Filed 9/12/13 P. v. Saxon CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E054593
v. (Super.Ct.Nos. PEF005081, RIF137090) CUTRENIA SAXON, OPINION Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge.
Affirmed.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Anthony Da
Silva, Deputy Attorneys General, for Plaintiff and Respondent.
1 In 2006 and 2007, defendant Cutrenia Saxon convinced five people to disclose
their Social Security numbers and other pertinent personal information to her by posing
as a loan broker who could help them refinance their homes or buy new homes. After
these transactions fell through or the potential buyers backed out of the transactions,
defendant continued with the loan process by submitting false loan applications and
obtained the loans. Forged deeds of trust on the properties were filed as collateral for the
loans. Defendant set up a corporation that she used to wire money from the loans.
During the time she obtained these proceeds, she did not file tax returns reporting this
income.
Defendant was found guilty of numerous counts of identity theft, grand theft by
false pretenses against several lending institutions, recording fraudulent trust deeds,
money laundering, and tax evasion.
Defendant contends on appeal as follows:
1. The trial court erred in denying her motion under Batson v. Kentucky
(1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (Batson) and People v. Wheeler
(1978) 22 Cal.3d 258 (Wheeler) based on the prosecutor’s exercise of a peremptory
challenge to excuse a female African-American prospective juror and denying her
mistrial motions based on the prosecutor’s racially charged questions during voir dire in
front of the entire panel.
2 2. Her sentences for laundering of money under Penal Code section 186.10,
subdivision (a) 1 should have been stayed pursuant to section 654.
We affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND2
A. Crimes Against Celena Salazar (Counts 1-5)
In 2005, Celena Salazar’s mother’s home was facing foreclosure. Salazar’s
cousin referred her to a friend, claiming he could help Salazar. Salazar gave the friend all
of her personal information. During this process, she spoke with defendant on the phone.
Nonetheless, Salazar’s mother’s home went into foreclosure.
Sometime in 2006, Salazar received calls from a bank for past due mortgage
payments for a property located at 23911 Via Alisol in Murrieta (Via Alisol). Salazar
never signed loan documents for the property. Her signature on the documents was
forged. Two trust deeds for security for the Via Alisol property were filed; one for
$576,800 and another for $144, 200.
1 All further statutory references are to the Penal Code unless otherwise indicated. 2 We will only briefly recite the facts of this voluminous case along with the procedural background, as the facts of the case are minimally relevant to the issues raised on appeal.
3 In the escrow instructions, DRE Home Improvement (DRE) was to be paid
$83,980 from the loan, purportedly for improvements to the home to be completed after
the purchase. DRE was wired that amount on September 21, 2006. DRE was owned by
defendant. The Via Alisol property was vacant after the sale.
Defendant admitted using Salazar’s name and identifying information but claimed
that it was a legitimate transaction. Defendant was arrested attempting to take $43,000
out of the DRE account.
For these actions, defendant was convicted of forgery (§ 470, subd. (b)) (count 1);
grand theft by false pretenses for the loan (§ 487, subd. (a)) (count 2) with the
enhancement that the value exceeded $150,000 (§ 12022.6, subd. (a)), i.e. a monetary
enhancement; two counts of recording a false document for the first and second trust
deeds on Via Alisol (§ 115) (counts 3 &4); and money laundering (§ 186.10, subd. (a))
for the wire transfer in the amount of $83,980 to DRE (count 5) with a monetary
enhancement (§ 186.10, subd. (c)(1)(A)).
B. Crimes Against Kevin Crockett (Counts 7-10)
During a search of defendant’s vehicle on June 2, 2007, officers found documents
regarding a $100,000 line of credit from National City Bank in Kevin Crockett’s name,
which was secured by a property located at 18713 Glass Mountain Street in Riverside
(Glass Mountain). Defendant had a checkbook and credit cards in her purse for the line
of credit.
4 On May 18, 2007, a $75,000 payout to DRE was made on this line of credit.
Crockett did not write the check. Information on the documents to obtain the loan was
false.
Defendant was Crockett’s cousin-in-law. Crockett had sought defendant’s help to
buy a property and had given her all of his information. The sale never occurred, and he
never gave permission for her to obtain a line of credit. He checked his credit when he
found out defendant was arrested and discovered the unauthorized loans.
Defendant was convicted of identity theft (§ 530.5, subd. (a)) (count 7); forgery
(§ 470, subd. (b)) (count 8); grand theft (§ 487, subd. (a)) for the money taken from
National City (count 9) with monetary enhancement (§12022.6, subdivision (a)(1)); and
money laundering (§ 186.10, subd. (a)) (count 10) for the $75,000 check to DRE.
C. Crimes Against Candice Grizzell (Counts 11-17)
In the latter part of 2006, defendant offered to help Candice Grizzell and her
husband (who was defendant’s cousin) obtain a loan to purchase a residence in Moreno
Valley. The transaction was cancelled, but Grizzell had given all of her personal
information to defendant.
In 2007, Grizzell received notice from a bank for nonpayment of a loan for
property located on Cape Cod Court in Yucaipa. Loan documents found in a storage
facility belonging to defendant contained correct personal information for Grizzell, but
she had not signed them, and the monthly income and employer were incorrect. There
were two trust deeds filed on December 13, 2006, to secure the loan in the amounts of
5 $328,000 and $82,000. The escrow for the property showed that $70,228.77 was
transferred to DRE on December 18, 2006.
Defendant was convicted of forgery (§ 470, subd. (b)) (count 11); grand theft
(§ 487, subd. (a)) for the $328,000 trust deed (count 12) with a monetary enhancement
(§ 12022.6, subd. (a)(2)); two counts of recording a false document (§ 115) for the two
trust deeds (counts 13 & 15); grand theft (§ 487, subd. (a)) for the $82,000 trust deed
(count 14) with a monetary enhancement (§ 12022.6, subd. (a)(1)); money laundering
(§ 186.10, subd. (a)) for the wire transfer of $70,228.77 to DRE (count 16) with a
monetary enhancement (§ 186.10, subd. (c)(1)(a)); and identity theft (§ 530.5, subd. (a))
(count 17).
D. Crimes Against Sterling Saintilus (Counts 18-21)
During the search of the storage facility belonging to defendant, loan documents
bearing Sterling Saintilus’s name were found. They reflected a purchase of Glass
Mountain.
Saintilus had never purchased the home or obtained a loan on the property. In
2005, Saintilus had given defendant his personal information in connection with a
possible home purchase. However, Saintilus moved out of the state and never followed
through with the purchase. Defendant went through with the purchase. She moved into
the property. There was a trust deed filed in the amount of $796,000. All of the
information on the loan documents was false.
6 For these actions, defendant was convicted of forgery (§470, subd. (b)) (count 18);
grand theft by false pretenses (§ 487, subd. (a)) for the loan (count 19) with a monetary
enhancement (§ 12022.6, subd. (a)); recording a false document (§ 115) for the trust deed
on Glass Mountain (count 20); and identity theft (§ 530.5, subd. (a)) (count 21).
E. Crimes against Monique Vargas (Counts 22-23, 25-27)
In December 2006, Monique Vargas received a notice that she was in default on a
loan she never obtained. During the search of the storage facility belonging to defendant,
loan documents in Vargas’s name were found for two residences: 45377 Saint Tisbury
Street in Temecula (St. Tisbury) and 26492 Aloe Way in Murrieta (Aloe Way).
Photocopies of Vargas’s driver’s license and Social Security card were in the storage
facility.
In 2007, Vargas was shown the loan documents and denied signing any of them.
The information on the loan documents was false.
There were two deeds of trust on Aloe Way. There was $600,000 for a first trust
deed and $150,000 for the second, for a total of $750,000. There was a $632,000 deed of
trust for St. Tisbury and another for $158,000. On July 21, 2006, there was a wire
transfer to DRE in the amount of $54,534.88 from the Aloe Way loan. On June 16, 2006,
there was a wire transfer from the St. Tisbury loan to DRE in the amount of $59,278.
Defendant was convicted of grand theft (§ 487, subd. (a)) for the St. Tisbury loan
(count 22) with a monetary enhancement (§ 12022.6, subd. (a)(2)); money laundering
(§ 186.10, subd. (a)) for the wire transfer of $59,278 to DRE (count 23) with a monetary
7 enhancement (§ 186.10, subd. (c)(1)(a)); grand theft (§ 487, subdivision (a)) for the Aloe
Way loan (count 25) with a monetary enhancement (§ 12022.6, subd. (a)); recording a
false document (§115) (count 26); and money laundering (§186.10, subd. (a)) for the wire
transfer of $54, 534.88 to DRE (count 27) with a monetary enhancement (§ 186.10, subd.
(c)(1)(a).
F. Remaining Convictions (Counts 29 & 30) and Sentence
Defendant did not personally file state income taxes or on behalf of DRE in
2006 or 2007 despite an income of over $700,000. Defendant was the owner of DRE.
She was convicted of two counts of failing to file a tax return within the meaning of
section 19706 (counts 29 & 30). Defendant was also found guilty of an enhancement
pursuant to section 186.11, subdivision (a)(2) that she had committed two or more
felonies involving embezzlement exceeding $500,000. She admitted that she had served
three prior prison terms within the meaning of section 667.5, subdivision (b).
Defendant was found not guilty of one count of forgery and one count of identity
theft in regard to Vargas (counts 24 & 28), and the jury was hung on count 6, a count
involving Salazar, which was dismissed in the interest of justice under section 1385.
Defendant was sentenced to state prison for a total term of 26 years 8 months. All
of the money laundering sentences were imposed.
8 II
BATSON/WHEELER VIOLATION
Defendant contends the prosecutor violated Batson/Wheeler by peremptorily
challenging and removing one prospective female African-American juror, Prospective
Juror Thompson, from the jury panel.
Defendant additionally stated in the heading of her argument that the denial of the
mistrial motion, as will be discussed in more detail, post, was error. However, defendant
provides no legal authority or argument as to why the trial court should have granted a
mistrial based on what she calls the prosecutor’s “racially-charged” questions to the jury
during voir dire. Although the People provided case law and statutory authority -- Code
of Civil Procedure section 223 -- regarding voir dire in their responding brief, in her reply
brief, again defendant provides only argument as to why the prosecutor’s removal of
Prospective Juror Thompson constituted Batson/Wheeler error. As such, we find she has
forfeited her claim on appeal that the trial court’s denial of a mistrial was error. (Nelson
v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 [“‘[w]hen a[]
[defendant] fails to raise a point, or asserts it but fails to support it with reasoned
argument and citations to authority, we treat the point as waived’”].) We address only
whether the removal by the prosecutor of Prospective Juror Thompson constituted a
Batson/Wheeler violation and refer to voir dire by the prosecutor as it was relevant to her
removal.
9 “[O]ne accused of a crime has a constitutional right to a trial by impartial jurors.
[Citations.]” (In re Hitchings (1993) 6 Cal.4th 97, 110.) “Both the California and United
States Constitutions are violated by the exercise of peremptory challenges based on group
bias, instead of reasons specific to the challenged prospective juror. [Citation.]” (People
v. Lancaster (2007) 41 Cal.4th 50, 74.)
“The procedure governing objections on this ground is settled: ‘First, the
defendant must make out a prima facie case by “showing that the totality of the relevant
facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the
defendant has made out a prima facie case, the “burden shifts to the State to explain
adequately the racial exclusion” by offering permissible race-neutral justifications for the
strikes. [Citations.]’” (People v. Lancaster, supra, 41 Cal.4th at p. 74.)
“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.” (People v. Lenix (2008) 44 Cal.4th 602, 613 (Lenix).) The trial court must
then make a sincere and reasoned attempt to evaluate the explanation for each challenged
juror in light of the circumstances of the case, trial techniques, examination of
10 prospective jurors, and exercise of peremptory challenges. (People v. Fuentes (1991) 54
Cal.3d 707, 718.)
“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.]” (Lenix, supra, at pp. 613-614, fn. omitted.)
Here, defendant disputes the prosecutor’s removal of Prospective Juror Thompson.
Prospective Juror Thompson stated that she lived in Moreno Valley. She was married
and employed by Los Angeles County as an “Accounting 2.” She had four children. One
of her children lived with her, one worked at Target, another worked for the City of
Riverside, and the fourth worked for the City of Highland as a bus driver. She had
previously been on a civil jury where the case had settled prior to the verdict. No one in
her family was in law enforcement, and she could be fair. Nothing about the civil case
settling caused her to be less fair or impartial. Prospective Juror Thompson explained she
worked in internal services responsible for maintenance for Los Angeles County.
11 Prospective Juror Thompson was asked by the prosecutor about her experience
with loan brokers and real estate agents in buying a house and if she found they were a
“bit less than truthful.” She responded, “No. When we bought ours in ’89, everything
was good. The economy was good. We were still there. It increased $30,000. But at the
time they looked truthful to me. I had no problems.”
The prosecutor advised the jurors that it was going to ask questions in order to
determine possible bias on the part of the jurors. The prosecutor noted that the jurors
may not like some of the victims in the case and asked the jurors as a whole if they could
set aside that bias. The prospective jurors must have responded in the affirmative. The
prosecutor relayed that in some instances when prosecuting gang members the victim
may become the defendant in the next case. The prosecutor asked if anyone felt that a
gang member could not be a victim. The prosecutor then asked Prospective Juror
Thompson this question directly, and she responded that a gang member was a human
being and “has every right to be the victim.” She also stated that someone should be
punished for harming another.
The prosecutor then informed the jurors that he had reached the “most
uncomfortable part of my jury voir dire.” The prosecutor told a story about he and his
father, who he described “looks very, very Mexican” and a border patrol agent singling
his father out at an airport in El Paso, Texas. The prosecutor then asked “Now, is there
anybody here that has heard from relatives or friend of friends or a friend that a police
officer unfairly targeted them?” Apparently no one responded, and the prosecutor stated,
12 “You’re an unusual group.” Two jurors then stated that they had family members who
had been targeted by police.
The prosecutor then stated, “Okay. We have before us a very attractive Black
woman that we’re prosecuting, and that of course raises the specter for us whether or not
we have unfairly targeted a Black woman. It’s a question that we have to ask. It’s not a
politically correct question. I understand that. But we need to know whether or not
there’s anybody here that might feel that Black people -- and if they are Hispanic, I’d be
asking about Hispanics -- but are Black people unfairly targeted.”
Prospective Juror Thompson responded, “I agree. I have a six-four Black male,
and, yes, [he] has been stopped going to and from school.” The prosecutor asked if this
was her son. She responded, “Yes. And I tell him, ‘If you’re not guilty, sit on the curb.
If they stop you, be truthful.’ So far, they just stopped him because they said somebody
was down the street robbing the car. Found out it wasn’t him on the way home. That
happens. That’s life.” Other African-American jurors responded.
The prosecutor then stated, “Okay. Now, you know, before I started this, I
actually started to ask the question in a very general sense whether or not anybody has
ever felt that a friend or relative or somebody like that has been unfairly targeted, and no
one raised their hand. But if I directly asked you now, all of you have told me that, and
I’ve picked the Black people in this room. That’s obvious.” He asked the jurors why
they held back. Several African-American jurors responded.
13 Prospective Juror Thompson stated that she did not think the prosecutor was
Hispanic until he mentioned his father and further stated, “So naturally everybody is
biased about something, and you have to look at a person as being human, first of all.
Not race, just a human.”
The prosecutor then asked, “Okay. Now I asked the rest. I think the air is quite
clear enough now so I can ask the question generally. Is there anyone here that feels
Black people are unfairly targeted and that might affect your ability to be fair in this
trial?” Several jurors responded that they could be fair.
The prosecutor told the jurors a story about a case involving an African-American
defendant and an African-American juror in a case where the defendant confessed. The
African-American juror said in deliberations, “‘You know what, I cannot vote guilty
against a Black person.’” The prosecutor then told the jurors, “And that’s why I question
Black people specifically about that issue, because you have before you a Black
defendant. Is there anybody here that has that feeling? And I recognize that if you really
do think that way, you may not tell me, but I’m asking for your honest opinion. [¶] Is
there anybody that feels Black people are so unfairly targeted that they just can’t -- they
don’t feel right? Because what’s happening is it’s almost a family situation. And I don’t
think it’s wrong to feel that way. It would be wrong for someone to ask me to vote guilty
against my mother, against my father, against my cousin. You know, you may have that
feeling internally that says, ‘You know what, I can’t do it. I think we’ve been so badly
treated historically that I just can’t do it.’”
14 The prosecutor then directly asked two other African-American jurors and
Prospective Juror Thompson, who responded they could do it. One other juror responded
she could not convict an African-American person.
A sidebar conference was called. Defense counsel asked for a mistrial, arguing it
was one of the most “absurd voir dire processes in the 33 years I’ve been practicing I’ve
ever witnessed. He focused on five or six Black people exclusively. He browbeat [a
juror] into saying she couldn’t be fair.” Defense counsel complained that the prosecutor
focused on just the African-American jurors. He argued the prosecutor poisoned the
entire jury panel, focused on the African-American jurors, and put them on the spot by
saying they were all part of the same family and that to find not guilty would be doing
that because they were African-American. He asked for a new panel, stating that
although the prosecutor could inquire of the new panel about bias and prejudice, he could
not focus on African-American jurors.
The prosecutor stated, “This is not racism. This is simply trying to get at the heart.
And I also have to say, I’d like this to be on the record, I have spoken to several defense
attorneys in this county and they have told me they have received -- one told me as much
as 13 mistrials in Riverside County, and their whole intention is to have one Black
juror . . . .” Defense counsel again interrupted and said this was racist. The prosecutor
reiterated that is was well known that defense counsel in the county were seeking
mistrials by keeping African-American jurors on the panel. The prosecutor argued it was
fair to ferret out the issue and determine if the African-American jurors could be fair.
15 The trial court expressed concern that the prosecutor had only questioned the
African-American jurors and never expanded the concern to the entire panel. The trial
court was concerned that, “by focusing almost exclusively on African-American
members of the panel . . . you have tended to cause them to them to go somewhat the
other way by assuring you that they will be able to vote guilty.” Defense counsel argued
that, “These African-Americans, if they remain on the panel, have pledged to him they’re
going to be fair because they’re Black. That’s ridiculous.”
The prosecutor concluded, “ . . . I’m not going to peremptorily challenge them. I
don’t think I have grounds. And if I got rid of all of these, it would be an easy case for
Wheeler, but that’s just not here.”
The trial court stated, “My feeling tends to be that counsel should be afforded a
fairly wide latitude in pursuing a line of questioning that appears to possibly bear fruit
with respect to discovery of a challenge for cause, even though it may be -- I don’t want
to use the word inflammatory -- may be something that is of great controversy or
engender strong feelings, so long as it does not tend to cause other jurors, sitting jurors, to
prejudge or commit themselves to a certain position.” Defense counsel continued to
argue that the prosecutor had crossed the line by only interrogating African-American
jurors.
The trial court ruled, “My preference would have been for the questions to have
been directed more generally to the entire panel or to other persons who might harbor
similar feelings, even though they may not be members of the African-American race.
16 However, I don’t believe that [the prosecutor]’s questioning was intended to taint either
the panel or the African-American members of the prospective panel to vote in a
particular way. I tend to agree with [defense counsel] that the questioning was about as
penetrating as I’ve ever heard, but I don’t think it crossed the line.” The motion for
mistrial was denied.
The prosecutor peremptorily challenged three jurors, and defense counsel removed
three jurors. The prosecutor accepted the panel as it was constituted, which included
Prospective Juror Thompson. Five more jurors were excused, one by the prosecutor and
four by the defense. The People accepted the panel after each excusal by the defense.
Twelve more jurors were called who had been in the audience and had heard the prior
voir dire.
Defense counsel was asking general questions about jurors being fair and agreeing
with the criminal justice system. Juror Hernandez proffered, “ . . . I have tell you that I
went to a seminar on paralegal training at UC Irvine to decide whether I wanted to go
further with it, and after I heard the attorneys talk, I realized I couldn’t work for the
defense . . . a defense lawyer. I could work for the prosecutor.” Defense counsel asked
her why. She responded, “A strong sense of right and wrong. I don’t know how else to
describe it. Just a clear black and white sense of right and wrong when it comes to the
law.” She also stated, “[T]he idea of defending people who are guilty, in my conscience,
I could not do it.” She denied she had prejudged the case but was stating her “inner
conscience . . . .”
17 Five of the new jurors were excused for cause or due to hardship. At this point,
the first peremptory challenge by the prosecutor was to Prospective Juror Thompson.
Defense counsel immediately made a Wheeler motion. Defense counsel argued
that in the morning session that the prosecutor admitted that if he removed any of the 12
jurors in the box, which included Prospective Juror Thompson, it would be a Wheeler
violation. Defense counsel stated, “So I’m not quite certain what my remedy is other
than raising again the motion for mistrial, which I’ll do, because now he has effectively
gotten away with tainting the panel and then exercised a peremptory after conceding to so
with [sic] a Wheeler violation. That’s just absurd.” The trial court found a prima facie
case had been shown and said to the prosecutor, “Go ahead.”
The prosecutor responded, “All right. The reason . . . and I agree, I did say . . . I
do not agree, I should say, with defense counsel again that I have infected the jury. I
think what I did was absolutely appropriate, which is to try and ferret out any type of
bias. [¶] Now, I said before the lunch hour, I don’t have a problem with the ones that are
there, and [Thompson] was included, I had no intention of peremptorily challenging her.
After the lunch hour, when I came back, during the breaks and throughout the
proceedings, she was refusing to look at me at all. [¶] When [Hernandez] made the
statement that she doesn’t like defense counsel, she looked away in disdain. She put her
head down and looked right away. And I was right there next to her, and that’s what I
saw. And we’re not given a lot of information. We have to believe what they say, but
you have to take those kind of cues. So that’s the reason that I did it.”
18 The trial court understood the position of the prosecutor to be that as of the
morning session, he was satisfied with Prospective Juror Thompson. The trial court then
stated, “You have since, based upon observations, discerned that she appears to be
demonstrating an aversion to the prosecution or towards the process? I’m not quite sure.”
The prosecutor explained that Hernandez showed disdain for the defense, and Thompson
looked away in “disdain.”
Defense counsel did not see any disdain by Thompson. Defense counsel argued
that if she did look away in disdain, it was because of the way the prosecutor had
conducted voir dire during the morning session. He argued, “He has made this whole
think toxic by the way he confronted those African-Americans and put them on the spot
to make them feel as if they wouldn’t be fair simply because of their race or color, and
that’s exactly what -- if she did have disdain, I didn’t see it. And if she did, I can see why
it was there.”
The trial court ruled, “All right. I’ll deny the Wheeler/Batson motion at this time.
I’ll find that [the prosecutor]’s statements, although I did not observe that myself, are
credible and that the prosecutor may rely upon his observation of body language and
demonstrated antipathy, If you interpret it as such, towards other jurors or their attitudes
as a ground for exercise of a peremptory challenge. [¶] I don’t believe that I’m going to
be required to engage in a comparative analysis at this time, but if the motion is renewed
at any point, I probably will have to.”
19 The following day, the prosecutor stated to the trial court, “Based on the charges
of racism yesterday, I really think it’s important that it be on the record that there, first of
all, w[ere] six black jurors, I believe, that were left on the panel and one black alternate.”
The trial court confirmed that there were at least five or six African-Americans on the
panel, and one alternate.
We find the trial court could find the reasons given by the prosecutor were
credible and race neutral. “At the third stage of the Wheeler/Batson inquiry, ‘the issue
comes down to whether the trial court finds the prosecutor’s race-neutral explanations to
be credible. Credibility can be measured by, among other factors, the prosecutor’s
demeanor; by how reasonable, or how improbable, the explanations are; and by whether
the proffered rationale has some basis in accepted trial strategy.’ [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.” (Lenix, supra, 44 Cal.4th at p. 613, fn. omitted.)
Here, the record establishes that something had changed with Prospective Juror
Thompson. It is clear from the record that Prospective Juror Thompson was initially
actively engaged in the voir dire process. The prosecutor had accepted the panel as
constituted, which included Prospective Juror Thompson. However, after voir dire of
new members, the prosecutor peremptorily challenged Prospective Juror Thompson. The
prosecutor explained that Prospective Juror Thompson’s demeanor had changed. She
20 would not longer look at him and also looked away in disdain. These were proper
reasons that the trial court could rely upon to support the removal. Such explanations
were credible given that the prosecutor had initially accepted the panel that included
Prospective Juror Thompson.
Despite the fact that defense claimed not to see the change in her demeanor, the
trial court could reasonably rely on the prosecutor’s own observations. The trial court’s
finding that the prosecutor’s stated reasons were sincere and genuine “is entitled to great
deference where, as here, the reasons are based on the prospective juror’s appearance and
demeanor. [Citation.]” (People v. Ward (2005) 36 Cal.4th 186, 202.)
Moreover, “[a]lthough circumstances may be imagined in which a prima facie
case could be shown on the basis of a single excusal, in the ordinary case, including this
one, to make a prima facie case after the excusal of only one or two members of a group
is very difficult. [Citation.]” (People v. Bell (2007) 40 Cal.4th 582, 598, fn. 3.)
Although the trial court found a prima facie case, since only one African-American juror
was peremptorily challenged by the prosecutor, defendant’s claim that the prosecutor was
motivated by race to excuse Prospective Juror Thompson is untenable.
Additionally, at the time that the prosecutor exercised this single peremptory
challenge against Prospective Juror Thompson, at least six African-American jurors
remained on the panel. “While the fact that the jury included members of a group
allegedly discriminated against is not conclusive, it is an indication of good faith in
exercising peremptories, and an appropriate factor for the trial judge to consider in ruling
21 on a Wheeler objection.” (People v. Turner (1994) 8 Cal.4th 137, 168, abrogated on
other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) Although this is not
conclusive, it is an indication that the prosecutor acted in good faith.
Finally, we see nothing from the record that supports that Prospective Juror
Thompson was influenced by the prosecutor’s voir dire questions. During questioning,
Prospective Juror Thompson was actively engaged. Only after a break and the comments
by another juror did she shun the prosecutor.
We note that defendant has not asked this court, and he did not ask the trial court,
to engage in comparative juror analysis. “Despite problems inherent in conducting
comparative juror analysis for the first time on appeal — including the difficulties of
comparing what might be superficial similarities among prospective jurors and trying to
determine why the prosecutor challenged one prospective juror and not another when no
explanation was asked for or provided at trial — both the high court and this court have
done so on request. [Citations.]” (People v. Jones (2011) 51 Cal.4th 346, 364.)
Moreover, “‘evidence of comparative analysis must be considered in the trial court and
even for the first time on appeal if relied upon by defendant and the record is adequate to
permit the urged comparisons.” (Lenix, supra, 44 Cal.4th at p. 622.) Since defendant has
not made such a request, and did not adequately develop the record below, we decline to
engage in such analysis on the cold appellate record.
22 After the briefing was complete in this case, the California Supreme Court issued
several opinions addressing Batson/Wheeler claims. (People v. Harris (Aug. 26, 2013,
No. S081700) ____Cal.4th ______ [2013 D.A.R 11317]; People v. Jones (Aug. 26, 2013,
No. S042346) ____Cal.4th ______ [2013 D.A.R. 11413]; People v. Mai (Aug. 26, 2013,
No. S089478) ____ Cal.4th _____ [2013 D.A.R. 11356].) In the concurring opinion in
Harris, Justice Liu expressed his concern that the court (in the majority opinion in Harris
and in prior cases) was elevating the standard for establishing a prima facie case of
discrimination beyond that required by the United States Supreme Court, that the court
had found discrimination in only one of the more than 100 cases that had adjudicated
Batson claims over the prior two decades, and encouraged comparative juror analysis be
conducted in all cases. (People v. Harris, supra, _____ Cal.4th _____ [2013 D.A.R.
11317, 11340, 11345, 11352] (conc. opn. of Liu, J.).) Justice Liu again expressed his
concern in concurring opinions in both Mai and Jones. (People v. Mai, supra, ____
Cal.4th _____ [2013 D.A.R. 11356, 11383, 11388] (conc. opn. of Liu, J.)); People v.
Jones, supra, ____ Cal.4th ______ [2013 D.A.R. 11413, 11444-11446] (conc. opn. of
Liu, J.).) However, the majority opinions in these cases continued to employ the standard
for evaluating Batson/Wheeler claims as set forth in this opinion, ante. (See People v.
Mai, supra, _____ Cal.4th _____ [2013 D.A.R. 11356, 11379].) These recent opinions
have no impact on the result here. We conclude that the trial court did not error by
finding that the race-neutral reasons given by the prosecutor were adequate and find no
Wheeler/Batson had occurred.
23 III
SECTION 654 AND MONEY LAUNDERING
Defendant contends that her convictions for money laundering in counts
5 (Salazar), 10 (Crockett), 16 (Grizzell), and 23 and 27 (Vargas) should have been stayed
pursuant to section 654. She argues that she had a single objective of stealing the
victims’ money. The money laundering occurred simultaneous with the unlawful receipt
of money. These convictions, as outlined, ante, were based on the wire transfers out of
escrow to DRE. As such, when the deeds of trust were filed, the money was transferred
to DRE.
At sentencing, the People argued that the money laundering convictions should
run consecutively, as they were “separate and apart” from the other parts of defendant’s
scheme. Defendant’s counsel argued that the money laundering was all part of one
transaction to obtain fraudulent loans and have the money wired to defendant. The
People then argued that section 186.10 expressly stated that section 654 should not apply.
The prosecutor referred to the fact that section 115 contained language that it was not
subject to the bar in section 654, and section 186.10, subdivision (b) contained the same
language. The trial court ruled, “Subdivision (b) sets forth the penalty in language that is
similar to that in 115. I’ll find that money laundering in violation of Penal Code section
186.10, specifically subdivision (b), is not subject to the provisions of Penal Code section
654.” Inexplicably, on appeal, neither party discusses subdivision (b) of section 186.10.
24 We conclude the trial court properly determined that the plain language of section
186.10, subdivision (b) excludes its provisions from being subject to section 654.
Section 654, subdivision (a), enacted in 1872, “bars multiple punishment not only
for a single criminal act but for a single indivisible course of conduct in which the
defendant had only one criminal intent or objective.” (People v. Moseley (2008) 164
Cal.App.4th 1598, 1603.) “ . . . ‘If all of the crimes were merely incidental to, or were
the means of accomplishing or facilitating one objective, a defendant may be punished
only once. [Citation] If, however, a defendant had several independent criminal
objectives, he may be punished for each crime committed in pursuit of each objective,
even though the crimes shared common acts or were parts of an otherwise indivisible
course of conduct.’ [Citation.]” (People v. Conners (2008) 168 Cal.App.4th 443, 458.)
Section 186.10, subdivision (a) provides in pertinent part as follows: “Any person
who conducts or attempts to conduct a transaction or more than one transaction within a
seven-day period involving a monetary instrument or instruments of a total value
exceeding five thousand dollars ($5,000) . . . through one or more financial institutions
(1) with the specific intent to promote, manage, establish, carry on, or facilitate the
promotion, management, establishment, or carrying on of any criminal activity, or (2)
knowing that the monetary instrument represents the proceeds of, or is derived directly or
indirectly from the proceeds of, criminal activity, is guilty of the crime of money
laundering.” A transaction includes a deposit into or withdrawal from a financial
institution. (§ 186.9, subd. (c).)
25 “[A] Penal Code section 186.10, subdivision (a) prosecution based on a
defendant’s conducting a transaction through a financial institution with a monetary
instrument of $5,000 or more based on the knowledge of criminal proceeds theory,
requires proof that (1) the defendant’s entire business was illegal, (2) there were deposits
of $5,000 or more in criminally derived funds, or (3) there was a transfer of all funds out
of the account.” (People v. Mays (2007) 148 Cal.App.4th 13, 32.)
Section 186.10, subdivision (b) provides, “Notwithstanding any other law, for
purposes of this section, each individual transaction conducted in excess of five thousand
dollars ($5,000), each series of transactions conducted within a seven-day period that
total in excess of five thousand dollars ($5,000), or each series of transactions conducted
within a 30-day period that total in excess of twenty-five thousand dollars ($25,000),
shall constitute a separate, punishable offense.” (Italics added.)
In People v. Gangemi (1993) 13 Cal.App.4th 1790, the court, in addressing the
application of section 654 to violations of section 115, noted that a different rule applies
to offering false instruments for filing or recording. (Gangemi, at p. 1800.) It recognized
that the language of section 115, subdivision (d) provides that “‘[f]or purposes of
prosecution under this section, each act of procurement or of offering a false or forged
instrument to be filed, registered, or recorded shall be considered a separately punishable
offense.’” (Gangemi, at p. 1800.) It noted, “This language demonstrates an express
legislative intent to exclude section 115 from the penalty limitations of section 654.
Thus, the Legislature has unmistakably authorized the imposition of separate penalties for
26 each prohibited act even though they may be part of a continuous course of conduct and
have the same objective. [Citation.] . . . [E]ach false filing is separately punishable.”
(Ibid.)
Section 186.10, subdivision (b) contains even stronger language that it is not
subject to section 654. “It is assumed that the Legislature has in mind existing laws when
it passes a statute. [Citations.]” (Estate of McDill (1975) 14 Cal.3d 831, 837.) Here, in
enacting section 186.10, it is presumed that the Legislature was familiar with section 654.
The California Supreme Court has recognized that the Legislature has the power to
override section 654 in specific circumstances and that it need not necessarily cite section
654 specifically. (See People v. Benson (1998) 18 Cal.4th 24, 32-33.) Based on the plain
language of section 186.10, subdivision (b), defendant’s convictions pursuant to section
186.10, subdivision (a) were not subject to the prohibition of multiple punishment under
section 654.
Defendant relies exclusively on the holding of Conners as support for her position
that all of the money laundering convictions should have been stayed. In Conners, the
defendant was charged with money laundering and receiving stolen property for cashing
five checks that were written to him from a fund that was illegally obtained through a
fraudulent sale of property. (People v. Conners, supra, 168 Cal.App.4th at p. 450.) The
issue in that case was whether the defendant could be separately punished for receiving
stolen property based on the same act that was the subject of the money laundering. The
appellate court concluded there was clearly a single, indivisible course of conduct since
27 the receipt of the stolen money and the cashing of the five checks were part of the same
transaction. It noted that any sentence at his resentencing must reflect a stay of the
sentence for receiving stolen property. (Id. p. 458.)
We note that the Conners did not discuss the language in section 186.10,
subdivision (b). However, it noted that the receiving stolen property convictions must be
stayed, not the money laundering convictions. As such, it is not in conflict with our
decision here.
Even if we were to conclude that defendant’s convictions for violating section
186.10, subdivision (a) were subject to section 654, its provisions were not violated.
Defendant obtained the fraudulent loans and properties in the names of Salazar, Crockett,
Grizzell, and Vargas all on separate occasions. Moreover, defendant first obtained the
deeds of trust for these properties. In addition to obtaining the deeds of trust, she
siphoned off money to DRE from the loans for her personal use. It remained to be seen
what she was planning to do with the deeds of trust and the properties that she had
fraudulently obtained. She clearly had a separate objective in taking money from the
loans initially and could be separately punished.
Based on the foregoing, defendant was properly sentenced consecutively for her
convictions pursuant to section 186.10, subdivision (a).
28 IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.
RICHLI J. We concur:
McKINSTER Acting P. J.
KING J.