People v. Pena-Catalan CA1/5

Filed 10/4/22 P. v. Pena-Catalan CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A157639
v. (Contra Costa County
ABEL THOMAS PENA-CATALAN, Super. Ct. No. 51805712)
Defendant and Appellant.
Appellant Abel Thomas Pena-Catalan appeals a final judgment
following a jury trial in which he was convicted of 14 sexual offenses based on
acts he committed against Jane Doe 1 and Jane Doe 2, who were both minors
at the time of the offenses. Appellant argues that the trial court erroneously
denied his motion under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) after the prosecutor
exercised a peremptory challenge against a Hispanic man during voir dire.
Appellant further argues that there is insufficient evidence to support the
jury’s finding of attempted rape as to Jane Doe No. 1. We find no error and
affirm.
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I. BACKGROUND
A. Procedural History
On April 13, 2018, appellant was charged with the following with
respect to Jane Doe 1: attempted forcible rape of a child over 14 years old
(Penal Code1 § 664, 261; counts 1 and 2), forcible oral copulation of a child
over 14 years old (§ 288a, subd. (c)(2); count 3), lewd act upon a child of 14 or
15 years of age (§ 288, subd. (c)(1); counts 4–6), lewd act upon a child under
14 years old (§ 288, subd. (c); counts 7–9). With respect to Jane Doe 2,
appellant was charged with forcible lewd act upon a child under 14 years old
(§ 288, subd. (b)(1); counts 10–13) and lewd act upon a child of 14 or 15 years
of age (§ 288, subd. (c)(1); count 14). Counts 3 and 7 to 13 were enhanced
with a special allegation that appellant committed the acts against more than
one victim. (§ 667.61, subds. (b), (e).)
On April 15, 2019, the jury convicted appellant of all charges and found
the special allegation of multiple victims true. On June 14, 2019, the trial
court sentenced appellant to consecutive terms of 15 years to life
imprisonment on counts 3 and 7 to 13. Concurrent terms were imposed on
the remaining counts. Appellant’s total term of imprisonment was 120 years
to life.
B. Factual History
Our summary of the facts focuses mainly on appellant’s history with
Jane Doe 1. We do not discuss appellant’s lengthy history with Jane Doe 2
which occurred during this same time period since there are no issues
pertaining to Jane Doe 2 raised on appeal.
All further statutory references are to the Penal Code unless
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otherwise specified.
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Jane Doe 1 was born in January 2001. Appellant, who was born in
1968, was the boyfriend of Jane Doe 1’s mother. When Jane Doe 1 was 11 or
12 years old, she, her mother, and her two brothers moved into a house in
Hayward with appellant. When Jane Doe 1 was in the seventh grade (13 to
14 years old), they moved into a bigger house in Pittsburg.
At trial, Jane Doe 1 recalled an incident when she was in the fifth or
sixth grade where she was sleeping in her mother’s bed while her mother was
in the shower. She awoke to find appellant touching and grabbing her side.
Jane Doe 1 recalled telling the Children’s Interview Center afterwards that
appellant also touched her vagina over her clothing during this incident.
Jane Doe 1 was in shock and did not know what to do. While in Hayward,
Jane Doe 1 would at times be left home alone with appellant while her
mother went to work. Jane Doe 1 recalled over 10 incidents where appellant
came into her mother’s bedroom while she was lying on the bed and touched
her vagina, butt, and breasts. Jane Doe 1 did not tell her mother about these
incidents because she was scared and did not know if her mother would
believe her. Appellant also told Jane Doe 1 that something would happen to
her if she told her mother.
When Jane Doe 1 and her family moved to Pittsburg, appellant’s
adopted son, Eduardo, also moved in with them. Although Eduardo
eventually moved out, he and Jane Doe 1 became friends and would
sometimes talk on the phone. Jane Doe 1’s older sister, Michelle, moved into
the house with her family after Eduardo moved out. Appellant continued to
touch Jane Doe 1 when no one was around. At one time, appellant tried to
pull Jane Doe 1 into the downstairs bedroom when the two of them were in
the living room alone. Michelle came downstairs and saw this occur. When
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Michelle asked whether appellant was touching her, Jane Doe 1 lied and said
no because she was scared.
Appellant tried to have sex with Jane Doe 1 “multiple times.” During
one of these times, appellant was on top of her while she was on her mother’s
bed. Appellant pulled Jane Doe 1’s pants halfway down. She told him to stop
and tried to pull her pants back up. Jane Doe 1 recalled that she felt like
throwing up. She closed her legs tight as appellant tried to break them
apart. Jane Doe 1 believed appellant was trying to have sex with her. Jane
Doe 1 ran out of the room before appellant was able to take her underwear
off. During this and other times appellant tried to have sex with her, Jane
Doe 1 felt his penis rubbing over her vagina and tried to stop him from
penetrating her by keeping her legs tight together.
Around 2015, when appellant lived in Pittsburg, he at times went to
live with Jane Doe 2 and her mother in San Lorenzo. Jane Doe 1 and her
family did not know about Jane Doe 2 or her family. Eduardo knew about
both families and at one point moved in with appellant and Jane Doe 2’s
family in San Lorenzo. About two months prior to appellant’s arrest in this
case, Jane Doe 2 told Eduardo that appellant was molesting her. Then,
several days before appellant’s arrest, Jane Doe 1 told Eduardo that
appellant had been touching her. Jane Doe 1 was crying and sobbing when
she told Eduardo. Eduardo told Jane Doe 1 that another girl around the
same age as Jane Doe 1 also accused appellant of touching her. Jane Doe 1
learned at this time that appellant had another family and was shocked.
II. DISCUSSION
A. Batson/Wheeler Motion
Appellant argues that the trial court wrongfully denied his
Batson/Wheeler motion because the prosecution’s reasons for exercising a
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peremptory challenge against a potential juror who was Hispanic were
racially motivated. We disagree.
1. Relevant Background
Juror No. 131 was initially questioned by the trial court during voir
dire. The trial court asked Juror No. 131 whether, as a Spanish speaker, he
would be able to accept the translation provided by the court if certain
witnesses testified in Spanish. He confirmed he would be able to follow the
court’s instruction. Juror No. 131 also confirmed that, despite some health
issues, he could fulfill his duties as a juror and be fair to both sides.
During the prosecutor’s questioning of Juror No. 131, she asked him
whether he had any children. Juror No. 131 responded, “No, they all old
already. Everybody’s married.” The prosecutor then followed up, “But do
you have children?” Juror No. 131 responded, “No, no more. No. I have
family, but they already no children.” The prosecutor followed up again and
asked, “Right. But have you ever had children?” Juror No. 131 responded,
“Family, yes. But they already married.” The prosecutor then finally
confirmed that Juror No. 131 had five (adult) children.
During defense counsel’s questioning of Juror No. 131, she posed the
following hypothetical: “If you were selected as a juror, and, still, it’s Friday,
4:30, 11 people are going one way, you, on the other hand, have heard the
evidence, you think entirely different. What would you do in that scenario?”
Juror No. 131 responded: “Well, I have to -- it’s -- something maybe a little
confusing is that, if one child testimony, they are teenager, it’s a big
difference, because one child, small child, can be manipulated by an adult,
say something, whatever they want. The only thing may be confused.
Because it’s – the way I understand, it’s only one person accuse him over
here. So only one, a child, or a teenager, whatever it is.”
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At this point, the trial court interjected and told Juror No. 131 that in a
criminal trial, all 12 jurors must agree in order to reach a verdict. The court
then attempted to explain what defense counsel was trying to ask and
stated, “let’s say, you heard the whole case, you’ve heard the evidence, you
received my instructions, and you’re back deliberating with the other jurors
in private, talking about the case, trying to reach a verdict, if you can. And
you’ve been deliberating for days. And it’s a Friday, and at 4:00 p.m., 11
jurors – because we have a total of 12; right? 11 jurors have one view of the
evidence, and you have a different view. Do you understand where we are
now?” Juror No. 131 replied, “Yes, sir.” Defense counsel then asked Juror
No. 131 again what he would do, and he responded, “Not guilty.”
The prosecutor exercised a peremptory challenge against Juror No.
131. Defense counsel brought a Batson/Wheeler motion and argued that
this challenge was racially motivated since appellant and Juror No. 131
were both Latino men and there were no other Latino men or women
currently on the panel. In arguing that a prima facie case had not been
made, the prosecutor pointed out that there was another Spanish speaking
juror on the panel. After the trial court noted that this juror was not yet in
the box, the prosecutor responded that she might have “put him in there
prematurely” since he was about to be in the box.2
2 Respondent argues that based on the manner in which voir dire was
conducted, the prosecutor knew that another Hispanic juror (Juror No. 136)
would replace Juror No. 131. Appellant does not challenge this contention.
Juror No. 136 did in fact replace Juror No. 131 and was one of the 12 sitting
jurors. Respondent argues this provides additional support that the
prosecutor’s reasons for challenging Juror No. 131 were not racially
motivated. We do not discuss this argument further as the trial court did not
mention it as a reason for denying the motion.
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The prosecutor explained that her reasons for excusing Juror No. 131
were based on “a genuine concern for his ability to understand the
proceedings that were taking place.” The prosecutor then discussed, as
examples, Juror No. 131’s answer to the question of whether he had any
children, as well as his non-responsive answer of “not guilty” when asked
what he would do if he was the one holdout juror during deliberations.
Defense counsel responded that she thought Juror No. 131 understood the
question after the court re-asked it and explained the circumstances in more
detail.
In denying the motion, the trial court held that the defense had not
made a prima facie showing that the challenge was made based on race, but
nevertheless ruled that the prosecutor’s stated reasons for exercising a
challenge were race neutral and credible. The court stated that the reasons
were “amply supported by the evidence in the record, which was the
confusion that the juror expressed at numerous junctures throughout his
questioning, and his off-point response to [defense counsel’s] question
regarding, essentially, issue of unanimity and whether he would hold to his
own views.” The court went on to state that “[t]he response of not guilty was
nonresponsive to the question, because the question in the hypothetical
posed did not suggest that the 11 jurors were for guilty.”
The trial court further held that the prosecutor’s “interpretation of the
prospective juror’s difficulty in understanding her question regarding
children is borne out by the record. She did ask him numerous times. The
juror seems to be thinking that [the prosecutor] was asking whether he had
young children. That was not her question. It took at least three attempts
to get the correct answer.” The trial court found the prosecutor’s
justification credible and supported by the evidence.
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2. Law and Standard of Review
The state and federal constitutions forbid prosecutors from exercising
peremptory challenges to remove potential jurors on the account of race,
ethnicity, gender, or membership in a similar cognizable class. (Batson,
supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276–277; People v.
Lenix (2008) 44 Cal.4th 602, 612 (Lenix).)
If a defendant suspects that a potential juror is being challenged for a
discriminatory reason, he or she must bring a motion under Batson/Wheeler,
and the trial court will analyze the motion under the well-established three-
step inquiry. “First, the trial court must determine whether the defendant
has made a prima facie showing that the prosecutor exercised a peremptory
challenge based on race [or another impermissible ground]. Second, if the
showing is made, the burden shifts to the prosecutor to demonstrate that the
challenges were exercised for a race-neutral reason. Third, the court
determines whether the defendant has proven purposeful discrimination.”
(Lenix, supra, 44 Cal.4th at p. 612.) “The ultimate burden of persuasion
regarding racial motivation rests with, and never shifts from, the opponent
of the strike.” (Id. at pp. 612–613.)
Our review of the trial court’s denial of a Batson/Wheeler motion is
deferential, and we examine “only whether substantial evidence supports its
conclusions.” (Lenix, supra, 44 Cal.4th at p. 613.) “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.)
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3. Substantial Evidence Supports the Trial Court’s Denial of
Appellant’s Batson/Wheeler Motion
Appellant argues the trial court erred in ruling that a prima facie
showing had not been made and that the prosecutor’s reasons for
challenging Juror No. 131 were race neutral. Since the trial court made a
ruling under the third stage of the Batson/Wheeler inquiry, we skip directly
to this 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 prosecutor stated that her reasons for challenging Juror No. 131
were due to “a genuine concern for his ability to understand the proceedings
that were taking place.” She then provided two examples of where Juror No.
131’s answers were non-responsive to the questions asked of him during voir
dire. The prosecutor therefore carried her burden in showing that the
challenge was exercised for a race-neutral reason under the second stage of
the Batson/Wheeler inquiry. Indeed, a prosecutor’s reason “need not
support a challenge for cause, and even a ‘trivial’ reason, if genuine and
neutral, will suffice.” (People v. Arias (1996) 13 Cal.4th 92, 136.)
Under the third stage of the Batson/Wheeler inquiry, the trial court
made a sincere and reasoned effort to evaluate the prosecutor’s race-neutral
justification, and substantial evidence supports the court’s denial of the
motion. Evaluation under the third stage rests within the exclusive province
of the trial court and involves a determination of the prosecutor’s credibility
and demeanor, including whether such demeanor belies a discriminatory
intent. (Lenix, supra, 44 Cal.4th at p. 614.) Here, the trial court found the
prosecutor’s race-neutral reasons to be credible and amply supported by the
record. We give deference to this ruling as the trial court was able to
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observe the prosecutor’s demeanor as well as Juror No. 131’s answers first-
hand.
In denying the motion, the trial court noted that it took three attempts
before Juror No. 131 answered the prosecutor’s relatively simple question of
whether he had any children. The court also noted that Juror No. 131’s
answer of “not guilty” was not responsive to defense counsel’s question, as
“the question in the hypothetical posed did not suggest that the 11 jurors
were for guilty.” Appellant disagrees and argues that Juror No. 131’s
responses were reasonable in light of how the questions were phrased. That
appellant interprets Juror No. 131’s responses to be reasonable does not
negate the fact that the prosecutor had genuine, race-neutral reasons for
excusing this juror.
Lastly, appellant argues that with respect to the holdout juror
hypothetical, Juror No. 131 was never asked whether he would be able to
“stand his ground” or “assert his own beliefs” if he was the lone holdout
juror. The intent of the question, appellant argues, “was never clearly
communicated to [Juror No. 131].” Although Juror No. 131 was not directly
asked whether he would be able to stand his ground, nothing in the
hypothetical suggested that the other 11 jurors were voting to convict, so
Juror No. 131’s response of “not guilty” was still nonresponsive and
reasonably raised concern for the prosecutor. Moreover, appellant takes
issue with the wording of the hypothetical, but it was his counsel who posed
this hypothetical to not only Juror No. 131, but numerous other prospective
jurors who answered that they would stand their ground or hold onto their
beliefs. This supports that the question was not confusingly phrased.
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B. Sufficiency of Evidence
Appellant next argues that there is insufficient evidence to support the
jury’s finding of attempted rape as to Jane Doe No. 1. We disagree.
1. Standard of Review
The standard for reviewing a claim for sufficiency of the evidence is
well established. “[W]e must determine ‘whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’
[Citation.] ‘[T]he court must review the whole record in the light most
favorable to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.’ ” (People v. Davis (1995) 10 Cal.4th 463,
509.)
In reviewing the record, we “resolve neither credibility issues nor
evidentiary conflicts; we look for substantial evidence.” (People v. Maury
(2003) 30 Cal.4th 342, 403.) “Conflicts and even testimony which is subject
to justifiable suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the credibility of a
witness and the truth or falsity of the facts upon which a determination
depends.” (Ibid.)
2. Elements of Attempted Rape
“The crime of attempted rape has two elements: (1) the specific intent
to commit the crime of rape and (2) a direct, although ineffectual act towards
its commission.” (People v. Clark (2011) 52 Cal.4th 856, 948 (Clark).) Intent
to commit rape requires “(1) the intent to commit the act of sexual
intercourse; (2) against the will of the victim [citation]; (3) by any of the
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means described in section 261, subdivision (a)(2).” (People v. Lee (2011) 51
Cal.4th 620, 633.) This includes “by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the person or
another.” (§ 261, subd. (a)(2).) Such intent “may be inferred from the facts
and circumstances shown by the evidence.” (Clark, supra, 52 Cal.4th at
p. 948.)
With respect to the second element, “the evidence must establish that
the defendant’s activities went ‘beyond mere preparation’ and that they
show the defendant was ‘putting his or her plan into action.’ ” (Clark, supra,
52 Cal.4th at p. 948.) In other words, “[t]he act must be a direct movement
beyond preparation that would have accomplished the crime of rape if not
frustrated by extraneous circumstances. [Citation.] An actual element of
the offense however, need not be proven.” (People v. Guerra (2006) 37
Cal.4th 1067, 1111, overruled in part on other grounds in People v. Rundle
(2008) 43 Cal.4th 76, 151.)
3. Substantial Evidence Supports the Jury’s Finding of
Attempted Rape as to Jane Doe 1
Appellant first argues that there is insufficient evidence to support the
second element of attempted rape. Appellant concedes the evidence shows
that he repeatedly molested Jane Doe 1 by touching her breasts, butt, and
vagina, but argues that this does not show he attempted to rape Jane Doe 1.
Appellant then argues that his other conduct, including saying “come on,
come on” to Jane Doe 1 and on at least one occasion pulling her pants down
and attempting to break her legs apart, were but “mere preparation” to
commit rape and not an attempt to commit rape itself.
We strain to find any merit in this argument. Jane Doe 1 testified that
appellant tried to have sex with her “multiple times.” During one of these
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times, appellant was on top of her on her mother’s bed and pulled her pants
halfway down as Jane Doe 1 tried to pull them back up while telling
appellant to stop. Though Jane Doe 1’s underwear was still on, she felt
appellant’s penis rubbing over her vagina and she closed her legs tight as he
tried to break them apart. The jury was instructed, with respect to the
second element of attempted rape, that a direct step means “a direct
movement towards the commission of the crime after preparations are made.
It is an immediate step that puts the plan in motion, so that the plan would
have been completed if some circumstance outside the plan had not
interrupted the attempt.”
What appellant essentially argues is that because he was unsuccessful
in pulling Jane Doe 1’s pants all the way down or was unable to take her
underwear off due to her resistance, any acts on his part should only be seen
as preparation and not a direct step towards committing rape. We reject
such an argument, as a finding of attempt is not and should not be
dependent on how well or poorly a victim can resist. We find there is
substantial evidence that appellant moved beyond “mere preparation” and
took actions in an attempt to forcibly have sexual intercourse with Jane Doe
1 against her will. The evidence supports that he put his plan in motion by
climbing on top of Jane Doe 1, pulling down her pants, and trying to break
her legs apart. Had Jane Doe 1 not resisted as she did by pulling her pants
up, keeping her legs together tight, and ultimately running out of the room,
it is reasonable to presume that appellant would have accomplished the
crime of rape.
Appellant next argues that there is insufficient evidence to support the
first element of intent because much of the evidence was based only on Jane
Doe 1’s perception that appellant was trying to have sex with her. He
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contends that the evidence at most shows he intended to commit lewd acts,
not rape. First, this argument is belied by appellant’s own earlier argument
that his statement “come on, come on” to Jane Doe 1 “arguably shows a
desire to have sexual intercourse with her.”
Second, the finding of intent is not merely supported by Jane Doe 1’s
belief that appellant was trying to have sex with her, but could also be
inferred by the facts and circumstances as shown in the record. (See Clark,
supra, 52 Cal.4th at p. 948.) As we already discussed, appellant tried to pull
Jane Doe 1’s pants down and break her legs apart while they were in her
mother’s bedroom, despite her protests. At another point, appellant told
Jane Doe 1, “Come on you’re gonna do it anyways with someone else” and
“I’m gonna teach you.” This is substantial evidence to support intent.
III. DISPOSITION
The judgment is affirmed.
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WISEMAN, J. *
We concur.
JACKSON, P. J.
SIMONS, J.
People v. Pena-Catalan / A157639
* Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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