P. v.
Filed 6/26/12 P. v. Moreno CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JORGE S. MORENO,
Defendant and Appellant.
D060183
(Super. Ct.
No. SCD226640)
APPEAL from
a judgment of the Superior Court
of
County, Frank A. Brown, Judge.
Affirmed.
A jury
convicted Jorge S. Moreno of assault by means of force likely to produce great
bodily injury. The jury also found not
true the allegation that Moreno
personally inflicted great bodily injury on the victim. (Pen. Code,
(c)(8).) Moreno
admitted he had suffered three prior serious/violent felony convictions within
the meaning of section 667, subdivisions (b) through (i); two prison priors
(§ 667.5, subd. (b)), and two serious felony prior convictions within the
meaning of section 667, subdivision (a)(1).
The two serious felony priors were subsequently dismissed in light of
the jury's rejection of the great bodily injury allegation. Moreno
was sentenced to an indeterminate term of 25 years to life in prison, plus two
consecutive determinate years for the two prison priors.
Moreno
appeals contending the evidence does not support
rejected the great bodily injury allegation and that there was prejudicial
juror misconduct. We will reject both
contentions and affirm the judgment.
STATEMENT
OF FACTS
When the
events in this case took place, Moreno
and the victim were both inmates at the San Diego
County central jail facility. They were both housed in the administrative
segregation section.
On February 21, 2010, Moreno
was outside of his cell in the day room area of the unit. The victim was still inside his separate
cell. When the doors of the cells are
closed there is apparently a gap between one edge of the door and the
wall. On this occasion, Moreno
approached the victim's cell and engaged the victim in conversation. Moreno
had a cup of hot water with him at the time.
Moreno
was able to persuade the victim to get close to the door so he could hear Moreno. When the victim pressed his face against the
gap in the door, Moreno threw the
cup of hot water onto the victim's face.
When he was hit with the hot water the victim screamed in pain and called
for help.
After they
completed their security check, sheriff's deputies escorted the victim to the
jail medical facility.
The medical
examination of the victim established he was in some pain and had evidence of
burns to his face. The symptoms included
redness, swelling and some blistering.
The examining doctor concluded that the victim had suffered first and
second degree burns to his face and believed the water thrown onto his face
must have been at least 150 degrees Fahrenheit.
Moreno
did not present a defense and counsel admitted Moreno
committed the assault. Moreno
simply argued the force used was not likely to cause great bodily injury as
required for the charged aggravated assault.
The jury convicted Moreno
of assault with force likely to cause
great bodily injury, but found not true the allegation that Moreno
personally inflicted great bodily injury.
DISCUSSION
I
AGGRAVATED ASSAULT
Moreno
makes a straightforward, but unpersuasive claim which, simply stated, is that
since the jury found the great bodily injury allegation to be not true, the
jury must have only found him guilty of the misdemeanor crime of simple
assault. As Moreno
recognizes, assault with force likely to cause great bodily injury is an
inchoate offense that focuses on the nature of the force used, rather than upon
the injury. (People v. Colantuono
(1994) 7 Cal.4th 206, 216.) For
some reason, which frankly escapes us, Moreno seems to contend that where the
"assault [is] fully consummated, and the jury determined the force
actually used did not cause great bodily injury" that of necessity the
force used was "not likely to cause great bodily injury." Such argument is contrary to established law,
and thus we reject it.
When we
consider a claim of insufficient evidence, we review the entire record in the
light most favorable to the trial court decision. We do not make credibility determinations and
we do not reweigh the evidence. Our
question is simply whether there is sufficient substantial evidence from which
a reasonable jury could find each element of the offense to have been proved
beyond a reasonable doubt. (
Assault is an unlawful attempt, coupled with a present
ability to commit a violent injury upon another. (§ 240.)
Assault is aggravated when the basic crime is coupled with another
element. In this case the additional
element is the use of force, which is likely to produce great bodily injury. (§ 245, subd. (a)(1).) The focus of section 245, subdivision (a)(1),
is the force used, not on whether an injury actually occurred. (People
v. Roberts (1981) 114 Cal.App.3d 960, 964; People v. Colantuono, supra,
7 Cal.4th at p. 217; People
1028.)
Applying
the appropriate legal standards, it is clear there is sufficient evidence to
support the jury verdict. Moreno threw
very hot water onto the victim's face.
Medical testimony showed that at such temperature hot water could have
caused second degree burns and possible scarring. The fact that the actual
that could have resulted from Moreno's actions does not detract from the jury's
reasonable conclusion that such act was "likely" to produce great
bodily injury. The fact the degree of
injury turned out to be lesser does not detract from the jury's finding. Had Moreno thrown boiling water or acid at
the victim's face, but had fortuitously missed, that would not change the
nature of the force used. Accordingly,
we reject Moreno's claim that the evidence did not prove aggravated assault.
II
Moreno
contends that Juror No. 3 committed prejudicial misconduct by lying or
concealing relevant information during voir dire and by considering extraneous
material information during deliberations.
Following a rambling, and somewhat confusing discussion by the trial
court, Moreno's motion for new trial was denied. While the trial court could have been more
precise in its discussions, we are satisfied there was no admissible evidence
of juror misconduct in deliberations.
Nor, after reading equally loose and rambling voir dire by the court and
counsel, do we find any misconduct on the part of Juror No. 3. Indeed, the record shows the juror directly
answered the questions put to him.
Unfortunately, those questions did not call for the answers that
counsel, upon hindsight, would like to have obtained.
A. Standard of Review
When we
examine a trial court's denial of a motion
for new trial, which was brought on the grounds of alleged juror
misconduct, we accept the trial court's factual findings and credibility
determinations that are supported by substantial evidence. Once the facts are determined we will
independently determine if there was any prejudicial jury misconduct. (People
v. Dykes (2009) 46 Cal.4th 731, 809.)
However, purported statements by jurors about their mental processes in
evaluating the evidence are made inadmissible by Evidence Code
(People v. Steele (2002) 27
Cal.4th 1230, 1261.)
B. Voir Dire Issues
Moreno's
principal complaint arises from a conversation defense counsel had with Juror
No. 3 following the verdict. According
to counsel's statement he asked the juror what he might have done to obtain a
better result for his client. Among
other things, the juror is alleged to have told defense counsel he did not ask
the right questions during jury selection.
The juror pointed out he was asked his occupation, which he correctly
answered was as a pharmacist. The juror
pointed out he was not asked where he worked, which was the R.J. Donovan
California State Prison. Moreno claims
the juror lied and/or willfully withheld material information. We disagree.
During jury selection, neither counsel asked any
direct questions of Juror No. 3. In its
introductory questions the trial court asked all jurors to give their name,
occupation, the occupation of other adults they live with, the age of their
children, whether they had previously served as a juror, whether they had any
"close friends or relatives" in law enforcement, and whether they
believed they could be fair. Juror No. 3
gave his name, occupation as a pharmacist, that he lived alone and had no
children, he had previously served as a juror in a civil case, he had no
friends or relatives in law enforcement or the legal profession and that he
believed he could be fair.
Defense
counsel's affidavit in support of the new trial motion asserted the juror had
made a number of statements in voir dire, that examination of the reporter's
transcript proved to be inaccurate. We
have set forth the entirety of Juror No. 3's responses. He was never asked where he worked. Indeed, when the juror was questioned by the
court, the jury had not been told that the crime in this case occurred in the
county jail. Nor was any juror asked
about knowledge of jail operations.
Essentially,
Moreno complains that the juror did not volunteer information about the place
of his employment, but there would have been no reason for the juror to do so,
unless there was something about the place of his employment that caused the
juror to believe that he could not be fair.
No evidence has been offered at any point in this case that the juror
was biased against the defendant, that the juror thought he could not be fair
or that the juror took any action to seek out or obtain any information outside
of court to use in deliberation.
The
conversation with Juror No. 3 after trial was in the context of the attorney's
request for advice on how to do a better job.
The juror pointed out the unasked question, which might have been
important in jury selection, but did not indicate he personally held any
bias. Likewise, there is no evidence in
this record that the juror has any "close friends or relatives" in
law enforcement. As a pharmacist, he may
know correctional officers, but that was not the question asked of him. As far as this record demonstrates, the
juror's answers were completely true.
C. Misconduct in Deliberations
Moreno also
contends the juror misused information about prison conditions which were not
in evidence in this case. The
prosecution objected to counsel's affidavit as to the juror's use of
information as hearsay. The trial court
sustained the objection. There was no
sworn statement from the juror, or any other juror about the possible use by
the juror of extraneous information. The
first step in any analysis of alleged jury misconduct is to determine whether
there is any admissible evidence of such behavior. Where the alleged misconduct arises from
information considered by the juror, it must be admissible under Evidence Code
section 1150. (People v. Von Villas (1992) 11 Cal.App.4th 175, 225;
Cal.App.4th 711, 724.) Here there
is no such information.
First, the
hearsay objection is well taken.
Certainly counsel's declaration states what counsel allegedly heard, but
it is hearsay as to whether, and how the juror might have considered such
information. (People v. Villagren (1980) 106 Cal.App.3d 720, 729-730.) Further, the defendant's obligation was to
present admissible evidence of overt acts or statements that are
"objectively ascertainable by sight, hearing or the other
senses." (People v. Cissna (2010) 182 Cal.App.4th 1105, 1116.) Moreno has not carried his burden.
The
information presented to the court, even if not considered hearsay, does not
meet the standard of admissibility. The
juror did not say he was influenced by or even considered his personal
knowledge of jail procedure. He was
responding to requests by counsel as to how to do a better job in the
future. In short, there is no
"objectively ascertainable action" by the juror, which would permit
its use as an exception to the rule of Evidence Code section 1150.
We are also
mindful that the credibility of counsel's assertions was questioned in the
trial court. His recall of the juror's
responses in jury selection was plainly inaccurate. The trial court was entitled to view the
remainder of counsel's assertions with some suspicion. Thus, on the record before us there is no
basis for the claim of juror misconduct, nor for the attendant claim that such
misconduct denied Moreno a fair trial.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
McINTYRE, J.
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code unless otherwise specified.
Code section 1150 provides: "(a) Upon an inquiry
as to the validity of a verdict, 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 either in influencing him to assent to or
dissent from the verdict or concerning the mental processes by which it was determined.
law relating to the competence of a juror to give evidence to impeach or
support a verdict."
