Filed 6/30/14 P. v. Davis CA1/5


                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A136826
v.
DAVID D. DAVIS,                                                      (Solano County
                                                                     Super. Ct. No. VCR208281)
         Defendant and Appellant.


         David D. Davis appeals from a judgment of conviction and sentence after a jury
convicted him of battery (Pen. Code, § 242) and battery against a sports official
(§ 243.8).1 He contends (1) the prosecutor exercised a peremptory challenge based on
race, in violation of his equal protection rights; and (2) his battery conviction must be
reversed because battery is a lesser included offense of battery against a sports official.
We will reverse the battery conviction and affirm the judgment in all other respects.

                                I. FACTS AND PROCEDUAL HISTORY
         Davis was charged with battery with serious bodily injury (§ 243, subd. (d)) and
battery against a sports official (§ 243.8, subd. (a)). Allegedly, he punched an umpire in
the head after being ejected from a youth baseball game. The matter proceeded to a jury
trial.


1
         All statutory references are to the Penal Code.


                                                             1
       A. Jury Selection
       During voir dire, the prosecutor had the following exchange with prospective juror
M.W.: “[PROSECUTOR]: [M.W.], how are you? [¶] PROSPECTIVE JUROR: I’m
good. [¶] [PROSECUTOR]: I don’t know [if] we have heard from you today, so I’ll ask
you a question. What is your definition of serious bodily injury? [¶] [DEFENSE
COUNSEL]: I would object. [¶] THE COURT: Sustained. [¶] [PROSECUTOR]:
[M.W.], let’s say your definition in your mind of [serious] bodily injury differs from what
the judge instructs on what the law is, if that arises, would you have difficulty following
the law as the judge instructs you? [¶] PROSPECTIVE JUROR: No.
[¶] [PROSECUTOR]: Okay. Why not? [¶] PROSPECTIVE JUROR: Sometimes you
have to defend yourself. [¶] [PROSECUTOR]: What do you mean sometimes you have
to defend yourself? [¶] PROSPECTIVE JUROR: It’s my life, and I would try to protect
my life, to avoid anything in any way I can. [¶] [PROSECUTOR]: My question put
another way is, will you follow the law in this case as the judge instructs you to follow
the law, or will you reject the law and follow the law the way you think it should be
written or the way you think it should be? [¶] PROSPECTIVE JUROR: I would have to
listen to what she says. [¶] [PROSECUTOR]: So you have no problem if there is a
conflict between the way you think things should be and the way the law is written? You
have no problem following the law? [¶] PROSPECTIVE JUROR: I don’t have any
problem.”
       After the attorneys finished questioning the prospective jury, the prosecutor passed
on his right to exercise a peremptory challenge, indicating his acceptance of the panel
that included M.W. Once the defense exercised a peremptory challenge, however, the
prosecutor began to exercise peremptory challenges too. The prosecutor excused two
other prospective jurors, and then excused M.W. with his third peremptory challenge.
       Defense counsel objected to the prosecutor’s challenge of M.W., contending it
was based solely on race. Counsel noted that both M.W. and Davis were African-
American; he also opined that neither M.W.’s juror questionnaire nor her body



                                             2
language or responses to the prosecutor’s questions suggested she could not be a fair
and impartial juror.
       The court noted that two other apparent African-Americans had already been
excused by the parties’ stipulation, leaving M.W. and another African-American on the
panel and five or six others in the jury pool. Nonetheless, the court asked the prosecutor
to explain his reasons for excusing M.W.
       The prosecutor stated that M.W.’s response to his first question was “non-
responsive to the question that I had posed.” Specifically, when he asked her about great
bodily injury, M.W. replied, “Sometimes you just have to defend yourself.” The
prosecutor believed that M.W. was thinking “in terms of self-defense only without
anybody mentioning about it.”
       In addition, the prosecutor stated: “I was looking at her body language. She was
leaning forward, kind of away from me and that kind of gave me a gut feeling that she
wouldn’t be the best juror for this case. [¶] I then talked to her some more about her
feelings, and she gave sort of quick answers, one word, Yes. No.”
       The court asked the prosecutor why he initially passed his challenge even
though M.W. was part of the panel. The prosecutor responded, “Because the first time,
I didn’t go by my gut instincts, and then once the gut instinct kicked in, is why I
excused her.”
       The court next recounted its own observations of the voir dire of M.W.: “I’ll
share with you when she made her response, I did make a large note. I noted that she
did not give the question, [M.W.] did not give the question that was presented to her
by [the prosecutor]. It kind of reminded me a little bit of [another prospective juror]
who did not appear to be following and tracking very well.”
       Defense counsel insisted that M.W.’s answer had been responsive to the
prosecutor’s question. The court disagreed: “No. He asked her, ‘If the Court gives
you a definition of serious bodily injury and your own personal definition is different,
would you be able to follow the court’s instruction?’ And she responded, indicating,



                                              3
‘Sometimes I think self-defense is necessary,’ and it didn’t track the question that
was presented to her. I made a big note of it.”
       The prosecutor further explained his delay in challenging M.W. “[B]ecause of
the sensitivities involved in race in this case, I was reluctant to kick [M.W.], and then
after passing, once my instincts told me that she wasn’t the proper juror in [this] case
because of her response, I exercised my intent to challenge her, peremptory challenge.”
       The court concluded: “I am not going to find based upon this single exercise
of a peremptory, that the peremptory was exercised for anything other than a racially
neutral reason, and I would note my very basic issue was the way that she did answer
the questions previously. [¶] However, I would certainly consider this exclusion if it
were to become an issue and a pattern, and I would not be opposed to [defense
counsel] renewing that motion should he have additional facts to support.” M.W.
was excused.

       B. Evidence at Trial
       On July 18, 2010, victim David Abbitt was a field umpire for a Babe Ruth League
state championship baseball game between a team from Vallejo and a team from
Sonoma. Abbitt was positioned near second base, and his responsibilities included
determining whether runners reached first base and second base safely. Davis was the
first-base coach for the Vallejo team.
       In the first inning, Abbitt called a Vallejo player out at second base. Davis ran
from his first-base coach’s box to dispute the call, coming “face-to-face” with Abbitt.
Abbitt warned Davis that he could not enter the field to protest a call.
       In the sixth inning, Abbitt called a Vallejo player out at first base. Davis again
entered the field and, appearing very upset, yelled at Abbitt “with his hands in the air.”
Abbitt told Davis that he had been warned earlier, and ejected Davis from the game.
       Davis continued to yell at Abbitt. Abbitt approached him, saying, “You’re gone.
You’re gone. You are gone. Get out of here, gone. Get back out there.” Abbitt came
within an arm’s length of Davis and was looking at him “straight on,” when Davis



                                              4
pointed toward the home plate umpire and told Abbitt to “look at your partner.” When
Abbitt did this, Davis “loaded up a fist and swung around and hit” him. Abbitt testified
that he felt a “big bang in [his] head,” “heard [his] head explode,” and “[t]hen the lights
went out.” The next thing he remembered, he was on the ground, seeing “people looking
down at me, and I see the blue sky above.” Abbitt was bleeding, seemed unconscious
for 20 to 25 seconds, and was transported to the hospital.
       Davis testified to a different version of events. He claimed that, when he
protested Abbitt’s call in the sixth inning, he raised his hand to request a time-out.
Abbitt responded by approaching Davis, telling him several times to “get the fuck off
the field,” and gesturing that Davis was ejected from the game. Davis became afraid.
Abbitt told him, “I’ll kick your ass to the parking lot” and “Take your monkey and get
off the field.” He might have used the word “Leroy” twice too. He was enraged,
slobbering, and spitting. When Abbitt next said, “You’re going to get the fuck off the
field,” Davis thought that Abbitt was “going to come down and smash” him, so Davis
merely “threw his hands” and Abbitt “laid himself on the ground.”

       C. Jury’s Verdict and Sentence
       The jury found Davis not guilty of battery with serious bodily injury, but guilty
of the lesser included offense of simple battery (§ 242); the jury also found Davis
guilty of battery against a sports official.
       The trial court suspended imposition of sentence for the battery against a sports
official and placed Davis on probation for three years. The court stayed punishment
for the simple battery pursuant to section 654.
       This appeal followed.

                                      II. DISCUSSION
       We address Davis’s contentions in turn.




                                               5
       A. Batson-Wheeler
       Davis contends the prosecutor secured the exclusion of prospective juror M.W. in
violation of his constitutional rights, because the prosecutor’s peremptory challenge to
M.W. was solely due to M.W.’s race. Davis’s claim has no merit.
       The equal protection clause of the Fourteenth Amendment forbids a prosecutor
from challenging a potential juror based on the juror’s race or assumptions about how the
juror’s race may affect the juror’s treatment of the case. (Batson v. Kentucky (1986) 476
U.S. 79, 89 (Batson); see People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) [violation of
state constitution], overruled in part on another ground in Johnson v. California (2005)
545 U.S. 162.)
       “A three-step procedure applies at trial when a defendant alleges discriminatory
use of peremptory challenges. First, the defendant must make a prima facie showing that
the prosecution exercised a challenge based on impermissible criteria. Second, if the trial
court finds a prima facie case, then the prosecution must offer nondiscriminatory reasons
for the challenge. Third, the trial court must determine whether the prosecution’s offered
justification is credible and whether, in light of all relevant circumstances, the defendant
has shown purposeful race discrimination. [Citation.]” (People v. Manibusan (2013) 58
Cal.4th 40, 75 (Manibusan); see Batson, supra, 476 U.S. at pp. 94, 97-98.) The burden is
on the defendant to show it was more likely than not that the challenge was racially
motivated. (See Manibusan, supra, 58 Cal.4th at p. 75.)
       Here, the parties agree (or assume) that the trial court found that Davis had
established a prima facie case, since the court asked the prosecutor to give a reason for
the challenge. At issue in this appeal, therefore, is the third step of the procedure—the
trial court’s determination that the prosecutor’s justification was credible.
       In this regard, the trial court must make “a sincere and reasoned attempt to
evaluate the prosecutor’s explanation in light of the circumstances of the case as then
known, his knowledge of trial techniques, and his observations of the manner in which
the prosecutor has examined members of the venire and has exercised challenges for
cause or peremptorily.” (People v. Hall (1983) 35 Cal.3d 161, 167-168; see Batson,


                                              6
supra, 476 U.S. at p. 98.) The credibility of a prosecutor’s stated reasons “can be
measured by, among other factors, . . . how reasonable, or how improbable, the
explanations are; and by whether the proffered rationale has some basis in accepted
trial strategy.” (Miller-El v. Cockrell (2003) 537 U.S. 322, 339.) “ ‘ “[E]ven a ‘trivial’
reason, if genuine and neutral will suffice.” [Citation.] A prospective juror may be
excused upon facial expressions, gestures, hunches, and even for arbitrary or
idiosyncratic reasons.’ [Citation.]” (People v. Jones (2013) 57 Cal.4th 899, 917
(Jones).)
       Davis raises two issues: (1) the standard of review, and (2) the sufficiency of the
evidence.

              1. Standard of Review
       Generally, a trial court’s determination of the credibility of the prosecutor’s
reasons for excusing a juror is reviewed for substantial evidence. (Manibusan, supra,
58 Cal.4th at p. 76.) “The trial court is in the unique position of assessing demeanor,
tone, and credibility firsthand—factors of critical importance in assessing the attitude
and qualifications of potential jurors.” (People v. Garcia (2011) 52 Cal.4th 706, 743,
citation and internal quotation marks omitted.) Thus, “where answers given on voir
dire are ‘equivocal or conflicting,’ the trial court’s evaluation of the person’s state of
mind is generally binding on the reviewing court. [Citation.]” (Ibid.)
       This deference is afforded “ ‘only when the trial court has made a sincere and
reasoned attempt to evaluate each stated reason as applied to each challenged juror.’
[Citation.] ‘When the prosecutor’s stated reasons are both inherently plausible and
supported by the record, the trial court need not question the prosecutor or make
detailed findings. But when the prosecutor’s stated reasons are either unsupported by
the record, inherently implausible, or both, more is required of the trial court than a
global finding that the reasons appear sufficient.’ ” (People v. Williams (2013) 56
Cal.4th 630, 653 (Williams); People v. Lewis (2008) 43 Cal.4th 415, 469-470.)




                                               7
       Here, the court made a sincere and reasoned attempt to evaluate the
prosecutor’s reasons for excusing M.W. The court tested the prosecutor’s claim that
M.W.’s answer to his question was nonresponsive, by comparing it to the court’s own
recollection and contemporaneous notes of the questioning that had just occurred; and
the court found that it too had independently recorded a similar concern about M.W.’s
nonresponsiveness. Specifically, the court explained, the prosecutor asked M.W.
about her willingness to follow instructions on great bodily injury, but M.W.
responded by asserting her belief in self-defense. In addition, the court asked the
prosecutor to explain why he had initially passed on his right to exercise a peremptory
challenge, and the court entertained argument from defense counsel as well. The court
further considered the composition of the panel and noted that M.W. was the only
African-American the prosecutor had sought to excuse by a peremptory challenge.
And then the court reiterated its reason for overruling Davis’s objection on the record,
explaining that the “very basic issue was the way that she did answer the questions
previously.” The prosecutor’s justification was inherently plausible and supported by
the record, and no further detailed findings by the court were necessary. Accordingly,
the substantial evidence standard applies. (Manibusan, supra, 58 Cal.4th at pp. 76-
77.)
       As discussed next, Davis’s arguments to the contrary are meritless.

                     a. Justice Liu’s Separate Opinions
       Davis first asserts that in People v. Mai (2013) 57 Cal.4th 986, 1048 (Mai), our
Supreme Court noted that deference should be granted to the trial court’s view of the
credibility of the prosecutor’s justifications, unless the record shows that the court did not
carry out its duty to subject the prosecutor’s assertions to sincere and reasoned analysis.
Thus, under Mai, the trial court’s ruling may be treated with deference even if the court’s
analysis is not detailed in the record. Then Davis urges us not to follow Mai, but to apply
a rule advocated by Justice Liu’s concurrence in Mai and his dissent in Williams. (See
Mai, supra, 57 Cal.4th at pp. 1058-1060, 1074; Williams, supra, 56 Cal.4th at pp. 699-



                                              8
728.) In Justice Liu’s view, deference is not warranted “ ‘when a trial court fails to make
explicit findings or to provide any on-the-record analysis of the prosecution’s stated
reasons for a strike.’ ” (Mai, supra, 57 Cal.4th at p. 1059 (conc. opn. of Liu, J.);
Williams, supra, 56 Cal.4th at p. 717 (dis. opn. of Liu, J.).) In essence, Justice Liu urges
that the substantial evidence standard should not apply if the trial court summarily denied
a Batson/Wheeler motion.
       Davis’s argument is unavailing. In the first place, unlike the trial courts in Mai
and Williams, the court in this case did engage in a detailed on-the-record analysis of the
prosecutor’s claimed justification for the peremptory challenge. Therefore, the tension
between the majority opinion in Mai and Justice Liu’s separate opinions is immaterial;
indeed, Justice Liu acknowledged in Mai that deference should be granted to the trial
court where, as here, the court expressed its reasoning on the record. (Mai, supra, 57
Cal.4th at p. 1059 (conc. opn. of Liu, J.).) At any rate, if called upon to choose between
the majority opinion in Mai and Justice Liu’s separate opinions, we would have to follow
the majority opinion. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.) Concurring and dissenting opinions are not binding precedent. (People v. Ceballos
(1974) 12 Cal.3d 470, 483; People v. Lopez (2012) 55 Cal.4th 569, 585.)

                     b. Snyder
       Davis next insists the rule espoused in Mai was “soundly rejected” by the United
States Supreme Court in Snyder v. Louisiana (2008) 552 U.S. 472 (Snyder). He argues
that, like our Supreme Court in Mai, the dissent in Snyder opined that a trial court should
not be required to make findings on the credibility of the prosecutor’s rationales,
ambiguities should be resolved in favor of the judgment, and the court’s ruling should be
accorded substantial deference unless its express findings were plainly contradicted by
the record. (Id. at pp. 486-487 (dis. opn. of Thomas, J.).)
       Davis’s argument has no merit. First, the argument is irrelevant, again because the
court in this case did provide detailed reasons for overruling Davis’s Batson/Wheeler
objection. Second, Davis’s argument is suspect on its face, since it would be quite odd if



                                              9
our Supreme Court in Mai chose to perpetuate a rule that had been “soundly rejected” by
the United States Supreme Court five years earlier, and then manage to escape the high
court’s review. (See Mai v. California (2014) 134 S.Ct. 2142 [denying petition for writ
of certiorari].) Indeed, the Mai court certainly did not think it was out of line with
Snyder, since it vowed to continue to follow its rule of deference “until the United States
Supreme Court articulates a contrary rule.” (Mai, supra, 57 Cal.4th at p. 1049, fn. 27.)
Third, Davis’s argument is simply wrong. The fact that the dissent in Snyder advocated a
rule does not mean that the majority in Snyder held that the rule was incorrect. To the
contrary, nowhere in Snyder does it say that a trial court’s evaluation of the prosecutor’s
justification cannot be affirmed upon substantial evidence merely because the court had
failed to make express findings in support of its ruling. Nor did Snyder hold that, without
such findings, it could not be presumed that the court had engaged in the requisite
analysis. (Thaler v. Haynes (2010) 559 U.S. 43, 47-49 (Thaler); see Snyder, supra, 552
U.S. at p. 479.)2

                     c. Sincere and Reasoned Attempt to Evaluate the Reasons
       Lastly, Davis argues, the substantial evidence standard should not be applied
because the trial court in this case did not undertake a “reasoned attempt” to investigate
the prosecutor’s motivations. Davis’s sole basis for this claim is his assertion that,
instead of reviewing the “record” of voir dire, the court relied on its contemporaneous
notes of the proceedings which, Davis claims, “misrepresented” what the prosecutor and
2
        In Snyder, the prosecutor asserted two justifications for his peremptory challenge
of a prospective African-American juror: his nervousness and his obligations as a
student-teacher. (Snyder, supra, 552 U.S. at p. 478.) The trial court overruled the
defendant’s Batson objection without explanation, and without a finding as to the juror’s
demeanor. (Id. at p. 479.) The Supreme Court held that the prosecutor’s second
justification failed, and because the trial court had overruled the objection without an
explanation or a finding regarding the juror’s demeanor, the court’s ruling could not be
upheld on the demeanor-based justification either. (Ibid.) As the Supreme Court has
since clarified, the reason for this holding was not simply because the trial court had
made no finding about (or had no recollection of) the juror’s demeanor, but because,
under the circumstances of that case, the demeanor-based ground “might not have figured
in the trial judge’s unexplained ruling.” (Thaler, supra, 559 U.S. at pp. 48-49.)


                                             10
M.W. said. He asserts: “Clearly, the trial court was either paying less than close
attention during the exchange or did not hear what was actually said. In either case, the
court relied on a faulty version of what actually happened and failed to undertake an
inquiry adequate to establish the actual facts.”
       Davis’s aspersions are unfounded. The court described the exchange as follows:
“[The prosecutor] asked [M.W.], ‘If the Court gives you a definition of serious bodily
injury and your own personal definition is different, would you be able to follow the
Court’s instruction?’ And she responded, indicating, ‘Sometimes I think self-defense is
necessary.’ ” Davis insists this was wrong, because in immediate response to whether her
personal definition of great bodily injury would preclude her from following the law as
the court instructed, M.W. initially said, “No.” But the point is that, when the prosecutor
asked the next question, “Why not?”—that is, why she would not have difficulty
following the court’s instruction—M.W. responded with her view as to the necessity for
self-defense. The court therefore recalled the gist of the exchange quite accurately:
M.W.’s mention of “self-defense” was not responsive to the prosecutor’s inquiry about
her willingness to follow the court’s instructions with respect to serious bodily injury.
Thus, while Davis contends “the court did not review the voir dire as a whole,” it is Davis
who fails to do so.
       The substantial evidence standard applies.

              2. Sufficiency of the Evidence
       The prosecutor explained that he exercised a peremptory challenge as to M.W.
because of (1) her nonresponsive answer to his question, (2) her body language, and
(3) her “quick answers” limited to yes or no. The trial court explicitly based its ruling on




                                             11
the way M.W. answered the prosecutor’s question. Substantial evidence supports the
finding that the prosecutor had a credible, nondiscriminatory reason for excusing M.W.3
       After M.W. answered no to the prosecutor’s question—indicating that she would
not have any difficulty following the court’s instruction on serious bodily injury if it
differed from her own definition of serious bodily injury—the prosecutor asked M.W.,
“Why not?” M.W. replied, “Sometimes you have to defend yourself.” When asked to
explain, she added, “It’s my life, and I would try to protect my life, to avoid anything in
any way I can.” A reasonable inference from this exchange is that M.W. did not
understand the prosecutor’s questions: he was plainly asking her why she would not have
difficulty following the court’s instruction on serious bodily injury, yet she responded
with her views on the need for self-defense. A prospective juror’s apparent inability to
comprehend questioning is an acceptable race-neutral reason to exercise a peremptory
challenge. (See People v. Turner (1994) 8 Cal.4th 137, 169.)
       Davis’s arguments to the contrary are meritless. First, he asserts that M.W.
started talking about self-defense because other jurors had discussed the topic during
voir dire. But that is the whole point. Those other jurors had discussed self-defense
when asked about “self-defense,” not about “serious bodily injury.” Her mention of
self-defense without being questioned about self-defense reasonably suggested that
M.W. misunderstood the question, misheard it because she remained unduly captivated




3
        To resolve the appeal, we need only decide the sufficiency of the prosecutor’s
explanation that he was concerned with M.W.’s nonresponsiveness to his questions. In
regard to the prosecutor’s alternative (or supplemental) explanation that he was
concerned with her body language, Davis contends the court made no finding about
M.W.’s body language, while respondent contends the court made this finding when it
expressed concern with “the way” M.W. answered the questions (italics added). The
parties also debate whether a court’s failure to make findings about a juror’s body
language precludes the use of body language evidence to affirm the court’s ruling. We
do not decide these issues. We do observe, however, that nothing in the record shows
that the prosecutor’s reference to M.W.’s body language was merely pretextual.


                                             12
by the topic of self-defense, or was relying on other jurors’ responses to formulate her
own response to the question.4
       Next, Davis suggests the prosecutor’s initial willingness to accept M.W. on the
jury shows that his explanations were a sham. We disagree. In the first place, a
prosecutor may pass up the initial opportunity to invoke a peremptory challenge for
tactical reasons, if he or she believes the defense will exercise one of its challenges—
particularly if the defense will likely excuse a juror the prosecutor would also want to
excuse. Certainly the initial decision not to challenge M.W. does not mean he wanted to
exclude her due to race.
       Indeed, by passing on his initial opportunity to exercise a challenge, the
prosecutor ran a risk of having M.W. on the jury, which strongly indicates that he did
not exercise his peremptory challenge on the basis of race. (Williams, supra, 56
Cal.4th at p. 659; People v. Lomax (2010) 49 Cal.4th 530, 576.)
       Finally, the prosecutor’s explanation for his initial acceptance of the jury was
reasonable. At first the prosecutor was reluctant to challenge M.W. “because of the
sensitivities involved in race,” but then his “instincts told [him] that she wasn’t the
proper juror in [this] case because of her response.” In short, he had second thoughts.
       Davis argues that, once a defendant makes out a prima facie case of
discrimination, “there is no means by which a gut instinct could adequately rebut the
prima facie case.” Our Supreme Court disagrees. (See Jones, supra, 57 Cal.4th at
p. 917 [“ ‘A prospective juror may be excused based upon . . . hunches, and even for
arbitrary or idiosyncratic reasons’ ” (italics added)].) In any event, Davis

4
        The prosecutor expressed concern that M.W. was “thinking in her mind in terms
of self-defense only without anybody mentioning about it.” Davis asserts that M.W. did
not literally talk about self-defense “without anybody mentioning about it,” because self-
defense had been mentioned previously when the court and defense counsel asked
prospective jurors about their views on self-defense, and another prospective juror
expressed an unwillingness to follow the court’s self-defense instructions. Obviously, the
prosecutor’s point was not that no one had mentioned self-defense throughout the entirety
of voir dire, but that M.W. started talking about self-defense without the prosecutor
asking her about it.


                                              13
misunderstands what the prosecutor was saying. He was not claiming that he
challenged M.W. based on a gut instinct, in the sense of a feeling that could not be
explained by reference to objective criteria; rather, he was saying that he had a gut
instinct about the significance of M.W.’s nonresponsive answer to his question. In
other words, the prosecutor’s instinct was not the ground he had for a peremptory
challenge, but the reason he decided to assert the challenge.
       In sum, ample evidence supported the trial court’s determination that Davis
failed to show the prosecutor’s excusal of M.W. was based on race.

       B. Battery Conviction
       Davis contends the trial court erred when it did not reverse his simple battery
conviction, because battery is a lesser included offense of battery against a sports
official. “[M]ultiple convictions may not be based on necessarily included offenses.”
(People v. Pearson (1986) 42 Cal.3d 351, 355.) If the evidence supports the verdict as
to the greater offense, the conviction of the lesser offense must be reversed. (People v.
Moran (1970) 1 Cal.3d 755, 763.) “[A] lesser offense is necessarily included in a
greater offense if either the statutory elements of the greater offense, or the facts
actually alleged in the accusatory pleading, include all the elements of the lesser
offense, such that the greater cannot be committed without also committing the lesser.
[Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 117-118.)
       Here, battery is “any willful and unlawful use of force or violence upon the
person of another.” (§ 242.) Battery against a sports official occurs “when a battery is
committed against a sports official immediately prior to, during, or immediately
following an interscholastic, intercollegiate, or any other organized amateur or
professional athletic contest in which the sports official is participating, and the person
who commits the offense knows or reasonably should know that the victim is engaged
in the performance of his or her duties.” (§ 243.8, italics added.) Respondent agrees
that simple battery is the lesser included offense of battery against a sports official,




                                              14
because a person cannot complete the crime of battery against a sports official without
necessarily committing a battery.
       Accordingly, respondent asserts that this court should reverse the simple battery
conviction and direct the preparation of a corrected abstract of judgment. (§ 1260.)
We will so order.

                                    III. DISPOSITION
       The conviction for simple battery (Pen. Code, § 242) is reversed. In all other
respects, the judgment is affirmed. The trial court shall prepare a corrected abstract of
judgment omitting the simple battery conviction.




                                          NEEDHAM, J.




We concur.




JONES, P. J.




SIMONS, J.




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