Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INF060115 Randall Donald White, Judge. Affirmed in part and reversed in part with directions.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr. and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King J.
I. INTRODUCTION
A jury found defendant Larry Joe Garcia guilty as charged of robbery (Pen. Code, § 211; count 1), burglary (§ 459; count 2), and petty theft with a prior conviction (§§ 484, 666; count 3). The jury found not true an allegation that defendant used a knife in the commission of the robbery. (§ 12022, subd. (b).) Defendant admitted he had four prison priors (§ 667.5, subd. (b)) and the jury found he had two strike priors (§§ 667, subds. (c), (e)(1)). After denying defendant’s Romero motion, the trial court sentenced defendant to 25 years to life plus four years in prison, and defendant appeals.
All further statutory references are to the Penal Code unless otherwise indicated.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
A concurrent term of 25 years to life was imposed for the burglary conviction in count 2 and an additional 25-year-to-life term was imposed but stayed for the petty theft with a prior conviction in count 3.
The current charges against defendant and the knife-use allegation were based on an incident that occurred at a Home Depot store in La Quinta on July 1, 2007. Store security personnel stopped defendant outside the store after he allegedly took several tools worth approximately $155 without paying for them. Defendant allegedly threatened one of the employees with a knife before fleeing with the tools.
This type of theft is sometimes referred to as an “Estes robbery, ” based on the decision in People v. Estes (1983) 147 Cal.App.3d 23, 27-28 (Estes). (See, generally, People v. Gomez (2008) 43 Cal.4th 249, 258-261 [discussing Estes, among other cases, and concluding theft becomes robbery if force or fear is used to retain the property].)
On this appeal, defendant claims the trial court erroneously denied his three successive Wheeler/Batson motions, which together alleged that the prosecutor peremptorily excused six Hispanic persons from the jury on the basis of race or ethnicity. On each motion, the court found the defense had stated a prima face case of impermissible discrimination and asked the prosecutor to explain his reasons for excusing the Hispanic prospective jurors. After hearing the prosecutor’s reasons, the trial court denied each motion.
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
Defendant claims the prosecutor’s reasons were implausible, unsupported by the record, or both, and the trial court failed to make a sincere and reasoned attempt to evaluate the prosecutor’s reasons. We disagree with defendant’s view of the record. The prosecutor’s reasons were both plausible and supported by the record, and substantial evidence supports the trial court’s conclusions that the prosecutor’s reasons were genuine and not based on race or ethnicity. We therefore reject defendant’s Wheeler/Batson claims.
Defendant raises four additional claims, and the People agree that each has merit. These claims are: (1) his conviction for petty theft with a prior in count 3 must be reversed because it is a lesser included offense of robbery, his conviction in count 1; (2) the matter must be remanded for resentencing because the record indicates the trial court may have mistakenly believed it had no discretion to strike one or more of defendant’s four prison priors for sentencing purposes; (3) his concurrent 25-year-to-life sentence for burglary in count 2 must be stayed because the burglary and robbery, on which he was separately sentenced, were committed with the same intent and objective; and (4) the abstract of judgment erroneously directs defendant to register as a sex offender and a narcotics offender, and must be corrected.
We also agree that defendant’s additional claims have merit. We therefore reverse his petty theft conviction in count 3, stay his sentence for burglary on count 2, and remand the matter to the trial court. On remand, the trial court is to consider striking one or more of defendant’s four prison priors, and correct the abstract of judgment. The new abstract must reflect the changes to defendant’s convictions and sentence made on this appeal and on remand, and not direct him to register as a sex offender or a narcotics offender. In all other respects, we affirm the judgment.
II. BACKGROUND
A. Prosecution Evidence
On July 1, 2007, Miguel Davlantes was working as an asset protection specialist at a Home Depot store in LaQuinta. He conducted surveillance on persons suspected of shoplifting in the store. Around 4:40 p.m., Davlantes saw defendant enter the store, and began watching him.
Davlantes recognized defendant because he had seen him in the store before and believed he had taken some items from the store at that time. On the prior occasion, Davlantes did not stop defendant because he lost sight of him at one point and believed he had insufficient proof that defendant had taken anything from the store.
Defendant walked directly to aisle 4 and put a large box containing a humidifier in his shopping cart. He then proceeded to aisle 19, where he put two Husky wrench sets and a wrench in the top portion of his cart. Next, defendant reversed his path and walked to aisle 13. As Davlantes watched defendant from seven or eight feet behind him in aisle 13, it appeared defendant was cutting a package and trying to remove a bar or sensor code. Defendant was making a sawing motion and was shuffling his shoulders and moving his waist. He then threw something onto the rack in aisle 13.
Defendant then pushed his shopping cart to the end of aisle 13, left it there, and walked toward the front of the store. At this point, Davlantes did not see anything in defendant’s hands; however, Davlantes looked on the rack in aisle 13 and saw that defendant had removed the sensor tags from the Husky tools and wrench. One of the sensor tags had blood on it. The retail prices of the Husky tools and wrench totaled approximately $155.
As defendant was walking out of the store, Davlantes called the store operations manager, Robert Hanson, and told Hanson he was making a stop. Without losing sight of defendant, Davlantes followed defendant out of the store. Hanson walked out of the store at the same time. Hanson was behind defendant to his side and about a foot or two behind Davlantes when Davlantes identified himself to defendant as “store security.” Defendant immediately turned around and faced Davlantes, and Davlantes saw that defendant had a knife in his hand. It appeared to be a folding knife, and the blade was open. Davlantes veered back and said, “Got a knife?” Defendant stood in place for a moment and said something like, “Oh, yeah.” Davlantes made no further attempt to stop defendant because he feared being cut with the knife. Defendant ran through the parking lot and across the street. Davlantes called 911. Hanson saw “something” in defendant’s hand, but he could not identify what he saw as a knife.
Davlantes later searched the store for the Husky tools and wrench but did not find them. When Davlantes checked the cart defendant had used, only the humidifier was in it. Defendant did not have permission to take any tools. Davlantes later identified defendant from a photographic lineup. Davlantes also identified defendant at trial as the person who took the Husky tools and wrench from the store on July 1.
The jury viewed a surveillance video and photographs showing defendant walking in and out of the store, the confrontation between Davlantes and defendant outside the store, and defendant running through the parking lot. Police recovered three sensor tags from the store, including the sensor tag with blood on it. Defendant’s blood matched the blood on the sensor tag.
B. Defense Case
The defense did not present any affirmative evidence.
III. DISCUSSION
A. Wheeler/Batson
Defendant is Hispanic. During jury voir dire, the defense made three successive Wheeler/Batson motions which together claimed the prosecutor had used peremptory challenges to excuse six Hispanic jurors, namely, B.G., E.V., M.M., C.A., N.S., and L.B., on the basis of race or ethnicity. Two prospective jurors were the subject of each motion. On each motion, the trial court found the defense had stated a prima facie case of impermissible discrimination, but denied each motion after hearing the prosecutor’s reasons for exercising each challenge.
On this appeal, defendant claims the prosecutor’s reasons for excusing the Hispanics were implausible, not supported by the record, or both, and the trial court did not make a sincere and reasoned attempt to evaluate the prosecutor’s reasons. We conclude that the prosecutor’s reasons were both plausible and supported by the record, and substantial evidence supports the trial court’s conclusions that the prosecutor’s reasons were genuine and not based on race or ethnicity. We therefore reject defendant’s Wheeler/Batson claims.
1. Legal Principles
The federal and state Constitutions prohibit a party’s use of peremptory challenges to exclude prospective jurors on the basis of group bias, including race or ethnicity. (Batson, supra, 476 U.S. at p. 97; Wheeler, supra, 22 Cal.3d at pp. 276-277; People v. Stevens (2007) 41 Cal.4th 182, 192.) Such impermissibly discriminatory practices violate the opposing party’s Fourteenth Amendment right to equal protection of the law and state constitutional right to trial by a jury drawn from a representative cross-section of the community. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1008.) It necessarily follows that “[t]he exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal.” (People v. Silva (2001) 25 Cal.4th 345, 386.) Here, we are concerned with the prosecutor’s preemptory excusal of six Hispanic prospective jurors, allegedly on the basis of race or ethnicity.
“There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination. [Citations.] To do so, a defendant must first ‘make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citation.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial [or gender] exclusion” by offering permissible race-neutral [or gender-neutral] justifications for the strikes. [Citations.] Third, “[i]f a race-neutral [or gender-neutral] explanation is tendered, the trial court must then decide... whether the opponent of the strike has proved purposeful... discrimination.” [Citation.]’ [Citation.] The same three-step procedure applies to state constitutional claims. [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 341.) In this case, we are concerned only with the third step.
“A prosecutor asked to explain his conduct must provide a ‘“clear and reasonably specific” explanation of his “legitimate reasons” for exercising the challenges.’ [Citation.] ‘The justification need not support a challenge for cause, and even a “trivial” reason, if genuine and neutral, will suffice.’ [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citations.] Nevertheless, although a prosecutor may rely on any number of bases to select jurors a legitimate reason is one that does not deny equal protection. [Citation.] Certainly a challenge based on racial prejudice [or ethnicity] would not be supported by a legitimate reason.” (People v. Lenix (2008) 44 Cal.4th 602, 613.)
The question for the trial court on the third step is whether “the reason given for the peremptory challenge [was] a ‘legitimate reason’....” (People v. Reynoso (2003) 31 Cal.4th 903, 925.) “‘[T]he 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.’ [Citation.] In assessing credibility, the court draws upon its contemporaneous observations of the voir dire. It may also rely on the court’s own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her. [Citation.]” (People v. Lenix, supra, 44 Cal.4th at p. 613, fn. omitted.)
“Review of a trial court’s denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions. [Citation.] ‘We review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges “‘with great restraint.’” [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] 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. [Citation.]’ [Citation.]” (People v. Lenix, supra, 44 Cal.4th at pp. 613-614, fn. omitted.)
“The existence or nonexistence of purposeful discrimination is a question of fact.” (People v. Hamilton (2009) 45 Cal.4th 863, 900-901 & fn. 11, citing Snyder v. Louisiana (2008) 552 U.S. 472 (Snyder).) Thus, when the trial court has made a sincere and reasoned attempt to evaluate the credibility of each of the prosecutor’s justifications, we review the trial court’s determination regarding the sufficiency of a prosecutor’s justifications deferentially, considering only whether substantial evidence supports the court’s conclusions. (People v. Hamilton, supra, at pp. 900-901, fn. 11; People v. Jurado (2006) 38 Cal.4th 72, 104-105; People v. Bonilla, supra, 41 Cal.4th at p. 341.) “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. [Citation.]” (People v. Burgener (2003) 29 Cal.4th 833, 864.)
“The United States Supreme Court has also emphasized that a state trial court’s finding of no discriminatory intent is a factual determination accorded great deference. [Citation.] ‘Step three of the Batson inquiry involves an evaluation of the prosecutor’s credibility, [citation], and “the best evidence [of discriminatory intent] often will be the demeanor of the attorney who exercises the challenge.” [Citation.] In addition, race-neutral reasons for peremptory challenges often invoke a juror’s demeanor (e.g., nervousness, inattention), making the trial court’s first-hand observations of even greater importance. In this situation, the trial court must evaluate not only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor. We have recognized that these determinations of credibility and demeanor lie “‘peculiarly within a trial judge’s province, ’” [citations], and we have stated that “in the absence of exceptional circumstances, we would defer to [the trial court].” [Citation.]’” (People v. Lenix, supra, 44 Cal.4th at p. 614, citing Snyder, supra, 522 U.S. at p. 477.)
With these principles in mind, we turn to the record and defendant’s arguments.
2. Jury Voir Dire
On April 9, 2008, the first day of jury selection, the trial court called a group of prospective jurors into the courtroom. After some prospective jurors were excused for hardship, 18 were selected at random and directed to sit in the jury box. The initial 18 panelists included Juror Nos. 2 and 8, and eight persons with Hispanic surnames, including B.G. and E.V., the subject of defendant’s first Wheeler/Batson motion.
The trial court asked the 18 panelists some general questions and directed the rest of the venire to answer the same questions in the event they were called into the box. The questions were: (1) whether any prospective juror had strong feelings about the charges; (2) had heard or read about the case; (3) knew defendant, defense counsel, the prosecuting attorney, or witnesses; (4) whether any prospective juror or anyone close to them had ever been engaged in law enforcement work of any kind; (5) whether each prospective juror could weigh and consider the testimony of a law enforcement officer the same as the testimony of any other person; (6) whether any prospective juror or any of their relatives or close friends had been charged with offenses similar to defendant; (7) whether any prospective juror had prior jury experience; (8) had any quarrel with the standard of proof of beyond a reasonable doubt; (9) could base his or her verdict on the evidence and the court’s instructions; and (10) whether there was any reason why a prospective juror could not be fair and impartial to both sides.
Although many of the initial 18 panelists responded to the court’s questions and asked questions themselves, neither B.G. nor E.V. responded to any of the court’s questions. The 18 panelists were then asked to provide a brief history of their backgrounds, including their city of residence, their present and past employment, and the present and past employment of anyone 18 years of age or older living in their households.
B.G. said she was 24 years old, lived in Indio, and had been unemployed for about six months. Prior to that, she had worked as a mortgage loan officer and a loan coordinator for loan officers for about three years. Her father was a self-employed gardener, and her mother worked for a company that made parts for airplanes and buses.
E.V. said she lived in Palm Desert and had just graduated from college in San Bernardino. She majored in liberal arts and paid her own way through school. She had been working for Office Depot for three years and was coaching basketball. She planned to return to school in order to obtain her teaching credential. She lived with two roommates; one worked at a Marriot Hotel and was earning a doctorate degree; the other worked for Enterprise Rent-A-Car.
On April 10, the second day of jury selection, the trial court excused six of the initial 18 panelists for cause. The excused panelists included three of the eight panelists who had Hispanic surnames, but did not include B.G. or E.V.
Defense counsel then addressed the remaining 12 panelists. In response to defense counsel’s question whether she had any experience with shoplifters, E.V. responded she had only “[a] little” experience with shoplifting because she worked in the copy center of Office Depot rather than the store, but the experience she had would not color her view of the case. Defense counsel did not ask B.G. any questions.
The prosecutor then addressed the remaining 12 panelists. He did not ask E.V. any specific questions. He addressed B.G. only once, and momentarily, when he asked all 12 panelists whether any of them had seen the movie Boyz ‘N the Hood. The record does not reflect any verbal response from B.G., however.
The prosecutor explained there was a scene in the movie in which Ice Cube is sitting on his front porch and three men drive up in a car and stop. Ice Cube lifts his shirt to display a gun, and the men drive on without saying a word. The prosecutor asked the 12 panelists whether any of them would have a problem determining that Ice Cube intended to use the gun, though no words were spoken. None of the 12 panelists, including B.G. or E.V., indicated they disagreed that the circumstances showed Ice Cube intended to use the gun.
After the prosecutor concluded his questions, a seventh member of the original 18 panelists was excused for hardship, and the clerk called seven more panelists into the jury box. These seven replacement panelists included Juror Nos. 3 and 7. The other five included four persons with Hispanic surnames, namely, M.M., A.J., A.L., and L.S. (Of these four, only M.M. was the subject of one of the defense’s motions.)
M.M., a female, said she lived in Indio and worked as a pharmacy technician. Her fiance worked in masonry. A.J., a female, also lived in Indio. For the past 13 years, she had been employed by the Riverside County Office of Education as a teacher’s assistant with the “Team Mom Program.” A.J.’s husband worked for the City of Indian Wells as an assistant in the engineering department. Neither defense counsel nor the prosecutor asked any questions of M.M. or A.J.
A.L., a male, had worked for a recycling company for 28 years. His wife was a homemaker. He had three children, one of whom was a marine and two of whom lived at home. A.L. lived in Desert Hot Springs. In response to defense counsel’s question whether any of the seven replacement panelists had any strong feelings about law enforcement, A.L. said the police had twice put a gun to his head for no reason and “before they even said anything.” He said he had been doing “nothing wrong, ” and “the law isn’t always right.”
L.S., a female, was employed by the Desert Sands Unified School District as a school clerk. She had previously worked as a secretary for the Coachella Water District. She lived in La Quinta, had four children, and was widowed. She had served on a jury twice before. L.S. was originally seated as Juror No. 5, but was excused for hardship and replaced before jury selection concluded.
After both parties passed for cause, the prosecutor used his first and second peremptory challenges to excuse B.G. and E.V. Immediately after the prosecutor excused E.V., defense counsel made his first Wheeler/Batson motion. He argued that neither B.G. nor E.V. had responded affirmatively to any of the court’s general questions, and the prosecutor had not engaged in any meaningful dialog with either of them. For these reasons, defense counsel said he didn’t “see any reason other than race” “or possibly gender” to excuse B.G. or E.V. The court ruled that the defense had made a prima facie showing, and asked the prosecutor to explain his reasons for excusing them.
The prosecutor explained he had excused B.G. because she was unemployed and, in his experience, unemployed jurors tended to favor or sympathize with defendants and not follow the law. At that point, defense counsel acknowledged that B.G. had looked away from him, appeared disinterested in the proceedings, and appeared to be frowning while he was questioning her.
The court then asked the prosecutor to explain his reasons for excusing E.V. The prosecutor explained that E.V. was a “[r]ecent grad, ” “[l]ack[ed]... experience, ” and exhibited a “defensive body posture” while the prosecutor was addressing the panel. Based on these observations, the prosecutor said, “I kind of get the feeling that she doesn’t like me; she would not follow the law, but instead base her decision on what the law says simply that you can’t have prejudice towards the parties.”
In response, defense counsel said he was concerned the prosecutor was excusing B.G. based on her “social class, ” and submitted that the prosecutor’s reasons for excusing B.G. and E.V. were “superficial.” The prosecutor responded that he was not excusing B.G. based on her social class or because she was “poor” or “lack[ed]... funds.” Rather, he was excusing her because he believed her “current situation” of being unemployed might cause her to disregard the law and “condone” defendant’s actions.
The trial court correctly pointed out that neither “persons with low income” nor “young people” were cognizable groups for Wheeler/Batson purposes. (People v. Burgener, supra, 29 Cal.4th at p. 856 [persons of low income are not cognizable group]; People v. Stansbury (1993) 4 Cal.4th 1017, 1061 [Courts of Appeal have repeatedly rejected claim that young persons are cognizable group].) The court then explained it was not persuaded that the prosecutor had excluded B.G. or E.V. based on their membership in any cognizable group, including their Hispanic race or ethnicity. With that, the court denied defendant’s first Wheeler/Batson motion.
After jury voir dire resumed and the defense exercised its second peremptory challenge, the prosecutor used his third peremptory challenge to excuse A.J. and his fourth to excuse M.M. At that point, seven of the original 18 panelists in the box had been excused, and the clerk called seven more panelists into the box. These included Juror No. 1 and six other persons, none of whom had Hispanic surnames.
Both counsel then questioned the second set of seven replacement panelists. In response to the prosecutor’s general question whether any of the second set of seven replacement panelists knew of any reason why they should not serve on the jury, A.L., who was in the first group of seven replacement panelists, said his employer “only pays for five days” and, “I was going to say: I don’t feel like I ain’t nobody to judge this person for his crime whatever he done. I don’t know how you feel about it.” The prosecutor thanked A.L. and concluded his questions.
Both parties again passed for cause, and the defense used its fourth and sixth peremptory challenges, respectively, to excuse L.P and T.K. These were woman with Hispanic surnames who were among the original 18 panelists called into the jury box. The defense used its fifth and seventh peremptory challenges, and the prosecutor used his fifth and sixth challenges, to excuse persons with non-Hispanic surnames. The prosecutor then used his seventh peremptory challenge to excuse A.L. and commented, “I think he’s got other places he wants to be.”
A third group of seven replacement panelists were then called into the jury box, including Juror No. 9. None of these replacement panelists had Hispanic surnames. After both counsel questioned the new panelists, the court excused two panelists for cause. The prosecutor and defense counsel then used their eighth peremptory challenges to excuse two panelists with non-Hispanic surnames, and the prosecutor accepted the jury as constituted. The defense then used its ninth peremptory challenge to exclude a panelist with a non-Hispanic surname, and the prosecutor again accepted the jury as constituted. The defense then used its tenth and the prosecutor used his ninth peremptory challenge to excuse panelists with non-Hispanic surnames.
A fourth group of seven replacement panelists were then called, only one of whom had an Hispanic surname. After the parties questioned the new panelists, they stipulated to excuse one of them for cause and the court granted a defense motion to excuse another for cause. Both these panelists had non-Hispanic surnames. After the defense used its eleventh peremptory challenge to excuse a panelist with a non-Hispanic surname, the prosecutor used his tenth peremptory challenge to excuse C.A.
The defense then made its second Wheeler/Batson motion, arguing that the excusals of M.M. and C.A., together with the prior excusals of B.G. and E.V, showed the prosecutor was systematically excluding Hispanic jurors based on race. The trial court observed that, as of that point, the prosecutor had excused six Hispanics, B.G., E.V., A.J., A.L., M.M., and C.A., and the defense had excused three Hispanics-two of whom appeared to be Hispanic though they did not have Hispanic surnames. Given that, the court asked defense counsel to explain why he believed the prosecutor was systematically excluding Hispanic panelists.
In response, defense counsel conceded he could “fully see why” the prosecutor excused A.L. but he saw no reason for the prosecutor’s excusal of B.G., E.V., M.M., or C.A., other than their Hispanic ethnicity. Defense counsel pointed out that M.M. and C.A. were employed, neither he nor the prosecutor had asked either of them any questions, and there were no Hispanic panelists in the jury box at that point. Defense counsel did not mention A.J., a female with an Hispanic surname who had been employed for 13 years with the Riverside County Office of Education as a teacher’s assistant with the “Team Mom Program, ” whom the prosecutor had also excused.
The trial court pointed out that L.S., an Hispanic, was still in the jury box, and the court was unsure whether any other Hispanics were still in the jury box. Still, the court found the defense had made a prima facie showing of impermissible discrimination for M.M. and C.A., and asked the prosecutor to explain his reasons for excusing them. Regarding C.A., the prosecutor explained that C.A. had been staring at him in the hallway and gave him a “menacing look” when he was speaking about the scene from the movie Boyz ‘N the Hood. The prosecutor also had the impression that C.A. had “a street mentality” and would not follow the law because he was nodding his head when the prosecutor was talking about the inference of intent in the scene from Boyz ‘N the Hood. Regarding M.M., the prosecutor said she had not “said a thing” and had not been paying attention. He also believed M.M. had a hardship because she was supporting three children on $11 an hour. He also believed A.L. had a hardship because he was his family’s sole source of support. For these reasons, he excused M.M. and A.L. After hearing these explanations, the trial court found the prosecutor had “mutual reasons for the peremptory challenges” and denied the motion.
The defense used its next peremptory challenge to excuse a non-Hispanic, and the prosecutor accepted the jury as constituted. The defense excused another non-Hispanic, and the prosecutor again accepted the jury as constituted. After the defense excused another non-Hispanic, seven more panelists were called, including Juror Nos. 4, 10, and 11. Both parties questioned the new panelists, passed for cause, and the prosecutor again accepted the jury as constituted. The defense then excused a panelist with an Hispanic surname, and the prosecutor again accepted the jury as constituted.
After the defense and prosecutor together excused five more panelists with non-Hispanic surnames, the only three prospective jurors left in the entire venire were called into the jury box. These included Juror Nos. 6 and 12. After the parties passed for cause, the defense used its next preemptory challenge to excuse a panelist with a non-Hispanic surname. The prosecutor then accepted the jury as constituted without using his last two peremptory challenges. At that point, the jury was sworn, but two alternates had yet to be selected, and the entire venire had been exhausted.
On the next court day, April 14, the parties stipulated to excuse L.S., who had been sworn as Juror No. 5, for cause. Her car had been repossessed and there was concern she would not be able to concentrate on the proceedings. L.S. was the sole Hispanic on the jury. After L.S. was excused, the remaining 11 jurors were excused until the afternoon and a second venire was called into the courtroom. Seven panelists were called into the box. These included N.S. and L.B., and the person who replaced L.S. as Juror No. 5.
N.S. was a female Hispanic who worked as a behavioral therapist for children with autism. She had a bachelor’s degree in psychology. She lived in Palm Springs with her mother, who worked for the Bureau of Indian Affairs. L.B. was a male Hispanic who lived in Indio and worked for an alarm company. No other persons in his household worked outside the home.
After the parties questioned the new panelists and one was excused for cause, the prosecutor accepted the person seated as Juror No. 5, and new Juror No. 5 was sworn. The parties then turned to the issue of selecting two alternates. Each party had two peremptory challenges. The two persons initially seated as alternates were N.S. and M.H., a woman who had a non-Hispanic surname but Hispanic first and middle names.
The prosecutor used his first peremptory challenge to excuse N.S., and defense counsel used his first peremptory challenge to excuse a male with a non-Hispanic surname who replaced N.S. After the prosecutor used his second peremptory challenge to excuse L.B., the defense made its third Wheeler/Batson motion regarding N.S. and L.B. Defense counsel noted that neither he nor the prosecutor had spoken with N.S. or L.B., and he saw no reason for their excusal other than their Hispanic ethnicity.
After the court found the defense had made a prima facie showing, the prosecutor explained he excused N.S. because, in his experience, persons who work in behavioral sciences had “a strong disregard for the law” and tended to make decisions based on “their own thoughts and beliefs.” He feared N.S. would try to “understand” what defendant had done rather than determine whether he was guilty as charged.
Regarding L.B., the prosecutor explained he had his arms crossed the entire time, had a menacing look on his face, and rolled his eyes when the trial court asked the panelists whether they could treat the testimony of a law enforcement officer the same as any other witness. L.B. also did not look at the prosecutor in a friendly manner and would not make eye contact with him. For these reasons, the prosecutor feared L.B. was harboring an undisclosed bias against law enforcement personnel and prosecutors.
In response to the prosecutor’s explanations, the trial court noted that the second venire had been unusually quiet. The trial court and defense counsel agreed that L.B. had his arms crossed; however, defense counsel argued that the prosecutor was reading too much into that. Apparently, neither the court nor defense counsel saw L.B. make any menacing looks or roll his eyes. Still, the court found the prosecutor had sufficiently explained his reasons for excusing N.S. and L.B., and denied the defense’s third Wheeler/Batson motion.
Thereafter, defense counsel used his second and final peremptory challenge to excuse M.H., and six more panelists were called. After the court questioned the new panelists, the two who were seated as alternates were sworn, and jury voir dire concluded.
3. Defendant’s Arguments
Defendant argues the prosecutor’s reasons for excusing B.G., E.V., M.M., C.A., N.S., and L.B. were implausible, unsupported by the record, or both, and the trial court failed to make a sincere and reasoned attempt to evaluate the prosecutor’s reasons for excusing each of these prospective jurors. The record indicates otherwise.
(a) Prospective Juror B.G.
The prosecutor said he excused B.G. because she was currently unemployed and, in his experience, unemployed persons tended to sympathize with defendants. He believed her “current situation” of being unemployed might cause her to disregard the law and “condone” defendant’s actions. Defendant argues the prosecutor’s reasons for excusing B.G. were “pretexual” and unrelated to the case. He also points out there was no evidence that he was unemployed or that he committed the alleged Estes robbery because he was unemployed. Nor did the prosecutor ask B.G. whether she was unemployed by choice.
We find defendant’s arguments unpersuasive. The trial court was persuaded that the prosecutor excused B.G. for legitimate reasons, that is, her current unemployment and the related possibility that she would condone defendant’s actions. This reason was plausible. It was also supported by the record because B.G. said she had been unemployed for around six months. There was therefore no need for the court to make detailed findings in support of its order denying the motion. (People v. Stevens, supra, 41 Cal.4th at p. 193; People v. Silva, supra, 25 Cal.4th at p. 386 [court need not question the prosecutor or make detailed findings when prosecutor’s stated reasons are both inherently plausible and supported by the record].) Indeed, B.G. was only 24 years old and, as defense counsel acknowledged, appeared disinterested in the proceedings. Her negative demeanor bolstered the prosecutor’s claim that she may have condoned defendant’s actions and refused to follow the law.
(b) Prospective Juror E.V.
E.V. had just graduated from college after majoring in liberal arts, and had paid her own way through school. She had been working for Office Depot for three years and was also coaching basketball. She planned to return to school in order to obtain her teaching credential. She lived with two roommates. The prosecutor said he excused E.V. because she was a “[r]ecent grad, ” “[l]ack[ed]... experience, ” and exhibited a “defensive body posture” while he was addressing the panel. He also said: “I kind of get the feeling that she doesn’t like me; she would not follow the law, but instead base her decision on what the law says simply that you can’t have prejudice towards the parties.”
Defendant argues the prosecutor’s reasons for excusing E.V. were “even more questionable” than his reasons for excusing B.G. He said the prosecutor’s “defensive body posture” or demeanor-based reason for excusing E.V. was unsupported by the record because the trial court did not make a finding that E.V. was exhibiting a defensive body posture. Relying on Snyder, defendant argues this court may not presume that the trial court credited the prosecutor’s demeanor-based reason because it did not make a factual finding to support it. (Snyder, supra, 552 U.S. at p. 479.)
This argument is also unpersuasive. The record shows the trial court credited the prosecutor’s claim that he excused E.V. because she lacked experience and was young. In denying defendant’s motion regarding B.G. and E.V., the court specifically pointed out that young people do not constitute a cognizable group for Wheeler/Batson purposes. (People v. Stansbury, supra, 4 Cal.4th at p. 1061.) It was therefore unnecessary for the court to address the prosecutor’s additional, demeanor-based reason for excusing E.V. That E.V. was young and lacked experience were plausible, race-neutral reasons for excusing her, and are amply supported by the record.
Defendant also argues that the prosecutor’s lack-of-experience argument for excusing E.V. did not “ring true, ” in part because Juror Nos. 3 and 8, both of whom worked at Wal-Mart, had jobs similar to E.V.’s job at Office Depot. The comparison fails because the record shows that Juror Nos. 3 and 8 were not nearly as young or inexperienced as E.V. Juror No. 3 had a retired husband and had worked at Motel Six for seven years before she began working for Wal-Mart. Juror No. 8 was married, had three grown children, and had worked at Wal-Mart for 12 years.
(c) Prospective Juror M.M.
M.M., a female, lived in Indio and worked as a pharmacy technician. Her fiance worked in masonry. The prosecutor said he excused M.M. because she had not “said a thing” and had not been paying attention. He also believed M.M. had a hardship because she was supporting three children on $11 an hour. The prosecutor said he excused A.L. for the same reason: A.L. had a hardship because he was his family’s sole source of support.
Defendant claims the prosecutor’s reasons for excusing M.M. were “superficial” and did not rebut the defense’s prima facie showing that M.M. was excused because she was Hispanic. We disagree. The prosecutor’s hardship-based reason for excusing M.M. was both plausible and supported by the record. The defense does not dispute the prosecutor’s assertion that M.M. requested to be excused on hardship grounds or that she was supporting three children on $11 an hour. It is also reasonable to believe that a single mother who will suffer financial adversity in serving on a jury may be worried and distracted from the proceedings.
Defendant further argues that the prosecutor’s hardship-based reason for excusing M.M. “loses its facial neutrality” because the prosecutor did not excuse R.L., a “white juror” who claimed a hardship due to preexisting travel plans. The comparison fails because R.L’s purported hardship was based on a vacation she was not scheduled to take until April 30, well after defendant’s trial was scheduled to conclude. In contrast to R.L’s purported hardship, M.M.’s hardship had the potential to distract M.M. from the trial.
The defense used its twelfth preemptory challenge to excuse R.L.
Defendant also compares M.M.’s hardship to that of K.M., another non-Hispanic juror whom the trial court refused to excuse on hardship grounds. This comparison also fails. K.M’s hardship was based on an unspecified issue with her employer, a bank where she worked as a vice-president. K.M. was single and had a daughter graduating from high school; however, K.M. apparently did not work for as little as $11 an hour. Nor is there any other indication that serving on a jury for five days, the expected length of the trial in this case, would have constituted a financial hardship to K.M.
K.M. was excused for cause.
(d) Prospective Juror C.A.
C.A., a male, lived in Indio, was married, and worked as a supervisor at a furniture store warehouse. The prosecutor said he excused C.A. because he had been staring at him in the hallway and gave him a “menacing look” when he was talking about the scene from the movie Boyz ‘N the Hood. The prosecutor also had the impression that C.A. had “a street mentality” and would not follow the law because he was nodding his head when the prosecutor was talking about the inference of intent in the scene from Boyz ‘N the Hood.
After hearing the prosecutor’s explanations for excusing both M.M. and C.A. on defendant’s second Wheeler/Batson motion, the trial court said, “All right. I will make a finding that there are mutual reasons for the peremptory challenges, ” and denied the motion. Although the court did not make specific factual findings supporting the prosecutor’s demeanor-based reasons for excusing C.A., its comment that there were “mutual reasons” for the prosecutor’s challenges indicates it believed the prosecutor’s reasons for excusing C.A. were genuine and not based on C.A.’s Hispanic ethnicity.
We are mindful that, in Snyder, the high court held that when a prosecutor’s race-neutral reasons for excusing a prospective juror are demeanor-based, “the trial court must evaluate not only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor.” (Snyder, supra, 552 U.S. at p. 477.) The prosecutor claimed to have excused a Black prospective juror for two reasons: (1) the juror appeared to be nervous, and (2) the juror expressed concern about missing his college classes. (Id. at p. 478.) The trial court allowed the challenge without finding whether the prosecutor’s demeanor-based reason was credible or whether the prospective juror appeared to be nervous, as the prosecutor claimed. (Id. at p. 479.) Instead, the court simply said: “‘All right. I’m going to allow the challenge. I’m going to allow the challenge’....” (Ibid.) Here, in contrast, the trial court effectively evaluated the prosecutor’s race-neutral, demeanor-based reasons for excusing C.A. and found them to be credible. Snyder is therefore distinguishable and not controlling.
(e) Prospective Juror N.S.
N.S. was a female Hispanic who worked as a behavioral therapist for children with autism. She had a bachelor’s degree in psychology. She lived in Palm Springs with her mother, who worked for the Bureau of Indian Affairs. The prosecutor said he excused N.S. because, in his experience, persons who work in behavioral sciences had “a strong disregard for the law” and tended to make decisions based on “their own thoughts and beliefs.” The prosecutor feared N.S. would try to “understand” what defendant had done rather than determine whether he was guilty as charged.
The prosecutor’s reason for excusing N.S. was both plausible and supported by the record. It is reasonable to believe that persons who work in behavioral sciences may try to “understand” a defendant’s actions and that this may distract them from their duty to follow the law and the court’s instructions. Further, the occupation or employment of a prospective juror is generally a race-neutral reason for excluding them. (See, generally, People v. Landry (1996) 49 Cal.App.4th 785, 790-791.)
(f) Prospective Juror L.B.
L.B. was a male Hispanic who lived in Indio and worked for an alarm company. No other persons in his household worked outside the home. The prosecutor said he excused L.B. because L.B. had his arms crossed the entire time, had a menacing look on his face, and rolled his eyes when the trial court asked the panelists whether they could treat the testimony of a law enforcement officer the same as any other witness. L.B. also did not look at the prosecutor in a friendly manner and would not make eye contact with him. For these reasons, the prosecutor feared L.B. was harboring an undisclosed bias against law enforcement personnel and prosecutors.
In denying the Wheeler/Batson motion for L.B., the trial court expressly found that the prosecutor’s explanations for excusing L.B. were “sufficient, ” and acknowledged that L.B. had his arms crossed. Substantial evidence therefore supports the trial court’s conclusions that the prosecutor’s race-neutral reasons for excusing L.B. were genuine.
4. Defendant’s Ineffective Assistance Claim Lacks Merit
Defendant claims his defense counsel was ineffective in failing to include A.J. in his second Wheeler/Batson motion. We disagree.
A.J. was a female Hispanic who lived in Indio. For the past 13 years she had been employed by the Riverside County Office of Education as a teacher’s assistant with the “Team Mom Program.” Her husband worked for the City of Indian Wells as an assistant in the engineering department.
The prosecutor used his third peremptory challenge to excuse A.J. immediately after he used his first and second peremptory challenges to excuse B.G. and E.V. and the trial court denied defendant’s first Wheeler/Batson motion regarding the excusals of B.G. and E.V. In making his second Wheeler/Batson motion, defense counsel focused on M.M. and C.A. and did not mention the prosecutor’s excusal of A.J. or argue that it was based on her Hispanic ethnicity.
In order to establish an ineffective assistance claim, a defendant must show (1) his counsel’s representation was deficient, meaning it failed to meet an objective standard of professional reasonableness, and (2) prejudice, meaning there is a reasonable probability that, but for counsel’s deficient representation, the defendant would have realized a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Frye (1998) 18 Cal.4th 894, 996, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Here, defendant has not established the prejudice prong of his claim. In short, it is not reasonably probable he would have realized a more favorable result had defense counsel challenged the prosecutor’s excusal of A.J. on Wheeler/Batson grounds. More specifically, it is not reasonably probable defendant would have prevailed on a Wheeler/Batson claim that A.J. was excluded based on her Hispanic ethnicity.
As a teacher’s assistant with the “Team Mom Program, ” A.J. worked in education helping mothers, presumably young or teenage mothers, with children. In this respect, A.J. was similar to N.S., who worked with autistic children in behavioral sciences. The prosecutor excused N.S. because, in his experience, people who worked in behavioral sciences tended to disregard the law and make decisions based on “their own thoughts and beliefs.” Because the prosecutor felt that way about N.S., he likely felt the same way about A.J. and excused A.J. for the same or similar reasons he excused N.S. And, because the court credited the prosecutor’s race-neutral reasons for excusing N.S., it likely would have credited the same reasons for excusing A.J.
B. Defendant’s Conviction for Petty Theft With a Prior Conviction Must Be Reversed
Defendant claims, and the People agree, that his conviction in count 3 for petty theft with a prior conviction must be reversed because, based on the evidence at trial, it is a lesser included offense to robbery, his conviction in count 1. Defendant and the People are correct. It is well-settled that theft is a lesser included offense to robbery (People v. Bradford (1997) 14 Cal.4th 1005, 1055-1056), and a defendant may not be convicted of a greater offense and a necessarily included lesser offense (People v. Medina (2007) 41 Cal.4th 685, 702). It is also undisputed that defendant’s conviction in count 3 was based on the same conduct underlying his robbery conviction in count 1. Thus, his conviction in count 3 must be reversed.
C. The Matter Must Be Remanded for Resentencing
Defendant next claims the matter must be remanded for resentencing because, in denying his Romero motion, the trial court may have mistakenly believed it had no discretion to strike one or more of his four prison priors. The People agree and concede the matter must be remanded for resentencing. We reluctantly agree. Unfortunately, the record is somewhat ambiguous concerning whether the trial court understood it had discretion to strike one or more of defendant’s prison priors.
Defendant admitted he had four prison priors, and the jury found he had two prior strike convictions. At sentencing, defendant made a Romero motion to strike one or both of his two prior strike convictions. The trial court denied the motion based on defendant’s lengthy criminal history and failure to reform.
Notably, the Romero motion did not include a request to strike any of defendant’s four prison priors. But after the court denied the motion, defense counsel asked the court whether it would consider striking one or more of the prison priors given that defendant was facing a three strikes sentence.
The court refused the request, saying: “No sir. There’s no provision to do that. I don’t think that would be appropriate under these circumstances. I’ll deny that request. Pursuant to [section 667, subdivision (e)], ... the Court is bound to and will impose the sentences as indicated of 25 years to life.” (Italics added.)
Based on the court’s comment that there was “no provision” to strike any of the prison priors, defendant argues the record is ambiguous and indicates that the court may have mistakenly believed it had no discretion to strike any of defendant’s prison priors, or the punishment on those prison priors, pursuant to section 1385 when, in fact, it did. As noted, we reluctantly agree.
A sentencing court has discretion to strike a prison prior in the interests of justice pursuant to section 1385. (People v. Bradley (1998) 64 Cal.App.4th 386, 395.) A defendant is also entitled to sentencing decisions based on the court’s “informed discretion”; however, the court cannot exercise informed discretion if it is unaware of its discretion. (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.)
The court’s comments were ambiguous. On the one hand, they indicate the court may have understood it had discretion to strike the prison priors but found it inappropriate to do so based on defendant’s criminal record. On the other hand, the court’s comment that there was “no provision” to strike the priors indicates the court may have believed it had no discretion to strike the priors, in any event.
Because the court may have sentenced defendant based on the erroneous belief it lacked discretion to strike any of his prison priors, or the punishment on those priors, remand is necessary so the court may exercise its informed discretion at the new sentencing hearing. (People v. Belmontes, supra, 34 Cal.3d at p. 348, fn. 8; People v. Brown (2007) 147 Cal.App.4th 1213, 1228-1229.)
D. Defendant’s Concurrent Sentence for Burglary (Count 2) Must Be Stayed
Defendant was sentenced to 25 years to life for his burglary conviction in count 2, concurrent to his 25-year-to-life sentence for his robbery conviction in count 1. He claims his concurrent term for the burglary must be stayed, because it is indisputable that the burglary and robbery were part of the same course of conduct and were committed with the same intent and objective, that is, taking the Husky tools and wrench. The People and this court agree.
Section 654 does not allow separate punishment, including concurrent sentences, to be imposed for crimes that are part of the same course of conduct and committed with the same intent and objective. (People v. Deloza (1998) 18 Cal.4th 585, 591-592.) This is what occurred here.
People v. Perry (2007) 154 Cal.App.4th 1521 is on point. There, the defendant was in the process of burglarizing a car for a car stereo when the owner confronted him. (Id. at p. 1524.) The defendant jumped out of the car and faced the owner, holding what appeared to be an ice pick in one hand and the car stereo in the other. (Ibid.) He adopted a “fighting stance” and faced the owner for 10 to 15 seconds before running away with the car stereo. (Ibid.) He was convicted of robbery and burglary and sentenced to concurrent terms, but on appeal he argued his concurrent term for burglary had to be stayed. (Id. at pp. 1525-1526.) The appellate court agreed and stayed the burglary sentence because it was undisputed that the two crimes were part of the same course of conduct and were committed with the single intent and objective of taking the car stereo. (Id. at pp. 1526-1528.)
The same is true here. It is indisputable that defendant’s burglary and robbery of the Home Depot store were part of the same course of conduct and were committed with the same intent and objective, that is, taking the Husky tools and wrench. Defendant’s sentence for burglary in count 2 must therefore be stayed, given that he was separately sentenced for the robbery in count 1. (See also People v. Le (2006) 136 Cal.App.4th 925, 929-932 [burglary sentence stayed where the defendant was separately sentenced for an Estes robbery he committed in order to retain items taken during the burglary].)
E. The Abstract of Judgment Must Be Corrected
The sentencing minute order and abstract of judgment incorrectly direct defendant to register as both a sex offender and a narcotics offender. (Pen. Code, § 290; Health & Saf. Code, § 11590.) Defendant claims these errors must be corrected on remand, and the People agree. So do we.
The oral pronouncement of judgment controls over any inconsistent minute order or abstract of judgment. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) The errors are clerical and may be corrected at any time, including on appeal. (People v. Mitchell (2001) 26 Cal.4th 181, 185-187.)
In pronouncing judgment on October 30, 2008, the court did not direct defendant to register as a sex offender or a narcotics offender; however, the minute order of the same date directed him to do both. The abstract of judgment, issued on November 6, also directs him to do both. On remand, these errors must be corrected, both in the court’s minute orders and abstract of judgment.
On November 5, 2008, the court issued an order nunc pro tuncpurporting tocorrect the error in the October 30 minute order directing defendant to register as a sex offender, but the nunc pro tunc order says nothing about correcting the error that he register as a narcotics offender.
IV. DISPOSITION
Defendant’s petty theft conviction in count 3 is reversed, his sentence for burglary in count 2 is stayed, and the matter is remanded to the trial court with directions to consider whether one or more of defendant’s four prison priors should be stricken in the interests of justice pursuant to section 1385. The trial court is further directed to issue a new abstract of judgment that (1) correctly reflects defendant’s convictions and sentence following remand, and (2) does not direct him to register as a sex offender or a narcotics offender. A copy of the new abstract of judgment must be forwarded to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Hollenhorst Acting P.J., Richli J.