P. v. Perez

Filed 3/12/08 P. v. Perez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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Defendant Jose Carlos Perez was convicted, after a jury trial, of murder of the first degree (Pen. Code,  187, subd. (a), 189).^[1] The jury also found true enhancement allegations that (1) he personally used a firearm in committing the murder ( 12022.53, subds. (b), (c) & (d)); and (2) he was released on bail at the time of the murder ( 12022.1). Sentenced to state prison for life without possibility of parole and a consecutive term of 25 years to life, he appeals, contending that the trial court erred in denying his motion for a new trial on the ground of misconduct of a juror in concealing bias during jury selection. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In view of the contention on appeal, only a brief statement of the facts of the offense is warranted. The evidence, stated in the light most favorable to the judgment, is as follows.

On the afternoon of November 12, 2002, defendant and two companions drove, in his Chevy Tahoe, from his residence at the Inns of America motel on Howe Avenue in Sacramento to Dennys to purchase take-out food. When they returned to the motel they drove by Alfred Ochoa who was standing next to a Honda Accord with Gustavo Barerra, age 14. Defendant and one of his passengers were Norteno gang members. Defendant believed that Ochoa might be a member of the Surenos, a rival gang.

As they drove by, defendant and his companions pointed at and stared hard at Ochoa and Barrera and displayed a pistol and removed their shirts, a street gang subculture challenge signal.

Hilda Barrera, Gustavos mother, Azucena Barrera, his 22-year-old sister, and Carlos Cruz, her boyfriend, who worked at the motel, came out of the motel office and got into the Honda. Cruz drove, Azucena Barrera was in the front passenger seat, Hilda Barrera sat behind Cruz, next to her was her son, and Ochoa sat on the right.

When they drove out of the parking lot, defendant and his companions followed them in the Tahoe, with the high-beam lights on. When the Honda stopped at a light and later at a gas station, defendant stopped some distance behind them. When the Honda drove onto Highway 50, defendant followed. He pulled up on the right side, at high speed, and then fired three shots through the tinted rear-passenger window from his .45-caliber, semiautomatic Glock pistol. Laughing, defendant wrapped the pistol in a T-shirt and then fled.

One of the bullets had struck Gustavo Barrera in the forehead, killing him.

The motion for a new trial

The jury retired for deliberations around noon on October 7, 2005. About 3:00 p.m. on the fourth day of deliberations, the jury indicated it had reached verdicts. The jurors were returned to the courtroom and the foreperson affirmed that verdicts had been reached. After the verdicts were read, the defense asked that the jurors be polled as to the guilty verdict of first degree murder. Each juror confirmed the verdict. The jury was discharged.

Thereafter, two jurors indicated dissatisfaction with the conduct of other jurors during deliberations. The trial court notified all the jurors that the defense had petitioned for access to juror identity information and that the jurors should indicate their willingness to discuss the case with defense counsel. After a hearing on the matter, the trial court ordered that a meeting be arranged between defense counsel and three jurors who indicated a willingness to talk.

On February 3, 2006, defendant filed a motion for new trial, supported by written declarations of the two dissatisfied jurors, Juror Nos. 3 and 7. In pertinent part, the motion was made on the ground that one of the other jurors, Juror No. 4, had committed misconduct by concealing bias during voir dire.

The two juror declarations aver that the jury deliberations degenerated into heated exchanges with shouting. Further, that insulting epithets, e.g., idiots, stupid, uneducated and illiterate, were directed at two jurors, Juror No. 3 and another, who were unwilling, at the time, to vote in favor of a verdict of guilty of murder of the first degree.

Juror No. 7 averred that Juror No. 4 was one speaker who used the insulting epithets and that in the course of berating the two reluctant jurors, he also made the comment . . . that he had either lived in an area where there were gangs and/or had experience with gang members and knew that they were all bad and guilty. Juror No. 3 averred that Juror No. 4 insulted and berated her and made the statement that he had grown up in a neighborhood filled with all the low-life punks. He was referring to both gang members and [defendant] as punks and pieces of shit [hereafter despicable]. She asked him why he did not ask the judge to be dismissed. He responded: Why should I? and stated that he didnt have to tell the judge about his dealings with those people.

The trial court denied the motion for new trial.

DISCUSSION

Defendant contends that the trial court erred in denying the motion for a new trial. He argues the motion should have been granted on the ground that the remarks of Juror No. 4 show he committed prejudicial misconduct by concealing the fact that he had grown up in a neighborhood where there were many gang members, and that, based on his experiences, he felt that all persons who were members of gangs, including [defendant], were low-life punks and [despicable] who were always bad and guilty.^[2] The argument is unpersuasive and the contention of error has no merit.

[D]uring jury selection the parties have the right to challenge and excuse candidates who clearly or potentially cannot be fair. Voir dire is the crucial means for discovery of actual or potential juror bias. Voir dire cannot serve this purpose if prospective jurors do not answer questions truthfully. A juror who conceals relevant facts or gives false answers during the voir dire examination thus undermines the jury selection process and commits misconduct. [Citations.] ([In re Hitchings (1993)] 6 Cal.4th 97, 111; see McDonough[Power Equipment, Inc. v. Greenwood (1984)] 464 U.S. 548, 554, [78 L.Ed.2d 663, 670].) (In re Hamilton (1999) 20 Cal.4th 273, 295.) The standard for misconduct by concealment because the prospective juror does not volunteer information is: failure to speak when the questions on voir dire clearly and fairly ask that the juror reveal the information in issue. (See Hitchings, supra, 6 Cal.4th at p. 116.) We will examine defendants claims in that light.

Defendant points to several passages in the voir dire discourse, to show concealment of the aforementioned facts during voir dire examination. In the first and central passage, during oral voir dire of the jury, the court inquired as follows:

I mentioned there may be evidence or testimony about gang activity.

Lets assume‑‑now, I dont know‑‑you know, I talk to the lawyers about the cases before I try the cases, but I dont know what the evidence is in this case. But my impression is that you may hear testimony that there may be gang overtones in this case.

Would that in and of itself be a problem for anybody?

Where Im going with this is, would that make you biased in any fashion right off the top against [defendant] or against other witnesses in this case if they have gang involvement or implications?

And theres no hands up on that. The jurors are indicating no.

The reason Im plumbing this a little bit with you, exploring this a little bit with you, is that sometimes people‑‑Ive seen this before with other juries. Sometimes people, just because of some personal view or experience have a very negative feeling about gangs. Which is okay to have, but that feeling can spill over and affect how they relate to witnesses or defendants or victims or what have you in different cases.

And, again, I dont know what is going to happen in this case in terms of the evidence. But if anybody thinks that anything having anything to do with gang activity could in any way affect their ability to be totally fair and impartial and objective, I want you to raise your hand.

No hands are up.

Initially, we observe there is nothing in this passage which clearly and fairly asks that jurors speak up to reveal that they lived or grew up in an area where there were gangs. Nor, it suffices to say, is there anything in the remainder of the voir dire passages to which defendant points, which meets the standard as to this matter of historical fact.

That leaves the question whether this passage clearly and fairly asks that jurors announce a matter of fact concerning attitude, i.e., if they would agree that gang members were bad and guilty or that they should be characterized as punks or despicable. The answer, again, is no.

The trial court expressly indicated it was not asking if the prospective jurors had a very negative feeling about gangs. Which is okay to have. It was only asking if, in their opinion, their very negative feeling would affect their ability to be fair, impartial, and objective in judging this case.

Along the same lines, the court told the jurors:

And if you have some preexisting concerns about gangs or bias about people who may be involved in gangs, it doesnt mean you cant be a fair and impartial juror. . . . It just means you cant let that affect your thinking. You have to come here and listen to the evidence and see what it comes up to.

The gangs to which the trial court was referring are criminal street gangs. The members of such gangs are the people who perpetrate and support the commission of the crimes that warrant that appellation. (See  186.22.) Most prospective jurors not affiliated with criminal street gang subculture would agree that members of such gangs are, generally speaking, bad and guilty and that they may be characterized as punks^[3]or despicable.

The fact that a prospective juror has this attitude does not mean he is untruthful in concluding he is nonetheless able to be fair, impartial, and objective in judging a case involving gang members.^[4] Accordingly, there was no error in the conclusion of the trial court that Juror No. 4s failure to volunteer his negative feelings about members of street gangs in response to this passage was not misconduct.

In the next passage upon which defendant relies, in a question directed to all prospective jurors, defense trial counsel inquired:

[DEFENSE COUNSEL]: You know that my client is from‑‑his surname is Perez and hes Hispanic. You probably read a lot in the newspapers about Asian gangs. That is the big thing now. But you also hear about Hispanic gangs.

Does anyone have any problem about the fact that maybe we might get into something about the issue of Hispanic gangs? Does that bother you?

[PROSPECTIVE JURORS]: No.

[DEFENSE COUNSEL]: Could you be fair and impartial to [defendant] because there might be a suggestion that he might be a part of a Hispanic gang? Can you set that aside and be fair and impartial to him?

[PROSPECTIVE JURORS]: Yes.

For the reasons already given, we discern nothing in this which enhances the claim of misconduct of Juror No. 4. There is no indication that he harbored any additional or special views concerning Hispanic gangs.

In the third passage to which defendant points, in questioning another prospective juror whose questionnaire disclosed that a close relative had been a victim of gang violence, the court inquired as follows:

[THE COURT]: This is a case in which I told you all yesterday in which there may be--and I think probably will be‑‑testimony about gang implications. And also, [defendant] is Hispanic. And it sounded like from your description of the events involving your sister that there were gang implications and Hispanic males were involved; am I right?

[PROSPECTIVE JUROR]: Thats correct.

[THE COURT]: Would that make this kind of a case, with what you know about this case presently, its not in any of the evidence, but you do know something about the charges and you see [defendant] and you know the names of the witnesses and the category of witnesses who will testify. Would that make this kind of a case one that perhaps it wouldnt be wise for you to be a juror on?

[PROSPECTIVE JUROR]: I believe I could be unbiased. I thought about that and I would like‑‑I would be fair.

Again, for the reasons already given, this passage does not advance the claim of misconduct of Juror No. 4. There is nothing that indicates he or a close family member was a victim of a gang crime.^[5] Moreover, this colloquy reinforces the view that all the court is looking for is disclosure that a prospective juror feels he or she cannot be fair.

In the next passage to which defendant points, the court further inquired:

Another thing about [defendant]. [Defendant], it appears to the court, is of Latino or Hispanic descent. And many of the members of our jury panel are not Latino, not Hispanic. All different races are represented in our panel. But many of you are not Latino or Hispanic. And this is the thing‑‑and I want you to feel comfortable in answering this question. If anybody thinks that that might affect their ability to be fair and impartial to [defendant], if you have maybe some bias of any kind against somebody of his heritage, then I need you to let me know. You need to raise your hand.

Im not trying to embarrass you. I just want to be sure we have a jury comprising fair and impartial people who wont be biased to either side in the case.

Does anybody think, even remotely think, that might present a problem?

And the jurors indicate this will not be a problem.

There is nothing in this colloquy pertinent to defendants claims of misconduct. As noted, there is no indication that Juror No. 4 harbored any additional or special views concerning persons of Latino or Hispanic descent.

Finally, in individual questioning of Juror No. 4, the court asked: Would you be the kind of juror we talked about were looking for? Juror No. 4 answered, Yes, sir. The court asked whether he had [a]ny reservations about serving, and Juror No. 4 responded, No, sir.

There is nothing in this which aids the claim of misconduct. The kind of juror were looking for is one who believes he or she, notwithstanding a very negative feeling about gangs, can judge the case fairly on the evidence. There is no compelling showing that Juror No. 4 was untruthful in answering these questions.

In sum, nothing in the voir dire clearly and fairly asked Juror No. 4 to reveal an attitude that gang members were bad and guilty or that they should be characterized as punks or despicable. Defendant did not show in the motion for new trial proceedings that Juror No. 4 concealed relevant facts or gave false answers during the voir dire examination. As there was no misconduct by Juror No. 4, the trial court did not err in denying the motion for new trial.

DISPOSITION

The judgment is affirmed.

BUTZ , J.

We concur:

MORRISON , Acting P.J.

ROBIE , J.

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^[1] Undesignated statutory references are to the Penal Code.

^[2] Notwithstanding variation in the averments of Juror Nos. 3 and 7, we accept for purposes of this discussion that Juror No. 4 remarked both that gang members were bad and guilty and that he referred to gang members as punks and pieces of shit. We will also assume, since he was not called upon to respond to these assertions that they accurately portray his attitude toward gang members at the time of voir dire.

^[3] A punk [is a] petty gangster, hoodlum, or ruffian. (Merriam-Websters Collegiate Dict. (11th ed. 2006) p. 1009, 2d col.)

^[4] As the trial court noted in explaining the denial of the motion for a new trial, at the time Juror No. 4 was quoted as applying such terms to defendant, he had heard all of the evidence in the case that gangs are bad. He had also heard the evidence warranting a belief that defendant followed and murdered a defenseless boy over, at worst, a trivial insult. That conduct would justify applying the epithets used to defendant, albeit preferably without vulgarity.

^[5] Thus, contrary to defendants claim, this is not a case similar to People v. Diaz (1984) 152 Cal.App.3d 926. In Diaz, the defendant was charged with stabbing the victim with a knife. The court asked during voir dire: Have any of you [prospective jurors] or has anyone close to you ever been a complaining witness or a victim in a case of this kind? (Id. at p. 930.) The prospective juror in question was silent. Later she told the bailiff she had been the victim of an attempted rape during which the assailant held a knife on her, gashing her chin. (Id. at pp. 930-931.) This was held to be concealment and juror misconduct.

As related, in this case there is no indication that Juror No. 4 was connected to a similar crime, or failed to reveal such a connection, after a specific question calling for that information.