P. v. Pastor

Filed 2/20/07  P. v. Pastor CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

            Appeal from judgments of the Superior Court of Los Angeles County, Fredrick N. Wapner, Judge.  Affirmed but remanded for resentencing.

            William M. Duncan, 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, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Stephanie C. Brenan, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

            The jury found defendant Juan Pastor, aka, Antonio Gonzales (defendant) guilty on two counts of possession for sale and sale of heroin (heroin case).  The trial court entered a judgment of conviction on the verdict, and also found defendant in violation of his probation on a prior attempted robbery conviction (robbery case).  Defendant was sentenced in each case to state prison.

            On appeal from the judgment in the heroin case, defendant contends that the trial court erred when after a seated juror was excused for cause, it refused to reopen jury selection to allow him to exercise unused peremptory challenges as to the previously sworn trial jurors.  He also contends the trial court erred when it denied his Batson/Wheeler[1] motion by refusing to require the prosecutor to justify her challenge to a prospective trial juror and by accepting the prosecutor's justification of her challenge to a prospective alternate juror.  Defendant further contends that the trial court committed Griffin[2] error when it overruled his objection to certain remarks the prosecutor made to the jury during closing argument.  Finally, the defendant contends, and the Attorney General agrees, that the trial court committed sentencing error in the robbery case by stating it was compelled to run the subordinate sentence for his robbery conviction consecutively to the principal sentence for his conviction in the heroin case.

            We hold that the trial court correctly refused to reopen jury selection after the trial jury had been sworn and that defendant has forfeited his claims under Batson/Wheeler by failing to make an appropriate motion to quash or dismiss the jury venire or for a motion for mistrial.  We further hold thatdefendant has forfeited his claim based on Griffinby failing to object on that ground and request an admonition from thetrial court, that theprosecutor's remarks did not constitute Griffinerror in any event, and that any such error was harmless in light of the strength of the case against defendant.  We also agree with the parties that the trial court committed sentencing error with respect to defendant's conviction for attempted robbery.  We therefore affirm the judgment in the heroin case and remand the robbery case to the trial court for resentencing.

PROCEDURAL BACKGROUND

            On December 13, 2004, defendant was charged in the robbery case (number BA274126), with a single count of attempted second degree robbery in violation of Penal Code section 211^[3]― a felony.  On March 17, 2005, he pleaded guilty to the charge.  The trial court sentenced him to the low term of 16 months, suspended execution of the sentence, and placed him on formal probation for three years, subject to various conditions including the requirement that he â€