16 of the California Constitution.†(People
v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix).)
When a
defendant claims a prosecutor used a peremptory challenge to remove a
prospective juror for racial reasons, courts engage in a three-part
analysis. A defendant must first make a
prima facie case by demonstrating that the facts give rise to an inference of
discriminatory purpose. If that showing
is made, the burden next shifts to the prosecution to explain its challenge on
the basis of permissible, race-neutral justifications. If such an explanation is offered, the trial
court then must decide whether the defendant has established purposeful
v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129];
280-281; see also People v. Thomas
(2011) 51 Cal.4th 449, 473 (Thomas).)
Because the
trial court found the defendant established a prima facie inference of a
discriminatory purpose and the prosecutor gave reasons for his peremptory
challenge, we proceed directly to the second and third steps of the
whether the trial court erred in concluding the proffered reasons were
nondiscriminatory. (See
1106, disapproved on other grounds in People
v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see also Thomas, supra, 51 Cal.4th at p. 474.)
“A
prosecutor asked to explain his conduct must provide a ‘ “clear and
reasonably specific†explanation of his “legitimate reasons†for exercising the
challenges.’ [Citation.] ‘The justification need not support a
challenge for cause, and even a
“trivial†reason, if genuine and neutral, will suffice.’ [Citation.]â€
(Lenix, supra, 44 Cal.4th at
p. 613.) A prospective juror may be
excused for any number of reasons, including “facial expressions, gestures,
hunches, and even for arbitrary or idiosyncratic reasons.†(Ibid.)
“ ‘We
review a trial court’s determination regarding the sufficiency of a
prosecutor’s justifications for exercising peremptory challenges “ ‘with
great restraint.’ †[Citation.] We
presume that a prosecutor uses peremptory challenges in a constitutional manner
and give great deference to the trial court’s ability to distinguish bona fide
reasons from sham excuses. [Citation.]â€
(Lenix, supra, 44 Cal.4th at
pp. 613-614.) “ ‘The trial court’s
determination is a factual one, and as long as “ ‘ “the trial court makes a
‘sincere and reasoned effort’ to evaluate the nondiscriminatory justifications
offered, its conclusions are entitled to deference on appeal†’ â€
when they are supported by substantial evidence. [Citation.]’
[Citation.]†(
In essence,
the issue is whether the trial court finds the prosecutor’s explanation to be
credible, based on factors such as the reasonableness of the explanation, the
prosecutor’s demeanor, and the trial court’s own observations of the voir
dire. (Lenix, supra, 44 Cal. 4th at p. 613.) Credibility can also be measured by “ ‘whether
the proffered rationale has some basis in accepted trial strategy.’ †(Ibid.)
According
to defendant, the prosecutor improperly used a peremptory challenge to excuse
P.S. because she had a Hispanic surname and the trial court erred in accepting the
proffered nondiscriminatory reasons for this challenge. We find no error.
The
record supports the trial court’s conclusion that the prosecution dismissed
P.S. for race-neutral factors. P.S. had
an educational background in psychology and was a licensed clinical social
worker. She also worked for the
Department of Corrections as a hospice social worker in its compassionate
release program for prison inmates.
Excusing a prospective juror based on his or her professional
background, especially in psychology or social work, does not run afoul of the
acknowledged by other courts as an acceptable trial strategy. (See, e.g., People v. Landry (1996) 49 Cal.App.4th 785, 790-791 [prosecutor
properly challenged potential juror based on psychology background]; see also
378, 394 [juror excused because of profession based on prosecutor’s belief that
kindergarten teachers are often liberal and not prosecution oriented];
110, 120, fn. 2 [prosecutors often excuse professionals because they believe
professionals are too demanding or look for certainty].) Indeed, in denying the Batson/Wheeler motion, the trial court noted that because
P.S. was “involved in compassion release of inmates from prison and [was] a
licensed clinical social worker . . . a prosecutor would be very
concerned about how she could be much more sympathetic and make a decision
based on emotion rather than on the facts or the law.â€
Moreover, P.S.’s responses to
Questions 35 and 40 on the jury questionnaire supported the prosecutor’s
implicit concern that P.S. might be sympathetic to the defendant and less
partial to the prosecution in this case.
Her responses indicated that she believed people could be wrongfully
convicted, and that although a person testifies under oath about an event or
experience, ultimately he could be mistaken if his testimony is based on a
sincere belief that the event occurred in a particular manner even though in
reality it did not. In other words, a
person’s recollection of an event or experience, although genuinely believed,
could be incorrect. As the prosecutor
argued below, the defense’s theory of the case, which it intended to and later
did support with expert testimony, was that the defendant was not the shooter
and the two eyewitnesses, although not necessarily lying, were simply mistaken
in their observations or recollections.
Thus, the prosecutor’s implied concerns about P.S.’s potential
sympathetic proclivities towards the defendant and his theory are amply
justified by the record.
That the
prosecutor did not specifically question P.S. on these topics is of little
consequence. (People v. Lewis (2008) 43 Cal.4th 415, 476 [prosecutor’s failure to
question prospective juror on voir dire did not undermine trial court’s
conclusion that prosecutor’s stated reasons for striking her based on her
written questionnaire answers were not pretextual]; People v. Clark (2011) 52 Cal.4th 856, 906-907 [limited questioning
of potential juror not significant where prosecutor reviewed jurors’
questionnaire answers and was able to observe her responses and demeanor during
court and group voir dire]; People v.
Avila (2006) 38 Cal.4th 491, 530 [prospective juror in capital case may be
discharged for cause based solely on answers to written questionnaire].) The import of her jury questionnaire
responses, especially regarding convictions of innocent people based on
mistaken but sincerely believed testimony--defendant’s precise theory of the
case--were clear. This potential
sympathy towards the defendant coupled with her profession as a licensed
clinical social worker who worked for the compassionate release of prisoners
provide substantial evidence to
support the trial court’s determination that the prosecutor struck P.S. based
on valid, race-neutral reasons. Thus,
the trial court did not err in denying defendant’s Batson/Wheeler motion.
II
Defendant contends
the 10 percent surcharge added to the $200 restitution fine imposed pursuant to
section 1202.4 is unauthorized and must be stricken.
Section
1202.4, subdivision (a)(3)(A) provides, in relevant part, that a court “shall
order†a defendant convicted of a crime to pay “[a] restitution fine in
accordance with subdivision (b)†of that section. Subdivision (b), in turn, provides “[i]n
every case where a person is convicted of a crime, the court shall impose a separate
and additional restitution fine, unless it finds compelling and extraordinary
reasons for not doing so and states those reasons on the record.†(§ 1202.4, subd. (b).) And subdivision (l) of section 1202.4 provides:
“At its discretion, the board of supervisors of a county may impose a fee
to cover the actual administrative cost of collecting the restitution fine, not
to exceed 10 percent of the amount ordered to be paid, to be added to the
restitution fine and included in the order of the court, the proceeds of which
shall be deposited in the general fund of the county.†(§ 1202.4, subd. (l).)
In this
case, following defendant’s conviction the trial court imposed a “restitution
fine†of $200 pursuant to section 1202.4, subdivision (b). The court also imposed a 10 percent
“administrative surcharge†on the “restitution fine,†which a minute order
characterizes as a “restitution fund collection fee.†Thus, the trial court imposed the
administrative fee to cover the cost of “collecting†the restitution fine. Based on the plain language of section
1202.4, subdivision (l), which
specifically authorizes a 10 percent collection fee for any imposed restitution
fine, the trial court correctly added the 10 percent administrative surcharge
to the restitution fine imposed under subdivision (b). (People
v. Robertson (2009) 174 Cal.App.4th 206, 210-211.)
III
An
appellate court has the inherent power to correct clerical errors in an
abstract of judgment that does not accurately reflect the oral judgments of
sentencing courts. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) For the gang enhancement on the attempted
murder charge, the trial court sentenced the defendant to life in prison with a
minimum parole eligibility date of 15 years, which the trial court stayed
pending finality of the judgment as to the sentence for 15 years to life on
count one, the attempted murder charge.
The abstract of judgment does not reflect the sentence on the gang
enhancement allegation on count one, however.
The People request that the court correct the abstract of judgment to
reflect the judgment as announced. We
will order the abstract corrected.
Disposition
The
judgment is affirmed. The trial court is
directed to prepare an amended abstract of judgment to reflect the term of 15
years to life on the count one gang enhancement as defined in section 186.22,
subd. (b)(1), stayed pending finality of judgment as to the sentence on count
one and to forward a copy of the corrected abstract of judgment to the
HULL ,
J.
We concur:
BLEASE , Acting P. J.
MAURO , J.
