P. v. Gonzales
Filed 8/13/13 P. v. Gonzales CA2/4
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 FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
ROBERT
GONZALES,
Defendant and Appellant.
B237860
(Los Angeles County
Super. Ct. No. NA072796)
APPEAL from a judgment of the Superior Court of
County, Stephen A. Marcus, Judge. Affirmed.
Deborah L. Hawkins, 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 Tannaz Kouhpainezhad, Deputy
Attorneys General, for Plaintiff and Respondent.
The People charged defendant Robert
Gonzales with the first degree murder
of Christopher Ash (Pen. Code, § 187, subd. (a)),
with three special circumstances allegations, an allegation of a personal use
of a deadly weapon (knife), and a gang enhancement. The jury acquitted him of first degree murder
but convicted him of second degree murder.
In addition, it found the gang enhancement (§ 186.22, subd.
(b)(1)(C)) to be true, but found the personal use of a knife enhancement (§
12022, subd. (b)(1)) not to be true. The
court sentenced him to a term of 15 years to life.
In this appeal, defendant raises two
contentions. The first is that the
evidence is insufficient to sustain his conviction for second degree
murder. The second is that the trial
court erred when it denied his motion for a new trial based upon a claim of
juror misconduct. We find no merit to either contention and
therefore affirm the judgment.
STATEMENT OF FACTS
A. THE PROSECUTION’S CASE
1. Factual
Overview
Defendant, among others, was convicted
of Ash’s murder. Ash was a 204th Street
gang member who was killed because fellow gang members believed he was a
“snitch†regarding the murder of Cheryl Green (Green) committed by 204th Street
member Jonathan Fajardo. In separate
proceedings, Fajardo, Daniel Aguilar and Raul Silva were also convicted of
Ash’s murder.
title="">[2]
2.
The Green murder occurred during the
afternoon of December 15, 2006, when Fajardo fired on a group of
African Americans gathered in the driveway of a home in Los Angeles.
Ernesto Alcarez, a member of the 204th Street gang, acted as lookout during the
shooting. Fajardo killed 14-year-old
Green and wounded three other individuals.
As part of the investigation of
Green’s murder, the police executed search warrants on December
21, 2006 at
eight residences of individuals connected to the 204th Street gang. Pursuant to warrant, Ash’s apartment was
searched. During that search, the police
escorted Ash and seven other individuals, including Aguilar, Alcarez, Fajardo
and Jose Covarrubias, out of Ash’s apartment.
The police arrested Alcarez and took Ash and Aguilar into custody for
questioning but later released the two men.
3.
Covarrubias, a member of the 204th Street gang and an accomplice in Ash’s
killing, was the key prosecution witness at defendant’s trial.
December 28, 2006 in the garage of the home belonging to Silva, a 204th
Street gang member.
a.
Covarrubias testified to the following
sequence of events. After the police had
searched the residences connected to 204th Street gang members on December
21, 2006,
rumors circulated that the 204th Street gang believed “somebody might be
snitching†about the Green murder. The
belief was grounded in the fact that no one except Alcarez had been taken into
custody following the search of Ash’s apartment.
During the late afternoon of December
28, 2006,
Covarrubias and four other 204th Street gang members (Silva,
Aguilar, Eugenio Claudio, and Christian Claudio) met for an hour at the Claudio
residence. Silva asked Covarrubias about
the December 21 search of Ash’s home and whether there was a “snitch†in the
gang. After awhile, the men (except for
Christian Claudio) decided to go to Silva’s home.
The men drove to Silva’s house and
entered the garage where defendant and an unidentified woman were present. This was the first time that Covarrubias had
met defendant. The woman stayed “for a
couple of minutes, and . . . left.â€
Later on, Fajardo and Juan Carlos Pimentel (also a member of the 204th Street gang) arrived.
Pimentel pulled Covarrubias aside and
asked him if he thought Ash was a snitch and was keeping a journal about their
gang’s activity. Covarrubias said that
he believed Ash was a snitch and that he had heard about the journal. Pimentel then had a private conversation with
Aguilar.
Thereafter, all seven men, including
defendant, gathered together and discussed the matter. Pimentel stated: “[W]e’re gonna take care of Christopher Ash
because of some snitching.†In front of
the entire group, Pimentel told Covarrubias to follow his (Pimentel’s) lead
when Ash arrived at the garage and “tear up†Ash’s “body.†Defendant, along with the other men, nodded
his head up and down during this discussion.
Everyone agreed that Ash would be brought to the garage and killed. The men decided that because Ash trusted
Aguilar the most, Aguilar would bring Ash to the garage. Defendant offered to drive Aguilar to pick up
Ash.
Before defendant and Aguilar left,
defendant gave both Covarrubias and Pimentel a knife.
Ash would be killed when he was brought to the garage.
After approximately 20 minutes, defendant
and Aguilar returned to the garage with Ash.
of a shotgun. Ash stumbled forward and
yelled: “What the fuck? I’m not a snitch.†Defendant, Aguilar, Silva, and Claudio rushed
forward and began to punch Ash. Pimentel
told everyone to calm down, walked Ash toward a Pepsi machine, and stabbed Ash
in the neck. Ash fell and Pimentel
stabbed him in the chest. Covarrubias
stabbed Ash in the stomach four or five times but then vomited and dropped the
knife. Defendant “pushed [Covarrubias]
to the side,†picked up the knife and rapidly stabbed Ash “a lot of times†in
the stomach. When defendant finished
stabbing Ash, Pimentel turned Ash over and “stabbed him one good time in his
back.â€
Silva retrieved a tarp and blanket and
the men wrapped Ash’s body in it.
Everyone, including defendant, loaded Ash’s body into a van. Fajardo and Pimentel left in the van. Five of the men, including defendant, stayed
behind to clean the garage, using water and paint thinner, and to dispose of
blood soaked items, including the two knifes used to kill Ash.
b.
Subsequent Police Investigation
The police discovered Ash’s body later
that evening, approximately a mile and a half from Silva’s home. Ash died of multiple stab wounds, 11 to the
chest and 32 to the abdomen. Blood in
Silva’s garage and in the van used to transport Ash’s body matched Ash’s blood.
On February 7, 2007, Deputy Sheriff Ferguson and
Sergeant Rodriguez interviewed defendant
about Ash’s murder. A recording of the
interview was played to the jury. In
that interview, defendant gave inconsistent and false statements about the
events of December 28.
name="_ftnref9" title="">[9] First, he stated he “definitely wasn’t†at
Silva’s home that evening; that he had “never seen†Ash; that he had no
knowledge about Ash’s murder; and that he had never met Covarrubias or
Aguilar. Then, he conceded that he had
seen Ash on December 28 at Silva’s residence and that “a murder went down†but
claimed that he “was there, but [he] wasn’t present†because he was inside of
the house. He asserted that he had not
participated in the murder (including the stabbing of Ash), the cleaning of the
crime scene or the loading of Ash’s body into the van and had not seen anyone clean
up blood in the garage. But later in the
interview, defendant admitted that he had heard the men talk about identifying
a snitch; that he, along with Aguilar, had picked up and driven Ash to the
garage; and that when he, Aguilar and Ash returned to the garage, someone hit
Ash with a stick. At that point,
defendant claimed that he left the garage for the house. When he returned later, he saw the men
cleaning the garage. He realized that a
murder had been committed. He knew that
three of the men were members of the 204th Street gang and the murder was “a 204
thing.â€
4. Gang
Evidence
Los Angeles County Deputy Sheriff Mark
Wedel, a gang expert, testified about the Fries Street gang. The gang, a subset of the Carson 13 gang,
existed until the early 2000’s. Its
activities included commission of burglaries and robberies. Two men involved in Ash’s murder had been
members of the Fries Street gang: defendant and Silva. In 1996 and 1997, defendant admitted
membership in the gang and Silva admitted membership in 1999, 2002, and
2004. The territory and membership of
the Fries Street gang were “pretty small.†The Silva residence at which Ash was murdered
was within that territory. In Deputy
Wedel’s opinion, it would not be surprising for a member of the Fries Street gang to kill a snitch to prevent him
from testifying in a serious case.
Sergeant Daniel Robbins of the Los
Angeles Police Department testified as an expert about the 204th Street gang. In 2006, the gang had approximately 100
members. Its primary activities included
community intimidation, attempted murder and murder. When he arrested defendant on December
30, 2006,
defendant “said he was from Fries.â€
Sergeant Robbins had no opinion as to whether defendant was a member of
the 204th Street gang but the sergeant knew of at least one member of
the Fries Street gang (John Martin) who later joined the 204th Street gang. Further, Sergeant Robbins believed that
Silva—who in the past had admitted he was a member of the Fries Street gang—was, by December 2006, a member
of the 204th Street gang. (In Sergeant Robbins’ opinion, the Fries Street gang was “defunct†in 2006.)
The prosecutor, utilizing the evidence
presented at trial, posed a hypothetical question to Sergeant Robbins as to
what, in his opinion, motivated the December 28 group murder of Ash.
was “motivated for two reasons: for the
protection of the 204th Street gang and for the protection of some
of its members†and that the murder was committed “to advance the interests†of
the 204th Street gang because a gang needs to eliminate snitches. Sergeant Robbins further believed that
defendant had “act[ed] to benefit 204th Street by helping to kill Christopher
Ash†even if he was not a member of the 204th Street gang. He explained that, in his opinion, an
individual “can help a gang even without necessarily being [a] documented
member[] of it.†“[I]f he’s [defendant’s]
there, whether he was in a gang or not, he was there to benefit the 204th Street gang.â€
B. THE DEFENSE CASE
Defendant testified on his own
behalf, denying membership in the 204th Street gang and any involvement in Ash’s
murder.
According to defendant, he had been a
member of the Fries Street group, “a group of kids†that “justâ€
“hung out on†Fries Street in “the late ‘90s.†At that time, the group had, at most, 10
members. Defendant “wouldn’t necessarily
say Fries Street is a gang.†By
2006, when defendant was 29, he and Silva were the last remaining members of Fries Street.
Defendant was also a member of RSK, a tagging crew. Defendant was never a member of the 204th Street gang and did not “hang out on a
regular basis†with its members.
Defendant and Silva were “best friends,†having known each other for the
last 17 years. Defendant knew that two
of Silva’s brothers were members of the 204th Street gang and that members of the gang
“h[u]ng out†at the Silva residence.
According to defendant, the Fries Street group and the 204th Street gang were “tolerable of each other,â€
“the two groups could get along.â€
In December 2006, defendant was living
with Silva. Prior to December
28, 2006,
defendant had met Fajardo and Pimentel but not Aguilar, Covarrubias, or
Ash. He knew that Pimentel, whom he had
met five times, was a member of the 204th Street gang. On December 28, defendant was in Silva’s
garage with a women he identified only as “Trisha,†“just hanging out.†After 20 to 30 minutes, Aguilar, Silva,
Claudio and Covarrubias arrived.
Defendant stayed and spoke with the men but, at some point, began to go
back and forth from the garage to his car because he was in the process of
removing his belongings from the Silva residence. Defendant heard the men say “that they were
looking for somebody that was telling on something†and that “somebody was
snitching†but he did not hear a conversation about anyone being stabbed. Defendant did not give a knife to either
Pimentel or Covarrubias. At one point,
Aguilar asked defendant “to give him a ride to pick up his friend [Ash].†Defendant agreed to do so. Aguilar never told defendant why he wanted to
bring Ash to Silva’s garage.
When defendant, Aguilar and Ash
returned to Silva’s garage, defendant saw someone hit Ash in the back of the
head with an object. At that point, defendant
“knew it was none of [his] business, whatever was going on; so [he] just leftâ€
the garage and went into the Silva residence.
Defendant never participated in assaulting Ash, either with his fists or
a knife and never again saw Ash after he (defendant) left the garage.
Once defendant was inside the Silva
residence, he went to Silva’s bedroom where he visited with Silva and “Trishaâ€
for “at least a half hour.â€
name="_ftnref12" title="">[12] When defendant returned to the garage, there
was “water everywhere.†In light of that
fact and how “Covarrubias and Aguilar were acting at the time†by cleaning up
the garage, defendant knew “that something happened.†Defendant, who denied participating in either
cleaning the garage or disposing of Ash’s body, left the Silva premises.
When asked why Covarrubias would
falsely accuse him of participating in Ash’s murder, defendant opined: “I think he would be pointing me out as
somebody being a participant in that because . . . he doesn’t really care . . .
if anything was to happen with me because he doesn’t know me. And he knows that I’m not from 204th Street; so it wouldn’t be nothing really to
him. That’s what I think.â€
JURY INSTRUCTIONS
The trial court submitted the pattern
CALJIC instructions defining murder, malice aforethought, and first degree
murder. (CALJIC Nos. 8.10, 8.11, 8.20,
8.25.) Further, the court instructed on
two theories of second degree murder:
(1) a homicide committed with malice aforethought but without
deliberation and premeditation and (2) a homicide that is the natural and
probable consequence of an intentional act (in this case either assault with a
deadly weapon or intimidating a witness by force) committed with conscious
disregard for human life. (CALJIC Nos.
8.30, 8.31 & 9.00.) In addition, the
pattern instructions about aiding and abetting were submitted. (CALJIC Nos. 3.00, 3.01 & 3.02.)
DISCUSSION
A. SUFFICIENCY OF THE EVIDENCE
Defendant contends that the evidence
is insufficient to sustain his conviction for
him of second degree murder instead of first degree murder, “necessarily
rejected Mr. Covarrubias’ testimony that [defendant] was part of a group that
agreed to kill Christopher Ash for snitching before [defendant] left with Mr.
Aguilar to pick [Ash] up.†Defendant
further argues that “[n]o jury could have reached a second degree murder
conviction based upon the testimony of Mr. Covarrubias, who was clearly out to
pin the murder on [defendant] to preserve the benefit of his bargain with the
prosecution.†Relying upon a few
inconsistencies and discrepancies in Covarrubias’ testimony (see fns. 6 & 8, ante), defendant claims that the “jury did not believe Mr.
Covarrubias and did not convict [defendant] based upon his testimony,†and that
the “second degree murder verdict indicates the jury proceeded under the theory
that Mr. Ash’s death was a natural and probable consequence of an assault or of
intimidation of a witness.†Defendant
then proceeds to argue, based upon a one-sided and selective presentation of
the evidence, that he did not know that “an assault or witness intimidation was
the reason [he and Aguilar] picked up Mr. Ash†so that “there was no evidence
that [he] intended to aid and abet an assault or intimidation of a
witness.†From that, defendant concludes
that “the evidence did not prove [him] guilty of second degree murder beyond a
reasonable doubt.â€
Defendant’s approach is not persuasive. To begin, his assumption that the jury’s
acquittal on the first degree murder charge means that the jury rejected the
entirety of Covarrubias’ testimony and that we cannot rely upon that testimony
in reviewing his contention of insufficient evidence is not correct. It is well settled that the jury can accept a
portion of a witness’ testimony while rejecting another portion of it. (People
v. Maxwell (1979) 94 Cal.App.3d 562, 574-575; see also CALCRIM No. 105 [the
jury “may believe all, part, or none of any witness’s testimony.â€].)
Because it is the exclusive province
of the jury to determine a witness’ credibility, the jury’s (implied)
acceptance of a portion of Covarrubias’ testimony is binding upon us unless
that testimony was inherently improbable.
(People v. Ennis (2010) 190
Cal.App.4th 721, 728-729.) But defendant
does not urge that Covarrubias’ testimony was inherently improbable. Instead, defendant relies upon Covarrubias’
purported motive to fabricate (the plea bargain, see fn. 3,
discrepancies in his testimony (see fns. 6 & 8, ante) to argue, as he did in the trial court, that Covarrubias’
testimony was not credible.
name="_ftnref13" title="">[13]
Defendant’s attempt to reargue the
evidence on appeal must fail because “it is not a proper appellate function to
reassess the credibility of the witnesses.â€
(People v. Jones (1990) 51
Cal.3d 294, 314-315.) “Resolution of
conflicts and inconsistencies in the testimony is the exclusive province of the
trier of fact. [Citation.]†(People
v. Young (2005) 34 Cal.4th 1149, 1181.)
We therefore assume that the jury believed that portion of Covarrubias’
testimony that supports the judgment. (
169, 173.) We view that evidence in the
light most favorable to the judgment and presume the existence of every fact
that the jury could reasonably infer from it.
(People v. Medina (2009) 46
Cal.4th 913, 917.) With those principles
in mind, we turn to the issue of substantial evidence to sustain the second
degree murder conviction.
As noted earlier, the jury was
properly instructed about the two theories of second degree murder raised by
the evidence: (1) a homicide committed
with malice aforethought but without deliberation and premeditation (2) a
homicide that was the natural and probable consequence of aiding and abetting
an assault with a deadly weapon or witness intimidation. The jury’s general verdict convicting
defendant of second degree murder does not, of course, disclose upon which of
the two theories it relied. A reviewing
court may sustain a general verdict of guilty on any one of the theories upon
which the jury was properly instructed as long as substantial evidence supports
the theory. (People v. Curtin (1994) 22 Cal.App.4th 528, 531.) In this case, we explain below that
substantial evidence supports the theory of second degree murder based upon the
theory of a homicide committed with malice aforethought. We therefore need not determine whether the
evidence supports the verdict on the theory of a homicide that was the natural
and probable consequence of aiding and
abetting an assault with a deadly weapon or witness intimidation. (See, e.g., People v. Memro (1985) 38 Cal.3d 658, 695.)
Second degree murder is the unlawful
killing of a human being with malice aforethought. (§§ 187, subd. (a), 189.) Malice may be express or implied. (§ 188.)
Express malice is “a deliberate intention unlawfully to take away the
life of a fellow creature.â€
(§ 188.) Implied malice
exists when the defendant deliberately commits an act naturally dangerous to
human life knowing “‘that his conduct endangers the life of another and who
acts with conscious disregard for life.’â€
(People v. Lasko (2000) 23
Cal.4th 101, 107.)
As explained above, defendant’s
argument that the jury’s acquittal of the first degree murder charge meant that
it rejected all of Covarrubias’ testimony is incorrect. The acquittal meant only that the jury found
that the People had failed to prove first degree murder beyond a reasonable
doubt. Here, the jury was instructed
that a defendant commits a second degree murder when he kills with malice
aforethought “but the evidence is insufficient to prove deliberation and
premeditation.†(CALJIC No. 8.30.)
The jury, coupling some
inconsistencies in Covarrubias’ testimony (see fns. 6 & 8,
have concluded that the People failed to prove that by the time defendant left
the garage with Aguilar to pick up Ash, defendant had heard or participated in
the conversation(s) in which the other men agreed to kill Ash and/or had given
both Covarrubias and Pimentel a knife.
On that basis, the jury could have acquitted defendant of first degree
murder. But after reaching that verdict,
the jury, relying upon the remainder of Covarrubias’ testimony,
reasonably could have concluded that after defendant, Aguilar and Ash returned
to the garage and Fajardo hit Ash on the back of the head with the butt of a
shotgun, defendant joined in the fatal
assault upon Ash by stabbing him multiple times.
stabbed Ash in the neck and chest and Covarrubias had stabbed Ash in the
Defendant’s role as one of the three
men who stabbed Ash to death constitutes more than ample evidence that
defendant acted with malice: either
express (intent to kill) or implied (an action taken in conscious and knowing
disregard of life). We therefore find
that substantial evidence supports
defendant’s second degree murder conviction.
B.
MOTION FOR A NEW TRIAL
Defendant moved for a new trial based
upon juror misconduct. He offered
declarations from two jurors that the jury had received and considered evidence
not presented at trial: information
about the convictions and sentences of Aguilar and Fajardo. The trial court found that this constituted
juror misconduct that created a rebuttable presumption of prejudice. An evidentiary hearing was conducted at which
nine jurors testified. Two testified
that misconduct had occurred but the other seven denied any misconduct. In addition, affidavits were submitted from
the three remaining jurors, each of whom averred that no misconduct had
occurred. In a detailed and thoughtful
ruling, the trial court found that the two jurors who alleged misconduct were
not credible but that the ten jurors who denied misconduct were believable. On that basis, it concluded that extraneous
information had not been presented to
the jury; thus, no misconduct had occurred.
In addition, it found that even if that information had been presented,
there was no substantial likelihood that one or more of the jurors had been
biased by it. The trial court therefore
denied the new trial motion.
Defendant now contends that the trial
court erred when it denied his new trial motion. We disagree.
1. Factual
and Procedural Background
a. Motion
to Release Juror Information
After the jury returned its verdict on
May 3, defendant sought release of juror information to support a new trial
motion based upon the claim that the jury had improperly considered extraneous
information during deliberations. Defendant
included affidavits from two jurors:
Nos. 6 and 11. Each averred that
during deliberations, other jurors (either two or three) had stated that they
had learned from newspaper articles that Aguilar had been sentenced to life
without the possibility of parole and that Fajardo had been sentenced to
death. The trial court found good cause
to contact the remaining jurors. It
ruled that the defense had made “a showing that there is juror misconduct, and
that raises a rebuttable presumption of prejudice,†and, as a result, ordered
an evidentiary hearing.
b. The
Evidentiary Hearing
At the evidentiary hearing, nine
jurors testified: Juror Nos. 6 and 11
supported the claim of misconduct and seven other jurors testified that no
misconduct had occurred. The particulars
are the following.
i. Evidence
of Juror Misconduct
Juror No. 6 testified to one
incident. During deliberations, Juror
Nos. 7 and 12 told the jury that they had read articles about the sentences the
co-defendants had received and that “they felt that the defendant was guilty, too.†Juror No. 6 testified: “One of [the two jurors] said one of them got
life, and I don’t remember the other one.â€
The conversation lasted “probably two minutes.†The conversation was “loud enough that
everybody could hear it.†Juror No. 6
concluded: “I just didn’t think in the
deliberation room that it was fair.â€
Juror No. 6 testified that he recognized then that this constituted
misconduct but explained that he did not report it to the trial judge “because
we were right at the end of deliberations,†“maybe 20 minutes.â€
Juror No. 11 testified as
follows. After the trial concluded, she
and Juror No. 6 had a discussion with defense counsel that led to her writing a
letter to the court.
name="_ftnref16" title="">[16] The three-page typed letter, dated May 12,
2011 (nine days after the trial ended), explained that she was “very troubled
by the outcome of this trial.†But in
the letter she made no claim that the jury had improperly received information
about the convictions or sentences of two of defendant’s accomplices. Instead, the letter launched a broadside
attack on her fellow jurors. She accused
two of being “flagrantly racist,†stated one slept “through half the
testimony,†claimed another “did not know sufficient English to understand the
nuances†of the trial or jury deliberation, asserted others “completely ignored
the concept of ‘reasonable doubt,’†and averred another was biased. Further, she suggested defense counsel
provided ineffective representation. She
hoped the trial court would impose “the absolute minimum [sentence]†on
defendant. She believed defendant “could
be rehabilitated,†offered “to help him at least get his GED,†and explained
that Juror No. 6 had “offered to get [defendant] employment upon his release.†Lastly, Juror No. 11 had “reached out†to
legal counsel at Homeboy Industries “for advice†and hoped defendant would “get
a good appeal attorney.â€
After Juror No. 11 sent her letter to
the court, defense counsel contacted her.
Thereafter, she signed the affidavit submitted in support of the request
to release juror information in which she alleged that the jury had received
extraneous information.
At the hearing, Juror No. 11 testified
to four instances of misconduct. The
first occurred during the second day of jury selection: the individual who was ultimately seated as
Juror No. 12 told her in the hallway (with no one else around) that the trial
of Aguilar and Fajardo had concluded the previous week. The second occurred during jury deliberation: Juror No. 12 stated that Aguilar “had received
life in prison†and that Fajardo “had gotten murder one, capital.†The third occurred “[a] little bit laterâ€
when Juror No. 7 and the foreman discussed “Aguilar’s conviction and the
implications on [defendant’s] conviction.â€
Juror No. 11 characterized it as “a very heated conversation†in which
the foreman argued that because “Aguilar was guilty, . . . therefore
[defendant] had to be guilty because there’s no way that they could have driven
to Mr. Ash’s house and not discussed what was going to happen.†She opined that “at least eight†jurors heard
this discussion. The fourth instance of
misconduct was a “very abbreviated†and “incomplete†conversation with Juror
No. 12 concerning a newspaper article about the co-defendants’ trial. When asked why she had not brought any of
these instances to the court’s attention during the trial, Juror No. 11
replied: “My impression actually was
that our foreman was the only person who was allowed to speak to the bailiff [who,
in turn, would relay the information to the trial judge]. We were supposed to talk to our foreman, who
was supposed to convey anything [but he] was very arbitrary and difficult to
deal with. [And] I also felt very
intimidated in the deliberations room.â€
When the prosecutor asked Juror No. 11
why her letter of May 12 did not raise any issue about the jury’s receipt of
extraneous information, she replied:
“That was not the purpose of the letter.
[¶] . . . [¶] I
was concerned about what would be [defendant’s] future, not so much about this
trial that had already taken place, but what would be the results.†And when the court asked Juror No. 11 “Would
it be fair to say . . . that you were acting as an advocate in the letter?â€,
she replied: “Yes. I felt that there certainly wasn’t one in the
jury room.â€
ii. Evidence
that No Juror Misconduct Occurred
Juror No. 1 testified that no one had
discussed the co-defendants’ trial, verdicts or sentences during
deliberations. In addition, Juror No. 1
signed an affidavit averring: “I am not
aware of any juror in this case having sought information from any source
concerning co-defendants in this case.
Neither the verdicts nor the sentences of any co-defendants entered our
deliberations. . . . No outside
information, outside the evidence from the trial, entered our deliberations.â€
Juror No. 3 testified that no juror
ever mentioned having read a newspaper article about the case. In regard to the deliberations, Juror No. 3
testified that no juror brought in information about the conviction or sentencing
of any co-defendant and that, in particular, no one said (as Juror No. 11 had
claimed) that defendant was guilty because a co-defendant had been found guilty
in another trial. In addition, Juror No.
3 signed an affidavit that “no juror introduced any outside information
regarding the trials of any co-defendant.â€
Juror No. 7 testified that during
deliberations, there was no mention of
the co-defendants’ convictions or sentencing. During defendant’s trial, he never read any
articles about the co-defendants’ trial or learned of its outcome. Juror No. 7 signed an affidavit
averring: “No juror mentioned any
information from any outside source concerning any co-defendant in this case
during deliberations. I am not aware of
any juror having Googled or otherwise sought information concerning this case
from any outside source. No outside
information (from outside the evidence presented) concerning Gonzales’
co-defendants was mentioned during deliberations or in the courthouse or
anywhere else during the trial by any juror.â€
Juror No. 8 testified that at no point
during deliberations was there any discussion about the co-defendants’
convictions or sentences. He further
testified that during the deliberative process, he never “c[a]me across†any
article about the co-defendants’ trial and was not aware that any juror had
“sought†that “information.†Juror No. 8
signed an affidavit averring: “No juror
to my knowledge sought or introduced or spoke of any conviction or sentencing
of any co-defendant. The subject of
conviction and/or sentencing of co-defendants did not enter our deliberations.â€
Juror No. 9 testified that during
deliberations, the co-defendants’ convictions and sentences were not mentioned
and that no one “ever [said] that [defendant] must be guilty because Aguilar
must have discussed the purpose of picking up Ash with [defendant].†Juror No. 9 signed an affidavit
averring: “I am not aware of any juror
having sought information on the Internet concerning this case.â€
Juror No. 10 testified that she did
not know the co-defendants’ sentences during deliberations and that none of the
jurors mentioned the co-defendants’ convictions or sentences during
deliberations. Juror No. 10’s affidavit
averred: “No juror, to my knowledge
introduced any outside information about the conviction or sentencing of any
co-defendant during deliberations.â€
Juror No. 12 testified that neither
before nor during trial did he “come across†any information about the
co-defendants’ trial or sentences and that none of the jurors mentioned the
co-defendants’ convictions or sentences during deliberations. He denied having made, either during trial or
deliberations, any statements about the co-defendants’ convictions and sentences. He conceded that he had spoken to Juror No.
11 during jury selection but testified that the conversation was only about the
Green killing because “that was discussed in the court here.†Juror No. 12’s affidavit averred: “I am not aware of any juror seeking or
receiving information from any source concerning the convictions or sentencings
of any co-defendant. The subjects of
conviction and sentencing of co-defendants did not enter deliberations.â€
Lastly, affidavits from the three
remaining jurors were introduced. Juror
No. 2 averred:
“I am
not aware of any juror having sought any information from any source concerning
the conviction or sentencing of any co-defendant in this case. The issue of the convictions and sentencings
of co-defendants did not arise during deliberations.â€
Juror No. 4 averred:
“No
juror, to my knowledge, sought or discussed the verdict or sentencing of any
co-defendant in this case. Those issues,
the verdict and sentencing of co-defendants, did not arise during
deliberations.â€
And Juror No. 5 averred:
“No
one, no juror introduced any outside information relating to any co-defendant,
including but not limited to defendants Aguilar and Fajardo. No juror introduced information from any
outside source, including Google, concerning the verdict or sentencing of
defendants Aguilar or Fajardo, or any other co-defendant.â€
c. The
Trial Court’s Ruling
The trial court ruled that “[a]fter
reviewing the evidence in the evidentiary hearing as well as the affidavits
filed, the court has decided that the prosecution has made an affirmative
evidentiary showing that juror misconduct did not occur and, if the misconduct
did occur, that there was no prejudice to the defendant.â€
The court found Juror No. 11’s
“credibility to be somewhat lacking because she evidenced a partiality towards
the defendant and had buyer’s remorse about her decision to vote a guilty
verdict in this case. By her own
admission, Juror 11 has attempted to be an advocate for defendant Gonzales.†After setting forth multiple reasons why
Juror No. 11 lacked credibility, the court stated: “This lack of neutrality as well as her demeanor in court has made me not credit her
statements about what happened during deliberations. This is especially true when compared against
the affidavits and evidentiary evidence that was offered by the People.†(Italics added.)
In regard to Juror No. 6, the court
stated: “I believe that Juror No. 6 also
has an agenda and is somewhat biased towards the defense. [¶] .
. . I do believe that Juror 11 and Juror
6 . . . entered into some kind of alliance to help [defendant] because they
were not happy with the verdict despite having voted for it themselves.†Juror No. 6’s “willing[ness] to give
[defendant] employment upon his release from prison . . . goes beyond a normal
role a juror would play and calls into question Juror No. 6’s neutrality.†The court noted that it is “possible to
conclude that [Jurors Nos.] 6 and 11, through the prism that they were looking
at these deliberations, saw more than what happened.â€
In addition, the court noted that both
Jurors Nos. 6 and 11 testified that the other jurors heard the extraneous
information about the co-defendants’ convictions and sentences but that the 10
other jurors denied that ever happened.
The court explained: “[T]hese two
assertions of what happened in the jury room in the jury deliberations cannot
coexist. And I choose to find, based on
the credibility and the questions asked of the testifying witnesses, the sheer
weight of the testifying jurors, the three jurors who provided affidavits, that
the seven jurors that testified here – I found them to be credible.â€
The court concluded that “the strength
of evidence supporting misconduct is very weak and that the People have
provided affirmative evidence supporting that no misconduct occurred,
overcoming the presumption of prejudice.â€
In addition, the court found that even if the jury had been exposed to
the information about the convictions and sentences of Aguilar and Fajardo,
there was no substantial likelihood that any juror was biased by the
information.
title="">[17] The court therefore denied defendant’s new
trial motion.
d.
Determination of a new trial motion
based upon a claim of juror misconduct involves a multi-step approach. First, the trial court determines whether the
affidavits supporting the motion are admissible. If it finds that the evidence is admissible,
it next determines whether it establishes misconduct. If it does, a rebuttable presumption of
prejudice arises. The burden then shifts
to the People to rebut the presumption of prejudice. (People
v. Hord (1993) 15 Cal.App.4th 711, 724.)
In this case, defendant’s assertion of
juror misconduct was based upon the claim that the jury improperly received
information about his co-defendants’ convictions and sentences. “A juror’s receipt or discussion of evidence
not submitted at trial constitutes misconduct.â€
(People v. Dykes (2009) 46
Cal.4th 731, 809.) Here, the trial court
found, based upon the initial defense
showing, that juror misconduct had occurred that was presumptively
prejudicial. At that point, it became
the People’s burden to rebut the presumption of prejudice. One manner in which the presumption can be
rebutted is “‘by an affirmative evidentiary showing that prejudice does not
exist’†because the misconduct, in fact,
never occurred. (
evidentiary hearing. The trial court
disbelieved the claim of Jurors Nos. 6 and 11 that the jury received and
considered information about the co-defendants’ convictions and sentences. Based upon that credibility determination,
the court found that no misconduct had occurred. We must accept the trial court’s factual
findings and credibility determinations if supported by substantial
evidence. (People v. Dykes, supra, 46 Cal.4th at p. 809.)
In this case, substantial evidence
supports the trial court’s determination that Juror Nos. 6 and 11 were not
credible. We begin with Juror No.
11. Nine days after the trial ended, she
sent a three-page letter to the trial judge setting forth multiple concerns
about the trial. Significantly, the
letter contained no mention of the jury’s receipt of outside information. Further, although Juror No. 11 testified to
four purported instances of misconduct, she never brought any of the incidents
to the trial judge’s attention during trial.
In addition, as conceded by her testimony, she was an “advocate†for
defendant, and based upon her representations in her May 12 letter, sought to
help him in multiple ways. Lastly, 10
jurors disputed her claim that the jury had received or considered evidence not
submitted at trial. In particular, both
Juror No. 12 (the individual whom she testified had introduced the extraneous
information into the jury room) and Juror No. 7 (the individual whom she had
claimed discussed the implication of Aguilar’s conviction on defendant’s case)
denied any misconduct. On this record,
the trial court did not abuse its discretion in finding that Juror No. 11’s
claim of misconduct was not credible.
As for Juror No. 6, his impartiality
was called into question by his willingness to give defendant a job upon
release from prison. Further, the trial
court was not required to credit Juror No. 6’s explanation that he did not
immediately notify the court about the purported receipt of extraneous
information because deliberations were almost over, given that he testified
that he recognized misconduct had occurred and did not think that “it was
fair.†And, as with Juror No. 11, the
ten other jurors—including the two he accused of misconduct (Jurors Nos. 7
& 12)—all directly contradicted Juror No. 6’s assertion of misconduct. Given these circumstances, the trial court’s
finding that Juror No. 6 was not credible is more than amply supported by the
record.
In sum, the trial court did not abuse
its discretion in finding, after having conducted the
rebutted the presumption of prejudice by establishing that no outside
information had been brought to the attention of the jury. (People
v. San Nicolas (2004) 34 Cal.4th 614, 651.)
Defendant’s arguments for a contrary
conclusion essentially rehash the arguments he unsuccessfully advanced in the
trial court. It is not our role to
reweigh the credibility of the jurors after the trial court has made its
findings, particularly since the trial court observed the demeanor of nine
jurors and questioned many of them at the evidentiary hearing. (People
v. Dykes, supra, 46 Cal.4th at p. 809.)
Because the record more than amply supports the trial court’s finding
that no misconduct occurred, it is not necessary for us to examine the trial
court’s further ruling that even if the extraneous information had been
introduced, there was no substantial likelihood that any of the jurors had been
biased as a result. (See fn. 17,
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
Acting P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.
undesignated statutory references are to the Penal Code.
Fajardo, Aguilar and Silva were jointly charged. Aguilar and Fajardo were tried together. Aguilar was convicted of Ash’s first degree
murder and sentenced to life without the possibility of parole. We affirmed his conviction in
B227935. Fajardo was convicted of the
first degree murders of Green and Ash and was sentenced to death. In a separate proceeding, Silva was convicted
of Ash’s first degree murder. We
affirmed his conviction in People v.
Silva (Feb. 27, 2013) B236916.
In this case, the
trial court submitted CALJIC No. 2.11.5 (“Unjoined Perpetrators of Same Crimeâ€)
to the jury at the close of trial.
