Opinion
G043130 Super. Ct. No. 06NF0053
09-15-2011
THE PEOPLE, Plaintiff and Respondent, v. OSCAR PONCE MEDINA, Defendant and Appellant.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, James H. Flaherty III and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Daniel Barrett McNerney, Judge. Affirmed in part, reversed in part, and remanded for resentencing.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, James H. Flaherty III and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Oscar Ponce Medina of two counts of forcible rape (Pen. Code, § 261, subd. (a)(2)) (counts 1 and 2), one count of kidnapping to commit a sex offense (id., § 209, subd. (b)(1)) (count 3), and one count of forcible oral copulation (id., § 288a, subd. (c)(2)) (count 5). As to count 2, the jury found true the allegation that during the commission of forcible rape Medina kidnapped the victim, thereby substantially increasing the risk of harm to her over the level of risk necessarily inherent in the offense. (Id., § 667.61, subds. (a), (d)(2).) As to count 5, the jury found true the allegation Medina kidnapped the victim during the commission of the offense. (Id., § 667.61, subds. (a), (c)(7), (e)(2).) The trial court sentenced Medina to an indeterminate term of 61 years to life in prison.
Medina challenges the conviction and sentence on the grounds the trial court erred by (1) overruling his objection to the prosecution's peremptory challenges to three, presumably Hispanic, prospective jurors; (2) ruling his trial counsel could not cross-examine one victim about three alleged instances of prior misconduct reflected in her arrest record; and (3) imposing two concurrent life sentences respectively on the second forcible rape count (count 2) and forced oral copulation count (count 5) because those offenses occurred against a single victim on a single occasion.
We conclude the trial court did not err by overruling Medina's objections under Batson v. Kentucky (1986) 476 U.S. 79, 88 (Batson)and People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler)to the prosecutor's three peremptory challenges. The trial court found the prosecutor's challenges to two of the three prospective jurors were based on genuine mistake and poor notetaking, which are legitimate reasons for a peremptory challenge, and the challenge to the third prospective juror was made for a valid, race-neutral reason. Substantial evidence supported those findings.
Under Evidence Code section 352, the trial court did not err by ruling Medina's trial counsel could not cross-examine one victim on three prior instances of alleged misconduct involving moral turpitude. The only evidence the victim engaged in such misconduct was her arrest report showing she had been arrested three times. The arrest report was inadmissible, and of the three arrests, two never led to charges being filed and the third resulted in a dismissal by the prosecution. Without evidence the victim actually engaged in the alleged misconduct, the probative value, if any, of cross-examination to impeach her therefore would have been substantially outweighed by the probability undue time would be consumed by a series of minitrials to establish her guilt or innocence of the crimes for which she had been arrested.
The Attorney General agrees, and we conclude, under the law in effect when the crimes were committed, only one life sentence could be imposed against Medina on the second forcible rape count and the forcible oral copulation count. We therefore reverse the sentences on those counts and remand solely for resentencing on them.
FACTS
I.
Crimes Against Victim A.
On November 17, 2000, 14-year-old A. was out walking with a friend when Medina pulled up alongside them in his car. The friend knew Medina and introduced him to A. At the friend's invitation, A. got into the car with Medina and a passenger named Mike, and they drove off. The three smoked marijuana and drove around Santa Ana.
After dropping off Mike at his house, Medina asked A. if she had ever "done acid." She said no and asked Medina when he would take her home. He agreed to take her home and gave her a slip of paper that had been "dipped" to put in her mouth. A. put the paper in her mouth but felt nothing.
Medina stopped to get food at a fast-food restaurant, then drove A. to the beach, where he parked the car near "a lot of boats." A. drifted in and out of consciousness and awoke to find Medina performing sexual intercourse with her. She managed to push him off and get out of the car, but he dragged her back in. She pleaded with him to stop. She asked Medina where her shoes were; he replied they were in the trunk of the car and she could have them when they were done.
A. got in the backseat of the car as Medina had ordered because he threatened to shoot her if she did not comply. Medina continued raping A. in the backseat as she continued trying to push him away until she managed to open a car door and run away wearing nothing but a shirt. She jumped a fence, ran through backyards, and tried unsuccessfully to break into two homes. At the third home, she threw a statue at a sliding glass door to break it open, ran into a bathroom, and grabbed a towel to cover her lower body. She told the occupants of the house she had been raped and asked them to call the police.
Newport Beach Police Officer Jon Lewis soon arrived at the house and found A. partially clothed, upset, and crying. She told officer Lewis she had been forcibly raped by a man named Oscar. A sexual assault examination of A. revealed injury to her vagina. DNA samples collected from A.'s breast, chin, and vulva matched Medina's DNA.
II.
Crimes Against Victim N.
On January 2, 2006, 17-year-old N. and her boyfriend T.M. agreed to take a ride with Medina in his car. During the ride, Medina pulled onto the shoulder of the freeway and, claiming something was wrong with the back of the car, told T.M. to get out and check. Once T.M. got out of the car, Medina drove off with N. When she asked what was going on, Medina told her "not to worry about it." She asked Medina to let her out of the car and tried to open a car door, but it was locked. She started yelling at Medina until he threatened to shoot her if she did not stop.
Medina drove for several hours before parking behind a warehouse, where he told N., who was seated in the rear, to move to the front seat of the car. She was scared and did not want to move, but Medina pulled her into the front seat, where he groped and tried to kiss her. N. yelled she wanted to go home. Medina told her to calm down and started talking about God. N. calmed him down by talking to him about religious subjects. Once calm, Medina drove to a bank and then to a fast-food restaurant to get food.
Medina drove to a residential area, parked, and ate his food. N. asked Medina when he was going to take her home. He replied that he was not going to take her home, he was going to take her "around," and he could take her anywhere he wanted, including "the dumpsters." N. was tired and dozed until she felt Medina unbuttoning her pants and heard him say, "come over here, come over here." As Medina came closer to her and continued removing her pants, he said, "I'm horny[, y]ou're making me horny." N. struggled as Medina raped her and yelled at him to stop.
After raping N., Medina fell asleep. She did not try to escape because it was late, nobody was around, and she was afraid that if she fled, Medina would catch her and hurt her more. When Medina woke up, he drove to a Bank of America in Azusa in order for N. to withdraw money from her account for him. Medina and N. went inside the bank, where she went to a teller window and withdrew money. When the transaction was completed, N. used the bank telephone to call her sister and, speaking in Vietnamese so Medina could not understand what she said, told her sister she had been kidnapped and was at the bank. While she spoke, Medina ordered her to hang up the telephone. N. complied but refused to leave the bank. Medina told her he would be waiting in the car and walked out. Meanwhile, the teller who had assisted N. received a phone call instructing him not to let her leave the bank.
Police officers soon arrived at the bank. Medina was apprehended as he tried to escape in his car. N. identified Medina at the scene and again in court. A sexual assault examination of N. was completed later that morning and DNA samples were collected from her vagina. Medina's DNA matched the DNA collected from N.
DISCUSSION
I.
The Trial Court Did Not Err by Overruling Medina's
Batson/Wheeler Objections.
The prosecutor exercised peremptory challenges against prospective jurors Louis C., Jessica C., and S.C.-T., all of whom have Spanish last names. Medina objected to those challenges pursuant to Batson, supra, 476 U.S. 79, and Wheeler, supra, 22 Cal.3d 258. As we shall explain, the trial court did not err by overruling Medina's Batson/Wheeler objections. A. Legal Background
Medina presumes all of the challenged jurors are Hispanic because each has a Spanish last name (his trial counsel described them as a "Latin" or "Hispanic" names). Rather than Hispanic (meaning of Latin American ancestry), it is entirely possible the challenged prospective jurors are Americans of Native American, Spanish, Basque, African, or Filipino ancestry.
A prosecutor's use of peremptory challenges to strike prospective jurors based on bias against members of a racial, religious, ethnic, or similar group violates a criminal defendant's right to equal protection under the Fourteenth Amendment to the United States Constitution (Batson, supra, 476 U.S. at p. 88) and right to trial by a jury drawn from a representative sample of the community under article I, section 16 of the California Constitution (Wheeler, supra, 22 Cal.3d at pp. 276-277).
Trial courts should use the following procedure and standard when handling motions challenging peremptory strikes: "First, the defendant must make out a prima facie case 'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' [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, fn. omitted; see also People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1008-1009.)
At the second step, the prosecutor's reasons for exercising a peremptory challenge need not be sufficient to justify a challenge for cause. (People v. Watson (2008) 43 Cal.4th 652, 670 (Watson).)The prosecutor may excuse jurors for arbitrary reasons, even hunches, as long as those reasons are not based on impermissible group bias. (Ibid.)
At the third step, the trial court must make a sincere and reasoned attempt to evaluate the prosecutor's stated reasons under the known circumstances of the case, the court's knowledge of trial techniques, and the court's observations of the prosecutor's examination of the venire and the manner in which the prosecutor has exercised challenges for cause and peremptory challenges. (Watson, supra, 43 Cal.4th at p. 670.) "'When the prosecutor's stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. But when the prosecutor's stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient.'" (People v. Stevens (2007) 41 Cal.4th 182, 193.)
We review a trial court's ruling on the third step—purposeful racial discrimination—for substantial evidence. (Watson, supra, 43 Cal.4th at p. 671.) We presume the prosecutor uses peremptory challenges in a constitutional manner and defer to the trial court's ability to distinguish "'bona fide reasons from sham excuses.'" (Id. at p. 670.) "'So 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.'" (Id. at pp. 670-671.) B. Batson/Wheeler Objections and the Trial Court's Ruling
1. The Challenged Jurors
Prospective juror Louis C. is a retired fabrication manager at Boeing, is married, and has three adult children. His cousin and the cousin's two sons are Los Angeles County Sheriff's deputies.
Louis C. revealed he had a close friend who molested the friend's stepdaughters about 35 years earlier. The friend was never charged with a crime. Louis C. promised he could separate his friend's situation from the case to be tried.
Prospective juror Jessica C. is a pharmaceutical sales representative and described herself as "single with a cat." She stated: "[M]y best friend . . . works in a law office. They do like civil trials and the ladies that I run with, their husbands are like Tustin P.D."
Prospective juror S.C.-T. is employed by Bank of America as a personal banker. He lives with his girlfriend and their two-year-old son. He has no friends in law enforcement and had never served on a jury. He disclosed he has a friend who "has two DUI's [(driving under the influence)]" and was arrested for "aiding and evading" and assault with a deadly weapon. Prospective juror S.C.-T. had no complaints about the way the police and the court system handled his friend's cases and confirmed he could be fair and impartial.
2. Defense Counsel's Batson/Wheeler Objections
The prosecutor challenged Louis C. with the prosecution's second peremptory challenge and challenged Jessica C. with the prosecution's third peremptory challenge. Defense counsel made a Batson/Wheeler objection, which the trial court overruled. After the prosecutor used the prosecution's seventh peremptory challenge to remove S.C.-T., defense counsel renewed the Batson/Wheeler objection. Due to the late hour, the court recessed for the day, requested the court reporter to prepare a rough transcript of voir dire, and set a hearing on the Batson/Wheeler objection for the next morning. The court stated, "my suggestion to the People would be come prepared to justify every one of those peremptories."
The next morning, the court invited defense counsel to make a prima facie showing of discrimination. Defense counsel argued that Louis C., Jessica C., and S.C.-T. were "Latin or Hispanic de[s]cent" and "were either of Latin surname or Hispanic or Latin de[s]cent." None of these three prospective jurors, defense counsel argued, had said anything in voir dire to suggest he or she would be biased or was unfit to serve as a juror. Instead of deciding whether defense counsel had met her burden of making a prima facie showing of discrimination, the trial court invited the prosecutor, pursuant to People v. Bonilla (2007) 41 Cal.4th 313, "to make a record of its race-neutral explanation for the exercise of these three peremptory challenges."
3. The Prosecutor's Explanations
a. Louis C.
The prosecutor offered this explanation for challenging prospective juror Louis C.: "What was of concern to the People is that [Louis C.] said that his cousin was charged with rape, and we are in a rape case. He also stated that he felt the court process was unfair with regard to that. He also stated that one of his best friends was a molester. And as this is a sexual assault case involving two minors [who] were raped, the People felt that his closeness to both of those issues might cause him to be biased in this case."
The trial court stated Louis C.'s friend was never charged with a crime and the court's notes did not reflect any statement by Louis C., regarding a cousin charged with rape. The prosecutor responded: "I wrote it on my Post-it note when I was listening to the gentleman speak. And I also have 'court unfair.' And I believed his answer was that he felt the court process was unfair. But that . . . he stated he thought he would still be fair but did not have confidence in that based on this being a rape case." The trial court replied its notes and the court reporter's notes reflected a different prospective juror, T.D., told the court his cousin had been charged with rape and did not think the court process was fair. Because its notes and the court reporter's notes were consistent, the trial court asked the prosecutor if she still believed her information was correct. The prosecutor responded: "All I know is that is what I thought when I excused him because when I heard that information and then [defense counsel] stood up and talked about project innocence I noticed [Louis C.] nodding very fervently in agreement with the principles that were being talked about."
The record confirms the trial court was correct. Louis C. did not mention anything about a cousin being charged with rape and did not express a belief the court system was unfair. Those comments were made by prospective juror T.D., who stated he was not sure whether he could fairly decide the case.
b. Jessica C.
The prosecutor gave this explanation for challenging prospective juror Jessica C.: "I just don't know whether she's actually Hispanic. I know it's a Hispanic last name, but I truly didn't even realize her last name until I was calling her to leave. Here are my issues with her. She stated that she was a sales rep but then she further verified she was in pharmaceutical sales. In law school I knew a huge group of people [who] worked in pharmaceutical sales and they all professed to be huge medical experts and knew all sorts of things about medical testing in the field. So that was a concern to me, but not a huge concern. But we do have DNA evidence in this case and I did—I was alerted to that. [¶] . . . [T]he basic thing I can say is I just didn't like her. When she stood up, I thought she was very flippant with the court. She use a tone of voice that—the best way I can describe it, which obviously would not be reflected on the record was like a Valley Girl or like a teenager. She spoke—I'm going to imitate it for the court. I know it's not going to come across on the record, but she said, 'my name is,' 'my occupation is,' 'and I don't have a spouse so he doesn't have an occupation,' 'and I don't have children so they don't have an occupation.' And I just thought she appeared to not be taking this process serious[ly]."
The trial court interrupted the prosecutor to point out that a different prospective juror, Nicole L., had made the flippant responses. After reviewing the court reporter's notes of Nicole L.'s voir dire responses, the trial court confirmed, "[Nicole L.] was clearly the individual who responded to the questions in the manner described by the prosecutor."
The prosecutor then stated: "I'm sorry that I mixed these two young ladies up. The other thing I did not like about [Jessica C.], I thought it was the same person, but she was a self-professed cat lady. I know that the court is smirking at that comment, but . . . I even went home and ran that issue by my husband last night. It's quirky, but people who get up in court and say that they are a cat lady, it's just odd."
The trial court again interrupted the prosecutor to point out that Jessica C. did not describe herself as a "cat lady," but stated simply she is "single, no children, single with a cat." The court commented, "once again I have to wonder about your note taking as it relates to confusing prospective jurors and attributing to these two Hispanic jurors statements that they did not make." The prosecutor claimed she "never had this issue before" and was "usually a very good note taker and detail[] orient[]ed."
The prosecutor then offered another reason for challenging Jessica C. The prosecutor stated she did not like Jessica C.'s statement that "people that she hung out with dated Tustin cops." The prosecutor believed Jessica C. "did not want to be here" because "[e]very time I tried to look at her and smile I didn't get a good vibe from her."
c. S.C.-T.
The prosecutor gave this explanation for challenging prospective juror S.C.-T.: "I really struggled with this because I really liked him. He seemed like a really personable young man. . . . My concern started when he said his friend has a [Penal Code section] 245 because the court ruled the 245 in our case as in the case of Mr. Medina would be relevant to impeach him, and I was concerned about him not thinking that would be relevant to impeach the credibility of Mr. Medina should he take the stand in this case. Because one of his good friends had a 245 and he didn't think it was a big deal. [¶] The problem I ran into is after I questioned the first 21 in 20 minutes, I realized that [S.C.-T.] works at Bank of America and he also resides in Santa Ana. And the Bank of America in Santa Ana and the Bank of America in Azusa are two huge factors in my case." (Italics omitted.) The prosecutor explained she had to decide which prospective juror among several to challenge, and realized she was not comfortable with having S.C.-T. on the jury due to the "245 and the Bank of America issue." (Italics omitted.)
The trial court asked the prosecutor to explain the connection with Bank of America. The prosecutor responded: "The victim's sister in this case went to the Santa Ana branch to put in a message in the account, because she believed the defendant was trying to get her sister to get money out or that they might go to the bank and so she went there and had them put in a letter in the bank. . . . I believe it was the Santa Ana branch where she put the letter in. . . . [T]he whole—the Bank of America, two separate locations were used and it also involves the . . . victim's bank records." (Italics omitted.)
4. The Trial Court's Ruling
The trial court concluded defense counsel had made a prima facie showing "based on the fact the defendant is Hispanic and three of the seven peremptories exercised by the People were directed at persons of Hispanic ethnicity." The court accepted the prosecutor's race-neutral explanations for challenging Louis C., Jessica C., and S.C.-T. and denied the Batson/Wheeler motion.
The court found the prosecutor's challenges to Louis C. and Jessica C. were based on mistake: "I don't mean this to be a personal attack, . . . but frankly, in the court's view, two of these peremptories, [Louis C.] and [Jessica C.], significant factors that you have offered to the court in justification for your excusing those two jurors was frankly wrong information. As to [Louis C.], you attributed to him erroneously statements that juror [T.D.] had made to the court regarding his cousin being [charged with] rape[] and the system being unfair. As to [Jessica C.], you attributed to her statements made by [Nicole L.]. And as a result, based on attributing information from other prospective jurors to these two Hispanic jurors, I'm not saying those were the sole reasons that you excused them, but certainly as to [Louis C.], a significant factor in excusing him was your erroneous belief that he advised the court that his cousin had been charged with rape and he felt the system was unfair."
The court found the prosecutor did provide a proper justification for challenging S.C.-T.: "As to [S.C.-T.], frankly, I find that explanation to be well taken in light of his employment situation with a bank that doesn't necessarily play a pivotal role, but a significant role in the case and possibly his employment at a branch that may have been involved in this case. I find that to be an exercise of a peremptory challenge that was certainly race neutral."
The trial court concluded the prosecutor's challenges to Louis C. and Jessica C. were the result of poor notetaking rather than discrimination: "As to the other two, . . . ultimately this court has to decide whether subjectively the People were seeking to exclude . . . those two jurors because of their ethnicity and frankly I don't find that. I find that they were excused in part because of incredibly poor note taking by the prosecutor attributing to them statements that they did not make. So I don't find that [the prosecutor] has exercised any of these peremptories individually or collectively based on racial grounds. In one case, as to [S.C.-T.], it would appear to be well founded grounds and on the other two, based on just plain misinformation." C. Analysis
In explaining the peremptory challenges, the prosecutor attributed to Louis C. and Jessica C. statements made by other prospective jurors, and erroneously attributed to Jessica C. the statement that she was a "cat lady." Were these explanations pretexts for discrimination, as Medina argues, or genuine mistakes, as the trial court found and the Attorney General argues?
"First, a 'mistake' is, at the very least, a 'reason,' that is, a coherent explanation for the peremptory challenge. It is self-evidently possible for counsel to err when exercising peremptory challenges. Second, a genuine 'mistake' is a race-neutral reason. Faulty memory, clerical errors, and similar conditions that might engender a 'mistake' of the type the prosecutor proffered to explain his peremptory challenge are not necessarily associated with impermissible reliance on presumed group bias. [Citation.] Third, a 'mistake' may be a reason based on 'specific bias' [citation] where, as appears to have been the case here, the prosecutor's error is one of erroneously believing, owing to clerical error, that a prospective juror had earlier been evaluated as specifically biased, when in fact she had not. Finally, a 'mistake' is a reason 'related to the particular case to be tried' [citation] to the extent the possibility that genuine errors of this sort will be made exists in every case." (People v. Williams (1997) 16 Cal.4th 153, 188-189 (Williams).)
How do we tell a genuine mistake from a pretext or sham excuse? Williams explains: "We realize the possibility always exists that counsel called upon to explain a questionable peremptory challenge will take refuge in a disingenuous claim the challenge was mistakenly made. In such a case, 'we rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.' [Citation.] We and the United States Supreme Court give great deference to the trial court's determination that the use of peremptory challenges was not for an improper or class bias purpose. [Citations.]" (Williams, supra, 16 Cal.4th at p. 189.)
Here, the trial court dealt with counsel face-to-face and was in a far better position than we are to assess credibility, honesty, and motivation. The trial court listened to the prosecutor, diligently questioned her explanations for challenging Louis C. and Jessica C., and concluded poor notetaking, not intent to discriminate, caused the prosecutor to mistakenly attribute statements to them. The prosecutor's belief Jessica C. spoke in the manner of a "Valley Girl" was not entirely mistaken given Jessica C.'s misuse of the word "like." In any event, we defer to the trial court's determination.
Medina argues the prosecutor's claim to be a good note taker and "detail[] orient[]ed" undermines the claim of mistake. Yet, here too, we defer to the trial court's good judgment in determining whether the prosecutor's claim to be a good note taker was credible, or, if credible, whether this was a situation in which a good note taker made mistakes.
In addition, the prosecutor challenged Louis C. for the valid (and factually correct) reason that a close friend of his had molested the friend's stepdaughters some years ago. This case included allegations Medina raped a 14-year-old girl. It was reasonable for the prosecutor to be concerned about Louis C. serving on the jury.
The prosecutor also challenged Jessica C. on the ground she was a pharmaceutical sales representative, and, in the prosecutor's experience, people in pharmaceutical sales "all profess[] to be huge medical experts and kn[o]w all sorts of things about medical testing in the field." Although the prosecutor acknowledged this was not "a huge concern," it was a valid one considering the DNA evidence to be presented during trial. Finally, the prosecutor did not get "a good vibe" from Jessica C., and her voir dire responses led the prosecutor to form the impression she "did not want to be here." This too is a valid reason: "[N]othing in Wheeler[, supra, 22 Cal.3d 258] disallows reliance on the prospective jurors' body language or manner of answering questions as a basis for rebutting a prima facie case." (People v. Fuentes (1991) 54 Cal.3d 707, 715.)
The trial court found the prosecutor challenged S.C.-T. for the race-neutral reason that he worked at a Bank of America branch office that might be the subject of testimony at trial. That finding is supported by substantial evidence. N. withdrew money and sought help from a teller at a Bank of America branch in Azusa, where Medina was apprehended. The prosecutor explained N.'s sister went to the Bank of America Santa Ana branch to put a message in N.'s account.
Medina argues the trial court was speculating about which branch office S.C.-T. worked at, and, if the prosecutor's concern were legitimate, the prosecutor should have questioned S.C.-T. on the subject. The prosecutor's reasons for exercising a peremptory challenge need not be sufficient to justify a challenge for cause. (People v. Watson, supra, 43 Cal.4th at p. 670.) A prosecutor is not necessarily required to question a prospective juror to confirm the factual basis for a peremptory challenge. In People v. Lenix (2008) 44 Cal.4th 602, 629, the prosecutor challenged a prospective African-American juror whose brother-in-law had been killed in a gang-related murder. The prosecutor explained his decision was based on his experience that victims of gang-related crimes often are gang members, and gang affiliation was an issue at trial. (Ibid.)The defendant argued the prosecutor never questioned the prospective juror to confirm her brother-in-law was a gang member. (Ibid.)The California Supreme Court rejected that argument and concluded the prosecutor was entitled to rely on the concern the prospective juror's family had gang associations. (Ibid.)
The fact S.C.-T. worked at a Bank of America branch, though not sufficient for a challenge for cause, was plausible and a sufficient nexus to the case to justify challenging him. The prosecutor's concern that prospective juror S.C.-T. worked at the Bank of America Santa Ana branch involved in this case was a sufficient race-neutral explanation without further questioning.
As Medina argues, the prosecutor's failure to engage in voir dire on an issue of concern is evidence that could suggest a sham explanation and pretext for discrimination. (Miller-El v. Dretke (2005) 545 U.S. 231, 246.) But failure to question the prospective juror does not conclusively establish pretext. In assessing the credibility of the prosecutor's explanations, the trial court considers other factors, including the prosecutor's demeanor, the plausibility of the prosecutor's stated reasons under the known circumstances of the case, and whether the explanations have some basis in accepted trial strategy. (People v. Mills (2010) 48 Cal.4th 158, 174-175.) The record in this case demonstrates the trial court made "'a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered.'" (Watson, supra, 43 Cal.4th at pp. 670-671.)
II.
The Trial Court Did Not Err by Ruling Defense Counsel
Could Not Cross-examine Victim A. on Three Prior Instances
of Alleged Misconduct.
Medina argues the trial court erred by ruling his trial counsel could not cross-examine A. on three instances of alleged prior misconduct involving moral turpitude. He argues the trial court violated his right to confront witnesses guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution by so restricting his cross-examination of A.
At trial, Medina argued A., a runaway juvenile, fabricated her story about being sexually assaulted to obtain a change in her juvenile residential placement from Orange County to Los Angeles County. He sought to cross-examine A. and impeach her credibility with instances of alleged prior misconduct supposedly revealed in her arrest report. The arrest report showed A. had been arrested for petty theft in 2001, loitering with intent to commit prostitution in 2002, and falsely identifying herself to a police officer in 2002.
Both Medina and the Attorney General assert the arrest for false identification occurred in 2004. The record shows the arrest occurred in 2002.
--------
At a pretrial hearing, the trial court ruled defense counsel could not question A. on the 2001 petty theft arrest because there was no evidence showing charges were ever filed. The court ruled defense counsel could not question A. on the arrest for loitering with intent to commit prostitution because the prosecutor had dismissed the charges and because "the passage of time between this alleged incident in count 1 and the arrest for loitering for purposes of prostitution to not be particularly helpful . . . in evaluating her credibility as a witness." The court stated, "I do find that there are other more probative matters that I am going to allow you to impeach her with or cross-examine her with that are, in the court's view, much more probative of her credibility."
When A.'s direct examination was completed, defense counsel moved for permission to cross-examine A. on her arrest in 2002 for falsely identifying herself to a police officer. The trial court denied the motion because no evidence had been presented regarding the arrest other than the arrest report.
Medina argues each of the three arrests involved crimes of moral turpitude and, therefore, his trial counsel should have been permitted to cross-examine A. on her alleged misconduct leading to those arrests to impeach her testimony. Nonfelony conduct involving moral turpitude is admissible in a criminal case to impeach a witness. (People v. Wheeler (1992) 4 Cal.4th 284, 294.) But evidence of prior arrests is inadmissible to prove guilt or to impeach a witness. (People v. Anderson (1978) 20 Cal.3d 647, 650; see also People v. Medina (1995) 11 Cal.4th 694, 769 ["mere arrests are usually inadmissible, whether as proof of guilt or impeachment"]; People v. Lopez (2005) 129 Cal.App.4th 1508, 1523 ["it is established that evidence of mere arrests is inadmissible because it is more prejudicial than probative"].) The arrest report and any other evidence of A.'s arrests were therefore inadmissible for impeachment.
Medina argues his trial counsel was not seeking to admit the arrest report in evidence or to question A. about the arrests. "Instead, as [Medina] stated in his opening brief, [Medina] sought to use the information contained in the arrest report to question A[.] about the underlying incidents of prior misconduct." This assertion assumes the conclusion that A. engaged in misconduct. The arrest report showed only that A. had been arrested for petty theft, loitering with intent to commit prostitution, and falsely identifying herself to a police officer. She was never convicted of any of those offenses and there was no evidence she committed them. The arrest report did not disclose what conduct A. engaged in to prompt her arrests on those three occasions. Medina's trial counsel made no offer of proof to show the nature of the underlying conduct.
Cross-examining A. on the three alleged instances of misconduct thus would have posed the threat of creating a series of minitrials to establish her guilt or innocence of the crimes for which she was arrested. For this reason, the record supports the trial court's ruling under an Evidence Code section 352 analysis. Section 352 grants the trial court discretion to exclude evidence if its probative value "is substantially outweighed by the probability that its admission will . . . necessitate undue consumption of time or . . . create substantial risk of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) "[T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." (People v. Wheeler, supra, 4 Cal.4th at p. 296.)
Evidence of A.'s conduct leading to her prior arrests might be probative of her credibility only if it were shown that conduct amounted to some form of misconduct involving moral turpitude. To reach that point, an undue amount of time would have been consumed in effect trying A. of the misdemeanors for which she had been arrested. Not only would probative value, if it were ever established, necessitate undue consumption of time, but the cross-examination and redirect examination leading to a determination of such probative value would have created a substantial risk of confusing the issues and misleading the jury.
The trial court did not expressly make an Evidence Code section 352 ruling. It was not necessary to do so: "In ruling on an Evidence Code section 352 objection, the trial court need neither expressly weigh prejudicial effect against probative value nor expressly announce compliance with the statute." (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1080.)
As for Medina's constitutional claim, "'not every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance.'" (People v. Ayala (2000) 23 Cal.4th 225, 301.) The trial court's restrictions on A.'s cross-examination did not violate Medina's constitutional rights. Medina was permitted to impeach A. by cross-examining her regarding one instance in which she provided a false name to a police officer, running away from her juvenile placement facility, and her marijuana use.
III.
Under Penal Code Former Section 667.61, Only One Life
Sentence Could Be Imposed on Counts 2 and 5.
The trial court sentenced Medina on counts 2 (forcible rape against N.) and 5 (forcible oral copulation against N.) to concurrent terms of 25 years to life and 15 years to life, respectively, under the One Strike law, Penal Code section 667.61, subdivisions (a), (b), (d)(2), and (e)(1). Those terms were doubled under the Three Strikes law, Penal Code section 667, subdivisions (b) through (i), and a consecutive five-year term was added for Medina's prior serious felony conviction pursuant to section 667, subdivision (a)(1).
Medina argues that under the law in effect when he committed the crimes charged in counts 2 and 5, only one indeterminate life sentence could be imposed under those counts because the crimes were committed against a single victim on a single occasion. The Attorney General agrees.
Counts 2 and 5 were proven to have been committed against N. in January 2006 under circumstances which qualified Medina for prison terms of 25 years to life and 15 years to life. (Pen. Code, § 667.61. subds. (a), (b).) In January 2006, former subdivision (g) of section 667.61 read, in relevant part: "The term specified in subdivision (a) or (b) shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion. If there are multiple victims during a single occasion, the term specified in subdivision (a) or (b) shall be imposed on the defendant once for each separate victim." (Stats. 1998, ch. 936, § 9, eff. Sept. 28, 1998, enacting Assem. Bill No. 105 (1997-1998 Reg. Sess.).)
The term "single occasion" in Penal Code section 667.61, former subdivision (g) meant "[the] sex offenses . . . were committed in close temporal and spatial proximity." (People v. Jones (2001) 25 Cal.4th 98, 107.) In People v. Fuller (2006) 135 Cal.App.4th 1336, 1342-1343, the court concluded three rapes occurred on a single occasion when all three occurred within an hour and in the same apartment.
The trial court found the offenses committed and charged in counts 2 and 5 were "closely related both in time and in terms of the conduct and the interaction of the victimization of [N.]." This finding was supported by substantial evidence. Counts 2 and 5 were committed against a single victim, N. She testified Medina forcibly raped her and orally copulated her in a single course of conduct, within moments of each other, in his parked car. The offenses charged in counts 2 and 5 were therefore in close temporal and spatial proximity.
The trial court erred, however, by running the sentence on count 5 concurrently with the sentence on count 2. We therefore reverse the sentences on counts 2 and 5 and remand solely for the purpose of resentencing on those counts under Penal Code section 667.61, former subdivision (g).
DISPOSITION
The sentences on counts 2 and 5 are reversed and the matter is remanded only for the purpose of resentencing on those counts under Penal Code section 667.61, former subdivision (g). In all other respects, the judgment is affirmed.
FYBEL, J. WE CONCUR: MOORE, ACTING P. J. IKOLA, J.