People v. Polino CA5 ( 2021 )

Filed 4/2/21 P. v. Polino CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F077606
Plaintiff and Respondent,
(Super. Ct. No. F16902212)
v.
JOSE ANTONIO POLINO, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. Kristi Culver
Kapetan, Judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Matthew Rodriguez, Acting Attorney General,
Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Daniel B.
Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted Jose Antonio Polino (defendant) of committing sex crimes
against two children. His appeal concerns an allegation of gender discrimination during
the jury selection process. There are additional claims of ineffective assistance of
counsel, instructional error, and sentencing error under Penal Code section 654.
(Undesignated statutory references are to the Penal Code.) We will modify the judgment
to stay imposition of punishment on two counts and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was accused of molesting his stepdaughter (victim 1) and
stepgranddaughter (victim 2) multiple times between November 2007 and March 2011.
Defendant was between the ages of 29 and 32 years old during that time period. Victim 1
was between the ages of six and eight on the dates relevant to her. Victim 2 was between
the ages of nine and 11 on the dates relevant to her.
An information filed by the Fresno County District Attorney charged defendant
with 13 criminal counts. The charges involving victim 1 alleged lewd acts upon a child
under the age of 14 in violation of section 288, subdivision (a) (counts 1–2), and sexual
acts with a child under the age of 11 in violation of section 288.7, subdivision (b) (counts
3–6). The charges involving victim 2 also alleged violations of sections 288, subdivision
(a) (counts 7–11), and 288.7, subdivision (b) (counts 12–13). A multiple victim
allegation was pleaded in relation to counts 1, 2, 7, 8, 9, 10, and 11. (§ 667.61, subd.
(e)(4).)
The case went to trial in April 2018. During jury selection, defendant made two
unsuccessful motions based on Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). Only the second motion, which
alleged gender discrimination, is at issue in this appeal. Background information on the
Batson/Wheeler claim is provided in the Discussion, post.
The People’s case-in-chief included testimony from the victims and their mothers,
two police officers who had investigated the allegations, and an expert on child sexual
abuse accommodation syndrome (CSAAS). The defense case consisted of testimony by
defendant and three character witnesses. The claims on appeal do not require a detailed
summary of the trial evidence. Where relevant to a specific claim, additional background
is provided in the body of this opinion.
2.
Defendant was found guilty on all counts involving victim 2. For the charges
involving victim 1, defendant was convicted on counts 1, 2, and 5, and acquitted on
counts 3, 4, and 6. The multiple victim allegation was found true. He was sentenced to
an aggregate prison term of 150 years to life.
DISCUSSION
I. Batson/Wheeler Claim
A. Background
Jury selection began with 113 prospective jurors. The trial court excused 32
people for hardship reasons. The remaining 81 members of the venire consisted of 37
men and 44 women. The prospective jurors completed questionnaires asking about their
age and gender, educational, occupational, and criminal history, their proficiency with the
English language, and their potential biases.
Eighteen people were selected to participate in the first round of voir dire. The
gender breakdown was eight men and 10 women. Following questioning by the judge,
prosecutor, and defense counsel, two of the women and one of the men were excused by
the trial court. The prosecutor used his first peremptory challenge against Prospective
Juror 015052405, a Hispanic male. The defense made a Batson/Wheeler motion based on
alleged racial bias, which was denied for failure to establish a prima facie case of
discrimination. The peremptory challenges continued with defense counsel’s removal of
a male prospective juror. The prosecutor used his second peremptory challenge against a
man, Prospective Juror 015521273. Defense counsel then challenged a female
prospective juror.
The prospective jurors who had been excused or challenged were replaced by
three men and four women. One of the men was excused by the trial court following a
second round of questioning. The prosecutor’s next three peremptory challenges were
used against men: Prospective Jurors 015281795, 014984695, and 015100060. Defense
counsel’s next three peremptory challenges were all used against women.
3.
In the third round of voir dire, the most recently excused and challenged
venirepersons were replaced by six men and one woman. Three of the men were
subsequently excused by the trial court. The prosecutor’s sixth and seventh peremptory
challenges were used against men: Prospective Jurors 015384851 and 015594584.
Defense counsel elected to remove one woman and one man, in that order.
The individuals removed from the venire in the third round were replaced by two
men and five women. After a fourth round of questioning, one woman was excused by
the trial court and another woman was peremptorily challenged by the defense counsel.
The prosecutor’s eighth peremptory challenge was used against a man, Prospective Juror
015530014. Defendant made a Batson/Wheeler motion based on alleged gender bias.
The trial court found the People’s removal of eight men and no women established
a prima facie case of gender discrimination. The prosecutor then provided explanations
for his strikes. Following each explanation, the trial court made a finding in favor of the
People. In most instances, the judge merely said the reasons given were “sufficient.”
This excerpt from the record contains the final ruling on defendant’s motion:
“THE COURT: … So the motion’s denied. I found a prima facie
case, but I did find sufficient explanation for each challenge.
“[PROSECUTOR]: Thank you, your Honor.
“[DEFENSE COUNSEL]: Is the Court unwilling to hear further
argument from defense?
“THE COURT: I don’t think I need to hear further argument from
defense. It’s up to the Court, as long as there’s a statement made that’s
sufficient and proper explanations are given that are accepted, that’s
sufficient under the case law.
“[DEFENSE COUNSEL]: Okay. I’m objecting to the incremental
process of finding each challenge as being sufficient without considering
the cumulative fact of eight challenges in a row without any challenges of
female jurors, but I think that in essence would be my further comment.
“THE COURT: Okay. All right. So we’ll go ahead and let the jury
start coming in.”
4.
The proceedings resumed with three men and nine women occupying the first 12
seats in the jury box, and one man and two women as potential alternate jurors. Both
sides refrained from using their ninth peremptory challenges. The parties stipulated to
excusing one of the potential alternate jurors, leaving a man as the first alternate and a
woman as the second alternate.
On the sixth day of trial, a male juror (Juror No. 33) was dismissed for failure to
appear. He was replaced by the male alternate, Juror No. 37. Thus, the jury consisted of
three men and nine women at all stages of trial.
B. Applicable Law
A Batson/Wheeler motion requests dismissal of the venire based on the alleged
misuse of peremptory challenges. (See People v. Yeoman (2003) 31 Cal.4th 93, 115;
People v. Williams (1997) 16 Cal.4th 635, 662, fn. 9.) “A prosecutor’s 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.” (People v. Avila (2006) 38 Cal.4th 491,
541.) Peremptorily challenging a venireperson because of their gender is prohibited
under state and federal law. (See J. E. B. v. Alabama ex rel. T. B. (1994) 511 U.S. 127,
129; People v. Jurado (2006) 38 Cal.4th 72, 104; People v. Williams (2000) 78
Cal.App.4th 1118, 1125 [“Peremptory challenges may not be used to exclude male jurors
solely because of a presumed group bias”].)
Trial courts use a three-step procedure to evaluate Batson/Wheeler motions.
“First, the defendant must make out a prima facie case ‘by showing that the totality of the
relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second,
once the defendant has made out a prima facie case, the ‘burden shifts to the State to
explain adequately the racial exclusion’ by offering permissible race-neutral justifications
for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial
5.
court must then decide … whether the opponent of the strike has proved purposeful racial
discrimination.’” (Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted.)
“Where, as here, the trial court ruled pursuant to the third stage of the analysis, we
skip to that stage to examine whether the trial court properly credited the prosecutor’s
reasons for the challenges.” (People v. Miles (2020) 9 Cal.5th 513, 539.) The standard
of review “‘is deferential, examining only whether substantial evidence supports its
conclusions.’” (Ibid.) “‘Usually, “the issue comes down to whether the trial court finds
the prosecutor’s race-neutral explanations to be credible. Credibility can be measured by,
among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable,
the explanations are; and by whether the proffered rationale has some basis in accepted
trial strategy.”’” (People v. Smith (2018) 4 Cal.5th 1134, 1147.)
“‘[O]ne form of circumstantial evidence that is relevant, but not necessarily
dispositive, on the issue of intentional discrimination’ is a comparison of the treatment of
an excused juror with other similarly situated jurors.” (People v. Smith, supra, 4 Cal.5th
at pp. 1147–1148, quoting People v. Lenix (2008) 44 Cal.4th 602, 622.) “‘[E]vidence of
comparative juror analysis must be considered … even for the first time on appeal if
relied upon by the defendant [if] the record is adequate to permit the urged comparisons.’
[Citation.] But when, as here, a defendant ‘wait[s] until appeal to argue comparative
juror analysis,’ our ‘review is necessarily circumscribed,’ and we ‘need not consider
responses by stricken panelists or seated jurors other than those identified by the
defendant.’” (Smith, at p. 1148, italics added, quoting Lenix, at pp. 622, 624; accord,
People v. Lomax (2010) 49 Cal.4th 530, 572.)
“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.] 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.” (People v. Burgener (2003) 29 Cal.4th 833, 864.)
6.
C. Analysis
Defendant reasserts his trial counsel’s argument “that the court failed to consider
the cumulative fact that all eight of the prosecutor’s challenges were of men.” Put
differently, he alleges the trial court “found each of the eight explanations individually
‘sufficient’ without considering them collectively to determine whether they were
credible.” Defendant relies on a federal appellate decision, Coulter v. Gilmore (7th Cir.
1998) 155 F.3d 912 (Coulter).
The Coulter case is distinguishable. There, a trial court had “relied on an
unorthodox procedure for dealing with each side’s use of its peremptory challenges.”
(Coulter, supra, 155 F.3d at p. 918.) “Instead of allowing each side to exercise its
challenges until such time as an objection was raised, the trial judge simply stated that
after it questioned each set of jurors, it would take a recess during which each side would
compile a list of challenges. Each side would then be required to state on the record its
legitimate reasons for each challenge. [¶] By adopting this procedure, the trial judge
completely bypassed the stage at which the defendant objects to the state’s use of its
peremptory challenges and establishes his prima facie case of purposeful discrimination
in a deliberate proceeding.” (Ibid.)
In Coulter, “nine of the state’s ten exercised peremptories were used to strike
potential African-American jurors.” (Coulter, supra, 155 F.3d at p. 914.) The defendant
made three Batson motions, and each was denied “summarily and without analysis.” (Id.
at pp. 916, 921.) On the state’s appeal from a federal district court’s granting of habeas
relief, the Seventh Circuit Court of Appeals concluded the evidence established a prima
facie case of group bias (id. at pp. 918–919) and further held the trial court erred “by
adhering to a procedure that precluded it—both as a systematic matter and in fact—from
performing a ‘similarly situated’ analysis based on the ‘totality of the circumstances’”
(id. at p. 921). A comparative juror analysis showed “remarkable similarities between the
excluded African-Americans and the non-excluded Caucasians.” (Id. at p. 920.)
7.
Unlike in Coulter, the trial court below used the standard three-step procedure for
resolving Batson/Wheeler motions. The court’s consideration of the totality of the
circumstances can be inferred from its finding of a prima facie case of gender bias. (See
People v. Scott (2015) 61 Cal.4th 363, 383 [“the opponent of the strike must make out a
prima facie case by showing that the totality of the relevant facts gives rise to an
inference of discriminatory purpose”].) Furthermore, a trial court is presumed to have
known and followed the applicable law. (People v. Bradford (2010) 187 Cal.App.4th
1345, 1355; People v. Castaneda (1975) 52 Cal.App.3d 334, 342.)
“When the trial court has inquired into the basis for an excusal, and a
nondiscriminatory explanation has been provided, we … assume the court understands,
and carries out, its duty to subject the proffered reasons to sincere and reasoned analysis,
taking into account all the factors that bear on their credibility.” (People v. Mai (2013)
57 Cal.4th 986, 1049, fn. 26, italics added.) The denial of defendant’s motion thus
implies all necessary findings were made at the third stage of the Batson/Wheeler
analysis. (Ibid.; see People v. Jones (2011) 51 Cal.4th 346, 360 [“The trial court denied
defendant’s motion, implicitly finding the prosecutor’s explanation credible”]; People v.
Reynoso (2003) 31 Cal.4th 903, 926 [acknowledging trial court’s “implied finding” that
prosecutor’s explanations “were sincere and genuine”].) “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.” (People v. Silva (2001) 25 Cal.4th
345, 386.) As we will discuss, the prosecutor’s explanations were plausible and are
supported by the record.
Defendant also focuses on the ultimate composition of his jury. Speaking in terms
of the 12 original jurors and two alternates, he emphasizes “the fact that only 28.5% of
the jurors selected were men.” As we have noted, the final ratio of men to women was
even lower because a male juror was replaced by the male alternate during trial.
8.
There is no authority for the proposition “that statistical evidence about the
underrepresentation of particular groups on a venire, or jury panel, can be sufficient to
undermine a trial court’s considered findings at the third step of a Batson/Wheeler
analysis.” (People v. Winbush (2017) 2 Cal.5th 402, 446.) “While statistical facts may
retain some relevance at Batson’s third step as part of the universe of evidence bearing on
the plausibility of asserted justifications for a strike [citation], no case has suggested such
facts alone could be sufficient to establish pretext.” (Id. at p. 447; accord, People v.
Smith, supra, 4 Cal.5th at p. 1147 [“While still relevant, the statistical showing that
motivated the finding of a prima facie case is not dispositive at this third stage”].)
Moreover, the fact that only three of the 12 jurors were men is not as statistically
significant as defendant would have us believe.
Scrutiny of the record reveals there were never more than five men occupying the
first 12 seats in the jury box during voir dire. The original panel consisted of eight men
and 10 women, but nine of the women were initially assigned to the first 12 seats. Had
none of the original panel members been removed, the gender breakdown would have
been the same as it was throughout the trial, i.e., three men and nine women.
The second round of challenges began with five men and seven women occupying
the first 12 seats in the box. The third round began with only four men in those seats.
Although six of the seven people added to the box in the third round were men, three of
them were later excused by the trial court. Defense counsel used his seventh peremptory
challenge against a man located in seat 4.
The final round of voir dire began with only three men in the first 12 seats. The
prosecutor used his eighth peremptory challenge against a man located in seat 13—a seat
subsequently occupied by the male alternate who later served on the jury. All of this is to
say the underrepresentation of men on the jury was due to a multitude of circumstances.
Also relevant is the prosecutor’s acceptance of a panel with three male jurors and one
9.
male alternate when he could have exercised more peremptory challenges.1 (See People
v. Johnson (2015) 61 Cal.4th 734, 760 [“Although not conclusive, the fact that the jury
included a member of the group allegedly discriminated against ‘is an indication of good
faith in exercising peremptories’”].)
Lastly, defendant argues comparative juror analyses show the prosecutor’s
explanations for his peremptory challenges were pretextual. We will discuss those
explanations in chronological order. For the following reasons, we reject defendant’s
argument and conclude the Batson/Wheeler motion was appropriately denied.
1. Prospective Juror 015052405
The prosecutor used his first peremptory challenge to remove Prospective Juror
015052405. This panel member was a 36-year-old man who had immigrated to the
United States from Mexico. He had a ninth grade education and spoke English as a
second language. On his questionnaire, he answered “Yes” to a question asking if he had
any difficulty “communicating or understanding” English. During voir dire, he estimated
his fluency was about “90 percent.”
The prospective juror told the judge, “I understand mostly everything you say, but
there is some words that I can still, you know, like trying to figure out or just learning at
this time, you know. And I personally don’t think, you know, it’s the moment to be
learning anything.” The judge told him procedures could be implemented to explain
things he did not understand.
The prosecutor asked, “Is there anyone here on the panel who would treat anything
that a minor would say with some suspicion merely because they are under the age of
18?” Despite posing the question to the entire group, he immediately engaged with a
female panelist who taught kindergarten. Afterward, Prospective Juror 015052405 raised
1When a defendant is charged with one or more offenses punishable by death or a life
sentence, both the defendant and the People are statutorily entitled to 20 peremptory challenges.
(Code Civ. Proc., § 231, subd. (a).) In other felony cases, each side is entitled to 10 peremptory
challenges. (Id., subds. (a), (b).)
10.
his hand and said, “Yeah. It might not be so related, but I had an experience whether
trusting my son or whether trusting the school where my son was attending to.” He then
told a story about how his son had been accused of stealing items from a classroom.
After listening to the story, the prosecutor asked, “Do you have any issues if you
would be asked to judge the credibility of somebody who is under the age of 18?” He
replied, “It’s like, you know, she said, the age difference will matter a lot.” It is unclear
what Prospective Juror 015052405 meant in reference to what “she said” because none of
the venirepersons had made any such remarks.
The prosecutor’s explanation for removing Prospective Juror 015052405 was as
follows:
“[He] stated that, and from his questionnaire, that he had a ninth
grade education, that English was his second language, that he understood
approximately 90 percent of the words of the English language and that if
during the trial, as he put it, big words were used—the Court invited him to
try to write them down, pass them down, give them to the bailiff so that he
could understand the words that were being used. The People took that into
consideration as well as the timeframe that that would take given the fact
that we are going to be using rather large words when we’re talking about
jury instructions and what terms of art have a specific legal meaning.
“In addition, your Honor, the People took into account the fact that
[Prospective Juror 015052405] was going on at the end of his questions
when I was asking him about the instance regarding his son and the alleged
theft of what I picked up was either homework or materials of some kind
from the school. It was a little hard to understand, but I believe that he was
stating that he automatically believed his son and that he went forward to
the school, specifically viewing them as authority figures, essentially
demanding to meet with the principal immediately and to have them prove
the case against his son. [¶] … [¶]
“In addition, your Honor, he also talked about the fact that while he
does speak Spanish is his primary language [sic], he did talk about the fact
that there were translators who were going to be present and he did state for
the record that he would be able to follow along with their translations as
opposed to substituting his own. Taking all of that into consideration, your
Honor, were the reasons why I exercised the challenge.”
11.
A prospective juror’s inability to fully comprehend the trial proceedings in English
is a neutral and permissible reason for exercising a peremptory challenge. (See People v.
Jurado (2006) 38 Cal.4th 72, 107 [stricken panelist “indicated that she had been born in
the Philippines, thereby suggesting that English might not be her first language”]; People
v. Ayala (2000) 24 Cal.4th 243, 266 [stricken panelist “struggled with English and did not
understand the proceedings”].) Defendant concedes the prosecutor’s explanations were
facially valid and are supported by the record. However, he argues there was a notable
similarity between Prospective Juror 015052405 and Juror No. 26. Focusing on
Prospective Juror 015052405’s story about his son, defendant argues Juror No. 26
“believed that her son was not guilty of the trespass of which he was accused … [y]et the
prosecution did not excuse [her].” The comparison is extremely attenuated.
Juror No. 26 was a 74-year-old woman who had no difficulty speaking or
understanding English. Her highest level of education was an associate’s degree in “Art
and Business.” On her questionnaire, when asked if she or any family members had ever
been charged with a crime, she indicated her 52-year-old son had once been charged with
“trespass” but also said the case got dismissed.
The prosecutor asked Juror No. 26 about what she had written, and she explained:
“He wasn’t an adult at the time, but it was complicated. He’s a complicated kid and he
kept choosing odd things, doing wrong things. [¶] … [¶] So, yeah, he got in that
situation.” The prosecutor asked if anything about her son’s experience “would make it
difficult for [her] to be fair and impartial to either side.” She answered, “No. He really
wasn’t guilty, but he—his choices kind of made people think that he would be. [¶] …
[¶] It sounds crazy, but like I said, you had to be there.”
The record shows no material similarities between Prospective Juror 015052405
and Juror No. 26. Therefore, a comparative juror analysis does not negate the substantial
evidence supporting the trial court’s ruling. The only evidence suggestive of gender bias
is the fact the People’s peremptory challenges were all used against men, but “such facts
12.
alone [are not enough] to establish pretext.” (People v. Winbush, supra, 2 Cal.5th at p.
447.)
2. Prospective Juror 015521273
The prosecutor’s second peremptory challenge was used against Prospective Juror
015521273. The 64-year-old man worked as a paralegal at a criminal defense firm. He
expressed a favorable opinion of criminal defense attorneys on his questionnaire. He also
claimed to know most of the judges at the trial court because his job required him to be
there “every day.”
The prospective juror’s questionnaire indicated he and his family members had
been victims of sexual abuse, but he never reported it to police because he “traveled a
great deal and simply was too busy.” His car had been vandalized “many times,” which
he did report to law enforcement. He also disclosed his own misdemeanor convictions
for “prostitution” and a “bad check.” The prosecutor cited the above information in his
explanation for the peremptory challenge.
“Some neutral reasons for a challenge are sufficiently self-evident, if honestly
held, such that they require little additional explication.” (People v. Gutierrez (2017) 2
Cal.5th 1150, 1171.) Prospective Juror 015521273 stood apart from other panel members
because of his profession and criminal history. The prosecutor’s reasons for not wanting
a criminal defense paralegal on the jury were obvious, valid, and gender neutral. (See
People v. Mai, supra, 57 Cal.4th at p. 1053 [“The prosecutor’s expressed reservation
about having social workers on the jury” held permissible “insofar as it stemmed from a
concern about the general attitudes and philosophies persons in that profession might
harbor”].) Likewise, a prospective juror’s own criminal history is a “fully legitimate and
understandable reason for prosecutorial concern.” (People v. Harris (2013) 57 Cal.4th
804, 877 (conc. opn. of Liu, J.), citing People v. Lomax, supra, 49 Cal.4th at p. 575.)
Defendant argues the prosecutor’s explanation was pretextual because “there were
questions of bias surrounding several of the sitting female jurors too.” However, the
13.
potential biases disclosed by those jurors all tended to support the prosecution. Jurors
Nos. 4, 5, and 34 had expressed uncertainty on their questionnaires regarding whether
testimony about “explicit sexual acts” might affect their ability to remain impartial. Juror
No. 40 (the female alternate), in response to a question about preconceptions, had written,
“It’s hard to not already think this person is guilty.” Defendant also notes “jurors #31
and #40 indicated that they would tend to believe a psychologist solely because of his/her
profession,” but he fails to mention the only psychologist involved in the case was the
People’s CSAAS expert.
“In order for a comparison to be probative, jurors need not be identical in all
respects [citation], but they must be materially similar in the respects significant to the
prosecutor’s stated basis for the challenge.” (People v. DeHoyos (2013) 57 Cal.4th 79,
107.) Defendant observes that Prospective Juror 015521273 and some female jurors
shared the unfortunate characteristic of having been victims of crime, including
unspecified forms of sexual abuse or molestation. However, none of the women worked
for criminal defense attorneys or had ever been prosecuted for breaking the law. Based
on all relevant facts and circumstances, “we ultimately conclude that their respective
responses were not so similar as to cast doubt on the trial court’s acceptance of the
prosecutor’s reason for striking” Prospective Juror 015521273. (People v. Miles, supra, 9
Cal.5th at p. 555.)
3. Prospective Juror 015281795
The People’s third peremptory challenge was used against a 24-year-old
emergency medical technician (EMT). Defense counsel had pressed him about a
questionnaire response arguably suggestive of negative opinions about criminal defense
attorneys. The prosecutor’s questions focused on his opinions about police officers.
On his questionnaire, Prospective Juror 015281795 claimed to have witnessed the
crimes of “drug posse[ssi]on/Distribution/Identity Theft.” His stepfather had been
convicted of aiding and abetting an illegal marijuana growing operation, and his brother-
14.
in-law was serving a prison sentence for murder. In response to questions about whether
he had been interviewed by police and how he felt about the experience, he wrote “Yes”
and “Did not care for it.” (Some capitalization omitted.)
Referencing the family members’ convictions, the prosecutor asked the panelist,
“Anything about that experience that makes it difficult to be fair and impartial especially
if we have a law enforcement officer come to court and testify?” He replied, “I don’t
care too much for cops.” The prosecutor said, “And why would that be?” He answered,
“It’s not because of that. I’m an EMT, and in almost every situation that the cops are
doing something with[,] are involved, they sort of escalate the situation.”
The trial court later posed a question to the entire panel: “Is there anyone who’s
going to either be—apply greater credibility to an officer’s testimony or less credibility to
an officer’s testimony?” Prospective Juror 015281795 was the only person who raised a
hand. Defendant claims the prospective juror “did not indicate which direction he was
inclined to go.” However, the following record excerpt indicates he was claiming a bias
against police officers:
“THE COURT: … All right. [Prospective Juror 015281795] raised
his hand.
“[PROSPECTIVE JUROR 015281795]: Yeah.
“THE COURT: And we kind of talked about that a little bit before,
right?
“[PROSPECTIVE JUROR 015281795]: Yeah. Yeah.
“THE COURT: I think you raised that before.
“[PROSPECTIVE JUROR 015281795]: Yeah.”
The prosecutor gave the following explanation for his peremptory challenge:
“[Prospective Juror 015281795] is the EMT who, I believe, said that
officers escalate situations. I believe he was also the gentleman who was
talking about didn’t like either side. Give me one moment. I’m looking at
his questionnaire. 24-year-old male. He was the one who was talking
about officers escalating situations. He had been a victim of a crime before,
15.
drug possession or distribution, identity theft. He was talking about not
caring for the experience of being interviewed by officers. He has a
stepfather who went to prison for drug possession and distribution. His
brother-in-law is currently in prison for murder.”
After listening to the explanation, the trial court said, “So you think—negative
interactions with law enforcement was your [basis]?” The prosecutor replied, “Aside
from all the other ones I talked about, but yes.”
The prosecutor’s statements were slightly inaccurate. The prospective juror only
claimed to have witnessed crimes; he denied ever being a victim of a crime. However,
the prosecutor’s explanation was given five days after he had removed Prospective Juror
015281795 from the panel. Also, the prosecutor went into the Batson/Wheeler hearing
believing he needed only to explain his most recent peremptory challenge, i.e., the eighth
one. He was obviously attempting to refresh his recollection with the questionnaire, and
the victim/witness questions and answers were located on the same page. Given those
circumstances, the discrepancy does not cause us to doubt the prosecutor’s credibility.
(See People v. Baker (2021) 10 Cal.5th 1044, 1076 [“A justification based on a
mischaracterization of the record could reveal a discriminatory motive [citation], but
might reflect a mere error of recollection [citations]”].)
Defendant argues several female jurors also claimed they or someone they knew
had been victims of a crime. This is true, but the prosecutor’s main reason for
challenging Prospective Juror 015281795 was his negative opinions about police officers.
Defendant’s attempt to draw comparisons between the stricken panelist and Jurors
Nos. 23 and 26 is not persuasive.
According to her questionnaire, Juror No. 23 was once interviewed by police as a
witness to a crime. She wrote that the experience was “intimidating” and had made her
feel “nervous.” Nowhere in her questionnaire or voir dire responses did she express
negative opinions about police officers or assumptions regarding their credibility. Juror
No. 26 was the woman whose son had been charged with trespassing as a minor.
Because she claimed her son was innocent, defendant assumes she had a negative view of
16.
law enforcement. However, she answered “No” when the prosecutor asked if anything
about her son’s experience might affect her ability to be impartial. Also, none of the
female jurors raised a hand when the judge asked about preconceptions regarding the
credibility of police officers.
Prospective Juror 015281795 was openly critical of police officers. The only
panel members who expressed similar sentiments were Prospective Jurors 015550983
and 015100060. The former was excused by the trial court and the latter was removed
via the People’s fifth peremptory challenge (see, post). Therefore, a comparative juror
analysis does not raise any doubts about the legitimacy of the prosecutor’s explanation.
(See People v. Turner (1994) 8 Cal.4th 137, 171 [“We have repeatedly upheld
peremptory challenges made on the basis of a prospective juror’s negative experience
with law enforcement”].)
4. Prospective Juror 014984695
The People’s fourth peremptory challenge was used against Prospective Juror
014984695, a 38-year-old “health services manager.” On his questionnaire, he claimed
to have been interviewed by police as a witness to a crime involving domestic violence.
The question asked, “[H]ow did you feel about that experience?” He wrote:
“Unpleasant, guns make me nervous[.] I’m a black American.”
During voir dire, the panelist said he misunderstood the question. He had not
witnessed a crime but was obligated to report suspicions of domestic violence as part of
his job. When asked about the gun remark, he explained: “Well, in general, guns make
me nervous. [¶] … [¶] Because they kill people. But in full disclosure, I tried to make a
comment about race in the hopes that maybe I wouldn’t be selected on the jury. So I
know I shouldn’t do that. [¶] … [¶] Had to pull the race card. I’m sorry.”
The prosecutor’s stated reason for challenging Prospective Juror 014984695 was
because “he lied on the questionnaire and played the race card in order to get kicked.” A
panel member’s stated or implied desire not to serve on the jury is “a permissible basis
17.
for excusal.” (People v. Woodruff (2018) 5 Cal.5th 697, 749.) Defendant does not
provide a comparative juror analysis for this peremptory challenge. Therefore, no
additional discussion is required. (See People v. Smith, supra, 4 Cal.5th at p. 1148;
People v. Lomax, supra, 49 Cal.4th at p. 572.)
5. Prospective Juror 015100060
The prosecutor used his fifth peremptory challenge to remove a 70-year-old man.
This panel member had answered “Yes” on his questionnaire when asked about “specific
problems” that might affect his concentration during trial. Sitting too long caused him
knee and hip pain, which he attributed to arthritis and two knee replacements. His
questionnaire vaguely indicated either he or someone close to him had once been the
victim of a robbery. He also disclosed a personal criminal history of “reckless driving”
and “resisting arrest.”
During voir dire, the prosecutor asked the panel, “Does anybody have either any
overwhelming positive or negative experience with law enforcement that you think we
should know about?” Prospective Juror 015100060 raised his hand and claimed to have
had “[an] experience with some Highway Patrol that were a little bit too aggressive.” He
added, “And, you know, that just stuck in my mind for close to 50 years.” In response to
a follow-up question, he opined the law enforcement officers had been prejudiced against
him. The nature of the prejudice was not explained.
The prosecutor’s stated reasons for the peremptory challenge were as follows:
“[Prospective Juror 015100060], 70-year-old male, retired dispatch
operator. He talked about having knee and hip pain for sitting too long,
both having knee replacements, and I believe that says arthritis. He talked
about serving on a jury previously. He talked about being a possible victim
of a 211 [robbery]. But the one that I focused in on the most was that he
self-reported that he was convicted of reckless driving and resisting arrest.
He characterized the CHP officers in that instance as being aggressive and
possibly prejudiced against him. Those would be my reasons ….”
Defendant’s comparative analysis for Prospective Juror 015100060 is nearly
identical to the one made with respect to the People’s third peremptory challenge (see,
18.
ante, Prospective Juror 015281795). Our reasons for rejecting the argument are also the
same. Defendant’s only additional contention is Prospective Juror 015100060 and Juror
No. 36 were alike because they both had medical issues (she had type 1 diabetes and was
deaf in one ear).
Juror No. 36 identified her medical issues in response to questions specifically
concerning medication and hearing or vision impairments. Unlike Prospective Juror
015100060, she answered “No” to the question asking about problems that might affect
one’s ability to concentrate during trial. Furthermore, the prosecutor’s main reason for
removing Prospective Juror 015100060 was his criminal history and negative experience
with police. Juror No. 36 had never been convicted of a crime, and two of her immediate
family members were correctional officers. So again, a comparative juror analysis does
not call into question the reasons given for the peremptory challenge. (See People v.
Turner, supra, 8 Cal.4th at p. 171 [“We have repeatedly upheld peremptory challenges
made on the basis of a prospective juror’s negative experience with law enforcement”].)
6. Prospective Juror 015384851
The People’s sixth peremptory challenge was used against Prospective Juror
015384851. The 23-year-old man was unemployed. Like the previously stricken
panelist, he had answered “Yes” to the question asking if any “specific problems” might
affect his ability to concentrate during trial. He wrote: “I want to serve, [but] I have no
money or income, I live far away.” The prosecutor’s questioning of Prospective Juror
015384851 focused on the quoted statement.
The prospective juror estimated he lived 40 minutes from the courthouse and said,
“I just don’t have the money to make it here every day.” He added, in response to further
questioning, “It would just distract me from the trial a lot. Wouldn’t make me unfair or
impartial to anybody.”
The prosecutor gave these reasons for his peremptory challenge:
“This is the gentleman who says that he lived far away, approximately 40
minutes, and that he did not have enough money to deal with that kind of
19.
travel. He’s a 23-year-old male that’s in a relationship. He is unemployed.
I believe he stated that he was looking for a job at the time. He did talk
about his ex being assaulted by her former boyfriend and that she reported
it taking place years before that they were dating. He also talked about ‘a
kid I knew in high school [being] convicted for rape.[] Same for a
teacher.[’] He stated that both criminals were convicted. [¶] He is a victim
of an ongoing hit-and-run case listed in number 21 [on the questionnaire].
He did talk about the—being interviewed by police as upsetting.”
Defendant argues the prosecutor’s explanation was pretextual because several
female jurors claimed they and/or people close to them had been victims of a crime. He
points to Jurors Nos. 4, 5, 23, 25, 26, and 31, but they all answered “No” to the question
asking about problems that might affect their ability to concentrate during trial.
Defendant also relies on Juror No. 40’s concern about the impact of jury service on her
job. She answered “Yes” to the question about problems affecting her ability to
concentrate, but her voir dire responses are distinguishable from those of the stricken
panelist.
Juror No. 40 described herself as a surgical nurse and wrote that “extended periods
of time away [from work] will put my job in jeopardy.” Defense counsel asked about
this statement. She explained: “I’m a contract nurse, so I go to hospitals that don’t have
enough nurses …. So I took this week off of work knowing that I would at least have to
show up for this part [jury selection]. Obviously they can’t really do anything to me, but
I’m putting them in a—in kind of a bad situation and they may not extend my contract
now because of that ….”
The exchange continued:
“[DEFENSE COUNSEL]: Okay. So as it relates to what you wrote and
what you say, if you were selected is your job contract in jeopardy?
“[JUROR No. 40]: The contract that I’m in currently, obviously
legally they can’t do anything to me if I have proof that I’m here, but I’m
kind of in negotiations to extend that contract where, you know, when you
leave a unit with ten nurses that needs 12 to run, you kind of, you know.
“[DEFENSE COUNSEL]: Does that affect—
20.
“[JUROR No. 40]: There’s other jobs out there. I’ll be okay.”
Based on Juror No. 40’s remarks, the prosecutor may have believed there was less
risk of her being distracted during trial than with Prospective Juror 015384851. We also
note Prospective Juror 015384851 was in seat 9 at the time of the peremptory challenge,
which was used in the third round. Juror No. 40 was the last person added to the box in
round four and was sitting in seat 18. The prosecutor may have been less concerned
about Juror No. 40 due to the unlikelihood of her being among the 12 jurors who would
decide the case (she ended up being the second alternate). The prosecutor was never
asked to explain why he did not use a peremptory challenge against Juror No. 40, so his
reasoning is open to speculation.
“Two panelists might give a similar answer on a given point. Yet the risk posed
by one panelist might be offset by other answers, behavior, attitudes or experiences that
make one juror, on balance, more or less desirable. These realities, and the complexity of
human nature, make a formulaic comparison of isolated responses an exceptionally poor
medium to overturn a trial court’s factual finding.” (People v. Lenix, supra, 44 Cal.4th at
p. 624.)
“When asked to engage in comparative juror analysis for the first time on appeal, a
reviewing court need not, indeed, must not turn a blind eye to reasons the record
discloses for not challenging other jurors even if those other jurors are similar in some
respects to excused jurors.” (People v. Jones, supra, 51 Cal.4th at pp. 365–366; accord,
People v. Miles, supra, 9 Cal.5th at p. 555.) Some of Juror No. 40’s questionnaire
responses suggested predispositions favorable to the prosecution. She had written, “It’s
hard to not already think this person is guilty.” She admitted an inclination to favor the
testimony of psychologists based solely on their profession, which was relevant only to
the testimony of the People’s CSAAS expert. Defendant highlights these responses in his
comparative analyses of other stricken panelists but conveniently ignores them when
comparing Juror No. 40 to Prospective Juror 015384851.
21.
“Defendants who wait until appeal to argue comparative juror analysis must be
mindful that such evidence will be considered in view of the deference accorded the trial
court’s ultimate finding of no discriminatory intent.” (People v. Lenix, supra, 44 Cal.4th
at p. 624.) “This is so because a party legitimately may challenge one prospective juror
but not another to whom the same particular concern applies.” (People v. Chism (2014)
58 Cal.4th 1266, 1319.) For the reasons discussed, defendant has not carried his burden
of demonstrating grounds for reversal.
7. Prospective Juror 015594584
The People’s seventh peremptory challenge was used against a self-employed
mechanic. The 21-year-old man was added to the jury box in the third round of voir dire
and assigned to seat 12. The trial court welcomed the new panel members and said,
“Okay. And without me even asking any questions, do you have anything you want to
raise your hand and tell me?” Prospective Juror 015594584 was one of three people who
raised a hand (none of whom served on the jury). His conversation with the judge was as
follows:
“[PROSPECTIVE JUROR 015594584]: Since money was brought up, I
am self-employed. I have no other employees, and I have jobs waiting in
my shop right now and I’ve had to turn away probably six jobs.
“THE COURT: Okay. Yesterday I gave you two questionnaires.
“[PROSPECTIVE JUROR 015594584]: And I put that I was self-
employed.
“THE COURT: You did?
“[PROSPECTIVE JUROR 015594584]: Yes.
“THE COURT: But you didn’t say that—I think you checked, ‘I can
serve,’ on your box.
“[PROSPECTIVE JUROR 015594584]: Well, I didn’t know it was
going—I’ve never done this before.
“THE COURT: Right. I understand.
22.
“[PROSPECTIVE JUROR 015594584]: I’m learning. I’ll be honest.
“THE COURT: Most of these people are. So you’re saying that it
would be difficult for you?
“[PROSPECTIVE JUROR 015594584]: Yes.”
Defense counsel asked Prospective Juror 015594584 to further explain his
concerns. He answered, “Well, because I have no employees. I’m by myself, you know.
So—and biggest problem is stuff that I’m having customers call me wanting their stuff
done. [¶] … [¶] … I’ve only had my own business four months, so potentially being off
for however long could—” Counsel apparently interrupted the last part of the statement
and went on to ask, “Is there anything else that’s causing you concern about your ability
to be fair and open-minded in this case?” He replied, “Well, like I told—said before, this
is my first time, so it’s a learning process, but from today—yesterday to today a lot of
people have said the kid situation is a thought that kind of—it’s in the back of your head,
you know.”
The prosecutor did not ask Prospective Juror 015594584 any questions. He gave
this explanation for the peremptory challenge: “Taking a look at his questionnaire, 21
years old, single, living at home with his parents. Stated that he had a mechanic business
that he was losing money from said business, that he would not be able to focus solely in
on the trial because of his thinking about the money that he would be losing. That would
be the basis for kicking [Prospective Juror 015594584].”
A peremptory challenge may rest on the concern a prospective juror’s “divided
loyalties to jury service and career would impair his ability to give the former his full
attention.” (People v. Clark (2011) 52 Cal.4th 856, 908.) This was the prosecutor’s
stated reason for the challenge, and it is supported by the record. Defendant argues “[i]f
the prosecutor was concerned about [the stricken panelist’s] employment situation, it
stands to reason that he would have been concerned about Juror #40’s employment
situation as well.” However, even from a cold transcript, it is apparent Prospective Juror
015594584 was far more concerned than Juror No. 40 about how jury service might
23.
affect his livelihood. Defendant’s comparative analysis argument for Prospective Juror
015594584 is the same as discussed in relation to the People’s sixth peremptory
challenge (see, ante, Prospective Juror 015384851), and we reject it for the same reasons.
8. Prospective Juror 015530014
The People’s eighth peremptory challenge was used to remove an 18-year-old
college student. This panelist reportedly had several cousins who worked in the criminal
justice system, including a prosecutor and a defense lawyer. His questionnaire indicated
another cousin had been incarcerated for “smuggling.”
In a questionnaire response addressing whether he had formed any opinions about
the case, Prospective Juror 015530014 wrote “yes I have.” The prosecutor sought
clarification during voir dire:
“[PROSECUTOR]: Okay. And are we talking about the opinion as to
whether or not you’d like to serve or about an opinion as to [whether
defendant] is guilty of the charges[?]
“[PROSPECTIVE JUROR 015530014]: I would say both.
“[PROSECUTOR]: Let’s start with the first one.
“[PROSPECTIVE JUROR 015530014]: I don’t want to be here.
“[PROSECUTOR]: Why not[?]
“[PROSPECTIVE JUROR 015530014]: Because I already missed four
days of school.
“[PROSECUTOR]: I can pretty much guess everybody out there and
everybody here doesn’t want to be here either so is this something where
your exams or grades are going to have an issue[?]
“[PROSPECTIVE JUROR 015530014]: Yes. I have a [trigonometry]
test coming up and I got to write a speech for a class and possibly do an 8
to 10 page paper.
“[PROSECUTOR]: Okay. Did you ever try to postpone your jury
service?
24.
“[PROSPECTIVE JUROR 015530014]: Yes, but I would rather just get
it done, over with.
“[PROSECUTOR]: And the issue regarding forming an opinion as to
[defendant], you’ve had the definition explained to you ad nauseam, I’m
sure, you’ve been instructed as he sits here today he’s presumed to be not
guilty; you have a problem with that?
“[PROSPECTIVE JUROR 015530014]: No, I don’t.
“[PROSECUTOR]: You don’t?
“[PROSPECTIVE JUROR 015530014]: No.
“[PROSECUTOR]: Do you?
“[PROSPECTIVE JUROR 015530014]: I just don’t like the case and
what was brought to it.
“[PROSECUTOR]: Okay. No one likes to sit on a sexual assault case,
I understand that. So is this something where you feel you cannot be fair
and impartial because of the type of case that it is?
“[PROSPECTIVE JUROR 015530014]: Yes.
“[PROSECUTOR]: Okay. Even though both the judge and myself and
[defense counsel] are telling you you have to hear all the evidence, apply
the presumption of innocence and beyond a reasonable doubt you still can’t
be fair and impartial?
“[PROSPECTIVE JUROR 015530014]: I could reason with it, do it, but
I wouldn’t want to really. I will do it if I have to.”
When explaining his peremptory challenge, the prosecutor acknowledged
Prospective Juror 015530014’s biases “tended to favor [the People’s] side of the case.”
Nevertheless, the prosecutor cited the young man’s preconceived opinions as one of the
main reasons for the strike.
“A party does not offend Batson or Wheeler when it excuses prospective jurors
who have shown orally or in writing, or through their conduct in court, that they
personally harbor biased views.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970,
1016.) Defendant argues the prosecutor’s explanation was pretextual because “there
were questions of bias surrounding several of the sitting female jurors too.” It is the same
25.
argument he made in relation to the People’s second peremptory challenge. Once again,
there are significant distinctions.
For example, Jurors Nos. 4, 5, and 34 expressed uncertainty on their
questionnaires about whether testimony describing “explicit sexual acts” might affect
their ability to remain impartial. In contrast to those equivocal responses, Prospective
Juror 015530014 said he did not believe he could be impartial. He further expressed
negative feelings about the presumption of innocence and reasonable doubt standard,
making clear his adherence to those principles would be done begrudgingly.
Defendant’s opening brief does not address the prosecutor’s other reason for
striking Prospective Juror 015530014, i.e., his open aversion to jury service due to its
interference with his studies. In his reply brief, defendant argues “Juror #40 indicated on
the questionnaire that extended periods away from her job would put her job in
jeopardy.” This comparison to the female alternate is valid but unpersuasive.
As discussed, Juror No. 40 wrote on her questionnaire, “It’s hard to not already
think this person is guilty.” Her statement was not quite the same as Prospective Juror
015530014 saying he did not believe he could be fair and impartial. Moreover, defense
counsel questioned Juror No. 40 about what she had written, and she expressed a
willingness to be fair and a belief in her ability not to prejudge defendant.
Although Prospective Juror 015530014 and Juror No. 40 were both reluctant to
serve as jurors, their attitudes were completely different. Despite concerns about her
contract not being extended, Juror No. 40 said, “There’s other jobs out there. I’ll be
okay.” She also said the issue would not affect her ability to be “a fair, open-minded
juror.” Prospective Juror 015530014 told the prosecutor, “I don’t want to be here.” He
complained about having already missed four days of school and doubted his ability to be
fair and impartial.
To reiterate, “a party legitimately may challenge one prospective juror but not
another to whom the same particular concern applies.” (People v. Chism, supra, 58
26.
Cal.4th at p. 1319.) Although the stricken panelist’s biases may have been against
defendant, the record supports the prosecutor’s stated reasons for not wanting him on the
jury. (See, e.g., People v. Woodruff, supra, 5 Cal.5th at pp. 749–752 [peremptory
challenge may be based on panelist’s attitude toward jury service]; cf. People v. Hensley
(2014) 59 Cal.4th 788, 803 [“Rigid jurors who appear emotionally detached and terse
may be divisive during deliberations. They may not perform well as open-minded jurors
willing and able to articulate their views and persuade others”].) The comparative juror
analysis does not compel reversal of the trial court’s ruling.
II. Ineffective Assistance of Counsel Claim
Defendant alleges ineffective assistance of counsel based on his trial attorney’s
failure to request an instruction concerning eyewitness identification, i.e., CALCRIM
No. 315. Defendant must establish (1) the attorney’s performance fell below an objective
standard of reasonableness and (2) prejudice occurred as a result. (Strickland v.
Washington (1984) 466 U.S. 668, 687; People v. Anderson (2001) 25 Cal.4th 543, 569.)
The claim fails under both prongs of the Strickland test.
A. Additional Background
Defendant married the mother of victim 1 in 2004, a few weeks prior to victim 1’s
third birthday. From approximately 2004 through October 2008, victim 1 lived in a
three-bedroom house (the first house) with seven other people: her mother, three
brothers, an older sister, her sister’s daughter (victim 2),2 and defendant. Defendant’s
brother and one of his friends resided at the same address, but they lived and slept in a
detached garage.
In approximately November 2008, the family moved to a different home (the
second house). In 2010, the mother divorced defendant. In 2016, victims 1 and 2 came
forward with allegations defendant had sexually abused them years earlier.
2Victims 1 and 2 are close in age. Although victim 2 is victim 1’s niece, victim 2 is older
by almost two years.
27.
Counts 1 and 2 were based on allegations of defendant molesting victim 1 in 2008
when the family was living in the first house. She would have been six years old at the
time. The incidents were alleged to have occurred on summer nights when victim 1, her
brothers, and victim 2 were sleeping on the hallway floor near an air conditioning unit.
According to victim 1’s testimony, defendant sometimes came into the hallway and laid
down next to her. He would then “stick[] his hand down [her] pants” and touch her
genitalia.
Victim 1 pretended to be asleep when defendant molested her. She gave
conflicting testimony about whether she had kept her eyes closed the entire time.
However, she claimed to have known it was defendant because of his size (“he was
bigger than anybody else”) and because she had heard him approaching from the
bedroom he shared with her mother (“the sound of the door was very loud, so I could tell,
like, the difference, [from] other doors”). Defendant was found guilty on both counts.
Counts 3–6 were based on alleged incidents at the second house in 2008 and/or
2009 when victim 1 was seven years old. She testified defendant had lured her into
different rooms of the house (“[a]nywhere where there was nobody else”) by giving her
candy. When they were alone, defendant committed alleged acts of sexual abuse
involving digital penetration (counts 3 & 4) and oral copulation (counts 5 & 6).
Although victim 1 had alleged digital penetration when reporting the incidents to
police, at trial she could not recall whether defendant performed those specific acts (as
opposed to only rubbing her genitalia). The jury found defendant not guilty on both
charges of digital penetration. He was convicted on the first count of oral copulation
(count 5) but acquitted on the second count (count 6).
B. Law and Analysis
Defendant’s claim relates to the verdicts on counts 1 and 2, i.e., the incidents at the
first house when he laid down next to victim 1 in the hallway and stuck his hand down
her pants. He argues the jury might have concluded someone else committed those
28.
crimes if an instruction had been given pursuant to CALCRIM No. 315. The pattern
instruction reads:
“You have heard eyewitness testimony identifying the defendant.
As with any other witness, you must decide whether an eyewitness gave
truthful and accurate testimony.
“In evaluating identification testimony, consider the following
questions:
“•Did the witness know or have contact with the defendant before
the event?
“•How well could the witness see the perpetrator?
“•What were the circumstances affecting the witness’s ability to
observe, such as lighting, weather conditions, obstructions, distance, [and]
duration of observation[, and _______________ ]?
“•How closely was the witness paying attention?
“•Was the witness under stress when he or she made the
observation?
“•Did the witness give a description and how does that description
compare to the defendant?
“•How much time passed between the event and the time when the
witness identified the defendant?
“•Was the witness asked to pick the perpetrator out of a group?
“•Did the witness ever fail to identify the defendant?
“•Did the witness ever change his or her mind about the
identification?
“•How certain was the witness when he or she made an
identification?
“•Are the witness and the defendant of different races?
“•[Was the witness able to identify other participants in the crime?]
29.
“•[Was the witness able to identify the defendant in a photographic
or physical lineup?]
“•[___________ .]
“•Were there any other circumstances affecting the witness’s ability
to make an accurate identification?
“The People have the burden of proving beyond a reasonable doubt
that it was the defendant who committed the crime. If the People have not
met this burden, you must find the defendant not guilty.”
“On direct appeal, a conviction will be reversed for ineffective assistance only if
(1) the record affirmatively discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a reason and failed to provide one,
or (3) there simply could be no satisfactory explanation. All other claims of ineffective
assistance are more appropriately resolved in a habeas corpus proceeding.” (People v.
Mai, supra, 57 Cal.4th at p. 1009.) In short, “the conviction must be affirmed unless
there could be no conceivable reasonable purpose for counsel’s omission.” (People v.
Padilla (2002) 98 Cal.App.4th 127, 136.)
A trial court has no sua sponte duty to instruct jurors on the evaluation of
eyewitness identification testimony. (People v. Alcala (1992) 4 Cal.4th 742, 802–803.)
Like its CALJIC counterpart, CALCRIM No. 315 is a pinpoint instruction designed for
use when a perpetrator’s identity is in dispute. (See People v. Reed (2018) 4 Cal.5th 989,
1009 [discussing CALJIC No. 2.92]; Commentary to CALCRIM No. 315 [“The court
should give the unbracketed factors, if requested, in every case in which identity is
disputed”].) The instruction is worded in a manner that presumes the charged offense
was committed (e.g., “The People have the burden of proving beyond a reasonable doubt
that it was the defendant who committed the crime”).
In a pinpoint instruction, “[w]hat is pinpointed is not specific evidence as such, but
the theory of the defendant’s case.” (People v. Adrian (1982) 135 Cal.App.3d 335, 338;
accord, People v. Wright (1988) 45 Cal.3d 1126, 1137.) As the People correctly observe,
defendant did not argue third party culpability or mistaken identity at trial. The defense
30.
theory was that victims 1 and 2 were not abused and their allegations had been fabricated
for various reasons.
On the question of deficient performance, “we begin with the presumption that
counsel’s actions fall within the broad range of reasonableness, and afford ‘great
deference to counsel’s tactical decisions.’” (People v. Mickel (2016) 2 Cal.5th 181, 198.)
As reflected in defendant’s trial brief, CALCRIM No. 315 was included in defense
counsel’s original list of requested jury instructions. Before the close of evidence,
counsel told the trial court, “I made my initial jury instruction request list as part of my
defense trial brief and I’ve withdrawn several of the requests on that list as they do not
appear necessary.” This is a strong indication that the omission of CALCRIM No. 315
was a reasoned decision as opposed to an inadvertent mistake.
One plausible explanation for counsel’s decision is the possibility CALCRIM
No. 315 would detract from, or be perceived as conflicting with, the defense theory of the
case. “The instruction cuts two ways. While it may be of benefit to a defendant in a
particular case, so may it enhance the prosecution’s argument in another.” (People v.
Sanchez (1990) 221 Cal.App.3d 74, 77 [discussing CALJIC No. 2.92].) From a tactical
standpoint, the defense may not want “to call to the jury’s attention the very factors a
prosecutor thinks are the strong points of the state’s case.” (Ibid.)
“Failure to argue an alternative theory is not objectively unreasonable as a matter
of law.” (People v. Thomas (1992) 2 Cal.4th 489, 531.) A third party culpability theory,
which is necessarily implied by CALCRIM No. 315, would have posited that victim 1
truthfully testified about being molested in the first house and was mistaken as to the
identity of the perpetrator, but then lied about being sexually assaulted in the second
house. The only other people who slept in the first house were the victim’s mother,
siblings, and niece, which makes the mistaken identity theory even more farfetched.
Assuming defendant could establish deficient performance, the error would be
harmless for essentially the same reasons. Again, the defense did not rely on a mistaken
31.
identity theory. Doing so would have effectively implied the perpetrator was one of the
victim’s siblings or one of the people who lived in the detached garage. Such accusations
were not made or insinuated. One of the men who had lived in the garage testified on
defendant’s behalf as a character witness.
Victim 1 expressed no uncertainty regarding the identity of the perpetrator.
Despite conflicting testimony as to whether she had looked at him during the offenses,
she knew it was defendant based on his size and from hearing him come out of her
mother’s bedroom. With no evidence or argument suggesting the involvement of a third
party, it is not reasonably probable the verdicts on counts 1 and 2 would have been
different had CALCRIM No. 315 been requested and given. (See Strickland v.
Washington, supra, 466 U.S. at p. 694 [“The defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different”].)
C. Alleged Instructional Errors
1. CALCRIM No. 226
Defendant alleges the trial court breached a sua sponte duty to instruct on factors
relevant to a witness’s credibility. More specifically, he claims the trial court erred by
omitting essential portions of CALCRIM No. 226.3 The argument is based on the
3The nonoptional language of CALCRIM No. 226 provides:
“You alone must judge the credibility or believability of the witnesses. In deciding
whether testimony is true and accurate, use your common sense and experience. You must judge
the testimony of each witness by the same standards, setting aside any bias or prejudice you may
have.
“You may believe all, part, or none of any witness’s testimony. Consider the testimony
of each witness and decide how much of it you believe.
“In evaluating a witness’s testimony, you may consider anything that reasonably tends to
prove or disprove the truth or accuracy of that testimony. Among the factors that you may
consider are:
“•How well could the witness see, hear, or otherwise perceive the things about which the
witness testified?
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absence of the following language from the version of CALCRIM No. 226 recited in the
oral instructions given prior to closing arguments and the written CALCRIM No. 226
instruction provided to the jury:
“•How well could the witness see, hear, or otherwise perceive the
things about which the witness testified?
“•How well was the witness able to remember and describe what
happened?
“•What was the witness’s behavior while testifying?
“•Did the witness understand the questions and answer them
directly?”
The People concede the assertion of error but argue it was harmless. We do not
accept the concession. Both parties fail to realize the quoted language was in fact
provided to the jury, both orally and in writing.
“We review de novo a claim that the trial court failed to properly instruct the jury
on the applicable principles of law.” (People v. Canizalez (2011) 197 Cal.App.4th 832,
850.) CALCRIM No. 105 [“Witnesses”], which is intended to be used at the beginning
of trial, is identical to CALCRIM No. 226 [“Witnesses”]. The trial court recited all
“•How well was the witness able to remember and describe what happened?
“•What was the witness’s behavior while testifying?
“•Did the witness understand the questions and answer them directly?
“•Was the witness’s testimony influenced by a factor such as bias or prejudice, a personal
relationship with someone involved in the case, or a personal interest in how the case is decided?
“•What was the witness’s attitude about the case or about testifying?
“•Did the witness make a statement in the past that is consistent or inconsistent with his
or her testimony?
“•How reasonable is the testimony when you consider all the other evidence in the case?
“Do not automatically reject testimony just because of inconsistencies or conflicts.
Consider whether the differences are important or not. People sometimes honestly forget things
or make mistakes about what they remember. Also, two people may witness the same event yet
see or hear it differently.”
33.
nonoptional language in CALCRIM Nos. 105 and 226 in its instructions to the jury prior
to the parties’ opening statements.
The trial court omitted part of CALCRIM No. 226 from its oral instructions
following the close of evidence and from the written version of CALCRIM No. 226
given to the jury. The People speculate this was due to a clerical error in the preparation
of the written instructions. Regardless, the written instructions did include a complete
version of CALCRIM No. 105. At the risk of belaboring the point, we emphasize
CALCRIM Nos. 105 and 226 are identical.
“Section 1093, subdivision (f), permits the trial court to instruct ‘[a]t the beginning
of the trial or from time to time during the trial ….’ It does not require a rereading of all
instructions at the conclusion of trial.” (People v. Frederick (2006) 142 Cal.App.4th 400,
415.) “As long as the trial court has correctly instructed the jury on all matters pertinent
to the case, there is no error. The failure to give an instruction on an essential issue, or
the giving of erroneous instructions, may be cured if the essential material is covered by
other correct instructions properly given.” (People v. Dieguez (2001) 89 Cal.App.4th
266, 277.)
Defendant alternatively claims ineffective assistance of counsel, but he mistakenly
contends the trial court failed to instruct “on all of the factors listed in CALCRIM 226
that [were] applicable to the case.” Were we to assume his trial counsel was negligent in
failing to object to the incomplete reading of CALCRIM No. 226 prior to closing
arguments, the claim would fail for lack of prejudice.
“Jurors are presumed able to understand and correlate instructions and are further
presumed to have followed the court’s instructions.” (People v. Sanchez (2001) 26
Cal.4th 834, 852.) “‘The fact that the necessary elements of a jury charge are to be found
in two instructions rather than in one instruction does not, in itself, make the charge
prejudicial.’ [Citation.] ‘The absence of an essential element in one instruction may be
supplied by another or cured in light of the instructions as a whole.’ [Citation.]” (People
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v. Burgener (1986) 41 Cal.3d 505, 538–539; see People v. Whisenhunt (2008) 44 Cal.4th
174, 220 [“[I]n assessing a claim of instructional error, we consider the entire charge to
the jury, and not simply the asserted deficiencies in the challenged instruction”].)
2. CALCRIM No. 207
Counts 12 and 13, which involved victim 2, alleged violations of section 288.7,
subdivision (b), “[o]n or about March 9, 2010 through March 9, 2011.” Victim 2 was
born March 9, 2000. Therefore, victim 2 was between the ages of 10 and 11 years old at
the time of the alleged offenses.
The charges at issue required proof of “oral copulation or sexual penetration, as
defined in Section 289, with a child who [was] 10 years of age or younger.” (§ 288.7,
subd. (b).) The phrase “10 years of age or younger” has been interpreted to mean “under
11 years of age.” (People v. Cornett (2012) 53 Cal.4th 1261, 1264.) It was the People’s
burden to show defendant committed the alleged acts (digital penetration) against victim
2 prior to her 11th birthday. (Ibid.) Therefore, the date range alleged in the information
and related jury instructions should have been through March 8, 2011. If defendant
committed the alleged acts on or after March 9, 2011, he was not guilty as a matter of
law.
The jury was instructed pursuant to CALCRIM No. 207 as follows: “It is alleged
that the crimes [charged in counts 1–13] occurred from on or about November 12, 2007
to March 9, 2011. The People are not required to prove that the crime took place exactly
on those days but only that it happened reasonably close to those days.” Defendant
argues this instruction was erroneous and potentially misleading as to counts 12 and 13
because it suggested he could be convicted for acts committed on or shortly after victim
2’s 11th birthday. We agree, but we also conclude the error was harmless beyond a
reasonable doubt. (See People v. Lewis (2006) 139 Cal.App.4th 874, 884 [“To the extent
the error implicates federal constitutional rights, our inquiry is governed by the harmless
error standard expressed in Chapman v. California (1967) 386 U.S. 18”].)
35.
“In assessing a claim of instructional error or ambiguity, we consider the
instructions as a whole to determine whether there is a reasonable likelihood the jury was
misled.” (People v. Tate (2010) 49 Cal.4th 635, 696.) We also consider the evidence and
the arguments of counsel. (People v. Huggins (2006) 38 Cal.4th 175, 193; People v.
Jaspar (2002) 98 Cal.App.4th 99, 111; People v. Dieguez, supra, 89 Cal.App.4th at p.
276.) An instructional error will be deemed harmless if it was “unimportant in relation to
everything else the jury considered on the issue in question, as revealed in the record.”
(Yates v. Evatt (1991) 500 U.S. 391, 403; accord, People v. Brooks (2017) 3 Cal.5th 1,
71.)
The jury was instructed pursuant to CALCRIM No. 1128, which identified the
elements of section 288.7, subdivision (b), and twice stated the 10 years of age or
younger requirement. Defendant astutely observes this instruction was also flawed
because it referenced “Counts 3, 4, 5, 6, 11 and 12,” when it should have said “counts 3,
4, 5, 6, 12, and 13.”4 However, the “10 years of age or younger” language was repeated
with correct references to counts 12 and 13 in instructions given pursuant to CALCRIM
Nos. 252, 1191B, and 3500.
The prosecutor repeatedly discussed the age requirement during closing argument,
including in relation to count 13. Defense counsel did not discuss the statutory elements
in his closing argument or suggest any alleged acts had occurred on or after victim 2’s
11th birthday, which was consistent with the defense theory of the accusations being
false. The verdict forms for counts 12 and 13 each described the charged offense as “a
felony violation of section 288.7(b) …, oral copulation or sexual penetration with a child
10 years of age or under, as charged in … the Information filed herein.” (Some
capitalization omitted.) The date range of March 9, 2010, through March 9, 2011, was
not included on the verdict forms.
4Defendant further notes the instruction did not contain the following optional language,
which apparently neither side requested: “Under the law, a person becomes one year older as
soon as the first minute of his or her birthday has begun.” (CALCRIM No. 1128.)
36.
Defendant argues “the problem was not that the jurors were unaware of the ‘ten
years of age or younger’ element. The problem, rather, was that the jurors were
incorrectly led to believe that they did not need to follow it strictly.” He contends “one
cannot rule out beyond a reasonable doubt the following scenario: that the jurors
concluded that the two acts of digital penetration occurred after March 8, 2011, but they
still found him guilty of the charges under counts 12 and 13 because the acts occurred
‘reasonably close’ to March 8, 2011.”
The jury’s verdicts establish its belief that defendant sexually abused victim 2
sometime between March 2010 and March 2011. Defendant argues the jury may have
concluded the offenses were committed on or after her 11th birthday because “the most
[victim 2] could say about the timing of the two incidents was to confirm that they
occurred when she was ‘around ten years old.’” He is relying on only one part of the
victim’s testimony and fails to acknowledge the context; the prosecutor was trying to
distinguish between incidents from when she was nine years old, which formed the basis
for counts 7–9. Defendant also ignores critical testimony at the end of the prosecutor’s
direct examination:
“[PROSECUTOR:] Just to be clear, … the incidents we’ve been
talking about, were you at least ten years or younger?
“[VICTIM 2:] Yes.”
The prosecutor’s closing argument included these statements about counts 12 and
13: “Now, for element two it also says [victim 2] was ten years of age or younger. The
fact that she is ten years old means that she still qualifies for this particular element. Just
because she’s turned ten doesn’t mean that it doesn’t qualify. And I made sure to ask her
during her testimony. She stated that the incident she was talking about occurred when
she was ten years of age.”
37.
Furthermore, as the People argue in their briefing, all evidence indicated victim
1’s mother divorced defendant in 2010. The mother was asked about the timeline on
direct examination:
“Q. Around what time period did you get a divorce from
[defendant]?
“A. 2010, 14. I’m not sure if I have the dates right. But June 2010.
“Q. And did [defendant] immediately leave the home after June of
2010?
“A. Yes.
“Q. Sorry. Did he immediately leave the home after the time period
of June 2010?
“A. Yes, but he came back about two times.”
The mother had told the police defendant did not move out until October 2010,
and the prosecutor asked about the discrepancy.5 She testified: “I do remember saying
October 2010, but I don’t remember if I said that he returned about two times …. [¶] …
[¶] [H]e left the house after October 2010—excuse me—June 2010, and then he came
back a couple of times as a visitor or visiting.” The mother further explained defendant
moved out in June 2010 and the divorce became final in October 2010.
Multiple witnesses, including the mother, testified the family moved into the
second house in late October or early November 2008. On cross-examination, the mother
testified defendant lived there for “about two years.” Victim 2 also testified the divorce
occurred in 2010 and defendant moved out the same year. If defendant moved out in
October 2010, victim 2 would have been approximately 10.6 years old when he departed.
In other words, her 11th birthday was still four months away. The testimony about
defendant moving out in 2010 was uncontroverted, and no evidence suggested he
continued abusing victim 2 after leaving the home.
5The investigating officer testified the mother had said the divorce was finalized in May
or June of 2010 but defendant did not move out until October of that year.
38.
The jury found defendant guilty on all seven counts involving victim 2, thus
indicating it found her testimony credible. In essence, defendant claims the jury may
have (1) rejected the victim’s testimony about being 10 years old or younger during the
relevant time period, (2) concluded the incidents of digital penetration occurred on or
after March 9, 2011, and (3) convicted defendant even though it was aware of the age
requirement for the offenses—all in spite of the fact there was no evidence of any
charged conduct occurring after 2010. This theory of prejudice amounts to fanciful
speculation. As such, we conclude the instructional error was harmless beyond a
reasonable doubt.
III. Section 654
Counts 12 and 13 each carried a mandatory prison sentence of 15 years to life.
(§ 288.7, subd. (b).) Counts 1, 2, 5, 7, 8, 9, 10, and 11 would have been punishable by
terms of six to eight years (§ 288, subd. (a)), but the multiple victim finding required an
alternate penalty of 15 years to life (§ 667.61, subds. (b), (c)(4), (e)(4)). Accordingly, the
trial court imposed an aggregate sentence of 150 years to life.
Based on victim 2’s testimony and the prosecutor’s closing argument, defendant
contends his convictions for digital penetration under counts 12 and 13 were based on the
same conduct involved in counts 10 and 11 (described in the information as “rubbing of
the vagina”). For that reason, he claims punishment should have been stayed on two of
those counts pursuant to section 654. The People concede the factual basis for
defendant’s claim but dispute the applicability of section 654.
Section 654 prohibits multiple punishment for crimes arising out of a single act or
indivisible course of conduct. (Id., subd. (a); People v. Hester (2000) 22 Cal.4th 290,
294.) The defendant’s intention(s) and objective(s) determine whether two crimes are
part of an indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.)
In the absence of separate and distinct objectives, a trial court errs by imposing
consecutive or concurrent sentences instead of staying the execution of sentence for the
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counts to which section 654 applies. Such errors are reviewable even if, as here, no
objection was made at the time of sentencing. (People v. Brents (2012) 53 Cal.4th 599,
618.)
“Facts relevant to sentencing need be proved only by a preponderance of the
evidence.” (People v. Towne (2008) 44 Cal.4th 63, 86; see People v. Cleveland (2001)
87 Cal.App.4th 263, 268–270.) “When a trial court sentences a defendant to separate
terms without making an express finding the defendant entertained separate objectives,
the trial court is deemed to have made an implied finding each offense had a separate
objective.” (People v. Islas (2012) 210 Cal.App.4th 116, 129.) “We review the court’s
determination … for sufficient evidence in a light most favorable to the judgment, and
presume in support of the court’s conclusion the existence of every fact the trier of fact
could reasonably deduce from the evidence.” (Cleveland, supra, at p. 271.)
Section 654 is often inapplicable to convictions for sex crimes committed on a
single occasion. (People v. Scott (1994) 9 Cal.4th 331, 344, fn. 6.) The seminal case in
this area is People v. Perez (1979) 23 Cal.3d 545. There, a defendant had committed acts
of digital penetration, sexual penetration, oral copulation, and sodomy against one victim
over a period of 45 minutes to an hour. (Id. at p. 549.) The trial court stayed punishment
for the oral copulation and sodomy convictions. The California Supreme Court
overturned the stay, rejecting the argument the defendant had committed the crimes with
a lone objective of sexual gratification. (Id. at p. 552.)
The Perez opinion states, “A defendant who attempts to achieve sexual
gratification by committing a number of base criminal acts on his victim is substantially
more culpable than a defendant who commits only one such act. We therefore decline to
extend the single intent and objective test of section 654 beyond its purpose to preclude
punishment for each such act.” (People v. Perez, supra, 23 Cal.3d at p. 553.) Under the
holding of Perez, section 654 is not applicable to sex crimes involving “separate and
distinct” acts, even if those acts “were closely connected in time and a part of the same
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criminal venture.” (Perez, at p. 553.) However, section 654 does apply if one of multiple
sex offenses “was committed as a means of committing any other, … facilitated
commission of any other, [or] was incidental to the commission of any other.” (Perez, at
pp. 553–554.)
Both parties rely on People v. Alvarez (2009) 178 Cal.App.4th 999. That opinion
holds “section 654 does not apply to sexual misconduct that is ‘preparatory’ in the
general sense that it is designed to sexually arouse the perpetrator or the victim.” (Id. at
p. 1006.) The People contend “the trial court could have reasonably concluded that
[defendant]’s acts of rubbing [victim 2’s] vagina for several minutes was ‘preparatory’ to
inserting his finger inside her vagina either for his or for [her] sexual gratification.”
There are problems with the People’s argument. As they acknowledge elsewhere
in their brief, the victim’s time estimate for the “rubbing” was given in testimony about
incidents that occurred in her grandmother’s bedroom when she was nine years old.
Counts 10–13 were based on two separate incidents in different locations when the victim
was 10 years old.
The testimony regarding counts 10–13 was very brief and generalized. Victim 2
described slight digital penetration by “the very tips” of defendant’s fingers. The
prosecutor asked her, “The times when he would put the tips of his fingers into your
vagina, would he necessarily start touching first and then using his fingers?” She
responded affirmatively, but none of her testimony provided a temporal distinction
between the rubbing of her genitalia and the digital penetration.
The Alvarez case is distinguishable on its facts. There, section 654 was held
inapplicable to three section 288 convictions based on the appellant’s kissing of a nine-
year-old victim, digital penetration of her, and “forc[ing] her to fondle his penis.”
(People v. Alvarez, supra, 178 Cal.App.4th at pp. 1006–1007.) The appellate record was
“entirely susceptible of the interpretation that appellant kissed [the victim] for the
purpose of his own arousal and that, in so doing, he was not facilitating any other form of
41.
sexual contact …. Each lewd act was separate and distinct, and none of the acts were
necessary to accomplish the others.” (Id. at p. 1007; see id. at p 1006, citing People v.
Perez, supra, 23 Cal.3d at p. 553 [“section 654 will not apply unless the crimes were
either incidental to or the means by which another crime was accomplished”].)
The record in this case does not contain substantial evidence of separate and
distinct acts. The victim’s limited testimony was insufficient to show defendant’s lewd
touching was not the means by which he committed the digital penetration, did not
facilitate the digital penetration, and/or was not incidental to the digital penetration. (See
People v. Perez, supra, 23 Cal.3d at pp. 553–554; People v. Alvarez, supra, 178
Cal.App.4th at p. 1006.) Therefore, the punishment imposed on counts 10 and 11 must
be stayed.6
DISPOSITION
The judgment is modified to stay, under section 654, subdivision (a), the sentence
imposed on counts 10 and 11. As so modified, the judgment is affirmed. The superior
court is directed to prepare an amended abstract of judgment and forward a certified copy
to the Department of Corrections and Rehabilitation.
PEÑA, J.
WE CONCUR:
HILL, P.J.
DE SANTOS, J.
6Defendant agrees with the People’s alternative position that section 654 should be
applied to counts 10–11 and not 12–13. (See People v. Thompson (1989) 209 Cal.App.3d 1075,
1080.)
42.