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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Xaviar Rene ESQUER, Defendant and Appellant.

No. F005991.

Decided: November 03, 1987

Frank O. Bell, Jr., State Public Defender, Sacramento, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Sacramento, for plaintiff and respondent.


Appellant was convicted after a jury trial of four counts of rape (counts 1–4) in violation of Penal Code section 261, subdivision (2);  one count of oral copulation (count 5) in violation of Penal Code section 288a, subdivision (c);  one count of vehicle theft (count 6) in violation of Vehicle Code section 10851;  and one act of false imprisonment (count 7) in violation of Penal Code section 236.

Appellant was sentenced to prison for a total term of 18 years.   Count 2 was selected as the principal term;  the court then imposed full consecutive midterms on counts 1 and 3 pursuant to Penal Code section 667.6, subdivision (d).   The court also found that the vehicle theft charged in count 6 was an act independent of the sex offenses and imposed a consecutive one-third midterm of eight months.   It imposed concurrent terms on counts 4 and 5.

Appellant makes only two contentions on appeal, (1) that the prosecutor improperly used his peremptory challenges to exclude Hispanics from the jury;  and (2) that full term consecutive sentences were improperly imposed on counts 1 and 3 under Penal Code section 667.6, subdivision (d).   We reject the first contention but accept the second contention, and we remand for resentencing.


A brief summary of the facts supporting the judgment will suffice to handle appellant's contentions on appeal.   Appellant and the prosecutrix, Janice, had known each other for three days before the incidents which resulted in appellant's convictions.   After spending about two hours drinking beer together, Janice drove appellant to his home.   While parked in Janice's car outside the house, appellant made sexual advances to Janice which were refused.   According to Janice, appellant then raped her, forced her to orally copulate him and raped her again.   Later, while in the house, appellant again raped Janice twice.

Afterward, appellant forced Janice to give him her car which he later drove to Los Angeles.   He also forced Janice to accompany him to various places in Fresno before leaving town.

Jury Selection

Jury selection took place on June 5, 1985.   Twelve prospective jurors were initially drawn;  three of these were excused by the court for personal reasons, both parties stipulating, and were replaced.   The reconstituted group of 12 was passed for cause by both sides.

The prosecutor then exercised his first peremptory challenge, excusing Mr. McCambry, a Black.   Seven more venirepersons were then called;  one of these was again excused for personal reasons, and another called to take her place.   A panel of 18 prospective jurors was passed for cause.

The defense then exercised its first peremptory challenge, excusing Mr. Huntley.   The People excused Mr. Mendoza, an Hispanic.   The defense excused Mr. Holeton.   The People excused Ms. Mesta, an Hispanic.   The defense excused Ms. McLaughlin;  the People excused Ms. Mavrikas.   The defense excused Ms. Paul.

Once again, seven venire persons were called up to restore the panel to eighteen members.   Of these, one was excused by the court for personal reasons and replaced.   The panel was again passed for cause.

The prosecutor then exercised his fifth peremptory challenge, excusing Ms. Flores, an Hispanic.   At this point defense counsel immediately requested a bench conference, following which the judge and attorneys stepped into the hallway for an unreported conversation.

Upon returning, the prosecutor used no more challenges.   Defense counsel used three more, removing Ms. Saddler, Ms. Smith and Ms. Steinhauer from the panel.   The jury as thus constituted was then sworn.   In addition, an alternate was selected and sworn.

After the jury was excused for the day, the following exchange took place:

“MR. ZAVALA [defense counsel]:  Your Honor, I wanted to object to the jury selection process in that Mr. Vogel has excused Juror[s] ․ Richard Mendoza, Miss Mesta, ․ Miss Flores, ․ and Mr. McCambry, ․ as well as ․ Julie [Mavrikas].  Your Honor, it is our position that based on the number of disqualifications by the prosecutor concerning the Spanish surnamed—and also I would like for the Court to take judicial notice of the fact that Mr. McCambry was a person of black orgin [sic ], uh, as well as Juror [Mavrikas], she as per the questionnaire indicates that she, uh,—I believe, is Greek, that Mr. Vogel has unduly limited and prejudiced the defense in excluding too many people of Hispanic and black descent.

“I don't believe that any of the questions posed by the prosecutor of either Mr. Mendoza, Miss Flores and Miss Mesta indicate any reason for bias or prejudice or any reason for not qualifying as a witness, and therefore, I believe that the jury selected, even though it does have some Hispanics on it, that it is a violation as per People versus Wheeler, and we would move on that basis that this trial not continue further.

“THE COURT:  Mr. Vogel?

“MR. VOGEL:  Your Honor, I think—

“MR. ZAVALA:  Excuse me, Mr. Vogel.   I did raise the issue prior to—we had a conference outside the presence of the jury outside in the hallway.   There was no reporter present.   However, the Court indicated my motion would be heard prior to the swearing of the jury and Mr. Vogel agreed with that.   However, the Court swore in the jury before my motion.

“THE COURT:  Correct.   I did indicate that the matter would be taken up on the record prior to jury selection.   I felt that based on the ultimate composition of the jury which appears to have Juror Number 2, Rodney Lara, Jurur [sic ] Number 4, Mrs. Hernandez and Juror Number 11, Mrs. Ortiz, uh, that the motion did not fall within the provisions of Wheeler or Fuller where essentially all challenges involving only that particular racial group or resulted in the exclusion from the ultimate jury of members of that particular racial group and decided that I would go ahead and have the jury sworn, but that I did allow the record to be made.”  (Emphasis added.)

After permitting the prosecutor to state on the record his reasons for excusing the three Hispanic jurors, the trial court denied defense counsel's Wheeler motion.


I. The trial court acted within its discretion in denying the Wheeler motion.

In People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748, the Supreme Court declared that the use of peremptory challenges to remove prospective jurors in a criminal trial on the sole ground of group bias violates the defendant's constitutional right to a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution.   The Supreme Court formulated a three-part procedure to challenge the prosecutor's alleged misuse of peremptory challenges.   If a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in a “timely fashion” and make a prima facie case of such discrimination to the satisfaction of the court.   First, he must establish as “complete a record” of the circumstances as feasible;  second, he must show that the persons excluded are members of a cognizable group;  and third, from “all of the circumstances of the case,” he must show a “strong likelihood” that such persons are being excluded because of their group association rather than because of any specific bias.  (People v. Trevino (1985) 39 Cal.3d 667, 682–683, 217 Cal.Rptr. 652, 704 P.2d 719, citing People v. Wheeler, supra, 22 Cal.3d at p. 280, 148 Cal.Rptr. 890, 583 P.2d 748.)   Once the defendant makes out a prima facie case, the burden shifts to the prosecution to rebut the inference of impermissible use of the peremptory challenges.

The Supreme Court did not attempt “a compendium” of all of the ways in which a defendant may seek to make out a prima facie case of group discrimination, but for purposes of illustration it did mention certain types of evidence that will be relevant for this purpose.   First, the defendant may show that the prosecutor has struck “most or all” of the members of the cognizable group from the jury panel.   This cannot be shown in the present cases because three Hispanics remained on the panel which had been passed for cause when appellant made his objection to the prosecutor's use of his first five peremptory challenges to exclude the only Black juror, three Hispanic jurors and one Greek juror.   As we shall explain, however, the fact that three Hispanic jurors remained on the panel when appellant made his Wheeler challenge and were ultimately sworn to try the case does not foreclose a finding that the prosecutor was guilty of unlawful discrimination in his exclusion of the four minority jurors.   We recognize that the trial court's statement that it felt that “based on the ultimate composition of the jury,” i.e., with three Hispanics, the motion “did not fall within the provisions of Wheeler ” may be construed as indicating a belief that as long as three Hispanics remained on the jury no prima facie case of discrimination could be made by appellant.   Nevertheless, as we will explain below, we believe the trial court's statement may also be construed as indicating that the ultimate composition of the jury was simply one of several factors considered by the judge in ruling against appellant's Wheeler challenge.

A second type of relevant evidence by which a defendant may seek to make a prima facie case of group discrimination is to show that the prosecutor has used a “disproportionate number” of his peremptories against the cognizable group.   Arguably, this is shown in the present case where the prosecutor used four of his first five peremptory challenges to exclude members of a cognizable group.

A third type of relevant evidence on the prima facie case issue according to the Supreme Court is for the defendant “to demonstrate” that the jurors in question share only this one characteristic—their membership in the (cognizable) group—and that in all other respects they are as heterogeneous as the community as a whole.   The Supreme Court explained that in a case of alleged exclusion on the ground of race it may be significant if the persons challenged include both men and women and are of a variety of ages, occupations, and social or economic conditions.  (People v. Wheeler, supra, 22 Cal.3d at p. 280, fn. 27, 148 Cal.Rptr. 890, 583 P.2d 748.)   The record in the present case shows that the three excluded Hispanics appeared to be as heterogeneous (dissimilar) as the community as a whole.   Mr. Mendoza was single, Ms. Flores married, and Mrs. Mesta divorced.   Mendoza lived in Selma, Flores in northwest Fresno, and Mesta in east Fresno.   Mendoza was a self-employed gardener, Flores worked as a data entry operator for a department store, and Mesta was not employed.   Mendoza mentioned no children while Flores and Mendoza each had two children.   However, a problem arises in that the record does not show that appellant brought these facts of heterogeneity to the trial court's attention when the Wheeler challenge was made.   Although most of the factual information was before the court from the voir dire examination of the jurors, appellant's counsel did not argue this point to the court as part of the Wheeler motion.   We, of course, do not know what was argued in the hallway conference where no reporter was present.  Wheeler says the defendant must establish as “complete a record as possible” and must “demonstrate” to the trial court that the excluded jurors share only the characteristic that the jurors are members of the cognizable group.   This was not done in this case.

Wheeler concludes that the listed examples of relevant evidence which will establish a prima facie case may be supplemented when appropriate by such circumstances as the failure of the prosecutor to engage the excluded jurors in more than “desultory voir dire,” or to ask them any questions at all.   In the present case, the record shows that the prosecutor asked several questions to the cognizable group members before they were passed for cause.   The questions were more than perfunctory in nature especially in light of the trial court's extensive voir dire of the panel.

The Supreme Court has defined a “prima facie” case as follows.   From the evidence presented by the defendant, the court must determine whether “a reasonable inference arises that peremptory challenges are being used on the ground of group bias alone.”  (People v. Wheeler, supra, 22 Cal.3d at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748, emphasis added.)   The court explains, “We recognize that such a ruling ‘requires trial judges to make difficult and often close judgments.  [However, t]hey are in a good position to make such determinations ․ on the basis of their knowledge of local conditions and of local prosecutors.’  [Citation.]  They are also well situated to bring to bear on this [prima facie case] question their powers of observation, their understanding of trial techniques, and their broad judicial experience.   We are confident of their ability to distinguish a true case of group discrimination by peremptory challenges․”  (Ibid.)

Here, we come to the crux of this case—a point that is both close and debatable on its merits.   It can best be framed by reference to the respective arguments of the parties.   Appellant argues that because the only jurors excused by the prosecutor before the Wheeler motion was made were cognizable group members, a strong likelihood arises that the prosecutor was abusing the peremptory challenge process.   According to appellant, but for his counsel's objection to the prosecutor's improper use of his peremptory challenges, the three Hispanic jurors that remained on the panel would have been excluded.   Appellant's argument has a ring of truth.

Respondent's argument in response is straightforward:  no prima facie case of discrimination was shown by appellant because the jury that ultimately heard appellant's case was composed of three Hispanics.   Appellant “cannot complain that a jury composed of 33 percent Hispanics was not constitutionally ‘representative’ of his group.”   Thus, says respondent, the prosecutor was under no duty to justify the use of his peremptory challenges.

 We will first explain why we reject respondent's argument.   The fact that the jury is so composed as to proportionally represent defendant's cognizable group does not mandate a determination by the trial court that defense counsel has failed to make out a prima facie case of group discrimination.   While defense counsel can establish a prima facie case by showing that the prosecutor has excluded “most or all” of the cognizable group, that is only one way to do so.   The court's real concern at all times is to assure that peremptory challenges are not being used on the ground of group bias alone.   The prevention of such use of peremptory challenges is necessary to preserve a party's constitutional entitlement to a petit jury that is as near an approximation of the ideal cross-section of the community as the process of random draw permits.  (See People v. Wheeler, supra, 22 Cal.3d at p. 277, 148 Cal.Rptr. 890, 583 P.2d 748.)   The trial court may draw the inference that peremptory challenges are being used on the ground of group bias alone notwithstanding the composition of the jury at any particular stage of jury selection.   To hold otherwise would be to encourage prosecutors to remove from the jury panel as many members of the cognizable class as possible before defense counsel makes a Wheeler challenge and, once the defendant objects, to then refrain from any further discriminatory challenges.

Our rejection of respondent's argument is supported by the United States Supreme Court holding in Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.   There, the high court reaffirmed the basic principle that although a defendant has no right to a petit jury composed in whole or in part of persons of his own race, the equal protection clause guarantees the defendant that the state will not exclude members of his race from the jury on account of race.   A defendant may establish a prima facie case of purposeful discrimination in the selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges.  “To establish such a 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 ․ raises the necessary inference of purposeful discrimination.”  (106 S.Ct. at p. 1723, emphasis added.)

The high court also gives examples of the “relevant circumstances” which the trial court should consider in deciding whether the defendant has made a prima facie showing.   For example, “a ‘pattern’ of [peremptory] strikes” against the members of the racial group.   Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges.   “These examples are merely illustrative.”  (Ibid.)  The high court also emphasizes the crucial part played by the trial judge in this scenario.  “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․”  (Ibid.)

Having rejected respondent's argument as to why the appellant did not prove a prima facie case of discrimination, we turn to appellant's argument as to why he did prove a prima facie case.   Appellant contends that because the prosecutor excluded four cognizable group members (three Hispanics and one Black) out of the five peremptory challenges used, that a strong likelihood exists that the prosecutor excluded the four cognizable group jurors for group bias alone.   Although the question is close, we find the argument also to be without merit.

 We first observe that a rebuttable presumption exists that the prosecutor exercises a peremptory challenge for a constitutionally permissible purpose—that is, on grounds of specific bias.   The law recognizes that a peremptory challenge may be predicated on a broad spectrum of evidence suggestive of juror partiality which “may range from the obviously serious to the apparently trivial, from the virtually certain to the highly speculative.”  (People v. Wheeler, supra, 22 Cal.3d at p. 275, 148 Cal.Rptr. 890, 583 P.2d 748.)

 We next observe that under the Wheeler and Batson procedures for determining whether the defendant has proved a prima facie case of group bias, i.e., has rebutted the presumption that the prosecutor used his peremptory challenges for a proper purpose, the trial judge's discretion is to be accorded great deference in the inference drawing process.   The judge is in the courtroom, he has heard the voir dire examination, he has viewed the demeanor of counsel in their questions and the jurors in their answers.   He knows the “local conditions” and the “local prosecutors.”  (People v. Wheeler, supra, at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748.)   We interpret all of this to mean that only where a reviewing court can say as a matter of law that the defendant has rebutted the presumption of the prosecutor's valid use of peremptory challenges can the trial judge's exercise of discretion be overruled.   Although it may be argued that the record in the instant case permits the drawing of an inference of a wrongful use of peremptory challenges by the prosecutor, the record does not command that such an inference be drawn.   A rational trial judge could have decided at the time the Wheeler challenge was made in the present case that although the prosecutor was treading on thin ice in excluding the four cognizable group members, the judge nevertheless could wait to see what happened to the three Hispanic jurors remaining in the jury box.   We have previously noted that the fact that three Hispanics remained on the jury would not have foreclosed the trial judge from finding that the defendant had established a prima facie case of group discrimination (if this had been done, this court would have affirmed the ruling) however, the trial judge was free not to have so found.   In sum, the three Hispanics remaining on the jury was simply one factor to be considered by the trial judge in making his prima facie issue ruling.

Because we uphold the trial court's ruling that appellant failed to make a prima facie showing of improper prosecutorial use of the peremptory challenge process, we need not discuss the highly questionable reasons offered by the prosecutor to justify his peremptory challenges.

II. The trial court erred in sentencing appellant under Penal Code section 667.6, subdivision (d).

 Appellant's second argument is a narrow one:  he contends that his case must be remanded for resentencing since he was improperly given full consecutive terms for three of his four rape convictions under Penal Code section 667.6, subdivision (d).

According to the prosecutor, counts 1 and 2 of the information represented the two rapes that occurred in the car outside appellant's house;  counts 3 and 4 were those that occurred later in the house.   The court chose count 2 as the principal term, gave appellant the six-year middle term on that count, then imposed full consecutive six-year terms on counts 1 and 3, basing these terms on Penal Code section 667.6, subdivision (d).1

At the time of the offenses, section Penal Code 667.6, subdivision (d) directed sentencing courts to impose full consecutive terms for specified sex crimes (including forcible rape) “if the crimes involve ․ the same victim on separate occasions.”   The phrase “separate occasions” was defined by the Supreme Court as limiting the scope of subdivision (d) to “offenses against the same victim between which the perpetrator temporarily lost or abandoned the opportunity to continue his attack:  such opportunity is lost when the victim becomes free of any ongoing criminal activity;  it is abandoned when the offender keeps the victim within his control but engages in some significant activity unrelated to continuing his attack.”  (People v. Craft (1986) 41 Cal.3d 554, 561, 224 Cal.Rptr. 626, 715 P.2d 585.)   The Craft holding was fully retroactive, thus governing appellant's sentencing.  (Id. at p. 562, fn. 5, 224 Cal.Rptr. 626, 715 P.2d 585.)

While count 3 was obviously a separate occasion from counts 1 and 2, it was improper for the trial court to sentence appellant to full consecutive terms on counts 1 and 2, which did not occur on separate occasions.   These first two rapes occurred within a span of minutes, in the same location, i.e., the victim's car in front of appellant's house, and were separated only by another sexual offense, oral copulation.2

The judgment of convictions is affirmed;  the matter, however, is remanded to the trial court for resentencing as provided in part II of this opinion.


1.   Additional six years terms on counts 4 and 5 were to be served concurrently;  appellant received one-third the base term on count 6, and his sentencing on count 7 was stayed pursuant to Penal Code section 654.

2.   The language of Penal Code section 667.6, subdivision (d), has been modified by the Legislature to overrule Craft.   Now, “In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior.   Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.”   Even under this definition, however, counts 1 and 2 were not committed on separate occasions, as there was no resumption of sexually assaultive behavior;  the acts in the car (counts 1, 2 and 5) were continuous.

FRANSON, Presiding Justice.

HAMLIN and MARTIN, JJ., concur.

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