(Santa Clara County Super. Ct. No. CC775750) Trial Judge: The Honorable Gilbert T. Brown
The opinion of the court was delivered by: Rushing, P.J.
CERTIFIED FOR PUBLICATION
While working as a Vietnamese prostitute, Amy "Doe"*fn1 was robbed on two occasions and raped on the second occasion by a Vietnamese male who was identified as defendant Khoa Khac Long through investigation by a Vietnamese police detective. A jury was seated after a Vietnamese prosecutor exercised some of her peremptory challenges against the only three Vietnamese prospective jurors. After trial, the jury convicted defendant of two counts of first degree robbery (counts 1, 3; Pen. Code, §§ 212, 212, subd (a)(2))*fn2 and one count of rape (count 2, § 261, subd. (a)(2)) of the same victim, while finding not true that he personally used a firearm in the commission of these offenses (§§ 667.61, 12022.3, 12022.53).*fn3 The trial court sentenced defendant to prison for 14 years, including a six-year upper term on count 1 with a full consecutive eight-year upper term on count 2, and a six-year concurrent term on count 3. The trial court also required defendant to register as a sex offender, to provide samples for DNA and AIDS testing, and to pay various fines and fees, including a restitution fine of $7,800.
On appeal, defendant contends that (1) there was insufficient evidence that the motel rooms that were the scenes of the crimes were inhabited, (2) the trial court erred in upholding the prosecutor's use of peremptory challenges against prospective Vietnamese jurors, and (3) his sentence is unconstitutional. As we explain below, we will reverse the judgment, finding no evidence in the record substantiating one of the peremptory challenges. In light of this conclusion, we need not review the prosecutor's challenges to the two other jurors or the constitutionality of the sentence. We will consider whether the evidence was sufficient.
II. THE EVIDENCE AT TRIAL
At trial it was undisputed that Amy was working as a prostitute both times that defendant came to her room in each of two motels on September 19 and December 3, 2006. Surveillance videos from the motels showed defendant and Amy outside her rooms at different times. It was also undisputed that they engaged in sexual intercourse on December 3. DNA testing revealed that defendant's semen was on Amy's chest. What was in dispute at trial was whether defendant robbed Amy on both occasions using a firearm and whether he raped her on the second occasion.
Defendant testified that he was a regular customer of hers, and that, on both occasions, they had consensual sex for which he paid her, as they had several times before. On the last occasion, contrary to her prior practice, she did not encourage to him to wear a condom.
According to Amy, she sometimes stayed at hotels in San Jose where she worked as a prostitute. On September 19, she was staying at the Best Western Inn. She got to the room around noon. She had other customers before defendant arrived in the evening. She could not recall if he had made an appointment by telephone. He was no one she had seen before. They spoke in Vietnamese. He asked to use the restroom and came out holding a small handgun. She said he could take whatever he wanted. He threatened to kill her if she did not shut her eyes, keep her mouth closed, and lie face down on the bed. She complied. He asked her where the money was. She heard him gathering up her belongings, and, when she opened her eyes, she realized he had taken her laptop, purse, her wallet and its contents, jewelry, a watch, two cell phones, and over $1,000 in cash. She noticed that everything was gone, but she could not remember everything she had. She could not remember if any luggage was missing from her room. He ignored her plea to not take her passport and driver's license. He said that he knew where she lived and would come after her if she called the police. She talked him out of tying her up, but he had her disrobe and took photos of her with a cell phone, saying he would put them on the Internet if she called the police.
After he left, she looked out the door and called for help. Then she dressed and went to the hotel lobby, from which she telephoned a male friend, Vahidin "Max" Maksumic. After Max arrived, Amy or a hotel employee called the police.
Max had befriended Amy a few months before September 19, 2006, after meeting her in a nightclub.*fn4 They sometimes went shopping or out to eat. At the beginning he was not that aware of "what she was doing." She told him that she gave massages and worked in hotels. After the police came and talked to both of them on September 19, Max learned "what she does." He did not approve of it, but he had strong feelings for her. Occasionally, when she said she was hungry, he brought her a meal, lunch or dinner, at a hotel. Sometimes he visited her three or four consecutive days. Other times he would not see her for a week or two, because he traveled a lot.
San Jose Police Officer Luu Pham, the only certified bilingual Vietnamese detective, assigned himself the case and interviewed Amy. He met with her twice at a two-story house in San Jose, which was also occupied by a Vietnamese family, a husband and wife and two toddlers.*fn5
The robbery frightened Amy, but a few months later, on December 3, 2006, she was working as a prostitute and staying the night in the Days Inn hotel. She arrived at the room in the daytime. Later that day, her friend Max rented the room across the hall so that he could offer her protection. He had not done that before.
Amy had some customers that day before she opened the door in the evening to find defendant standing outside. She started to scream when she saw him, but he pulled out a hand gun, held it to her head, and pulled her down on the floor. He said he was a bad man. He told her to shut up and close her eyes. He said he was going to kill her. She complied with his demand to remove her clothes. She got on the bed face down without him telling her to. He told her to keep her eyes closed or he would shoot her right away. She told him she had hidden money in the bathroom. When he came out of the bathroom, he said that he knew she had more money than that, $500 or $600. He pressed the gun against her vagina. He asked where the rest of her money was. She said that was all she had in the room. More was in her car. She told him to take the key.
He said he would rape her if she did not give him more. He turned her over and put his penis in her vagina. She felt the gun against her face several times, which was why she did not scream for help. He ejaculated outside of her. Defendant took her cell phone but not her clothes.
After defendant left, Amy called out for help and crossed the hall to knock on Max's door, but he was not there. By that time Max had been at the hotel around four hours and was bringing things to his car so he could leave. She encountered him in the hallway and told him she had been robbed again by the same man. Max went out into the parking lot and recorded the license plate and description of a car leaving the parking lot. Amy gave this information to the police. She submitted to a medical examination.
Police investigation led to the car's registered owner, Bao Tran, an associate of defendant. On December 14, 2006, Tran reluctantly admitted to Detective Pham that defendant had borrowed his car 10 days earlier, and that when defendant returned it, he told Tran to get rid of it right away because it might have been identified by witnesses as involved in a robbery and shooting. Pham recovered one of Amy's cell phones on December 14, 2006, in a crash pad crack house located where defendant had returned the car.
III. SUFFICIENCY OF THE EVIDENCE OF ROBBERY
On appeal defendant contends that the prosecution failed to prove one element of first degree robbery, namely that the crime occurred in either "an inhabited dwelling house" or "the inhabited portion of any other building." (§ 212.5, subd. (a).)
The jury in this case was instructed in terms of CALJIC No. 9.42: "There are two degrees of robbery. Every robbery of any person which is perpetrated in an inhabited portion of any building is robbery of the first degree. All other robberies are of the second degree." In opening argument, the prosecutor asserted, "I do not believe that you will hear any argument from the defense that this is, if a robbery, anything other than a first degree robbery. This is an inhabited place, even if it is just for a night. A jail cell can be a inhabited [sic] place. Anything where someone is actually living or staying, even temporarily, is a robbery of first degree." Indeed, defense counsel did not dispute this point in argument.
This is not the first time a California state court has been asked to decide when a hotel or motel room qualifies as "inhabited." The issue has sometimes arisen in the context of burglary convictions, because section 460 defines first degree burglary as involving, among other things, "an inhabited dwelling house" or "the inhabited portion of any other building." Section 459 provides in part that " 'inhabited' means currently being used for dwelling purposes, whether occupied or not."*fn6 Since the statutes use the same phrases, they should receive the same interpretation. (People v. Fleetwood (1985) 171 Cal.App.3d 982, 987 (Fleetwood).)
An issue on appeal in Fleetwood was whether there was sufficient evidence that a prostitute's room in a boarding hotel qualified as a "dwelling house." (Fleetwood, supra, 171 Cal.App.3d at p. 985.)*fn7 Although the robbery victim had engaged in acts of prostitution in the room and it was furnished with only two mattresses and a television set, the appellate court concluded that there was substantial evidence that she also resided there. Prior to the robbery, she had been staying in the room for a week to a week and a half and she had paid up to two weeks' rent. (Id. at pp. 988-989.)
The contention on appeal in People v. Villalobos (2006) 145 Cal.App.4th 310 (Villalobos) was " that an occupied motel room, such as that where these crimes took place, is not an 'inhabited dwelling house' within the meaning of the relevant statutes, if the room is rented only for one night." (Id. at p. 313.) In order to define "inhabited," the court considered the purpose of the burglary and robbery statutes. The ...