DETJEN, J.
On November 4, 2011, following mistrial and retrial, defendant Sergio Solis Gonzalez was convicted of two counts of committing a lewd or lascivious act upon a child under the age of 14 (Pen. Code,
On October 9, 2009, Mariah,
On October 10, 2009, Mariah returned to the fair with her parents and reported the incident to Detective Doug Kirkorian. The group proceeded to Kiddie Land and examined at least 20 rides. At retrial, Mariah testified that she pointed to the Little Cricket Express
Afterward, Mariah and her parents went to the police department for a photo lineup. Detective Alfred Lopez read the standard admonition to Mariah:
Mariah was shown a six-photo array that included a picture of defendant. She identified defendant as the perpetrator "in less than 15 seconds," noting his hair and eyes. Lopez informed Mariah that she was "correct" and revealed to her parents that defendant "was already incarcerated for th[e] same action." Kristy told Mariah that "she did a great job" to make "her ... feel good about what she had done no matter who she picked" and later gave her a notepad "for doing good and picking the right person."
On October 22, 2009, Mariah was interviewed by Maria Gutierrez at the Multi-Disciplinary Interview Center (MDIC).
At retrial, Mariah, then seven years old, testified that she was molested on the Little Cricket Express. She described the ride:
Mariah noted that two men were working at the Little Cricket Express: defendant "buckl[ed] everyone up" while his partner "watch[ed]" and "ma[de] sure he d[id] the job right." However, the partner was unable to witness the touching because he was "below" the ride. Mariah mentioned that she and the prosecutor had looked at photographs of the rides together and the prosecutor "helped [her] a lot.... [¶] ... [¶] ... by ... sa[ying] some words ... to remind [her] about the rollercoaster...."
On cross-examination, defense counsel impeached Mariah with her testimony at the first trial. The following excerpt was read into the record:
Mariah conceded that she made these statements, but said, "[I]f I picked the [Wacky Worm], then I was wrong.... [¶] ... [¶] ... I was little. So I probably didn't know." Mariah later added, "[A]fter the first court day, I've been thinking about and thinking about it ever since and then today I finally remembered it."
Defendant had been a fulltime employee for Shamrock Shows (Shamrock), a traveling carnival company, since 2008. On October 9, 2009, he served as a "breaker"—one who "gives the ride operators a break"—at the Big Fresno Fair's Kiddie Land area. One of his responsibilities was to check and fasten the seatbelts before the start of the ride. Defendant worked at the Little Cricket Express from 2:42 p.m. to 3:42 p.m., 7:00 p.m. to 8:00 p.m., and 10:15 p.m. to 10:45 p.m. He did not work at the Wacky Worm.
Joseph Blash, Shamrock's president, distinguished the Wacky Worm from the Little Cricket Express:
Blash testified that the Wacky Worm "has at least two and sometimes three people operating it," whereas "most of the kiddie rides have one person operating them." Neither the Little Cricket Express nor the Wacky Worm had a glass fence. Blash could not recall whether any of the rides in Kiddie Land had lap-and-shoulder seatbelts.
Victoria Willms, a fulltime Shamrock employee and Kiddie Land's supervisor at the time of the incident, testified that both the Little Cricket Express and the Wacky Worm "look like a caterpillar." She described the Little Cricket Express as a "ground train" that "sit[s] on the ground," "doesn't go up or down," is operated by one person, and uses a lap belt. The Wacky Worm, on the other hand, has track supports, "never reach[es] ground level," "go[es] up and down," and is operated by three people.
"When an appellant challenges the sufficiency of the evidence, the reviewing court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt." (People v. Aispuro (2007) 157 Cal.App.4th 1509, 1511; accord, People v. Bolin (1998) 18 Cal.4th 297, 331; see People v. Farnam (2002) 28 Cal.4th 107, 143 ["`The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'"].) "Reversal on this ground is unwarranted unless it appears `that upon no hypothesis what[so]ever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin, supra, at p. 331.) "For evidence to be `substantial' it must be of ponderable legal significance, reasonable in nature, credible and of solid value." (People v. Aispuro, supra, at p. 1511; accord, People v. Johnson (1980) 26 Cal.3d 557, 576.)
"`Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court[,] that must be convinced of the defendant's guilt beyond a reasonable doubt.'" (People v. Farnam, supra, 28 Cal.4th at p. 143.) "Simply put, if the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." (Ibid.) "`Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.... We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.'" (People v. Lee (2011) 51 Cal.4th 620, 632.)
We conclude that substantial evidence supported the jury's guilty verdict on count 1. "[A]ny person who willfully and lewdly commits any lewd or lascivious act ... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony...." (§ 288, subd. (a); accord, People v. Warner (2006) 39 Cal.4th 548, 556.) The record—viewed in the light most favorable to the verdict—shows that Mariah rode the Little Cricket Express when defendant was on duty. Before the start of the ride, defendant buckled Mariah's seatbelt, reached under her shorts and underwear, and touched her vagina for up to three seconds. (See People v. Martinez (1995) 11 Cal.4th 434, 452 ["[T]he circumstances of the touching remain highly relevant to a section 288 violation.... A touching which might appear sexual in context because of ... the nature of the touching, or the absence of an innocent explanation, is more likely to produce a finding that the act was indeed committed for a sexual purpose and constituted a violation of the statute."]; In re Mariah T. (2008) 159 Cal.App.4th 428, 440 ["Because intent for purposes of ... section 288 can seldom be proven by direct evidence, it may be inferred from the circumstances."].)
On appeal, defendant challenges Mariah's credibility in several respects: (1) Mariah previously identified the Wacky Worm as the ride on which she was molested; (2) Mariah was purportedly coached by the prosecutor and Kristy to identify the Little Cricket Express as said ride; (3) Mariah's description of the Little Cricket Express inaccurately incorporated features of the Wacky Worm and other rides; (4) Mariah's pretrial identification of defendant as the perpetrator was subsequently tainted by Lopez's and Kristy's comments that she was "correct" and "did a great job" and Kristy's notepad gift; and (5) the pretrial identification was the product of Mariah's poor perception and memory. However, "it is not a proper appellate function to reassess the credibility of the witnesses." (People v. Jones (1990) 51 Cal.3d 294, 314-315.) The resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. (People v. Solomon (2010) 49 Cal.4th 792, 818; People v. Young (2005) 34 Cal.4th 1149, 1181; see Stromerson v. Averill (1943) 22 Cal.2d 808, 814-815 ["Inconsistencies only affect the credibility of the witness or reduce the weight of his testimony and it was for the trier of the fact to weigh the evidence and determine his credibility."].) The jury, by its guilty verdict, necessarily credited Mariah's account at retrial of the October 9, 2009, incident and her October 10, 2009, pretrial identification of defendant. It accepted her explanation that she mistakenly identified the Wacky Worm at the first trial and rejected the proposition that she was influenced by third parties. (See People v. Brady (1887) 72 Cal. 490, 491 [a guilty verdict cannot not be disturbed if testimony credited by the jury demanded such a verdict].)
The reviewing court may reject the testimony of a witness who has been believed by the trier of fact only if (1) it is physically impossible for the testimony to be true, or (2) the falsity of the testimony is apparent without resort to inference or deduction. (People v. Thompson (2010) 49 Cal.4th 79, 124; People v. Friend (2009) 47 Cal.4th 1, 41; People v. Barnes (1986) 42 Cal.3d 284, 306; see People v. Young, supra, 34 Cal.4th at p. 1181 ["[U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction."].) Although "variances [and] inconsistencies in [Mariah]'s testimony[,] and the showing that she had talked with her mother and certain police officers, undoubtedly afforded an opportunity for a persuasive argument to the jury against the reliability of her testimony" (People v. Wilder (1957) 151 Cal.App.2d 698, 704), we are not convinced that her testimony was either impossible to believe or obviously false (see ibid.). In view of the record, the jury could have plausibly concluded that Mariah, who was molested at the age of five on one of the many rides that she rode during a seven-hour visit to the Big Fresno Fair, could "not reasonably be expected to give a ... wholly unvarying description of the entire transaction and of the circumstances surrounding [the] occurrence [of the ordeal]." (People v. Kearney (1942) 20 Cal.2d 435, 437-438; see People v. Golden (1961) 55 Cal.2d 358, 365 [unusual or inconsistent testimony is not necessarily improbable]; see also People v. Harlan (1990) 222 Cal.App.3d 439, 454 ["`[C]onfusion or inability to recall details of the incident[] in question goes to the witness's credibility....'"].)
V.R., a female with a Spanish surname, was one of 21 prospective jurors called to the jury box on October 14, 2011, the first day of jury selection. During voir dire, she indicated that she served as a juror in a previous case:
On October 17, 2011, the prosecutor used his first peremptory challenge to strike V.R. from the panel.
M.G., a female with a Spanish surname, was one of 10 prospective jurors called to the jury box on October 17, 2011, to replace excused panelists. During voir dire, she disclosed that a member of her family was incarcerated:
That same day, the prosecutor used his sixth peremptory challenge to strike M.G. from the panel.
Defense counsel raised a Wheeler/Batson
The court determined that defense counsel established a prima facie case of racially motivated peremptory challenges, shifting the burden of proof to the prosecutor to provide race-neutral justifications. The prosecutor responded:
The court accepted these justifications:
Defense counsel did not raise another Wheeler/Batson objection for the remainder of jury selection.
Following the court's Wheeler/Batson ruling, V.F., a female without a Spanish surname, and E.S., a male without a Spanish surname, were two of 10 prospective jurors called to the jury box on October 19, 2011, to replace excused panelists. During voir dire, V.F. stated that she served as a juror in two previous cases:
E.S. revealed that he was once investigated as a criminal suspect 20 years earlier. When the court asked whether "anything c[a]me of that," E.S. replied, "No." On October 20, 2011, V.F. and 11 others were sworn as jurors
"`[T]he question presented at the third stage of the [Wheeler/]Batson inquiry is "`whether the defendant has shown purposeful discrimination.'"'" (People v. Hamilton (2009) 45 Cal.4th 863, 900.) "The existence or nonexistence of purposeful racial discrimination is a question of fact." (Ibid.) "We review the decision of the trial court under the substantial evidence standard, according deference to the trial court's ruling when the court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror." (Id. at pp. 900-901, fn. omitted; see People v. Burgener (2003) 29 Cal.4th 833, 864 ["We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses."].)
In a criminal case, a party may object to a prospective juror by way of a challenge for cause or a peremptory challenge. (Code Civ. Proc., §§ 192 & 225, subd. (b); accord, Batson, supra, 476 U.S. at p. 127 (dis. opn. of Burger, C.J.); Wheeler, supra, 22 Cal.3d at p. 273.) Whereas a challenge for cause "obviously ha[s] to be explained" (Batson, supra, at p. 127 (dis. opn. of Burger, C.J.); see Code Civ. Proc., § 225, subd. (b)(1)), "no reason need be given for a peremptory challenge, and the court shall exclude any juror challenged peremptorily" (Code Civ. Proc., § 226, subd. (b); accord, Wheeler, supra, at p. 273). "Peremptory challenges `traditionally have been viewed as one means of assuring the selection of a qualified and unbiased jury' [citation] to be asserted by either the defense or prosecutor `"on his [or her] own dislike, without showing any cause" ... without reason or for no reason, arbitrarily and capriciously.'" (People v. Williams (1997) 16 Cal.4th 635, 663.) However, "[t]he prosecution's use of peremptory challenges to remove prospective jurors based on group bias
The issue of whether a peremptory challenge was racially motivated is analyzed pursuant to the Wheeler/Batson three-step inquiry. "First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." (People v. Lenix (2008) 44 Cal.4th 602, 612-613 (Lenix).)
"A prosecutor asked to explain his conduct must provide a `"clear and reasonably specific" explanation of his "legitimate reasons" for exercising the challenges.' [Citation.] `The justification need not support a challenge for cause, and even a "trivial" reason, if genuine and neutral, will suffice.' [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citations.] Nevertheless, although a prosecutor may rely on any number of bases to select jurors, a legitimate reason is one that does not deny equal protection. [Citation.] Certainly a challenge based on racial prejudice would not be supported by a legitimate reason." (Lenix, supra, 44 Cal.4th at p. 613.)
"At the third stage of the Wheeler/Batson inquiry, `the issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.' [Citation.] In assessing credibility, the court draws upon its contemporaneous observations of the voir dire. It may also rely on the court's own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her." (Lenix, supra, 44 Cal.4th at p. 613, fn. omitted.)
We conclude substantial evidence supported the court's determination that the prosecutor's peremptory challenges vis-à-vis V.R. and M.G. were not racially motivated. After defense counsel made a prima facie showing of group bias, the prosecutor articulated legitimate, race-neutral justifications for each challenge. First, he rationalized that V.R. may be biased in favor of defendant in view of her past experience as a juror who returned a not guilty verdict.
For the first time on appeal, defendant contends that a comparison between the voir dire responses of V.R. and M.G. and those of V.F. and E.S., respectively, "demonstrates that the prosecutor's stated reasons ... were pretextual." Comparative juror analysis is "one form of circumstantial evidence that is relevant, but not necessarily dispositive, on the issue of intentional discrimination" (Lenix, supra, 44 Cal.4th at p. 622), and "must be considered ... for the first time on appeal if relied upon by the defendant and the record is adequate to permit the urged comparisons" (ibid.; accord, People v. McKinzie (2012) 54 Cal.4th 1302, 1321; People v. Hamilton, supra, 45 Cal.4th at p. 902, fn. 12). However, "the trial court's finding is reviewed on the record as it stands at the time the Wheeler/Batson ruling is made. If the defendant believes that subsequent events should be considered by the trial court, a renewed objection is required to permit appellate consideration of these subsequent developments." (Lenix, supra, at p. 624; accord, People v. Trinh (2014) 59 Cal.4th 216, 241; People v. Chism (2014) 58 Cal.4th 1266, 1319.)
The record shows that the court denied defense counsel's first and only Wheeler/Batson motion on October 17, 2011. V.F. and E.S. were called to the jury box on October 19, 2011, underwent voir dire examination, and were sworn on October 20, 2011. Because defense counsel failed to renew the objection, defendant forfeited any argument involving V.F.'s and E.S.'s responses. (See People v. Trinh, supra, 59 Cal.4th at p. 241; People v. Chism, supra, 58 Cal.4th at p. 1319; People v. Hartsch (2010) 49 Cal.4th 472, 490, fn. 18.)
The judgment is affirmed.
GOMES, Acting P.J. and FRANSON, J., concurs.
