P. v. >Anderson>





















Filed 2/22/13 P. v. Anderson CA2/3

>

>

>

>

>

>

>NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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



SECOND
APPELLATE DISTRICT



DIVISION
THREE




>

THE PEOPLE, Plaintiff and Respondent, v. KAMREN ROY ANDERSON Defendant and Appellant.

B233199 (Los Angeles County Super. Ct. No. MA050198)

APPEAL
from a judgment of the Superior
Court
of
Los
Angeles County, Bernie C. LaForteza, Judge. Affirmed as modified.

Patricia
J. Ulibarri, under appointment by the Court of Appeal, for Defendant
and Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and
Louis W. Karlin, Deputy Attorneys General, for Plaintiff and Respondent.



_________________________









Karmen
Anderson appeals the judgment entered following his conviction by jury of href="http://www.fearnotlaw.com/">attempted murder committed in a willful,
deliberate and premeditated fashion and assault with a semiautomatic firearm. (Pen. Code, §§ 187, subd. (a), 664, subds.
(a) & (f), 245, subd. (b).) The jury
found Anderson
personally used a firearm in the commission of both offenses. (Pen. Code, §§ 12022.53 subd. (b), 12022.5,
subd. (a).)

Anderson
contends the evidence was insufficient to support the finding the attempted
murder was deliberate and premeditated, and the trial court erred in failing to
instruct sua sponte on the lesser included offense of attempted voluntary
manslaughter based on sudden quarrel or heat of passion, defense counsel
rendered ineffective assistance in failing to request an instruction advising
the jury provocation insufficient to reduce attempted murder to attempted
voluntary manslaughter may be considered in determining whether the accused
acted with deliberation and premeditation, and the trial court erroneously
excused a deliberating juror.

As set forth below, we
conclude the evidence supports
the jury’s finding Anderson acted with deliberation and premeditation, the
trial court had no sua sponte obligation to instruct on sudden quarrel/heat of
passion as there was insufficient evidence a reasonable person in Anderson’s
position would have been provoked. Further,
on the facts presented, even if defense counsel had requested instruction on
provocation as it relates to deliberation and premeditation, there is no
reasonable probability of a different result.
We also reject Anderson’s claim of error in the trial court’s excusal of
a deliberating juror but agree with the People’s assertion the abstract of
judgment must be amended to reflect the sentence imposed by the trial
court. We therefore affirm the judgment as modified to reflect a 10-year firearm enhancement
imposed by the trial court.

FACTS AND PROCEDURAL BACKGROUND

1. >Evidence adduced at trial.

a. >Wao’s testimony.

On
July 25, 2010, at approximately 1:00 a.m., Elias Wao, Aresto Neme and another
individual were working at a liquor store on East Avenue K in Lancaster,
California. Wao testified there were
more than six customers in the store. A
Black male, determined by other evidence to have been Deaven Irvin, entered the
store and demanded a 50 cent refund on a $1 cigar he purchased the night
before. Donavan Williams, a frequent
customer of the store, told Irvin to be quiet and stated, “It’s my store.”

Anderson and another
individual then entered the store shirtless.
Anderson began talking to Williams.
Wao suspected there was about to be a fight. Wao told Anderson, the other shirtless
individual and Irvin to leave the store.
During the ensuing argument, an unidentified individual grabbed three or
four small bottles of liquor and ran from the store. Wao went to the door of the store with a cell
phone, demanded the return of the liquor and threatened to call the
police. Anderson and his companions
tried to push Wao out of the store. Wao
and Neme then pushed Anderson and Irvin out of the store. Irvin fell in front of the store, then stood
and struck Neme in the face. Wao went to
the counter and obtained a wooden pole and a machete. Wao saw Neme was bleeding and attempted to
take Neme’s place at the door to prevent Anderson and his companions from
reentering the store. Wao put the pole
in front of Neme with his left hand.
Anderson grabbed the pole and Wao struck Anderson on the forearm with
the flat side of the machete, causing Anderson to release the pole without
injury to Anderson. Anderson then walked
to the parking lot and went behind a car.
From the doorway of the store, Wao saw Anderson point a gun at him. Anderson appeared to pull the trigger and Wao
heard a click.

Wao
went behind the counter and pressed an alarm button. From behind the counter, Wao could see
Anderson through the window of the store.
Anderson had moved from the left side of the store to the right side and
again was pointing the gun at Wao. Wao
heard a click but the gun did not fire.
Anderson then made a sliding motion with his left hand on top of the gun
and Wao saw a bullet come out of the gun.
Anderson then pointed the gun at Wao a third time and tried to shoot but
nothing happened. Anderson cursed the
gun, entered his car and drove away.

The police did not
respond to the alarm. Wao did not
immediately report the incident because he was not sure it had been a real
gun. However, after Wao closed the
store, he found a bullet in the parking lot where Anderson had been
standing. Wao reported the incident to
the police when he returned to the store at 7:30 a.m. the next morning.

On cross-examination,
Wao admitted he did not see the person who took the alcohol interact with the
two shirtless individuals before the theft.


b.
Testimony
of Williams, Irvin and Sergeant Welle.

Donavan Williams testified he and Irvin were
selecting purchases of alcohol when Wao said, “they’re stealing
something.” Wao ordered everyone out of
the store, grabbed a phone and said he was calling the police. Williams immediately left the store but Irvin
took his time, was pushed in the back and fell.
After Irvin punched a store clerk in the face, Wao obtained a pole and
ordered everyone to leave the store. Wao
swung the pole at Anderson who grabbed it.
Wao struck Anderson’s arm with a machete. Williams thought he was going to see
Anderson’s arm fall off but Anderson released the pole and exited the store
unharmed. Anderson
looked at his arms as he walked toward the middle of the parking lot. Anderson went between parked
cars, made motions with his hands, then produced a pistol and pointed it at the
front of the store where the clerks were standing. Williams saw Anderson move the slide more
than twice and saw Anderson squeeze the
trigger three or four times while he pointed the weapon at the store.

Deaven Irvin testified
he was at the liquor store with his brother Russell Irvin, Anderson and Donavan
Williams. Irvin already was in the store
when Anderson arrived. Two people
entered the store after Anderson and one of them stole some liquor. The clerk became angry and told everyone to
leave. The clerk pushed Irvin out the
door, causing him to fall. Irvin punched
a clerk in the face. Anderson tried to
stop the fight and take the pole from the clerk but the clerk hit Anderson with
a machete with what appeared to Irvin to be a forceful blow. Anderson walked into the parking lot, went
around a car and removed a firearm from his pocket. The store clerks remained at the door. Irvin saw a shell fall from the gun and heard
one or two clicking sounds when Anderson was approximately 30 feet from the
store.

While Irvin was a
suspect in this case, he advised a detective the gun Anderson used during the
incident could be found in a box on the porch of his home.

On August 26, 2010,
Deputy Sheriff Daniel Welle recovered an inoperable .25 caliber semiautomatic
handgun and a magazine from a chest on the porch of Irvin’s home. The gun consisted of a frame and a slide; it
had no grips, no trigger mechanism and no springs. Also, Welle could feel sand in the mechanism,
indicating the weapon had been buried.
The .25 caliber round Wao found in the parking lot had never been struck
by a firing pin.

c.
Defense
evidence.

The defense rested
without presenting evidence.

2.
>Instruction on self-defense requested by
defense counsel and refused.

Defense counsel requested instruction on href="http://www.mcmillanlaw.com/">self-defense based on Wao’s act of
striking Anderson with the machete.
Counsel noted Wao continued to possess the machete and he remained in
close proximity to Anderson.

The
prosecutor asserted Anderson was not in danger when he pointed the gun at Wao
as Wao never left the door of the store or attempted to chase Anderson. Also, Anderson was a considerable distance
from Wao. Defense counsel responded Wao
and Anderson were in sufficient proximity to warrant the conclusion an element
of danger remained and one interpretation of the evidence was to conclude
Anderson acted in self-defense.

The trial court refused
the requested instruction, finding
no substantial evidence of self defense.
The trial court noted Anderson armed himself when he was a safe distance
from Wao and “then came back and walked closer to the victim.”

3.
Jury
argument and verdicts.

Defense counsel argued
Wao struck Anderson with the machete and scared him. Anderson, in turn, went to his car and
obtained the inoperable gun frame to scare Wao.
Thus, Anderson lacked the intent to commit attempted murder and was
guilty only of simple assault, a lesser offense included within assault with a
firearm.

The jury convicted
Anderson of attempted murder and found he acted with deliberation and
premeditation. The jury also convicted
Anderson of assault with a semiautomatic firearm and found Anderson personally
used a firearm in the commission of attempted murder and assault with a
semiautomatic firearm.href="#_ftn1"
name="_ftnref1" title="">[1]

CONTENTIONS

Anderson
contends the evidence was insufficient to support the jury’s finding the
attempted murder was deliberate and premeditated, the trial court erred in
failing to instruct on the lesser included offense of sudden quarrel/heat of
passion attempted voluntary manslaughter, defense counsel rendered ineffective
assistance in failing to request an instruction advising the jury that
provocation insufficient to reduce attempted murder to attempted voluntary
manslaughter may be considered in deciding whether the accused deliberated and
premeditated, the cumulative effect of these errors require reversal, and the
trial court erroneously excused a deliberating juror.

The People contend the abstract of judgment must be modified
to reflect a 10-year firearm enhancement imposed by the trial court.

DISCUSSION

1. >The
evidence supports the jury’s finding the attempted murder of Wao was willful,
deliberate and premeditated.

Anderson contends
there was insufficient evidence of the factors which typically are present in
cases of premeditation and deliberation, namely, planning, motive and manner of
killing. (People v. Anderson
(1968) 70 Cal.2d 15, 26-27.) He
notes there was no evidence he planned to kill, the most important of the
factors. (People v. Lucero (1988)
44 Cal.3d 1006, 1018-1019.) Anderson
argues Wao over-reacted by ordering everyone from the store and assaulting
Anderson with a pole and a machete before Anderson
walked toward the middle of the
parking lot. Anderson
asserts he could not have reflected
meaningfully on his actions and concludes the decision to attempt to shoot at Wao was a spontaneous and
unconsidered reaction to Wao’s conduct rather than a deliberate plan carried
out according to a preconceived design.

We are
not persuaded.

Cases decided after >Anderson repeatedly have stated> the Anderson factors are not a definitive statement of the prerequisites for
proving premeditation and deliberation. The three categories do not “
‘establish an exhaustive list that would exclude all other types and
combinations of evidence that could support a finding of name="SR;2736">premeditation and
deliberation.’ ” (People v. Solomon (2010) 49 Cal.4th 792,
812.) Further, these name="SR;2064">factors need not be
accorded any particular weight and evidence of all three elements is not
necessary. (People v. Booker (2011) 51 Cal.4th 141, 153; People v.
Halvorsen (2007) 42 Cal.4th 379, 420; People v. Sanchez (1995) 12 Cal.4th
1, 32-33.) “Anderson was simply
intended to guide an appellate court’s assessment whether the evidence supports
an inference that the killing occurred as the result of preexisting reflection
rather than unconsidered or rash impulse.
[Citation.]” (People v. Pride
(1992) 3 Cal.4th 195, 247.) Thus, “we
continue to apply the principle that ‘[t]he process of premeditation and
deliberation does not require any extended period of time. “The true test is not the duration of time as
much as it is the extent of the reflection.
Thoughts may follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly . . . .”
[Citations.]’ “ (People v.
Bolin (1998) 18 Cal.4th 297, 332.)

In this case, after Wao prevented Anderson from reentering
the store, Anderson had time to reflect and deliberate as he walked into the
parking lot before deciding to obtain the handgun. (See People v. Elliot (2005)
37 Cal.4th 453, 471 [“That defendant armed himself prior to the attack
‘supports the inference that he planned a violent encounter.’ “].) Anderson
aimed the gun at Wao, who remained in the doorway of the store, and tried to
fire the weapon. When Wao moved
from the door to the area behind the counter, Anderson again had time to
deliberate and premeditate as he repositioned himself in the parking lot in order to have a clear view of Wao
in that location. Once repositioned,
Anderson pointed the gun at Wao and pulled the trigger. When the gun failed to fire, Anderson manipulated
the slide of the weapon, ejected a bullet from it and once more tried to shoot
Wao. This evidence supports a reasonable
inference Anderson planned and deliberated, albeit briefly, before trying to
shoot Wao. (See People v. Manriquez (2005) 37 Cal.4th 547, 577.)

With respect to the manner of the
shooting, Anderson repeatedly
tried to shoot Wao from different locations in the parking lot, indicating his
resolve to visit harm on Wao. There was
also evidence of motive as Anderson apparently sought to revenge his perceived
mistreatment by Wao.

In sum, viewing the evidence in the
light most favorable to the judgment (People
v. Kraft (2000) 23 Cal.4th 978, 1053-1054), there is ample evidence from
which the jury reasonably could conclude Anderson acted with deliberation and
premeditation rather than on an unconsidered and rash impulse.

2.
No sua
sponte obligation to instruct on sudden quarrel/heat of passion attempted
voluntary manslaughter.

Anderson contends the
trial court erred in failing to instruct the jury sua sponte that provocation can reduce attempted murder
to attempted voluntary manslaughter.
Anderson asserts Wao’s acts of shoving Anderson’s group out the door,
knocking Irvin to the ground and hitting Anderson with a machete constituted
substantial evidence of provocation which mitigated his offense to attempted
voluntary manslaughter. Anderson’s claim
fails.

An accused who intentionally
attempts to kill in a sudden quarrel or heat of passion is guilty only of
attempted voluntary manslaughter. (See People
v. Lasko (2000) 23 Cal.4th 101, 108; Pen. Code, § 192, subd. (a).) “An intentional, unlawful homicide is ‘upon a
name="citeas((Cite_as:_19_Cal.4th_353,_*423)">sudden quarrel or heat of
passion’ (§ 192(a)), and is thus voluntary manslaughter (ibid.), if the
killer’s reason was actually obscured as the result of a strong passion aroused
by a ‘provocation’ sufficient to cause an ‘ “ordinary [person] of
average disposition . . . to act rashly or without due deliberation and
reflection, and from this passion rather than judgment.” ’ [Citations.]
‘ “[N]o specific type of provocation [is] required . . . . ” ’ [Citations.]
Moreover, the passion aroused need not be anger or rage, but can be any
‘ “ ‘ [v]iolent, intense, high-wrought or enthusiastic emotion’
” ’ [citations] other than revenge
. . . .” (People v. Breverman (1998)
19 Cal.4th 142, 163.)

Sudden
quarrel/heat of passion voluntary manslaughter is a lesser offense included
within murder. (>People v. Lewis (2001) 25 Cal.4th 610,
645; People v. Breverman, supra, 19 Cal.4th at p. 154; People v. Barton (1995) 12 Cal.4th
186, 200-201.) The trial court
must instruct the jury sua sponte “on all theories of a name="SR;900">lesser included offense which find substantial support in the
evidence.” (name="SR;913">People v. Breverman, >supra, at p. 162.) Substantial evidence in this context
is evidence from which a jury composed of reasonable persons could conclude the
defendant committed the lesser offense but not the greater. (Id. at p. 162.)
“[T]he existence of ‘ any evidence, no matter how weak’ will
not justify instructions on a lesser included
offense . . . .” (>Ibid.)

Here, there
was insufficient evidence an ordinary person of average disposition in
Anderson’s position would have been provoked to heat of passion by Wao’s
conduct. Putting aside Wao’s right to
exclude Anderson from the store, the confrontation
ended when Anderson left the area of the door of the store, walked to the
parking lot and Wao did not follow.
Although Wao forcibly excluded Anderson from the store, Wao did not use
lethal force and struck Anderson with the flat side of the machete, causing no
injury. Because Wao did not follow
Anderson into the parking lot and no one threatened or taunted Anderson as he
walked away, Anderson no longer was in any danger. He could have left the scene or called the
police. Instead, he chose to arm himself
and attempt to shoot Wao. (See People v. Middleton (1997)
52 Cal.App.4th 19, 34, overruled on another point in People v. Gonzalez (2003)
31 Cal.4th 745,
752, fn. 3.)

Moreover, in order to satisfy
the subjective aspect of heat of passion, “the victim must taunt the defendant or otherwise initiate the provocation. [Citations.]” (People v. Carasi (2008) 44 Cal.4th
1263, 1306; accord People v. Verdugo (2010)
50 Cal.4th 263, 293; People v. Avila (2009) 46 Cal.4th 680, 705;> cf. People v. Manriquez, >supra, 37 Cal.4th at pp. 585-586
[provocation lacking where defendant calmly shot bar patron who insulted and
goaded him into firing];
People v. Lee (1994) 28
Cal.App.4th 1724, 1732-1733.) Here, Anderson walked away from the
confrontation at the door of the liquor store without being chased or
taunted. Thus, the evidence does not
suggest Anderson acted under the sway of a violent, intense, high-wrought or
enthusiastic emotion, other than the prohibited one of revenge. (People v. Breverman, supra, 19 Cal.4th at p.
162.) Consequently, the trial court had no sua
sponte obligation to instruct on attempted voluntary manslaughter.

3. >No ineffective assistance of counsel shown
in the failure to request an instruction relating provocation to deliberation
and premeditation.

Anderson contends defense counsel
rendered ineffective assistance in failing to request an
instruction advising the jury that provocation insufficient to reduce attempted
murder to attempted voluntary manslaughter can nonetheless be considered in
determining whether Anderson acted with deliberation and premeditation. (See CALCRIM No. 522).href="#_ftn2" name="_ftnref2" title="">[2]

Anderson relies on >People v. Fitzpatrick (1992) 2 Cal.App.4th 1285,
1295-1296, which quoted People v. Wickersham (1982) 32 Cal.3d 307, disapproved on
another ground in People v. Barton, supra, 12 Cal.4th at pp. 200-201, as
follows: “The fact . . . a physical
struggle took place between the victim and the accused before the fatality may
be sufficient to raise a reasonable doubt in the minds of the jurors regarding
whether the accused planned the killing in advance. [Citation.]”
(People v. Fitzpatrick, supra, at p. 1296.)

We conclude Anderson is unable to
demonstrate ineffective assistance of counsel.
When provocation is invoked not to reduce the class of the offense from
murder to sudden quarrel/heat of passion voluntary manslaughter but as it
“relates the evidence of provocation to the specific legal issue of
premeditation and deliberation, it is a ‘pinpoint instruction’ as that term was
defined in People v.
Saille [(1991)] 54 Cal.3d
[1103] at pages 1119-1120, and need not be given on the court’s own
motion.” (People v. Rogers (2006) 39 Cal.4th 826, 878-879.) Thus, Anderson properly raises this
contention under the rubric of ineffective assistance of counsel. However, the claim fails on the merits.

In
order to demonstrate ineffective assistance of counsel, the defendant must show
counsel’s performance fell below an objective name="SDU_1147">standard of reasonableness under prevailing professional
norms and the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466
U.S. 668, 688 [80 L.Ed.2d 674]; People v. Ledesma (1987) 43 Cal.3d 171,
216, 218.) To establish prejudice,
“[t]he defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” (Strickland v.
Washington, supra, at p. 694; People
v. Ledesma, supra, at pp.
217-218.)

In
determining whether defense counsel’s performance was deficient, we accord
great deference to counsel’s tactical name="SDU_777">decisions and reverse only if the record affirmatively
discloses no rational tactical purpose for counsel’s act or omission. (People v. Stanley (2006) 39 Cal.4th
913, 954; People v. Lucas (1995) 12 Cal.4th 415, 436-437; People v.
Osband (1996) 13 Cal.4th 622, 700-701.)
If the record fails to show why
counsel acted or failed to act, the claim of ineffective assistance must be
rejected on appeal unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation. (People
v. Cunningham (2001) 25
Cal.4th 926, 1003; People
v. Mendoza Tello (1997) 15
Cal.4th 264, 266-267.)

Here, defense counsel
defended on the ground Anderson
intended only to scare Wao. It would
have been inconsistent for counsel to argue Anderson intended to frighten Wao,
while also claiming Anderson was so enraged he could not deliberate or
premeditate. As Anderson’s theory of
defense on appeal would have required trial counsel to advocate inconsistent
mental states, defense counsel cannot be said to have lacked a rational
tactical purpose for failing to request the provocation instruction. Because the record discloses a tactical reason
for not requesting the instruction, which must be accorded
deference on appeal, any deficiency
on defense counsel’s part does not require reversal. name="sp_999_5"> (People v. Stanley, >supra, 39 Cal.4th at p. 954name="______#HN;F10">; People v. Lucas, >supra, 12 Cal.4th at pp. 436-437; People
v. Osband, supra, 13 Cal.4th at pp.
700-701.)

Further, even if an effective advocate would
have requested the instruction, counsel’s omission was harmless. The
jury was instructed, pursuant to CALCRIM No. 601, the prosecution had to prove
beyond a reasonable doubt that Anderson acted willfully and with deliberation
and premeditation.href="#_ftn3" name="_ftnref3"
title="">[3] According to the definition of those terms,
the jury found Anderson “intended to kill when he acted” and he “carefully
weighed the considerations for and against his choice and, knowing the
consequences, decided to kill.” Given
these findings, there is no reasonable probability a provocation instruction
would have affected the verdict. Thus,
any deficiency on defense counsel’s part must be seen as harmless. (See, e.g., Strickland v. Washington, supra, 466 U.S. at p. 694.)name="______#HN;F4">

The jury rejected the intent to scare argument, which was
plausible on the facts presented and required consideration of Anderson’s
provocation as the explanation for Anderson’s intent to scare. An instruction specifically directing the jury
it could consider provocation in determining whether Anderson deliberated and
premeditated would not have altered the result.


In sum, defense counsel’s
failure to request an instruction advising the jury it could consider
provocation in determining whether Anderson deliberated and premeditated was a
reasonable tactical choice on the facts presented and, even if counsel rendered
ineffective assistance in failing to request the instruction, the omission was
harmless in that it did not result in prejudice to Anderson.

4. >No cumulative error.

Anderson
contends that, even if the foregoing errors are insufficient to require
reversal, the combined effect of the errors deprived him of a fair trial. However, there can be no name="SR;4391">cumulative error if each assignment of
error fails. (People v. Bradford (1997) 15 Cal.4th
1229, 1382.) Moreover, in examining a claim
of cumulative error, the critical
question is whether the defendant received a fair trial. (People v. Cain (1995) 10 Cal.4th
1, 82.) Here, having found no resultant prejudice
related to any of Anderson’s claimed errors, we further conclude the name="SR;28997">cumulative effect of these name="SR;29003">errors does not support
the conclusion Anderson was denied a fair trial. (People
v. Booker, supra, 51 Cal.4th at
p. 186.) Consequently, the claim of
cumulative error fails.

name="SDU_35">5.
The trial court committed no
reversible error in excusing Juror No. 4.

a.
Additional background.

The jury commenced
deliberations at 11:20 a.m. on March 2, 2011.
The next day, at 10:53 a.m., the trial court received a note from
Juror Nos. 3 and 5 which stated:
“Several of us feel that one of the jurors is not abiding by the juror
rules handed down by the judge and does not want to use the facts of the
case to make a decision either way. They
seem to be very distracted by their cell phone.
[Illegible] that have nothing to do with the case and evidence given to
us. (Does not want to look at the
testimony, only her notes.) One of the
jurors came to us and said this person was on another jury with one of the attorneys
and seems to have a biased opinion of him.
Please advise. (We do not want a
mistrial.)”

After discussing the
matter with counsel, the trial court conducted a hearing at which it questioned
Juror Nos. 5, 3, 7, 8, and 4, in that order.


Juror No. 5 stated Juror No. 4 was “not looking at the same
evidence” as the other jurors.
Also, Juror No. 7 had advised Juror Nos. 5 and 3 that Juror No. 4 had
stated she recognized one of the trial attorneys and would indicate which of
the two attorneys she recognized after the trial was over. Further, Juror No. 4 had sat as a juror
before and appeared to have a “slightly negative” opinion about the attorney in
question. In addition, Juror No. 7
stated that, during the first day of deliberations, Juror No. 4 repeatedly
tapped Juror No. 7 with her foot under the table and it was making Juror No. 7
very uncomfortable. Juror No. 5 also
indicated Juror No. 4 checked her cell phone every 10 to 15 minutes and stated
she was looking for a text from her child.


Juror No.
3 indicated Juror No. 4 was concerned primarily with her phone and her
notes. When the other jurors suggested
they ask for a reading of testimony, Juror No. 4 said she did not need the
testimony as she had her notes. However,
her notes were confusing and did not match the testimony. During the trial, Juror No. 4 had her cell
phone on her lap “most of the time” and appeared to be sending emails or text
messages. During deliberations, Juror
No. 4 had her cell phone on the table and she picked it up and looked at it at
least six or seven times during the first day of deliberations. On the morning of the second day of
deliberations, Juror No. 7 told Juror Nos. 3 and 5 that Juror No. 4 stated she
had been a juror on a previous case tried by one of the attorneys in this
trial.

Juror No. 7 indicated that, on the first day of
deliberations, in the hallway outside the court room, Juror No. 4 stated she
recognized one of the attorneys in this case but he had not recognized
her. When Juror No. 7 asked which of the
attorneys, Juror No. 4 responded she would tell her later. Based on Juror No. 4’s demeanor, Juror No. 7
concluded Juror No. 4 had a negative impression of the attorney. Juror No. 7 stated Juror No. 4 talked over
other jurors during deliberations when they offered opinions. Also, when Juror No. 7 expressed an opinion,
Juror No. 4, who was seated next to Juror No. 7, kicked Juror No. 7 under the
table. At first, Juror No. 7 thought it
was an accident, moved her legs and said, “Excuse me,” but it happened three
other times. Also, Juror No. 4 checked
her phone for messages and typed on her phone during deliberations, even though
the bailiff had instructed the jurors to turn their phones off. Juror No. 4 did this two or three times an
hour the first day of deliberations and had done it three or four times the
second day.

Juror No. 8 had seen Juror No. 4 check her cell phone during
deliberations and she announced to the jury she was doing so, despite the
bailiff’s instruction not to use cell phones.

Based on
these interviews, the trial court found Juror No. 4 was not refusing to
deliberate. However, the trial court
wished to interview Juror No. 4 regarding her failure to disclose her
recognition of trial counsel, her cell phone use during trial and/or deliberations,
and whether she deliberately had kicked Juror No. 7.

When
examined, Juror No. 4 indicated she had been a seated juror on a trial five or
six years earlier and thought defense counsel looked familiar. She possibly recognized defense counsel and
had seen him in the courthouse and in a restaurant. Juror No. 4 recognized counsel the first or
second time she sat in the jury box.
When asked whether she remembered being introduced to the attorneys at
the start of jury selection, Juror No. 4 said she must have “missed that.” Juror No. 4 heard the bailiff tell the jurors
not to use their cell phones while deliberating. Juror No. 4 admitted her cell phone had been
“sitting there” during deliberations in case she received an emergency
call from her children. Juror No. 4
initially did not recall using her phone during deliberations but then denied
using it during trial or deliberations.
She also denied kicking another juror in the foot or shin but conceded
she might have “tripped on somebody accidentally.”

The trial court indicated its tentative decision was to
excuse Juror No. 4 for misconduct based on its findings she intentionally
concealed material information and gave false answers during voir dire
regarding her knowledge of one of the attorneys. The trial court also found Juror No. 4’s
denial of cell phone use was contradicted by several other jurors, one of whom
stated Juror No. 4 had been typing on her phone. Additionally, Juror No. 4’s denial that she
had kicked another juror was not credible.

Defense counsel
pointed out that, five or six years earlier, his hair had been gray and it now
was darker. Thus, Juror No. 4 might have
made an honest mistake in not immediately recognizing counsel.

After
hearing argument, the trial court found Juror No. 4 intentionally had concealed
a material fact during voir dire, thereby impairing the ability of the defense
to exercise peremptory challenges, as well as the prosecution’s right to a fair
trial. The trial court did not believe
Juror No. 4’s assertion she did not hear the trial court ask if the prospective
jurors recognized any of the parties based on Juror No. 4’s statement to
another juror that she would indicate which attorney she had recognized after
the trial concluded. The trial court did
not believe Juror No. 4’s denial of cell phone usage in light of the testimony
of Juror No. 3, who was seated next to Juror No. 4. Also, Juror No. 4’s denial was contradicted
by the statements of Juror Nos. 7 and 8, whom the court found independent and
credible. Finally, as to the kicking,
the trial court found Juror No. 4’s “explanation was not credible.”

The trial court further concluded an admonition would be an
inadequate remedy in light of Juror No. 4’s “complete denial of all the
allegations . . . .” The trial court
excused Juror No. 4, seated an alternate juror, admonished the jury not to
consider the substitution for any purpose and instructed the jury to set aside
the prior deliberations and to begin anew.
Approximately half an hour later, the jury reached verdicts.

b.
Relevant principles.

“The
trial court may discharge a juror for good cause at any time, including during
deliberations, if the court finds that the juror is unable to perform his or
her duty. ([Pen. Code,] § 1089.)” href="#_ftn4"
name="_ftnref4" title="">[4] (People
v. Lomax (2010) 49 Cal.4th 530, 588.) name="______#HN;F92">“[A]n appellate court’s review of the decision to
remove a seated juror is not conducted under the typical abuse of discretion
standard, but rather under the ‘demonstrable reality’ test.” (People
v. Fuiava (2012) 53 Cal.4th 622, 711.)
The demonstrable reality test “ ‘requires a showing that the court as
trier of fact did rely on evidence that, in light of the entire record,
supports its conclusion that bias was established. . . . [T]he reviewing court
must be confident that the trial court’s conclusion is manifestly supported by
evidence on which the court actually relied.
[¶] In reaching that conclusion,
the reviewing panel will consider not just the evidence itself, but also the
record of reasons the court provides.’ “
(Id. at p. 712, citing >People v. Barnwell (2007)
41 Cal.4th 1038, 1052-1053.) In doing
so, we do not reweigh the evidence. (>People v. Barnwell, supra, at p. 1053.)

c.> The record supports the trial court’s finding
Juror No. 4 was unable to perform her duties as a juror to a demonstrable
reality.

Anderson first contends
the record does not support the trial court’s finding Juror No. 4 intentionally
concealed the fact she recognized defense counsel. He relies on Juror No. 4’s statement that,
when she initially sat in the jury box, she
was not 100 percent certain she recognized counsel but believed she
may have seen counsel in a restaurant and may have seen him in court about five
or six years ago. Also, defense counsel
had changed his appearance over the last five years. Anderson asserts Juror No. 4 cannot be held
to have concealed something of which she was not certain. (People v. Wilson (2008) 44 Cal.4th
758, 824.)

Anderson’s reliance on People v. Wilson, supra,
44 Cal.4th at p. 839, is misplaced.
In Wilson, the trial
court found the challenged juror was unaware of his own prejudicial
assumptions. Wilson concluded the juror could not have intentionally concealed these views. The trial court in
this case did not find Juror No. 4 was unaware she had recognized defense
counsel or that Juror No. 4 innocently concealed her recognition of defense
counsel. On the contrary, the trial
court found Juror No. 4 intentionally concealed her recognition of defense
counsel. Moreover, the trial
court’s rejection of Juror No. 4’s denial that
she recognized defense counsel at the outset of the trial is supported by the record.


At the hearing, Juror No. 4 initially was evasive when
questioned by the trial court but eventually admitted she first recognized
counsel while Juror No. 4 was seated in the jury box during voir dire. With respect to the trial court’s rejection
of Juror No. 4’s claim she must have missed the trial court’s admonition to the
prospective jurors to disclose whether they recognized any of the attorneys, we
defer “to
the trial court’s factual determinations, based, as they are, on firsthand
observations unavailable to us on appeal.”
(People v. Barnwell, >supra, 41 Cal.4th at p. 1053.)
Also, Juror No. 4’s reluctance to indicate to Juror Nos. 7 and 3 which
attorney she recognized demonstrates consciousness of her wrongdoing. Thus, the evidence supports the trial court’s
finding Juror No. 4 intentionally concealed material information.

Anderson next addresses
Juror No. 7’s claim Juror No. 4 repeatedly kicked her under the table during
deliberations. Anderson contends this
accusation is questionable because Juror No. 7 did not report this conduct
until Juror Nos. 3 and 5 reacted unfavorably toward Juror No. 4. However, the trial court was aware of the
timing of the accusation and nonetheless found it credible. Absent something more substantial than the
timing issue raised by Anderson, we defer to the trial court’s factual finding Juror No. 4 repeatedly kicked a fellow juror when that juror
expressed opinions with which Juror No. 4 did not agree. (People
v. Barnwell,
supra, 41 Cal.4th at p. 1053.)
Attempting to dissuade a juror
through physical intimidation clearly constitutes misconduct. (See People
v. Wilson, supra, 44 Cal.4th at p. 839.)

Anderson also claims the
finding Juror No. 4 used her cell phone during trial and deliberations is
suspect because Juror No. 8 did not see Juror No. 4 use her cell phone to the
extent observed by the other jurors.
However, the trial court’s finding was supported by the testimony of the
jurors seated closest to Juror No. 4 who reported she not only consulted her
phone from time to time, but also typed on it during the trial. Indeed, Juror No. 4 admitted she made
improper use of her phone during deliberations in violation of the trial
court’s order.

Lastly,
Anderson contends that, even assuming each incident of misconduct were proved,
Juror No. 4 committed only trivial violations that did not require her removal. (People v. Wilson, supra, 44 Cal.4th at p. 839.) He asserts Juror No. 4’s failure to disclose
her recognition of defense counsel did not prejudice the People’s right to a
fair trial because the record indicates Juror No. 4 had a negative impression of defense counsel. He claims the remaining aspects of her
misconduct were not serious and there was little probability actual prejudice
ensued. (People v. Loot (1998) 63
Cal.App.4th 694, 698.)

The
trial court was entitled to consider the entirety of Juror No. 4’s
misconduct. Thus, we decline to parse
Juror No. 4’s misconduct into its components.
Taken as a whole, the misconduct found by the trial court was not
trivial. Juror No. 4 committed
misconduct and undermined
the jury selection process by concealing relevant
facts and giving false answers during voir dire. (In re Hitchings (1993) 6
Cal.4th 97, 110-111.) Although Juror No.
4 assertedly had a negative opinion only with respect to defense counsel and
not the prosecutor, her intentional failure to disclose her recognition of
defense counsel amounted to misconduct.
Also, she repeatedly ignored admonitions from the trial court and the
bailiff in charge of the jury not to use her cell phone. She repeatedly kicked a fellow juror during
deliberations, suggesting an intent to dissuade through physical
intimidation. Moreover, with respect to
each type of misconduct, Juror No. 4 steadfastly asserted she had done nothing
wrong. She claimed she had not been
certain of her identification of defense counsel, she denied cell phone use and
she denied kicking Juror No. 7.

Based
on these facts, the trial
court properly could conclude an admonition would be inadequate to insure Juror
No. 4 would commit no further misconduct.
Juror No. 4 had committed three acts of intentional misconduct and lied
when questioned about her conduct. The
trial court indicated on the record it doubted an admonition would be an
effective remedy in light of Juror No. 4’s denials of misconduct. The trial court reasonably could conclude
the juror could not be trusted to follow instructions to refrain from further
misconduct. As noted in People v. Daniels (1991) 52 Cal.3d 815, “a judge may
reasonably conclude that a juror who has violated instructions to refrain from
discussing the case or reading newspaper accounts of the trial cannot be
counted on to follow instructions in the future.” (Id.
at p. 865; see People v. Ledesma (2006) 39 Cal.4th 641, 738 [“a trial judge may conclude,
based on a juror’s willful failure to follow an instruction, that the juror
will not follow other instructions and is therefore unable to perform his or
her duty as a juror.”].)

Finally,
Anderson contends reversal is required because the record suggests Juror No. 4
was the lone holdout juror as Anderson was convicted approximately half an hour
after she was replaced. A similar claim was
rejected in People v. Fuiava, supra, 53
Cal.4th 622, which stated: “Because the
trial court’s finding of good cause to dismiss Juror T. is supported to a
demonstrable reality, there was no violation of defendant’s statutory or
constitutional rights. [Citation.] Moreover, there is no merit to defendant’s
claim that the court’s entirely proper discharging of Juror T., . . . coerced
the jury’s verdict. We presume the reconstituted
juries followed the trial court’s instructions to begin the deliberations
anew [citation], and defendant’s speculation to the contrary does not
persuade us name="citeas((Cite_as:_53_Cal.4th_622,_*716,_2">to conclude
otherwise.” (Id. at p. 716.)

In sum, because the evidence showed
to a
demonstrable reality that
Juror No. 4 was unable to perform the duties of a juror, we affirm the
trial court’s decision to remove the juror.
(>People v. Wilson, supra, 44 Cal.4th at
p. 839; People v. Barnwell, supra, 41 Cal.4th at p. 1052.)

6.
The abstract of
judgment must be modified to conform to the oral pronouncement of judgment.

The People contend
the abstract of judgment fails to reflect a 10-year firearm enhancement (Pen.
Code, §12022.53, subd. (b)) imposed by the trial court with respect to count 2,
attempted murder. It appears the point
is well taken. We shall order the
abstract of judgment modified to reflect the sentence imposed by the trial
court. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.)

DISPOSITION

The judgment is modified to reflect a
10-year firearm enhancement within the meaning of Penal Code section 12022.53,
subdivision (b) with respect to count 2, attempted murder.
In all other respects, the judgment is affirmed. The clerk of the superior court shall
prepare and forward to the Department of
Corrections and Rehabilitation an amended abstract of judgment reflecting
this modification.

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS







KLEIN,
P. J.





We concur:





CROSKEY,
J.









KITCHING,
J.