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Weld County District Court No. 09CR1370. Honorable Todd L. Taylor, Judge.
John W. Suthers, Attorney General, Ethan E. Zweig, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Webb and Furman, JJ., concur.
[¶1] Defendant, Juan Antonio Morales, appeals the judgment of conviction and sentence entered on jury verdicts finding him guilty of one count each of felony sexual assault, attempted felony sexual assault, and misdemeanor sexual assault. Because we conclude that his conviction and sentence for attempted felony sexual assault violate double jeopardy principles, we vacate that conviction and sentence. Otherwise, we affirm.
[¶2] The evidence presented at trial showed that, on the night of the charged assault, the victim, sixteen-year-old B.R., attended a party at the apartment of an acquaintance, A.R. The young people at the party, including B.R., spent the evening drinking alcohol and smoking marijuana, and became intoxicated. After a few hours, B.R. fell asleep in a bedroom. Eventually, three other girls also fell asleep in the same bedroom.
[¶3] Morales is A.R.'s step-father. He was present for some of the party but did not interact much with the other partygoers. B.R. testified that, before sunrise the next morning, she was awakened by the sensation of Morales kissing her on her face, lips, neck, chest, and stomach. Her shirt had been pulled up, and her pants had been pulled down partially. B.R. felt Morales place his penis on and around the opening of her vagina but not inside of it. Morales also performed cunnilingus on her. Within three or four minutes, B.R. pushed him off of her.
[¶4] Someone turned on the lights in the room when B.R. began screaming at Morales and alleging that he had tried to rape her. A.R. came into the room and escorted an apparently intoxicated Morales out of the apartment. B.R.'s mother called the police later that day when B.R. told her what had happened.
[¶5] Morales was charged with two counts of sexual assault under section 18-3-402, C.R.S. 2014. The charging document specified that these counts related to the act of performing cunnilingus on B.R. A felony count was charged under section 18-3-402(1)(a), alleging that Morales caused B.R. to submit " by means of sufficient consequence reasonably calculated to cause submission against the victim's will." A misdemeanor count was charged under section 18-3-402(1)(e), relating to the circumstances that B.R. was between fifteen and seventeen years old and Morales was ten years older than her and not her spouse.
[¶6] Additionally, Morales was charged with one count of criminal attempt to commit sexual assault in violation of sections 18-3-402(1)(a) and 18-2-101(1), C.R.S. 2014. According to the charging document, this count related to B.R.'s allegation that Morales attempted to inflict sexual penetration by penetration of her vagina with his penis.
[¶7] A jury found Morales guilty on all counts. As to the felony sexual assault, the trial court sentenced him to prison for an indeterminate term of ten years to life. The court also imposed concurrent three-and two-year sentences for the attempted and misdemeanor sexual assaults, respectively. The latter sentences were to run concurrently with the indeterminate term.
II. Batson Challenge
[¶8] Morales seeks a limited remand for the trial court to make a better record on the third step of his Batson challenge. We disagree that a remand is necessary because we conclude that the court properly determined that Morales failed to make a prima facie showing of discrimination at step one of the Batson analysis.
A. Law and Applicable Standard of Review
[¶9] The use of peremptory challenges to purposefully discriminate against prospective jurors based solely on their race, ethnicity, or sex violates the Equal Protection Clause of the federal constitution. Rivera v. Illinois, 556 U.S. 148, 153, 129 S.Ct. 1446, 173 L.Ed.2d 320 (2009); Batson v. Kentucky, 476 U.S. 79, 84, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). An allegation that a party has discriminated in this way is commonly known as a Batson challenge. See Valdez v. People, 966 P.2d 587, 589-90 (Colo. 1998).
[¶10] When considering a Batson challenge from a defendant, a trial court must apply a three-step analysis. Craig v. Carlson,
161 P.3d 648, 654 (Colo. 2007). First, the defendant must make a prima facie showing that the prosecution exercised a peremptory challenge to exclude a prospective juror for discriminatory reasons. Second, if the defendant satisfies the first step, the burden shifts to the prosecution to provide a non-discriminatory explanation. Third, if the prosecution has articulated a neutral explanation, the court must decide whether the defendant has proved purposeful discrimination. Batson, 476 U.S. at 96-98.
[¶11] The first two steps of the Batson analysis are reviewed de novo. Valdez, 966 P.2d at 590-91. The third step involves an issue of fact and thus is reviewed for clear error. Id. at 590.
B. Trial Court Proceedings
[¶12] The prosecutor exercised her second peremptory challenge to excuse Juror No. 17, a woman who appeared to defense counsel to be Hispanic. Defense counsel did not raise a Batson challenge regarding that strike. The prosecutor used her third peremptory strike to excuse Juror No. 10, whom defense counsel also believed to be a Hispanic woman. The following discussion ensued:
[DEFENSE COUNSEL]: At this time the defense makes a Batson challenge as to the [sic] Juror No. 10. I do not believe a pattern needs to be shown in order to make a Batson challenge. But in this case there's a pattern. The prosecution dismissed Juror No. 17, who appeared to me to be [a] Hispanic female. And the prosecutor just dismissed Juror No. 10. And from either person, I didn't hear anything I believe would serve as a basis for even a peremptory.
THE COURT: Is Juror No. 10 Hispanic?
THE COURT: I didn't think Juror No. 10 was Hispanic. And for the record, she didn't appear to be Hispanic to me. I didn't realize that. . . . Her name was [F.S.]. So I don't know if that appears to be some sort of Middle Eastern name. Frankly, I'm guessing. But she did not appear to be Hispanic to me.
[DEFENSE COUNSEL]: Can I see how it's spelled? . . . I think to me she appeared to be, based on the name. . . .
[PROSECUTOR]: Does the Court at this time believe the defense has met its burden regarding Batson and is asking . . . the prosecution for a non-race-based purpose for using the peremptory challenge?
THE COURT: I find the defense is struggling with if she's Hispanic. I find that does not establish a pattern of striking Hispanic jurors. I'm not requiring you to state your reason for having struck the juror. Although, I think the record would be better preserved if you were willing to do so
. . . .
[DEFENSE COUNSEL]: . . . I don't believe a pattern needs to be shown. And I can still make a prima facie argument based on the gender. And the Middle Eastern[.] [A]s to questioning, I don't recall. I don't believe I questioned her at all. And the prosecutor did normal ...