P. v. Moss
Filed 12/9/11 P. v. Moss CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| THE PEOPLE, Plaintiff and Respondent, v. DOMINIQUE K. MOSS et al., Defendants and Appellants. | D056500 (Super. Ct. No. SCD203169) |
APPEALS from judgments of the Superior Court of San Diego County, John M. Thompson, Judge. Judgments affirmed in part, reversed in part and remanded for resentencing.
Defendants Sirron Norris and Dominique Moss were jointly tried for numerous crimes before a single jury. The jury convicted both of two counts of first degree murder (Pen. Code,[1] § 187, subd. (a), counts 1 & 5), and found true the special allegations appended to counts 1 and 5.[2] The jury also convicted both of four counts of attempted murder (§ 664/187, subd. (a), counts 2, 6, 7 & 8) and found true the special allegations appended to those counts.[3] The jury also convicted both defendants of one count of shooting at an inhabited dwelling (count 9) and found true the section 186.22, subdivision (b)(1), allegation and the indeterminate firearm use enhancement allegation appended to count 9. The jury also convicted both of one count of conspiracy to intimidate a witness. (§ 182, subd. (a)(1)/136.1, subd. (b), count 11.) The jury separately convicted Moss of one count of robbery (§ 211, count 4) with a true finding on the gang enhancement appended to the robbery count, and one count of carrying a loaded firearm registered to another person. (§ 12031, subds. (a)(1) & (2)(F), count 10.)
The court sentenced Norris to two consecutive life terms without the possibility of parole, plus 150 years to life, plus a determinate term of 18 years 4 months. The court sentenced Moss to two consecutive life terms without the possibility of parole, plus 150 years to life, plus a determinate term of 23 years 4 months. Both Moss and Norris appeal.
I
FACTUAL BACKGROUND
Norris and Moss were members of a gang known as Skyline Eastside Piru (Skyline) and belonged to a subset of that gang known as the Gangsta Pimp Mafia or GPM. The Skyline/GPM gang's major rivals included a gang called Lincoln Park.
Three of defendants' fellow gang members were involved in the various crimes: Amon Dykes, Lamar Neal, and Glenroy Drew. Norris was a "shot caller" for this group. Neal and Drew testified as prosecution witnesses, and their evidence forms the crux of many of Norris's claims of error.
There were also three women who played significant roles in the events. Maureisha Johnson was Norris's girlfriend and mother of his child. Johnson drove a green Ford Taurus, and this Taurus transported the assailants involved in the Radio Drive shooting.
Rhonda Dixon was Moss's girlfriend, and acted as the go-between in the alleged conspiracy to intimidate Christina Brashears. Dixon drove a grey Toyota Corolla, which was present at the shootout at a Denny's Restaurant.
Brashears was Norris's former girlfriend. She was a waitress at the Denny's Restaurant where a shootout took place.
A. The February 26 Radio Drive Shooting (Counts 1-3)
Nonaccomplice Testimony
The victims of the Radio Drive shooting (RD shooting) were Curtis Howard and Danielle Coleman. Howard was an associate of the Lincoln Park Gang and Coleman was his girlfriend.
Around 9:00 p.m. on February 26, 2006, Howard and Coleman met some friends (Simone Cameron and Ashanti Ward) at a 7-Eleven store in southeast San Diego. They decided to go to Howard's home nearby and drove there in their respective cars. Howard, wearing a green shirt,[4] drove Coleman's BMW car and Coleman sat in the front passenger seat. Cameron and Ward followed them in their car.
As the two cars drove on Imperial Avenue, a dark Ford (later identified as Johnson's Taurus) pulled between their cars, and followed Howard's car as it drove on 60th Avenue and turned onto Radio Drive. When Howard stopped the BMW at a stop sign, the Taurus pulled alongside the BMW and someone in the Taurus fired multiple gunshots into the BMW. Both Howard and Coleman were hit. Howard later died from his wounds, and Coleman suffered significant injuries.
The next morning, Cameron gave police a partial license plate for the dark Ford that transported the shooter in the BMW. The partial plate matched only 13 vehicles in San Diego, and only one of them was assigned to a Ford Taurus. Police learned the Taurus was registered to Lavette Anderson, the mother of Johnson (Norris's girlfriend), and Norris had been in that car when he was stopped a few days earlier and a few miles from the RD shooting. Police also obtained cell phone records showing that, at 9:19 p.m. and again at 9:57 p.m. on the night of the shooting, Johnson's cell phone was used to make two phone calls that passed through two cell phone towers a few miles away from (and which bracketed the site of) the RD shooting.[5]
Drew's Testimony[6]
About two weeks after the RD shooting, Drew was driving with Norris when they drove past the murder scene. Drew was not present at or involved in the RD shooting. Drew testified Norris told him that this was the place "they shot had shot the dude at." When the prosecutor asked Drew to relate Norris's exact words, Drew stated that Norris's words were "this is where I got that one guy." Norris later told Drew that Norris was in his girlfriend's car (referring to Johnson's Ford Taurus) and, when asked whether Norris told Drew why they had attacked, Drew answered that Norris said "he seen the dude, he had a green shirt on, so they started chasing him. They were shooting the dude."
Accomplice Testimony
Neal, an accomplice testifying for the prosecution,[7] testified he was at Norris's house on February 26 when Moss arrived. Johnson arrived later driving her green Ford Taurus. Around 9:00 p.m., Norris instructed Moss to retrieve a gun hidden in a van outside the house, and the four then left in the Taurus to go to a 7-Eleven store in the territory claimed by Lincoln Park. Norris and Moss went inside the store while Neal and Johnson waited in the car.
When Norris and Johnson returned, the group (driven by Norris) drove off. However, Norris saw the victim in a green shirt driving a BMW, and said something about seeing a "leprechaun," a reference to Lincoln Park gang members. Norris followed the BMW and, when Moss leaned out the window preparing to shoot, told Moss to wait. When Norris was able to pull alongside the BMW at a stop sign on Radio Drive, Moss fired five to eight gunshots into the BMW. Norris stopped only briefly and then continued driving down the road while Moss was firing at the BMW.
Norris's brother testified Norris was home the entire evening of the RD shooting. A second witness also testified Norris and others were at home watching movies the entire evening of the RD shooting.[8] Moss presented alibi testimony from his girlfriend and her mother, and proffered a DNA expert to undermine the statistical analysis of the swabs taken from the .380 handgun.
B. The March 3 Robbery (Count 4)
Latoya Wright, the victim of the robbery, owned a .380 semiautomatic handgun. On March 3, she tried to pawn it at a CashCo pawn shop, but the shop owner declined. Some African-American males overheard her efforts to pawn the handgun, approached her and asked her to sell it to them, but she declined.
After she shopped at an adjacent store, she began walking home. Two of the men followed her, and again asked to purchase the gun. Wright again refused, although she showed the gun to them before returning it to her purse. The men were around her and they "switched sides" as though positioning themselves to commit a crime. Wright became nervous and announced she was going inside her house. The lighter skinned man snatched her purse, with sufficient force to break the strap, and ran off. As he ran, he removed the gun from, and discarded, the purse. The second man stayed with Wright. She pursued the robber and called 911. She returned to the pawn shop parking lot where she saw some African-American males leaving in Drew's Cadillac.
Neal was at the pawnshop and corroborated Wright's description of the events. Neal saw Moss and another man follow Wright from the pawnshop. Shortly afterward, Neal saw Moss running back to the pawnshop parking lot, where Moss got into a car and left. Drew was at the pawnshop with several others but left quickly when he heard Moss had taken Wright's purse. Later that evening, Moss showed Drew the .380 pistol he had stolen.
A month and a half later, Wright was shown a six-pack of photographs and said one of them (Moss's photograph) looked like the purse snatcher but she was not 100 percent sure. She made similar qualified identifications at a live line-up and at trial.
C. The March 26 San Onofre Terrace Shooting (Counts 5-9)
Nonaccomplice Testimony
The victims of the San Onofre Terrace shooting (SOT shooting) were Darnel King, Bobby Towers, Rashard Hall and Michael Murphy. They lived on a street (San Onofre Terrace) within territory claimed by the Lincoln Park gang. They were not members of the Lincoln Park gang, but two of them were friends of Lincoln Park members.
On March 26, the victims were relaxing in a carport at Hall's house after dark. The group saw two men, wearing hooded sweatshirts and bandanas, walk out of the canyon. The two men stopped on either side of a nearby car, and Towers asked, "Who is that" The two men then fired on the group. King was killed and Towers was wounded.
Drew drove a black Cadillac with primer spots on it, and Dykes drove a white Nissan Sentra. Three people on nearby Santa Isabel Drive heard the gunshots and then saw the shooters get into and leave the scene in cars consistent with the make, model and color of the cars driven by Drew and Dykes.
Police recovered five 9-millimeter casings, three .380 casings, and some bullet fragments from the scene. The .380 shots were fired from the handgun stolen from Wright. The DNA analysis of a sample taken from the .380 handgun had a mix from at least four people, and Moss, Norris and Drew could not be excluded as donors. A significant contributor to the sample had a DNA profile that matched Moss's DNA at a frequency of 1 in 580 African American males.
Accomplice Testimony
Neal testified he met with Norris, Moss, Dykes and Drew before the SOT shooting. Drew was upset that his cousin, Murphy, was giving Lincoln Park gang members information about where Skyline/GPM members lived. The group discussed going to Murphy's house to shoot him. Neal knew Moss had the .380 handgun because he had first seen Moss with the gun about one week earlier. They drove to the scene in Drew's black Cadillac and Dykes's white Sentra and parked on Santa Isabel Drive. Norris and Moss got out of the cars and walked through the canyon toward San Onofre Terrace. After Neal heard numerous shots being fired, Norris and Moss came running back to the cars, and everyone drove away. Drew's testimony about the events that night was substantively the same as that of Neal.
D. The Denny's Shootout[9]
The Denny's Restaurant on Spring Street in La Mesa, California, was a hangout for Skyline/GPM members. Brashears worked as a server at the Denny's, and was a former girlfriend of Norris.
On the evening of April 14, 2006, Brashears was working at the Denny's and several Skyline/GPM members (including Moss, Norris, Neal and Drew) were there. Later that evening, several Lincoln Park gang members arrived at the restaurant and went inside, and the rival gangs challenged each other to go outside to fight.
Neal testified that, once outside, a Lincoln Park member holding a gun said he would give them seconds to run away and started counting down. The Skyline/GPM members began running and, as he fled, Neal was shot in the leg. Drew testified Norris and Moss went to Moss's girlfriend's car, and Drew thereafter saw Moss holding the .380 handgun. Moss fired back at the Lincoln Park gang members but the .380 gun jammed.
Police quickly arrived at the scene and locked everyone into the Denny's Restaurant to enable police to search one person at a time. While they were locked inside, Moss gave Brashears a purse and told her to hide it. The purse was heavy and, without looking inside it, Brashears put the purse on top of a freezer in the kitchen. However, a police detective was directed to the purse, which he found on top of the ice machine, and he took it and looked inside. It contained a .380 handgun with a bullet in the chamber and a clip inserted. Police ultimately determined the .380 handgun was the gun stolen earlier from Wright and used in the SOT shooting.
The Denny's employees were the last people taken out of the restaurant, and Brashears noticed Norris, Moss and Drew were being detained in the parking lot. Police told her they wanted to question her and she was taken away in a squad car "right in front of everybody." She was concerned about being transported in front of everyone because she feared what they might think. At the station, she identified Moss as the person who handed her the purse. Moss was hospitalized with a gunshot wound to the leg and was arrested and booked into Juvenile Hall in absentia.
E. The Conspiracy to Intimidate Brashears (Count 11)
On April 17, 2006, Brashears phoned Norris. The call was recorded, unbeknownst to either Norris or Brashears, because there was a wiretap on Norris's phone. Norris told Brashears not to leave town because that would make it look like she was working with police. Norris told her people noticed she had left the Denny's Restaurant with police, but Brashears protested that she hadn't asked to be taken away, and she lied to Norris by denying that she told police Moss had given her the purse to hide. Norris talked about "playin' by the rules" and told her to deny any knowledge.
After speaking to Norris, Brashears met with police again. She asked that her name be redacted from any police reports, and changed her story to avoid implicating Moss. After this second meeting with police, Brashears again called Norris and told him police were focusing on him as the ringleader and wanted her help to set up Norris. She told Norris she was worried about being charged as an accessory because Moss had given her the purse "around too many people."
Within two weeks of the Denny's shootout, Norris (along with Neal and Drew) visited Moss, who was being held in custody. Moss expressed concerns that Brashears was talking to the police about the gun he had given to her to hide. Also within two weeks of the Denny's shootout, Norris told Drew that (1) Norris and Dixon had visited Moss, (2) Brashears was talking to police, and (3) they had to get rid of Brashears. Drew understood the latter statement to mean they intended to kill Brashears.
Moss was arraigned on May 1, 2006, and both Dixon (Moss's girlfriend) and Norris attended Moss's arraignment. Dixon overheard a prosecutor say something about a waitress hiding something for Moss. Later that day, Moss called Dixon from jail and asked her to do a three-way phone call with Norris, so Dixon called Norris using a separate phone.[10] Moss told Dixon to tell Norris to "handle that Nasty Bitch,"[11] and Dixon relayed that message to Norris. Norris told Dixon to "tell him [Moss] it's a done deal, relax. [¶] . . . [¶] . . . just tell the homie, don't worry about nothing. I got it under control." After Norris ended his phone call to Dixon, Moss (who was still on the phone with Dixon) told Dixon to call Norris back and tell him not to wait. Dixon relayed that message to Norris, who agreed he could not prolong it.
That same day, police warned Brashears her life could be in danger. They met with her the following day and reiterated their concerns about her safety. Police thereafter kept her under surveillance until May 9, when she was arrested for interfering with the investigation. The following day, police conducting a surveillance stopped Dixon while she was driving, and found ammunition in the trunk of her car.
At the time of trial, Brashears had received several threats. One threat was that she had to change her testimony or she would be killed.
II
SUMMARY OF APPELLATE CLAIMS
Norris and Moss jointly raise numerous claims of error. They assert (1) the trial court abused its discretion by denying the motions to sever counts 1 through 3 from the remaining counts, (2) the conspiracy convictions on count 11 must be reversed because the "overt acts" were not separate from the underlying conspiracy agreement, (3) it was error to permit an alternate juror to join the seated jury when the seated jury heard a "read back" of testimony, (4) the prosecutor violated the canons of ethics by interviewing excused jurors while trial was still in progress, and (5) the court abused its discretion when it denied a motion to disclose juror identifying information.[12] Norris separately contends the evidence was insufficient to support the convictions on the SOT shooting because the only evidence of Norris's involvement was from the accomplice testimonies of Drew and Neal. Moss separately contends (1) the trial court committed Aranda/Bruton[13] error by admitting an out-of-court statement by Norris that incriminated Moss, and (2) the court erred in denying his motion to suppress certain evidence.
III
ANALYSIS OF JOINT CONTENTIONS
A. The Severance Claim
Norris and Moss assert the court abused its discretion by denying their motions to sever the Radio Drive counts (counts 1 through 3) from the remaining counts.
Legal Framework
An accusatory pleading may charge two or more different offenses if the offenses are "connected together in their commission" or are "of the same class." (§ 954.) However, even if joinder is proper under section 954, "in the interests of justice and for good cause shown, [a trial court] may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately." (§ 954.)
Where joinder is statutorily authorized, there is a strong preference for joinder of charged offenses. (People v. Soper (2009) 45 Cal.4th 759, 772 (Soper); Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220.) The trial court's discretionary decision to sever counts must balance the potential prejudice of joinder against the state's substantial interest in the efficiency of a joint trial. (Soper, at pp. 772-773.) A joint trial "ordinarily avoids the increased expenditure of funds and judicial resources which may result if the charges were to be tried in two or more separate trials" (Frank v. Superior Court (1989) 48 Cal.3d 632, 639) because a single trial "requires [only] a single courtroom, judge, and court attaches. Only one group of jurors need serve, and the expenditure of time for jury voir dire and trial is greatly reduced . . . . In addition, the public is served by [the judicial efficiency realized in the prompt] disposition of criminal charges both in trial and through the appellate process." (People v. Bean (1988) 46 Cal.3d 919, 939-940.)
When the prosecution has the right to try properly joined charges together, the burden is on the defendant to "clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried." (Soper, supra, 45 Cal.4th at p. 773.) Because of the public policy factors favoring joinder, a party seeking severance must make a stronger showing of prejudice than would be necessary to exclude other crimes evidence in a separate trial. (Id. at pp. 772-773.)
Cross-admissibility of evidence generally dispels any inference of prejudice from joinder. (Soper, supra, 45 Cal.4th at pp. 774-775.) However, joinder is permissible even when cross-admissibility is not present. (Id. at p. 775; § 954.1.)[14] In determining potential prejudice from the joint trial of noncross-admissible charges, we consider: (1) whether some of the charges are particularly likely to inflame the jury against the defendant; (2) whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges; and (3) whether one of the charges (but not another) is a capital offense, or the joinder of the charges converts the matter into a capital case. (People v. Zambrano (2007) 41 Cal.4th 1082, 1128-1129, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The court must then balance the potential for prejudice to the defendant from a joint trial against the countervailing benefits to the state. (Soper, supra, 45 Cal.4th at p. 775.)
On appeal, to demonstrate error in the denial of severance, the defendant must make a clear showing of prejudice.[15] (People v. Manriquez (2005) 37 Cal.4th 547, 574.) A trial court's denial of a request to sever properly joined charges amounts to a prejudicial abuse of discretion only if that ruling falls outside the bounds of reason. (Ibid.) We consider the record before the trial court when it made its ruling. (Soper, supra, 45 Cal.4th at p. 774.) However, even where the trial court's ruling was correct when made, we must reverse if the defendant affirmatively shows joinder actually resulted in gross unfairness amounting to a denial of due process. (Id. at p. 783.)[16]
Application
Here, the RD shooting gave rise to charges of the same class as the SOT shooting, and therefore the threshold for joinder was met. (§ 954.) Moreover, there were substantial areas of overlapping and cross-admissible evidence. The evidence concerning Norris's and Moss's gang membership and the nature of Skyline/GPM, as well as the gang antipathy that provided the background for the motives for both shootings, was admissible as to both sets of shootings. Additionally, the testimonies provided by Neal and Drew were overlapping. More importantly, the evidence of each separate set of shootings, as well as the other crimes, would have been cross-admissible even had the RD shooting been severed for trial. The RD shooting would have been admissible to support the gang enhancement appended to the SOT shooting because evidence Moss and Norris had acted for the benefit of Skyline/GPM in connection with the RD shooting permitted an inference they harbored a similar intent with respect to the SOT shooting and, even though two-way cross-admissibility is not required (see People v. Cummings (1993) 4 Cal.4th 1233, 1284), the converse would also be true. Additionally, the RD shooting—insofar as it showed Norris and Moss acted as a team and Norris acted as the commander of the team in an earlier shooting by Skyline/GPM against a perceived Lincoln Park member—would have been admissible to provide some "corroborative evidence" for the accomplice testimony that Norris was one of the shooters at the SOT shooting. Finally, each set of shootings would have been cross-admissible because of the multiple murder special circumstance allegations. We conclude the trial court did not act beyond the bounds of reason in ruling that significant areas of cross-admissibility supported a unitary trial of all of the counts.
Even if cross-admissibility did not support a unitary trial,[17] we still do not conclude that holding a unitary trial was an abuse of discretion under the remaining factors identified in People v. Zambrano, supra, 41 Cal.4th at pages 1128 to 1129. The first remaining factor—whether one set of charges was more inflammatory than the other set—is not applicable: the RD shooting involved an unprovoked ambush resulting in the death of one person and injury to another, and the SOT shooting similarly involved an unprovoked ambush resulting in the death of one person and injuries to others. Neither set of charges was significantly more inflammatory than the other. (Zambrano, at p. 1129.)
Although Norris and Moss assert joinder was error under the second remaining factor, arguing it permitted conglomeration of a weak case with another weak case so that the totality of the evidence could have altered the outcome as to some or all of the charges, the evidentiary strengths were not significantly dissimilar. (See People v. Carter (2005) 36 Cal.4th 1114, 1155; People v. Mayfield (1997) 14 Cal.4th 668, 721.) The RD shooting involved evidence from Drew (a nonaccomplice in that event) and Neal (an accomplice) with corroboration based on the vehicle used (Norris's girlfriend's car) and cell phone records (showing Norris's girlfriend's phone was moving about the area around the time of the shooting). The SOT shooting similarly rested on the accomplice testimony of the same witnesses (subject to the identical degree of impeachment), and was buttressed by corroborative evidence of similar substantiality. Because the evidentiary strengths of those two shootings were not significantly dissimilar, we are not persuaded by Norris and Moss's claim that the trial court acted beyond the bounds of reason in concluding this factor did not militate in favor of severance. (People v. Carter, supra, 36 Cal.4th at p. 1155; People v. Mayfield, supra, 14 Cal.4th at p. 721.) Finally, the unitary trial did not convert this matter into a capital case, and therefore severance on that ground was not required.
We conclude Norris and Moss have not shown their trials were grossly unfair, and they have not made the clear showing of prejudice required to demonstrate reversible error from the trial court's denial of their motions to sever properly joined charges.
B. The Overt Acts Claim
Norris and Moss argue the evidence is insufficient to support their convictions on the conspiracy to intimidate a witness count (count 11) because a conspiracy requires an agreement to commit an unlawful act plus an overt act in furtherance of the agreement. Norris and Moss argue the only evidence supporting count 11 were the two phone calls on May 1, and that these cannot constitute both the agreement and the overt acts.
Legal Framework
To establish culpability for conspiracy, the prosecution must show the defendant and another person agreed to commit an offense, and must show the commission of an overt act by one or more of the participants in the agreement in furtherance of the agreement. (People v. Morante (1999) 20 Cal.4th 403, 416; People v. Russo (2001) 25 Cal.4th 1124, 1131; People v. Swain (1996) 12 Cal.4th 593, 600.) Conspiracy may be, and generally is, proven circumstantially. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1464.) The overt acts charged as part of the conspiracy can be circumstantial evidence of the conspiracy's existence and may establish the conspiracy's purpose and intent. (Ibid.) The existence of a conspiracy may also be " 'inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135, quoting People v. Cooks (1983) 141 Cal.App.3d 224, 311.) "[T]he independent proof required to establish the existence of a conspiracy may consist of uncorroborated accomplice testimony." (Rodrigues, at p. 1134.)
The "overt act" requirement mandates proof that some outward act was done to pursue the crime and manifests the intent to accomplish the crime; the act need not be criminal in nature and need not amount to an attempt to commit the offense. (People v. Sconce (1991) 228 Cal.App.3d 693, 700; People v. Von Villas (1992) 11 Cal.App.4th 175, 243-244.) Once the defendant's agreement, intent, and an overt act are shown, conspiracy culpability is established even if the defendant was not present and did not personally participate in an overt act. (See People v. Morante, supra, 20 Cal.4th at p. 417; People v. Cooks, supra, 141 Cal.App.3d at p. 312.) Imposition of criminal culpability for a conspiracy is justified by a " 'group danger' " rationale, i.e., group association encourages more ambitious goals, increases the likelihood of success, and decreases the likelihood that the plan will be abandoned. (Sconce, at p. 700.)
Analysis
We conclude there was substantial evidence from which a jury could have found that Norris and Moss agreed, at some time prior to the May 1 phone calls, to "attempt[] to prevent or dissuade [Brashears] from attending or giving testimony" within the meaning of section 136.1, as charged in count 11. Drew testified that he and Norris visited Moss in the two-week period following the April 15 Denny's shootout—i.e. sometime before the May 1 phone calls.[18] At that visit, Moss raised the problem of Brashears telling police Moss was the source of the .380 handgun found by police. Drew also testified that Norris told Drew—again within the two-week period following the April 15 Denny's shootout and sometime before the May 1 phone calls—that (1) Norris and Dixon had "visited" Moss, (2) Brashears was talking to police, and (3) they had to get rid of (i.e. kill) Brashears. There was therefore testimonial evidence from which a jury could have found the agreement to "prevent or dissuade" Brashears from testifying was in place before Moss's May 1 arraignment hearing. Moreover, there was other circumstantial evidence supporting the conclusion the agreement was in place before the May 1 phone calls because of the reactions by Moss, Dixon and Norris to the events on May 1. At the May 1 arraignment (which Moss, Dixon and Norris attended) the prosecutor said something about a waitress hiding something for Moss. A jury could infer from Moss's reaction—calling Dixon from jail and insisting she do a three-way phone call with Norris so Moss could emphasize the need for Norris to "handle that Nasty Bitch"—that Moss was surprised the object of the prior agreement had not already been accomplished. Indeed, both Dixon's words during Moss's panicked phone call (telling Norris of Moss's message to "handle" Brashears but also saying to Norris that "you already know [because] I told you earlier" (italics added) and Norris's replies to Dixon ("tell [Moss] it's a done deal, relax. [¶] . . . [¶] . . . I got it under control") would permit a rational trier of fact to infer this matter had been discussed earlier because Norris had already taken steps to accomplish the agreed-upon goal.
Because we conclude substantial evidence supports the conclusion the requisite agreement had been reached prior to May 1, 2006, we assess whether there is substantial evidence from which a trier of fact could have found there were subsequent overt acts in furtherance of the agreement. That aspect is satisfied as long as there is some outward act done to pursue the agreement manifesting an intent to accomplish the crime, even where such act is not criminal in nature and does not amount to an attempt to commit the offense. (People v. Sconce, supra, 228 Cal.App.3d at p. 700; People v. Von Villas, supra, 11 Cal.App.4th at pp. 243-244.) Indeed, the jury need not even unanimously agree on which overt act was done to pursue the agreement, as long as it unanimously agrees that some overt act manifesting an intent to accomplish the agreement was taken. (People v. Russo, supra, 25 Cal.4th at p. 1135 ["Disagreement as to who the coconspirators were or who did an overt act, or exactly what that act was, does not invalidate a conspiracy conviction, as long as a unanimous jury is convinced beyond a reasonable doubt that a conspirator did commit some overt act in furtherance of the conspiracy."].) Here, Moss's May 1 phone call emphasizing the need to act, or Dixon's subsequent call to Norris imploring him to act sooner rather than later, may have been the act the jury found to have been in furtherance of the conspiracy. Alternatively, a juror could have concluded Dixon's acquisition of ammunition, found in her possession just 10 days after she had implored Norris to act to protect her boyfriend from Brashears, may have been the overt act on which the jury relied.[19] We conclude there was substantial evidence to support the conclusion that the agreement was in place some time before May 1, and that conduct thereafter satisfied the "overt act" requirement for purposes of count 11.
C. The Read-back Claim
Norris and Moss contend the court committed per se reversible error when it allowed an alternate juror to be present when the seated jury was present in the courtroom for a read-back of certain testimony. They argue this procedure (1) invaded the sanctity of the jury's deliberations in violation of section 1089 under the rationale of People v. Bruneman (1935) 4 Cal.App.2d 75 and (2) sent an implicit signal to the seated jury to expedite its deliberations in violation of the principles articulated by People v. Keenan (1988) 46 Cal.3d 478.
Background
The empanelled jury began its deliberations on Monday, September 14, 2009. At the end of that day, the jury sent a note to the court requesting a read-back of the testimonies of Drew and Neal the next morning. The court was aware that one of the empanelled jury members (Juror No. 4) had previously informed the court that he would become unavailable starting on September 18 because of a prepaid vacation. The court also observed that, because of the length of the testimony entailed in the read-back requested by the jury, it appeared likely "that we'll lose [Juror No. 4]." As a result, the court decided (over the objection of defense counsel) to have the last remaining alternate juror present for the read-back, and to conduct that read-back in the courtroom so that the alternate juror would not have access to anything in the jury room produced during the initial day of jury deliberations.
The jury and the alternate juror, along with the court reporter, were present in the courtroom during the read-back of Neal's testimony. At the conclusion of that session, the jury informed the court it wished to return to the jury room to deliberate on whether they still wished to hear the testimony of Drew, and did so unaccompanied by the alternate juror. The jury then informed the court it still wished to hear Drew's testimony, and the jury and the alternate juror (along with the court reporter) returned to the courtroom and heard the read-back of Drew's testimony. The empanelled jury then returned to the jury room, without the alternate juror, to resume its deliberations. The empanelled jury reached a verdict later that afternoon.
Legal Principles
The right to trial by an impartial jury includes, as an implicit corollary, that the jury's deliberations will be "conducted privately and in secret, free from all outside intrusions, and extraneous influences or intimidations." (People v. Oliver (1987) 196 Cal.App.3d 423, 428.) Some courts have held that it is per se reversible error for an alternate juror to be "presen[t] in the jury room" with the empanelled jury "during their deliberations" (People v. Bruneman, supra, 4 Cal.App.2d at pp. 76, 81, disapproved on other grounds by People v. Valles (1979) 24 Cal.3d 121, 127, fn. 2), although more recent authority suggests that "[t]oward expediting disposition of a case, the court and counsel may well determine that the particular case calls for such innovation" of permitting the alternate juror to be silently present during deliberations. (Valles, at p. 27.)
Analysis
The procedure adopted here insulated the alternate juror from being present during any discussions among the empanelled jury, or from even being exposed to any materials the empanelled jury might have generated from those discussions, and there is no hint the alternate juror said anything to any empanelled juror. Norris and Moss appear to argue, regardless of the absence of any evidence that the alternate juror actually influenced the jury's discussions, the mere presence of an outsider at any point after a matter is submitted to a jury and before it returns its verdict is reversible error. However, the concern identified in Bruneman from the presence of a stranger during jury deliberations was the chilling effect on deliberations when the privacy of the jury's discussions is invaded. (People v. Bruneman, supra, 4 Cal.App.2d at pp. 80-81.) No similar impact is present here, because all of the discussions among the empanelled jurors took place in the sanctity of the jury room without the presence of any outsider.[20] (Accord, People v. Love (1937) 21 Cal.App.2d 623, 628 [court learned juror had become intoxicated during deliberations and had doctor enter with bailiff to check on juror; defendant argued doctor and the bailiff were unauthorized persons present in the jury room, rendering mistrial mandatory; court found no merit because "[t]here isn't anything in the record to indicate that the doctor and the bailiff or either of them were present while the jury were deliberating on a verdict"].)
Norris and Moss alternatively assert the presence of the alternate juror sent an implicit signal to the empanelled jury that haste was necessary, in violation of the admonition that trial courts should "refrain from placing specific time pressure[s] on a deliberating jury . . . ." (People v. Keenan, supra, 46 Cal.3d at p. 534.) The alleged "signal" of which Norris and Moss complain is that the jury would lose one of its empanelled members to a prepaid vacation if the jury did not reach its decision by the following day, which would require the seating of the last remaining alternate. However, the court was already aware that a juror would become unavailable starting on September 18, and there is no suggestion the other jurors were not similarly aware of that impending deadline, regardless of the presence of the alternate juror during the read-back. Accordingly, any "time pressure" was already extant, regardless of the presence of the alternate juror during the read-back, and we conclude the decision to have the alternate present during the read-back did not place any previously nonexistent time constraints on the deliberative process.
D. The Ethics Claim
Norris and Moss next assert the prosecutors violated Rule 5-320(B) of the Rules of Professional Conduct, and the violation deprived Norris and Moss of their federal and state constitutional rights.
Background
During trial, the court received numerous reports of possible juror intimidation. Ultimately, the court decided to dismiss two jurors (Juror Nos. 1 and 10), at the request of both defendants and over the prosecution's objection, because an investigation had commenced into the possibility they had been victims of intimidation and therefore their continued presence on the jury had become "problematic."
When court reconvened four days later, defense counsel reported he understood one of the excused jurors had spoken to the prosecutors some time after the last court hearing, and defense counsel asked who had been involved in that conversation. The prosecutor stated the conversation occurred with Juror No. 10, and that two deputy district attorneys involved in trying the present case (along with an investigator and a detective) had attended the meeting with Juror No. 10. The subject matter discussed at the time was the alleged intimidation, and did not involve the merits of the ongoing criminal trial.
Legal Framework
Rule 5-320(B) of the Rules of Professional Conduct provides that "[d]uring trial a member connected with the case shall not communicate directly or indirectly with any juror," and the rule states that "[f]or purposes of this rule, 'juror' means any empanelled, discharged, or excused juror." (Rules Prof. Conduct, rule 5-320(I).)
Analysis
Norris and Moss argue this violation of professional ethics (1) constitutes error and (2) mandates per se reversal of the verdicts. However, neither contention is persuasive. Norris and Moss cite no authority for the first element of their argument—that alleged ethical violations by prosecutors not amounting to prosecutorial misconduct provide grounds for asserting reversible error—and the law appears to be to the contrary. (See, e.g., Commonwealth v. Miranda (Mass. 2010) 458 Mass. 100, 108 [even if Board of Bar Overseers concluded prosecutor's involvement in reward program violated ethical rules, "that decision may not be used collaterally to attack the defendant's conviction; the board's decision would have no bearing on the defendant's claims that the prosecutor's conduct amounted to structural error and violated his due process rights"].) Moreover, even if allegedly unethical conduct occurring outside of court and having no effect on the evidentiary presentations in court could nevertheless be deemed a trial error, Norris and Moss have cited no authority supporting their claim that the misconduct should be deemed per se reversible error. Because California appears to require at a minimum that a defendant show "how an alleged breach of the ethical rule affected the verdict" (see People v. Maury (2003) 30 Cal.4th 342, 408-409 [dicta]), and no showing of that effect is present here, we conclude Norris and Moss's claim that the prosecutor's conduct in this action violated Rules of Professional Conduct, rule 5-320 does not provide grounds for reversing the judgment.
E. The Juror Identification Claim
Norris and Moss assert the court abused its discretion by denying their motion to disclose juror identifying information. Norris and Moss argue the identifying information was necessary to enable the defense to investigate whether it had a viable basis for a new trial motion—i.e., jury misconduct to the extent the jury discussed the alleged intimidation during deliberations. Norris and Moss assert this court should conclude the denial of the motion was an abuse of discretion, and the proper remedy is to remand for investigation into jury misconduct and to permit a potential motion for new trial based on evidence developed by the investigation.
Background
At the end of the court day on August 25, 2009, Juror No. 10 asked to address the court about a concern and, outside of the remainder of the jury, the court inquired about this concern. Juror No. 10 stated that he (and other jurors) had outside the court seen persons who had been observing the proceedings in court, say words to each other to the effect that "those people are involved" or "that's one of them," suggesting those were the jurors involved in the trial. However, Juror No. 10 specifically assured the court that nothing about the instances would prohibit Juror No. 10 from continuing to act as a juror. After the juror left, defense counsel expressed concern whether Juror No. 10 or any of the other jurors had been tainted as a result of observing those comments by spectators, and asked the court to inquire further about what other jurors had been involved and to determine what occurred. The court agreed to make a general inquiry of the jury as a whole to ask whether anything had taken place that they felt was inappropriate or had in any way impacted their ability to act as fair and impartial jurors and, if any juror raised his or her hand, to further talk to those jurors. The following day, the court asked, "Has anyone, outside of this courtroom or inside the courtroom, done or said anything that any of you feel served to in any way attempt to intimidate, sway you, influence your decision in this case in any way" (Italics added.) Juror No. 11 stated there was "[a] very small comment[,] [i]t wasn't a big deal," and explained the one incident, but assured the court it would have no influence on the juror's ability to decide the matter impartially.
On August 31, 2009, Juror No. 10 reported another discomfiting experience with a spectator. Juror No. 10 indicated there was "[n]othing verbal, but enough to be aware of," and indicated that "[no] matter where I go downtown, I'm running into the same individual," and described the individual to the court as one of the spectators at the trial.
On Friday, September 4, 2009, the court heard additional reports in chambers raising concerns that some persons (apparently associated with the defendants) had engaged in inappropriate behavior toward jurors. Juror No. 10 related two incidents. In the first set of incidents, occurring on the Wednesday and Thursday before the in-chambers court hearing, Juror No. 10 reported that he was at a nearby shopping mall during the lunch break two days earlier and, as he was leaving to return to court, he saw a tall person (who had been sitting in court next to Norris's father) staring at Juror No. 10 as the juror walked by, and the tall person made eye contact with Juror No. 10 "not in . . . a friendly manner." The next day, the same tall person was in the courtroom when he again stared at Juror No. 10 while making simultaneously making a subtle motion that "was either scratching his forehead or making a sign of a gun with his index finger to his temple."
Juror No. 10 related a final incident in which he, along with Juror No. 1, had grown concerned that someone was watching them after they had been released on Thursday evening and were at a nearby trolley stop waiting to go home. They both described an incident in which a black male in a car had parked illegally near the trolley stop close to the courthouse and had been in a position to watch Juror No. 1, and had driven around the block only to re-park in a location that allowed the driver to watch the trolley stop, and then had again driven around the block only to return to where the driver could watch the trolley stop and appeared to be looking at the two jurors. However, both jurors assured the judge they could remain as fair and impartial jurors.
The court, as well as defense counsel, appeared concerned these jurors may have "tainted" the rest of the jury by relating their experiences to the other jurors. The court then asked Juror Nos. 1 and 10 whether they had discussed their experience or any type of incident "with any other juror," other than between themselves. Juror No. 10 answered "no." Juror No. 1 said he had "heard some scuttlebutt . . . that another juror [Juror No. 10] has been followed," but "[t]hat's all I heard." The court directed Juror Nos. 1 and 10 not to discuss the incidents with their fellow jurors, but elected to retain on them on the jury for the balance of that day. The court denied the defense motion to have the jury questioned about the "material from Juror [No.] 10," and thereafter resumed the evidentiary portion of trial. However, at the end of that day, the court recognized that Juror Nos. 1 and 10 had become embroiled in an investigation of potential tampering and therefore excused them.
When the jury reached a verdict two weeks later, the jury sent Juror Note 3 to the court, which note stated:
"(1) The jury had completed deliberations and reach[ed] a verdict [¶] (2) the jury would like to understand what had happened with regard to jury intimidation from the judge [¶] (3) what is the procedure for leaving the court re intimidation [¶] (4) we would appreciate it if D.A. Fox could explain to the jury what has happened in the cases associated w/ this one."
After receiving the verdicts and polling the jury, the court informed the jury that they were dismissed and they were permitted but not required to talk to the attorneys about the case, and any juror who wished to do so could remain. However, the record is silent on whether any juror made him- or herself available to discuss the matter after being dismissed.
Moss, joined by Norris, moved for an order under Code of Civil Procedure sections 206 and 237 to obtain juror identifying information. The motion argued that Juror Note 3 suggested the jury may have improperly learned of and discussed the experiences of Juror Nos. 1 and 10, and therefore may have engaged in misconduct by considering matters that should not have been considered by the jury when reaching a verdict. The prosecution opposed the motion, contending Norris and Moss had not made a prima facie showing of good cause under the standards articulated in People v. Rhodes (1989) 212 Cal.App.3d 541, and therefore the court should exercise its discretion and deny the motion.
At the hearing on the motion, the court concluded the defendants had not established good cause to release the private juror information. After indicating it had reviewed the trial transcripts concerning the handling of Juror Nos. 1 and 10's problems (including the specific inquiries it had conducted with those two jurors) and the transcripts of the earlier generalized inquiry directed to the jury as a whole on whether anyone had tried to intimidate the jury in any way, the court concluded the questions posed by Juror Note 3 did not provide sufficient grounds to suspect any improper conduct by the jury that would justify the release of confidential juror information. The court specifically concluded that, although the defense interpretation of the genesis of question 2 in Juror Note 3 was not implausible and might have referred to the jury's awareness of the problems encountered by Juror Nos. 1 and 10, it might alternatively have referred either to the court's generalized inquiry about possible intimidation or may simply have been that the jury had surmised Juror Nos. 1 and 10 had been dismissed because of intimidation factors and the jury was "simply inquiring about the bases for that, for their own safety once the case was over." Because there were no additional facts that would show which construction of the question was accurate, the court concluded releasing the jury information would be to countenance a "fishing expedition," and "betting on the [out]come that we are going to find something" is an inadequate basis for releasing the confidential information. The court also concluded the other two questions in Juror Note 3 were more likely attributable to distinct matters (i.e. matters other than the jury's awareness of the problems encountered by Juror Nos. 1 & 10) and therefore did not provide any additional factual bases for release of the confidential juror information.[21]
Legal Framework
Code of Civil Procedure sections 206 and 237 are designed to maximize the safety and privacy of trial jurors after they have served as jurors, while retaining the defendant's ability to contact jurors after trial if he or she shows sufficient need for such information. (See Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1087, 1096; People v. Granish (1996) 41 Cal.App.4th 1117, 1124.) Code of Civil Procedure section 206 authorizes a criminal defendant to petition for access to personal juror identifying information (their names, addresses and phone numbers) when the sealed information is "necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose." (Code Civ. Proc., § 206, subd. (g).) The petition must be supported by a declaration that includes facts sufficient to establish good cause for the release of the information. (Code Civ. Proc., § 237, subd. (b).) If the court determines the petition and supporting declaration establish a prima facie showing of good cause for release of the juror information, the court must set a hearing, unless the record establishes a compelling interest against disclosure. (Ibid.) If the court sets a hearing, Code of Civil Procedure section 237 allows jurors to protest the petition's grant, and "[a]fter the hearing, the records shall be made available as requested in the petition, unless a former juror's protest to the granting of the petition is sustained. The court shall sustain the protest of the former juror if, in the discretion of the court . . . the juror is unwilling to be contacted by the petitioner." (Code Civ. Proc., § 237, subds. (c), (d).)
To demonstrate good cause, a defendant must make a sufficient showing " 'to support a reasonable belief that jury misconduct occurred.' " (People v. Jones (1998) 17 Cal.4th 279, 317.) The alleged misconduct must be " 'of such a character as is likely to have influenced the verdict improperly.' " (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322.) Good cause does not exist where the allegations of jury misconduct are speculative (People v. Wilson (1996) 43 Cal.App.4th 839, 852), and speculative allegations may not be used as grounds to initiate a " 'fishing expedition[]' by parties hoping to uncover information to invalidate the jury's verdict." (People v. Rhodes, supra, 212 Cal.App.3d at p. 552.)
A trial court's order denying a request for personal juror identifying information is reviewed for abuse of discretion. (People v. Jones, supra, 17 Cal.4th at p. 317.)
Analysis
Norris and Moss's argument below, which they resurrect on appeal, begins with the factual predicates that (1) "at the time of the verdict the jury had not been provided with any information on the record regarding 'jury intimidation' " (italics added) and (2) after the verdict the jury asked "what had happened with regard to jury intimidation." Norris and Moss argue these facts were sufficient to demonstrate a reasonable belief of jury misconduct by inferring from these facts that the jury must have learned of the subject matter of jury intimidation from comments made by to the jury by Juror Nos. 1 and 10. Norris and Moss further assert the receipt of this information was juror misconduct, and that (1) such information was discussed during deliberations by the remaining jurors and (2) it was "likely to have influenced the verdict improperly.' " (People v. Jefflo, supra, 63 Cal.App.4th at p. 1322.)
Although they are correct that after the verdict the jury asked "what had happened with regard to jury intimidation," Norris and Moss are incorrect that the source for that inquiry necessarily were remarks from Juror Nos. 1 and 10, because Norris and Moss are incorrect that "at the time of the verdict the jury had not been provided with any information on the record regarding 'jury intimidation.' " The entire jury had been polled by the court and specifically asked whether "anyone, outside of this courtroom or inside the courtroom, [had] done or said anything that any of you feel served to in any way attempt to intimidate, sway you, influence your decision in this case in any way" (italics added), and Juror No. 11 stated there had been a minor incident, and explained the incident, and then assured the court it would have no influence on that juror's ability to decide the matter impartially. Indeed, the inference drawn by Norris and Moss—that Juror No. 1 or Juror No. 10 must necessarily have told some other juror about experiencing intimidating conduct—is an inference that would have required the court (as trier of fact in connection with the motion) to have disbelieved Juror Nos. 1 and 10 (e.g. their assurances that they did not reveal their experiences to other jurors), and to have concluded that (contrary to their representations) these jurors had relayed the information during an extremely limited time window.[22]
Moreover, there is nothing in Norris and Moss's showing (apart from speculation) that the experiences of Juror Nos. 1 and 10 were discussed during deliberations, or that they were "likely to have influenced the verdict improperly." (People v. Jefflo, supra, 63 Cal.App.4th 1314, 1322.) We do not conclude the trial court's decision to reject Norris and Moss's effort to conduct a " 'fishing expedition[]' . . . hoping to uncover information to invalidate the jury's verdict" (People v. Rhodes, supra, 212 Cal.App.3d at p. 552), was an abuse of its discretion.
IV
ANALYSIS OF SEPARATE CONTENTIONS
A. The Corroboration Claim
Norris separately contends the evidence was insufficient to support the convictions on the SOT shooting (counts 5 though 9) because the only evidence of Norris's involvement consisted of Drew's and Neal's accomplice testimonies.
Legal Framework
Section 1111 prohibits a conviction based "upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense." The bar against a conviction based solely on an accomplice's testimony (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1157) appears rooted in the notion that evidence of an accomplice should be viewed with caution and suspicion because it comes from a tainted source and is often given in the hope or expectation of leniency or immunity. (People v. Wallin (1948) 32 Cal.2d 803, 808.)
The requisite corroboration must, without aid from the accomplice's testimony, connect the defendant to the charged offense, but the corroborative evidence may be circumstantial, slight and entitled to little consideration when standing alone. (People v. Davis (2005) 36 Cal.4th 510, 543; People v. Zapien (1993) 4 Cal.4th 929, 982.) Corroborating evidence need not be sufficient to establish the defendant's guilt or corroborate every fact to which the accomplice testified. (People v. Traub (1959) 175 Cal.App.2d 709, 712; People v. Davis, supra.) It must raise more than a suspicion or conjecture of guilt, and is sufficient if it connects the defendant with the crime in such a way as to reasonably satisfy the trier of fact as to the truthfulness of the accomplice. (People v. Hooker (1954) 126 Cal.App.2d 394, 401; People v. Davis, supra.)
Analysis
We conclude there is some evidence, apart from the testimonies of the accomplices, that corroborates the accomplices' testimonies. Norris was a member of GPM, and his gang moniker "LK" (representing "Lincoln Killer") showed his antipathy towards the Lincoln Park gang. The SOT attack occurred in Lincoln Park gang territory and the unprovoked nature of the attack provided some evidence, however slight, that it was motivated by gang-related reasons.[23] There were two attackers, and Norris had no alibi for the window of time during which the attack occurred. Evidence that a defendant has the motive and opportunity for committing the offense can provide sufficient corroboration. (
| Description | Defendants Sirron Norris and Dominique Moss were jointly tried for numerous crimes before a single jury. The jury convicted both of two counts of first degree murder (Pen. Code,[1] § 187, subd. (a), counts 1 & 5), and found true the special allegations appended to counts 1 and 5.[2] The jury also convicted both of four counts of attempted murder (§ 664/187, subd. (a), counts 2, 6, 7 & 8) and found true the special allegations appended to those counts.[3] The jury also convicted both defendants of one count of shooting at an inhabited dwelling (count 9) and found true the section 186.22, subdivision (b)(1), allegation and the indeterminate firearm use enhancement allegation appended to count 9. The jury also convicted both of one count of conspiracy to intimidate a witness. (§ 182, subd. (a)(1)/136.1, subd. (b), count 11.) The jury separately convicted Moss of one count of robbery (§ 211, count 4) with a true finding on the gang enhancement appended to the robbery count, and one count of carrying a loaded firearm registered to another person. (§ 12031, subds. (a)(1) & (2)(F), count 10.) The court sentenced Norris to two consecutive life terms without the possibility of parole, plus 150 years to life, plus a determinate term of 18 years 4 months. The court sentenced Moss to two consecutive life terms without the possibility of parole, plus 150 years to life, plus a determinate term of 23 years 4 months. Both Moss and Norris appeal. |
| Rating |
