NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgement of the Superior Court of Los Angeles County. Olivia Rosales, Judge. Conditionally reversed.

Berangere Allen-Blaine, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

A jury convicted Jeffrey Ardonal Johnson of first degree murder. On appeal, he argues the trial court erred in denying his Batson/Wheeler motion.[1] He also contends he was entitled to a new trial because the jury foreperson committed misconduct by providing the other jurors with an erroneous definition of intent. Alternatively, he argues the court should have granted his motion to disclose juror information so he could obtain admissible evidence of misconduct by the foreperson. We agree with Johnson that the court abused its discretion by denying his motion to disclose juror information. Accordingly, we conditionally reverse the judgment pending further proceedings on the issue. We affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

1. The prosecution’s case

The People filed an information charging Johnson with the murder of Maurice Elston (Pen. Code, § 187, subd. (a)).[2] The People further alleged that Johnson used a deadly and dangerous weapon during the commission of the offense (§ 12022, subd. (b)(1)).

At trial, the People presented evidence showing Johnson’s son, Jeffrey Johnson Jr., was in a relationship with Elston’s sister, Aubrianna Elston.[3] Jeffrey Jr. and Aubrianna had two children together.

Sometime in 2014, Aubrianna was living with Johnson and his family. Aubrianna had a fight with Jeffrey Jr. and decided to move out of Johnson’s home. Elston went to get Aubrianna’s belongings and had a verbal argument with Johnson and his family members.

On January 27, 2018, Aubrianna’s family members, including Elston, helped her move into the same apartment complex where Johnson lived with his family. Johnson knocked on Aubrianna’s door, and Elston answered. Johnson asked to speak with Aubrianna, but Elston claimed she was busy and Johnson could talk to him. Johnson appeared to be enraged and left.

Some time later, Aubrianna and her family members started walking to the apartment’s parking garage. Jeffrey Jr. appeared and grabbed his son from Aubrianna’s aunt. Aubrianna and her family members followed Jeffrey Jr. into the garage, where Johnson and his family members were waiting. Aubrianna and Jeffrey Jr. started hitting each other, and a fight broke out among the other family members.

Jeffrey Jr. started fighting Elston, and Johnson joined his son. At some point, Elston said, “You stabbed me,” and Jeffrey Jr. responded, “That’s what the fuck you get.” Johnson picked up a knife off the ground, got in his car, and drove away. Elston suffered a six-inch knife wound to his abdomen, which was fatal.

About an hour or two after the fight, Johnson returned to the apartment building and the police detained him. Johnson told one of the officers he acted in self-defense and the knife was in his apartment. The police found a knife in the kitchen sink, but there was no blood on it.

During an interview with detectives the next day, Johnson said he went to Aubrianna’s apartment to tell her to call Jeffrey Jr. Elston answered the door and said she was busy. Johnson thought Elston was trying to intimidate him. Johnson went back to his apartment to relax, but he was paranoid that Elston might come to his door. He grabbed a kitchen knife and put it into his back pocket.

Some time later, Johnson went to the parking garage to help his daughters get their belongings and children out of a car. Jeffrey Jr. walked into the garage holding his baby, and Aubrianna and her family members followed him. Aubrianna and her family members tried to take the baby from Jeffrey Jr., and Johnson’s daughters moved in to “break it up.” Elston grabbed one of Johnson’s daughters and slammed her against a gate.

Johnson hugged Elston from behind and tried to pull him off his daughter. Elston, who was bigger and stronger than Johnson, grabbed him by his shirt collar and started to “chok[e]” him. Johnson was scared and stabbed Elston one time. He did not try to stab deep—only enough to get Elston off him. Elston then threw Johnson to the ground.

Johnson walked back to his apartment, and on the way he realized Elston was Aubrianna’s brother. Johnson washed the knife and threw it in the kitchen sink. He drove off in his car so he could think.

A detective who interviewed Johnson did not see any indication on his body that he had been choked. Nor did the detective see any injuries on Johnson’s hands.

2. The defense’s case

Johnson presented evidence that Elston acted aggressively and tried to force his way into Johnson’s home during their encounter in 2014. He also presented evidence that Elston attacked his daughter, Latrina Sibley, in the parking garage. Johnson pulled Elston off Sibley. Aubrianna’s mother then attacked Sibley and punched Johnson’s other daughter in the head.

3. Deliberations, verdict, and sentencing

While deliberating, the jury requested the court provide the legal definitions of intent, first degree murder, and second degree murder. The jury also requested copies of the PowerPoint presentations the parties used during closing arguments. The court directed the jury to its prior instructions on murder and refused its request for the PowerPoint presentations.

The jury found Johnson guilty of first degree murder and found true the weapon allegation. The court sentenced him to 25 years to life for the murder plus one year for the weapon enhancement.

Johnson timely appealed.

DISCUSSION

1. Johnson’s Batson/Wheeler motion

a. Voir dire

In response to questioning by Judge John Torribio during voir dire, Juror No. 6571 revealed his brother and cousin had been prosecuted for killing the juror’s aunt. The juror did not believe his brother and cousin, who were juveniles at the time, were treated fairly by the system. He explained that the police refused their request to have a lawyer and family member be present with them. His brother was sentenced to 25 years to life. The juror said that, despite his feelings about the system’s treatment of his family members, he could be fair in this trial.

At some point during voir dire, Judge Olivia Rosales took over for Judge Torribio because he felt ill. In front of Judge Rosales, Juror No. 6571 answered the court’s standard questions as follows: “I live in South Gate. I am a service associate at Walmart. I am single. And I have no experience on a jury.”

The prosecutor later used her second peremptory challenge to request the court excuse Juror No. 6571. Defense counsel then made a Batson/Wheeler motion on the basis that the juror was “one of two black males that we’ve got in the entire venire.” The court said the juror appeared to be Latino, and the prosecutor agreed. Defense counsel responded that she and Johnson believed he was African American and there were no “grounds for his excusal. He works at Walmart. He is in service, works in the service department at Walmart. From South Gate. That’s really all he has gone into.”

The court found Johnson had not made a prima facie case that the prosecutor used her peremptory challenge based on the juror’s race. The court then allowed the prosecutor to make a record. The prosecutor said she used her peremptory challenge because of the juror’s statements regarding his family members’ experiences with law enforcement. The court excused the juror without commenting on the prosecutor’s reasons.

After the jury reached its verdict, Johnson filed a motion for new trial on the basis that the court erred by finding he did not make a prima facie case under Batson/Wheeler. He again argued that he is a Black man and the excused juror was one of two Black men in the venire. He also pointed out that the only other facts known to the court when it decided the initial motion were that the juror worked at Walmart, was single, and lived in South Gate. He argued the prosecutor’s stated reasons for excusing the juror could not have factored into the court’s decision because they were elicited while Judge Torribio was presiding over the trial.

At the hearing on the motion, the court said it still believed the juror was Latino, but acknowledged it was possible he was “Afro-Latino” and “partially black.” The court noted, however, that it was the prosecutor’s perception that mattered. The court then said the prosecutor “stated her non-discriminatory basis for exercising that peremptory. And given the total . . . record and the relevant facts, I do not find . . . any evidence that the peremptory was exercised on a discriminatory basis. So the court does not find error in that . . . and did not find a prima facie case.”

b. Johnson did not make a prima facie case of discrimination

Johnson contends the trial court erroneously denied his Batson/Wheeler motion.

In Wheeler, supra, 22 Cal.3d 258, the California Supreme Court “ ‘held that the use of peremptory challenges by a prosecutor to strike prospective jurors on the basis of group membership violates the right of a criminal defendant 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. Catlin (2001) 26 Cal.4th 81, 116.) Eight years later in Batson, supra, 476 U.S. 79, “ ‘the United States Supreme Court held that such a practice violates, inter alia, the defendant’s right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution.’ ” (Catlin, at p. 116.)

When a party makes a Batson/Wheeler motion, the trial court and counsel must follow a three-step process. “ ‘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.] Third, “f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ ” ([i]People v. Avila (2006) 38 Cal.4th 491, 541, citing Johnson v. California (2005) 545 U.S. 162, 168.)

“ ‘ “[W]hen a trial court denies a Wheeler motion without finding a prima facie case of group bias the reviewing court considers the entire record of voir dire. [Citations.] As with other findings of fact, we examine the record for evidence to support the trial court’s ruling. Because Wheeler motions call upon trial judges’ personal observations, we view their rulings with ‘considerable deference’ on appeal. [Citations.] If the record ‘suggests grounds upon which the prosecutor might reasonably have challenged’ the jurors in question, we affirm. [Citation.]” ’ ” (People v. Crittenden (1994) 9 Cal.4th 83, 116–117; see People v. Scott (2015) 61 Cal.4th 363, 384 (Scott).)

Johnson contends the trial court erred in finding he failed to make a prima facie case of discrimination. The entire basis for his challenge is that he is a Black man, and the prosecutor used a peremptory challenge to excuse one of only two Black men in the venire. Such circumstances alone, however, do not give rise to an inference of discriminatory intent. In People v. Parker (2017) 2 Cal.5th 1184, for example, an African-American defendant made a Batson/Wheeler motion based on the fact that the prosecutor struck the only two African-Americans from the jury pool. (Id. at pp. 1206, 1212.) In affirming the trial court’s denial of the motion, the Supreme Court explained that, although the exclusion of a single prospective juror could be the product of an improper group bias, “ ‘ “[t]he small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible.” ’ ” (Id. at pp. 1212–1213.) Here, there is even less of a basis for an inference of discrimination given the prosecutor struck fewer than all the Black prospective jurors.

The record also reveals a compelling race-neutral reason to excuse Juror No. 6571. (See Scott, supra, 61 Cal.4th at p. 385 [when deciding whether a prima facie case of discrimination exists, a reviewing court may consider race-neutral reasons for a peremptory challenge that are apparent from and clearly established in the record].) In response to Judge Torribio’s questions, the juror said he believed his brother and cousin were mistreated by law enforcement after being charged with killing his aunt. Our Supreme Court has “recognized a relative’s negative experiences with law enforcement as a race-neutral hypothetical reason for a strike that dispels any inference of discriminatory intent.” (People v. Reed (2018) 4 Cal.5th 989, 1001; see People v. Booker (2011) 51 Cal.4th 141, 167, fn. 13 [“A negative experience with the criminal justice system is a valid neutral reason for a peremptory challenge.”].)

Johnson seems to suggest we may not consider the juror’s responses to Judge Torribio’s questions because they were not known to Judge Rosales when she denied his original motion. Johnson overlooks that Judge Rosales was aware of the responses when she considered and rejected his motion for new trial. In any event, on review, we must consider the entire record of voir dire at the point when Johnson made his challenge, which includes the juror’s responses to Judge Torribio’s questions. On this record, Johnson has not established a prima facie case of discrimination.[4]

2. Johnson’s juror misconduct motions

a. Post-verdict proceedings

After trial, Johnson filed a motion to unseal identifying information of the empaneled jurors. Johnson argued the information was necessary so he could obtain evidence favorable to him in a motion for new trial.

Johnson attached to the motion a declaration from his counsel that recounted her conversation with the jury foreperson after trial. According to counsel’s declaration, the foreperson said the jurors were split, nine to three, on whether Johnson intended to kill Elston. The foreperson “then explained that she had some training and experience in the law, and . . . she advised the three hold-outs that ‘intent’ had a different meaning under the law than it does in ‘real life.’ She said she provided the hold-outs with the following analogy: if a person leaves their purse in the middle of the room but does not intend to cause someone to trip on it, they may not have intent to cause someone to trip in real life, but under the law they do because they should not have left their purse in the middle of the room. After providing this analogy, the three hold-outs changed their votes to guilty.”

Defense counsel said she asked the foreperson for her contact information so an investigator could talk to her. The prosecutor, who was present during the conversation, objected and said it was not appropriate for an investigator to interview the foreperson. The foreperson responded that she did not want to get “in the middle of things” and declined to speak further.

The prosecutor opposed Johnson’s motion on the basis that he failed to establish a prima facie case of good cause for the release of juror information. The prosecutor included in the opposition brief her recollection of the conversation with the foreperson. According to the prosecutor, the “foreperson stated that the issue of intent came up when [the jurors] were deciding between first and second-degree murder. . . . [T]he foreperson did not tell the defense and the prosecution that there were 3 hold-outs for Not Guilty. . . . The foreperson did discuss an example being brought forth during deliberations to explain intent but it did not evince any issues of misconduct. In none of her statements to counsel did it appear that any of the jurors engaged in any misconduct. It appeared to the People from this brief discussion with the foreperson that all the jurors deliberated thoughtfully.”

The court denied Johnson’s motion after finding defense counsel’s declaration did not show “misconduct that would rise to the level of good cause for disclosing” the jurors’ information. The court noted the foreperson’s comments were “something that jurors may do in [the jury room], but it doesn’t mean that the rest of [the jurors] followed . . . .” The court also noted the jurors requested the definitions of intent and murder, they returned their verdict shortly after receiving the court’s response, there is no evidence the jurors were confused by the court’s instructions, and there is a presumption that the jurors followed those instructions.

After the court denied Johnson’s motion to unseal juror information, he moved for a new trial based on juror misconduct. Johnson argued the foreperson committed misconduct when she “drew on her prior legal training to provide the jurors with an inaccurate definition of intent that likened specific intent to negligence.” Johnson alternatively asked the court to reconsider his motion to unseal juror information so he could interview the jurors regarding the extent of the misconduct.

The prosecutor urged the court to reject Johnson’s motion because it was supported only by his counsel’s statements, which are hearsay. In passing, the prosecutor also argued there was no prejudice.

The court concluded Johnson failed to show juror misconduct and denied his motion on that basis. The court explained that, even if it accepted defense counsel’s recounting of the conversation with the foreperson, there is no evidence showing when the foreperson made her comments, whether the other jurors listened to her, whether they were swayed by her comments, or whether they based their verdict on her statements. The court also noted the jurors reached their verdict shortly after it directed them to the relevant jury instructions on murder and intent. The court did not decide whether Johnson’s evidence was admissible; nor did it explicitly consider whether any misconduct was prejudicial.

b. Johnson did not submit admissible evidence of juror misconduct in connection with his motion for new trial

Johnson suggests the trial court should have granted his motion for new trial because the jury foreperson engaged in prejudicial misconduct.

“ ‘When a party seeks a new trial based upon jury misconduct, a court must undertake a three-step inquiry. The court must first determine whether the affidavits supporting the motion are admissible. (See Evid. Code, § 1150, subd. (a).) If the evidence is admissible, the court must then consider whether the facts establish misconduct. [Citation.] Finally, assuming misconduct, the court must determine whether the misconduct was prejudicial. [Citations.] A trial court has broad discretion in ruling on each of these questions and its rulings will not be disturbed absent a clear abuse of discretion.’ ” (People v. Bryant (2011) 191 Cal.App.4th 1457, 1467 (Bryant).)

The Attorney General does not defend the trial court’s stated reasons for denying Johnson’s motion, and for good reason. To the extent the factors the court cited were relevant, they went to the issue of prejudice. The court, however, never explicitly reached that issue. Instead, it concluded defense counsel’s declaration did not describe juror misconduct. As we discuss in the next section, that finding was erroneous.

Moreover, even if the trial court implicitly found there was no prejudice, its remarks at the hearing suggest it based that decision on improper factors. The court noted, for example, the lack of evidence showing the jurors were swayed by the foreperson’s comments or relied on them in reaching their verdict. Johnson, however, was not permitted to submit evidence of the jurors’ internal thought processes. (See Evid. Code, § 1150; In re Manriquez (2018) 5 Cal.5th 785, 799 [“ ‘Evidence of a juror’s mental process—how the juror reached a particular verdict, the effect of evidence or argument on the juror’s decisionmaking—is inadmissible.’ ”].) The court, therefore, erred to the extent it denied Johnson’s motion based on the lack of such evidence.

Nevertheless, the Attorney General urges us to affirm because Johnson failed to support his motion with sworn affidavits from the jurors. Although the court did not deny Johnson’s motion for this reason, we may affirm on any correct basis presented by the record. (People v. Perkins (2016) 244 Cal.App.4th 129, 139.)

“It is settled . . . that ‘a jury verdict may not be impeached by hearsay affidavits.’ ” (People v. Williams (1988) 45 Cal.3d 1268, 1318, abrogated on other grounds as noted in People v. Diaz (2015) 60 Cal.4th 1176, 1190.) As a result, “California courts have consistently held that properly executed juror affidavits are required to establish jury misconduct.” (Bryant, supra, 191 Cal.App.4th at p. 1468.) Here, Johnson did not submit any juror affidavits in support of his motion for new trial. Instead, he relied entirely on his counsel’s declaration recounting her conversation with the foreperson, which is inadmissible hearsay to the extent it was used to show what occurred in the jury room. Johnson, therefore, failed to meet his burden of producing admissible evidence of misconduct, and the court properly denied his motion for new trial.

c. Johnson showed good cause to unseal juror information

Johnson alternatively argues the trial court abused its discretion by denying his motion to unseal juror information.[5] He insists the information was necessary so he could obtain admissible evidence to support his motion for new trial.

After the recording of a jury’s verdict in a criminal trial, the court must seal “personal juror identifying information” such as jurors’ names, addresses, and telephone numbers. (Code Civ. Proc., § 237, subd. (a)(2); People v. Munoz (2019) 31 Cal.App.5th 143, 165.) A defendant may petition the court for access to the juror information by making a “ ‘prima facie showing of good cause for [its] release.’ ” (Munoz, at p. 165.) “If the trial court finds that the moving party has made a prima facie showing of good cause, and if it finds no compelling interest against disclosure, it must set the matter for hearing. (Code Civ. Proc., § 237, subd. (b).) The trial jurors are entitled to notice, an opportunity to object to disclosure, and an opportunity to appear [at the hearing]. (Code Civ. Proc., § 237, subd. (c).) [¶] If none of the jurors object, the trial court must grant disclosure. However, if a juror is unwilling to be contacted, the trial court must deny disclosure. (Code Civ. Proc., § 237, subd. (d).)” (People v. Johnson (2013) 222 Cal.App.4th 486, 492 (Johnson).) We review a trial court’s denial of a motion to disclose juror information for an abuse of discretion. (Ibid.)

A defendant establishes good cause for the disclosure of juror information by showing “that talking to the jurors is reasonably likely to produce admissible evidence of juror misconduct.” (Johnson, supra, 222 Cal.App.4th at p. 493.) A juror commits misconduct by introducing into the jury room extraneous law; that is, law not given to the jury by the court. (See In re Stankewitz (1985) 40 Cal.3d 391, 397 (Stankewitz); People v. Marshall (1990) 50 Cal.3d 907, 950 (Marshall).) In Stankewitz, for example, our Supreme Court held a juror committed overt misconduct by erroneously advising the other jurors he knew, based on his experience as a police officer, a robbery takes place as soon as a person forcibly takes personal property from another person, whether or not he intends to keep it. (Stankewitz, at pp. 396, 399–400.) Similarly, in Marshall, the high court held a juror committed misconduct by telling other jurors he knew, based on his background in law enforcement, juvenile records are automatically sealed at 18 years of age. (Marshall, at pp. 949–950.)

Here, Johnson supported his motion with a declaration from defense counsel that revealed similar misconduct by the jury foreperson. According to counsel’s declaration, the foreperson essentially advised the other jurors they only had to find Johnson acted negligently to conclude he had the intent to kill. The foreperson also vouched for her erroneous advisement by disclosing that she had prior legal training and experience. Assuming defense counsel accurately recounted the conversation, and what the foreperson told her is true, the foreperson committed overt misconduct by introducing extraneous and erroneous law into the jury room. (See Marshall, supra, 50 Cal.3d at pp. 949–950; Stankewitz, supra, 40 Cal.3d at pp. 397, 399–400.)

In light of defense counsel’s declaration, it is reasonably likely Johnson could obtain admissible evidence of misconduct if he were to interview the jurors. Johnson, therefore, made a prima facie showing of good cause for the release of juror information, and the court abused its discretion by failing to conduct a hearing under Code of Civil Procedure section 237, subdivision (c).[6]

The Attorney General suggests defense counsel’s declaration is insufficient to establish good cause because it is hearsay. A defendant, however, is not required to introduce admissible evidence of juror misconduct in order to establish good cause for the disclosure of juror information. (Johnson, supra, 222 Cal.App.4th at p. 493.) In Johnson, for example, the court held a defendant established good cause by submitting a declaration from his stepfather recounting a conversation with jurors in which they revealed misconduct during deliberations. (Id. at pp. 490–491.) In rejecting the argument that the declaration was inadmissible hearsay, the court explained that “[t]he whole point of moving for the disclosure of jurors’ identifying information is to talk to the jurors; and the whole point of talking to the jurors is to obtain evidence of juror misconduct that will support a motion for new trial. The only people who can testify of their own personal knowledge about what happened in the jury room are the jurors themselves. Thus, it would be absurd to require a defendant seeking disclosure to introduce, at that preliminary stage, admissible evidence that juror misconduct actually occurred.” (Id. at p. 493.) We agree.

The Attorney General alternatively argues Johnson failed to show good cause because defense counsel and the prosecutor gave differing accounts of their conversation with the foreperson. According to the Attorney General, the trial court could have credited the prosecutor’s version of events and found there was no misconduct. Under Code of Civil Procedure section 237, however, the defendant is required only to make a prima facie showing of good cause before the court must set a hearing.[7] (Code Civ. Proc., § 237, subd. (b).) The court does not weigh evidence or make credibility determinations when deciding that issue. (People v. Johnson (2015) 242 Cal.App.4th 1155, 1164; see People v. Harris (2021) 60 Cal.App.5th 939, 958 [“in evaluating whether a petitioner has made a prima facie showing he or she is entitled to relief[ ]the superior court cannot engage in factfinding”].) The trial court, therefore, could not rely on the prosecutor’s version of events to find Johnson failed to show good cause.

Regardless, the prosecutor’s version of events did not refute the factual assertions in defense counsel’s declaration. The prosecutor, in fact, acknowledged the foreperson said she discussed an “example . . . during deliberations to explain intent.” Rather than describe the example, the prosecutor simply claimed it “did not evince any issues of misconduct. In none of [the foreperson’s] statements to counsel did it appear that any of the jurors engaged in any misconduct.” Such conclusory statements are not sufficient to rebut Johnson’s showing.

We also reject the Attorney General’s contention that the disclosure of juror information would be futile given the foreperson already indicated she did not want to speak with a defense investigator. According to defense counsel, the foreperson declined to speak with an investigator only after the prosecutor told her it would be inappropriate to do so. There is nothing inherently improper about a juror talking to a defense investigator, and the prosecutor should not have made that remark. There is a reasonable possibility the foreperson would change her mind if properly instructed by the court.

In any event, the Attorney General overlooks that Johnson sought information for all the empaneled jurors, not just the foreperson. The other jurors have personal knowledge of what the foreperson said in the jury room. Therefore, even if the foreperson declines to be interviewed, it is reasonably likely Johnson could obtain admissible evidence of misconduct from those jurors.

3. We reject Johnson’s cumulative error contention

Johnson argues the cumulative effect of the Batson/ Wheeler error and juror misconduct deprived him of a fair trial and requires reversal of his conviction. As discussed above, Johnson has not shown Batson/Wheeler error or juror misconduct. Accordingly, we reject his argument that cumulative error requires reversal.

DISPOSITION

The judgment is conditionally reversed. On remand, the court shall set a hearing in accordance with Code of Civil Procedure section 237 to consider whether to disclose juror information. If, after the hearing, the court declines to do so, it shall reimpose the original sentence. If the court instead discloses juror information, it shall provide Johnson a reasonable amount of time to file a motion for new trial. If Johnson does not timely file a motion for new trial, or if the court denies his motion, the court shall reimpose the original sentence. The judgment is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

[1] Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).

[2] Undesignated statutory references are to the Penal Code.

[3] We refer to some of the witnesses by their first names for the sake of clarity. We mean no disrespect.

[4] For the first time in his reply brief, Johnson argues the trial court improperly based its prima facie ruling on its belief, shared by the prosecutor, that the juror was Latino. According to Johnson, the court’s reasoning was faulty because being Latino and Black are not mutually exclusive. Johnson forfeited the issue by failing to raise it in his opening brief. (See People v. Rangel (2016) 62 Cal.4th 1192, 1218 [a defendant forfeited an argument initially raised for the first time in the reply brief].) Accordingly, we decline to consider it.

[5] The Attorney General contends Johnson forfeited this issue because he raised it in two, cursory paragraphs under a subheading related to juror misconduct. (See People v. Williams (1997) 16 Cal.4th 153, 206 [“Points ‘perfunctorily asserted without argument in support’ are not properly raised.”]; Cal. Rules of Court, rule 8.204(a)(1)(B) [appellate briefs must state each point under a separate heading or subheading].) While we agree that Johnson’s briefing is far from ideal, we exercise our discretion to consider the issue on the merits.

[6] The court held a hearing on Johnson’s motion, but there is nothing in the record indicating it provided notice to the jurors and an opportunity to object to the release of their information, as required under Code of Civil Procedure section 237, subdivision (c). Instead, the court only considered whether Johnson made a prima facie showing of good cause for the release of juror information.

[7] The court need not set a hearing if it finds there is a compelling interest against disclosure. (Code Civ. Proc., § 237, subd. (b).) The Attorney General does not contend such a compelling interest exists here, nor have we found any indication of one in the record.

NOT TO BE PUBLISHED IN THE 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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County, Alan Z. Yudkowsky, Judge. Affirmed in part and reversed in part with direction.

Tracy L. Emblem and Julie Caleca, under appointment by the Court of Appeal, for Plaintiff and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

After Norman Valladares rear-ended another vehicle on Highway 14, he was convicted of felony driving under the influence of alcohol (Veh. Code, § 23152, subd. (a))[1] and misdemeanor possession of an open container while driving (§ 23222, subd. (a).) Appellant admitted the allegation that he had refused a chemical test within the meaning of section 23612. The trial court sentenced appellant to three years in prison, but suspended 18 months of the sentence and ordered that portion to be served under mandatory supervision.[2]

Appellant appeals, contending the trial court erred in denying his Batson-Wheeler[3] motion without performing a comparative analysis of the dismissed female Hispanic juror with jurors who remained on the panel. He also contends the trial court erred in denying his motion for mistrial after improper statistical evidence was offered by a California Highway Patrol (CHP) officer on improperly permitted re-direct examination. Appellant further contends the trial court erred in informing the jury it had taken judicial notice of appellant’s admission, made outside the presence of the jury, of the allegation that he had refused a chemical test, and further erred in denying his motion to re-open closing argument to address this issue with the jury. Appellant asks that we independently review the in camera record of the Pitchess[4] hearing, and we have done so. Finally, appellant contends, and respondent agrees, that appellant never admitted the prior conviction for driving under the influence. We agree as well. We vacate the sentence in this matter and remand it for a court trial on the prior conviction allegations,[5] as appellant previously waived his right to a jury trial on the allegations. We affirm the judgment of conviction in all other respects.

BACKGROUND

On January 3, 2019, about 10:40 p.m., Cherisa Edwards was driving her Nissan Murano on Highway 14 when she noticed traffic merging due to construction on the road ahead. As she slowed down and tried to merge with other traffic, she was hit from behind by appellant’s black SUV. Appellant later explained that he applied his brakes but they locked up and he was unable to stop soon enough to avoid the collision. The collision generated enough force to deploy the airbags in appellant’s vehicle, which caused abrasions on his arms.

Edwards called 911 to report the accident. CHP Officers Veliz and Chapman, who had been working in the construction area, arrived at the scene in about five minutes. Both Edwards’s and appellant’s vehicles were in the middle lane and were blocking traffic. When the officers approached appellant’s vehicle, Officer Veliz noticed a large quantity of beer cans inside the rear storage area. Officer Chapman determined the vehicle was inoperable and told appellant to walk to an area on the median.

CHP Officer Mark Recalde and his partner arrived at the scene before appellant’s vehicle was moved. After their patrol car was parked, Officer Veliz told Officer Recalde that he had observed beer cans in appellant’s SUV. Officer Recalde joined appellant, who was in the center median, and spoke with him about the accident. He initially spoke with appellant in a mixture of Spanish and English, and his recording device was not activated at that time.

Appellant told Officer Recalde he was driving home from his job in Burbank. Officer Recalde described appellant as nervous and standoffish, with poor balance, mumbled speech, and red and watery eyes. At the preliminary hearing, the officer testified he first smelled alcohol when appellant was inside his vehicle looking for his registration and insurance. At trial, the officer testified he smelled an odor of alcohol on appellant from several feet away.

Officer Recalde began to question appellant about the amount of alcohol he had consumed. At this point, the officer’s recording device was on. According to Officer Recalde, appellant said he had not had any alcohol that day, but had had eight beers the day before. He last ate about three hours before the collision, when he had a sandwich. Appellant explained the beer cans in his vehicle were to be recycled. There were some discrepancies between Officer Recalde’s account of the discussion and the transcript: Officer Recalde testified appellant said he never drank beer and was not taking any prescription medication, but these statements do not appear in the transcript of the officer’s recording.

Officer Recalde asked appellant to perform a series of field sobriety tests. The tests were conducted about 150 feet from the officer’s patrol car and were not recorded by the car’s video camera, although there was an audio recording of the tests. Officer Recalde described the tests in his trial testimony.

Officer Recalde first administered the horizontal gaze nystagmus (HGN) test, which involved an observation of appellant’s eye movements for nystagmus under three different conditions. Recalde testified that he observed six out of six possible “clues” from the test. Officer Recalde testified appellant’s performance was consistent with being impaired by alcohol.

Officer Recalde also asked appellant to perform a one-leg stand test. This test involved appellant standing with heels and toes together with his arms at his side, raising one leg six inches off the ground and holding it while Officer Recalde counted until the officer told him to stop. Appellant tried to perform the test twice. Both times, he swayed and put his foot down after two seconds. Officer Recalde testified appellant’s performance was consistent with being impaired by alcohol.

Officer Recalde additionally asked appellant to perform a walk and turn test, which involved walking heel to toe on an imaginary line. Appellant attempted to get into the starting position for this test but could not. He lost his balance “numerous” times. When Officer Recalde asked appellant if he was okay, appellant replied that he was nervous. Officer Recalde then offered appellant the option of another test, which involved counting by using his fingers. The officer testified appellant appeared to have difficulty understanding the instructions for the test, but was able to perform the test well after two or three tries. Officer Recalde testified appellant’s performance was consistent with being impaired by alcohol.

Officer Recalde offered appellant the opportunity to take a preliminary alcohol screening test and told him he could refuse the test.[6] Appellant refused. “Due to the [appellant] being involved in a traffic collision, [the officer’s] observations of being under the influence of alcohol, his odor, his inability to balance on his feet, and his poor performance on the field sobriety tests,” Officer Recalde concluded appellant was under the influence of alcohol and arrested him. After placing appellant in a patrol car, the officer informed appellant that the law required him to submit to a chemical test due to his arrest, but appellant could refuse the test. Appellant refused and asked for a lawyer.

After defense counsel cross-examined Officer Recalde, the trial court permitted the prosecutor to question Officer Recalde on re-direct examination about the statistical reliability of the field sobriety tests.

Appellant did not call any witnesses.

DISCUSSION

A. The Trial Court Did Not Err in Denying the Batson-Wheeler Motion.

After the prosecutor used consecutive peremptory challenges to dismiss two male Hispanic jurors and one female Hispanic juror, defense counsel made a Batson-Wheeler motion. The trial court found appellant had made a prima facie case of racial discrimination, but ultimately denied the motion. Appellant contends the trial court erred because it denied the motion without engaging in comparative analysis, and such analysis would show that the prosecutor’s reasons for dismissing prospective Juror No. 3, the female Hispanic juror, were pretextual. We do not agree.

“Both the federal and state Constitutions prohibit any advocate’s use of peremptory challenges to exclude prospective jurors based on race. [Citations.] Doing so violates both the 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.)

“ ‘There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination.’ [Citation.] ‘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.] “The ultimate burden of persuasion regarding [discriminatory] motivation rests with, and never shifts from, the [defendant].” ’ ” (People v. Parker (2017) 2 Cal.5th 1184, 1211.)

Appellant contends that when a prima facie case is found and the prosecutor states his or her reasons for dismissing the juror, “courts are required to apply a comparative analysis.” This is a slight overstatement. “ ‘[E]vidence of comparative juror analysis must be considered in the trial court . . . if relied upon by the defendant[.]’ ” (People v. Gutierrez (2017) 2 Cal.5th 1150, 1174.) If a defendant relies on evidence of comparative jury analysis on appeal, even for the first time, we must consider it if “ ‘the record is adequate to permit the urged comparisons.’ ” (Ibid.) Since appellant did rely on comparative analysis evidence in the trial court and continues to do so on appeal, we consider this claim.

In the trial court, the prosecutor explained she dismissed prospective Juror No. 3 because “basically she has no life experience. She’s younger. She’s never served on a jury. No kids. Lives with her parents. She’s in college. So that’s why I excused her.” Appellant responded that the prosecutor’s reason was pretextual because the prosecutor had not asked the juror’s age and Juror No. 3 was “not even the only college student on the jury, that [prospective] Juror No. 7 is also [a]graduate student.” Counsel stated he was “trying to engage in some comparative juror analysis.”

The trial court ruled: “[T]he issue for the court is whether the reasons are genuine or pretextual; and from what I’m hearing from [the prosecutor], I believe that her justifications are genuine.”

We do not view the trial court’s failure to specifically address this analysis as necessarily indicating the court failed to consider the analysis. The trial court may simply have found it unpersuasive. Regardless, we consider the evidence and do not find it probative of pretext.

We note initially that youth and limited life experience are legitimate race neutral reasons for excusing a juror. (See People v. Lomax (2010) 49 Cal.4th 530, 575; People v. Taylor (2010) 48 Cal.4th 574, 616; People v. Neuman (2009) 176 Cal.App.4th 571, 582 [“young students, inexperienced at life”]; People v. Perez (1994) 29 Cal.App.4th 1313, 1328 [college students with “limited life experience”].)

Appellant contends that Juror No. 7, like Juror No. 3, was a college student with no children and no jury experience and so had limited life experience but was not excused by the prosecution. Appellant also contends for the first time on appeal that the prosecutor’s failure to excuse Jurors Nos. 8923, 3649, 3484 and 3867, who all lacked jury experience, indicates pretext. (See Miller-El v. Dretke (2005) 545 U.S. 231, 248 [when a proffered reason also applies to “other panel members, most of them white, none of them struck, [it] is evidence of pretext.].)

“ ‘As our high court has explained, for a comparative analysis to be probative, a seated juror must have a “ ‘substantially similar combination of responses,’ in all material respects” to an excused juror. [Citation.] “Although jurors need not be completely identical for a comparison to be probative [citation], ‘they must be materially similar in the respects significant to the prosecutor’s stated basis for the challenge.’ ” ’ ” (People v. Henderson (2020) 46 Cal.App.5th 533, 559.)

Juror No. 7 did not share a substantially similar combination of responses with Juror No. 3. Juror No.7 was a graduate student working on his Ph.D. while Juror No. 3 was a college student. Juror No.7, being significantly farther along in his studies, had more life experience than Juror No. 3, and it is reasonable to infer that he was also older than her. Juror No. 7 referred to his father-in-law in one response, showing that he was or had been married, unlike Juror No. 3, again giving him more life experience. Juror No. 3 expressly stated that she lived with her parents, while Juror No. 7 did not. Most significantly, however, Juror No. 7 raised his hand in response to defense counsel’s question if there was anyone who could not be fair, stating that he was unsure if he could be fair in this case because “alcoholism has plagued a lot of members in my family. One of my uncles passed away in 2015, and my father-in-law passed away in September 2018 from liver and kidney failures. So it’s a bit of an emotional response.” This response indicates that Juror No. 7 was likely to be a favorable juror for the prosecution. In fact, after the Batson-Wheeler motion was denied, defense counsel dismissed Juror No. 7.[7]

There is nothing in the record on appeal to indicate the race of the other four prospective jurors identified by appellant. Even assuming for the sake of argument that these jurors were White, they had nothing in common with Juror No. 3 apart from a lack of jury experience. They were all employed (or retired from employment) and married; three of the four had adult or older teen-age children, suggesting they were considerably older than Juror No. 3. In short, they all had a great deal more life experience than Juror No. 3. Thus, the prosecutor’s failure to excuse them is not evidence of pretext.

B. The Trial Court Did Not Err in Denying the Motion for Mistrial.

Appellant contends the trial court erred in denying his motion for a mistrial based on Officer Recalde’s redirect testimony concerning three of the field sobriety tests. He contends the testimony exceeded the scope of cross-examination; Recalde had not been designated as an expert in the area of scientific studies; his testimony lacked foundation and methodology, constituted improper statistical evidence of guilt, and usurped the jury’s ability to evaluate Officer Recalde’s credibility. Appellant further contends the evidence denied him a reasonable opportunity to prepare a defense, including his right to present an expert witness, and violated his right to a fair trial. Appellant contends the error was of constitutional dimensions and not harmless under the Chapman standard of review. (Chapman v. California (1967) 386 U.S. 18, 24.)

The People contend appellant has forfeited many of these contentions by failing to raise them in the trial court. We agree. Appellant’s contentions in the motion for a mistrial were quite narrow: 1) the testimony exceeded the scope of redirect; 2) Officer Recalde had no basis to opine that the tests predicted a specific blood alcohol level (BAC); and 3) lack of discovery hampered his ability to respond to the BAC evidence. Any other claims are forfeited. (See People v. Harris (2013) 57 Cal.4th 804, 849 [failure to raise a specific issue in a motion for mistrial forfeits the issue on appeal].)

We agree Officer Recalde’s testimony about the tests showing a likelihood of a specific BAC was potentially misleading, but find the error harmless even under Chapman, as Officer Recalde unequivocally clarified on recross-examination that he could not determine a subject’s BAC from the tests. Since the prejudice appellant identified from lack of discovery was an inability to defend against claims of a specific BAC, any discovery failure was necessarily harmless.

1. Officer Recalde’s Testimony

On redirect examination, Officer Recalde explained that three of the field sobriety tests which he administered were “scientifically validated.” For each test, there were a certain number of possible “clues” in the subject’s movements which indicated impairment, but not all clues need to be present to show impairment. The prosecutor questioned Officer Recalde about the HGN test, during which Officer Recalde had observed six of six clues, asking: “[W]hat does your background, training and experience tell you as far as the likelihood of impairment in that case?” Defense counsel objected that it was outside the scope of cross-examination, the trial court sustained the objection, and the prosecutor asked to approach for what turned into an unreported bench discussion. Following the discussion, the prosecutor reframed the question to ask: “[W]hat’s the significance of that as far as someone’s level of impairment?” Officer Recalde testified that the significance was that only four of the six clues need to be observed to get “a likelihood” of impairment, and he got all six. He then non-responsively continued: “When . . . the scientifically-validated tests were done, four out of six clues were found and the likelihood of someone being impaired was 88 percent.” Defense counsel did not object or ask that the numbers be stricken.

The prosecutor next turned to the walk and turn test, which appellant did not complete, asking: “s there any significance that you did observe two clues and that he did not – was not able to complete that test?” Officer Recalde replied: “That’s correct.” The prosecutor then asked: “Is there any, like, percentage or likelihood that you have that you based on your background, training and experience would know from that?” Defense counsel objected and asked to approach. Another unreported bench conference followed. Following the discussion, the prosecutor asked: “So please tell me the significance of . . . what you observed in the walk and turn and what happened with the defendant?” Officer Recalde explained that appellant’s inability to perform the test constituted two clues, and that with this combination of factors, “it’s a 79 percent chance or likelihood” of impairment. Defense counsel objected and the trial court began: “Let me caution the witness to –.” The prosecutor then interrupted and asked to approach and be on the record. The parties approached, but the discussion was not reported.

Counsel explained that if he had known about the testimony ahead of time, he would have moved to exclude it pursuant to Evidence Code section 352. Counsel continued, “I don’t think this is a bell that can be unrung. The jury has now heard all of this testimony that supposedly you can tell someone’s B.A.C. just from how many clues they show on certain tests, which I’m not aware of any studies that support that. Just under a [i]Kelly-Frye[8] analysis I don’t think there’s any support in the scientific community to support the proposition.” Counsel added: “I don’t think this can be a fair trial any longer at this point on just basic due process issues, 14th Amendment, without any prior notice of this.”

The prosecutor argued that defense counsel opened the door on cross-examination, the questions were “hypothetical” and “based on the officer’s training and experience what he knows. He never gave an opinion and never suggested what the defendant’s B.A.C. was.” The prosecutor contended Recalde was an expert.

Defense counsel responded that the questions were not hypotheticals and expert opinions are subject to discovery. He also stated: “I know that there are reliability percentages that have been attached to certain of these tests in terms of how reliable they were, but that’s a different issue than to say that you can actually tell someone’s B.A.C. with a particular percentage accuracy based on these tests.”

The trial court ruled: “From the court’s perspective, you did open the door. You challenged the witness’s recollection, his methodology and I believe that counsel has an opportunity to rehabilitate her witness, and you have an opportunity to recross, and I trust that, during recross, you’ll deal with all these issues.”

3. Cross-Examination and Recross

“A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.” (People v. Bolden (2002) 29 Cal.4th 515, 555.)

“ ‘The extent of the redirect examination of a witness is largely within the discretion of the trial court. . . . It is well settled that when a witness is questioned on cross-examination as to matters relevant to the subject of the direct examination but not elicited on that examination, he may be examined on redirect as to such new matter.’ ” (People v. Steele (2002) 27 Cal.4th 1230, 1247–1248.) “Redirect examination’s ‘principal purposes are to explain or rebut adverse testimony or inferences developed on cross-examination, and to rehabilitate a witness whose credibility has been impeached.’ (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 256, p. 328.)” (People v. Cleveland (2004) 32 Cal.4th 704, 746.)

The trial court did not abuse its discretion in finding that appellant opened the door, at least in part, to Officer Recalde’s testimony about statistical evidence concerning the three tests. Defense counsel’s cross-examination questions did suggest that the HGN test was not reliable because the “clues” in that test could be caused by hundreds of physical conditions. Counsel had Officer Recalde demonstrate the one leg test, during which Officer Recalde “wobbled” and put his foot down. Counsel then elicited testimony that Officer Recalde only listed one possible “clue” from this test in his report, and that appellant was shaking and said he was nervous. All of this testimony suggested appellant’s performance on the test was not a reliable indicator of impairment. Counsel also suggested the walk test was not a reliable indicator of impairment because appellant “couldn’t really do [it].” Officer Recalde’s redirect testimony can reasonably be understood as responding to that implication. The essence of his testimony was that studies showed the tests were highly reliable indicators of impairment even when all possible clues for the test were not observed.[9]

Simply because defense counsel opened the door to further testimony on the reliability of the test when only some clues are observed, however, does not mean that any testimony was permissible. In two instances, Officer Recalde testified the tests gave a percentage likelihood that the subject had a blood alcohol content of .08. While the officer may well have intended the use of the .08 number simply to indicate impairment, we agree with appellant it did have the potential to suggest to the jury, incorrectly, that the tests provided specific BAC numbers. (See People v. Joehnk (1995) 35 Cal.App.4th 1488, 1492, 1496 [two prosecution experts agreed blood alcohol levels cannot accurately be estimated based on HGN test].)

We see no reasonable possibility that this potential was realized, however. On recross examination, defense counsel addressed the blood alcohol numbers, asking: “Now, I want to make sure I understand what you were saying correctly, because it almost sounds like you were starting to say just from doing these tests you can determine exactly what someone’s blood alcohol content was.” Officer Recalde replied: “That’s not what I said.” Defense counsel continued: “I just want to make sure it’s clear to the jury that you’re not saying that with these field sobriety tests you can say, oh, this guy is a .06, that guy is a .07, that guy is a .09. [¶] All you can tell is whether there is some basis to believe that they might be impaired?” Officer Recalde replied: “Correct. I cannot determine someone’s exact blood alcohol content. I cannot do that.”

C. The Trial Court Did Not Err in Taking Judicial Notice of Appellant’s Admission That He Refused to Test or in Refusing to Reopen Argument.

Appellant contends the trial court erred in taking judicial notice of his admission of the truth of the section 23612 allegation that he refused a chemical test, and telling the jury it could consider this judicially noticed fact. The admission was made outside the presence of the jury. The prosecutor requested judicial notice of the admission because she wanted to argue appellant’s refusal showed consciousness of guilt. Appellant contends the evidence was not relevant because his admission during trial did not establish his state of mind at the time he refused the test. Appellant also contends the trial court abused its discretion in denying his motion to reopen closing argument after the jury asked a question about the admission.

Respondent contends appellant has forfeited the relevancy claim by failing to raise it in the trial court. We agree. We see no error in the trial court’s denial of appellant’s request to reopen.

1. Relevancy

Appellant contends defense counsel raised the issue when he stated: “We already discussed that whole issue. This just isn’t any matter that’s before them.” He contends that by stating the refusal was not an issue before the jury, his “stated grounds for the objection was that the evidence was not relevant.” This is a very broad objection, and clearly referred to the jury not needing to decide whether the refusal allegation was true or false. As defense counsel went on to explain: “They’re not being asked to decide whether he refused or not, so—” The court replied that it had eliminated the instruction that told the jury to decide whether appellant refused. The court added: “But there is a jury instruction in here that talks about the refusal without asking the jury to . . . determine whether that fact is true or not.” This was an apparent reference to the consciousness of guilt instruction. Defense counsel replied: “Correct. So they’re not being asked to decide the truth of whether he violated the refusal enhancement as such. [The prosecutor] can certainly argue that he refused and refer to the—”

Defense counsel’s objection that the admission was not relevant because the jury did not have to decide the truth of the allegation was in no way sufficient to alert the court or the prosecutor that counsel was contending that an admission during trial was not probative of appellant’s state of mind at the time he refused the test. Accordingly, this claim is forfeited.

2. Reopening

Appellant contends the jury’s question during deliberations about the admission showed that the court’s statement to the jury about his admission confused the jury, and the court abused its discretion in refusing appellant’s request to reopen closing argument to address the legal significance of the admission.

The jury’s note requested: “Verification of what happened in court on Feb. 28th, 2020 with Mr. Valladaresviera & the court.” The court replied: “The defendant admitted to willfully refusing a peace officer’s request to submit to the chemical test pursuant to the Vehicle Code. [¶] The Court refers you to jury instruction No. 2130 for further instructions.”

Jury Instruction No. 2130 told the jury: “The law requires that any driver who has been arrested submit to a chemical test at the request of a peace officer who has reasonable cause to believe the person arrested was driving under the influence. [¶] If the defendant refused to submit to such a test after a peace officer asked him to do so and explained the test’s nature to the defendant, then the defendant’s conduct may show that he was aware of his guilt. You are to accept as fact that the defendant refused to submit to such a test. It is up to you to decide the meaning and importance of the refusal. However, evidence that the defendant refused to submit to a chemical test cannot prove guilt by itself.”

Appellant contends, correctly, that the trial court had a duty, when faced with a question from the jury, to “ ‘consider how it can best aid the jury.’ ” (People v. Young (2007) 156 Cal.App.4th 1165, 1171–1172.) He is also correct that among the tools available to the court was reopening closing argument. (Id. at pp. 1170–1172.) This does not mean that the failure to reopen argument was an abuse of discretion.

Appellant contends argument should have been reopened to allow him to respond to the prosecutor’s statement during rebuttal closing argument that “the court had instructed the jury to accept appellant’s admission ‘in the middle of trial’ as an admission of guilt and that the admission supported guilty verdicts on both counts.” Appellant has not provided a record citation to support this contention. Rebuttal was brief, and the prosecutor’s only argument was “All this argument about him not understanding in the middle of this trial, he admitted to the refusal allegation. If there was any issues, he would not have done that. So you can’t now argue, hey, I didn’t understand or I thought I needed a lawyer. He already admitted to you that is why the court says you have to accept this as a fact that he refused. [¶] So just keep those two things in mind, the forest and the refusal, and find the defendant guilty of both counts.” The prosecutor used the term “forest” to refer to the “bigger picture” and the totality of the circumstances of the investigation. Defense counsel did not object to the refusal argument.

To the extent that the jury’s question indicated it was focusing on the prosecutor’s rebuttal argument, the court’s answer was fully adequate to address such concerns.[10] The court clarified that appellant had in fact admitted the allegation, and reminded the jury of the significance of that admission. The trial court did not abuse its discretion in refusing to permit defense counsel to argue that a prosecutorial statement to which he had failed to object was wrong.

D. Appellant Did Not Admit He Suffered a Prior Conviction.

Appellant was charged with violating section 23152, subdivision (a), driving under the influence within 10 years of a prior felony driving under the influence conviction. Before trial, appellant waived a jury trial on the allegation he had suffered a driving under the influence conviction in 2013. This conviction was also alleged as a prior conviction within the meaning of Penal Code section 667.5. After the jury reached its verdicts, the court asked about sentencing. The prosecutor told the court that they needed to address the priors, and the court replied: “I believe he admitted the priors.” The prosecutor stated that it was her understanding appellant had only waived his right to a jury trial. The court asked defense counsel if the court’s understanding was incorrect, and counsel replied it was his recollection that appellant admitted the priors. The court then stated: “It was two steps. He waived [the] right to a jury trial, and he admitted the priors.”

The record on appeal does not contain an admission of the 2013 conviction by appellant, and both parties now agree he did not admit the prior conviction. Respondent notes defense counsel agreed with the trial court’s statement that appellant had admitted the 2013 conviction, but acknowledges that statement cannot satisfy the requirement that a defendant personally admit the prior conviction. (Pen. Code, §§ 1025.)

We agree with respondent that there is no bar to remanding the case for a court trial on the prior conviction. (See People v. Monge (1997) 16 Cal.4th 826, 845.)

E. The Trial Court Did Not Abuse Its Discretion in Ruling on the Pitchess Motion.

The trial court granted appellant’s Pitchess motion for discovery of any complaints in Officer Recalde’s personnel records relating to dishonesty. The trial court held an in camera hearing and thereafter stated: “There is no discovery forthcoming.” Appellant requests that we review the sealed transcript of the in camera hearing to determine whether the trial court abused its discretion in concluding there was no relevant discoverable information. As requested and required, we have done so. (People v. Prince (2007) 40 Cal.4th 1179, 1284–1286; People v. Mooc (2001) 26 Cal.4th 1216, 1228–1232.) We see no abuse of discretion by the trial court.

DISPOSITION

The sentence is vacated and the matter is remanded for a trial on the prior conviction allegations and a new sentencing hearing. The judgment of conviction is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

GRIMES, Acting P. J.

WILEY, J.

[1] Undesignated statutory references are to the Vehicle Code.

[2] The information alleged appellant had suffered a prior conviction for driving under the influence in 2013, within the meaning of section 23550.5, subdivision (a), and further alleged this conviction was a prior conviction within the meaning of Penal Code section 667.5, subdivision (b). The abstract of judgment indicates the trial court relied on the section 23550.5 enhancement in sentencing appellant. The prior conviction allegations were not tried by the jury or the court. As discussed below, the trial court mistakenly believed appellant had admitted the prior conviction.

[3] Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).

[4] Pitchess v. Superior Court (1974) 11 Cal.3d 531.

[5] The driving under the influence conviction was also alleged to be a prior conviction within the meaning of Penal Code section 667.5, subdivision (b).

[6] Officer Recalde testified that a preliminary alcohol screening test using a breathalyzer in the field was considered a field sobriety test and was not a chemical test under California law.

[7] There is some ambiguity about whether Juror 3704, originally seated in seat number 7, remained in that seat. At one point, the transcript indicates the court stated: “Juror No. 7, you are now Juror No. 9.” The trial court did not otherwise have a habit of moving jurors around within the first 12 seats. The previous movement directive was “Juror No. 16, you are now Juror No. 3.” Both parties continued to refer to the male student as Juror No. 7 during the subsequent Batson-Wheeler motion. Thus, it seems likely that it was Juror No. 7 who became Juror No. 9. In any event, defense counsel also excused Juror No. 9.

[8] People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293 F. 1013.

[9] As quoted above, on redirect examination, Officer Recalde used the term percentage likelihood of impairment. On recross examination, he agreed with defense counsel that the percentages he had mentioned showed the reliability of the studies, that is, that officers were correct a certain percentage of the times they concluded a subject was impaired.

[10] It is more likely that the jury was simply confused by the manner in which they learned of the admission, as its reference to the date indicates. On March 5, 2020, at the close of the People’s case, the prosecutor stated: “At this point I would just ask for the court to take judicial notice that on February 28th of 2020, the defendant admitted to willfully refusing a peace officer’s request to submit to and/or willfully failed to complete the chemical test pursuant to Vehicle Code section 23612.” The court replied: “And that request for judicial notice has been granted.” The court’s response appropriately clarified that appellant had in fact admitted that he refused the test.

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

SIXTH APPELLATE DISTRICT

1. INTRODUCTION

Defendant Dwane Lee Lane pleaded no contest to felony vandalism (Pen. Code, § 594, subd. (b)(1)).[1] At sentencing, upon defendant’s payment of victim restitution, the trial court reduced the conviction to a misdemeanor and placed defendant on probation with various terms and conditions.

Defendant’s appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) that states the case and facts but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. That period has elapsed, and we have received no response from defendant.

Following the California Supreme Court’s direction in People v. Kelly (2006) 40 Cal.4th 106 (Kelly) at page 110, we provide a brief description of the facts and the procedural history of the case.

2. BACKGROUND

1. The Offense

According to written police reports, defendant used a hammer to break a window in two of the victim’s vehicles. It was determined that it would cost more than $400 to replace the broken windows.

2. The Charge and Plea

In July 2019, defendant was charged by complaint with felony vandalism (§ 594, subd. (b)(1)). In August 2019, defendant pleaded no contest in the instant case and admitted violating probation in a separate case. He entered his no contest plea with the understanding that the offense in the instant case would be reduced to a misdemeanor pursuant to section 17 if he paid victim restitution by the time of sentencing, and that he would be placed on probation with various terms and conditions, including 60 days in county jail. Defendant was released on his own recognizance after he agreed to appear at the sentencing hearing, which was scheduled for November 21, 2019. Defendant’s plea agreement included a Cruz waiver,[2] in which he expressed his understanding that if he “willfully fail[ed] to appear for future court dates,” he would “lose the benefit of any plea agreement. The sentencing judge could then impose a different or greater punishment up to the maximum possible sentence and [he] would not be allowed to withdraw [his] plea because of that different or greater punishment.”

3. Sentencing

Defendant failed to appear at the November 21, 2019 sentencing hearing, and a bench warranted was issued. Defendant was arrested on the bench warrant in June 2020.

On November 5, 2020, the sentencing hearing was held. Upon determining that defendant had paid victim restitution, the trial court reduced defendant’s offense to a misdemeanor. The court suspended imposition of sentence and placed defendant on court probation for two years with various terms and conditions, including that he serve 60 days in jail. After granting 77 days of custody credits, consisting of 39 actual days plus 38 days’ conduct credit under section 4019, the court determined that defendant had “credited out.” The court stayed or waived fines and fees. The court also issued a written order prohibiting defendant from, among other things, possessing firearms and ammunition and requiring him to relinquish all firearms pursuant to section 29810.

4. Appeal

Defendant filed a timely notice of appeal. We appointed counsel to represent defendant in this court.

3. DISCUSSION

Pursuant to Wende, supra, 25 Cal.3d 436, and Kelly, supra, 40 Cal.4th 106, we have reviewed the entire record. We requested supplemental briefing from the parties on certain issues. In response to our requests regarding the proper length of defendant’s probation and the conditions of his probation, the parties agree that these issues are moot because defendant is no longer on active probation.

The parties also agree that the clerk’s minutes from the November 5, 2020 sentencing hearing incorrectly reflect that defendant was granted 84 days of custody credits, consisting of 42 actual days plus 42 days’ conduct credit. The court actually granted defendant 77 days of custody credits, consisting of 39 actual days plus 38 days’ conduct credit under section 4019. We will order the sentencing minutes corrected.

The parties further agree that the trial court’s November 5, 2020 written order prohibiting defendant from, among other things, possessing firearms and ammunition and requiring him to relinquish all firearms, was not proper in this case because defendant was sentenced as a misdemeanant on November 5, 2020.

We agree with the parties that the trial court’s order regarding firearms and ammunition is unauthorized. Generally, a defendant who is convicted of a felony or of a specified misdemeanor is prohibited from possessing a firearm or ammunition and must relinquish all firearms in his or her possession. (§§ 29800, 29805, 29810, 30305.) Defendant’s vandalism conviction (§ 594, subd. (b)(1)), which was reduced to a misdemeanor at sentencing (see § 17, subd. (b)(3)), is not among the specified convictions. Therefore, the court’s written order prohibiting defendant from, among other things, possessing firearms and ammunition and requiring him to relinquish all firearms, was unauthorized in this case.[3] (See People v. Gilbreth (2007) 156 Cal.App.4th 53, 57-58 [holding that former § 12021 (now §29800), which prohibited convicted felons from possessing firearms, does not apply when the felony conviction has been reduced to a misdemeanor under § 17, subd. (b)(3)]; People v. Culbert (2013) 218 Cal.App.4th 184, 194 [sections 29800 and 30305, prohibiting a felon from possessing a firearm and ammunition, do not apply to a felony conviction that has been reduced to a misdemeanor].) We will order the court’s November 5, 2020 order regarding firearms and ammunition stricken.

Having carefully reviewed the entire record, and based on the agreement of the parties, we conclude that there is no arguable issue on appeal. (Wende, supra, 25 Cal.3d at pp. 441-443.)

4. DISPOSITION

The minutes of the November 5, 2020 sentencing hearing are ordered corrected to reflect that the trial court granted defendant 77 days of custody credits, consisting of 39 actual days plus 38 days’ conduct credit under Penal Code section 4019.

The trial court’s November 5, 2020 written order, entitled “PROHIBITED PERSONS RELINQUISHMENT FORM FINDINGS” (Judicial Council form CR-210), is ordered stricken.

As so modified, the order of probation is affirmed.

BAMATTRE-MANOUKIAN, ACTING P.J.

WE CONCUR:

DANNER, J.

WILSON, J.

People v. Lane

H048641

[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] “In People v. Cruz (1988) 44 Cal.3d 1247, [the California Supreme Court] interpreted the provision of [Penal Code] section 1192.5 that permits a defendant who pleads guilty or nolo contendere pursuant to a plea agreement to withdraw the plea if the agreement subsequently is disapproved by the court. [The court] held that this provision applies even if the defendant fails to appear for sentencing. [The court] noted in a footnote, however, that a defendant could expressly waive his or her rights under section 1192.5 at the time the plea was entered. (People v. Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.)” (People v. Masloski (2001) 25 Cal.4th 1212, 1215, fn. 2.)

[3] Defendant may be prohibited from possessing firearms and ammunition and may be required to relinquish all firearms based on a conviction in another case. Indeed, defendant acknowledges, and the record reflects, that he has a prior felony conviction in a separate case.

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 THREE

Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed.

James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Guillermo Gutierrez of assault with a deadly weapon—a screwdriver (Pen. Code, § 245, subd. (a)(1); count 2).^[1] The trial court additionally found true allegations Gutierrez had suffered three prior strike convictions (§§ 667, subds. (d) & (e)(2)(A), 1170.12, subds (b) & (c)(2)(A)), and three prior serious felony convictions (§ 667, subd. (a)(1)).[2]

The court struck two of Gutierrez’s strikes and one serious felony prior, and sentenced him to an 18-year prison term, comprising an upper term of four years on the assault, doubled to eight years under the two-strikes law, plus two consecutive five-year terms for the two remaining serious felony priors.

On appeal, Gutierrez makes two claims. First, he contends the trial court prejudicially erred by allowing the introduction of DNA evidence, arguing the prosecution failed to establish requisite foundations for its admissibility under the Kelly test.[3] Second, he claims the trial court miscalculated his custody credits, and he is entitled to an additional 13 days of presentence custody credit. We disagree and affirm.

FACTS

Eduardo Q. was a semi-transient man who lived in the Anaheim area. He owned a Honda, which he used for transportation and shelter. Eduardo was acquainted with appellant Gutierrez and codefendant Micah Hansen from approximately 2009 to 2012.[4] Eduardo lost touch with both men when he moved to Whittier in 2012, but they reconnected in 2020.

On May 12, 2020, Hansen asked Eduardo to hang out, and Eduardo picked him up in the Honda. For the rest of that day, the two drove around the old Anaheim neighborhood, drinking and smoking marijuana, and periodically stopping to purchase more alcohol. They drove to Hansen’s garage around midnight, where Eduardo parked in the alley behind the building. Six or seven other people were there, but Eduardo could only identify Hansen and Gutierrez. The group continued drinking and socializing.

At some point, Eduardo was attacked by several people who beat and kicked him. He was also stabbed twice in the neck and once in the upper ribcage; he suffered several defensive lacerations on his hands. Eduardo fled, leaving the Honda behind. About 5:00 a.m. on May 13, he flagged down police, and told them he had been stabbed. Police examined the puncture wounds in Eduardo’s neck and had him taken to an emergency room. Officers looked for the Honda, but it was no longer in the alley.

After Eduardo was discharged from the hospital, he went to the police station to report his vehicle stolen; while there, he was interviewed by an investigating detective. Eduardo claimed he was set up by Hansen and Gutierrez. He said Gutierrez was the one who stabbed him with a screwdriver and provided a physical description. On May 19, Eduardo picked Gutierrez out of a photo lineup, and once again identified him as the man who stabbed him.

Meanwhile, about 5:30 p.m. on May 13, police located the Honda and began surveillance of the area. Gutierrez was seen near the car, and Hansen was seen getting in and out of it several times. Police searched the vehicle later that night and found a screwdriver and a knife. A crime scene investigator took DNA sample swabs from the steering wheel and gear shifter.

A forensic scientist analyzed the swabs and the weapons found in the Honda and compared results to known DNA samples taken from Gutierrez, Hansen, and Eduardo Q. The swab from the screwdriver handle contained a DNA mixture with one major contributor and two trace contributors. It was at least one trillion times more likely that Gutierrez was the major DNA contributor with two unrelated contributors than that the DNA mixture was from three unknown unrelated individuals; both Eduardo and Hansen were eliminated as possible contributors. A swab of the screwdriver tip revealed a single source male contributor, and it was one trillion times more likely than not to be Gutierrez. The knife handle swab contained a mixture with two main contributors and two trace contributors. It was at least one billion times more likely that Gutierrez was one of the two main contributors; Eduardo and Hansen were again eliminated. As for the steering wheel and gear shifter swabs, it was at least one trillion times more likely that Hansen was the major DNA contributor along with four random unrelated contributors, none of whom were Eduardo or Gutierrez.

At trial, Eduardo retracted his earlier identification of Gutierrez as his assailant, claiming he did not see who stabbed him and he was unsure whether Gutierrez and Hansen were present during the attack. Eduardo admitted he did not want charges to be filed; he acknowledged he was forced to testify pursuant to a subpoena. He explained he was reluctant to name his attackers because he did not want to be labeled as a “snitch.”

DISCUSSION

I. The DNA Evidence

Gutierrez contends the trial court prejudicially erred in admitting the DNA evidence for two reasons. First, he argues the prosecution’s DNA expert “did not testify that her testing method was one of the two techniques that have been recognized in California for DNA testing,” i.e., either restriction fragment length polymorphism (RFLP) or polymerase chain reaction (PCR). Second, Gutierrez maintains the prosecution failed to establish that use of “the STRmix software has been generally accepted in the scientific community or that the program incorporates generally accepted scientific methods in its statistical analysis” of DNA evidence. His first claim is a purely factual one; the second refers to the first prong of the Kelly test as discussed hereafter.

A. Additional Factual Background

Gabriela Monroe, a forensic scientist employed at the Orange County Crime Laboratory (Crime Lab), was the case manager for the DNA tests and analyses done in this matter. She had six years of experience at the Crime Lab, had tested and analyzed thousands of DNA samples, and had previously testified as a DNA expert several times. She held bachelor’s and master’s degrees in chemistry and had received 18 months of specialized training in “evidence screening, DNA extraction, quantitation, amplification, DNA typing, and typing interpretation of the DNA evidence.” She was a member of the California Association of Criminalists and the American Academy of Forensic Sciences, both of which provide “feedback” from the scientific community as to “trends” in the forensic sciences, both locally and nationwide. She received annual training and education to stay current on scientific practices and procedures in forensic DNA testing, including the STRmix software. Monroe’s qualifications as an expert witness were not challenged by the defense.

Monroe testified the Crime Lab was accredited by the American National Standards Institute National Accreditation Board, an indication it was acknowledged for its “distinguished quality of work.” The testing procedures used by the Crime Lab were all “generally accepted by the forensic DNA scientific community.” No objection was lodged to this testimony.

Monroe testified the Crime Lab’s “methods of testing and typing” are “used by a majority of forensic scientists in the field of forensic DNA analysis.” A generic foundational objection to this testimony was overruled. When she was asked whether the “DNA testing procedures that are generally accepted within the forensic DNA scientific community [were] followed for all DNA testing procedures in this case,” another non-specific foundational objection was overruled, and Monroe answered they were.

Monroe analyzed the crime scene investigator’s swab samples and DNA she found on the screwdriver and knife and compared them to known reference samples taken from Gutierrez, Hansen, and Eduardo. To do so, the first step was to develop DNA profiles from the crime scene evidence. DNA was extracted, purified, quantitated, and amplified. These extractions were then run through an instrument that created genotypic profile peaks at the 24 loci on human DNA “where most people, excluding twins, are shown to be variant.” This 24-loci method is recommended by the FBI and is now standard in the scientific community.

The next step is to interpret the profiles to determine whether there is a mixture of individuals’ DNA or a single person source. The analyst then decides whether the data “is suitable for interpretation.” If so, a second analyst, who is unaware of the first analyst’s results, performs a second interpretation. If the two interpretations are consistent, an analyst does a “deduction or deconvolution,” which is the “interpretation part.” Once that is done, “we are then able to compare reference samples to the DNA profiles.”

Monroe described how she went through these processes in this case and how matches were made between the DNA profiles obtained from the physical evidence and the known DNA profiles taken from the persons involved. When asked the “likelihood ratio” of Gutierrez’s known DNA to the mixed DNA sample taken from the handle of the screwdriver, assuming there were three contributors to the mixture, Monroe opined that it was “at least one trillion times more likely to observe the DNA sample if [Gutierrez] is the major contributor, along with two random unrelated contributors, than if the DNA mixture was from three unknown, unrelated individuals.” A foundational objection to this question and answer was overruled. Monroe then provided similar conclusions regarding the other comparisons she had made in the case.

B. Forfeiture

“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless . . . [t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion.” (Evid. Code, § 353, subd. (a).) Thus, to properly raise the objections to the DNA evidence he now brings on appeal, Gutierrez was required to make both timely and specific objections to the introduction of that evidence, and on the same grounds he now raises on appeal. Here, he did neither.

“The objection requirement is necessary in criminal cases because a ‘contrary rule would deprive the People of the opportunity to cure the defect at trial and would “permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal.”’ [Citation.] ‘The reason for the requirement is manifest: a specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal.’” (People v. Partida (2005) 37 Cal.4th 428, 434 (Partida).)

Monroe’s name was on the prosecutor’s witness list and his trial brief alerted the defense to the fact he intended to introduce evidence related to Gutierrez’s DNA. Moreover, both defendants’ counsel had a “DNA packet” provided by the prosecutor in discovery. Gutierrez’s counsel did not file any motions in limine or proffer any pretrial foundational objections regarding the introduction of the proposed DNA evidence. In fact, codefendant Hansen’s counsel made a motion in limine to restrict the DNA evidence as regards anecdotal research done by the Crime Lab on the subject of DNA “transference,” and the court granted it. When the court asked if there was anything further, Gutierrez’s counsel replied there was not.

Well before Monroe testified, the court specifically inquired of Gutierrez’s counsel, “Do you anticipate having any foundational challenge to the DNA evidence?” Counsel replied, “I believe so, your Honor. I’m going to review the cases to see if that has been accepted locally or in California. I just found out about it this morning. I haven’t had a chance to review that. [¶] But I don’t know if [the prosecutor] has access to the prior testimony of where they accepted it here in Orange County.” The prosecutor replied he did not but explained to the court he had notified defense counsel that Monroe told him, “I just want to make sure you guys are aware it’s STR mix. It’s not new information. That’s information that’s always been there.” The trial court then told Gutierrez’s counsel, “All right. Let me know tomorrow.” (Italics added.)

The next day, prior to the lunch break, the court again asked counsel, “Are there evidentiary issues we need to deal with before we start up this afternoon?” Gutierrez’s counsel replied, “I don’t think so, your Honor.” Thus, no pre‑testimony foundational challenge to the STRmix software evidence was made. It was only in the middle of Monroe’s testimony that Gutierrez’s counsel proffered objections to questions involving the DNA evidence in general, and STRmix in particular.

The “foundational” objections Gutierrez’s counsel made to portions of Monroe’s testimony failed to preserve the Kelly-based challenges Gutierrez now raises on appeal. Neither defendant made an objection that invoked Kelly by name or in substance—despite Hansen’s counsel having expressly objected to other, unrelated DNA evidence. There was no request for a pretrial evidentiary hearing under Evidence Code sections 402 or 405 on Kelly grounds during the final discussions between the court and counsel on the day the trial began, and no indication that either defense counsel intended to raise a Kelly challenge to the prosecutor’s DNA evidence. When directly asked by the court about any “evidentiary issues” before Monroe began her testimony, counsel said there were none. We do not construe counsel’s generic foundational objections to encompass the very narrow Kelly-based contentions Gutierrez makes on appeal regarding STRmix.

We find guidance in People v. Doolin (2009) 45 Cal.4th 390. There, the defendant conceded PCR-based DNA testing was reliable but for the first time on appeal took issue with a supplemental test—“dot-intensity analysis”—that was used to help analyze mixed contributor semen samples. The defendant argued on appeal dot-intensity analysis was “a new scientific technique, requiring independent proof of general acceptance.” (Id. at p. 448) The Supreme Court found that because the defendant did not specifically object to the dot-intensity analysis at trial, he “forfeited his appellate challenge to the evidence,” citing Evidence Code section 353. (Ibid.)

Counsel’s midtrial foundational objections were insufficient to trigger the need for a full-blown Kelly hearing which would have entailed a potentially lengthy delay in the trial, when defense counsel had specifically told the trial court there were no evidentiary issues. Any other ruling would render the terms “timely” and “specific” in Evidence Code section 353 meaningless. (See People v. Lazarus (2015) 238 Cal.App.4th 734, 780, 786 (Lazarus) [defendant sought a prong one Kelly hearing but declined to raise a pretrial prong three claim when offered by trial court; prong three issue forfeited on appeal].)

The foundational objections Gutierrez’s counsel made during trial failed to identify what foundation was allegedly lacking. As a result, counsel’s objections did not enable the court ‘“to consider excluding the evidence or limiting its admission to avoid possible prejudice,”’ nor did they allow the prosecutor ‘“to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal.”’ (Partida, supra, 37 Cal.4th at p. 434.)

In sum, counsel’s objections were neither “timely made” nor sufficient “to make clear the specific ground” for their basis. (Evid. Code, § 353, subd. (a), italics added.) Counsel declined to make pretrial evidentiary objections, Kelly-based or otherwise. As a result, Gutierrez’s current Kelly contentions are forfeited. (Ochoa, supra, 19 Cal.4th at p. 414.)

C. The Claims Also Fail on the Merits

In any event, if we were to consider Gutierrez’s new Kelly-based attacks on the DNA evidence, we would conclude they are meritless.

1. Legal Background

In Kelly, supra, 17 Cal.3d 24, our Supreme Court established a three-step procedure for evaluating a challenge to the admissibility of evidence involving new scientific techniques.[5] “[E]vidence obtained through a new scientific technique may be admitted only after its reliability has been established under a three-pronged test. The first prong requires proof that the technique is generally accepted as reliable in the relevant scientific community. [Citation.] The second prong requires proof that the witness testifying about the technique and its application is a properly qualified expert on the subject. [Citation.] The third prong requires proof that the person performing the test in the particular case used correct scientific procedures.” (Bolden, supra, 29 Cal.4th at pp. 544-545.)

Nevertheless, “proof of a technique’s general acceptance in the relevant scientific community [is not] necessary once a published appellate decision ha[s] affirmed a trial court ruling admitting evidence obtained by that scientific technique, ‘at least until new evidence is presented reflecting a change in the attitude of the scientific community.’ [Citation.]” (Bolden, supra, 29 Cal.4th at p. 545.) Moreover, “Kelly ‘does not demand that the court decide whether the procedure is reliable as a matter of scientific fact: the court only determines from the professional literature and expert testimony whether or not the new scientific technique is accepted as reliable in the relevant scientific community . . . .”’ (Soto, supra, 21 Cal.4th at p. 519.)

2. “PCR”

Gutierrez argues it was error to admit the DNA evidence because Monroe did not specifically identify her testing method as either of the two accepted methodologies, RFLP or PCR.[6] Although it is true Monroe never explicitly used the term “PCR” in her testimony, the record establishes the Crime Lab which employs her uses PCR-STR technology, and that it was used in this case.

Here, Monroe explained she used amplification processes in the preparation of the samples, indicating the lab employed PCR methodology. (See People v. Henderson (2003) 107 Cal.App.4th 769, 777-779 (Henderson) [comparing RFLP and PCR methods].) Monroe also testified she used a “GlobalFiler” testing kit, which is a PCR-STR type of testing. (See State v. Garland (Minn. 2020) 942 N.W.2d 732, 747 [“the GlobalFiler kit does not involve novel scientific theories or techniques. GlobalFiler uses the same type of analysis—PCR-STR—used by earlier kits”].) DNA testing kits “all use the same basic methodology, specifically, polymerase chain reaction (PCR), which was developed in the 1980’s. The methodology examines places on the DNA strand called short tandem repeats (STRs).” (People v. Cordova (2015) 62 Cal.4th 104, 125‑126 (Cordova); see District Attorney’s Office v. Osborne (2009) 557 U.S. 52, 62 [since “the mid-1980[’]s, there have been several major advances in DNA technology, culminating in STR technology”].) The record demonstrates Monroe used the well-established PCR-STR methodology in this case.

3. STRmix Software

Gutierrez next claims the DNA evidence should not have been admitted because the prosecution failed to establish STRmix has been generally accepted in the scientific community and that it incorporates generally accepted scientific methods in its statistical analysis—Kelly’s first prong. We disagree. Monroe testified to both, and that testimony established the relevant foundation.

We review a court’s decision to admit or exclude evidence for abuse of discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 (Rodriguez).) To determine whether a scientific technique is generally accepted under the first prong of the Kelly test, we may look beyond the trial record and refer to scientific publications or journals and to judicial decisions from other state and federal jurisdictions. (Venegas, supra, 18 Cal.4th at pp. 88-89; Soto, supra, 21 Cal.4th at pp. 540‑541, fn. 31; People v. Buell (2017) 16 Cal.App.5th 682, 690-691 [trial court can rely on published cases from other jurisdictions in finding a scientific technique meets Kelly standards].) We may also consider opinions not relied on by the trial court. (Lazarus, supra, 238 Cal.App.4th at p. 783; cf. Soto, supra, 21 Cal.4th at pp. 540‑541, fn. 31 [approving appellate court reliance on “the very latest scientific opinions, including those published during the appellate phase of the case”].)

Here, the prosecutor asked Monroe, “STRmix does not actually make the interpretation. They give you the data and then you make the interpretation; is that correct?” Monroe responded, “We do the initial interpretation and we’re the ones who decide which portion of the mixture we’re interpreting. STRmix helps us deconvolute, meaning pull apart, all the parts of that mixture into its separate components. [¶] And then as an analyst and in combination with STRmix we’re able then to do the comparison. STRmix is what gives us the likelihood ratio.” Thus, the electrophoretic process that first separates the DNA samples and generates the initial genetic profile data is the same under the old system and the new.[7]

On cross-examination, Monroe explained that before STRmix was available, analysts used “mathematical guidelines” that had been “developed in the lab.” She further explained the difference between the “old method” and STRmix: “besides the likelihood ratio, it’s a different way that we’re reporting. In the past we would report how rare is the sample we are observing. It’s now how likely is this event over a different event.” “[B]ecause it’s using mathematics and statistics algorithms, . . . it is able to come up with genotypes that us [sic], as interpreters, as far as our guidelines go, didn’t have the capability to do.” With the old method, “we would manually – we call it manual method – maybe come up with two proposed genotypes for that major contributor[,] [w]here now the software has the capability to give you more options for that major contributor.” “[S]o we’re telling [the software] the number of contributors, but we, as analysts, tell it what parts of that contributor, contributor one and two, are suitable for interpretation. So that hasn’t changed. If I analyze for a major, only looking at the major, I’m not looking at anyone else.”

“The basic science behind DNA testing has long been accepted in court. ‘It has now been over 20 years [now 30 years] since DNA evidence was first approved by a California appellate court to prove identity in a criminal case.’ [Citations.] But DNA testing is continually being improved. ‘“[T]he scientific methodology, while fundamentally the same, has become more refined and sophisticated.” [Citation.] . . . Neither the use of PCR . . . nor STR technology to analyze mixed-source forensic samples is a new scientific technique.”’ (Cordova, supra, 62 Cal.4th at p. 128, referring to Axell, supra, 235 Cal.App.3d 836; see People v. Hill, supra, 89 Cal.App.4th at p. 57 [the PCR methodologies, including the STR subtype, have acquired general acceptance in the scientific community].)

“‘[O]nce a new scientific technique becomes generally accepted, a Kelly prong-one hearing is not necessary to establish whether each specific methodology employing the technique is also generally accepted. [Citation.] Rather than quibble over the components of the process or the interpretation of the results, challenges are directed to the weight of the evidence to be determined by the jury and not to its admissibility.’” (Cordova, supra, 62 Cal.4th at p. 128, italics added.)

When assessing changes in DNA technologies, “‘[w]hat was once considered revolutionary has now become rather mundane . . . ,’ and the threshold issue is ‘whether the improvement or refinement in DNA methodology qualifies as another breakthrough innovation within the meaning of Kelly, or whether the change represents a mere evolution of a generally accepted scientific technique.’” (Lazarus, supra, 238 Cal.App.4th at p. 783.) In other words, the “mere tweaking of existing testing methodologies and calculations,” does not implicate the concerns embodied by Kelly. (People v. Stevey (2012) 209 Cal.App.4th 1400, 1419.)

Incorporating STRmix’s established algorithms into existing established PCR-STR technology did not create a new scientific technique. (See People v. Cowan (2010) 50 Cal.4th 401, 470 [combining two existing techniques does not create a new technique for Kelly prong-one purposes].) And based on Monroe’s expert testimony, a trial court could reasonably conclude use of STRmix to help analyze PCR-STR results is only a modified application of accepted scientific principles and practices. (Cordova, supra, 62 Cal.4th at p. 127 [more sophisticated method of DNA testing “is merely another in a series of improved ways to apply long-accepted science, not a new scientific technique in the Kelly sense”]; cf. Lund, supra, 64 Cal.App.5th at p. 1139 [“Child Protection System” software used to search online for child pornography “is not a technique or process; it is a program that deploys a technique or executes a process”; no need for a Kelly hearing to evaluate it].)

Here, Monroe determined the number of DNA contributors, differentiated DNA peaks from artifacts, evaluated the STRmix data in light of the preestablished parameters programmed by the Crime Lab, and ensured the STRmix run was valid based on review of the program’s diagnostics, and by performing comparisons to known samples. (See People v. Superior Court (Dominguez) (2018) 28 Cal.App.5th 223, 237.) In this context, no further evidence was required to establish admissibility of the results of Monroe’s STRmix-assisted testing and analyses.

4. Conclusion

We review a court’s decision to admit or exclude evidence for abuse of discretion. (Rodriguez, supra, 20 Cal.4th at pp. 9-10.) Although Gutierrez forfeited his claims by failing to make timely and specific Kelly objections below, even considering Gutierrez’s claims, we conclude the trial court did not err in overruling defense counsel’s generic objections to the DNA evidence on the two grounds Gutierrez now raises. Because no Kelly inquiry was required, any supposed error in the court’s overruling Gutierrez’s foundational objections did not “result[] in a miscarriage of justice.” (Evid., Code, § 353, subd. (b).) The weight given to the DNA evidence and to Monroe’s related testimony was properly left to the jury. (Cordova, supra, 62 Cal.4th at p. 128; cf. Henderson, supra, 107 Cal.App.4th at p. 773 [“the added complication of analyzing a multiple source DNA sample did not affect the admissibility of the evidence, but, instead, was a consideration for the jury in weighing the evidence and determining the credibility and accuracy of the DNA test results”].)

II. Sentencing Credits

Lastly, Gutierrez contends the trial court miscalculated his custody credits and he is entitled to an additional 13 days of credits. He claims he was arrested on this matter on May 14, 2020, not May 22, 2020 as the probation officer stated in her report.

Defendants are entitled to credit for the actual number of days spent in presentence custody plus conduct credits, which are calculated at a rate of four days for every two days in actual custody. (§§ 2900.5, subd. (a), 4019, subd. (f); People v. Yanez (2019) 42 Cal.App.5th 91, 96.) Nonetheless, “a prisoner is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period.” (People v. Bruner (1995) 9 Cal.4th 1178, 1191, italics added.) Furthermore, “the burden is on the accused to establish entitlement to presentence custody credit.” (People v. Shabazz (2003) 107 Cal.App.4th 1255, 1258.)

At trial, Anaheim police officer Kevin Avila testified he arrested Gutierrez on May 14. But in the probation and sentencing report prepared for this case, the probation officer stated Gutierrez was arrested on May 22, 2020, and he was entitled to 246 days of actual custody between that date and his January 22, 2021 sentencing date. Gutierrez’s trial counsel agreed with that number. The probation officer referred to Orange County jail records, stating they showed Gutierrez “has been in custody on this case since May 22, 2020.” (Italics added.) Her report also said Gutierrez “was arrested for a parole violation warrant, but was not questioned regarding [the] assault and vehicle theft.” She noted Gutierrez “is presently on parole . . . with a projected discharge date of April 11, 2023,” and “it appears he is pending an additional parole violation.”

Avila arrested Gutierrez on May 14 on a parole violation warrant. The stabbing at issue here occurred sometime during the night and early morning of May 13; Eduardo did not flag down police until 5:00 a.m. that morning. At that point, Eduardo had not yet identified Gutierrez as his assailant—he had only identified Hansen to police—and he had only given police a description of Gutierrez; Eduardo identified Gutierrez in the photo lineup on May 19, 2020. The parole violation warrant could therefore not have been based on the assault because Gutierrez was not identified until several days after he had been arrested by Avila.

Although Gutierrez correctly states the complaint in this case was filed on May 22, he fails to add that the complaint request also included a request for an arrest warrant, with a recommended bail amount of one million dollars. The record indicates that the complaint was electronically filed at 8:00 a.m. on May 22. The court’s minutes indicate the complaint was filed along with a “Police/Arrest Report,” and a “Declaration/Affidavit in Support of Arrest” as a “[w]alk-through” arrest warrant request. The arrest warrant was signed and issued that morning. Later that day Gutierrez appeared for his arraignment. Thus, the record demonstrates Gutierrez was not in custody on this matter until he was brought before the court on May 22. He had been in custody until that moment on the parole violation warrant. His claim for additional credits therefore fails.

DISPOSITION

The judgment is affirmed.

GOETHALS, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.

[1] All statutory references are to the Penal Code unless otherwise indicated.

[2] The jury acquitted Gutierrez of robbery (§§ 211/212.5, subd. (c); count 3), and the trial court dismissed the carjacking count (§ 215, subd. (a); count 1) at the close of the prosecution’s case-in-chief (§ 1118.1).

[3] People v. Kelly (1976) 17 Cal.3d 24 (Kelly).

[4] Hansen was tried jointly with Gutierrez; the jury acquitted Hansen of all charges.

[5] The test was adopted from Frye v. United States (D.C. Cir. 1923) 293 F. 1013. (Kelly, supra, 17 Cal.3d at p. 32.) However, it is now simply referred to as the Kelly test, rather than the Kelly/Frye test, because Frye was superseded by rule 702 of the Federal Rules of Evidence (28 U.S.C). (See Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 586; Soto, supra, 21 Cal.4th at p. 515, fn. 3.) “Though the federal Daubert standard for admission of scientific evidence differs somewhat from the Kelly standard, appellate decisions affirming the admission of scientific evidence under that standard are relevant to the Kelly analysis.” (People v. Lund (2021) 64 Cal.App.5th 1119, 1140, fn. 6 (Lund).)

[6] RFLP, as well as three subtypes of PCR—“DQAlpha,” which tests one genetic marker; “Polymarker,” which tests five genetic markers; and “Short Tandem Repeat” (STR), which tests three or more genetic markers—are well-established and no longer subject to Kelly-based challenges. (See People v. Hill (2001) 89 Cal.App.4th 48, 57 [“The RFLP and PCR methodologies, including the PCR subtypes, have acquired general acceptance in the scientific community”]; Lazarus, supra, 238 Cal.App.4th at p. 783 [“[T]he PCR–STR method of analyzing DNA has been found to be generally accepted by many, many courts”].)

[7] “Electrophoresis, an integral step in DNA typing, has been established as generally accepted in the scientific community.” (People v. Axell (1991) 235 Cal.App.3d 836, 858, fn. 9 (Axell).)

NOT TO BE PUBLISHED IN THE 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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Stanislaus County. John D. Freeland, Judge.

Law Offices of Wade E. Norwood, Kenneth E. Franklin and Wade E. Norwood for Plaintiff and Appellant.

Dan Farrar for Defendant and Respondent.

-ooOoo-

Appellant The House Modesto (THM) is a church in the City of Modesto. THM brought this action to recover property taxes levied by respondent County of Stanislaus (County) and paid under protest for fiscal years 2013–2014 through 2019–2020. THM’s action is premised on its claim of tax exemption (welfare exemption) under section 214 of the Revenue and Taxation Code.[1] At issue on appeal is the trial court’s denial of THM’s claim of exemption as to land upon which it operates a fitness center (House Fitness). THM argues the court erred in denying the exemption because House Fitness is incidental to, and reasonably necessary to, THM’s religious purpose of ministering to the “‘mind, body, soul and spirit’” of its congregants and its charitable purpose of supporting the physical well‑being of Modesto residents. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The trial court decided this case upon facts stipulated by THM and County, the testimony of four witnesses, and documentary evidence introduced through witness testimony.[2]

I. Procedural Background

On February 15, 2013, THM filed a claim with the Stanislaus County Assessor (the Assessor) for religious exemption of its real property. The Assessor granted the exemption as to approximately two‑thirds of THM’s property, but denied exemption for the remainder of the property—property upon which THM operated House Fitness, a coffee shop, and a multi-use classroom facility known as “KidSpace.”

THM paid the taxes assessed against the property for fiscal years 2013–2014 through 2018–2019 under protest. In 2015, 2016 and 2019, it filed claims for the refund of those taxes with the Stanislaus County Auditor-Controller (2015 and 2019) and the Stanislaus County Board of Supervisors (2016), but no action was taken on the claims.

On March 27, 2019, THM filed claims for welfare exemption of the property for fiscal years 2013–2014 through 2019–2020. On September 3, 2019, the Assessor denied THM’s welfare exemption claims.

THM filed this action to challenge the Assessor’s denial of its exemption claims and seek a refund of taxes paid in protest. A bench trial was conducted. Upon receiving the trial court’s tentative ruling on the matter, THM timely requested a statement of decision.

On May 12, 2020, the trial court issued a proposed statement of decision. The record on appeal does not reveal that any party objected to the proposed statement of decision. On June 3, 2020, the court issued its final statement of decision following court trial (Final SOD), which conformed to its proposed statement of decision.

In its Final SOD, the trial court determined KidSpace was used primarily for exempt purposes and ordered a refund of taxes attributable to the KidSpace property. However, the court found THM did not meet its burden of proof to establish the welfare exemption of House Fitness and the coffee shop.

On June 15, 2020, in accordance with its Final SOD, the trial court entered judgment in favor of THM in the amount of $96,558.45 plus interest in the amount of $7,055.73 through June 30, 2020.

On August 4, 2020, THM timely appealed the judgment as it related to House Fitness only and County timely cross-appealed. The cross-appeal was dismissed by this court on November 13, 2020, upon County’s request.

II. Stipulated Facts

At all times relevant, THM (formerly known as Calvary Temple Worship Center) was “an IRS tax-exempt [Internal Revenue Code] section 501[, subdivision ](c)(3) California non-profit religious corporation and has an organizational clearance certificate from the California State Board of Equalization.”[3]

Prior to changing its name, THM had been historically exempt from paying property taxes on all of its property. As mentioned, in 2013 or 2014, the Assessor made a finding that approximately one‑third of THM’s property (including House Fitness) was not used exclusively for exempt purposes.

The parties’ stipulations set forth a chronological history of (1) THM’s claims for welfare exemption for fiscal years 2013–2014 through 2019–2020, (2) the amount of taxes THM paid for fiscal years 2013–2014 through 2018–2019, (3) THM’s claims for refund, and (4) County’s actions and nonactions on THM’s claims.

The parties further stipulated House Fitness had been in operation since 1998 and is open to the public. In 2017, House Fitness had a paid monthly membership of approximately 469 members. In 2018, its paid monthly membership increased to approximately 842 members. In 2019, its monthly paid membership increased to approximately 1,112 members. It is situated on land comprising approximately 16.61 percent of THM’s property.

III. Testimony

THM called Pastor Michael D. Trenton to testify. At the time of trial, Pastor Trenton was the “number two in charge” at THM. He oversaw all operations of THM, its staff, and its leaders. He testified THM does not have an official membership. It has over 30,000 adherents that have attended services or made financial contributions to THM. Approximately 3,500 to 4,000 individuals attend weekend services regularly.

According to Pastor Trenton, THM has had to change its methods of outreach to the community. Because society offers so many different activities such as “health clubs, theme parks, you name it,” THM had to find ways to “compet[e] with the world” to attract people to its ministry. Describing the various services and amenities (including House Fitness) offered to its congregants, Pastor Trenton explained, “[T]he whole purpose is to win the lost and, by whatever means we find necessary, to get people to our campus.” “You may not always be able to get them to—to come to church, but they might respond to an invitation to come work out together. They might respond to come to a party or come check out the play structure .…”

Pastor Trenton testified, “House Fitness is a—basically, a fitness center. It’s designed to be a gym, if you will. It consists of weights, treadmills, racquetball courts—two racquetball courts.” “[H]ealth is a key attraction for families, and we want to minister to body, soul, mind, and spirit. A fitness center was a logical option. You look at the number of people that sign up for fitness centers in the community from In-Shape, to Cal Fit, or LA Fit, whatever you want to call it. They’re all over Modesto. Fitness, health is an interest of anybody and everybody.”

House Fitness has scripture references throughout the building. Videotapes of sermons, Christian music videos, and “a lot of different things” are played on its television sets. THM believes “the body is a temple of the Holy Spirit, and you take care of it.” “It ministers to a very select group of people in terms of the kind of place they want to work out.”

Pastor Trenton testified the purpose of House Fitness is not to contribute financially to THM, noting it has “lost over $800,000 in the last 20-plus years” of operation. He indicated the hope would be to break even or “cover the cost of the pastor who runs [it, and] the cost of repairing equipment.”

Pastor Trenton estimated the paid membership of House Fitness at approximately 1,100 individuals and membership fees at $19 per month. In 2019, the gross income of the fitness center was $147,889.76.[4]

THM also called Pastor Douglas Wayne Mattingly to the stand. Pastor Mattingly testified he was a staff pastor at THM and had been a staff member at THM since 2009. He served as the director of House Fitness in addition to other duties.[5]

Pastor Mattingly confirmed House Fitness is used as an “outreach tool.” He uses peoples’ attendance at House Fitness as an opportunity to speak to them about what is going on in their life and to counsel them. In his view, his primary purpose was “To meet the needs of the people that come to us. It’s an outreach to love on, meet whatever their need is. It could be strengthening, getting stronger, but it also could be a hurt or a pain that’s going on, whatever it might be. Just to help them along through in life and remind them how much they’re loved.”

Pastor Mattingly estimated 70 percent of the membership of House Fitness were regular attendees of the church. He testified the membership charge for students and seniors was $10 per month and, for others, $15 per month. Membership also entailed payment of an initial enrollment fee, but the amount of the fee was not elicited during trial. Pastor Mattingly testified House Fitness has occasionally waived enrollment and monthly fees for individuals unable to afford membership.

House Fitness generally does not advertise but, according to Pastor Mattingly, it did run an ad in his daughter’s school newspaper once. Moreover, House Fitness had previously offered discounted rates through Groupon, but those offerings were discontinued when Pastor Mattingly started as director of House Fitness.

County called Merete Meeks and Rose Marie Reavill to testify. Ms. Meeks was an appraiser with the Assessor’s office. In 2013, she performed a field check of House Fitness and other buildings on the THM campus to determine if they were being used for religious purposes and to value new construction. She met with three individuals—THM’s business agent, its pastor, and its facility director. She was told by the facility director that fees for House Fitness ranged from $10 to $50 for an individual, but Ms. Meeks was unsure how to interpret the statement. She stated, “The position of [THM] is that all of their activities, with respect to the use of their space, are for community outreach. The goal is to bring new members to the church. Donation/fee required for various activities.”

Ms. Reavill processed claims of exemption for the Assessor. She testified that when THM changed its name from Calvary Temple Worship Center, the Assessor required a new filing. Relying primarily on information provided by Ms. Meeks, Ms. Reavill determined House Fitness (and other facilities) were not being used exclusively for religious purposes.

Through its witnesses, THM was able to introduce into evidence its restated and amended articles of incorporation, its mission statement, photographs of House Fitness, excerpts from House Fitness’s website, and financial records for House Fitness.

DISCUSSION

I. The Welfare Exemption

Article XIII, section 1 of the California Constitution provides, in part: “Unless otherwise provided by this Constitution or the laws of the United States: [¶] (a) All property is taxable and shall be assessed at the same percentage of fair market value.…” Article XIII, section 4, subdivision (b), of the Constitution authorizes the Legislature to exempt from taxation “Property used exclusively for religious, hospital, or charitable purposes and owned or held in trust by corporations or other entities (1) that are organized and operating for those purposes, (2) that are nonprofit, and (3) no part of whose net earnings inures to the benefit of any private shareholder or individual.” Prior to November 5, 1974, the above mentioned authorization was contained in former section 1c of article XIII of the California Constitution.[6] (English v. County of Alameda (1977) 70 Cal.App.3d 226, 234, fn. 1.)

Pursuant to its constitutional authorization, the Legislature enacted section 214. It reads, in pertinent part:

“(a) Property used exclusively for religious, hospital, scientific, or charitable purposes owned and operated by community chests, funds, foundations, limited liability companies, or corporations organized and operated for religious, hospital, scientific, or charitable purposes is exempt from taxation …, if:

“(1) The owner is not organized or operated for profit.…

“(2) No part of the net earnings of the owner inures to the benefit of any private shareholder or individual.

“(3) The property is used for the actual operation of the exempt activity, and does not exceed an amount of property reasonably necessary to the accomplishment of the exempt purpose.” (§ 214, subd. (a).)

Section 214 is to be given a “strict but reasonable construction.” (Cedars of Lebanon Hosp. v. County of L.A. (1950) 35 Cal.2d 729, 735 (Cedars).) We must give “due regard for the ordinary acceptation of the language employed and the object sought to be accomplished thereby.” (Ibid.)

Property “used exclusively for any facility which is incidental to and reasonably necessary” to a religious, hospital, scientific, or charitable purpose will qualify for welfare exemption. (Cedars, supra, 35 Cal.2d at p. 736; accord, Y.M.C.A. v. County of L.A. (1950) 35 Cal.2d 760, 767 (Y.M.C.A.).)

“[T]he test for the welfare exemption is not the number of good purposes to which plaintiff’s property may be put nor the amount of benefit that may be derived therefrom by plaintiff’s members as well as the general public, but whether the property may reasonably be regarded as ‘exclusively used’ for exempt purposes.” (Y.M.C.A., supra, 35 Cal.2d at pp. 774–775.) Exclusive use in this context means the property is used “primarily for exempt purposes.” (Peninsula Covenant Church v. County of San Mateo (1979) 94 Cal.App.3d 382, 394.) In determining whether property is exclusively used for exempt purposes, the fact that a facility may have one or more secondary purposes “does not destroy the effect of [its] dominant purpose as property ‘used exclusively for religious … or charitable purposes’ within the contemplation of the welfare tax exemption law.” (Y.M.C.A., supra, at p. 770.)

At trial, THM, “ha[d] the burden of showing that [it] clearly c[a]me within the terms of the [welfare] exemption.” (Cedars, supra, 35 Cal.2d at p. 734.)

II. Standard of Review

The parties disagree as to the proper standard of review on appeal. THM contends the matter should be reviewed de novo because it involves the application of law to undisputed facts or, alternatively, a mixed question of law and fact. County contends this court must give deference to the trial court’s factual determinations and reverse only if the evidence compels a ruling in THM’s favor as a matter of law. We agree with County.

County relies on Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828 (Dreyer’s). In Dreyer’s, the plaintiff challenged an assessment of property taxes on its manufacturing equipment. (Id. at p. 832.) A hearing was conducted before the Assessment Appeals Board (the board). (Ibid.) At the conclusion of the hearing, the board expressly found the plaintiff did not meet its burden of proof. (Id. at p. 834.) The trial court affirmed the board’s decision, and the plaintiff appealed. (Id. at pp. 834–835.)

In determining the proper standard of review, the Dreyer’s court wrote, “‘where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant’s evidence was (1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.” [Citation.]’” (Dreyer’s, supra, 218 Cal.App.4th at p. 838.) In doing so, “[t]he appellate court cannot substitute its factual determinations for those of the trial court; it must view all factual matters most favorably to the prevailing party and in support of the judgment. [Citation.] ‘“All conflicts, therefore, must be resolved in favor of the respondent.” [Citation.]’” (Ibid.)

THM argues Dreyer’s should not apply because the initial determination in Dreyer’s, the value of property being assessed, was within the exclusive jurisdiction of the assessment appeals board whereas the determination of tax exemption, as in this case, is an issue belonging exclusively to the courts. THM does not adequately articulate why it contends such a distinction is relevant and we do not believe it is. The standard set forth in Dreyer’s has been utilized in a variety of contexts. (E.g., In re Luis H. (2017) 14 Cal.App.5th 1223, 1227 [juvenile proceedings]; Estate of Herzog (2019) 33 Cal.App.5th 894, 904 [probate]; Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465–466 [civil bench trial]; In re I.W. (2009) 180 Cal.App.4th 1517, 1527–1528, disapproved on unrelated grounds in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7 [juvenile proceedings]; Lent v. Cal. Coastal Com. (2021) 62 Cal.App.5th 812, 837 [administrative]; Superior Court v. Public Employment Relations Bd. (2018) 30 Cal.App.5th 158, 221 [administrative].)

THM further contends this court is not bound by the trial court’s findings of fact. In support of its position, THM relies on Western Contracting Corp. v. State Board of Equalization (1968) 265 Cal.App.2d 568, Standard Register Co. v. Franchise Tax Board (1968) 259 Cal.App.2d 125, and Dealers Installation Service, Inc. v. State Bd. of Equal. (1970) 13 Cal.App.3d 395. THM’s reliance is misplaced. Unlike the case at bar, none of the three cases relied upon by THM involved an adverse credibility determination by the trier of fact. As will be discussed later in this opinion, the trial court determined that certain material testimony of Pastor Mattingly was not credible.

“The credibility of the testimony offered by the parties is properly determined by the trier of fact, and its determination is binding on an appellate court if supported by substantial evidence.” (Crescendo Corp. v. Shelted, Inc. (1968) 267 Cal.App.2d 209, 212.) A trier of fact may reject uncontroverted evidence if, for example, it deems the evidence inherently improbable or otherwise not credible. (Hicks v. Reis (1943) 21 Cal.2d 654, 659–660; Camp v. Ortega (1962) 209 Cal.App.2d 275, 282–283.) “Provided the trier of the facts does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted.” (Hicks v. Reis, supra, at pp. 659–660; Palmieri v State Personnel Bd. (2018) 28 Cal.App.5th 845, 857.) Here, unless the trial court acted arbitrarily, we are bound by its credibility determination.

In our view, the review standard set forth in Dreyer’s is appropriately applied to the case at bar. The review standard incorporates the substantial evidence standard for reviewing the trial court’s findings of fact. In doing so, it gives proper deference to the trial court’s role as trier of fact. It also acknowledges it was THM’s burden to prove its entitlement to the exemption by limiting reversal to situations in which a finding in favor of THM is compelled as a matter of law.

III. Status of House Fitness

THM contends House Fitness serves both a religious and charitable purpose within the meaning of section 214.

A. Religious Purpose

THM argues House Fitness is incidental to and reasonably necessary to its mission of “ministering to the whole person, ‘the body, soul, mind, and spirit[]’” and “caring for the physical body.” When asked why THM opened House Fitness, Pastor Trenton testified: “Again, appealing to meet the needs of families. Obviously, health is a key attraction for families, and we want to minister to body, soul, mind, and spirit.”

As further support for its claim of welfare exemption for religious purposes, THM also refers to scriptural references contained in its restated and amended articles of incorporation wherein it is stated, “We believe that God wants to heal and transform us so that we can live healthy and prosperous lives .…”

THM also notes there are numerous biblical scriptures located throughout House Fitness or on its website including “‘discipline leads to life and health.’ Isaiah 38:16,” “‘I discipline my body like an athlete, training it to do what it should.’ 1 Corinthians 9:27,” and “Do you not know that your bodies are temples of the Holy Spirit, who is in you, whom you have received from God? You are not your own; you were bought at a price. Therefore[,] honor God with your bodies.—1 Corinthians 6:19–20.”

Although the above sentiments may be considered laudable and may be expressed in various ways by THM, they do not necessarily transform House Fitness into a facility used exclusively or primarily for religious purposes. In its Final SOD, the trial court expressly found THM did not meet its burden of proof to establish the welfare exemption for House Fitness. In support of this finding, the court wrote, in part:

“After careful consideration of each facility’s use, membership size, configuration, amenities, and the fact that it is run by a dedicated pastor, the Court concludes that [House Fitness] is not operated primarily for an exempt purpose. The primary use of the facility is for exercise, not for evangelistic purposes, although outreach and ministry are stated to be a part of the program. [Citation.] It may provide an opportunity for fellowship, but it has not been shown that it primarily provides such an opportunity.… Moreover, [House Fitness] is not integrated into any educational or worship program.”

The trial court noted several proof deficiencies in THM’s case-in-chief as it related to House Fitness. The court wrote, in part: “Except for evidence of the number of gym members, there was no quantitative evidence or testimony as to the number of gym members who receive Christian mentoring at the facility, nor testimony as to the number of gym members who engage in Christian fellowship at the gym.” The court noted that, even in the absence of documentary evidence, THM could have estimated those numbers in witness testimony, but did not. Similarly, no estimates were provided as to the amount of time spent by Pastor Mattingly, the director in charge of House Fitness, in engaging in such activities. The court noted that Pastor Mattingly testified he was “‘constantly’ doing certain things” but considered the testimony “troubling considering the general activities of a gym, and … not credible without some quantitative evidence .…”[7]

Here, the trial court found the testimony of Pastor Mattingly—that he was “‘constantly’” counseling House Fitness members at the facility or calling them when he had not seen them for some time—not credible. It wrote, “the Court is left to speculate as to whether those receiving Christian fellowship or mentoring is nominal, moderate or significant when compared to the total gym membership and total time spent engaging in these activities.”

The trial court reasonably could have found Pastor Mattingly’s testimony inherently improbable and not entitled to credit. (See Hicks v. Reis, supra, 21 Cal.2d at pp. 659–660; Camp v. Ortega, supra, 209 Cal.App.2d at pp. 282–283.) We cannot say the court acted arbitrarily in making this determination. (See Hicks v. Reis, supra, at pp. 659–660 [so long as trier of fact does not act arbitrarily, he or she may reject uncontradicted witness testimony]; Palmieri v State Personnel Bd., supra, 28 Cal.App.5th at p. 857 [same].) Accordingly, we defer to the court’s finding the testimony was not credible.

Pastor Trenton noted that THM was competing with the world to attract people to its ministry. He noted, “[T]he whole purpose is to win the lost and, by whatever means we find necessary, to get people to our campus.” “You may not always be able to get them to—to come to church, but they might respond to an invitation to come work out together. They might respond to come to a party or come check out the play structure .…” Pastor Mattingly testified that he views House Fitness as “an outreach to love on, meet whatever their need is. It could be strengthening, getting stronger, but it also could be a hurt or a pain that’s going on, whatever it might be.” He indicated House Fitness serves as an “entry point into the church.”

However, the trial court further noted House Fitness “is not integrated into any educational or worship program.” Plainly, such an integration could have had a bearing on the outcome of trial, but evidence of any such integration was lacking at trial. “‘[W]here a party has an opportunity to call a witness who is prepared and qualified to testify as to a fact in issue and fails to do so, it may be inferred by the trier of fact that the evidence if given would be adverse to such party.’” (People v. Vaughn (1968) 262 Cal.App.2d 42, 55.) If evidence existed to demonstrate that House Fitness was integrated into an education or worship program at THM, Pastors Trenton or Mattingly certainly would have been qualified and prepared to so testify. In the absence of such testimony, the court was entitled to infer that no such integration existed.

Physical fitness, by itself, is generally a secular ideal. (See Bronx Household of Faith v. Bd. of Educ. of New York (2011) 650 F.3d 30, 57.) Even when originally developed in connection with a recognized religion, physical fitness is secular in nature if not otherwise anchored to a religious purpose. (See Sedlock v. Baird (2015) 235 Cal.App.4th 874, 886–887.) From the testimony of Pastors Trenton and Mattingly, the lack of integration of House Fitness into a worship or educational program, and the lack of quantifiable evidence concerning the amount of Christian fellowship or mentoring that occurred onsite, the trial court could reasonably infer that the primary purpose of House Fitness was exercise (i.e., secular) rather than religious.

Upon viewing all factual matters most favorably in support of the judgment, we cannot say the evidence compels a ruling in THM’s favor as a matter of law. The evidence is not of such a character and weight as to preclude the trial court’s finding that THM did not meet its burden of proof to show House Fitness was entitled to a welfare exemption based on exclusive use for a religious purpose.

IV. Charitable Purpose

THM contends on appeal that the trial court erred by limiting itself to consideration of whether House Fitness was used exclusively for religious purposes when House Fitness had a broader welfare exemption available to it as property exclusively used for charitable purposes.

The record on appeal does not reveal that any party objected to the trial court’s proposed statement of decision pursuant to subdivision (g) of California Rules of Court, rule 3.1590, or brought a motion for a new trial (Code Civ. Proc., § 657) or to set aside the judgment (id. at § 665). Consequently, THM has waived the right to claim error based on any alleged deficiency in the statement of decision and this court may “infer the trial court made implied factual findings to support the judgment.” (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 59; accord, In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133–1134; Code Civ. Proc., § 634.)

California gives a broad construction to the term “charitable” as used in section 214. (Stockton Civic Theatre v. Board of Supervisors (1967) 66 Cal.2d 13, 18 (Stockton).) “[T]he term ‘charity’ has been defined in a number of California cases as ‘“a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons—either by bringing their hearts under the influence of education, or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government.” [Citations.]’” (Id. at p. 19.) “[C]harity is not confined solely to the relief of the needy and destitute, but comprehends ‘“as well activities which are humanitarian in nature and rendered for the general improvement and betterment of mankind, though the recipients of such benefits may be able to pay at least in part therefor.…”’” (Ibid.) “Implicit in this standard is the requirement that a charitable activity serve ‘either the community as a whole or an unascertainable and indefinite portion thereof.’” (Clubs of Cal. for Fair Competition v. Kroger (1992) 7 Cal.App.4th 709, 716 (Kroger), quoting Stockton, supra, at pp. 19–20.)

House Fitness is open to the public. It charges an enrollment fee of an unspecified amount. Depending on which witness’s testimony is credited, monthly dues (1) ranged from $10 per month for student and seniors and $15 per month for others (Pastor Mattingly’s testimony); (2) are approximately $19 per month (Pastor Trenton’s testimony); or (3) range from $10 to $50 per month (Ms. Meeks’s testimony). According to the testimony of Pastor Mattingly, House Fitness has previously waived monthly fees for some members. However, no testimony was provided as to the frequency of such fee waivers. The evidence established that House Fitness did not make a profit during the years in question and financial statements for House Fitness were entered into evidence. Yet, no testimony was elicited concerning details of the line item entries contained in those statements.

THM contends the fees charged were nominal and are not designed to make House Fitness profitable. Yet, no evidence was elicited as to how the unspecified enrollment fees and monthly membership fees were determined. No evidence was provided to compare or contrast the enrollment and membership fees of other fitness centers operated for profit.

Given the fact that THM does not generally advertise House Fitness’s offerings and Pastor Trenton’s testimony that “t ministers to a very select group of people in terms of the kind of place they want to work out,” the trial court could have reasonably found House Fitness was not designed to serve “‘the community as a whole or an unascertainable and indefinite portion thereof’”—a hallmark of charitable activity. ([i]Kroger, supra, 7 Cal.App.4th at p. 716.) The court could have inferred House Fitness served only THM adherents or congregants along with their friends or guests. Such an inference would not be inconsistent with the court’s finding that House Fitness was not used primarily for religious purposes since membership, by itself, does not establish the type of use to which the facility was employed.

Moreover, the trial court could have found THM did not meet its burden of demonstrating that House Fitness was a charitable enterprise. The court could have determined that the unspecified enrollment fee and the monthly membership fees were not shown to be nominal due to the lack of evidence concerning enrollment and membership fees of competing gyms and that the lack of profit did not establish the charitable quality of the facility. Commercial ventures that charge market rates for their services sometime operate at a loss despite their for-profit status. Moreover, to the extent “‘charity’” implies a gifting of resources (Stockton, supra, 66 Cal.2d at p. 19), the court could have found that evidence of a gift was lacking.

We conclude the trial court could have reasonably found that THM did not meet its burden of demonstrating House Fitness has a charitable purpose. The character and weight of the evidence did not foreclose a finding by the court that THM did not meet its burden of proof to demonstrate House Fitness was entitled to a welfare exemption based on exclusive use for a charitable purpose.[8] The evidence does not compel a result contrary to the judgment.

DISPOSITION

The judgment is affirmed. Respondent is entitled to its costs on appeal.

MEEHAN, J.

WE CONCUR:

LEVY, Acting P. J.

PEÑA, J.

[1] All statutory references are to the Revenue and Taxation Code unless stated otherwise.

[2] THM and County agreed upon certain factual assertions contained in two filed documents entitled, respectively, Agreed Statement of the Case; Issues to Be Decided; Stipulated Facts and Stipulated Facts, Set Two.

[3] To establish the welfare exemption of property, an organization must obtain, and file with the assessor, an organizational clearance certificate pursuant to section 254.6 to demonstrate it meets the requirements of section 214. (§§ 214.8, subd. (b), 254.6, subd. (b).)

[4] Financial statements in evidence showed House Fitness earned gross income of $58,134.38 in 2013, $137,755.76 in 2014, $221,797.49 in 2015, $183,132.29 in 2016, $154,023.89 in 2017, $115,573.25 in 2018, and $147,889.76 in 2019.

[5] The record is unclear whether Pastor Mattingly assumed his duties as director of House Fitness in 2009, or a later date.

[6] Former section 1c of article XIII of the California Constitution read, in pertinent part: “‘In addition to such exemptions as are now provided in this Constitution, the Legislature may exempt from taxation all or any portion of property used exclusively for religious, hospital or charitable purposes and owned by community chests, funds, foundations or corporations organized and operated for religious, hospital or charitable purposes, not conducted for profit and no part of the net earnings of which inures to the benefit of any private shareholder or individual.…’” (English v. County of Alameda, supra, 70 Cal.App.3d at p. 234, fn. 1.)

[7] Pastor Mattingly testified, “We have people come in all the time that are not even members, but they’ll bring their friend and they—[sic] Pastor Doug prayed for me last week, and he can pray for you. Share your story. Share what you’re hurting. What’s going on? So we have that constantly happening all the time.” He also testified, “I don’t know how other fitness centers are, but I’m constantly calling our people all the time when I haven’t seen them, check how they’re doing, see how their family’s doing.”

[8] Because we have determined the trial court could have reasonably rejected the claim that House Fitness served a charitable purpose, we need not reach the question of whether House Fitness was used exclusively or primarily for that purpose.