P. v. Gutierrez
Filed 8/6/13 P. v. Gutierrez CA2/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
JUAN CARLOS GUTIERREZ,
Defendant and Appellant.
B237657
(Los Angeles
County
Super. Ct.
No. BA333493)
APPEAL from
a judgment of the Superior Court
of
County.
Lance E. Ito, Judge.
Affirmed as modified.
Victor J.
Morse, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and Nima
Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________
>
A
jury convicted defendant Juan Carlos Gutierrez of two counts of premeditated
murder (Penal Code, § 187, subd. (a))
premeditated murder (§§ 664, 187, subd. (a)) (counts 2 & 3). In counts 1, 2, and 4, the jury found that
defendant personally and intentionally discharged a firearm causing great
bodily injury or death (§§ 12022.53, subd. (d)), and in count 3 that he
personally and intentionally discharged a firearm (§ 12022.53, subd. (c)). The jury found that the crimes in counts 1
through 4 were committed for the benefit of a
(b)(1)). In counts 1 and 4, the jury
found the following special circumstances true:
(1) that the crimes were committed while defendant was an active
participant in a criminal street gang within the meaning of section 190.2,
subdivision (a)(22); and (2) that the murders were intentional and perpetrated
by means of discharging a firearm from a motor vehicle at persons outside the
vehicle with intent to inflict death within the meaning of section 190.2,
subdivision (a)(21). In count 4, the
jury found true the special circumstance allegation that defendant committed
multiple murders within the meaning of section 190.2, subdivision (a)(3).
The trial court sentenced defendant to two consecutive
terms of life without the possibility of parole in counts 1 and 4, two
consecutive terms of 15 years to life in counts 2 and 3, and four consecutive
terms of 25 years to life on the firearm enhancements.
Defendant appeals on the grounds that: (1) the trial court committed reversible
error when it accepted the prosecutor’s stated reasons for excusing an
African-American prospective alternate juror, because the reasons were
unsupported by the juror’s statements on voir dire; (2) the trial court
committed reversible error when it failed to conduct a sufficient inquiry into
a juror’s complaint that another juror’s abusive behavior was derailing
deliberations; and (3) the trial court erred when it imposed a sentence
enhancement of 25 years to life on defendant’s conviction of attempted
premeditated murder in count 3.
FACTS
Prosecution Evidence
A. The October 7, 2007
At approximately noon on October 7, 2007, Freddy Contreras encountered his friend Stanley
Garcia near the intersection of Sunset Boulevard and Grand Avenue. They bought beers at a liquor store and went
to a park. Afterwards, Contreras and
Garcia parted ways near the corner of Alpine Street and Grand Avenue. As Contreras walked away, he turned around
and saw a black SUV with a chrome grill pull up next to Garcia on the passenger
side. Contreras saw only one person, the
driver, inside the vehicle, and he later identified him as defendant. As Contreras stood watching, he heard defendant
ask Garcia, “Where are you from?†Garcia
responded, “Alpine Street,†a reference to the Alpine gang to which he
belonged. Defendant’s hand came up and
he shot Garcia with an automatic weapon three or four times. Garcia fell to the ground. Defendant “took off.†Defendant was wearing a black baseball cap
with “Sox†written on it.
Stuart Wilson was in a nearby residence when he heard
three gunshots. He ran toward the scene
and saw Garcia on the ground with two bullet wounds. Wilson made a tourniquet with his
belt around Garcia’s arm. Garcia told Wilson that the shooter wore a
black White Sox baseball hat. He said
the shooter asked him where he was from.
A 911 call was made and paramedics arrived and took Garcia to the hospital. Police officers found an expended round at
the shooting scene.
On the day of the shooting, Brenda Paredes was living in
an apartment on Alpine Street. She lived
with her children and Paul Cortez, her boyfriend. Cortez was called “Little Man†and was a
member of the Mara Salvatrucha (MS) gang.
Defendant was a friend of Cortez and was called “Commando.†Defendant drove a black Expedition. About five days after the shooting, defendant
visited the residence of Paredes and Cortez.
Paredes overheard defendant apologize to Cortez for committing a
shooting so close to Cortez’s residence because authorities might believe
Cortez was involved. Defendant told
Cortez he asked Garcia which gang he belonged to. They argued, and defendant shot him.
Garcia suffered a hip fracture and multiple hand
fractures from gunshot wounds. During hip surgery, a projectile was removed
from his body and booked into evidence.
Garcia died 11 days after the shooting as a result of multiple gunshot
wounds. Copper fragments were obtained
by the coroner from Garcia’s body during the postmortem.
On the late morning of December
10, 2007, Edwin Santos and his girlfriend, Nelly Vergara, were waiting for a bus
near the corner of Venice Boulevard and Wilton Place. A friend, Lazaro Arana, waited with
them. Santos and Arana were members of
the Playboy gang, and Lazaro had a Playboy bunny tattoo on his cheek. The Playboy gang was a rival to the MS
gang. As the three waited, a black SUV
occupied by five or six men pulled up in front of them. The front passenger, later identified as
defendant, said, “Where are you fools from?â€
Defendant pulled a gun from the area of his waist and pointed it at
them. The group immediately began
running away as defendant began firing.
The SUV then drove away. Santos was shot twice in the arm
and once in the back. Nelly was killed
by a gunshot wound to the chest. Arana
was not hit.
Jaime Galeano witnessed the shooting as he sat in his
parked vehicle nearby. He had noticed
the black SUV as it drove by, and he saw it immediately return, having
apparently made a U-turn. The vehicle
pulled over next to the victims. After
the passenger spoke to the three victims, shots rang out from the passenger of
the car. Galeano identified defendant as
the shooter.
After the shooting, police analyzed GPS tracking devices
on any parolee who might have been in the vicinity of the shooting around the
time it occurred. Using a database, an
officer identified a tracking device worn by parolee John Garcia on his
ankle. Garcia had been placed on GPS
because of his gang affiliation with MS.
Data for his tracking device showed the date, time, and latitude of
where the device was located at the time of the shooting. It showed the device was on the corner of Venice Boulevard and Van Ness Boulevard.
On the afternoon of the shooting, after tracking Garcia’s
whereabouts to Compton, police found a black SUV parked
in front of a house at 1518 Tamarind Avenue and set up
surveillance. At approximately 3:00
p.m., two young Hispanic males got into the SUV. They drove to a liquor store where they were
detained. The driver was codefendant
Romero, who had burn scars on his arms.
The passenger was identified as Edwin Guzman. An officer drove the SUV back to 1518
Tamarind Avenue, and the police continued to monitor the location.
Police saw four individuals come out of the residence and
ordered them to lie down on the ground.
The individuals were defendant, John Garcia, Jesse Castro, and Israel
Flores. Garcia was wearing a GPS ankle
bracelet. Inside the residence police
found a .38-caliber gun hidden in the attic and a .38-caliber bullet hidden in
between a mattress and box spring.
Ballistics tests later confirmed that the .38-caliber gun fired bullet
fragments recovered from Vergara, Santos, and Garcia.
In a police interview, Flores acknowledged he was a
member of the MS gang. Flores admitted
he was sitting in the backseat of the SUV during the shooting. He said he and a friend got a ride from some
people he did not know. He then confirmed that Romero was the driver, identifying him
as the one with the burned arms. He
confirmed that defendant sat in the front passenger seat. Flores denied seeing who fired the shots from
the car.
Detective Frank Flores testified as a gang expert. The detective explained the history of the MS
gang, which began in the 1980’s at the time of a large influx of persons
fleeing Central America. The gang has a
presence in approximately 40 states and has 500 to 1,000 members in Los
Angeles. In 2007, MS and the Playboy
gang were enemies. The area of the
December 10 shooting was just outside MS gang territory and known to be
frequented by Playboy gang members. The
MS gang’s primary activities included murder, assaults, robberies, extortions,
vandalism, and narcotics sales. Flores
identified two MS gang members who had been convicted of murder in 2008 and
2009.
Flores
testified that when defendant’s jail cell was searched, officers found several
items attesting to his affiliation with the MS gang. A lid on a box of playing cards bore the
words “El Commando,†“Parkview,†and “Mara Salvatrucha.†Parkview Locos is a clique in the MS
gang. A soapbox bore the initials
“PVLS.†Other papers and writings were
discovered that bore MS writings and symbols.
Defendant had several tattoos with the letters “MS†on his body, face,
and head. He had an “M†on one cheek and
an “S†on the other. Detective Flores
testified that defendant’s tattoos were indicative of being an MS member. Codefendant Romero acquired an “MS†tattoo on
his chest while in jail on the current charges.
Detective
Flores was of the opinion that the charged crimes were committed for the
benefit of the MS gang. The detective
explained that respect in the gang culture is extremely important, and an MS
member would take it as disrespect for someone to shout out the name of his
gang. Respect is gained by committing
acts of violence. An encounter with gang
members from a rival gang in a rival territory would provide an immediate
opportunity to commit an act of violence.
It is an opportunity for the perpetrators to prove themselves to other
gang members. Acts of violence promote a
gang member’s status within a gang and help instill fear not only in the gang’s
rivals but also in the community at large.
Defense Evidence
Codefendant Romero called Dr. Mitchell Eisen, an expert
on eyewitness memory identification. He described findings that have gained
general acceptance in his field. He
explained that humans have limits on how much information they can take in and
retain. All memory is considered to be
reconstructive, or revised each time we remember something. Stress and trauma affect memory in that we
focus only on what is essential for survival.
Memory is more accurate closer to the event and is not affected by
postevent information. People feel more
confident later on because they have decided on the memory. Dr. Eisen explained that minor additions and
omissions in a person’s memory after repeated interviews regarding an event
were natural and expected but contradictions are not, and they indicate
problems with the memory.
DISCUSSION
I. Denial of Batson/Wheeler Motion
A. Defendant’s
Argument
According to defendant, the record establishes that the
prosecutor’s proffered reasons for excusing a prospective alternate juror were
pretexts for racial discrimination, and the trial court erred in accepting the
reasons.
Toward the end of voir dire, during
the selection of four alternates, Andrew Stein, defendant’s attorney, made a
challenge to Juror No. 1308. Stein
argued that this juror was the third African-American juror who had been seated
in the total venire. The prosecutor had
exercised challenges to the other two: a
traveling chef and a musician. “And this
young lady was just excused, African-American woman, South Central L.A.,
single, academic advisor for USC. No
prior jury experience. I have not seen
anything challenge for cause. She’s
intellectual. She’s the average
juror.†Codefendant’s attorney, Jaclin
Awad, joined in the motion.
The prosecutor argued that there had
been one African-American, the chef, and that juror had stated he would be
uncomfortable rendering a guilty verdict even if it were proved to him beyond a
reasonable doubt. The prosecutor did not
believe the musician, or singer, was African American. He agreed that Juror No. 1308 was
African-American and stated, “but one thing that counsel failed to see is,
she’s like one of the only jurors who say, ‘I live in a neighborhood where
there is Neighborhood Crips.’ And she
did not have a strong opinion about gangs after that. She knew specifically the gang of the
neighborhood. She’s lived in South L.A.
her whole life and not been affected by gangs, even though she had a strong
opinion about gangs. The Neighborhood
Crips gang, that’s a violent gang. And
even after living in a neighborhood like that, she did not have a strong
opinion against that. Given that, and
her background, which is in higher education—I think the issues in this case are,
‘How do you feel about gangs and your views on gangs?’ And I think she may have—at least, my opinion
is that she may have a sympathetic view or view not necessarily—that does not
necessarily disfavors gangs. In other
words, she’s okay with it, okay if the Neighborhood Crips don’t cause any
problems.†The prosecutor stated that
his reason for excusing this juror was her type of knowledge about gangs and
not her race. He would have done the
same if she were Hispanic or White because he did not feel comfortable with
her.
The prosecutor reiterated that the
singer, Juror No. 6198, was not African-American, although she may have been of
mixed race. For the sake of a complete
record, he stated that Juror No. 6198 said she would be “very open-minded†and had
no impression of gangs. The prosecutor
did not feel she would be the type of juror he desired because of her liberal
background.
The trial court observed that Juror
No. 6198 was clearly of mixed race but believed she had an African-American
“background.†The court agreed that the
other two jurors at issue were African-American. The court believed that the circumstances met
the standard for a Batson/Wheeler
challenge and asked the prosecutor if he had anything to add to his explanation
for his exercise of peremptory challenges.
The prosecutor noted that he had
selected several juries before the trial court and had shown he did not use
race to select jurors. He had always
selected jurors from all races, regardless of the defendant’s background. He believed he had indicated sufficient
race-neutral reasons for excusing the jurors at issue and that no one could
state a ground for finding those reasons untrue. The prosecutor added that the singer was from
a type of liberal background that many prosecutors avoid. In addition, the singer said she had “no
impression†about gangs and was “very, very neutral†about them. The prosecutor reiterated that Juror No. 1308
had lived in South Los Angeles all of her life and had a neighbor who is a
Neighborhood Crip, but she had said she was not affected or did not have a
negative impression about this gang. The
prosecutor did not believe that Juror No. 1308 was forthright in the
information she divulged. The prosecutor
stated that Juror No. 1308 was distinguishable because most of the jurors did
not know someone from an actual violent gang, and “this whole case is about
your views on gangs.â€
Stein argued that there were “lots
of people†sitting in the box who had neutral feelings on gangs. Stein then reviewed the jurors the prosecutor
had accepted and who had no exposure to gangs.
The prosecutor countered that many of those jurors had also indicated
they thought the LAPD was fine or did a good job, unlike Juror No. 1308, who
just had a neutral view of the police.
Stein also reviewed the jurors the prosecutor had excused, pointing out
that most of them were neutral about gangs.
Awad argued that Juror No. 1308 was no different than other jurors on
the panel who had been exposed to gangs but who said they had not had problems
with gangs. Stein and Awad’s preferred
remedy was to have Juror No. 1308 reinstated as an alternate. The prosecutor repeated his arguments that
Juror No. 1308 was the juror with the greatest connection to a gang but was
nevertheless neutral about gangs. The
prosecutor was not saying she was the worst juror, but he preferred to use his
peremptory challenges rather than risk a hung jury by accepting a juror who
would ultimately be sympathetic to a gang member.
The trial court observed that it had
extensive experience with the prosecutor.
The court had not found him to exercise peremptory challenges in a
racially biased manner. The court
accepted his justifications in particular with regard to Juror No. 1308,
stating, “For a person to . . . grow up in South Central L.A., to be acquainted
with the Neighborhood Crips, and they have no—to have a very neutral opinion
about them, the destructive force that they are in society, that is a
reasonable basis for the prosecution to exercise a peremptory challenge.â€
(1978) 22 Cal.3d 258 (Wheeler) held
that a prosecutor’s use of peremptory challenges to strike prospective jurors
on the basis of group membership
violates
a criminal defendant’s right to trial by a jury drawn from a representative
cross-section of the community under article I, section 16 of the California
Constitution. (Wheeler, at pp. 276-277.)
practice violates a defendant’s right to equal protection of the laws under the
United States Constitution’s Fourteenth Amendment. (Batson,
at pp. 84, 86, 96-98.)
In Batson, the United States Supreme Court set out a three-step
inquiry for resolving a Batson/Wheeler
motion. “First, the trial court must
determine whether the defendant has made a prima facie showing that the
prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden
shifts to the prosecutor to demonstrate that the challenges were exercised for
a race-neutral reason. Third, the court
determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding
racial motivation rests with, and never shifts from, the opponent of the strike. [Citation.]
The three-step procedure also applies to state constitutional
claims. [Citations.]†(People
v. Lenix (2008) 44 Cal.4th 602, 612-613 (Lenix); see also Johnson v.
California (2005) 545 U.S. 162, 168.)
“At the third stage of the Wheeler/Batson inquiry, ‘the issue comes down to whether the trial
court finds the prosecutor’s race-neutral explanations to be credible. Credibility can be measured by, among other
factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the
explanations are; and by whether the proffered rationale has some basis in
accepted trial strategy.’ [Citation.]
In assessing credibility, the court draws upon its contemporaneous
observations of the voir dire. It may
also rely on the court’s own experiences as a lawyer and bench officer in the
community, and even the common practices of the advocate and the office that
employs him or her. [Citation.]†(Lenix,
supra, 44 Cal.4th at p. 613, fn.
omitted.)
“Review of a
trial court’s denial of a Wheeler/Batson
motion is deferential, examining only whether substantial evidence supports its
conclusions. [Citation.] ‘We review a trial court’s determination
regarding the sufficiency of a prosecutor’s justifications for exercising
peremptory challenges “‘with great restraint.’â€
[Citation.] We presume that a
prosecutor uses peremptory challenges in a constitutional manner and give great
deference to the trial court’s ability to distinguish bona fide reasons from
sham excuses. [Citation.] So long as the trial court makes a sincere
and reasoned effort to evaluate the nondiscriminatory justifications offered,
its conclusions are entitled to deference on appeal. [Citation.]’
[Citation.]†(
D. Sufficient Evidence Supports
Trial Court’s Ruling
When ruling on a defendant’s Batson/Wheeler motion, the trial court must decide not only whether
the prosecutor’s stated reasons are race neutral, but whether those stated reasons
actually prompted the peremptory challenge, or whether they are sham
excuses. (Batson, supra, 476 U.S.
at p. 98; Wheeler,
burden of persuasion, a court must undertake a sensitive inquiry into the
available circumstantial and direct evidence of intent. (Wheeler,
at p. 282; Batson, at p. 93.) That evidence includes a comparative analysis
of the jurors struck by the prosecutor with the characteristics of other
prospective jurors whom the prosecutor did not strike. (Miller-El
v. Dretke (2005) 545 U.S. 231, 239-240; Lenix,
supra, 44 Cal.4th at p. 622.)
Comparative juror analysis on a cold
record has inherent limitations, since tone and expression cannot be
conveyed. Also, two potential jurors may
give similar answers to a given question, yet another question may make one of
those jurors appear to be more of a risk for a party. (People
v. Riccardi (2012) 54 Cal.4th 758, 788.)
Thus, “[a] party concerned about one factor need not challenge every
prospective juror to whom that concern applies in order to legitimately
challenge any of them.†(
365.) Comparative analysis may provide
circumstantial evidence of discriminatory exercise of peremptory challenges,
but it is not dispositive. It is but one
form of relevant circumstantial evidence. (Lenix,
supra, 44 Cal.4th at p. 622.) A court must consider the “totality of the
record†in assessing whether a party’s peremptory challenge rested upon an
unlawful group bias. (
1302, 1322.) As Lenix stated, “On appellate review, a voir dire answer sits on a
page of transcript. In the trial court,
however, advocates and trial judges watch and listen as the answer is
delivered. Myriad subtle nuances may
shape it, including attitude, attention, interest, body language, facial
expression and eye contact.†(
“A transcript will show that the panelists gave similar answers; it
cannot convey the different ways in which those answers were given. Yet those
differences may legitimately impact the prosecutor’s decision to strike or
retain the prospective juror.†(
Keeping these principles in mind, we believe the trial
court here demonstrated “a sincere and reasoned effort†to evaluate the
prosecutor’s explanation in light of the circumstances of the case before it,
and that its decision is therefore entitled to deference. (Lenix,
supra, 44 Cal.4th at p. 614;
136.) The prosecutor’s explanations were
“‘“clear and reasonably specific.â€â€™â€ (
genuine and neutral, will suffice.’
[Citation.]†(
In this case, the prosecutor’s reasons were not trivial in light of the
circumstances of the case, and the totality of the record supports the trial
court’s ruling.
The record shows that Juror No. 1308 went to high school
in Southern California, lived in a gang area in South Central Los Angeles
claimed by the Neighborhood Crips, and had neighbors who were gang
members. Although this juror stated that
the word “gangs†brought to mind that “they’re typically violent, drugs, things
like that,†she nevertheless professed a degree of uncertainty and ignorance
about who among her neighbors was a gang member and which gang was on the
block. She also professed having no problems
with gang members because she did not engage with them. She stated that no one close to her had had a
negative experience with gangs. She
appeared to be evasive in her answer to a question about gang clothing and
characterized gang-banger dress as a “fashion choice[]†that did not capture
her attention. These characteristics
were unique to this juror.
The majority of the jurors whom the prosecutor did not
seek to excuse (Juror Nos. 1032, 2249,
5655, 3656, 2581, 0677, 1225, and 5356) had no experience with gangs, or
minimal experience. Juror No. 2487 had
little exposure to gangs outside of seeing graffiti and having concerns for her
children in high school. Another juror
(Juror No. 7662) said that the “gangs†in her area consisted of skateboarders. The jurors who did have exposure to gangs had
negative opinions of gangs and very positive opinions of the police, unlike
Juror No. 1308. Juror No. 4695 said he
had lived in Los Angeles all his life and had “see[n] a lot of gangs,†but
lived in a city where there was not “that kind of problems,†and the police do
a “great job.†Juror No. 8533 had gangs
and drug dealers in her city. Unlike
Juror No. 1308, she saw most gangs as problematic and believed that when one is
in a gang, one was going to do something that is not good. Although she was neutral in her attitude
toward the police, she credited their constant visits to her drug-dealing
neighbors as the reasons the neighbors were “booted out.†Juror No. 1009, the postal worker who saw
gang members every day on his route did not live in an area where there were
gangs, and, in his experience, the police did a “very good job.†Juror No. 6534 said he had always been in
areas with gangs, but he did not know any gang members, and he thought the
police did a good job. Finally, Juror
No. 9111 only knew gangs from the graffiti at his university and from his
university’s outreach to gangs. He had
frequent contact with the police and had no issues with them. Another factor cited by the prosecutor as a
reason for retaining certain jurors was the juror’s belief that the LAPD was
doing a fine job, unlike Juror No. 1308, who was “neutral†about both gangs and
the LAPD, despite living in a Neighborhood Crips neighborhood. The majority of the jurors retained by the
prosecutor expressed high approval of the LAPD, as we have noted in a few
instances ante. Eight of the 15 prospective jurors selected
to be jurors and alternates made laudatory comments about the police (Juror
Nos. 6534, 3656, 2487, 2581, 7662, 1009, 5356, 4695). Another juror (Juror No. 1032) stated that he
believed the LAPD had “improved a lot.â€
Juror No. 5655, who stated he was “ambivalent†and had no personal
negative feelings about the LAPD, did not go to high school in Los Angeles, and
his father had been a police officer in another state. Another who said the LAPD was “okay†later
explained that he said that because he had no experience with them. He later added that he had gone to high
school in New Jersey (Juror No. 1225).
Another who had “no impression†about the LAPD had moved here from New
York only two years before (Juror No. 0677).
had “no issues†with the LAPD and was aware of gangs from his university’s
outreach, had “quite a few†friends or acquaintances in law enforcement and had
frequent contacts with the LAPD. He
asserted he would not judge the LAPD witnesses based on one incident of
believed the police had not acted appropriately. Another juror who was “pretty neutral†about
the LAPD and had “[no] strong opinion one way or the other†(Juror No. 2249)
did not live in an area with strong gang presences and had no experience
“whatsoever†with gangs. He worked
closely with the police at his university.
Thus, even the jurors who did not outright praise the LAPD had different
backgrounds and lived in different circumstances compared to Juror No. 1308,
who stated she was “neutral†in her feelings about the LAPD. Although defendant argues that the trial
court did not rely on this factor in its ruling, “the trial court is not
required to make specific or detailed comments for the record to justify every
instance in which a prosecutor’s race-neutral reason for exercising a peremptory
challenge is being accepted by the court as genuine.†(People
v. Reynoso (2003) 31 Cal.4th 903, 919.)
Furthermore, the record affirms the prosecutor’s belief
that Juror No. 6198, who was of mixed race, had a liberal background that might
disfavor the prosecution.
name="_ftnref4" title="">[4] When asked about her knowledge of gangs, she
stated she was acquainted with gangs from living in Philadelphia and
Washington, D.C., but, much like Juror No. 1308, gangs were never a problem for
her. When asked how she felt about
gangs, she commented only that, in her world travels, she had encountered many
“gang tribes.†When asked what came to
mind for her when the word “gang†or “gang member†was mentioned in relation to
Southern California, this juror said, “nothing comes to my mind.â€
With respect to any similarities that might exist between
Juror No. 1308 and certain nonchallenged jurors, we bear in mind the
selection of a jury is a fluid process, with challenges for cause and
peremptory strikes continually changing the composition of the jury before it
is finally empanelled. As we noted in
1194: ‘[T]he particular combination or
mix of jurors which a lawyer seeks may, and often does, change as certain
jurors are removed or seated in the jury box.
It may be acceptable, for example, to have one juror with a particular
point of view but unacceptable to have more than one with that view. If the panel as seated appears to contain a
sufficient number of jurors who appear strong-willed and favorable to a
lawyer’s position, the lawyer might be satisfied with a jury that includes one
or more passive or timid appearing jurors.
However, if one or more of the supposed favorable or strong jurors is
excused either for cause or [by] peremptory challenge and the replacement
jurors appear to be passive or timid types, it would not be unusual or
unreasonable for the lawyer to peremptorily challenge one of these apparently
less favorable jurors even though other similar types remain. These same considerations apply when
considering the age, education, training, employment, prior jury service, and
experience of the prospective jurors.’
[Citation.]†(
We conclude that substantial evidence supports the trial
court’s ruling regarding the excusal of prospective alternate Juror No.
1308. It is “discernable from the record
that (1) the trial court considered the prosecutor’s reasons for the peremptory
challenges at issue and found them to be race neutral; (2) those reasons were
consistent with the court’s observations of what occurred, in terms of the
panelist’s statements as well as any pertinent nonverbal behavior; and (3) the
court made a credibility finding that the prosecutor was truthful in giving
race-neutral reasons for the peremptory challenges.†(Lenix,
supra, 44 Cal.4th at p. 625.) We therefore conclude the trial court did not
err by denying defendant’s Batson/
II. Juror’s Complaint About Fellow Juror
A.
Defendant’s Argument
Defendant contends the trial court
erred by failing to question a complaining juror who wrote a note to the trial
court about his discomfort with another juror’s abusive behavior. The court questioned only the foreman. As a result, defendant argues, prejudicial
misconduct very likely went undiscovered and unremedied. Defendant asserts that this Court must
reverse the judgment because the error undermined defendant’s Sixth Amendment
right to a fair and impartial jury, and it cannot be said that the error was
harmless beyond a reasonable doubt.
B.
Proceedings Below
of Friday, October 7, 2011. At the
beginning of the third day of deliberations, the trial court read a letter it
had received that morning. Juror No. 6
(Juror No. 5655) wrote: “Your Honor, I
am writing this note to bring your attention to some inappropriate behavior in
this jury room that made me feel threatened and not comfortable being in a room
with a certain individual. Juror No. 2
[Juror 1225] has twice now attacked me, personally shouting obscenities with
vitreal [sic] regarding something he accuses me of that I neither said
nor did, and also something completely unrelated to this trial. This is derailing our deliberation and making
me feel threatened to be in a room with him.
It is because of this erratic, delusional, abusive behavior that I
respectfully request this juror be replaced with one of our level-headed
alternates. Thank you for your
consideration. Respectfully, Juror
No. 6.â€
The court clerk told the trial judge that the foreperson
had mentioned that two of the jurors were not getting along and that it was
causing discord in the jury room. The
behavior had begun the previous Friday (the first day of deliberations). The trial court observed that the foreperson
was a dean of students at a major educational institution, and one of his
responsibilities is to make sure students “play nice with each other.†After determining with counsel the
appropriate answer to two jury queries, the trial court summoned the foreperson
(Juror No. 9/ 9111) to learn about the behavior issue. When asked if there was a “personality issueâ€
that was disrupting deliberations, the foreperson replied, “There has
been. Today has been okay.†The following dialogue ensued:
“COURT: So we’re okay? Okay.
Then please don’t discuss what we’ve just discussed with anybody else,
and we’ll—in a matter of
moments, I am going to send you a response to the two other questions.
[JUROR NO. 9]: Great.
COURT: So you don’t think we need to inquire into
this at all?
[JUROR NO.
9]: Again, I think today has been
fine. We did have some issues on Friday
afternoon and yesterday morning.
COURT: All right.
Given your professional position, since part of your responsibility, my
guess is that make sure people play nice with each other—
[JUROR NO. 9]: Uh-huh.
COURT: So we’re okay?
[JUROR NO.
9]: Uh-huh. Yes. And I just think there were some personality
differences that we’ve had to multiple times say that’s not part of what we’re
talking about, leave that alone. So I
think we’re okay.
COURT: I’m glad you’re our foreman.
[JUROR NO. 9]: Thanks.
After the
foreperson left the courtroom, the court stated, “There’s the old adage, let
sleeping dogs lie. So I don’t think I am
going to inquire on this any further, unless something else happens . . . .â€
C.
Relevant Authority
“[T]he court does have a
duty to conduct reasonable inquiry into allegations of juror misconduct or
incapacity—always keeping in
mind that the decision whether (and how) to investigate rests within the sound
discretion of the court.†(
436, 442.) “Since the court has power to
investigate and discharge jurors who refuse to adhere to their oaths, it may
also take less drastic steps where appropriate to deter any misconduct or
misunderstanding it has reason to suspect.â€
(People v.
A trial court does not have a duty
to investigate every possible instance of juror misconduct. (People
v. Hedgecock (1990) 51 Cal.3d 395, 419.)
“‘[N]ot every incident involving a juror’s conduct requires or warrants
further investigation. “The decision
whether to investigate the possibility of juror bias, incompetence, or
misconduct—like the ultimate decision to retain or discharge a juror—rests
within the sound discretion of the trial court.â€â€™ [Citations.]
‘“[A] hearing is required only where the court possesses information
which, if proven to be true, would constitute ‘good cause’ to doubt a juror’s
ability to perform his duties and would justify his removal from the
case.’†[Citation.]†(People
v. Martinez (2010) 47 Cal.4th 911, 942.)
A defendant is not entitled to such a hearing as a matter of right. (People
v. Dykes (2009) 46 Cal.4th 731, 809.)
D.
No Error or Abuse of Discretion
At the outset, we do not
agree with respondent that defendant has forfeited this issue on appeal. The trial court had the duty to conduct a
reasonable inquiry into juror misconduct consistent with defendant’s right to a
fair trial. (People v. Engelman, supra,
28 Cal.4th at p. 442].) “Accordingly,
because defendant’s claim is that the trial court erred by failing, sua sponte,
to conduct an adequate inquiry, no trial court action by the defense was
required to preserve the claim.†(
506-507.)
“[A] trial court’s inquiry into
possible grounds for discharge of a deliberating juror should be as limited in
scope as possible . . . .†(
466, 485.) The purpose of this rule is
to protect “the sanctity of the jury’s deliberations.†(Ibid.) We conclude the trial
court acted well within its discretion in deciding that no further inquiry was
necessary in this case. In order to
justify investigation, there must be more than mere speculation of juror
misconduct. The juror’s inability to
perform must appear as a “‘“demonstrable reality.â€â€™â€ (People
v. Williams (1997) 16 Cal.4th 153, 231.)
Here, defendant failed to show “‘a strong possibility that prejudicial
misconduct ha[d] occurred.’†(
582.) Juror No. 6’s letter conveying his
personal conflict with another juror over an issue that was “completely
unrelated to this trial†reflected just that—a personal discomfort with another
juror rather than any bias against defendant or an inability to fulfill his
duties as a juror. The trial court
appropriately questioned the foreperson and satisfied itself that the conflict
had abated and would not affect the deliberations. Asking the two jurors about the issue could
have only called attention to these concerns and risked an exaggeration of the
situation as well as a distraction for the entire jury. The trial court was in the best position to evaluate
the credibility of the foreperson, and we defer to its determination. (See People
v. Harris (2008) 43 Cal.4th 1269, 1305.)
We observe that the court’s question
to the foreperson as to whether any further inquiry was necessary was nothing
more than a request for the foreperson’s opinion. The trial court clearly respected this
juror’s opinion based on his profession and the skills it required, as well as
presumably this juror’s demeanor during voir dire. His solicitation of the foreperson’s opinion
was not, as defendant asserts, an abdication of the trial court’s duty. The trial court was well aware that the
sanctity of deliberations must be protected, and courts must act reasonably
when inquiring about potential misconduct.
(People v. Cleveland,
incident, or perhaps revived it. Juror
No. 6 wrote no further notes of complaint to the trial court, and after the
verdicts were rendered, he answered in the affirmative when asked to confirm
the verdicts and findings on the allegations.
People
v. McNeal (1979) 90 Cal.App.3d 830, on which defendant relies, is
inapposite. In that case, the foreman
wrote the trial court a note indicating that one of the jurors had personal
knowledge regarding the case and had stated it would have a bearing on her
vote. (Id. at p. 835.) Both the
defense and the district attorney requested interrogation of the juror. (Ibid.) The trial court insisted it would make no
inquiry on the factual basis of her knowledge, and it questioned the juror only
on the issue of whether or not she could freely and impartially
deliberate. (Id. at p. 836.) She
eventually said she would. (
The reviewing court determined that many of the juror’s comments to the
trial court and the foreperson created “something of a mystery.†(Id.
at p. 838.) The statements revealed a
situation that was complicated, provocative, and “mystifying,†and the trial
court should have ascertained the factual explanation for the juror’s remarks. (Ibid.) In the instant case, there is no indication
that improper or external influences were brought to bear on Juror No. 6, or
even on Juror No. 2. Juror No. 6
explained what Juror No. 2 was doing, even if he did not quote the actual words
used. He said the matter had nothing to
do with the case, a situation that the foreperson confirmed. People
v. McNeal does not aid defendant’s cause.
Outbursts and displays of temper in
the jury room are merely signs of heated debate, and they do not amount to
prejudicial misconduct that impeaches a verdict. (People
v. Keenan, supra, 46 Cal.3d at p.
541.) Defendant’s assertions are no more
than speculation, i.e., that an inquiry “likelyâ€
would have disclosed that the other juror had terrified the complaining juror
to the degree that his participation was stifled, and that the trial court
juror’s conduct prevented Juror No. 6 from being impartial. We disagree with defendant’s assertion that “
intimidated to the degree that his deliberations were improperly stifled. We conclude that the trial court did not
abuse its discretion, and its questioning of the foreperson satisfied its
obligation to investigate the possibility of juror misconduct while acting
within the limits to which such an inquiry must be confined. There was no substantial likelihood that
defendant’s Sixth Amendment rights
were violated, and reversal is not warranted under either the harmless error or
the reasonable probability standards. (
18; People v. Watson (1956) 46 Cal.2d
818.)
III. Enhancement Term in Count 3
A.
Defendant’s Argument
Defendant contends that, since the
jury did not find that he caused great bodily injury or death to Arana in the
commission of the crime charged in count 3, the court was authorized only to
impose an enhancement of 20 years for defendant’s personal use and discharge of
a firearm under section 12022.53, subdivision (c) in that count. It was not authorized to impose 25 years
under section 12022.53, subdivision (d).
Relevant Authority
In 2007, section
12022.53, subdivision (c) provided:
“Notwithstanding any other provision of law, any person who, in the
commission of a felony specified in subdivision (a), personally and
intentionally discharges a firearm, shall be punished by an additional and
consecutive term of imprisonment in the state prison for 20 years.†The felony of murder (§ 187) was listed in
section 12022.53, subdivision (a)(1).
Section
12022.53, subdivision (d) provided:
“Notwithstanding any other provision of law, any person who, in the
commission of a felony specified in subdivision (a), . . . personally and
intentionally discharges a firearm and proximately causes great bodily injury,
. . . or death, to any person other than an accomplice, shall be punished by an
additional and consecutive term of imprisonment in the state prison for 25
years to life.
Section 12022.53, subdivision (f)
provides, in relevant part: “Only one
additional term of imprisonment under this section shall be imposed per person
for each crime. If more than one
enhancement per person is found true under this section, the court shall impose
upon that person the enhancement that provides the longest term of
imprisonment. . . .â€
C.
Proceedings Below
In count 3, defendant was
charged with the attempted murder of Arana.
The second amended information shows that counts 1, 2 and 3 carried
allegations under section 12022.53, subdivisions (c), (d), and (e)(1).
During deliberations, the jury
queried why the jury instruction for intentional and personal discharge of a
firearm with proximate causation of great bodily injury or death (§ 12022.53,
subd. (d)) applied only to counts 1, 2, and 4, while at the same time the
verdict form for count 3 contained this allegation. (CALCRIM No. 17.19.5.) The trial court and the parties agreed that
the section 12022.53, subdivision (d) allegation should be stricken from the
verdict form for count 3. The only
remaining firearm allegations on the verdict form were pursuant to section
12022.53, subdivision (c)
name="_ftnref6" title="">[6] and 12022.53, subdivision (b). Nevertheless, at sentencing, the trial court
imposed an enhancement of 25 years to life for defendant’s personal use and
discharge of a firearm causing great bodily injury or death to Arana under
section 12022.53, subdivision (d).
Sentence Must be Modified
It appears that the trial court did not
intend to impose the enhancement pursuant to section 12022.53, subdivision (d),
but did so inadvertently. The trial
court should have imposed the enhancement pursuant to section 12022.53,
subdivision (c), the subsection on the verdict form that provided for the
longest term of imprisonment and whose validity was shown by the evidence. This enhancement consists of a 20-year term
rather than a 25-year term.
The record shows that the
trial court intended to impose the maximum possible
sentence. Moreover, the court had no discretion
to do otherwise, since the statute required the trial court to impose the
enhancement carrying the greatest punishment.
Therefore remand for resentencing is not necessary, and we will modify
the judgment. There is no reasonable
probability the trial court on remand would exercise any sentencing discretion
in appellant’s favor. (See
1783, 1792-1793 [where trial court clearly desired to impose maximum sentence,
remand is unnecessary]; People v. Burnes
(1990) 224 Cal.App.3d 1222, 1233-1234, disapproved on another point in
860, 872 [where trial court exercised its discretion and articulated its view
of the appropriate overall sentence, remand is unnecessary].)
The judgment is modified to strike the firearm
enhancement of 25 years to life under section 12022.53, subdivision (d), on
count 3 and to impose the firearm enhancement of 20 years under section
12022.53, subdivision (c), on that count.
As modified, the judgment is affirmed.
The superior court is directed to modify the abstract of judgment to
reflect a term of 20 years pursuant to section 12022.53, subdivision (c) in
count 3 and to forward a copy of the corrected abstract of judgment to the
Rehabilitation.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
CHAVEZ, J.
FERNS, J*
_______________________________________________________________
* Judge
of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6
of the California Constitution.
name="_ftn1" title="">[1] All further references to statutes are
to the Penal Code unless stated otherwise.
name="_ftn2" title="">[2] Defendant was tried along with
codefendant Amilcar Romero. The jury
deadlocked on the charges against Romero, and the trial court declared a
mistrial.
