Filed 4/2/21 P. v. Polino CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THE PEOPLE, F077606 Plaintiff and Respondent, (Super. Ct. No. F16902212) v. JOSE ANTONIO POLINO, OPINION Defendant and Appellant. APPEAL from a judgment of the Superior Court of Fresno County. Kristi Culver Kapetan, Judge. Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Matthew Rodriguez, Acting Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- A jury convicted Jose Antonio Polino (defendant) of committing sex crimes against two children. His appeal concerns an allegation of gender discrimination during the jury selection process. There are additional claims of ineffective assistance of counsel, instructional error, and sentencing error under Penal Code section 654. (Undesignated statutory references are to the Penal Code.) We will modify the judgment to stay imposition of punishment on two counts and affirm the judgment as modified. FACTUAL AND PROCEDURAL BACKGROUND Defendant was accused of molesting his stepdaughter (victim 1) and stepgranddaughter (victim 2) multiple times between November 2007 and March 2011. Defendant was between the ages of 29 and 32 years old during that time period. Victim 1 was between the ages of six and eight on the dates relevant to her. Victim 2 was between the ages of nine and 11 on the dates relevant to her. An information filed by the Fresno County District Attorney charged defendant with 13 criminal counts. The charges involving victim 1 alleged lewd acts upon a child under the age of 14 in violation of section 288, subdivision (a) (counts 1–2), and sexual acts with a child under the age of 11 in violation of section 288.7, subdivision (b) (counts 3–6). The charges involving victim 2 also alleged violations of sections 288, subdivision (a) (counts 7–11), and 288.7, subdivision (b) (counts 12–13). A multiple victim allegation was pleaded in relation to counts 1, 2, 7, 8, 9, 10, and 11. (§ 667.61, subd. (e)(4).) The case went to trial in April 2018. During jury selection, defendant made two unsuccessful motions based on Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). Only the second motion, which alleged gender discrimination, is at issue in this appeal. Background information on the Batson/Wheeler claim is provided in the Discussion, post. The People’s case-in-chief included testimony from the victims and their mothers, two police officers who had investigated the allegations, and an expert on child sexual abuse accommodation syndrome (CSAAS). The defense case consisted of testimony by defendant and three character witnesses. The …
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