P. v. Keeton
Filed 1/30/14 P. v. Keeton CA5
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prohibits courts and parties from citing or relying on opinions not certified
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JERMALE KEETON,
Defendant and Appellant.
F064723
(Kern Super. Ct. No. BF136484A)
APPEAL
from a judgment of the Superior Court of
Kern County. Colette M. Humphrey,
Judge.
Catherine
White, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Catherine Chatman and Larenda R. Delaini, Deputy Attorneys
General, for Plaintiff and Respondent.
-ooOoo-
FACTS
CHARGES
Defendant
Jermale Keeton (defendant) was charged with solicitation
to commit murder (count I - § 653f, subd. (b)
subd. (a)). The amended
defendant committed the murder solicitation for the benefit of a criminal
street gang. (§ 186.22, subd. (b)(1).) The amended information further alleged
defendant has previously been convicted of a felony as defined in sections 667,
subdivisions (c)-(j) and 1170.12, subdivisions (a)-(e), and previously served
two prior prison terms (§ 667.5, subd. (b).)
TRIAL EVIDENCE
Witness
David Strickland testified that he had been a member of the Country Boy Crips
gang from ages 14 to 20. Strickland had
suffered juvenile adjudications for petty theft, grand theft auto,
participation in a criminal street gang and receiving stolen property.
In
October 2010, Officer Ryan Kroeker searched Strickland’s car and discovered
marijuana. Officer Kroeker asked
Strickland if he would be willing to provide “information†in exchange for
leniency. The two entered into a written
agreement. Initially, Strickland was to
help Officer Kroeker with four cases.
Strickland satisfied this initial obligation, but continued to work with
Officer Kroeker. According to Officer
Kroeker, Strickland would provide information leading to arrests or seizures
and would be paid “as much as $150†or “as little as $50.â€
On
the afternoon of April 8, 2011, defendant called Strickland. Defendant asked whether Strickland had been
“hanging around my homeboy Nathaniel [Johnson].†Strickland responded affirmatively, and said
he spent time with him every day.
Defendant said he was trying to find Johnson, but did not say why.
Approximately
one hour after the first call, defendant again called Strickland. He asked Strickland whether he “got in touch withâ€
Johnson. Strickland replied, “ ‘Yeah.
I’m right here with him right now.’ â€
Defendant said he wanted to talk with Johnson. While the phone was in speakerphone mode,
Strickland gave the phone to Johnson.
Johnson took the phone off of speakerphone mode and walked away from
Strickland. Approximately four minutes
later, Johnson gave the phone back to Strickland.
Strickland
then called defendant to learn what Johnson and defendant had discussed. Defendant told Strickland that Johnson “was
no good, that he was a snitch.â€
Defendant said Johnson had “basically admitted†being a snitch on the
phone.
Defendant told
Strickland to meet him around the corner from Johnson’s house in 20 minutes. When Strickland arrived at the location,
defendant was already there in his car.
The car was a sanded-down Cutlass with no license plates. Defendant told Strickland that he had spoken
to “a couple older homies from my hood, from the Country, and that they said it
was a go basically on [Johnson].â€
Strickland understood that defendant was going to kill Johnson.
Defendant asked
Strickland to help. Defendant told
Strickland to bring Johnson to “the Country,†meaning the area where the
Country Boy Crips live. After the
conversation ended, Strickland walked away and called Officer Kroeker. Strickland then met with Officer Kroeker in
his car. At Officer Kroeker’s direction,
Strickland placed another call to defendant.
Strickland “believe[s]†he asked defendant whether “he was sure he got
the big homie’s okay ….†Defendant
said, “[Y]eah,†and that he would call him back.
Strickland went
back to Johnson’s house. Strickland told
Johnson that “the word out there in the Country is that they want to kill you
because you’re a snitch.â€
That night,
Officer Kroeker brought Strickland to the police department. Officer Kroeker gave Strickland a phone with
which to call defendant. Officer Kroeker
said he would record the calls.
Defendant said
he “got the okay from the older homies….â€
Defendant told Strickland to bring Johnson “to that spot on
Melwood.†Defendant said he would walk
up to their car, say something to Johnson and shoot him. Defendant said he would then give Strickland
the gun and have someone pick it up later.
Defendant told
Strickland he was going to Shellmacher Street to get a gun. Officer Charles Sherman was assigned to
respond to Shellmacher Street in an undercover vehicle, follow defendant and
have him stopped by a marked patrol unit. It was dark when Officer Sherman arrived at
the 3500 block of Shellmacher Street. As
he was driving south on Shellmacher, Officer Sherman noticed a parked
vehicle. He saw a person he believed to
be defendant in the driver’s seat. After
three or four minutes, defendant began to drive his vehicle south, make a
U-turn, then drive north. Officer
Sherman followed defendant for a mile and a half where other officers initiated
a traffic stop. After the stop, Officer
Sherman confirmed the driver was defendant. Officer Louis Wood searched the vehicle and
did not locate any firearms. Defendant
was arrested.
JURY INSTRUCTIONS
The court
instructed the jury on count II (§ 186.22, subd. (a)) as follows:
“The
defendant is charged in Count 2 with participating in a criminal street gang in
violation of Penal Code section
186.22(A).
“To prove
that the defendant is guilty of this crime, the People must prove that: One, the defendant actively participated in a
criminal street gang; two, when the defendant participated in the gang, he knew
that members of the gang engaged in or have engaged in a pattern of criminal
gang activity; and, three, the defendant
willfully assisted, furthered or promoted felonious criminal conduct by members of the gang by directly and
actively committing a felony offense.
“Elements 1
and 2 have been proven by stipulation. In order to find the defendant guilty of this
offense, you must find Element 3 to be true beyond a reasonable doubt.
“Active
participation means involvement with a criminal street gang in a way that is
more than passive or in name only.
“As the term
is used here, a willful act is one done willingly or on purpose.
“Felonious
criminal conduct means committing or
attempting to commit the following crime: Solicitation of murder in violation of Penal
Code Section 653F(B).
“To decide
whether a member of the gang or the defendant committed solicitation of murder
in violation of Penal Code Section 653F(B), please refer to the separate
instructions that I have given you on that crime.†(Italics added.)
The instructions
then proceeded to describe a separate enhancement.
The jury was
also instructed on the elements of solicitation and murder. As further
discussed below, the jury received no instruction on the elements of attempt or
attempted solicitation.
JURY DELIBERATION PHASE
On December 15,
2011, the jury sent a note stating they had agreed on a verdict for count II (active
gang participation), but could not come to an agreement on count I (solicitation).
The court called the jury into the court
room. The foreman explained that the
most recent vote was 11 to 1. The court
asked the foreperson whether there were any specific concerns which, if
resolved, might assist the jury. The
foreperson indicated that a “definition of terms†might help. The court had the jurors resume deliberations
and instructed them to “write any and all concerns that you might have that
will assist each of you in deliberations on a note….â€
The jury then
sent a note asking several questions, including the following: “ ‘Can the verdict of Count 2 be
different than Count 1[?]’ â€
jury, the court and counsel discussed the proper response to the question. The court indicated it would respond to the
jury’s question by saying: “The verdict
or decision for Count 1 and the verdict or decision for Count 2 are decisions
for you to make. Period….†Defense counsel requested a different answer
to the question, saying: “Not guilty on
[count] one, they have to be not guilty on [count] 2 based on the way it was
argued. I submitted that. It’s our request as to [the court’s response
to] Question 2.â€
When the jury
was called into the courtroom, the court answered the question as follows: “Regarding Question 2, ‘Can the verdict of
Count 2 be different than Count 1?’ The
verdict or decision for Count 1 and the verdict or decision for Count 2 are
decisions for you to make. That’s it.â€
VERDICT AND
FINDINGS
The
jury convicted defendant of active participation in a criminal street gang, but
was unable to reach a verdict on solicitation. The court declared a mistrial as to the
solicitation count. The trial court
found the prior conviction and prior prison term allegations as to count II to
be true.
POSTVERDICT
The court
declared a mistrial as to count I because the jury was unable to reach a
verdict.
Defendant moved
for a new trial on the grounds that the guilty verdict on count II was not
supported by substantial evidence. The
trial court denied the motion. The court
said that if one or more of the jurors believed that defendant had not
committed solicitation but had
committed attempted solicitation, then “one can be found guilty of Count 2 and
not guilty of Count1. For those reasons,
the Court has come to an understanding as to what the jury believed when they
reached a decision in one count and were unable to reach the decision in
another count.â€
The court sentenced
defendant to a prison term of 11 years.
Defendant
subsequently pled no contest to count I (§ 653f, subd. (b)), and
admitted the gang enhancement.
defined in section 667, subdivisions (a) and (e). The prior prison term allegations were
dismissed.
The
court resentenced defendant to an aggregate term of 13 years. The sentence included the lower term of three
years on the murder solicitation count, doubled pursuant to section 667,
subdivision (e), plus two years for the gang enhancement, plus five years
pursuant to section 667, subdivision (a).
On count II, the court sentenced defendant to six years and stayed
imposition of the sentence pursuant to section 654.
DISCUSSION
I.
THE TRIAL COURT ERRED IN FAILING TO ADEQUATELY RESPOND TO THE JURY’S
QUESTION REGARDING VERDICT CONSISTENCY
A.
SECTION 1138
Section 1138
provides that if the jury “desire[s] to be informed on any point of law arising
in the case,… the information required must be given .…†(§ 1138; see also People v. Beardslee (1991) 53 Cal.3d 68, 97.) Thus, “a trial court is required to instruct a deliberating jury on its request ‘on any
point of law arising in the case.’
[Citation.]†(
746, italics added.)
“The court has a
primary duty to help the jury understand the legal principles it is asked to
apply. [Citation.] This does not mean the court must always
elaborate on the standard instructions. Where
the original instructions are themselves full and complete, the court has
discretion under section 1138 to determine what additional explanations are
sufficient to satisfy the jury’s request for information. [Citation.]â€
(Beardslee,
A trial court’s
answer to a jury question can be erroneous even if it is free of inaccuracies.
incorrect statements of law, the court’s answer must also “clear up any instructional
confusion expressed by the jury.
[Citations.]†(
1179, 1212, superseded by statute on another point as stated in
691.)
Here, the trial
court’s answer did not contain any incorrect statements of law. It simply reiterated that the verdicts were decisions
for the jury to make – a proposition defendant does not dispute. The issue presented here is whether the trial
court’s answer satisfied the duty to “clear up [the] instructional confusion
expressed by the jury. [Citations.]†(Gonzalez,
supra, 51 Cal.3d at p. 1212.) First, we will explore the nature of the
“instructional confusion†present here, then we will consider whether the
court’s answer “clear[ed] up†that confusion.
INSTRUCTIONAL CONFUSION
1.
The Third Element of Count II (§ 186.22(a))
The trial court
instructed the jury on the three elements of count II, the active gang
participation charge. Its instructions
on the third element required the prosecution to prove “defendant willfully
assisted, furthered or promoted felonious criminal conduct by members of the
gang by directly and actively committing a felony offense.â€
instructed the jury that “[f]elonious criminal conduct means committing
crime: Solicitation of murder in
violation of Penal Code Section 653F(B).â€
(Italics added.) The court
concluded its instructions on count II by saying: “To decide whether a member of the gang or the
defendant committed solicitation of murder in violation of Penal Code Section
653F(B), please refer to the separate instructions that I have given you on
that crime.â€
2.
Incorporation of the Elements of the Underlying Felony
“Some crimes … incorporate,
as one element, all of the elements of another
crime. [Citation.]†(People
v. Mil (2012) 53 Cal.4th 400, 413, original italics; e.g.,
188, 192 (Magee) [accessory after the fact].) The plain language of section 186.22,
subdivision (a) shows that it is one such crime. Section 186.22, subdivision (a) clearly requires
that members of the gang commit a felony.
See also, People v. Green (1991) 227 Cal.App.3d 692, 704 abrogated on another
point by People v. Castenada (2000)
23 Cal.4th 743.) Thus, the elements of
that underlying felony are incorporated into the active gang participation
offense.
title="">[8] (Cf. Magee, supra 107
Cal.App.4th at pp. 192-193.)
The effect of
this incorporation is to trigger a constitutional requirement to instruct the
jury on the elements of the underlying felony. (Cf. Magee,
supra, 107 Cal.App.4th
requirement that the court instruct “on the principles of law that are relevant
to and govern the case, including instruction on all of the elements of the
offense. [Citation.]†(Id.
at p. 193.)
3.
The Instructions Identified Two Potential Underlying
Felonies, but Only Identified the Elements of One
As to the
underlying felony of solicitation, this requirement was met. The court instructed the jury: “To decide whether a member of the gang or the
defendant committed solicitation of murder in violation of Penal Code Section
653F(B), please refer to the separate instructions that I have given you on
that crime.†The separate instructions
on solicitation correctly identified the elements of that crime.
However,
solicitation was not the only underlying felony tendered to the jury. The instructions on count II defined
“felonious criminal conduct†as “committing or
attempting to commit the following crime: Solicitation of murder in violation of Penal
Code Section 653F(B).†(Italics
added.) The court did not instruct the
jury on the elements of attempt. (See § 21a;
CALCRIM 460.)
Identifying
attempted solicitation as a potential underlying felony poses two problems.
First, it was
error in and of itself. “It is error to
give an instruction which, while correctly stating a principle of law, has no
application to the facts of the case.
[Citation.]†(
1129.) The parties agree on appeal that
there was no substantial evidence defendant merely attempted to solicit Strickland to commit murder. As the trial court noted during jury
deliberations: “Given the evidence in
this case, it does not appear … the evidence would have supported giving
[instruction on attempted solicitation].â€
Second, without
an accompanying explanation of the elements of attempt, the instructions effectively
told the jury to determine whether defendant committed an undefined crime. As we explained
in an analogous context: “Without [instruction
on the elements of the underlying offense] a jury will not be equipped with the
necessary information to find that [the] felony occurred. It will not know the facts the prosecution
must prove to establish the underlying felony, i.e., the jury will be left to
guess or speculate whether a felony occurred.†(Magee,
supra, 107 Cal.App.4th at p. 193.)
4.
The Court’s Answer to the Jury’s Question Did not
Clear Up the Instructional Confusion
With this understanding
of the instructional confusion faced by the jury, we turn to whether the
court’s answer to the jury question cleared up that confusion. The jury asked whether the verdicts on counts
I and II needed to be the same. This
seems to suggest the jury was understandably confused as to whether “felonious
criminal conduct†in count II was functionally synonymous with the crime of solicitation
to commit murder defined in count I. If
the original instructions had properly omitted any reference to attempted
solicitation, then this confusion would presumably not have arisen. Or confusion might have been avoided if the
erroneous reference to attempted solicitation had been coupled with instruction
on the elements of attempt. Regardless,
the court’s response that each verdict was a decision for the jury, while true,
did not “ ‘clear up any instructional confusion .…’ †(People
v. Loza (2012) 207 Cal.App.4th 332, 355.) This was error.
C.
PREJUDICE
“Any error under
section 1138 … is subject to the prejudice standard of People v. Watson [(1956)] 46 Cal.2d 818, 836 [(Watson)] .…†(
326.) We ask whether “ ‘it is
reasonably probable that a result more favorable to the appealing party would
have been reached in the absence of the error.’
[Citation.]†(
491, 519.)
1.
The Jury Likely Used Attempted Solicitation as the
Basis for Finding Felonious Criminal Conduct Had Occurred Under Count II
Under
harmless if the jury used actual solicitation, rather than attempted
solicitation, as the basis for finding element three of section 186.22,
subdivision (a) had been satisfied. However,
it appears the opposite occurred here. When
considered together, the two verdicts suggest the jury used
underlying element three of section 186.22, subdivision (a). The jury did not convict defendant on the
standalone solicitation charge (count I).
Under the court’s instructions, that leaves only attempted solicitation
as the basis for finding “felonious criminal conduct†in support of the third
element of count II. Thus, assuming the
jury followed the instructions as given, it is likely the jury found defendant had
committed attempted solicitation in satisfaction of the third element of 186.22,
subdivision (a).
name="_ftnref10" title="">[10] If so, they made that finding
without any instruction on the elements of attempt.
The Attorney
General cites United States v. Powell (1984)
solicitation as the felonious criminal conduct underlying the active gang
participation conviction.
name="_ftnref11" title="">[11]
Powell is not applicable here. In that case, the Supreme Court reaffirmed
that consistency between criminal verdicts “is not necessary.†(Powell,
supra, 469 U.S. at p. 62,
quoting Dunn v. United States (1932)
284 U.S. 390, 393.) We agree that, under
Powell and its progeny, it would
erroneous to reverse a conviction merely because it is inconsistent with
another verdict. But this is not a case
of inconsistent verdicts. Indeed, there was only one verdict here. Rather, it is a case of purported
instructional error. While inconsistent
verdicts do not warrant reversal, prejudicially erroneous or incomplete jury
instructions do. Here, we look to the
jury’s failure to reach a verdict on count I in analyzing whether a separate
instructional error was prejudicial. The
Powell line of cases does not require
that reviewing courts ignore a jury’s verdict (or failure to reach a verdict)
in determining whether an instructional error was harmless.
2.
People v. Cain
Though the
Attorney General does not argue that People
v. Cain (1995) 10 Cal.4th 1 (Cain)
is on point, we feel it appropriate to distinguish that case. In Cain,
the defendant was charged with murder with an attempted rape special
circumstance, among other crimes. (
of rape (CALJIC 10.00) and the attempted rape special circumstance (CALJIC
8.81.17). (Cain, supra, at
p. 44.) One of the elements
identified in the special circumstance instruction was: “ ‘… That the murder was committed
while the defendant was engaged in or was an accomplice in the commission
robbery, or a rape….’ †(
omitted.) Neither the special
circumstance instruction nor any other instruction identified the elements of
attempt. (Id. at p. 44.)
In
the failure to instruct on attempt was error.
(Cain, supra, 10 Cal.4th at p. 44.)
The California Supreme Court analyzed prejudice as follows:
“As the Attorney General persuasively
argues, insofar as relevant here
[CALJIC 6.00] merely restates the common meaning of ‘attempt.’ To attempt an act is to ‘try’ or ‘endeavor to
do or perform’ the act. (Webster’s New
Internat. Dict. (2d ed. 1958) p. 177.) …
As the prosecutor argued to the jury in his closing statement,
rape was sufficient to explain the position of [the victim’s] body and the
presence of pubic and body hairs in her clothes. Under these circumstances, we conclude omission of the attempt
instruction did not contribute to the verdict obtained; the jury necessarily
made the requisite findings necessary to hold defendant liable .…†(Ibid.,
italics added.)
As
this passage makes clear, Cain’s
holding on this issue was narrowly-tailored to the facts of that case.
rape were consistent with the evidence. (
attempted rape was sufficient to explain†certain evidence].) The same cannot be said of the present
case. There was no evidence here that
defendant merely attempted to solicit
murder. That is, there was no
substantial evidence that defendant had taken a direct, ineffectual act towards the commission of solicitation. (See § 21a.) Indeed the Attorney General acknowledges that
there was no substantial evidence of attempted solicitation. Thus, the likelihood that the jury
misunderstood or misapplied the confusing instructions on count II is far
greater here than in Cain.
3.
The Trial Court’s Original Instructions Were
Incomplete
The Attorney
General also argues any error was harmless because the original instructions
were correct and the court’s response to the jury’s question did not remove an
element of the offenses from consideration.
But as we have explained, the original instructions were not correct. Thus while the court’s response did not remove an element from the jury’s consideration,
the court’s original instructions did
undermine the jury’s consideration of an element of the offense. (See Discussion § I.‎B.‎2., ante.) The court’s response did not rectify this
problem caused by the original instructions.
4.
Harmless Error Analysis Focuses on What Would Have
Occurred in the Absence of Error
The Attorney
General also argues that if the court “advised the jury that the verdicts
needed to be the same, the jury likely would have returned a guilty verdict on
count 1, solicitation for murder. Directing the jury’s verdict in such a manner
would have been prejudicial to appellant….â€
This analysis inverts the Watson
harmless error test. In determining
whether an error is harmless under Watson,
error occurred. (Id. at pp. 836-837 [“in the absence of the errorâ€].) Thus, Watson
would have us envision a correct
response to the jury’s question and determine whether it would have resulted in a more favorable outcome for defendant. The hypothetical response to the jury’s
question posed by the Attorney General (i.e., that “the verdicts needed to be
the sameâ€) would have been erroneous.
we are called to analyze under Watson.
5.
The Error Was Not Harmless
A correct
response by the trial court would have clarified the “ ‘instructional
confusion expressed by the jury.’
[Citation.]†(
the original instruction’s erroneous reference to attempted solicitation
without any description of the elements of that offense. Consequently, an appropriate answer under
section 1138 would have removed attempted solicitation from the definition of
“felonious criminal conduct.†This would
have left actual solicitation as the only underlying felony for the jury to
consider. As corrected, the instructions
would have made clear that if the jury did not find defendant committed
solicitation in count I, then “felonious criminal conduct†would not have been
established for count II.
name="_ftnref14" title="">[14]
Here, the jury could
not reach a verdict on the solicitation count.
Therefore, if it had been made clear to the jury that solicitation under
count I was synonymous with “felonious criminal conduct†under count II, it is
reasonably likely the jury would have failed to reach a verdict on count II as
well. And, as we explained in
favorable†result under the Watson harmless
error analysis. (People v. Soojian, supra,
190 Cal.App.4th at pp. 520-521.) Therefore,
we conclude the error was not harmless under Watson, supra, 46 Cal.2d
818 and reverse defendant’s conviction for violating 186.22, subdivision (a).
We therefore need
not reach the remainder of defendant’s contentions.
CONCLUSION
We take reversal
of a criminal conviction seriously. But,
as we have explained, there are a number of possible explanations for the
jury’s verdicts. The jury could have
convicted defendant on count II by either (1) ignoring the instruction
requiring that defendant committed an underlying felony, or (2) concluding he
committed attempted solicitation without instruction and without substantial
evidence. The Attorney General would
have us consider a third possibility: that
the jury concluded defendant committed the underlying felony of solicitation. But the viability of that scenario is greatly
undermined by the jury’s failure to reach a verdict on solicitation. Having concluded the instructional error was
prejudicial, we must reverse.
DISPOSITION
Defendant’s
conviction for violating section 186.22, subdivision (a) is reversed. The matter is remanded for possible retrial.
_____________________
Poochigian, J.
WE CONCUR:
______________________
Cornell, Acting P.J.
______________________
Franson, J.
otherwise stated.
