Filed 5/20/13 P. v. Bautista CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----


THE PEOPLE,                                                                                  C069652

                   Plaintiff and Respondent,                                     (Super. Ct. No. LF11367A)

         v.

JUAN CARLOS De JESUS BAUTISTA,

                   Defendant and Appellant.




         A jury convicted defendant Juan Carlos De Jesus Bautista of premeditated and
deliberate attempted murder (Pen. Code, §§ 664/187, subd. (a)) (unless otherwise stated
section references that follow are to the Penal Code), two counts of assault with a firearm
(§ 245, subd. (a)(2)), and actively participating in a criminal street gang (§ 186.22, subd.
(a)). The jury also found true allegations that the defendant personally and intentionally
discharged a firearm causing great bodily injury (§§ 12022.53, subds. (c) & (d), 12022.5,
subd. (a)), that defendant caused great bodily injury (§ 12022.7, subd. (a)), and that
defendant committed the offenses for the benefit of, or in association with, a criminal
street gang (§ 186.22, subd. (b)).

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       Following his conviction, defendant was sentenced to an indeterminate term of 40
years to life in prison, as well as additional sentences which the trial court stayed
depending on the finality of other charges and enhancements. The trial court also
imposed a $200 restitution fine with a 10 percent administrative surcharge fee, or $20.
       Defendant appeals contending the trial court should have granted his
Batson/Wheeler motion due to the prosecutor‟s alleged race-based exercise of a single
peremptory juror challenge. (Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69];
People v. Wheeler (1978) 22 Cal.3d 258.) Defendant also contends the trial court
erroneously imposed the 10 percent surcharge on the $200 restitution fine. We conclude
the trial court properly denied defendant‟s Batson/Wheeler motion and that the $20
administrative surcharge on the $200 restitution fine was proper. We therefore affirm the
judgment. We grant the People‟s request to correct the abstract of judgment, which fails
to reflect the sentence imposed and stayed for the gang enhancement on the attempted
murder charge.

                                FACTS AND PROCEEDINGS
       Given the nature of defendant‟s claims on appeal, we dispense with a detailed
recital of the underlying facts and instead focus on jury selection, specifically, the
prosecutor‟s peremptory challenge of prospective juror P.S.

Jury Questionnaire

       During the jury selection process, prospective jurors were given a 77-question
questionnaire. In response to the jury questionnaire, P.S. stated she was employed by the
California Department of Corrections and Rehabilitation as a hospice social worker and
worked in the compassionate release advocacy program conducting medical parole
workups. She also maintained a private therapy practice. She had lived in San Joaquin
County for five years.



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       Question 18 asked whether she had any training in psychiatry, psychology or
medicine. P.S. responded “yes,” explaining she was a “Licensed Clinical Social Worker
in Corrections,” and that she was a “Certified Correctional Health Care Professional for
medical treatment „constitutional level of care‟ to inmate population.”
       In response to Question 35, which asked whether she could keep an open mind
throughout the trial, P.S. responded she could and that “Every one [sic] deserves a fair
trial for many reasons. Human error, justice is blind, constitutional rights, cost to public
of possibility of having to reprocess or conviction of an innocent person.”
       Question 40 asked whether she believed it would be possible for “any witness to
swear to tell the truth and yet lie under oath?” P.S. stated “yes,” explaining that “they
may (believe) what they have saw hear experienced or believe about their experience
with the event they are recalling.”

Voir Dire

       P.S. confirmed during voir dire that she was a licensed clinical social worker for
the Department of Corrections and that she worked with hospice patients and assisted
with getting inmates out and situated under the compassionate release program. She also
stated she had a small private therapy practice in town.
       P.S. said she would not have a problem making her own decision, and when asked
what she thought about the defendant being charged with attempted murder, use of a gun
and gang activity, she responded she “need[ed] to see what the data is. I need to see the
evidence,” but that she was “okay” with the charges. She also stated a gang member
might not cooperate with police for several reasons including loyalty and to protect
themselves.
       When asked how gangs fit into the current crime problem P.S. responded, “From
the media and from what I understand, it‟s a large population of people that get involved




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with gangs, get involved with crime. Bottom line.” She also stated she would return a
guilty verdict if she felt the prosecutor had met the reasonable doubt standard.

Peremptory Challenge of P.S.

       The prosecution exercised its fourth peremptory challenge to excuse P.S. Defense
counsel objected claiming the prosecutor had only dismissed P.S. based on her last name.
The trial court found the defense had established a “prima facie case” of an inference of
discriminatory purpose because P.S. had “a Hispanic last name,” and asked the
prosecution to explain the basis for the challenge.
       The prosecutor stated he excused P.S. because (1) she was not a long-term resident
of the county, (2) she was a Department of Corrections advocate and a licensed clinical
social worker who dealt with constitutional level of care as noted in Question 18 on the
jury questionnaire, and (3) based on certain other questionnaire responses, specifically
Question 35 (that everyone deserves the right to fair trial due to possible human error and
potential wrongful convictions), and Question 40 (that a person may swear to tell the
truth but nevertheless lie under oath because they may actually believe an event occurred
in a certain manner even though they are mistaken). Defense counsel responded that the
prosecutor did not ask P.S. about any of those topics and that his concerns were “non
issues.” After considering the prosecutor‟s justifications and defense counsel‟s response,
the trial court denied the Batson/Wheeler motion finding the prosecutor dismissed P.S.
because of valid, race-neutral reasons.

                                          DISCUSSION
                                              I
                                  Batson/Wheeler Motion
       Both the federal and California Constitutions prohibit counsel from using
peremptory challenges to exclude prospective jurors based on race. (Batson, supra, 476
U.S. at p. 97); Wheeler, supra, 22 Cal.3d at pp. 276-277.) “Doing so violates both the


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equal protection clause of the United States Constitution and the right to trial by a jury
drawn from a representative cross-section of the community under article I, section 16 of
the California Constitution.” (People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix).)
       When a defendant claims a prosecutor used a peremptory challenge to remove a
prospective juror for racial reasons, courts engage in a three-part analysis. A defendant
must first make a prima facie case by demonstrating that the facts give rise to an
inference of discriminatory purpose. If that showing is made, the burden next shifts to
the prosecution to explain its challenge on the basis of permissible, race-neutral
justifications. If such an explanation is offered, the trial court then must decide whether
the defendant has established purposeful racial discrimination. (Johnson v. California
(2005) 545 U.S. 162, 168 [162 L.Ed.2d 129]; Batson, supra, 476 U.S. at pp. 93-94;
Wheeler, supra, 22 Cal.3d at pp. 280-281; see also People v. Thomas (2011) 51 Cal.4th
449, 473 (Thomas).)
       Because the trial court found the defendant established a prima facie inference of a
discriminatory purpose and the prosecutor gave reasons for his peremptory challenge, we
proceed directly to the second and third steps of the Batson/Wheeler analysis and
determine whether the trial court erred in concluding the proffered reasons were
nondiscriminatory. (See People v. Zambrano (2007) 41 Cal.4th 1082, 1106, disapproved
on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see also
Thomas, supra, 51 Cal.4th at p. 474.)
       “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.]” (Lenix, supra, 44 Cal.4th at
p. 613.) A prospective juror may be excused for any number of reasons, including “facial
expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons.” (Ibid.)



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       “ „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.]” (Lenix, supra, 44 Cal.4th at pp. 613-614.)
“ „The trial court‟s determination is a factual one, and as 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” ‟ ” when they are supported by
substantial evidence. [Citation.]‟ [Citation.]” (Thomas, supra, 51 Cal.4th at p. 474.)
       In essence, the issue is whether the trial court finds the prosecutor‟s explanation to
be credible, based on factors such as the reasonableness of the explanation, the
prosecutor‟s demeanor, and the trial court‟s own observations of the voir dire. (Lenix,
supra, 44 Cal. 4th at p. 613.) Credibility can also be measured by “ „whether the
proffered rationale has some basis in accepted trial strategy.‟ ” (Ibid.)
       According to defendant, the prosecutor improperly used a peremptory challenge to
excuse P.S. because she had a Hispanic surname and the trial court erred in accepting the
proffered nondiscriminatory reasons for this challenge. We find no error.
       The record supports the trial court‟s conclusion that the prosecution dismissed P.S.
for race-neutral factors. P.S. had an educational background in psychology and was a
licensed clinical social worker. She also worked for the Department of Corrections as a
hospice social worker in its compassionate release program for prison inmates. Excusing
a prospective juror based on his or her professional background, especially in psychology
or social work, does not run afoul of the Batson/Wheeler rules and has been
acknowledged by other courts as an acceptable trial strategy. (See, e.g., People v. Landry
(1996) 49 Cal.App.4th 785, 790-791 [prosecutor properly challenged potential juror
based on psychology background]; see also People v. Barber (1988) 200 Cal.App.3d 378,
394 [juror excused because of profession based on prosecutor‟s belief that kindergarten

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teachers are often liberal and not prosecution oriented]; People v. Granillo (1987) 197
Cal.App.3d 110, 120, fn. 2 [prosecutors often excuse professionals because they believe
professionals are too demanding or look for certainty].) Indeed, in denying the
Batson/Wheeler motion, the trial court noted that because P.S. was “involved in
compassion release of inmates from prison and [was] a licensed clinical social worker . . .
a prosecutor would be very concerned about how she could be much more sympathetic
and make a decision based on emotion rather than on the facts or the law.”
       Moreover, P.S.‟s responses to Questions 35 and 40 on the jury questionnaire
supported the prosecutor‟s implicit concern that P.S. might be sympathetic to the
defendant and less partial to the prosecution in this case. Her responses indicated that she
believed people could be wrongfully convicted, and that although a person testifies under
oath about an event or experience, ultimately he could be mistaken if his testimony is
based on a sincere belief that the event occurred in a particular manner even though in
reality it did not. In other words, a person‟s recollection of an event or experience,
although genuinely believed, could be incorrect. As the prosecutor argued below, the
defense‟s theory of the case, which it intended to and later did support with expert
testimony, was that the defendant was not the shooter and the two eyewitnesses, although
not necessarily lying, were simply mistaken in their observations or recollections. Thus,
the prosecutor‟s implied concerns about P.S.‟s potential sympathetic proclivities towards
the defendant and his theory are amply justified by the record.
       That the prosecutor did not specifically question P.S. on these topics is of little
consequence. (People v. Lewis (2008) 43 Cal.4th 415, 476 [prosecutor‟s failure to
question prospective juror on voir dire did not undermine trial court‟s conclusion that
prosecutor‟s stated reasons for striking her based on her written questionnaire answers
were not pretextual]; People v. Clark (2011) 52 Cal.4th 856, 906-907 [limited
questioning of potential juror not significant where prosecutor reviewed jurors‟
questionnaire answers and was able to observe her responses and demeanor during court

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and group voir dire]; People v. Avila (2006) 38 Cal.4th 491, 530 [prospective juror in
capital case may be discharged for cause based solely on answers to written
questionnaire].) The import of her jury questionnaire responses, especially regarding
convictions of innocent people based on mistaken but sincerely believed testimony--
defendant‟s precise theory of the case--were clear. This potential sympathy towards the
defendant coupled with her profession as a licensed clinical social worker who worked
for the compassionate release of prisoners provide substantial evidence to support the
trial court‟s determination that the prosecutor struck P.S. based on valid, race-neutral
reasons. Thus, the trial court did not err in denying defendant‟s Batson/Wheeler motion.
                                              II
                                 Restitution Fee Surcharge
       Defendant contends the 10 percent surcharge added to the $200 restitution fine
imposed pursuant to section 1202.4 is unauthorized and must be stricken.
       Section 1202.4, subdivision (a)(3)(A) provides, in relevant part, that a court “shall
order” a defendant convicted of a crime to pay “[a] restitution fine in accordance with
subdivision (b)” of that section. Subdivision (b), in turn, provides “[i]n every case where
a person is convicted of a crime, the court shall impose a separate and additional
restitution fine, unless it finds compelling and extraordinary reasons for not doing so and
states those reasons on the record.” (§ 1202.4, subd. (b).) And subdivision (l) of section
1202.4 provides: “At its discretion, the board of supervisors of a county may impose a
fee to cover the actual administrative cost of collecting the restitution fine, not to exceed
10 percent of the amount ordered to be paid, to be added to the restitution fine and
included in the order of the court, the proceeds of which shall be deposited in the general
fund of the county.” (§ 1202.4, subd. (l).)
       In this case, following defendant‟s conviction the trial court imposed a “restitution
fine” of $200 pursuant to section 1202.4, subdivision (b). The court also imposed a
10 percent “administrative surcharge” on the “restitution fine,” which a minute order

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characterizes as a “restitution fund collection fee.” Thus, the trial court imposed the
administrative fee to cover the cost of “collecting” the restitution fine. Based on the plain
language of section 1202.4, subdivision (l), which specifically authorizes a 10 percent
collection fee for any imposed restitution fine, the trial court correctly added the 10
percent administrative surcharge to the restitution fine imposed under subdivision (b).
(People v. Robertson (2009) 174 Cal.App.4th 206, 210-211.)
                                             III
                                   Abstract of Judgment
       An appellate court has the inherent power to correct clerical errors in an abstract of
judgment that does not accurately reflect the oral judgments of sentencing courts.
(People v. Mitchell (2001) 26 Cal.4th 181, 185.) For the gang enhancement on the
attempted murder charge, the trial court sentenced the defendant to life in prison with a
minimum parole eligibility date of 15 years, which the trial court stayed pending finality
of the judgment as to the sentence for 15 years to life on count one, the attempted murder
charge. The abstract of judgment does not reflect the sentence on the gang enhancement
allegation on count one, however. The People request that the court correct the abstract
of judgment to reflect the judgment as announced. We will order the abstract corrected.

                                       DISPOSITION
       The judgment is affirmed. The trial court is directed to prepare an amended
abstract of judgment to reflect the term of 15 years to life on the count one gang
enhancement as defined in section 186.22, subd. (b)(1), stayed pending finality of
judgment as to the sentence on count one and to forward a copy of the corrected abstract
of judgment to the Department of Corrections and Rehabilitation.




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                                    HULL   , J.



We concur:



     BLEASE   , Acting P. J.



     MAURO    , J.




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