P. v.
Parker



















Filed 12/17/12 P. v. Parker CA3













NOT TO BE PUBLISHED











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opinion has not been certified for publication or ordered published for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

THIRD
APPELLATE DISTRICT

(Sacramento)

----






>

THE PEOPLE, Plaintiff and Respondent, v. JOHN KEVIN PARKER, Defendant and Appellant.

C068847 (Super. Ct. No. 10F03956)

A
jury convicted defendant John Kevin Parker of href="http://www.mcmillanlaw.com/">possession of a firearm by a felon and
obstructing or delaying a peace officer.
Defendant admitted a prior serious felony conviction and three prior
prison terms. The trial court denied his
motion for a new trial and his motion to dismiss the prior strike conviction,
and sentenced defendant to seven years in prison.

Defendant
contends the trial court (1) erred in denying his href="http://www.mcmillanlaw.com/">motion for a new trial, and (2) abused
its discretion in denying his motion to dismiss the prior strike
conviction. Finding no error or abuse of
discretion, we will affirm the judgment.href="#_ftn1" name="_ftnref1" title="">[1]

BACKGROUND

Sacramento
Police Officer Alexander Giy made a traffic stop on a gray sedan with
unlawfully tinted windows. The car
stopped in front of a storage facility.
Defendant, the right rear passenger, got out of the car while holding a
gray object close to his body. Defendant
ran from the officer and into a back alley.
Officer Giy broadcast defendant’s path of travel and responding officers
took defendant into custody.

The
gray object turned out to be a T-shirt and Officer Giy did not see defendant
throw anything. Later that day, however,
when Officer Giy reviewed the video from his patrol car camera, he observed
that at one point during defendant’s flight he slowed down and appeared to throw
something. Giy returned to the scene and
found a loaded .45-caliber handgun on the ground along defendant’s path of
travel. The gun had been placed there
recently. The patrol car video was
played for the jury.

The
parties stipulated that defendant had a prior felony conviction and that no
latent fingerprints were found on the handgun.


Defendant presented evidence that
another person could have placed the gun where it was recovered. Erica Farley, an employee of the storage
facility, testified that each day she sees people traveling in the area of
defendant’s flight. On
cross-examination, Farley conceded that her view of the area from her office
window is partially obstructed and that she could see only a small portion of
the street defendant ran down. She said
only a couple people per day use that street.
But on redirect Farley said 20 to 30 cars may pass through the area
during the late afternoon to early evening hours.

Additional
facts are included in the discussion as relevant to defendant’s contentions on
appeal.

A
jury convicted defendant of possession of a firearm by a convicted felon (Pen.
Code,href="#_ftn2" name="_ftnref2"
title="">[2]
former § 12021, subd. (a)(1)) and obstructing or delaying a peace officer
(§ 148, subd. (a)(1)).
Defendant admitted a prior serious felony conviction (§§ 667,
subds. (b)‑(i), 1170.12) and having served three prior prison terms
(§ 667.5, subd. (b)). The trial
court sentenced him to seven years in prison.


DISCUSSION

I

Defendant
contends the trial court erred in denying his motion for a new trial because
the jury was “tainted.”href="#_ftn3"
name="_ftnref3" title="">[3] He argues this occurred when the prosecutor’s
closing argument improperly shifted the burden of proof to the defense, and
when an audio recording that had not been admitted into evidence was played
during jury deliberations. Defendant
claims the denial of his motion for a new trial violated his federal href="http://www.fearnotlaw.com/">constitutional right to due process.

A>

Closing
Argument

The
defense theory at trial was that someone else put the gun on the ground between
the time defendant was arrested and the time Officer Giy returned to search the
area.

Among
other things, the prosecutor argued during closing argument: “You can imagine a set of circumstances where
someone else put that gun there except for the -- aside from the
defendant. But that’s all they can rely
on, is imagining the possibility that something like that happened. [¶]
The evidence points to one thing.
The evidence points to [defendant] putting that gun in there. Nobody else.
[¶] So there is no evidence about
what actually happened that day, what happened during this pursuit, presented
by the defense. And what else there was,
was how about somebody that was in that car?
How about someone that said --”

Defense
counsel objected at that point on the ground of “improper burden
shifting.”

The
trial court replied: “Well, ladies and
gentlemen, the objection is being made that [the prosecutor’s] comment may be
improperly shifting the burden on the defense to present certain evidence to
you. And as you heard earlier, they are
not required to present any evidence to you.
[¶] I don’t think it is, so I’m
going to overrule the objection. But the
defense, again, to remind you, is not required to present any evidence to
you.”

The
prosecutor continued: “That’s absolutely
true. They are not required to put any
evidence on. But if there’s a logical
witness that could provide evidence and there’s a failure to call that witness,
then I can comment on that. Okay? [¶] If
there was one of the associates of the defendant, who was in that car, to say,
‘We were just on our way back from Wendy’s, and we were just headed up to
. . .’ you know, wherever ‘. . . to eat food, you
know. Of course, we didn’t have any guns
in the car.’ [¶] I don’t know if the defendant just said, ‘I’m
freaking out. I’m just going to
run. I have no reason to, but I’m just
going to do it,’ you know. We didn’t
hear any witnesses say anything like that.
[¶] And we know that there is a
car of people with the defendant before he hopped out and ran with the
gun. But we didn’t hear a word from any
of them. Okay? And if they were able to provide some of
that evidence, we would have heard from them.
But the bottom --”

Defense
counsel again objected on the ground of burden shifting, and the trial court
again overruled the objection.

The
prosecutor also discussed jury instructions, and in particular the instruction
regarding proof beyond a reasonable doubt.
The prosecutor said “the burden is on us to prove the defendant is
guilty and that’s what we’ve done.”

Defense
counsel began her closing argument by commenting on the People’s burden of
proof and defendant’s presumption of innocence.
She asked the jury not to shift the burden to the defense. Defense counsel then addressed the “failure
to call witnesses since that was kind of one of the ending points that the
district attorney made.” She reiterated
that there was no obligation to call witnesses and that the burden of proof
remained with the prosecutor. Defense
counsel repeated the jury instruction on reasonable doubt and continued to
highlight that the burden was with the People.


Defense
counsel argued that “none of the officers would have left the scene without
checking the path that [defendant] ran.
They wouldn’t have done that.
They are trained that when somebody runs, there’s something that’s going
on. They believed that it’s always to
discard something.” Defense counsel
added, “[a]ll those officers had their suspicions in that moment. The suspicions didn’t arise three to four
hours later. Those suspicions were in
that moment. The moment that Officer Giy
says [defendant] started running through the time that they finally all
dispersed. . . . [T]hey walked
and they confirmed, they’re pointing.
‘Yeah, we checked back there.’
There was nothing. [¶] If there had been something, we would have
had a report from those officers because now there would have been something
for them to report on.”

Before
the prosecutor’s rebuttal, the trial court stated, “Folks, partly because [the
prosecutor] has the burden of proof, he gets to talk to you again for a few
minutes.”

During
rebuttal, the prosecutor touched on reasonable doubt and the corresponding jury
instruction several more times. The prosecutor
said: “Then there was quite a bit said
about that the burden is not on the defense, it’s on the People. And, again, I emphasize that is very true. Okay?
But like I said before, I can comment on a failure to call logical
witnesses. . . . [¶] . . . [¶] The people that were not called were the
people that do know presumably, right?
They are in the car with him, they know the defendant, and they had at
least an understanding of what was going on that day. Those people weren't called.” Instead, according to the prosecutor, the
defense called a witness who had no knowledge of the case and had a “view of 1
percent” of the area in question.

The
trial court instructed the jury with CALCRIM No. 220, directing the jury that
defendant is presumed innocent and that the People have the burden of proving
defendant guilty beyond a reasonable doubt.


Jury
Deliberations

During
motions in limine, the trial court granted, without objection, the prosecutor’s
request to play the video from Officer Giy’s car camera. The prosecutor indicated that the audio from
the camera would not be played because it was not necessary. The video was subsequently played for the
jury during trial.

Later,
however, during jury deliberations, the trial court said it was advised that
the deliberating jurors “may have played the audio that accompanies the
video.” The trial court questioned the
foreperson about the situation. The
foreperson said, “I heard his rights being read to him. I heard his name and I heard his birth date. That’s it.”
The trial court told the foreperson the audio was not part of the
record. The trial court then brought in
the rest of the jury and admonished them:
“I just want to make clear to all of you that the audio is not part of
the record. Okay. We didn’t think it was relevant or essential
to the issues in this case. And in
inadvertence, the sound was left on, the device in which you played that video. Okay?
[¶] But the audio is not part of
the record. So whatever you heard, even
though it may have been brief, you should just disregard it and not consider
that at all in arriving at your decision.
All right?”

The
jurors agreed and indicated that there would be no problem following the trial
court’s admonishment. Nonetheless, Juror
No. 2 asked about a portion of the audio, saying, “I got the impression that
when the police officers went back to inspect the scene, that they were not
aware of the route. That’s what I heard
on the audio. That’s the impression I
got from the audio. When they went back
to the scene, that they were not aware of the -- of the route the runner took
when they went back to look.”

The
trial court admonished Juror No. 2 that “the point is that that part is not in
the record and you shouldn’t consider that audio at all in deciding the issues
in this case.” The juror indicated he
understood the admonishment. The trial
court concluded by reiterating that the jurors “should not be influenced at all
by what you may have heard said when that audio -- when that video was
played. The audio is not part of the
record.”

After
deliberations resumed, defense counsel
asked to question Juror No. 2 about what he actually heard. The trial court declined the request because
“the jurors assured me they are going to not listen, not allow the audio to
enter into their decision. I think that
I’m going to take them at their word for now.”
The trial court expressed concern about invading the jurors’
deliberative process at that point, but it did not preclude defense counsel
from raising the issue at a later time.
When defense counsel expressed doubt that Juror No. 2 could put “any of
that out of his mind,” the trial court replied that it was going to “take the
jurors at their word that they will, so that’s what we’ll do.” Nonetheless, with the approval of both
counsel, the trial court sent the jurors an order prohibiting them from
discussing the audio.

The
next day, defense counsel requested a mistrial, asserting that the entire jury
was tainted by Juror No. 2’s observations in open court. Defense counsel argued the juror’s impression
in listening to the audio (that the officers were not sure of the flight route)
was inconsistent with defense counsel’s closing argument (that the officers
searched for discarded objects along the route but found nothing), and thus the
juror’s statement undermined defense counsel’s credibility with the remaining
jurors.

The
trial court denied the request for mistrial, stating “the jurors were admonished,
they indicated to the Court that they would follow my admonishment. [¶] I
mean, there may be a possibility somebody may not. There may be -- we are speculating regarding
how the other jurors took Juror No. 2’s comments, whether or not they even understood
them, we don’t know. And I’m not going
to declare a mistrial based on speculation at this time.”

Prior
to sentencing, defendant made a motion for new trial, asserting that the
prosecutor committed misconduct during closing argument and that the jury heard
the audio portion of the police video during deliberations. Regarding the closing arguments, the trial
court said the jury was instructed repeatedly that the defense had no burden of
proof, and there was no showing that the verdicts would have been different but
for the prosecutor’s comments. As for
the jury deliberations, the trial court said it did not believe the inadvertent
and brief playing of the audio impacted the jury’s decision or warranted a new
trial. The trial court denied the motion
for new trial.

B

“ ‘ “ ‘The
determination of a motion for a new trial rests so completely within the
court’s discretion that its action will not be disturbed unless a manifest and
unmistakable abuse of discretion clearly appears.’ ” [Citations.]
“ ‘[I]n determining whether there has been a proper exercise of
discretion on such motion, each case must be judged from its own factual
background.’ ”
[Citation.]’ ” (>People v. Howard (2010) 51 Cal.4th
15, 42‑43, quoting People v.
Delgado (1993) 5 Cal.4th 312, 328; see People v. >Dyer (1988) 45 Cal.3d 26, 52.)

Closing
Argument

Defendant
claims the trial court should have granted his motion for a new trial because
the jury was tainted when the prosecutor shifted the burden of proof to the
defense. When a claim “ ‘focuses
upon comments made by the prosecutor before the jury, the question is whether
there is a reasonable likelihood that the jury construed or applied any of the
complained-of remarks in an objectionable fashion.’ [Citation.]”
(People v. Prieto (2003) 30 Cal.4th 226, 260.)

The
record indicates that the prosecutor did not shift the burden of proof to the
defense, but instead commented on the defense’s failure to call logical
witnesses. (E.g., People v. Ford (1988) 45 Cal.3d 431, 436, 445; >People v. Ratliff (1986) 41 Cal.3d
675, 691.) In any event, there is no
reasonable likelihood that the jury construed any of the prosecutor’s remarks
as lowering his burden of proof or shifting the burden to the defense. (People v. Prieto, supra, 30 Cal.4th
at p. 260.) The prosecutor’s
subsequent remarks, and the trial court’s repeated oral and written
instructions, made absolutely clear that the People had the burden to prove
defendant’s guilt beyond a reasonable doubt.
Nothing in the record suggests the jury interpreted the prosecutor’s
remarks as somehow shifting the burden of
proof to defendant. The jury is
presumed to have followed the trial court’s instructions, which were sufficient
to dispel any prejudice. (People v.
Boyette (2002) 29 Cal.4th 381, 436; People v. Cunningham (2001)
25 Cal.4th 926, 1014.)

Jury
Deliberations

Where
jurors receive information from extraneous sources, the entire record must be
reviewed and a verdict will be set aside only “ ‘if there appears a
substantial likelihood of juror bias.’ ”
(People v. Danks (2004)
32 Cal.4th 269, 303.) Bias can
appear in two different ways.

“ ‘First,
we will find bias if the extraneous material, judged objectively, is inherently
and substantially likely to have influenced the juror.’ ” (Ibid.) “ ‘Under this standard, a finding of
“inherently” likely bias is required when, but only when, the extraneous
information was so prejudicial in context that its erroneous introduction in
the trial itself would have warranted reversal of the judgment.’ ” (Ibid.) Here, the record indicates that the audio
from the patrol car camera recorded defendant’s name, birth date, and an
advisement of defendant’s rights. The
audio may also have included information that the arresting officers did not
know the path of flight. Such evidence
was not so prejudicial that it would have warranted reversal of the judgment if
it had been introduced at trial.

Second,
even if the extraneous information was not so prejudicial as to cause inherent
bias, we nonetheless consider the totality of the circumstances to determine
objectively whether there is a substantial likelihood of actual bias. (People
v. Danks, supra, 32 Cal.4th at p. 303.) Actual bias arises when a juror becomes
“unable to put aside her impressions or opinions based upon the extrajudicial
information she received and to render a verdict based solely upon the evidence
received at trial.” (>People v. Nesler (1997) 16 Cal.4th
561, 583.)

After
reviewing the totality of the circumstances, the trial court found there was no
basis to conclude that the jury was impacted by the audio recording. And there is no evidence that any juror was
unable to put aside his or her impressions or opinions based upon the
audio. (People v. Nesler, supra, 16 Cal.4th at p. 583.) The record fails to show any prejudicial
juror misconduct or any likelihood of juror bias.

Defendant’s
motion for a new trial was properly denied.

II

Defendant
also contends the trial court abused its discretion in refusing to dismiss his
prior strike allegation. (>People v. Superior Court (Romero) (1996)
13 Cal.4th 497 (Romero).) Defendant’s Romero motion asked the trial court to exercise its discretion
under section 1385 to dismiss the prior strike allegation for purposes of
sentencing. (Citing People v. Williams (1998) 17 Cal.4th 148, 161.)

“ ‘[I]n
ruling whether to strike or vacate a prior serious and/or violent felony
conviction allegation or finding under the Three Strikes law, on its own
motion, “in furtherance of justice” pursuant to Penal Code section 1385(a), or
in reviewing such a ruling, the court in question must consider whether, in
light of the nature and circumstances of his present felonies and prior serious
and/or violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside the scheme's
spirit, in whole or in part, and hence should be treated as though he had not
previously been convicted of one or more serious and/or violent felonies.’ [Citation.]”
(People v. Carmony (2004)
33 Cal.4th 367, 377.) A trial
court’s failure to dismiss or strike a prior serious and/or violent felony
conviction allegation under section 1385 is reviewed for abuse of discretion. (Id.
at p. 376.) “[A]
trial court does not abuse its discretion unless its decision is so href="http://www.mcmillanlaw.com/">irrational or arbitrary that no
reasonable person could agree with it.”
(Id. at p. 377.) Where the record demonstrates that the trial court
balanced the relevant facts and reached an impartial decision in conformity
with the spirit of the law, the appellate court will affirm the trial court’s
ruling, even if it might have ruled differently in the first instance. (Id.
at p. 378.)

Here,
the trial court recognized that in exercising its discretion it had to “look at
the defendant’s whole record, not only this case, but his background and record
to see whether or not the interest of justice would justify granting such a
motion.” The trial court did so and
concluded that defendant “has a rather extensive history going back to his time
as a juvenile. And . . . he’s
already done three stints in state prison, and apparently then has continued to
re-offend as we had in this case.
[¶] Therefore, I don’t think that
he is the kind of person that would merit the Court granting such a
motion. So at this time the Court is
exercising its discretion not to strike the strike. So the motion’s denied.”

In
support of his claim that the trial court abused its discretion, defendant
echoes his written argument to the trial court:
that he “is youthful, just thirty years old when this crime was
committed. Earlier in life, [he] made
some unfortunate decisions, based mostly on his drug use, which resulted in
criminal convictions.” He claims he “had
no new contact with law enforcement from 2004 until this case,” even though, as
he concedes, he “violated his parole in 2006, 2007, 2009 and 2010.” Defendant also relies
on the fact that, in the current offense, there was no allegation that he
“used, pointed, or threatened to use the firearm.”

However,
given his criminal history, defendant
fails to show that the trial court’s ruling was “so irrational
or arbitrary that no reasonable person could agree with it.” (People
v. Carmony, supra, 33 Cal.4th at p. 377.) The trial court did not abuse its discretion
in refusing to dismiss the prior strike allegation.

Defendant
mischaracterizes his Romero motion as
a motion to “dismiss priors,” including his three prior prison terms. He also argues that one of the prior prison
terms was based on the prior serious felony conviction, thus “resulting in
double punishment for the same conviction.”
In addition, he argues defendant’s “sentence in this case is cruel,
unusual and excessive punishment in violation of the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">United
States Constitution.”

Defendant
has forfeited each of these contentions because he failed to assert them in the
trial court (People v. Norman (2003)
109 Cal.App.4th 221, 229) and because each contention is asserted
perfunctorily without argument or supporting authority. (People
v. Gionis (1995) 9 Cal.4th 1196, 1214, fn. 11; People v. >Hardy (1992) 2 Cal.4th 86, 150; >People v. Wharton (1991)
53 Cal.3d 522, 563.)

DISPOSITION

The
judgment is affirmed. The trial court is
directed to correct the abstract of judgment at item 3, replacing “PC 677.5(b)”
with “PC 667.5(b).” The trial court
shall send a certified copy of the corrected abstract of judgment to the
California Department of Corrections and
Rehabilitation.









MAURO , J.





We concur:





ROBIE , Acting P. J.





HOCH ,
J.