P. v. Zacky








Filed 9/23/11 P. v. Zacky CA2/1





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, Plaintiff and Respondent, v. DAMIEN JERMELL GATEWOOD, Defendant and Appellant.

B225364 (Los Angeles County Super. Ct. No. MA043842)

APPEAL from a judgment of the Superior Court of Los Angeles County. Hayden Zacky, Judge. Reversed.
Marks & Brooklier and Anthony P. Brooklier for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Dana M. Ali, Deputy Attorney General, for Plaintiff and Respondent.
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Defendant Damien Jermell Gatewood appeals from the judgment entered following a jury trial in which he was convicted of two counts of assault with a semiautomatic firearm, with gang and personal gun-use findings. Defendant contends that a juror engaged in misconduct by concealing information during voir dire, the trial court erred in addressing such misconduct, and insufficient evidence supports the gang enhancement findings. We agree with respect to juror misconduct and an inadequate response by the trial court and thus reverse.
BACKGROUND
Late on the night of October 7, 2008, defendant drove to Beech Avenue in Lancaster to pick up his girlfriend, Shania Williams. Williams had gone to Geneva Brittany Bryant’s apartment to have her hair braided. Darnelle Wells and “KK” arrived while Williams was in the apartment. KK flirted with Williams, tried to kiss her, bragged about being a Hoover gang member, and made her uncomfortable. She called defendant to pick her up, but he took a long time to arrive. Shana Wells, who lived in the same apartment building as Bryant, testified that her brother Darnelle and KK were Hoover gang members. Williams testified that defendant told her he was a former member of the East Coast Crips gang.
Darnelle and KK followed Williams when she left Bryant’s apartment. Williams got into the driver’s seat and defendant sat on the passenger side. She testified she did not tell him about KK’s behavior. As Darnelle and KK walked toward Shana Wells’s apartment, they argued with defendant, but Williams claimed she did not hear or remember what was said. Williams testified that as she drove away, she heard four gunshots from somewhere nearby, but she denied hearing a gun fired from within defendant’s car, seeing defendant with a gun, or hearing him yell, “East Coast Crips.”
Sheriff’s deputies recovered six .40-caliber casings spread out over about 90 feet in the middle of Beech Avenue. A bullet had penetrated the hood of Shana Wells’s car, which was parked at the curb on Beech Avenue. Another bullet had entered a ground-level apartment.
Interviews of Shana Wells and Bryant led detectives to Williams, who told them that just before the shooting, KK referred to defendant and “East Coast,” said, “He don’t look like shit to me,” and began laughing as he walked away. Williams told detectives that defendant fired a black semi-automatic gun and yelled, “‘East Coast Crips, mother fucker,’” as he fired.
A surveillance video from the building across the street depicted the shooting and was played at trial. At the home of defendant’s mother, detectives recovered a white Nissan matching that shown in the video. The car belonged to defendant’s grandfather.
Detective Dean Camarillo testified as the prosecution’s gang expert. He opined, based on tattoos and prior admissions of membership, that defendant was a member of the East Coast Crips gang. The parties stipulated that the East Coast Crips gang was a criminal street gang within the scope of Penal Code section 186.22. (Undesignated statutory references are to the Penal Code.) Camarillo testified that respect was “everything” to a gang member, and laughing at a gang member or making a derogatory or unwelcome statement to a gang member or a person close to a gang member could be deemed to be disrespectful. In response to a hypothetical question, Camarillo opined that the charged offenses were committed for the benefit of a criminal street gang. Even if the gang member had a personal motivation, the shooting would also benefit the gang by restoring respect. Camarillo was not asked about, and did not address, the specific intent element.
The jury convicted defendant of two counts of assault with a semiautomatic firearm against Darnelle Wells and KK, and found that defendant personally used a gun in the commission of each offense (§ 12022.5, subd. (a)(1)) and that each offense was committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members. The jury could not reach verdicts on two counts of attempted murder pertaining to the same victims. The court denied defendant’s motions for a new trial and to unseal jurors’ identifying information, and sentenced him to 23 years in prison. The court dismissed the attempted murder counts.
DISCUSSION
1. Juror misconduct
Defendant contends that Juror No. 5, the foreperson, engaged in misconduct by concealing information during voir dire, the trial court failed to conduct an adequate inquiry into Juror No. 5’s voir dire omissions and his statements during deliberations, the trial court erred by denying defendant’s motion for a new trial based upon juror misconduct and an inadequate inquiry into the misconduct, and the trial court erroneously denied his motion to unseal jurors’ information to permit him to “fill the gaps left by the Court’s inquiry into” misconduct by Juror No. 5.
At the outset of jury selection, the trial court gave prospective jurors a questionnaire to facilitate voir dire. The court instructed jurors not to write on the questionnaire itself, but on a “yellow sticky on the corner” of the sheet, then to provide the answers to the court when questioned. Among the questions seeking background information on page 2 of the questionnaire, question 2b asked for educational experience and question 2c asked about military experience. The court told the prospective jurors, “On the second page of it, it’s called background questions, and everybody has to answer those.” Regarding questions numbered 1 through 22 starting on page 3 of the questionnaire, the court told the prospective jurors, “All of these questions are phrased so they can be answered yes or no. I only want you to give answers to me that you have said yes to. [¶] And then we are going to follow up on your yes answers.”Among the numbered questions on page 4 of the questionnaire were the following: “11. Law Enforcement. [¶] Do you know anyone who works in any capacity for a police agency, or the criminal justice system‌ And if so, will anything about that relationship affect your ability to be a fair and impartial juror‌ (For example, FBI, CHP, LAPD, LASD, Prison, Bailiffs, Judges, Attorneys, etc.)” (Bold in original.)
When the court questioned Juror No. 5, he stated, apparently in response to the background questions, “Lancaster. I am a manager. Married. My wife does reservations. I have three children, all minors. An no, I have not served on jury.” On the court’s inquiry, Juror No. 5 elaborated that he was “a retail operations manager for a sales and marketing firm.” The court asked, “Any ‘yes’ answers to any of the questions‌” Juror No. 5 replied, “Yes. Question 12, I was a witness for a criminal trial.” Upon further questioning, Juror No. 5 explained that the trial was in around 1995 and pertained to a “theft from a grocery store” that employed him. The court asked for other “yes” answers, and Juror No. 5 responded, “Question 13, I had a vehicle stolen from me where I was a victim.” Asked again for other “yes” answers, Juror No. 5 responded, “Question 14, I was arrested for DUI back in 1986. The charges were dismissed.”
Juror No. 5 said nothing about military service, being a military police officer, or attending a police academy. Counsel did not further question or challenge Juror No. 5, and he was empaneled.
On the second day of deliberations, a Friday, Juror No. 6 sent the court a note that apparently asked, “‘If one of the jury went to the police academy, should you be aware of that‌’” (None of the several requests and notes sent by the deliberating jury are in the clerk’s transcript.) The court questioned Juror No. 6, who stated that he or she raised the matter because “[i]n my own conscience, because this is a very serious matter, and—this case, during our deliberations, when you hear another juror’s opinion on things and it’s based on—” The court interrupted Juror No. 6, but he or she continued, “This person’s life experience and what they have been trained to do or what they—you know what I am saying‌ And that comes into play on certain decisions that people make.” Juror No. 6 continued, “And when I hear that—and yet we all sat here, including myself, and were asked questions by both attorneys, very briefly, and we filled out a form. One of the questions was, have you ever been a—are you a police officer‌” The court agreed that that was question 11. Juror No. 6 noted, “But one of the questions didn’t say, ‘Have you ever been a police officer‌’” Juror No. 6 continued, “What bothers me about—and I can’t get into any of the discussion, deliberations, but there might be some prejudice, in my opinion, with this one juror.”
The court asked Juror No. 6 if the other juror discussed attending the police academy “in the presence of all of the other jurors.” Juror No. 6 replied, “No, yes. It—more than myself heard it.” Juror No. 6 added, “I think it influences our deliberations.” Upon the court’s inquiry, Juror No. 6 stated he or she could set aside the other juror’s remarks and “judge this case solely on the facts presented in this courtroom.”
The court then brought Juror No. 5 into the courtroom and asked him, “[H]as anybody talked about their own past experiences and brought them into the courtroom maybe and has had an influence on deliberations‌” Juror No. 5 replied, “No. Just me personally, I did reference my personal experience and why I felt it was intent because of things I have—and my beliefs.” The court asked, “[F]or example, you know, has any juror discussed the fact that they may have attended a police academy‌” Juror No. 5 said, “Yes, I did.” The court noted it did not recall Juror No. 5 disclosing that during voir dire and asked if he concealed it, forgot to mention it, or felt it was not asked. Juror No. 5 responded, “No, I did not feel I concealed it. My interpretation of the question was am I currently a police officer under certain standings. [¶] I do have a law enforcement background where I previously attended police academies and have been a military policeman, but I did not feel that would judge [sic] my ability to rule in this case.” Juror No. 5 explained that he had attended Rio Hondo Police Academy and applied for “several positions in the Southern California area,” but had not been hired. Thus, he had never worked as a “civilian police officer,” but he had been a military police officer for three years from 1986 to 1989.
The court asserted, “Basically, though, it’s not like you were trying to hide anything. You just didn’t feel the questions were asked about that.” Juror No. 5 agreed. The court continued, “But I believe the question asks, also, if you know any police officers or are associated with them. And you did answer those questions. I mean, if you did, you answered those.” Juror No. 5 responded, “Yeah, I believe I did, yeah.” The court then asked, “The fact that you attended a police academy but never worked as a civilian police officer, the fact that you were a military police officer, would you tend to favor the testimony of a police officer over that of a civilian‌” Juror No. 5 replied, “No. Not over, no.” In response to further questioning, Juror No. 5 stated he would “consider the testimony of a police officer the same” as that of any other witness, “give it the credibility” that he thought it deserved, would not tend to favor one side or the other, and would “judge this case solely based on the facts presented and the evidence presented in this courtroom, without any bias for one side or the other.”
After an unreported bench conference with counsel, the court asked Juror No. 5, “Did you at all, during deliberations, did you discuss anything such as, you know, investigative techniques you learned in the police academy or anything like that‌” Juror No. 5 said he had not. The court responded, “Very good. [¶] Well, that’s something that I am going to order you not to discuss, obviously. Okay‌ As I said before, common sense is something you may use during deliberations. Your experiences, you may use. But I don’t want you to go in there with any special skills that you may have learned.” The court continued, “And I don’t want you to discuss that with the other jurors, you know, saying, hey, you know, when I was in the police academy, we learned about this, this and this. [¶] And that’s something that you have not done. Am I correct‌” Juror No. 5 replied, “No, I have not.”
Juror No. 5 then informed the court that Juror No. 7 had voiced a belief that defendant’s brother was using his mobile phone to make a video of the jurors in the hallway. The court questioned Juror No. 7 about this belief, but did not ask Juror No. 7 or any other juror about Juror No. 5’s statements regarding his police academy training or police experience.
Outside the presence of all jurors, the court stated, “I don’t find that [Juror No. 5] intentionally concealed the fact that he had attended the police academy or was a military police officer. I don’t find that he was being deceptive in any way. [¶] I think that he may have misinterpreted the questionnaire regarding law enforcement connections. He thought it would pertain to current connections rather than past connections. Of course, he should have erred on the side of disclosure and told us. But the bottom line is, he didn’t. [¶] He said he could set that aside and judge this case solely on the facts and that he wouldn’t give any extra credibility to a police officer. And that he could judge this case solely on the evidence presented.” The court refused to discharge Juror No. 5, over defendant’s objection.
Later the same day, defendant moved for a mistrial, based in part on Juror No. 5’s nondisclosure of his police academy training and his use of that training in discussing intent. The trial court denied the motion.
Through several communications over the course of the day, the jury informed the court that it was divided 11 to 1 after 20 ballots on the attempted murder counts, had reached verdicts on the aggravated assault charges, was initially having difficulty on the issue of intent with respect to the gang enhancement allegations, later reached verdicts on the gang enhancement allegations, but wanted to resume deliberations on Monday due to a shift in their discussion of the attempted murder charges.
On Monday, defendant again moved for a mistrial on the ground of misconduct by Juror No. 5, namely concealment of his police academy training and his introduction of extraneous information into jury deliberations. The trial court denied the motion.
A little later, the jury informed the court that it had reached verdicts on the aggravated assault charges, but was still deadlocked on the attempted murder charges. After the court took the partial verdicts and declared a mistrial regarding the attempted murder charges, Juror No. 5 revealed that the jury was split 11 to 1 favoring not guilty.
Defendant filed a motion for new trial on the ground of juror misconduct, based in part upon Juror No. 5’s concealment or nondisclosure of his attendance at a police academy and his prior occupation as a military police officer in response to questions asking his educational background and military experience, and his discussion of his police training during deliberations. The motion was also premised on the trial court’s failure to conduct an adequate inquiry, citing the court’s failure to ask why Juror No. 5 did not answer the question asking about military service and its failure to ask other jurors “how much outside information” Juror No. 5 had brought into deliberations. The trial court denied the new trial motion, reiterating its finding that the nondisclosure was inadvertent. It found no evidence of misconduct and no prejudice to defendant because the prosecutor had stated he would not retry the attempted murder counts.
Defendant filed a motion to unseal the jurors’ personal identifying information so that the defense could interview them regarding Juror No. 5’s introduction into deliberations of his police academy and military police officer experience. The trial court denied the motion.
A sitting juror can be removed for good cause, such as misconduct. One variety of misconduct is concealment, misrepresentation, or nondisclosure on voir dire of material information tending to show bias. A criminal defendant has a constitutional right to a trial by impartial jurors. (People v. Wilson (2008) 44 Cal.4th 758, 822 (Wilson).) Voir dire plays a critical role in protecting this right by enabling the court and counsel to discover prospective jurors’ actual or potential biases. (In re Hitchings (1993) 6 Cal.4th 97, 110 (Hitchings); In re Hamilton (1999) 20 Cal.4th 273, 295 (Hamilton).) But “the efficacy of voir dire is dependent on prospective jurors answering truthfully when questioned.” (Hitchings, at p. 110.) “[A] prospective juror’s false answers on voir dire can” both “prevent the parties from intelligently exercising their statutory right to challenge a prospective juror for cause” and “eviscerate a party’s statutory right to exercise a peremptory challenge and remove a prospective juror the party believes cannot be fair and impartial.” (Id. at p. 111.) “A prospective juror’s misstatement or concealment on voir dire of a material fact by itself undermines the selection and empanelment of unbiased jurors, and thus the Sixth Amendment right to an impartial jury, and constitutes misconduct.” (People v. Tate (2010) 49 Cal.4th 635, 672.) In contrast, “‘mere inadvertent or unintentional failures to disclose’” as a result of misunderstanding or forgetfulness do not constitute good cause for removal. (Wilson, supra, 44 Cal.4th at p. 823; People v. Jackson (1985) 168 Cal.App.3d 700, 705.) “‘“[T]he proper test to be applied to unintentional ‘concealment’ is whether the juror is sufficiently biased to constitute good cause for the court to find under Penal Code sections 1089 and [former] 1123 that he is unable to perform his duty.”’” (Wilson, at p. 823.)
Another form of juror misconduct is the introduction of extraneous information of either a legal or factual nature that was not presented as a part of the evidence or instructions at trial. (In re Stankewitz (1985) 40 Cal.3d. 391, 397; People v. Nesler (1997) 16 Cal.4th 561, 578 (Nesler).) Although a juror’s life experiences, including education and professional work, necessarily shapes his or her views of the evidence, a juror may “‘“not discuss an opinion explicitly based on specialized information obtained from outside sources. Such injection of external information in the form of a juror’s own claim to expertise or specialized knowledge of an issue is misconduct.”’” (People v. San Nicolas (2004) 34 Cal.4th 614, 649.)
“‘Grounds for investigation or discharge of a juror may be established by his statements or conduct, including events which occur during jury deliberations and are reported by fellow panelists.’” (People v. Lomax (2010) 49 Cal.4th 530, 588.) When a trial court is on notice that good cause to discharge a juror may exist, it must “‘“‘make whatever inquiry is reasonably necessary’ to determine whether the juror should be discharged.”’” (People v. Martinez (2010) 47 Cal.4th 911, 941.) Failure to conduct an adequate inquiry constitutes error. (People v. Farnam (2002) 28 Cal.4th 107, 141.)
Juror misconduct creates a presumption of prejudice. This presumption can be rebutted by an affirmative evidentiary showing that no prejudice actually occurred or by a reviewing court’s determination that the entire record shows no reasonable probability of actual harm to the complaining party, meaning “no substantial likelihood that one or more jurors were actually biased against the defendant.” (Hamilton, supra, 20 Cal.4th at p. 296; Hitchings, supra, 6 Cal.4th at pp. 118–119.)
Here, Juror No. 6’s note put the trial court on notice that Juror No. 5 had failed to disclose during voir dire that he had attended a police academy, and inquiry of Juror No. 6 alerted the trial court that Juror No. 5 had made statements during deliberations that at least one other juror perceived as being based upon his police academy training and reflecting “some prejudice” stemming from that training. Juror No. 6 also informed the court that other jurors had also heard these statements by Juror No. 5, and Juror No. 6 believed that Juror No. 5’s opinions were influencing the jury’s deliberations. Thus, after speaking to Juror No. 6, the trial court was on notice that Juror No. 5 may have engaged in two forms of potential misconduct: concealing material information about himself on voir dire and introducing his own expertise or similar extraneous, police-oriented information into the deliberations.
After speaking with Juror No. 5, the court was also on notice that Juror No. 5 had (1) served as a military police officer for three years, (2) failed to disclose his military service in response to question 2c on the questionnaire, (3) discussed his police academy training with other jurors at least in relation to “ why [he] felt it was intent,” and (4) felt he had “had an influence on deliberations” by discussing some aspect of his experience.
Notwithstanding such notice of likely misconduct by Juror No. 5, the court limited the scope of its inquiry to the reasons Juror No. 5 had not revealed his police academy training in response to question 11 on the questionnaire and whether Juror No. 5 had discussed “investigative techniques” he learned in the academy or had said to his fellow jurors, “[H]ey, you know, when I was in the police academy, we learned about this, this and this,” “or anything like that.” The court made no inquiry regarding Juror No. 5’s failure to mention his military service, which was highly material because it included three years in which he worked as a military policeman. It also seems highly improbable that Juror No. 5 misunderstood the question regarding military service or forgot that he had been in the military. The court also failed to ask Juror No. 5 about the statements he had made to his fellow jurors based upon his police academy training, apart from whether he discussed “investigative techniques [he] learned in the police academy” “or anything like that.” Juror No. 5 had already revealed that he had brought his background into explaining “why I felt it was intent,” but the court did not ask Juror No. 5 what he said in this regard.
And although Juror No. 6 told the court that other jurors heard Juror No. 5’s statements based upon his police academy training, the trial court did not ask any other juror about Juror No. 5’s statements. Such an inquiry was necessary to determine the nature of Juror No. 5’s statements, whether such statements introduced any extraneous information into the deliberations, and whether the statements were improperly influencing other jurors.
“A juror’s disclosure of extraneous information to other jurors tends to demonstrate that the juror intended the forbidden information to influence the verdict and strengthens the likelihood of bias.” (Nesler, supra, 16 Cal.4th at p. 587.) Juror No. 5’s police academy training and his experience as a military policeman suggested that he had a potential pro-law enforcement bias; his failure to mention either of those matters on voir dire suggested an attempt to conceal a bias; and his citation to and reliance upon his police training during deliberations strengthens the likelihood of bias. In the face of this clear suggestion of likely bias, we conclude that the trial court failed to conduct an adequate inquiry of Juror No. 5 and other jurors to determine whether Juror No. 5 should have been discharged for nondisclosure of information, actual or implied bias, and introducing extraneous information into jury deliberations.
Juror No. 5 committed misconduct by failing to state on voir dire that he had been in the military. Such misconduct gives rise to a presumption of prejudice. Nothing in the record rebuts that presumption of prejudice. Indeed, given that Juror No. 5’s military service included police work, he also failed to disclose his police academy training, and he apparently incorporated his police training and experience in statements he made to his fellow jurors during deliberations with an apparent intent to influence deliberations, the record establishes a substantial likelihood that Juror No. 5 was actually biased against defendant. “A biased adjudicator is one of the few ‘structural defects in the constitution of the trial mechanism, which defy analysis by “harmless-error” standards.’” (In re Carpenter (1995) 9 Cal.4th 634, 654, quoting Arizona v. Fulminante (1991) 499 U.S. 279, 309 [111 S.Ct. 1246].) “Any deficiency that undermines the integrity of a trial—which requires a proceeding at which the defendant, represented by counsel, may present evidence and argument before an impartial judge and jury—introduces the taint of fundamental unfairness and calls for reversal without consideration of actual prejudice.” (People v. Marshall (1990) 50 Cal.3d 907, 951.)
Reversal is thus required, as a result of both the trial court’s inadequate inquiry and a substantial likelihood that Juror No. 5 was biased.
2. Sufficiency of evidence
Defendant contends insufficient evidence supports the gang enhancement findings, in that “it is clear that the motivation for the shooting was that Ms. Williams, [defendant’s] girlfriend, had been sexually harassed while at Ms. Bryant’s apartment.”
To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
Section 186.22, subdivision (b) provides a sentence enhancement for anyone convicted of a felony “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.”
Viewing the record in the light most favorable to the judgment, we conclude that there was substantial evidence that the shootings were committed “for the benefit of . . . any criminal street gang.” The evidence showed that rival gang members KK and Darnelle laughed at defendant and referred to defendant and his gang membership derisively, then defendant shouted out the name of his gang as he began to shoot. In addition, the prosecution’s gang expert testified at length about the importance of respect to gang members and about the benefit conferred on a gang when its member shoots at rival gang members who had shown some form of disrespect to the member. Although much of the same evidence supported an inference that defendant felt personally insulted and had reason to be angry at KK (though nothing showed that defendant knew of KK’s prior conduct toward Williams), the evidence was nonetheless sufficient to support a finding that defendant fired the shots for the benefit of his gang.
There was also substantial evidence that defendant committed the shootings with the requisite specific intent. Although there was no direct evidence of defendant’s intent, defendant provided strong circumstantial evidence of his intent by shouting out the name of his gang as he began shooting. This critical fact distinguishes the present case from People v. Ramon (2009) 175 Cal.App.4th 843, upon which defendant relies. There, a traffic stop revealed that two gang members were riding in a stolen car and had an unregistered handgun under the seat, but they had not invoked the name of their gang while committing a violent crime against rival gang members. (Id. at pp. 846–847.) Here, by broadcasting to all within hearing range the name of his gang as he began to shoot, defendant demonstrated that he was committing the crime as a gang member, and thus intended to promote, further, or assist criminal conduct by a gang member (himself). Defendant might have simultaneously held other intents as well, such as avenging offensive conduct toward Williams, but this would not negate the sufficiency of the evidence to show the specific intent to promote, further, or assist criminal conduct by a gang member. Accordingly, we reject defendant’s sufficiency of evidence claim.
DISPOSITION
The judgment is reversed.
NOT TO BE PUBLISHED.

MALLANO, P. J.
We concur:

ROTHSCHILD, J.

JOHNSON, J.

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