P. v. Allen

Filed 5/16/08 P. v. Allen CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant was convicted of attempted robbery and murder with special circumstances on the basis of testimony that, intending to take drugs and money, he barged into the home of a drug dealer and shot him. Defendant contends that (1) the prosecution dismissed jurors for racially discriminatory reasons, (2) the court erroneously admitted evidence of his commission of an uncharged robbery, (3) the court improperly struck his testimony when he refused to answer questions on cross-examination about an uncharged robbery, and (4) the jury committed misconduct. We affirm.

I. BACKGROUND

Defendant was charged in an indictment filed March 9, 2000, with first degree murder (Pen. Code,[1]  187; count one), attempted first degree residential robbery ( 211, 212.5, subd. (a), 664; count two), first degree residential burglary ( 459, 460, subd. (a); count three), and being a felon in possession of a firearm ( 12021, subd. (a)(1); count four). The indictment alleged, as special circumstances, murder committed in the course of attempted robbery and burglary. ( 190.2, subd. (a)(17).) The first, second, and third counts included an enhancement allegation that defendant had personally used a firearm. ( 12022.5, subd. (a)(1), 12022.53, subd. (b).) It was also alleged that defendant had suffered a prior strike, a prior serious felony conviction, and two prior prison terms. ( 667, subds. (b)(i), 667, subd. (a)(1), 667.5, subd. (b).)

Around the time the victim, Jerry Chambers, was fatally shot, defendant was living primarily in the home of Greg McKinnon in Concord, sleeping and keeping his belongings in McKinnons living room. Robert Donlin and his girlfriend were living in one of McKinnons bedrooms, and Sharon Norwood divided her time between McKinnons home and the home of another friend. Although McKinnon held a job, defendant, Donlin, and Norwood were unemployed. The three spent most of their waking hours drinking, using methamphetamine, and smoking marijuana, often joined by McKinnon.

According to the testimony of Donlin and Norwood, in the days leading up to the shooting, defendant and Donlin had discussed robbing and killing Chambers. They believed Chambers, a local methamphetamine dealer, kept drugs and money at his home. In addition, defendant had developed a personal grudge against Chambers, who defendant believed was selling methamphetamine to his former girlfriend. At some point shortly before the shooting, defendant and Donlin had prowled around Chamberss home late at night, but they did not break in.

On January 15, 1998, defendant urged Donlin to go with him to Chamberss home. Donlin begged off, and the two argued. Defendant then asked Norwood to drive him to the Chambers home, telling her that he was going to rob Chambers and would share with her some of the proceeds. Norwood drove defendant to Chamberss residence and parked in front. As Norwood began to alter the numbers on the license plate of her car with electrical tape, defendant removed a sawed-off shotgun from the car and walked toward the home.

Chamberss wife, Michelle, testified that, in early 1998, she lived in Concord with Chambers, their adopted baby daughter, and their teenaged daughter. Late on the evening of January 15, Michelle was in the kitchen preparing a bottle for the baby, and her daughter was upstairs. Chambers was sitting in the living room. As Michelle watched, the front door opened, and a man walked into the living room, carrying a shotgun with the stock removed and wearing a black ski mask. When the man cocked the gun, Chambers told him to put it down. Chambers then rose, moved toward the man, and grabbed hold of the gun, causing a struggle. At this point, Michelle ran out the back door and into the garage. Within seconds, she heard the gun fire and hurried back into the house. The intruder was gone, and Chambers was leaning against the furniture with a severe facial wound. Michelle attempted to hold him up, but he slumped to the floor and died. Nothing was stolen from their home that night.

Michelle later told the police that the gunman was a little shorter than Chambers, a very tall man at around six feet seven inches tall, and had a beer belly, but at trial she testified that the gunman was as much as a foot shorter than her husband.

Norwood further testified that, as she waited impatiently in the car following defendants departure toward Chamberss home, she heard a gunshot and then screaming from the direction of the house. Defendant ran down the driveway and jumped into the passenger seat, carrying the shotgun. As Norwood began driving away from Chamberss home, she asked defendant what had happened inside. He said that Chambers was sitting in a recliner inside the house and threw a Pepsi at him.[2] He shot Chambers in the neck and likely killed him. Immediately thereafter, defendants shotgun went off, apparently accidentally, blasting a hole in the floorboard of Norwoods car.

Donlin and McKinnon were at McKinnons home when defendant and Norwood returned. Donlin and McKinnon testified that defendant immediately recounted the killing to them.

The trial court permitted the prosecution to introduce evidence of a robbery that defendant committed nearly three weeks later at a Petco store in Concord. Defendant was being prosecuted for the robbery in a separate indictment that the trial court had refused to consolidate for trial with this case. On the night of February 4, 1998, Donlin and defendant caught a cab to a Walgreens store. The cab was necessary because neither had a functioning car. After the cab driver parked in the Walgreens parking lot, Donlin, whose job was to hold the cab, entered the drugstore. Defendant walked across the parking lot and through an alley and some bushes to a nearby Petco store. Defendant entered Petco wearing a loose-fitting black mesh mask and holding a revolver. He walked to the cash register and told the clerk to open it and give him the money. When the clerk opened the register, defendant took the money from her. He then ordered the manager to open the other registers and a safe located nearby. After collecting the money, defendant ran out the back entrance.

Apparently by coincidence, a police officer was parked outside Petco that night, preparing a report on his laptop computer. His car was located only 10 feet from the stores back doors. When the officer heard a loud metallic bang, he looked up and saw a masked man standing in the Petco doorway, holding a revolver. The officer dove for the passenger seat of his car, at the same time grabbing his shotgun. As he did so, the officer saw in his rearview mirror that the man had run past the police car. The officer then left the car and began chasing the man, shouting for him to stop. As the man ran along the wall of the Walgreens store, he pulled off his mask, turned toward the pursuing officer, and pointed and fired the revolver, without hitting the officer. The officer lost sight of defendant, who, Donlin testified, returned to the drugstore parking lot and got back into the cab Donlin was holding. As they drove off toward McKinnons house, a police officer waved them through a roadblock that had been set up as a result of the robbery. Defendant shared some of the stolen money with Donlin.

Defendant was arrested five days after the Petco robbery, nearly a month after Chamberss killing. On February 9, 1998, a passing Concord police officer noticed defendant and Norwood sitting in a car in the parking lot of a Biens Cheaper store. The officer pulled his car into the Cheaper store parking lot and watched as defendant left the car and entered the store. He checked the license on the car, which was registered to Norwood, and found that it was expired and that Norwood was subject to an outstanding felony arrest warrant. After requesting assistance, the officer parked his car behind Norwoods car. Defendant emerged from the Cheaper store carrying a grocery bag, walked to the car, placed the bag inside the car, and walked back to stand in front of the store. The officer arrested Norwood and searched her car. When he found a plastic container with what appeared to be narcotics, he arrested defendant. More thorough searches of the car located a hole in the passenger floorboard, a sawed-off shotgun, narcotics paraphernalia, and a revolver. Forensic testing later determined that the revolver found in Norwoods car was the same revolver that had fired a spent bullet found at the scene of the Petco robbery.

Trial did not begin until nearly seven years after the killing, on January 10, 2005. During jury selection, two of the prosecutions first five peremptory challenges were used to dismiss African-American jurors. The two represented one-third of the African-American jurors in the venire. After the second dismissal, defendant moved to discharge the jury panel under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), contending that the prosecutions challenges were racially motivated. The trial court denied the motion, concluding that no prima facie case of discrimination had been established because (1) defendant is not an African-American, (2) the prosecution had not eliminated all persons of color, and (3) there were plausible nondiscriminatory grounds for challenging both of the dismissed African-American jurors.

After the 12 regular jurors had been selected, the jury consisted of one African-American, one Filipino, and 10 Caucasians. Selection of four alternate jurors then began. With her last peremptory challenge, the prosecutor dismissed an African-American woman from the alternates. At that point, defendant renewed his Batson-Wheeler motion, arguing that the pattern of the prosecutions peremptory challenges, which had removed six minority jurors and four Caucasians, demonstrated that the African-American alternate had been dismissed because of her race. The trial judge again denied the motion on the ground that defendant had failed to establish a prima facie case of discrimination, noting that (1) neither defendant nor Chambers were African-American, and (2) there were plausible nondiscriminatory reasons for challenging the alternate juror.

During trial, defendant testified on his own behalf. He told the jury that on the night of Chamberss shooting, he was asked to babysit for McKinnons son while McKinnon, Donlin, and Norwood left. When they returned, McKinnon was wearing camouflage paint, and the heel of his boot had been shot off. McKinnon, a very large man who was a better fit than defendant for the original description of the shooter given police by Michelle, told defendant that he had killed Chambers in a dispute over a drug deal.

Defendant did not address the Petco robbery in his direct testimony, other than to offer the stipulation that he was charged with the Petco robbery in a separate case and to tell the jury that he was not going to answer questions about the Petco robbery as a result of that pending matter. In a subsequent discussion with the court, defense counsel insisted that defendant would claim a Fifth Amendment privilege against answering any cross-examination about the Petco robbery. Counsel did not change his view when the court told him that defendant had the choice of responding to Petco questions or having his testimony stricken. Outside the presence of the jury, the prosecutor was permitted to ask defendant a series of questions regarding his commission of the Petco robbery, which he refused to answer. When the jury returned, the trial court struck the entirety of defendants testimony and instructed the jury to disregard it. Cross-examination of defendant therefore ended before it began, and the next witness was called.

Toward the end of defendants case-in-chief, outside the presence of the jury, the prosecutor requested that the court rescind your striking of [defendants] testimony and . . . put [him] back on the witness stand. The prosecutor proposed to question defendant in front of the jury about not only the Petco robbery but also 12 other robberies that defendant had been charged with committing at around the same time. The trial court immediately rejected the prosecutions proposal to question defendant about the other robberies as more prejudicial than probative, but it expressed a willingness to consider the remainder of the request. In response, defense counsel informed the court that he would instruct defendant not to retake the stand: I am not going to let him get up there and damage his standing in front of this jury by having him invoke over and over again on something, in my opinion, he shouldnt have to.

The court thereafter ruled, I am going to grant the Peoples motion to unstrike [defendants] testimony. [] I agree . . . that having [defendant] get up on [the] stand and take the Fifth Amendment 100 or 200 times in front of the jury is not appropriate. [] . . . [The prosecutor] will be allowed to ask him some questions with respect to the robbery. [] What I mean by some questions is enough questions to establish that he does not intend to answer any questions with respect to the robbery. [] So Im talking about one to three questions. After that, you would have to move on. [] [Defendant], if he still wants to take the Fifth . . . . [] . . . [] I will then instruct [him] that he does not have that privilege, that he has to answer the question. . . . [] . . . After that, that will be the end of it. The court also made clear that, if defendant refused to answer Petco robbery questions, it would instruct the jury using CALJIC No. 2.62, which would permit the jury to draw an adverse inference from defendants refusal to answer. After further discussion, defense counsel reiterated that he would instruct [defendant] not to retake the stand, and defendant told the court that it was his personal decision to refuse to answer those questions because I would be forced to violate a court order multiple times, and it would make me look bad in front of the jury.

When the jury returned to courtroom, the court said that its ruling striking defendants testimony is rescinded. His testimony now stands. Defense counsel informed the court that because defendant was charged in a separate case with the Petco robbery, the courts ruling violated his right against self-incrimination and therefore I cannot allow [him] to testify. The court noted its disagreement with counsels position and ordered defendant to take the stand. When defendant himself told the court that he would not comply, the court stated, Now that [defendant] has refused to take the stand to submit . . . himself to cross-examination, Im left with no other choice but again to strike his testimony and admonish the jury . . . to disregard his testimony. [] So again, [defendants] testimony is stricken, and the jury is admonished to disregard it.

When charging the jury, the trial court gave a limiting jury instruction regarding use of the Petco robbery evidence, telling the jurors that they could not consider the evidence to determine the identity of the person who killed Chambers, nor to prove that defendant was a person of bad character or of a disposition to commit crimes. Instead, the court instructed, the evidence could be used only for the limited purpose of demonstrating that defendant intended to commit a robbery when he went to the Chambers home.

The jury found defendant guilty on all counts and upheld the special circumstances allegations. After a separate trial, the jury rejected the death penalty in favor of a sentence of life without the possibility of parole.

Defendant thereafter filed a motion seeking a new trial on the grounds of jury misconduct. Submitted with the motion was a handwritten declaration from one of the jurors, which stated that during the guilt phase of the trial the jury discussed and considered the Petco robbery to determine the identity of Jerry Chambers [sic] killer. Specifically the jury discussed and considered . . . the Petco robbery as evidence that [defendant] was the guy who killed Jerry Chambers. A second declaration from a private investigator stated, without providing any details, that the jurors discussed the Petco robbery as evidence of the identity of the killer of Jerry Chambers during the guilt phase. The court ruled that the declarant jurors statement that the jury discussed during the guilt phase of deliberations the Petco robbery was admissible, but the remainder of his declaration was inadmissible because it goes to the subjective reasoning processes of the jurors. The court ruled the investigators declaration to be inadmissible hearsay in its entirety. Based on the limited amount of admissible evidence, the trial court found that defendant had not satisfied his burden of proof and denied the motion for a new trial.

The trial court imposed the sentence of life without possibility of parole on the murder count and imposed sentence but stayed execution on the attempted robbery and burglary counts pursuant to section 654. The court also imposed several enhancement terms to run consecutively with the murder sentence.

II. DISCUSSION

Defendant contends that the trial court erred in (1) concluding that he had failed to establish a prima facie case of discriminatory purpose in connection with his two Batson/Wheeler motions, (2) admitting evidence of the Petco robbery, (3) striking his testimony as a sanction for his failure to answer questions about the Petco robbery, and (4) denying his motion for a new trial based on jury misconduct.

A. Defendants Batson/Wheeler Motions

In Batson,the United States Supreme Court held that the exercise of a peremptory challenge for a discriminatory purpose offends equal protection under the Fourteenth Amendment. (Batson, supra, 476 U.S. at p. 89.) Years earlier, the California Supreme Court in Wheeler had held that such conduct violated the state Constitutions guarantee of a trial by a jury drawn from a venire representative of the community. (See People v. Huggins (2006) 38 Cal.4th 175, 226.) A defendant seeking to challenge a prosecutors peremptory challenge on these constitutional grounds first must show that the relevant circumstances give rise to an inference that the objectionable challenge was purposefully discriminatory. Only if the defendant makes this prima facie showing, the burden shifts to the prosecutor to provide permissible race-neutral justifications for the peremptory challenge. Taking all factors into consideration, the trial court must then determine whether the defendant has proved that the objectionable challenge was based on purposeful discrimination. (Huggins, at pp. 226227.)

Although the California and United States Supreme Courts agree on these basic principles, the two courts have adopted somewhat different approaches to the analysis of Batson/Wheeler challenges. The most obvious difference was that, prior to Johnson v. California (2005) 545 U.S. 162 (Johnson), California courts required a defendant to demonstrate a  strong likelihood  of discriminatory conduct in order to establish a prima facie case (e.g., People v. Johnson (2003) 30 Cal.4th 1302, 13161317, revd. Johnson, supra, 545 U.S. 162), while the federal courts required the defendant to demonstrate only a reasonable inference of such conduct. (Johnson, at p. 173.) That inconsistency was eliminated by Johnson, which concluded that the two standards were different and instructed the California courts to adopt the federal standard. (Ibid.)

At the time of defendants trial, the United States Supreme Court had not yet decided Johnson, leaving an uncertainty noted by the trial judge, who commented before ruling on defendants first Batson/Wheeler motion, [I]ts unfortunate that [People v. Johnson, supra, 30 Cal.4th 1302] was not resolved by the United States Supreme Court, because we still have that fuzzy language with what towhat the burden is, what the showing has to be. Justice Chin [in the California Supreme Courts decision in People v.] Johnson indicated that the standard in California is the same as indicated in Batson and meets [sic] one and the same. They were just using different wording. The trial judge otherwise did not articulate the standard she was applying when making her determination that no prima facie case had been demonstrated.

There is a second difference in approach that has not been acknowledged by either Supreme Court. Both courts instruct the trial court to determine whether   the totality of the relevant facts gives rise to an inference of discriminatory purpose   when evaluating a prima facie case. (People v. Howard (2008) 42 Cal.4th 1000, 1016 (Howard), quoting Johnson, supra, 545 U.S. at p. 168.) In practice, however, the two courts have taken a different view of what constitutes the totality of relevant facts. The federal courts have generally relied primarily on objective factors, such as the mix of members of a racial minority in the jury venire and the racial or ethnic pattern of the prosecutions peremptory challenges. (E.g., Batson, supra, 476 U.S. at pp. 9596.) Although Batson instructed the trial court to consider jury voir dire in evaluating the defendants prima facie case (id. at p. 97), this direction generally has not been followed in federal cases. Indeed, the Ninth Circuit has held that a defendant can make a prima facie showing based on a statistical disparity alone. (Williams v. Runnels (9th Cir. 2006) 432 F.3d 1102, 1107.) Under federal practice, objective factors suggestive of discrimination are sufficient to establish a prima facie case. If those factors are present, the court proceeds to the second step of the analysis, during which the prosecutor must state his or her subjective reasons for discharging the jurors in question. In so doing, the prosecutor ordinarily relies heavily on voir dire responses.[3]

In California, trial courts have tended to consider jurors voir dire responses when determining whether a prima facie case has been made, without waiting for the prosecutor to justify his or her choices in the second analytic step. In effect, trial courts in California consider whether the prosecutor could have had a legitimate reason for challenging the juror when weighing a prima facie case. Our Supreme Court has similarly adopted this approach, consistently considering voir dire responses in reviewing Batson/Wheeler prima facie case rulings. (E.g., Howard, supra, 42 Cal.4th at pp. 10171019; People v. Bonilla (2007) 41 Cal.4th 313, 343 (Bonilla).) In contrast, the Ninth Circuit has rejected this approach. (E.g., Williams v. Runnels, supra, 432 F.3d at p. 1108, fn. omitted [[T]o rebut an inference of discriminatory purpose based on statistical disparity, the other relevant circumstances must do more than indicate that the record would support race-neutral reasons for the questioned challenges].)

Defendants first argument is based on this second difference. Citing Ninth Circuit authority, he argues that the prosecutions decision to use three of its peremptory challenges on African-American jurors was alone sufficient to make a prima facie case of discrimination. Our Supreme Court, however, has never held that statistics alone can make a prima facie case. While statistics certainly play a role, our trial courts are permitted to consider a much wider range of factors, including the responses of the jurors during voir dire, in evaluating a defendants prima facie showing. (E.g., Howard, supra, 42 Cal.4th at pp. 10171019; People v. Hoyos (2007) 41 Cal.4th 872, 901902 (Hoyos); Bonilla, supra, 41 Cal.4th at p. 343.) When a trial court has relied, as this court did, on a much wider array of factors, it is insufficient for a defendant to rely solely on the racial pattern of peremptory challenges in making a prima facie case. (E.g., Hoyos, at p. 901 [fact that prosecutor excused all members of a particular group alone is not conclusive].) We therefore reject defendants first argument, which is based solely on the racial pattern of the prosecutions challenges.

Defendant also argues that the California approach, under which the trial court is permitted to consider juror voir dire responses in determining whether a prima facie case has been made, is improper under federal and some state authority. In virtually all recent Batson/Wheeler cases decided by our Supreme Court, however,the court has considered juror voir dire responses in its de novo review of trial court prima facie case determinations. (E.g., Howard, supra, 42 Cal.4th at pp. 10171019; Hoyos, supra, 41 Cal.4th at pp. 901902; Bonilla, supra, 41 Cal.4th at p. 343.) We are therefore precluded by the doctrine of stare decisis from entertaining such a challenge and must follow the approach directed by the Supreme Court. (Auto Equity Sales, Inc.v.Superior Court (1962) 57 Cal.2d 450, 455.)

Defendants final argument addresses the entirety of the trial courts ruling, contending that the court erred in concluding that the totality of circumstances was insufficient to state a prima facie case of discrimination. Taking account of Johnson, our Supreme Court has instructed us to apply a de novo standard of review to trial court findings that a defendant failed to make a Batson/Wheeler prima facie case when, as here, the trial court did not articulate which standard of proof it was applying. (Bonilla, supra, 41 Cal.4th at pp. 341342.)[4]

We agree with the trial court that no prima facie case was established with respect to any of the challenged African-American jurors. First, as the trial court noted, defendant is Caucasian. While it is certainly true, as he argues, that he is permitted to raise the issue of the discriminatory dismissal of African-American jurors despite not sharing their race, that does not mean that his race is irrelevant. Our courts have recognized that a discriminatory motive is more easily inferred if the defendant and the dismissed juror or jurors are from the same group. (See, e.g., Bonilla, supra, 41 Cal.4th at p. 343 [noting that the defendant was not the same race as the challenged jurors]; Wheeler, supra, 22 Cal.3d at pp. 280281.)

Second, as the trial court also noted, the prosecutor left other jurors of color on the panel, including one other African-American. It is clear the prosecution was not seeking to eliminate all African-Americans from the jury. (See People v. Kelly (2007) 42 Cal.4th 763, 780 [prima facie case weakened where prosecutor left some members of minority group on jury].)

Third, as the trial court discussed in detail, the jurors responses during voir dire provided plausible nondiscriminatory reasons for the peremptory challenge of each of them. The first juror was hesitant with respect to application of the death penalty. She stated that she had unambiguously opposed the death penalty when she was younger, and she was equivocal in her current views, writing in her questionnaire that, as the court noted,  Im now questioning my beliefs and trying to decide what my own personal belief system will be.  Qualms about the imposition of the death penalty constitute a plausible nondiscriminatory basis for prosecution challenge of a juror. (Hoyos, supra, 41 Cal.4th at pp. 902903; Bonilla, supra, 41 Cal.4th at p. 343.) The juror also recounted a disturbing history of violence in her immediate family, which would have brought her into contact with the criminal justice system.

The second juror was taking regular pain medication for a knee injury. He described himself as moderately against the death penalty and told the court that he had personally been involved in an incident of domestic violence that required police intervention and led to his arrest. All of these factors together could have supported a nondiscriminatory decision by the prosecutor to dismiss this juror. (E.g., Bonilla, supra, 41 Cal.4th at p. 343 [close involvement of juror or immediate family with criminal justice system can support finding of no prima facie case].)

The third juror, who was challenged during the selection of alternates, also expressed concern about the death penalty, stating, as the court noted, I do not believe that I should have the right to decide whether a person lives or dies. Although I do believe people should be punished for these types of crimes. When asked whether she believed the death penalty was an appropriate punishment for a person convicted of first degree murder with special circumstances, she said no and provided an equivocal response when asked whether she could set her personal views aside and follow the instructions of the court on this issue. As noted, responses such as these tend to refute the inference that the juror was dismissed as a result of her race, rather than her attitudes. (Hoyos, supra, 41 Cal.4th at pp. 902903; Bonilla, supra, 41 Cal.4th at p. 343.)

In summary, for largely the same reasons noted by the trial court, our independent review of the record causes us to conclude that there was no reasonable likelihood that the prosecutions dismissal of these African-American jurors was improperly motivated by race.[5]

B. Robbery Evidence

Defendant contends that the trial court erred in admitting evidence of the Petco robbery to prove he acted with the same intent when entering the Chambers home.

Evidence Code section 1101, subdivision (a) generally prohibits the admission of evidence of a prior criminal act of a criminal defendant when offered to prove his or her conduct on a specified occasionstated otherwise, to prove that the defendant is a person of bad character or has a criminal disposition. (People v. Kipp (1998) 18 Cal.4th 349, 369.) Subdivision (b) of the statute, however, allows the admission of such evidence when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge . . .). Uncharged crimes evidence is most often admitted to establish the inference that the actor in both crimes was the same (identity), that the actor in both crimes was acting in accordance with the same design or plan, or that the actor in both crimes acted with the same intent. (People v. Kipp, at p. 369.)

To be relevant, an uncharged offense must tend logically, naturally and by reasonable inference to prove the issue(s) on which it is offered. [Citations.] We have long recognized that if a person acts similarly in similar situations, he probably harbors the same intent in each instance [citations], and that such prior conduct may be relevant circumstantial evidence of the actors most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution. (People v. Robbins (1988)45 Cal.3d 867, 879.) [W]hen evidence of an uncharged offense is introduced to prove intent, the prosecution need not show the same quantum of similarity as when uncharged conduct is used to prove identity. (Id. at p. 880.) We review the trial courts ruling on the admission of uncharged crimes evidence for abuse of discretion. (People v. Kipp, supra, 18 Cal.4th at 369.)

There is no doubt that intent was a material issue in this case. Intent to rob was an element of both the attempted robbery charge and the special circumstances allegation. Defendants not guilty plea put in issue all elements of the charged offenses. (People v. Carpenter (1997) 15 Cal.4th 312, 379.) Further, the evidence regarding defendants purpose in going to the Chambers home that evening was in conflict. While Norwood testified that defendant intended to rob Chambers, both McKinnon and Donlin suggested that defendant went to the home with the specific purpose of killing Chambers because of his relationship to defendants former girlfriend. Defendants conduct when he entered the home gave little indication of an intent to rob. He immediately confronted Chambers with his gun, without attempting to rob him, and he made no attempt to take anything from the home before he left.

Although the issue is a close one, we conclude that the trial court did not abuse its discretion in admitting the Petco evidence because there were sufficient similarities between the two crimes. Perhaps most important, defendant prepared for both crimes in the same way, toting a firearm and covering his face with a black mask to disguise his identity. In both, he walked unannounced into a location in which he believed substantial cash was located and pointed his firearm at the occupants. Further, the crimes were committed within the same general area and within a few weeks of one another, and in both cases defendant fired his weapon. The trial court did not abuse its discretion in concluding that these similarities made it possible for the jury to infer[] that defendant probably harbored the same intent in each instance. (People v. Yeoman (2003) 31 Cal.4th 93, 121.)

Nor do we believe the trial court abused its discretion in concluding that such evidence was more prejudicial than probative under Evidence Code section 352. Evidence of uncharged offenses is so prejudicial that its admission requires extremely careful analysis. [Citations.] [Citations.] Since substantial prejudicial effect [is] inherent in [such] evidence, uncharged offenses are admissible only if they have substantial probative value.  (People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt).) Whenever uncharged crimes evidence is admitted, the trial court must examine whether the probative value of the evidence of defendants uncharged offenses is substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code,  352.) (Ibid.) Again, we review the trial courts conclusion for abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195.)

The primary risk of prejudice from the admission of uncharged crimes evidence is that the jurys verdict on the charged crime will be influenced by the impulse to punish him or her for the uncharged conduct. (Ewoldt, supra, 7 Cal.4th at p. 405.) That risk is mitigated if the uncharged crime is less inflammatory than the charged crime and the jury is properly instructed on the role of the uncharged crimes evidence. (People v. Carter (2005) 36 Cal.4th 1114, 11501151.) Here, both mitigating factors were present. The robbery at Petco, which featured no physical injury, was far less shocking than the cold-blooded killing of Chambers, the consequences of which were described in heartbreaking detail by Chamberss wife and daughter. Further, the trial court carefully instructed the jury that the Petco robbery evidence was admissible only for the purpose of proving defendants intent when he confronted Chambers. Because the two events were separate, and separately described, we find no basis for believing that the Petco robbery evidence might have confused the issues or misled the jury. We therefore find no abuse of discretion in the trial courts conclusion that the evidence was more probative than prejudicial.

C. Defendants Refusal to Testify Regarding the Petco Robbery

Defendant contends that the trial court erred in striking his testimony when he purported to invoke his right against self-incrimination and refused to answer questions on cross-examination about his involvement in the Petco robbery.

The general rule, as summarized by the United States Supreme Court, is that a defendant who speaks in his own defense cannot avoid testifying fully. [] . . . [A] defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination.  (Jenkins v. Anderson (1980) 447 U.S. 231, 236, fn. 3.) Our own Supreme Court has similarly recognized that when a defendant takes the stand and makes a general denial of the crime with which he is charged, the permissible scope of cross-examination is very wide.  (People v. Cooper (1991) 53 Cal.3d 771, 822 (Cooper).)  A defendant who takes the stand to testify in his own behalf waives the privilege against self-incrimination to the extent of the scope of relevant cross-examination. [Citations.] It matters not that the defendants answer on cross-examination might tend to establish his guilt of a collateral offense for which he could still be prosecuted.   (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 72.) Accordingly, when a defendant takes the stand and generally denies having committed the crime charged, he waives the privilege against self-incrimination with respect to uncharged collateral crimes that have been put at issue in the prosecutions case-in-chief. (Cooper, at p. 822; People v. Thornton (1974) 11 Cal.3d 738, 760 (Thornton), disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12, and abrogated on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 234.)

The trial court was correct in ruling that defendant had waived his privilege against self-incrimination with respect to the Petco robbery evidence through his direct testimony. That testimony constituted a general denial of guilt for the crime charged. Under the rule of Cooper and Thornton, this opened him to cross-examination about relevant uncharged crimes put at issue by the prosecution.

Nor do we find any error in the trial courts decision to strike defendants entire testimony after he refused to return to the stand to respond to cross-examination. California courts have recognized that it may be appropriate to strike the testimony of a witness who wrongfully refuses to undergo cross-examination. (E.g., People v. Coffman and Marlow, supra, 34 Cal.4th at p. 72; Fost v. Superior Court (2000) 80 Cal.App.4th 724, 735.) However, the remedy must be appropriate to the wrong. [S]triking a witnesss entire testimony is a drastic solution. [Citation.] Because it deprives a defendant of the fundamental right to present a defense, it should be utilized only after less severe means are considered. [Citation.] []  Here, for instance, it might have been appropriate for the court to have permitted [the witness] to testify, allowing the jury to draw negative inferences from his invocation of the Fifth Amendment. [Citation.] While it has generally been held inappropriate to allow a jury to draw negative inferences from a witnesss appropriate invocation of the privilege against self-incrimination [citations] a different balancing of interests may be appropriate where a party is willing to run the risk of such a negative inference for the purposes of impeachment in order to place before the jury other critical testimony. (People v. Hecker (1990) 219 Cal.App.3d 1238, 1248.) Alternatively, the court may strike the portion of the witnesss testimony bearing on the matters on which he or she has refused to respond to cross-examination. (People v. Coffman and Marlow, at p. 73; Fost v. Superior Court, at p. 736.) Only where a partial strike or jury instruction would be ineffective in alleviating the prejudice resulting from the defendants refusal to answer is it appropriate to strike the entirety of a defendants testimony. (People v. Reynolds (1984) 152 Cal.App.3d 42, 4748.)

As the foregoing discussion makes clear, the courts initial ruling striking the entirety of defendants testimony was an abuse of discretion. The Petco robbery issues were discrete from the other matters raised by defendants testimony, which accused McKinnon, Norwood, and Donlin of the Chambers killing. The court could have cured any prejudice to the prosecution resulting from defendants refusal to respond to the Petco questions by instructing the jurors that they could draw an adverse inference from his refusal to respond. Cross-examination could then have proceeded with respect to the bulk of his direct testimony, unimpeded by assertions of privilege.

The court corrected its error, however, by rescinding its order striking defendants testimony, authorizing the prosecution to ask a limited number of questions about the Petco robbery before resuming cross-examination on other issues, and declaring its intent to instruct the jury that it could draw an adverse inference if defendant refused to respond to these questions. By refusing to retake the stand and cooperate with these appropriate measures, defendant effectively refused to submit to any cross-examination at all. The prosecution was thereby deprived of any opportunity to question defendant about his direct testimony. At that point, striking his entire testimony became an appropriate remedy. [W]hen a witness voluntarily testifies, the privilege against self-incrimination is amply respected without need of accepting testimony freed from the antiseptic test of the adversary process. . . . Such a witness has the choice, after weighing the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts and his reliability as a witness, not to testify at all. He cannot reasonably claim that the Fifth Amendment gives him not only this choice but, if he elects to testify, an immunity from cross-examination on the matters he has himself put in dispute. It would make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell. (Brown v. United States (1958) 356 U.S. 148, 155156.) We find no abuse of discretion in the trial courts decision to strike defendants entire direct testimony, given his wholesale refusal to submit to any cross-examination with respect to that testimony.

Citing federal authority, defendant argues that direct testimony should not be stricken when a witnesss refusal to answer cross-examination addresses only collateral matters. As discussed above, however, by declining to retake the stand defendant effectively refused to respond to any cross-examination, not merely cross-examination on collateral matters, thereby justifying the court in striking his entire testimony under the federal authorities cited. Further, we do not read the federal rule to be materially different from California law. The cases cited by defendant state that a witnesss entire direct testimony should not be stricken if the refusal to answer goes only to collateral matters. (E.g., U.S. v. Brooks (2d Cir. 1996) 82 F.3d 50, 55; U.S. v. Gary (1st Cir. 1996) 74 F.3d 304, 310; Denham v. Deeds (9th Cir. 1992) 954 F.2d 1501, 15031504.) The California rule that efforts should be made to avoid striking all testimony is essentially the same, since it is only when the refusal to answer is addressed to noncollateral matters that prejudice cannot be cured by means other than striking all testimony.

D. Jury Misconduct

Defendant argues that the trial court abused its discretion in ruling on his motion for a new trial when it found the bulk of the jurors declaration inadmissible and denied a further evidentiary hearing.

The trial court is vested with discretion to order a new trial if the jury is found to have engaged in prejudicial misconduct. (People v. Danks (2004) 32 Cal.4th 269, 302303.) Often, as here, the initial question is whether the evidence of the jurys activities submitted to demonstrate misconduct may be considered at all. Evidence Code section 1150, subdivision (a) states that on a motion for a new trial on grounds of jury misconduct any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror . . . or concerning the mental processes by which [the verdict] was determined. Since People v. Hutchinson (1969) 71 Cal.2d 342, it has been recognized that section 1150 permits admission only of proof of overt conduct, conditions, events, and statements, while excluding evidence of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved. (Hutchinson, at p. 349.) This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors mental processes or reasons for assent or dissent. The only improper influences that may be proved under section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration. (Id. at p. 350.)[6]

Further, not all statements made in the jury room are admissible under Evidence Code section 1150. [S]uch evidence must be admitted with caution, because [s]tatements have a greater tendency than nonverbal acts to implicate the reasoning processes of jurors.  (People v. Cleveland (2001) 25 Cal.4th 466, 484, quoting In re Stankewitz (1985) 40 Cal.3d 391, 398 [(Stankewitz)].) It follows that when a juror in the course of deliberations gives the reasons for his or her vote, the words are simply a verbal reflection of the jurors mental processes. Consideration of such a statement as evidence of those processes is barred by Evidence Code section 1150. (People v. Hedgecock (1990) 51 Cal.3d 395, 419.)

On the other hand, Evidence Code section 1150 does not bar admission of juror statements when . . . the very making of the statement sought to be admitted would itself constitute misconduct. Such an act is as much an objective fact as a jurors reading of a novel during the taking of testimony [citation], or a jurors consultation with an outside attorney for advice on the law applicable to the case. [Citation.] (Stankewitz, supra, 40 Cal.3d at p. 398.) As examples, this category includes discussions revealing jury agreement to increase a compensatory damages award to include anticipated attorney fees (Krouse v. Graham (1977) 19 Cal.3d 59, 81), comments revealing bias against one of the parties (Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 510511), incorrect legal advice by a juror (Stankewitz, at pp. 396, 399), and discussions reflecting a jurys implicit or explicit agreement to disregard the courts instruction not to consider or discuss the failure of a criminal defendant to testify. (People v. Perez (1992) 4 Cal.App.4th 893, 908 (Perez).)

Once a court becomes aware of possible juror misconduct, it is required to  make whatever inquiry is reasonably necessary  to resolve the matter, including holding an evidentiary hearing. (People v. Hedgecock, supra, 51 Cal.3d at p. 417.) No evidentiary hearing is necessary, however, unless the defense comes forward with evidence that demonstrates a strong possibility of prejudicial misconduct. (People v. Hayes (1999) 21 Cal.4th 1211, 1255.) We review the trial courts decision not to proceed with an evidentiary hearing for abuse of discretion. (People v. Avila (2006) 38 Cal.4th 491, 604.)

The jurors declaration stated that during the guilt phase deliberations the jury discussed and considered the Petco robbery to determine the identity of Jerry Chambers [sic] killer. Specifically the jury discussed and considered . . . the Petco robbery as evidence that [defendant] was the guy who killed Jerry Chambers.

Defendant first argues that the trial court should also have admitted not only the jurors statement that the jury discussed the Petco robbery but also that the jury considered and that the discussion and consideration concerned the Petco robbery as evidence that [defendant] was the guy who killed Jerry Chambers. While there are circumstances under which these general activities might constitute admissible evidence of misconduct, the ambiguous nature of the jurors statement causes us to conclude that the trial court did not abuse its discretion in finding this particular statement inadmissible.

If the jury had engaged in an extensive discussion of defendants commission of the Petco robbery and reached some rough consensus that his commission of the robbery indicated that he was Chamberss killer, thereby engaging in a collective violation of the trial courts instruction, the jury committed misconduct, and evidence of the discussions constituting that misconduct would have been admissible. As defendant argues, it has been held that evidence of a jurys explicit or implicit agreement to violate a courts instruction does not touch upon the jurors subjective reasoning processes, since, as in Stankewitz, such agreement in and of itself constitutes misconduct. (Perez, supra, 4 Cal.App.4th at p. 908.) Similarly, in DiRosario v. Havens (1987) 196 Cal.App.3d 1224 at page 1235, it was held that [i]f the jurors in this case made their decision based upon an intentional collective disregard of [a jury instruction], as actually given by the judge, then such activity would be grounds for seriously considering reversal of the judgment.

On the other hand, individual jurors statements that they believed defendants commission of the Petco robbery suggested he also was the killer, or that they found it more likely that defendant killed Chambers because he robbed Petco, would be inadmissible. While such statements constitute evidence that the jurors engaged individually in reasoning that violated the courts instructions, jurors statements about the reasons for their votes are inadmissible because they  are simply a verbal reflection of the jurors mental processes,  which are inadmissible under Evidence Code section 1150. (People v. Lewis (2001) 26 Cal.4th 334, 389.) The subjective quality of one jurors reasoning is not purged by the fact that another juror heard and remembers the verbalization of that reasoning. To hold otherwise would destroy the rule of Hutchinson which clearly prohibits the upsetting of a jury verdict by assailing these subjective mental processes. (People v. Elkins (1981) 123 Cal.App.3d 632, 638; see also People v. Hord (1993) 15 Cal.App.4th 711, 727728 [Transitory comments . . . , although misconduct, are normally innocuous, particularly when a comment stands alone without any further discussion].) Because this type of evidence is inadmissible, the misconduct it reflectsassuming that an individual jurors reasoning process can constitute misconductcannot be proven.

The declarants statement that the jury discussed and considered . . . the Petco robbery as evidence that [defendant] was the guy who killed Jerry Chambers is consistent with either scenario outlined above. The potential meaning of the declarants statement is broad enough to encompass both a limited number of comments by individual jurors about their own thought process and a detailed extended discussion among all jurors. Indeed, the statement that the jury considered the evidence could even include the declarants inadmissible speculation about the silent thought processes of his fellow jurors. Because the declaration gives no sense of the content or extent of the actual discussions of the jurors, does not state how many jurors engaged in this consideration, and does not even explain why the declarant concluded that such consideration occurred, there is no way to determine whether the declarants statement is admissible evidence of misconduct or inadmissible evidence of individual juror reasoning processes. Inasmuch as the declaration is equally amenable to an admissible and an inadmissible reading, and the burden of proving misconduct falls on defendant (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 410, overruled on other grounds in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574, 580), we find no abuse of discretion in the trial courts conclusion that it cannot be admitted. Further, given the inherent ambiguity in the declaration, we find no abuse of discretion in the trial courts conclusion that it fails to provide the evidence of the strong possibility of prejudicial misconduct necessary to trigger an evidentiary hearing. (People v. Hayes, supra, 21 Cal.4th at p. 1255.)

Nor do we find any abuse of discretion in the trial courts decision not to consider the hearsay accounts of conversations with jurors in the investigators declaration. It has been held repeatedly that hearsay evidence is insufficient to support a finding of juror misconduct. (E.g., People v. Avila, supra, 38 Cal.4th at p. 605; People v. Hayes, supra, 21 Cal.4th at p. 1256 [Normally, hearsay is not sufficient to trigger the courts duty to make further inquiries into a claim of juror misconduct].)

III. DISPOSITION

The judgment of the trial court is affirmed.

_________________________

Margulies, J.

We concur:

_________________________

Marchiano, P.J.

_________________________

Stein, J.

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

[2] In the Chambers home, police later found a Pepsi can near the front door and a wet liquid that appeared to be soda splashed on the wall.

[3] We use the term voir dire broadly here to include both the direct questioning of jurors and the submission of written questionnaires.

[4] Ordinarily, we review the trial courts denial of a Wheeler/Batson motion deferentially, considering only whether substantial evidence supports its conclusions. [Citation.] However, the United States Supreme Court recently concluded that California courts had been applying too rigorous a standard in deciding whether defendants had made out a prima facie case of discrimination. [Citation.] In cases where the trial court found no prima facie case had been established, but whether it applied the correct reasonable inference standard rather than the strong likelihood standard is unclear, we review the record independently to apply the high courts standard and resolve the legal question whether the record supports an inference that the prosecutor excused a juror on a prohibited discriminatory basis. [Citations.] (Bonilla, supra, 41 Cal.4th at pp. 341342.)

[5] We decline to address the extensive comparative analysis of challenged and sitting jurors raised for the first time in defendants reply brief. Not only has the Attorney General had no opportunity to respond to the argument (see, e.g., Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1307), but the Supreme Court has also held that comparative analysis is inappropriate on review of a trial court determination that a defendant failed to state a prima facie case of discrimination. (E.g., Howard, supra, 42 Cal.4th at pp. 10191020; Bonilla, supra, 41 Cal.4th at p. 350.)

[6] When declarations are submitted in support of a motion for a new trial that contain some evidence made inadmissible by Evidence Code section 1150, the trial court may consider the admissibl