Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD211474, Frank A. Brown, Judge.
AARON, J.
I.
INTRODUCTION
Defendant Wayne L. Swinger appeals from his conviction and sentence for one count of false imprisonment by violence (count 2) and one count of misdemeanor sexual battery (count 3) after an incident in a San Diego State University (SDSU) dormitory during which Swinger inappropriately touched a female student and prevented her from escaping his advances.
On appeal, Swinger contends that the trial court committed reversible error by (1) failing to instruct the jury on the lesser included offense of misdemeanor false imprisonment; (2) failing to instruct the jury on self-defense; (3) denying his motion pursuant to Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) challenging the prosecutor's exercise of a peremptory strike; and (4) denying his motion for a mistrial on the grounds of prosecutorial misconduct. Swinger also challenges the trial court's imposition of a 1, 200-day sentence with respect to his conviction for misdemeanor sexual battery.
We affirm Swinger's convictions. However, the People concede that the trial court erred in sentencing Swinger to 1, 200 days in custody for misdemeanor sexual battery; the parties agree that this court should modify Swinger's sentence on this count to six months—the maximum sentence permitted for a violation of Penal Code section 243.4, subdivision (e)(1). We modify the judgment and affirm the judgment as modified.
Further statutory references are to the Penal Code unless otherwise indicated.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The prosecution case
In January 2008, 18-year-old S.K. lived in Zura Hall, a dormitory on the campus of SDSU.
At approximately 3:00 a.m. on January 25, Swinger entered Zura Hall in the company of two male students who had told him that he could sleep on the steps inside the dormitory.
Later that morning, at approximately 7:15 a.m., S.K. returned to her dormitory after having spent the night at a friend's house. S.K. did not have her identification or key with her, so she entered the building while another person was leaving. The attendant at the front desk recognized S.K. and allowed her to proceed into the dormitory.
As S.K. walked toward the stairwell, she saw Swinger watching television in the lobby. S.K. did not recognize Swinger. When S.K. arrived at the stairwell, Swinger ran after her. Swinger asked S.K. if she knew someone named Samantha. S.K. told him that she did not. Swinger then turned as if he was going to leave, but instead said to S.K., " 'You look good, ' and " 'Can I touch you?' "
S.K. told Swinger that he could not touch her and said that he should leave. Swinger told S.K. that she could leave if she let him touch her. Swinger then reached out and touched S.K.'s upper thigh and buttocks. S.K. was afraid and said that she had to leave. Swinger told her that she could leave if she let him touch her again. S.K. refused to allow Swinger to touch her. Despite her refusal, he stroked her leg and touched her buttocks again, two or three times.
S.K. lived on the third floor of the building, but she entered the landing area on the second floor in an attempt to get away from Swinger. She began to knock on windows between the landing and the second floor to try to get someone to let her onto the locked floor. Within a few minutes, Swinger approached S.K. and asked her why she was knocking on the windows. S.K. lied, saying that she had called a friend who was coming to let her onto the floor.
Swinger began banging on the window and said, "No one is coming. Why are you knocking?" As S.K. continued banging on the window, Swinger asked her questions about her jeans. He told S.K. that he wanted to see her jeans, and lifted her sweatshirt, giving him a view of her buttocks.
S.K. backed up into a corner. Swinger then grabbed her shoulder and punched her in the stomach. S.K. fell to the floor, and Swinger began to pull down her jeans. S.K. told Swinger to stop and screamed for help as she tried to get away from him. Swinger stood over S.K. and continued to pull at her jeans at her hips. S.K. kicked at Swinger because she was afraid that he was going to rape her, and continued to yell for help. After approximately 10 seconds or so, Swinger looked around and quickly walked away.
S.K. ran to the window again and began banging. Two of her friends eventually opened the door for her and let her onto the second floor.
Keith Ochs, an employee at SDSU, heard a woman screaming as he was leaving Zura Hall at approximately 7:15 a.m. that morning. Ochs went into the stairwell of the dormitory and saw Swinger coming down the stairs. Swinger's belt was unbuckled and his zipper was down. Swinger told Ochs that a girl was hurt on the stairs and needed help. Ochs made some calls to other employees on his radio, asking for assistance.
Ochs asked Swinger to stay there, and told him that the police would probably want to speak with him. Ochs continued to ask Swinger questions, but Swinger kept walking away. As they passed the front desk of the dormitory, Ochs asked the attendant at the desk to call 911 because there was someone in the building who was hurt. Ochs continued to follow Swinger as Swinger walked away from the building. Swinger eventually started to run, and Ochs lost sight of him.
SDSU Police Sergeant Michael Johnson arrested Swinger a short time later. Swinger's pants were unbuttoned and almost halfway down. While Johnson had Swinger detained, Swinger made various unsolicited statements to Johnson, including, " 'She said, "Get away from me." She lunged at me. So I pushed her down.' " Swinger also told Johnson that he thought S.K. was cute, and that he had tried to hit on her. Swinger asked Johnson, " 'Did she say I was trying to rape her? Because white girls do that.' " Swinger also told Johnson that he had pushed her down because she had taken a swing at him and had lunged at him.
2. The defense
Swinger testified that he entered Zura Hall with two "guys" and said that he was watching television in the lobby that morning when he saw S.K. According to Swinger, he ran after her to see if she could let him out of the building.
The men who let Swinger into the building told him that he would have to show identification when he left the building or the police would be called.
Swinger thought that S.K. was attractive. He told her that she had a "nice butt, " and he "squoze [sic] her butt, like a dumb ass." Swinger admitted that S.K. had not given him permission to touch her buttocks. Swinger then told S.K. that he was going to leave, and went downstairs to the lobby. However, he became afraid that the desk attendant would call the police, and went back into the stairwell where he saw S.K. banging on the window and yelling for help. Swinger began to bang on the window along with S.K. He told her to calm down and maintained that he was not trying to bother her.
According to Swinger, S.K. turned toward him and raised her hand. Swinger was trying to push her away, but accidentally hit her with a closed fist instead. S.K. fell to the ground, and he "grabbed her arm on this side and said, 'Hey, c'mon, get up.' " Swinger then tried to run, but it seemed as though S.K. was running along with him, so he pushed her in the side, causing her to fall to the floor. Swinger thought that he had "knocked out" S.K., so he grabbed her by her belt loops and shook her, asking if she was okay. S.K. told him to get away from her, and he ran down the steps.
B. Procedural background
Swinger was charged with assault with intent to commit rape (§ 220, subd. (a); count 1); false imprisonment by force or violence (§§ 236 & 237, subd. (a); count 2); and two counts of misdemeanor sexual battery (§ 243.4, subd. (e)(1); counts 3 and 4).
On August 18, 2009, a jury convicted Swinger of false imprisonment by violence (count 2) and misdemeanor sexual battery (count 3). The jury found Swinger not guilty of counts 1 and 4.
The trial court sentenced Swinger to the mid-term of two years on count 2, and a 900-day term on count 3, to run concurrently with the term on count 2.
After Swinger filed his notice of appeal, he asked the trial court to correct his presentence custody credits. The trial court corrected Swinger's presentence custody credits, but also amended the abstract of judgment to impose a term of 1, 200 days, rather than the original 900 days, on count 3.
Swinger filed a timely notice of appeal on September 17, 2009.
III.
DISCUSSION
A. The trial court did not have a sua sponte duty to instruct the jury on the lesser included offense of misdemeanor false imprisonment
Swinger contends that the trial court had a sua sponte duty to instruct the jury on misdemeanor false imprisonment, a lesser included offense of felony false imprisonment, for which he was convicted.
"The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request." (People v. Blair (2005) 36 Cal.4th 686, 744.) "That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser. [Citation.]" (Id. at p. 745.) "To justify a lesser included offense instruction, the evidence supporting the instruction must be substantial—that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist. [Citations.]" (Ibid.) In other words, " '[s]ubstantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could... conclude[]" ' that the lesser offense, but not the greater, was committed. [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 162.)
Pursuant to section 236, false imprisonment is defined as "the unlawful violation of the personal liberty of another." "Any exercise of express or implied force which compels another person to remain where he does not wish to remain, or to go where he does not wish to go, is false imprisonment. [Citation.]" (People v. Bamba (1997) 58 Cal.App.4th 1113, 1123.) False imprisonment is a felony where it is "effected by violence, menace, fraud, or deceit." (§ 237, subd. (a).) " 'Force is an element of both felony and misdemeanor false imprisonment. Misdemeanor false imprisonment becomes a felony only where the force used is greater than that reasonably necessary to effect the restraint. In such circumstances the force is defined as "violence" with the false imprisonment effected by such violence a felony. [Citation]' [Citation.]" (People v. Castro (2006) 138 Cal.App.4th 137, 140.) Thus, a trial court need not instruct on a misdemeanor false imprisonment unless there is evidence that the victim was unlawfully restrained without the use of violence, menace, fraud or deceit.
The evidence that the prosecution presented at trial established that when Swinger backed S.K. into a corner, he grabbed her arm to restrain her. He then punched her in the stomach, causing her to fall to the ground, and straddled her to prevent her from getting up. If the jury believed this testimony, then Swinger would clearly have used force greater than that reasonably necessary to effect the restraint, and would be guilty of felony false imprisonment. However, if the jury believed Swinger's testimony that he struck S.K. by accident, and that his other actions were done in an attempt to get away from S.K., then he would not be guilty of falsely imprisoning S.K. There is no evidence that Swinger was guilty of using only the amount of force that was reasonably necessary to effect a restraint of S.K.'s liberty. The trial court was thus under no obligation to instruct the jury on the lesser included offense of misdemeanor false imprisonment.
B. The trial court was not required to instruct the jury on self-defense
Swinger contends that the trial court erred in failing to instruct the jury on the principles of self-defense. He asserts that his testimony to the effect that he struck S.K. only after she turned and lunged toward him constitutes sufficient evidence to warrant a jury instruction on the issue of self-defense.
When the trial court and the attorneys were discussing jury instructions, the court said that it did not believe that an instruction on self-defense was appropriate. The prosecutor had provided a proposed instruction on self-defense, but in response to the trial court's suggestion that the defense "doesn't apply, " the prosecutor said, "It's up to the defense." Swinger's trial counsel stated, "I don't think it applies, " and the court responded, "I don't think so, either." Defense counsel then said, "Well, I think you have to give accident or mistake." The court agreed. The court ultimately provided the jury with the following instruction pertaining to the defense of accident: "The defendant is not guilty of count one, assault with intent to commit a sexual offense, count two, false imprisonment, and count four, sexual battery, if he acted without the intent required for that crime, but acted instead accidentally. [¶] You may not find the defendant guilty of counts one, two and four unless you are convinced beyond a reasonable doubt that he acted with the required intent."
A trial court has a duty to instruct the jury on a particular defense when the defendant has relied on that particular defense or when there is substantial evidence to support the theory and it is not inconsistent with the theory on which the defense is relying. (People v. Villanueva (2008) 169 Cal.App.4th 41, 49.) "If the defense is supported by the evidence but is inconsistent with the defendant's theory of the case, the trial court should instruct on the defense only if the defendant wishes the court to do so. [Citation.]" (Ibid.)
Although Swinger could have relied on a self-defense theory at trial, he did not. Instead, he chose to rely on the theory that his conduct was accidental. Those defenses are inconsistent, since self-defense implies that one acted intentionally, albeit justifiably, while actions that are the result of an accident are, by definition, done without intent. (See, e.g. People v. Curtis (1994) 30 Cal.App.4th 1337, 1357-1358 [imperfect and traditional self-defense "import[] an intentional" act, and do not apply to an "accidental" one; thus, testimony that shooting was an accident was inconsistent with self-defense].) Even if there was evidence introduced at trial that could have supported a self-defense theory, as Swinger contends, the trial court was under no obligation to give the self-defense instruction because the defense did not request such an instruction and in fact, indicated its desire that the court not instruct on self-defense.
C. The trial court properly denied Swinger's Batson/Wheeler motion
Swinger claims that the trial court erred in denying his Batson/Wheeler motion on the ground that he failed to establish a prima facie case of discrimination in the prosecutor's exercise of peremptory challenges. We conclude that Swinger failed to establish a prima facie case of discrimination.
1. Additional background
During jury voir dire, M.A., a prospective juror, indicated that his sister had been assaulted many years ago. The court and the attorneys discussed the matter further with M.A. outside the presence of the other prospective jurors. M.A. told the judge and the attorneys that the incident involving his sister had occurred 20 years earlier, when he was seven years old, and clarified that his sister had been sexually assaulted by a foster brother. M.A. described being "dragged out [of] the house." When asked by defense counsel about his ability to be fair, and to not hold what happened to his sister against the defendant, M.A. responded that he understood defense counsel's concern, but also said, "The way I see it is that my sister lives in Arkansas, and that's not in San Diego. So the offense happened in San Diego, not in Arkansas. So—and the witness, I guess we should say, or the accuser—[¶]... [¶]—the complaining witness—yeah, her—she is not my sister. So I am able to separate, you know, my reality from her reality." When questioned further by the prosecutor about what had happened to his sister and how much he had witnessed, M.A. gave very little additional information about what had occurred, instead repeating that he had been "dragged out [of] the house." M.A. then gave "background information" about his family in Arkansas and mentioned where he had gone when he left the foster house.
Later, defense counsel asked the panel members whether any of them thought that "because a person wears a badge, that they're always going to tell the truth, not that they have a higher credibility, but that they're always going to tell the truth." Defense counsel then specifically directed the same question at M.A., who responded that he believed that a police officer "can easily lie, you know, just, you know, as well as any, you know, Joe Schmo down the street." Defense counsel followed up by asking M.A., "Do you think that a police officer—a police officer is paid to do a job; is that right?" M.A. replied, "Yeah." Defense counsel then asked, "Do you think that that sometimes affects what they have to say when they come into court?" M.A. responded:
"Not so much. I mean, I work at Albertsons. And I came in, and I was working one day. And a police officer was getting Starbucks inside Albertsons. And I was all like—and there was an emergency down the street. [¶] And I was like, 'Are you going to go get that?' [¶] He's like, 'Well' — [¶] I felt sorry for the person who was beating up the officer, because—you know. So— [¶] And I'm like, 'Why? Because the'—"You guys walk the whole precinct.' [¶] 'Oh, one of those things, ' you know. [¶] It always could be—somebody could be honest or somebody could like just back up and everything."
The prosecutor used her third peremptory challenge to excuse prospective juror M.A. Defense counsel made a Batson/Wheeler motion at a sidebar, arguing that the prosecutor had challenged the only African-American prospective juror among the 18 prospective jurors being questioned.
There were apparently at least two other African-American jurors in the potential pool of jurors, although M.A. was the only African-American in the panel of 18 prospective jurors who were initially questioned by the attorneys.
During a chambers conference, defense counsel argued that there was no basis to strike M.A., since "his answers were all the same as everybody else's." The trial court acknowledged that M.A. was the only African-American on the panel, but stated that the court did not believe that the prosecutor's use of a challenge to excuse M.A. was "racially related." The court declined to make a prima facie finding of discrimination.
Defense counsel continued to argue that there was no basis for the prosecutor to excuse M.A., and stated, "And while I know that there is something—there was some question about him having a negative experience with law enforcement, he never said that he had a negative experience with law enforcement. [¶] He said he had a question about something happening with law enforcement, but he never said that that was negative in any sort of way."
The prosecutor explained, "I want to point out that Mr. [A.] was very incoherent in his storytelling. The reason why we don't know about the negative experience is because he told a story that did not make sense about the officer having Starbucks and the precinct showing up. It did not completely make sense." The prosecutor continued, "It was clear to me, when he was discussing about the sexual assault with his sister, that he was going to have a difficult time understanding the law in this case and applying the law because—." At that point, the court interrupted the prosecutor for a moment. After that, the prosecutor continued, "But he's not a good communicator. And I think we saw that from hearsay statement through foster home and every jumbled statement he made."
At this point, the trial court said, "I have no—no idea whether he would have been a pro-prosecutor person or a pro-defense person. I have a hunch. My druthers are that he probably doesn't like violence and doesn't like sexual assaults. [¶] So you may have gotten rid of a person that would have been valuable for [the prosecution]." However, the court reiterated a number of times that no prima facie case for discrimination had been made.
2. Legal standards
In Batson, the United States Supreme Court noted that the California Supreme Court's decision in Wheeler was among the first cases to hold that the use of peremptory challenges to strike prospective black jurors might violate the federal Constitution. (Batson, supra, 476 U.S. at p. 82, fn. 1.) The Batson court followed Wheeler and other similar cases in holding that a prosecutor's use of peremptory challenges to strike prospective jurors on the basis of race violates a defendant's right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution. (Batson, supra, at pp. 84-89.)
The Batson court provided the now familiar framework to guide a trial court's constitutional review of a prosecutor's use of peremptory strikes. First, the defendant must make out a prima facie case of discrimination by demonstrating that the "relevant circumstances raise an inference that the prosecutor used [peremptory challenges] to exclude the veniremen from the petit jury on account of their race." (Batson, supra, 476 U.S. at p. 96.) "Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors." (Id. at p. 97.) Third, the trial court must "determine if the defendant has established purposeful discrimination." (Id. at p. 98.)
The Batson court described the showing that is necessary to establish a prima facie case:
"To establish... a [prima facie] case, the defendant first must show that he is a member of a cognizable racial group, [citation] and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' [Citation.] Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.
"In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a 'pattern' of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors." (Batson, supra, 476 U.S. at pp. 87-88.)
In Johnson v. California (2005) 545 U.S. 162, 170, the United States Supreme Court further clarified that "a defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred."
In subsequent cases, the California Supreme Court has applied the standard for establishing a prima facie Batson claim, as set forth in Johnson v. California. For example, in People v. Cornwell (2005) 37 Cal.4th 50, 67 (Cornwell), disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22, the defendant was African-American, and there were only two African-Americans in a venire of 117 persons. The prosecutor used a peremptory strike to challenge one of the two African-Americans, and defense counsel objected. (Id. at p. 68.) When asked by the trial court to state the basis for the claim that a prima facie case of discrimination had been established, defense counsel noted that there were only two African-Americans in the venire, and that the prospective juror whom the prosecutor struck had said nothing in her juror questionnaire or during voir dire that would serve as a basis for challenging her for cause. (Id. at p. 69.) The trial court determined that the defendant had failed to state a prima facie case of discrimination. (Ibid.)
The California Supreme Court concluded that the trial court had not erred in determining that the defendant had failed to establish a prima facie Batson claim, reasoning:
"The circumstance that the prosecutor challenged one out of two African-American prospective jurors does not support an inference of bias, particularly in view of the circumstance that the other African-American juror had been passed repeatedly by the prosecutor from the beginning of voir dire and ultimately served on the jury. [Citations.] The circumstance that the juror was not subject to exclusion for cause certainly did not support an inference that the exercise of a peremptory challenge against her was motivated by group bias. [Citations.]
"The juror's own remarks also clearly do not support an inference she was excused because of her race—on the contrary, despite her obvious intelligence and good faith, her voir dire disclosed a large number of reasons other than racial bias for any prosecutor to challenge her, including but not limited to her personal experience with an allegedly unfair homicide prosecution of a close relative and her express distrust of the criminal justice system and its treatment of African-American defendants—a view not restricted to African-American persons. [Citations.]" (Cornwell, supra, 37 Cal.4th at pp. 69-70.)
Similarly, in People v. Avila (2006) 38 Cal.4th 491, 553 (Avila), the California Supreme Court applied the standard articulated in Johnson v. California, supra, 545 U.S. 162, in considering whether the trial court erred in finding that the defendant had not established a prima facie case of discrimination. The Avila court noted that at trial, a codefendant attempted to establish a prima facie case of group bias on the ground that the prosecutor struck the only African-American out of a group of 24 prospective jurors who were called to the jury box, the prosecutor did not ask the juror any questions, and the juror's answers to the questionnaire and the court's questioning were evenhanded. (Avila, supra, at p. 553.) The Avila court rejected the defendant's claim, reasoning:
"Prospective Juror S.A.'s written answers to the questionnaire and her responses during oral voir dire disclosed a number of 'reasons other than racial bias for any prosecutor to challenge her' [citation], including but not limited to her personal experience as a trial juror and experience with her brother's involvement in the criminal justice system, notwithstanding S.A.'s assurances that her prior experiences would not carry over to this case if she were chosen as a juror. [Citation.] Moreover, although S.A. may have been the only Black individual in her group of 24 called to the box, at the time S.A. was challenged, several Black prospective jurors remained on the panel. The record thus does not support an inference that the prosecutor excused S.A. on the basis of race." (Id. at pp. 554-555.)
In People v. Guerra (2006) 37 Cal.4th 1067, 1099 (Guerra), the California Supreme Court considered whether a trial court erred in determining that the defendant failed to establish a prima facie Batson claim with respect to a prospective Hispanic juror, R.M. The Guerra court noted that the prosecutor had struck three prospective Hispanic jurors, and that no jurors identified as Hispanic sat on the jury. (Id. at pp. 1099-1100.) With respect to the two other prospective Hispanic jurors who were struck, the trial court asked the prosecutor to justify his peremptory challenges, the prosecutor did so, and the court accepted the prosecutor's reasons as genuine and race neutral. (Id. at p. 1101.)
The Guerra court began its analysis by stating, " '[T]he appellate court reviews the record of voir dire for evidence to support the trial court's ruling. [Citations.] We will affirm the ruling where the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question.' [Citation.]" (Guerra, supra, 37 Cal.4th at p. 1101.) The Guerra court concluded that the trial court had properly determined that the defendant failed to establish a prima facie case with respect to R.M. The Guerra court reasoned:
"[D]efense counsel sought to establish a prima facie case of discrimination based solely on the circumstance that R.M. was the only Hispanic sitting in the jury box, leaving only two other Hispanics on the entire panel. This circumstance, standing alone, is not dispositive on the issue of whether defendant established a prima facie case. [Citation.]" (Ibid.)
The Guerra court also noted, "[T]he record discloses reasons other than racial bias for any prosecutor to challenge Prospective Juror R.M, " including his responses on a juror questionnaire regarding the defense of voluntary intoxication and the trial court's statement that R.M. had " 'an attitude that projects itself as clearly as a ringing bell.' " (Guerra, supra, 37 Cal.4th at p. 1102.)
The California Supreme Court has thus repeatedly held that evidence that the prosecutor struck a single minority juror, even where such a strike leaves only a small number of potential minority jurors, does not, in and of itself, establish a prime facie Batson claim under the standard articulated in Johnson v. California, supra, 545 U.S. 162. The California Supreme Court has also repeatedly concluded that when the record suggests grounds upon which the prosecutor might reasonably have challenged the juror, a defendant has failed to "produc[e] evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." (Id. at p. 170.) (See Guerra, supra, 37 Cal.4th at p. 1101; Avila, supra, 38 Cal.4th at p. 553 [concluding no prima facie case established where record revealed "reasons other than racial bias for any prosecutor to challenge her"]; Cornwell, supra, 37 Cal.4th at pp. 69-70 [same].)
3. Analysis
In this case, among the evidence on which Swinger relies in claiming that he established a prima facie case of discrimination is that the prosecutor "challenged the only African-American juror among the 18 jurors being examined." Swinger also contends that M.A. "was the perfect prosecution juror for this case" because "[h]is sister had been raped by his foster brother 20 years earlier." However, despite defense counsel's suggestions at trial and on appeal that M.A. would have been a good prosecution juror and that the prosecutor must have therefore excused him based on his race, the information elicited in voir dire showed that the prosecutor provided race-neutral reasons for excusing M.A. Specifically, the prosecutor noted that M.A. "was very incoherent in his storytelling" regarding the incident involving his sister, and that his statements indicated to the prosecutor that he "was going to have a difficult time understanding the law in this case and applying the law." The prosecutor was concerned that M.A. was "not a good communicator, " which was evidenced by "every jumbled statement he made."
The prosecutor was also concerned about M.A.'s story of a prior contact he had had with law enforcement. Although defense counsel contended that M.A. "never said that [his experience with law enforcement] was negative in any sort of way, " even he acknowledged that M.A. had raised an issue "about something happening with law enforcement." The prosecutor expressed concern that M.A.'s story about the police officer having coffee and not responding to a call "did not completely make sense." Further, it was clear that the prosecutor had taken from that story that M.A. may have considered the experience to have been a negative one vis á vis law enforcement, in light of the fact that M.A. had suggested that the police officer failed to act in response to an emergency.
Although Swinger acknowledges that the prosecutor gave race neutral reasons for challenging M.A., Swinger contends that these reasons were pretextual. In support of this contention, Swinger cites the trial court's "gentlemanly suggestion that the prosecutor may have challenged a pro-prosecution juror." According to Swinger, since M.A. may have been considered a "pro-prosecution" juror, the prosecutor's decision to challenge him suggests that the prosecutor did so based on M.A.'s race. However, the fact that the trial court may have viewed the juror as possibly being "pro-prosecution" does not invalidate the prosecutor's articulated reasons for challenging that juror, particularly where the trial court also found that the prosecutor's challenge was not race-related.
The trial court made a determination that the prosecutor's reasons were not related to the juror's race, and the record supports the trial court's conclusion, since the record clearly " 'suggests grounds upon which the prosecutor might reasonably have challenged the juror[] in question.' [Citation.]" (Guerra, supra, 37 Cal.4th at p. 1101.) Accordingly, we conclude that Swinger failed to present sufficient evidence to establish a prima facie case of racial discrimination pursuant to Batson and Wheeler.
D. There was no prosecutorial misconduct
1. Additional background
At a hearing on the parties' pretrial motions, defense counsel asked the court "and all members not to refer to us as either the Public Defender's Officer or the Office of [the] Primary Public Defender or whatever name we're going by now." The court granted the motion, stating, "No public defender's office."
During voir dire, a prospective juror mentioned that he and defense counsel were colleagues, to which the court responded, "You're in the public defender's office?" The prospective juror responded that he was not.
During trial, defense counsel used a transcript of a taped recording to impeach Officer Alvarez regarding S.K.'s description of the suspect. At one point during defense counsels' cross examination of Alvarez, the prosecutor objected when defense counsel asked Alvarez to refer to a page of the transcript, saying, "This is a transcript made by the public defender's office. And it's [sic] just simply states "K" and "A." It's unknown who was talking at this time. There's no verification. [¶] Obviously, Officer Alvarez has never seen this before. This is the first time she's looking at it, and there's no way to verify that this is even accurate." The court invited the attorneys and Alvarez to discuss the issue in chambers, outside the presence of the jury.
Once in chambers, the court began the conversation by saying, "If it isn't the judge mentioning public defender's [sic], it's somebody; right?" The prosecutor explained that her reference to the public defender's office had "slipped, " and apologized. The court responded, "I know. I know." The parties then began to discuss the transcript and its origin.
Defense counsel moved for a mistrial, noting that the court had "already done it once." The trial court commented that the court had "offered at the time to dismiss [the] panel and get another panel, " and that in response, defense counsel had said that he wasn't "happy" but that he would "live with it."
Defense counsel argued, "I think my client is being prejudiced, essentially. There's now some sort of impugnment that the public defender's office has done something wrong. And it goes hand-in-hand with the idea that again, one, I'm a public defender, which I made a motion again, and two, that somehow the public defender's office is doing something underhanded or shady."
The court indicated its disinclination to grant the motion for mistrial, stating that it was an error that happens and "it's human." The prosecutor pointed out that she had been trying to determine who had transcribed the document, and had seen at the top of the page the name "Troy Britt, Deputy Public Defender."
The trial court stated,
"This is my thinking on it. We've invested a lot of time in this case. From my inadvertence in the beginning, they may well have speculated you're a public defender. Also, they may well have speculated you're a public defender from the fact that your client is in custody. [¶] If you're sitting in jail, in jail clothes, chances are you don't have enough money to bail yourself out and buy fancy clothes, and you can't afford your own lawyer. [¶] So I think it's reasonable, before the D.A. made the statement she did, to believe that you probably work for the public defender. [¶] Now, I don't think that's a bad thing, because I think public defenders are a lot better—."
Defense counsel and the prosecutor both interrupted at that point. The prosecutor said, "Than private—" and defense counsel said, "Unfortunately, I don't think the citizens believe that."
The court continued, "And I haven't seen anything else, other than the fact that that's been disclosed by myself and through—which was overlooked by you and at a time when we could have just had a new panel come here. I was willing to do that then, but not now. We've invested too much. [¶] And I'm willing to admonish this jury that, in my opinion, you're one of the finest trial lawyers that I'm aware of and that you're employed by the public defender's office. [¶] And is that problematic for anybody? [¶] I'm willing to vouch—."
At this point, defense counsel responded, "So you want to draw further attention to what I've—." The trial court said, "No. I'm offering that." Defense counsel complained that "the problem is it's done in a way that was meant to be a denigration of my office. If this is something done by the public defender's office, it's not—you know, look, we haven't been able to look at this. No, it was the throwing out with the public defender's office."
The trial court said, "I think that, when you had a chance to dismiss this jury, maybe you should have taken it. Maybe you regret that now. [¶] I honestly don't think that the fact that you're employed by the public defender's office is going to influence the outcome of this case. I just don't. And I'm willing to give the jury an admonishment. And I'm offering that to you right now, to say what you want me to say. Whatever curative thing you want me to say, I'm willing to say."
Defense counsel responded, "[U]nfortunately, I don't think that it can be cured without drawing further attention." The trial court then stated, "I don't think it has risen to the level of a mistrial" and denied the motion.
2. Legal standards
"A prosecutor's... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' [Citation.]" (People v. Espinoza (1992) 3 Cal.4th 806, 820.) "In other words, the misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.' " (People v. Cole (2004) 33 Cal.4th 1158, 1202, quoting United States v. Agurs (1976) 427 U.S. 97, 108.) Misconduct that falls short of rendering a trial fundamentally unfair may nevertheless violate the California Constitution, but " 'only if it " 'involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' " (People v. Harrison (2005) 35 Cal.4th 208, 242, citations omitted.)
"As a general matter, an appellate court reviews a trial court's ruling on prosecutorial misconduct for abuse of discretion." (People v. Alvarez (1996) 14 Cal.4th 155, 213.)
3. Analysis
Swinger contends that "the prosecutor in this matter engaged in reprehensible misconduct both by violating the trial court's in limine ruling and by doing so in a manner that implied defense counsel was fabricating evidence." The trial court found no misconduct, and we see no abuse of discretion in the trial court's determination.
The trial court reasonably concluded that the prosecutor's mentioning the fact that a transcript had been prepared by the public defender's office, thereby implying that Swinger's trial counsel was a public defender, despite the trial court's pretrial ruling that there was to be no mention of the fact that defense counsel was a public defender, did not constitute misconduct. The record supports the trial court's conclusion that the prosecutor's remark was simply not of sufficient significance to have resulted in the denial of a fair trial. Further, although the prosecutor should not have mentioned the fact that the document had been created by the public defender's office, in view of the trial court's pretrial ruling, the reference does not appear to have been a "deceptive or reprehensible" method to attempt to persuade the jury to convict Swinger. If anything, it appears that the prosecutor made a mistake. We conclude that the trial court did not abuse its discretion in determining that the prosecutor's mention of the public defender's office did not constitute misconduct, and did not require that the court order a mistrial.
Swinger contends that the prosecutor's objection "implied [that] defense counsel was fabricating evidence." However, we find no abuse of discretion in the court's implicit conclusion that the prosecutor's objection did not imply any such fabrication of evidence. The prosecutor was objecting to the fact that she had just been provided with the transcript, and had not had an opportunity to verify that it was accurate. She did not suggest that Swinger's defense attorney was making up evidence; rather, she was raising evidentiary concerns about a document that defense counsel was using to cross-examine a witness. The fact that the prosecutor raised these evidentiary concerns by stating that the document had been prepared by the public defender's office, even under circumstances in which the court's earlier ruling prohibited her from referring to the public defender's office, did not imply that the public defender's office, or defense counsel, had fabricated evidence or had otherwise done something improper. Trials are filled with evidentiary objections, and contrary to Swinger's contention, this particular objection was fairly run-of-the-mill and did not imply nefarious conduct on the part of defense counsel or the public defender's office.
E. The court imposed an unauthorized sentence with respect to Swinger's misdemeanor sexual battery conviction
Swinger contends that the trial court's imposition of a 1, 200-day term for his conviction for violating section 243.4, subdivision (e)(1) (misdemeanor battery) must be reversed because it is an unauthorized sentence.
At the time that Swinger was originally sentenced on this count, the trial court imposed a 900-day term on count 3—the misdemeanor battery conviction. However, in response to Swinger's motion for a correction of his presentence custody credits filed after the appeal was taken, the trial court amended the abstract of judgment to impose a term of 1, 200 days on count 3.
As the parties agree, section 243.4, subdivision (e)(1) authorizes a maximum term of six months. The People concede that the trial court's imposition of a 1, 200-day sentence on count 3 exceeds the maximum term authorized by law and must be reversed.
Swinger notes that "the trial court clearly intended to impose the maximum available time on count three." Because he "will have credit for time served no matter what sentence is imposed, " he urges this court to simply reduce his sentence on count 3 to a term of six months, rather than remanding the matter to the trial court for resentencing. The People agree that this court "should reduce the term on count 3 to 180 days, or six months." In light of the parties' agreement on this issue, we modify Swinger's sentence on count 3 to a term of six months.
IV.
DISPOSITION
Swinger's sentence is reversed insofar as the trial court imposed a 1, 200-day term for Swinger's misdemeanor sexual battery conviction. We modify that portion of the sentence to a six-month term. The trial court is directed to send an amended abstract of judgment to the Department of Corrections and Rehabilitation reflecting this modification. In all other respects the judgment is affirmed.
WE CONCUR: McDONALD, Acting P. J., McINTYRE, J.