People v. Laws CA5 ( 2023 )

Filed 1/24/23 P. v. Laws CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081267
Plaintiff and Respondent,
(Super. Ct. No. BF165010A)
v.
ANTHONY JEROME LAWS, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Michael E.
Dellostritto, Judge.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A.
White, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
STATEMENT OF THE CASE
On July 25, 2019, an amended information charged Anthony Jerome Laws
(appellant) with 14 counts, as follows: in count 10, murder (Pen. Code, § 187, subd. (a))1;
in counts 1, 3, and 11, attempted murder (§§ 664/187, subd. (a)); in count 12, conspiracy
to commit murder (§ 182, subd. (a)(1)); in counts 2 and 7, shooting at a motor vehicle
(§ 246); in counts 4, 5, and 6, assault with a semi-automatic firearm (§ 245, subd. (b)); in
counts 8, 9, and 13, possession of a firearm by a felon (§ 29800, subd. (a)(1)); and in
count 15, with participation in a criminal street gang (§ 186.22, subd. (a)).2 As to all
counts, it was alleged appellant had a prior strike (§ 667, subds. (c)-(j)), a prior serious
felony (§ 667, subd. (a)), and two prison priors (§ 667.5, subd. (b)). As to counts 1
through 13, it was alleged appellant committed the offenses for the benefit of, at the
direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). As to
counts 1, 3, 10, 11, and 12, it was alleged that the crimes were willful, deliberate, and
premeditated (§ 189). As to count 10, it was alleged that the murder was committed
while appellant was an active participant in a criminal street gang (§ 190.2, subd.
(a)(22)). As to counts 8, 9, 13, and 15, it was alleged appellant had inflicted great bodily
injury (§ 12022.7, subd. (a)). And finally, counts 1 through 3, 7 through 13, and 15 all
included various firearm enhancement allegations (§§ 12022.5, subd. (a) and 12022.53,
subds. (c), (d) & (e)).
On August 22, 2019, a jury found appellant guilty on counts 10, 11, 12, 13, and
15, along with the special circumstance, enhancements, and special sentencing allegation
as to those counts. The jury was unable to reach a verdict on counts 1 through 9 and a
mistrial was declared as to those counts.
1 All further statutory references are to the Penal Code unless otherwise stated.
2 Count 14 charged Robert Lee with possession of a firearm by a felon (§ 29800,
subd. (a)(1)). Lee was initially charged as a codefendant, but was later dismissed from
appellant’s case and is not a party to this appeal.
2.
On August 27, 2019, the trial court found the strike, serious felony, and prison
prior allegations true.
Counts 1 and 3 were subsequently amended on September 4, 2019, to charges of
assault with a firearm (§ 245, subd. (b)), and appellant agreed to plead no contest to five
counts of assault with a firearm (counts 1 and 3 through 6). Counts 2 and 7, 8, and 9
were dismissed in the interest of justice.
On May 22, 2020, the trial court granted appellant’s motion to strike his prior
strike, his prior serious felony, and his prison priors. It then denied appellant probation
and sentenced him to state prison for life without the possibility of parole on count 10,
plus 25 years to life for the firearm enhancement; to a term of 15 years to life on count
11, plus 20 years for the firearm enhancement. Appellant’s sentences for counts 12, 13,
and 15 were stayed pursuant to section 654. As to count 1, the trial court sentenced
appellant to the upper term of nine years, for counts 3 through 6, the term of two years,
one-third the middle term, for each count, for a total of 17 years consecutive, all to run
concurrent with the sentence in count 10.
On appeal, appellant contends the trial court abused its discretion (1) when it
refused to dismiss the jury; (2) when it dismissed a juror; (3) when it failed to make an
adequate inquiry of a particular juror; (4) when it denied appellant’s motion for
confidential juror information; and (5) when it denied appellant’s Marsden3 motion.
Appellant further contends (6) that the great bodily injury enhancement and gang
enhancement attached to count 13 must be stricken; (7) that appellant was incorrectly
sentenced on count 11; and (8) and (9) that the abstract of judgment must be corrected.
Finally, appellant argues (10) that if his murder conviction is reversed, his conduct credits
must be re-evaluated; and, in supplemental briefing (11) that Assembly Bill No. 333
(2021-2022 Reg. Sess.) (Assembly Bill 333) requires reversal of the section 186.22,
3 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
3.
subdivision (a) substantive gang offense, the section 186.22, subdivision (b)(1) gang
enhancements, and the section 190.2, subdivision (a)(22) gang special circumstance
finding. We agree with appellant’s assertions in issues (6), (7), (8), and (11), and
remand for resentencing and correction of the abstract of judgment consistent with the
views expressed in this opinion. In all other respects, we affirm.
STATEMENT OF THE FACTS
Facts as to Counts 10, 11, 12, 13, and 15
On July 9, 2015, appellant, a member of the Country Boy Crips criminal street
gang, attended a memorial barbeque with several of Country Boy Crips, including Mister
Bailey, Garrett Collins, and Robert Lee. While at the barbeque, the men learned that
members of the East Side Crips, their main rival gang, were hanging out outside an
apartment complex on Palmacia Drive in Bakersfield.
Bailey, driving his girlfriend’s Honda, drove appellant and Collins to the area of
Palmacia.4 Both appellant and Collins were armed. Upon arrival at the apartment
complex, Bailey, Collins and appellant saw a group of approximately 10 men outside the
complex, including Darnell Dickerson. Collins was uncomfortable with Bailey as the
driver, so withdrew from the formed plan to shoot at the men. The three returned to the
area of the barbeque and reunited with Lee.
Lee replaced Collins in the vehicle and the men returned to Palmacia. Collins left
his .38-caliber revolver in the vehicle when he exited. Bailey parked his vehicle down
the street from the apartments and Lee approached the area, armed with a revolver.
Appellant was armed with an automatic handgun.
Dickerson, a member of the East Side Crips, was drinking with Brian Anderson
outside the apartments. Neither Dickerson nor Anderson were armed, and Anderson was
4 Bailey was in witness protection and testified under an immunity agreement,
giving him complete immunity for anything he may have done on July 9, 2015. Collins
also testified pursuant to an immunity agreement.
4.
not affiliated with any gang. At about 8:30 p.m., Dickerson heard footsteps that made
him uneasy and he began running.
After approaching the apartments, appellant “banged the east side” and shooting
erupted. Both Lee and appellant were shooting; approximately 10 shots were fired from
different guns. Dickerson was able to escape, but Anderson, who was running in front of
Dickerson, tried to crawl under a gate and appellant followed him and continued to fire.
Anderson was ultimately shot as he was running back toward the apartments.
When appellant returned to the vehicle, he had a gunshot wound to his hand, and
explained to Bailey that Lee accidentally shot him. The men fled from the scene and
eventually returned to the barbeque.
When officers arrived on the scene, they found Anderson unresponsive and taking
short, shallow breaths. He had two bullet wounds to his arm and one fatal wound to his
abdomen. The bullet recovered from Anderson’s body was medium caliber, consistent
with a .40-caliber or nine-millimeter bullet.
Six nine-millimeter different brand shell casings were recovered from the area
around the apartment complex.
Blood was collected from three different sites at the crime scene. Dr. Ruth
Dickover testified regarding DNA comparison and analysis of items collected from the
scene of the shooting. As part of her analysis, Dr. Dickover relied on TrueAllele, a
“computer program for the analysis of complex DNA mixtures, low level mixtures, [and]
degraded mixtures.” According to Dr. Dickover, the program “has been validated to be
both accurate and reliable on numerous occasions.”
Using the TrueAllele program, Dr. Dickover determined that one of the blood
samples collected from the crime scene was 24 quintillion times more likely to be from
appellant than from a random person in the African-American population, 3.9 sextillion
times more likely than someone in the Caucasian population, and 940 sextillion times
5.
more likely than someone in the Hispanic population. Testing as to the shell casings was
inconclusive when compared to appellant’s DNA.
Officer Michael Malley testified as an expert in the area of criminal street gangs
and opined, based on contacts appellant had with other officers, his tattoos, and social
media, that appellant was an active member of the Country Boy Crips at the time of the
shooting.
The parties stipulated that appellant had previously been convicted of a felony.
Defense
Appellant testified in his own behalf and admitted he was a member of the
Country Boy Crips on July 9, 2015, but denied he was involved in Anderson’s murder.
Appellant denied knowing Bailey or Anderson and claimed he had not gone with Bailey
to the Palmacia apartment complex on the night of the shooting. Appellant testified that
he was shot in the hand while attending the July 9, 2015, barbeque. He was hurt that
Collins had implicated him, as he thought of Collins as a brother.
Appellant disputed the DNA evidence, claiming the TrueAllele software was not
accurate. Appellant presented the testimony of Thomas Fedor, who questioned the
reliability and accuracy of the TrueAllele program, noting that, without knowing the
source code that was being used, it was not possible to verify the results. Fedor further
testified that TrueAllele cannot “give the same answer twice in a row because it doesn’t
calculate the right exact answer,” and when it is “right, it’s right by coincidence.” Fedor
did acknowledge that he had not reviewed any of the DNA testing done in the instant
case.
Rebuttal
Garett Sugimoto, the DNA technical lead criminalist at the Kern Regional Crime
Laboratory, testified that the TrueAllele program is “helpful to interpret DNA profiles
that may be either low level or may be DNA from multiple contributors.” Sugimoto also
6.
testified that TrueAllele is used to conduct probabilistic testing and that it is “accurate
given the validation studies” that have been conducted.
Facts as to counts 1, 2, 3, and 65
On April 23, 2015, police officers were dispatched to the Kern Medical Center to
contact C.K., who had multiple gunshot wounds to his stomach and legs. C.K. told the
officers he had been driving his vehicle when appellant, a member of a rival gang, pulled
up alongside him and began shooting. Officers observed 10 bullet holes on the passenger
door of C.K.’s vehicle and a bullet fragment and several shell casings were recovered.
On May 2, 2015, officers were dispatched regarding a shooting that occurred in
front of an apartment complex. When the officers arrived, they observed 40 to 50
individuals walking and running in the area. The officers eventually made contact with
Sabrina D., whose left arm was wrapped in a blanket soaked in blood. According to
Sabrina, she and her sister had just arrived at the apartment complex when appellant and
two other males drove past her and appellant began shooting at Sabrina’s vehicle. One of
the bullets struck Sabrina in the arm. Sabrina’s sister and children were also in the
vehicle at the time and sustained minor injuries. Officers observed bullet strikes to
Sabrina’s vehicle and found four spent shell casings in the area.
DISCUSSION
I. DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN IT REFUSED
TO DISMISS THE JURY?
Appellant claims that the trial court abused its discretion in refusing to dismiss the
jury and declare a mistrial following allegations of juror misconduct that involved a
group of jurors discussing the testimony of the People’s DNA expert before deliberations.
5 As discussed ante, the jury was unable to reach a verdict as to counts 1 through 9
and a mistrial declared. Appellant subsequently entered a no contest plea to amended
counts 1 and 3 through 6, and the parties stipulated that the offense reports contained a
factual basis for the plea. These facts are therefore summarized from the probation
officer’s report.
7.
Appellant argues that “the jurors who discussed [the expert] engaged in clear
misconduct,” which was “inherently prejudicial” and “biased the jurors in the
prosecution’s favor,” requiring the judgment be reversed. We disagree.
Background
After the jury was sworn and prior to any breaks in the proceedings, the trial court
instructed, in part, as follows: “[y]ou must not converse among yourselves … on any
subject connected with this trial.” Prior to breaks in the proceedings, the trial court
repeated this admonition, stating, “[a]s you’re all aware, you’re not to converse among
yourselves or with anyone else on any subject connected with this trial, nor to form or
express any opinion thereon, until the cause is finally submitted to you by the Court.”
The People’s expert on the area of DNA analysis, Dr. Ruth Dickover, testified on
June 17, 2019. During a break in Dickover’s testimony, the jury was again admonished
not to converse among themselves or with anyone else “on any subject connected with
the trial .…”
On June 19, 2019, two days after Dickover’s testimony, the trial court noted that
Juror No. 6046 had called the court and expressed concern regarding the content of
Dickover’s testimony. The trial court noted that the juror had asked “something along
[the] lines” of whether there was going to be a “layman’s version of the testimony”
because “nobody understood it except for the chemist.”
The trial court then brought Juror No. 604 into the courtroom and asked about her
question concerning the jury not understanding Dickover’s testimony. Juror No. 604
stated that she “could tell looking at people that, you know, most of us didn’t understand
it. I mean, I don’t know if the chemist understood it, but he’s a chemist, so – I assume he
might have understood more, but we don’t talk about it.” Juror No. 604 subsequently
6 For simplicity purposes, we use the last three digits of the juror identification
numbers.
8.
confirmed that she had not talked about Dickover’s testimony with any of the other
jurors.
Following a side bar, the trial court then called in Juror No. 303, a chemist, and
asked if jurors had discussed any of the evidence in the case. Juror No. 303 stated that
“the most [they had] discussed is courtroom dynamics.” When asked if there had been
any discussion about any of the particular witnesses, Juror No. 303 said, “Not that I’m
aware of.” When asked specifically about Dickover, Juror No. 303 stated that he “shared
that I liked her appearance” and “enjoyed” her testimony “because it was technical.”
Juror No. 303 stated that “most people said they were a little bothered by their
testimony,” but denied that any of the jurors had asked him to interpret Dickover’s
testimony, and he acknowledged that he understood he would not be allowed to do so.
The trial court held another side bar and then asked when the discussion regarding
Dickover had occurred. Juror No. 303 explained that the conversation took place over
lunch during a break in Dickover’s testimony, and he believed it was Juror Nos. 604, 330,
586, and 349 who were present at the time. Juror No. 303 explained there were
“comments about [Dickover’s] appearance when she came in and some people were
bored,” but that he did not believe they “touched on anything that was evidentiary or
come to conclusions that we might draw.”
The trial court explained that the general admonition that it gave the jury
prohibited such discussions, and Juror No. 303 confirmed that his impressions of
Dickover would not impact his decisionmaking and it would not be a problem moving
forward.
Following another side bar, the trial court questioned Juror No. 330, who recalled
being at the lunch in which Dickover was discussed. Juror No. 330 stated that he felt as
though the testimony was “in code” and that the jury “needed … something to decipher
the code she was speaking in,” but that he “actually understood” it. Juror No. 330
confirmed that the group did not try to explain or decipher the testimony during the
9.
conversation. Juror No. 330 was admonished not to discuss witnesses until deliberation,
and he confirmed that he understood the trial court’s instructions.
Juror No. 349 was called into the courtroom and acknowledged she had also been
involved in the conversation about Dickover, but only recalled general comments about
Dickover being “super smart” and giving detailed answers to the questions she was
asked. Juror No. 349 thought that she had only opined during that conversation that she
thought Dickover’s credentials were “impressive.” Juror No. 349 thought the basic
conversation was about “how easy it was” to understand Dickover, even though it was
“not an easy topic to understand the DNA process .…” Juror No. 349 thought that, in
addition to Juror Nos. 604, 330, and 586, the conversation might also have included Juror
No. 303, but she was not sure, and Juror Nos. 617 and 833. Juror No. 349 was again
admonished not to converse with anyone about the trial, and Juror No. 349 stated she
understood.
The trial court then questioned Juror No. 586, who stated he recalled the
conversation regarding Dickerson only being “about generalities, kind of difficult to
follow a bunch of numbers.” Juror No. 586 assured the trial court that nothing about the
conversation would impact his ability to go forward as a fair juror.
The trial court then questioned Juror No. 617, who stated that the jurors “made
reference to [Dickover’s] last name,” which was “interesting,” and he believed others had
said she was “hard to follow,” but that he did not contribute to the conversation. Juror
No. 617 agreed to follow the trial court’s admonition going forward.
Juror No. 833 recalled a discussion regarding the volume of information Dickover
presented, but that she took notes and understood it.
Following these inquiries, defense counsel made “ a poison panel motion and a
motion to dismiss the case or at least … this jury,” arguing the DNA evidence was “the
most important part of the case” and that it had already “been weighed and judged.”
10.
Counsel argued further that Juror No. 303, the chemist, had “prestige with the jury” and
had “expressed his satisfaction of the evidence.”
The People opposed the motion, arguing that there was “general conversation”
regarding Dickover’s testimony, but that jurors had “never talked about specifics,” and
“[n]one of [the conversation] went to the merits of the case or the weight of the
evidence.” The People disagreed that Juror No. 303 had “approved” or “agreed with the
testimony.”
The trial court ultimately denied defense counsel’s motion to dismiss the jury. In
doing so it acknowledged that the jury had violated the admonition, but that it had not
been done purposefully. The trial court described the “general discussion” as being about
Dickerson’s “name or appearance that related to the idea that … she was very difficult to
understand, because of the technical nature of what she was testifying to.” The trial court
recounted the nature of the conversation, juror by juror, and ultimately determined that
nothing that had been reported by the jurors would prevent the parties from receiving a
fair trial.
Defense counsel asked whether the trial court would consider removing Juror No.
303, as he had “given his seal of approval” to Dickover. The trial court denied the
request, stating that it did not agree that was the case, but that Juror No. 303 “simply said
— the discussion was that nature of understanding and whether it was boring, this type of
testimony, his statements [were] simply that it didn’t bore him. He liked this kind of
testimony. It didn’t mean he was approving it and he agreed with everything Ms.
Dickover said or accepted everything that she said as a fact and I … do believe these
other jurors are capable of thinking for themselves and that very may well be his position
when he gets back in the jury deliberation room and that may be what he argues
extensively to the other jurors, but each juror has a duty to decide this case for
themselves. [¶] I have no reason to believe that they are going to decide it based on what
[Juror No. 303] said based on anything I have heard here”
11.
The jury was brought back into the courtroom and the trial court addressed them,
in relevant part, as follows:
“I’m going to read the admonition and just talk to you about it … a little
more specifically. It’s your duty not to converse among yourselves or with
anyone else on any subject connected with this trial, nor to form or express
any opinion thereon, until the cause is finally submitted to you by the
Court. [¶] And that’s the shorter version of the admonition. The longer
version I read to you only once. But, essentially, it’s somewhat general, but
it’s important that everybody understand … what that entails, … in terms of
talking about any subject connected to the trial, that would include talking
about the witnesses, okay? [¶] … [C]ertainly, you’re going to have
impressions about witnesses and there’s no issue .… [T]his is one of the
most important jobs that you’re going to have in your life and so your
concentration and your focus we hope is on this case and what’s being
presented to you … and it’s understandable how, you know, when you’re
having lunch with somebody or just talking to one of the other jurors, that’s
what you’ve been listening to now … that you want to make some
comment about it, but even commenting about a witness or, you know,
what a witness look[ed] like or didn’t look like and … whether you
understood or didn’t understand a witness, that’s still talking about the case,
does everybody understand that? [¶] So you can’t even have discussions
about anything even on that level, that would be a violation of the
admonition .…”
Standard of Review and Applicable Law
A criminal defendant is constitutionally entitled to an unbiased, impartial jury.
(People v. Weatherton (2014) 59 Cal.4th 589, 598.) “Jurors must be admonished not to
‘form or express any opinion about the case until the cause is finally submitted to them.’
(§ 1122, subd. (b)). Prejudgment ‘constitute[s] serious misconduct’ [citation], raising a
presumption of prejudice. The presumption is rebutted ‘if the entire record ... indicates
there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or
more jurors were actually biased against the defendant.’ ” (Ibid.; see People v. Fayed
(2020) 9 Cal.5th 147, 174.) We review independently the mixed question of law and fact
whether jury misconduct was prejudicial. (People v. Weatherton, supra, at p. 598.)
12.
“Jury misconduct serious and extensive enough to impair the fairness of the trial
or deliberations may warrant granting a new trial motion. [Citations.] Where the trial
court has heard evidence and made findings of historical fact regarding the alleged
misconduct, we accept those findings if they are supported by substantial evidence.”
(People v. Flinner (2020) 10 Cal.5th 686, 755-756.) We do not reweigh the trial court's
credibility determinations when supported by substantial evidence. (People v. Merriman
(2014) 60 Cal.4th 1, 100.) A trial judge who observes and speaks with a juror gathers
from the juror’s confidence and demeanor valuable information that does not appear in
the appellate record. (Id. at p. 101.)
We agree with the trial court that the jurors committed misconduct when they had
a short-lived general discussion about the People’s DNA expert Dickover during lunch
prior to deliberations. We also agree with the trial court that, while the jurors may have
unwittingly committed misconduct, it was not prejudicial. The jurors were each
questioned by the trial court and indicated that the conversation mostly involved general
observations about Dickover’s appearance, her unique name, and the technical and
complex nature of her testimony.
Nothing in the record suggests that any of the jurors involved in the lunchtime
conversation drew any adverse inference against appellant or prejudged the case. None
of the jurors who were questioned indicated that the conversation would have any impact
on their ability to be fair and impartial.
Appellant contends Juror No. 303, who was a chemist, made comments implying
that Dickover’s testimony was credible. The evidence, however, was that Juror No. 303
commented that he enjoyed the technical nature of the testimony and expressly stated that
he did not believe the conversation “touched on anything that was evidentiary or c[a]me
to [any] conclusions.” We do not second-guess the trial court’s conclusion that Juror No.
303’s explanation was credible.
13.
Following the extensive inquiry of the involved jurors, the trial court took extra
precaution and further admonished the jury, instructing them again not to discuss the
case, even if the discussion was limited to a witness’s appearance.
Because the jurors’ inability to serve impartially did not appear as a demonstrable
reality in the record, we agree with the trial court’s finding that the presumption of
prejudice was rebutted. The trial court’s failure to dismiss the jury or jurors involved was
therefore not an abuse of discretion.
For the same reasons, we reject the included claim by appellant that the trial court
abused its discretion in denying his motion for a new trial based on jury misconduct
(§ 1181, subd. (3)). (See People v. Williams (1988) 45 Cal.3d 1268, 1318 [“ ‘The
determination of a motion for a new trial rests so completely within the court’s discretion
that its action will not be disturbed unless a manifest and unmistakable abuse of
discretion clearly appears’ ”], abrogated on other grounds as noted in People v. Diaz
(2015) 60 Cal.4th 1176, 1190; see also People v. Dykes (2009) 46 Cal.4th 731, 809
[regarding motion for new trial based on jury misconduct “reviewing court should accept
the trial court’s factual findings and credibility determinations if they are supported by
substantial evidence, but must exercise its independent judgment to determine whether
any misconduct was prejudicial”].)
II. DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN IT
DISCHARGED A JUROR?
Appellant next contends that the trial court erred in removing Juror No. 604 from
the jury during deliberations. Appellant argues that the record does not support the trial
court’s finding that Juror No. 604 failed to deliberate. Appellant contends further that the
trial court failed to adequately question whether the experiences Juror No. 604 was
expressing were ones prohibited by law and that it failed to question Juror No. 604 on her
14.
allegations that “jokes or comments of a racial nature had been made by other jurors.”7
We first address the issue of whether the trial court abused its discretion in dismissing
Juror No. 604 because she refused to deliberate and find no error.
Background
Following closing arguments, the jury retired to deliberate on July 26, 2019, close
to 5:00 pm. Minutes later, the jurors were ordered to return on August 5, 2019, at 10:00
a.m.
On August 5, 2019, at 10:27 a.m., the jury asked the trial court for a list of counts
and associated dates. The trial court responded that the information the jury was seeking
was contained in the verdict forms. Between then and the end of the day, the jury broke
for lunch and submitted two additional notes to the trial court — one requesting
additional evidence regarding a video that had been played at trial and one requesting a
read back of testimony and additional copies of the verdict forms for review.
The following day, August 6, 2019, the jury returned to deliberate at 9:43 a.m.
Toward the end of the day, it sent another note requesting additional read backs of
testimony. Deliberations ended for the day shortly thereafter and the jury was ordered to
return the following morning.
On August 7, 2019, prior to the start of the third full day of deliberations, the trial
court received a typed letter from Juror No. 604. In the note, Juror No. 604 expressed
concern regarding a long delay to accommodate one of the sitting jurors, as well as
“certain men” on the jury who Juror No. 604 thought were belittling and mocking her “in
an attempt to sway her vote.” Juror No. 604 also expressed concern that some jurors
were bringing outside information into the deliberations.
The trial court then addressed the jury, noting that it needed to deliberate and
listen “to what everybody has to say,” and evidence should be limited to that which was
7 Juror 604 was the one female African-American on the jury.
15.
presented in court. All of the jurors stated that they understood the court’s instructions
and the jury exited the courtroom to continue deliberating.
Shortly thereafter, the bailiff noted he “could hear yelling coming from the jury
room” and there was “bolder language” and “yelling back and forth between a couple of
jurors,” requiring the jury to exit the jury room and take a break. When the jury returned
to the courtroom, the trial court stated that it understood emotions were high, but that all
jurors were required to discuss the case in a rational manner. The trial court asked Juror
No. 439 (foreperson), if the jury needed a break or if it would be better to proceed with
the read back that had been requested. The foreperson responded that she was “not
convinced either would work,” but believed they should proceed with the read back.
When asked, the jurors indicated they were all concerned with what was occurring in the
deliberations.
The trial court repeated that the jurors were required to have open discussions, to
listen to “what everybody has to say,” and have a “meaningful discussion about the
evidence without … being confrontational with other jurors.”
Juror No. 604, who had sent the above mentioned letter to the court, stated “none
of the things you’re talking about seem to be the topics of concern,” explaining that there
were issues around race. The trial court stated that it was not getting into specifics yet,
but would address such specifics if a note to that effect was sent. The trial court stated
that the jury was required to reach a decision without any bias, and the jury was returned
to the jury room for read back and to continue deliberations.
After the jurors exited the courtroom, the parties were asked if they had any
comments on what had transpired. Defense counsel stated that he did not believe there
was “any chance” that the jury could deliberate properly and moved for a mistrial. The
People argued that the motion was “highly premature” and the trial court agreed, stating
that the jury had not said it was unable to reach a verdict, and that request for read back
indicated that they were still deliberating. Defense counsel renewed his motion for
16.
mistrial, stating no effort had been made to find out who “the intimidators are.” The trial
court denied the motion, again stating that, while what had transpired had been “certainly
unusual,” there was no reason to believe the jurors could not fulfill their duties, and it
appeared that they were continuing to deliberate.
The jury sent three additional questions to the court during the day. Prior to
ending deliberations that evening, the jurors were returned to the courtroom to discuss
scheduling. One juror remarked that they were pretty confident “we can finish this in two
days.”
When the jury reconvened the following Monday, August 12, 2019, during the
morning, it sent two notes to the court requesting evidence. Mid-afternoon, the jury
submitted a third request, which was signed by the foreperson and asked:
“If the rest of the jurors agree, can the jurors make a proposal to dismiss
one of the jurors? [¶] There is a widely held belief that this individual is
incapable of meaningfully contributing to a rational discussion of the
matters of this case. A preponderance of evidence can be provided and a
vote can be made if necessary (if the court is capable of entertaining this
request).”
Juror No. 604 added a line at the bottom of the note which stated, “I disagree since they
are referring to me.” Before the trial court had an opportunity to respond, the jury
requested another read back of testimony.
Before the end of the day, the trial court began by discussing the request to remove
a juror with the foreperson. The trial court noted that the jury had been deliberating for
three days prior to the “blowup.” The foreperson responded that 11 people had been
deliberating, but Juror No. 604 was “very defensive” and had taken the stance that she
“doesn’t want to participate.” The foreperson explained that Juror No. 604 had not
participated in any voting on the charges on at least five occasions, and quit engaging in
the discussions the jurors had. While the foreperson had tried different ways of
approaching Juror No. 604 and attempting to get her involved in the voting process and
17.
discussions related to voting, nothing had worked. The foreperson stated that she did not
believe Juror No. 604 was “able to have the kind of conversations that a reasonable
person would be able to have.”
The trial court then spoke with Juror No. 788, who stated that “[m]ost of the time”
the jurors were deliberating but there had been situations where Juror No. 604 refused to
be a part of it. Juror No. 788 described Juror No. 604 as, at times appearing to have
“[c]hecked out” and not wanting to be part of the discussion. Juror No. 788 stated that
Juror No. 604 had participated in the voting process before the note was sent about
having her removed, but not after. Juror No. 788 did, however, agree that it would be
difficult to move forward with Juror No. 604 on the jury because she was so easily upset.
The trial court then spoke to Juror No. 207, who explained that he disagreed with
the note and he believed Juror No. 604 was contributing to the deliberations. He did
describe Juror No. 604 as kind of dogmatic, very deliberate in not wanting anybody to
sway her decision, and, once presented with a different view, tried to poke a hole in that
theory. According to Juror No. 207, Juror No. 604 had participated in the votes until the
note about her removal had been sent.
The trial court then spoke with Juror No. 604, who stated she “would just like
follow the rules and stick to the evidence,” but that there was “a lot of information being
presented that wasn’t presented during the trial.” Juror No. 604 also expressed concern
regarding “jokes [that were] made about how black people talk in the hood and how
gangsters talk,” which she did not feel was appropriate. Juror No. 604 did not believe
there was anything preventing the jury from moving forward with deliberations, although
she acknowledged that she stopped participating after the other jurors asked if she could
be removed. She denied she had abstained from any votes prior to the note, but did not
feel like she should “have to be in a room six hours a day with people who are making
jokes about black people.”
18.
The jurors were dismissed for the evening, and the following morning, August 13,
2019, defense counsel argued that the comments from jurors were “not anywhere near
enough to be removing jurors … who are not making somebody on the jury happy.” The
trial court noted defense counsel’s argument, but asserted it was still in the process of
investigating the actual issues that lead to the request to have Juror No. 604 removed.
Juror No. 303 was then questioned by the trial court. He acknowledged that he
had written the note, and he explained that there had been “conflict” from day one and
“people were throwing up their hands and giving up.” Juror No. 303 stated that “a lot of
it had to do with the type of conversation[s] that were being had with [Juror No. 604].”
While the jury had “tried a lot of different approaches” to deliberating, they were not
making progress and began to look at the evidence “point by … point” and take “votes of
… confidence” as to each piece of evidence. According to Juror No. 303, Juror No. 604
expressed a lack of confidence regarding evidence to which the parties had stipulated,
and that conversations with Juror No. 604 often stalled without resolution. Juror No. 303
explained that, while Juror No. 604 was “[s]omewhat” involved in the discussions, she
did not want to participate in the jury’s decision to go through the evidence point by
point.
Juror No. 303 explained the altercations that had been observed by the bailiff
earlier and explained that Juror Nos. 330 and 617 had gotten “very frustrated” with Juror
No. 604, as she would discuss her views on the evidence, but would disregard other
jurors’ views and would accuse people of attacking her. Juror No. 303 confirmed that
Juror No. 604 had stopped voting and participating in the deliberations after the note was
sent.
When the trial court asked Juror No. 303 if race had been interjected into the
deliberations, he stated:
“[Juror No. 604] brought up race. She’s the only one explicitly brought up
race and this goes to another issue that — without line of argument, she
19.
will kind of introduce her experience on — as to evidence, she will say,
like, well, I do this this way and this person is similar to me. Therefore, it’s
unreasonable for them to do other than anything I would do in that
situation.”
Juror No. 303 stated that there had been no jokes relating to race. When asked if
something had been said about race to which someone took offense, Juror No. 303 stated
that there were a few things that were “real borderline like insinuating like maybe certain
people that are voting certain ways based on race and it kind of left a bad taste in my
mouth .… I wanted to make sure I wasn’t insinuating, so I purposefully brought that up
yesterday.” Juror No. 303 wanted to get it out in the open, and he thought that resolved
the issue amicably and, overall, it was not an issue.
Juror No. 833 agreed there was an issue with Juror No. 604’s conduct during
deliberations. On a couple of occasions, she brought in some of her own personal
experiences and at other times told other jurors she was “not going to listen “ to them.
Juror No. 833 believed Juror No. 604 was resistant to hearing other opinions or giving
her own, and would not even give an opinion when asked for one.
Juror No. 458 explained that there was an issue with Juror No. 604, as she had not
been able to follow instructions and that no matter what the other jurors suggested, Juror
No. 604 “wants to argue about it or just not agree to participate in the process.” When
asked if race had become an issue, Juror No. 458 stated that, it did not start that way, but
there was a discussion about how Juror No. 207 (the only male African-American juror)
would sometimes agree with Juror No. 604, and Juror No. 207 said that had nothing to do
with anything. Juror No. 604 then got up and yelled at people and asked if this was
because they were black. The bailiff then had to intervene. When deliberations resumed,
Juror No. 617 directed a discussion at Juror No. 207, stating all Juror No. 207 did was
back up Juror No. 604, and Juror No. 604 started yelling again and again the bailiff
intervened.
20.
Juror No. 823 explained that Juror No. 604 “keeps bringing up past experiences”
and is not “part of the open discussion.” On one day, Juror No. 604 “just put her
sunglasses [on] and sloped down and didn’t talk the whole time,” refusing to participate
in deliberations and preliminary votes. According to Juror No. 823, Juror No. 604
seemed to be “dismissing all the evidence” and that she was “not listening.” When
confronted about her opinions, Juror No. 604 would state that the other jurors were
ganging up on her and were “being racist.”
Juror No. 349 described Juror No. 604 as not willing to “take in other’s opinions”
or “hear other people out,” and that she would get defensive and shut down without
trying to explain her reasoning. Although Juror No. 604 sometimes participated in
discussion, she at times stood away from the group or put her head down when others
were speaking. Juror No. 349 also noted that Juror No. 604 was not cooperative in trying
different approaches to deliberating, explaining that when the other jurors decided to go
through the evidence to pinpoint areas that required further discussion, Juror No. 604
refused to vote on anything or discuss the issues further.
Juror No. 330 stated that Juror No. 604 was not deliberating “whatsoever,” and
would cross her arms and throw back her head and refuse to comment when asked her
opinion. While the jurors made several attempts to change the process of deliberating,
Juror No. 604 continued to refuse to participate, at times putting on her headphones and
sunglasses and tuning the other jurors out. While Juror No. 330 described the other
jurors as not all agreeing with what the others were saying, “everybody is listening and
talking it through,” except for Juror No. 604, who was “not involved whatsoever.”
Juror No. 243 stated that Juror No. 604 was “being very unreasonable about
everything,” including the structure of the deliberations and scheduling. When asked if
Juror No. 604 had been involved in discussions regarding the evidence, Juror No. 243
said, “Yes and no,” stating Juror No. 604’s thought process seemed unreasonable and she
was not following instructions that were given. Juror No. 243 stated that, while other
21.
jurors did not all agree with one another, Juror No. 604 was not being reasonable and
would “argue if it’s day or not.” Juror No. 243 had also observed Juror No. 604 wearing
sunglasses and headphones during deliberations.
Juror No. 617 explained that Juror No. 604 was not acting rationally, would wear
her sunglasses and headphones and sleep while the other jurors were deliberating. Juror
No. 617 described Juror No. 604 as disengaged from everybody else and had resisted the
other jurors’ attempts to deliberate in different ways. Juror No. 617 said Juror No. 604
did not seem to be listening to other jurors’ views and when she shared her opinions, they
did not seem to make sense and were not relevant to the case.
After talking with all 12 jurors, the trial court stated it wished to question Juror
No. 207, the foreperson, and Juror No. 604. It first spoke to Juror No. 207 about the
“blowup” incident that had occurred, which Juror No. 207 acknowledged involved
yelling between himself and Juror No. 617, after Juror No. 207 had said they should
allow Juror No. 604 to “get her point out,” but that it was only between himself and Juror
No. 617 and there were no other issues between them.
The trial court asked Juror No. 207 if race had become an issue and if there were
any jokes about race. Juror No. 207 replied:
“I don’t even know if it was a joke. I just attributed [it] to age and silliness,
but a comment was made that I can relate to what you guys are going
through, meaning me and [Juror No. 604], because people have called me
the N word or called me a sand N word. And so my thing was, like, what
the hell does that have to do with this? [¶] So it didn’t go anywhere,
because, you know, I just thought it was silly, but I understood, I guess,
what he was trying to say. I guess he was trying to relate to the argument.
I don’t think it was – I don’t think it was malice.”
Juror No. 207 explained that another juror (not Juror No. 604) thought it was with intent
and a day or two later, Juror No. 303 said how he felt about the situation, and he thought
that something had been interjected into the deliberations that had to be resolved. Juror
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No. 617 then said he just thought Juror No. 207 defended Juror No. 604, but Juror No.
617 said he did not mean it from a racial standpoint.
Juror No. 207 denied that there had been any issues with Juror No. 604 expressing
her opinion, and that, prior to the note, she had “probably talked more than anybody.”
Juror No. 207 also denied that Juror No. 604 had ever refused to participate and he had
only seen Juror No. 604 wearing headphones and sunglasses when the jurors agreed to
read independently.
The trial court then spoke with the foreperson, again who clarified that Juror No.
604 had refused to take part in the jurors’ vote regarding major pieces of evidence. The
foreperson could not recall if Juror No. 604 had refused to take part in the votes regarding
the counts, but she had refused to vote for foreperson or participate in votes regarding
scheduling. While Juror No. 604 would at times give her views on evidence, she would
get upset when asked questions about her opinions. The foreperson had seen Juror No.
604 with her headphones on during silent reading and on the day of the “blowup” had
worn her sunglasses.
The foreperson described the “blowup” as having occurred because Juror No. 617
felt Juror No. 207 was being unreasonably protective of Juror No. 604, and when Juror
No. 617 made a comment, he and Juror No. 207 exchanged words. Juror No. 604 then
got in Juror No. 617’s face and stood over him and yelled at him.
The trial court then spoke with Juror No. 604 again. She acknowledged that she
had been involved in a disagreement with Juror No. 617, but she denied any use of
profanity. She explained that she believed Juror No. 617 was trying to manipulate the
others by attributing things to her she had not said, noting she was “really upset” and had
“put up with this for weeks and weeks.” Juror No. 604 initially denied she had ever put
her headphones on in the jury room, but later acknowledged that she may have had them
in her ears to block outside noise when she was reading. She acknowledged she may
have worn her sunglasses “because of the fluorescent lights.” Juror No. 604 claimed she
23.
had participated in discussions “unless [she] didn’t have an opinion” on the evidence,
and, at times, wanted to review her notes before giving an opinion. Juror No. 604
claimed that other jurors made jokes about race on a regular basis. Juror No. 604 asked
the trial court if there was anything that could be done to prevent jurors from bringing in
outside information, noting other jurors had discussed “how far … [¶] … bullet
fragments can fly.”
After speaking with all of the jurors, the trial court noted the “overriding issue”
was whether or not there had been juror misconduct “that would necessitate this court
perhaps discharging … one of the jurors, in particular [Juror No. 604].” Stating good
cause was needed to excuse a juror, the trial court then allowed the parties to argue.
The People argued that Juror No. 604 should be removed, pursuant to section
1089, as she had a “negative animus towards her fellow jurors” and would “tune them out
and stop participating with them whenever she feels such .…” The People stated that
another prosecutor, not connected to the case, had heard Juror No. 604 state that she
“wasn’t going to listen to anything [the other jurors] had to say” in relation to a
scheduling conflict. The People argued this reported sentiment seemed to support the
information received from other jurors that Juror No. 604 did not and would not
deliberate. The People pointed out that Juror No. 604 did not listen and would not follow
the trial court’s instructions on things as simple as stipulations, she was hostile and did
not seek to resolve differences. The People noted that, while Juror No. 207 had tried to
protect Juror No. 604, even he had indicated that Juror No. 604 was “quite bullheaded”
and was not willing to listen to other jurors’ opinions.
The People argued that even Juror No. 604 herself had indicated she had a
“persecution complex” that included reference to racial jokes and biases no one else on
the jury had mentioned. The People opined that this complex led Juror No. 604 to put up
a wall and left her unable to listen to others or deliberate, as evidenced by Juror No. 604’s
acknowledgment that she did not share her opinions with the other jurors when they were
24.
reviewing evidence. Furthermore, the People argued Juror No. 604 was not following
jury instructions, she was bringing her own personal experiences into the deliberations,
and she failed to treat other jurors with respect and dignity, all pointing to good cause to
remove Juror No. 604 from the jury.
Defense counsel disagreed, first arguing that Juror No. 604’s statement regarding
her refusal to discuss a scheduling issue should not be used in evaluating whether or not
she should be removed from the jury. Defense counsel discussed the testimony of the
other jurors, stating it was inconsistent. Defense counsel also stated that it was early in
deliberations for there to be any voting as to the ultimate facts and that Juror No. 604 had
been involved in deliberations until the note regarding her removal was sent to the court.
The People again disagreed, noting that the read backs had been necessary because
Juror No. 604 had refused to reexamine her position on the facts. The People again
asserted that Juror No. 604 was not deliberating, a position supported by every juror
except Juror No. 207.
The trial court then discussed its discretion under section 1089 to discharge a juror
in certain situations, including when there is good cause shown that the juror is unable to
perform his or her duty. The trial court stated that it had reviewing case law regarding
the guidelines as to what would constitute a refusal to deliberate. While the court stated
that it could not “talk about everything everybody said,” it did note that the foreperson, as
well as other jurors, felt that Juror No. 604 was not deliberating and, at times, not voting.
It also noted other jurors description of Juror No. 604 shutting down, not responding to
questions, and not being involved in the discussions.
The trial court also noted several jurors reporting that Juror No. 604 wearing
headphones and sunglasses, and, while Juror No. 604 ultimately acknowledged having
done so, she had initially denied it. While Juror No. 604 had been given the opportunity
to tell others how she wanted to proceed, she had refused to do so; she was not open to
25.
listening to or reasoning with opposing views, and she would interject her own personal
experiences into the evidence for purposes of discussion.
The trial court acknowledged that Juror No. 207 was supportive of Juror No. 604,
but “there were some issues.” And that Juror No. 604 “paint[ed] a different picture of
herself” as to how she was handling the process. The trial court stated that this was “not
simply an issue of [the jurors] disagreeing as to what the facts or the evidence is, but it
[went] to the root of the idea of what deliberations are and that’s a willingness to discuss
the case, discuss everyone’s views, [and] explain your views.”
The trial court explained that the jury had not been deliberating long and that the
other jurors were attempting to work through the issues and accommodate Juror No. 604,
but that, after talking to all of the jurors and reviewing the evidence, it appeared that Juror
No. 604 was refusing to deliberate and that she was bringing her own personal
experiences into the case. The trial court also believed that Juror No. 604 was dishonest
in her responses to the court.
The trial court ultimately removed Juror No. 604 from the jury. For the record, the
trial court noted that Juror No. 604 and Juror No. 207 were the only African-Americans
on the jury.
Applicable Law
“[S]ection 1089 sets forth the procedure for removing a sitting juror.” (People v.
Boyette (2002) 29 Cal.4th 381, 462.) It provides, in relevant part: “If at any time,
whether before or after the final submission of the case to the jury, a juror dies or
becomes ill, or upon other good cause shown to the court is found to be unable to perform
his or her duty, or if a juror requests a discharge and good cause appears therefor, the
court may order the juror to be discharged ....” (§ 1089.) “Good cause exists to discharge
a juror when the juror loses his or her ability to render a fair and impartial verdict based
on the evidence presented at trial.” (People v. Barton (2020) 56 Cal.App.5th 496, 508
26.
(Barton).) Section 1089 has also been applied “to permit the removal of a juror who
refuses to deliberate, on the theory that such a juror is ‘unable to perform his duty.’ ”
(People v. Cleveland (2001) 25 Cal.4th 466, 475 (Cleveland).) “ ‘A juror’s inability to
perform his or her functions ... must appear in the record as a “demonstrable reality” and
bias may not be presumed.’ ” (People v. Beeler (1995) 9 Cal.4th 953, 975, abrogated on
grounds as stated in People v. Edwards (2013) 57 Cal.4th 658, 705.)
“Removing a juror is, of course, a serious matter.... While a trial court has broad
discretion to remove a juror for cause, it should exercise that discretion with great care.”
(People v. Barnwell (2007) 41 Cal.4th 1038, 1052, fn. omitted (Barnwell).) “A court’s
intervention may upset the delicate balance of deliberations. The requirement of a
unanimous criminal verdict is an important safeguard, long recognized in American
jurisprudence. This safeguard rests on the premise that each individual juror must
exercise his or her own judgment in evaluating the case. The fact that other jurors may
disagree with a panel member’s conclusions, or find disagreement frustrating, does not
necessarily establish misconduct.” (People v. Allen and Johnson (2011) 53 Cal.4th 60,
71.) “[A] trial court should be wary of relying on the opinions of jurors, rather than on its
own consideration of objective facts.” (Id. at p. 75.) “The court cannot substitute the
opinions of jurors for its own findings of fact.” (Ibid.)
This court’s “review of the decision to remove a seated juror is not conducted
under the typical abuse of discretion standard, but rather under the ‘demonstrable reality’
test.” (People v. Fuiava (2012) 53 Cal.4th 622, 711 (Fuiava).) “ ‘[T]he demonstrable
reality test entails a more comprehensive and less deferential review. It requires a
showing that the court as a trier of fact did rely on evidence that, in light of the entire
record, supports its conclusion that [good cause for removing the juror] was
established.’ ” (Id. at p. 712.)
Under the demonstrable reality standard, the reviewing court “must be confident
that the trial court’s conclusion is manifestly supported by evidence on which the court
27.
actually relied.” (Barnwell, supra, 41 Cal.4th at p. 1053.) In reaching that conclusion,
this court considers “not just the evidence itself, but also the record of reasons the court
provides.” (Ibid.) The “heightened” and “more stringent” demonstrable reality standard
“more fully reflects an appellate court’s obligation to protect a defendant’s fundamental
rights to due process and to a fair trial by an unbiased jury.” (Id. at p. 1052.) Indeed, the
trial court’s discretion to discharge a juror for cause under section 1089 “is ‘bridled to the
extent’ [that] the juror’s inability to perform his or her functions must appear in the
record as a ‘demonstrable reality,’ and ‘court[s] must not presume the worst’ of a juror.”
(People v. Bowers (2001) 87 Cal.App.4th 722, 729.)
“[H]owever, even under the demonstrable reality standard the reviewing court
does not reweigh the persuasive value of the evidence.” (Fuiava, supra, 53 Cal.4th at p.
714.) Accordingly, reviewing courts must defer to the trial court’s assessments of a
juror’s credibility “based ‘on firsthand observations unavailable to us on appeal.’ ”
(People v. Powell (2018) 6 Cal.5th 136, 156; Barnwell, supra, 41 Cal.4th at p. 1053.)
Analysis on Juror No. 604’s Refusal to Deliberate
The trial court discharged Juror No. 604 because it found she refused to deliberate.
“In taking the serious step of removing a deliberating juror the court must be mindful of
its duty to provide a record that supports its decision by a demonstrable reality.”
(Barnwell, supra, 41 Cal.4th at p. 1053.) We conclude the record here supports the
court’s decision under this heightened standard of review.
As noted above, trial court may properly dismiss a juror based on the juror’s
“unwillingness to engage in the deliberative process.” (Cleveland, supra, 25 Cal.4th at p.
485; see also People v. Lomax (2010) 49 Cal.4th 530, 589 [“A refusal to deliberate is
misconduct.”].) “Examples of refusal to deliberate include, but are not limited to,
expressing a fixed conclusion at the beginning of deliberations and refusing to consider
other points of view, refusing to speak to other jurors, and attempting to separate oneself
28.
physically from the remainder of the jury.” (Cleveland, at p. 485.) On the other hand,
“[t]he circumstance that a juror does not deliberate well or relies upon faulty logic or
analysis does not constitute a refusal to deliberate and is not a ground for discharge.
Similarly, the circumstance that a juror disagrees with the majority of the jury as to what
the evidence shows, or how the law should be applied to the facts, or the manner in which
deliberations should be conducted does not constitute a refusal to deliberate and is not a
ground for discharge.” (Ibid.) A deliberating juror’s refusal to follow the law set forth in
the instructions does constitute a failure to perform the juror’s duties, and is grounds for
discharge. (People v. Engelman (2002) 28 Cal.4th 436, 444.)
“If some inquiry is called for, the trial court must take care not to conduct an
investigation that is too cursory.” (Fuiava, supra, 53 Cal.4th at p. 710.) “In most
instances, the court will interview all of the jurors before deciding whether a juror is
unable or unwilling to deliberate. At a minimum, it must interview more than the
complaining jurors.” (Shanks v. Department of Transportation (2017) 9 Cal.App.5th
543, 553.) “ ‘The inquiry [into possible discharge of a juror] should focus upon the
conduct of the jurors, rather than upon the content of the deliberations.’ ” (Barnwell,
supra, 41 Cal.4th at p. 1054, italics added.)
Appellant relies on Barton, supra, 56 Cal.App.5th 496, to bolster his argument
that Juror No. 604 was wrongfully discharged. In Barton, the Court of Appeal reversed a
trial court’s decision to discharge a juror, Juror No. 12, for refusing to deliberate, finding
that the failure to deliberate did not appear as a demonstrable reality on the record. (Id. at
p. 502.) The appellate court faulted the trial court for giving undue weight to the jurors’
opinions that Juror No. 12 had failed to deliberate, as opposed to focusing on Juror No.
12’s actual conduct. (Id. at p. 512.) The Court of Appeal also interpreted the record to
reveal that the jurors merely disagreed with Juror No. 12’s ultimate opinion regarding the
evidence, and that the discharged juror had participated in deliberations for a reasonable
29.
time and merely came to a conclusion early, which she was in her right not to change.
(Id. at pp. 512-515.)
We find Barton distinguishable. Unlike Juror No. 12 in Barton, the record here
does not establish that Juror No. 604 was not deliberating because she had come to an
early conclusion of the evidence or disagreed with the outcome. As noted by Juror No.
330, while deliberating, the jurors did “not all agree with what others are saying at certain
points, but for the most part, everybody is listening and talking it through,” except for
Juror No. 604, who was “not involved whatsoever.” According to Juror No. 330, “every
attempt” had been made to include Juror No. 604 in the deliberations, including asking
her how she would like the deliberation process to be handled, but “she refuse[d],” at
times putting on her headphones and sunglasses, laying back in her chair, and “tun[ing]
us completely out.”
We find Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640 instructive.
There, the foreperson sent a note to the court indicating Juror No. 5 was not participating
in the discussion and was “ ‘sit[ting] away from the table and read[ing] her [B]ible
instead of contributing to the group conversation.’ ” (Id. at p. 1686.) In response to the
note, the court reread to the jury the instruction stating that all jurors should participate in
all deliberations. (Ibid.) After receiving another complaint from the foreperson, the court
interviewed Juror No. 5 in chambers. Juror No. 5 denied she had been reading her Bible
during deliberations and also denied she sat away from the table, failed to listen, or slept
during deliberations. (Ibid.) After receiving another complaint, the trial court questioned
each juror individually in chambers. Other jurors reported Juror No. 5 became angry
after she was not elected the foreperson. (Id. at p. 1687.) Afterwards, Juror No. 5 would
turn her chair around and sit with her back to the other jurors on both days of
deliberations. (Ibid.) Aside from reading, she also appeared to be sleeping much of the
time or sat with her eyes closed. (Ibid.)
30.
From these interviews, the court determined Juror No. 5 “separated herself
physically from the other jurors, did not pay attention to their deliberations and, instead,
slept or read a novel, the Bible, or both, throughout the two days ... she was a member of
the deliberating jury.” (Id. at p. 1688.) Based on these findings, the Court of Appeal
determined the trial court conducted an adequate inquiry before discharging the juror.
(Ibid.)
Here, the foreperson described the deliberations that had occurred as deliberations
“[w]ith 11 people,” and that the jury “won’t be able to come to any kind of decision with
[Juror No. 604].” The foreperson described Juror No. 604 as “very defensive and
unprovoked.” While Juror No. 604 would express her beliefs, which the foreperson
described as not “rational,” she then refused to participate in the voting process. The
foreperson described Juror No. 604 as refusing to vote on more than five occasions.
Juror No. 458 stated that, no matter what the other jurors suggested, Juror No. 604
“want[ed] to argue about it or just not agree to participate in the process.”
While Juror No. 604’s opinions need not be in line with the other jurors in order to
appropriately deliberate, her refusal to participate in the voting process, as well as her
behavior in putting on her headphones and sunglasses and becoming unresponsive
suggest an inability to deliberate. (Cleveland, supra, 25 Cal.4th at p. 485.) Also
troubling is Juror No. 604’s expressed lack of confidence regarding evidence to which the
parties had stipulated, as the jury had been instructed to accept facts stipulated to as true
or proven, and “there’s no disagreement as to those facts.” (People v. Engelman, supra,28 Cal.4th at p. 444.)
Finally, although Juror No. 604 denied she had ever refused to participate, the trial
court made a credibility finding in that regard, explaining that it believed Juror No. 604
was dishonest in her responses to the court, as “only when confronted with certain things
directly was she willing to admit certain things happen[ed].” As a reviewing court, we
defer to the trial court’s assessments of a juror’s credibility “based ‘on firsthand
31.
observations unavailable to us on appeal.’ ” (People v. Powell, supra, 6 Cal.5th at p. 156;
Barnwell, supra, 41 Cal.4th at p. 1053.)
Given this evidence, the record establishes a demonstrable reality that Juror No.
604 was refusing to participate in deliberations or follow the trial court’s instructions, and
we reject appellant’s claim to the contrary.
III. DID THE TRIAL COURT FAIL TO MAKE AN ADEQUATE INQUIRY OF
THE PERSONAL EXPERIENCES JUROR No. 604 WAS RELYING UPON
AND OF HER CLAIMS OF RACIAL ISSUES?
In connection with part II., above, appellant also contends that the trial court did
not conduct an adequate inquiry regarding the personal experiences Juror No. 604 was
relying upon or her claim of racial issues among the jury. Again, we find no abuse of
discretion on the part of the trial court.
“[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.’ ” (Cleveland, supra, 25 Cal.4th at
p. 478.) “[A] trial court’s inquiry into possible grounds for discharge of a deliberating
juror should be as limited in scope as possible, to avoid intruding unnecessarily upon the
sanctity of the jury’s deliberations. The inquiry should focus upon the conduct of the
jurors, rather than upon the content of the deliberations.” (Id., at p. 485; see also People
v. Nelson (2016) 1 Cal.5th 513, 569 [“[A] trial court may intervene in jury deliberations
where it receives reports of juror misconduct or in response to an impasse, but such
interventions must be limited and undertaken with the utmost respect for the sanctity of
the deliberative process”].)
When the trial court discharged Juror No. 604, it noted that other jurors had tried
to accommodate Juror No. 604, but that it appeared Juror No. 604 was refusing to
deliberate and that she was improperly bringing her own personal experiences into the
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case. Appellant contends that the trial court did not adequately inquire regarding the
nature of the personal experiences Juror No. 604 was relying upon, claiming that the trial
court “blindly accepted” the claim of other jurors that Juror No. 604 was interjecting her
personal experiences into the deliberations without asking what experiences she was
interjecting.
It is true that “[j]urors’ views of the evidence … are necessarily informed by their
life experiences” (In re Malone (1996) 12 Cal.4th 935, 963), and that a juror’s application
of his or her everyday life experience to the evaluation of evidence is not misconduct
(People v. Allen and Johnson, supra, 53 Cal.4th at pp. 76-77). But here, as discussed
above, the record supports the trial court’s decision to discharge Juror No. 604. The trial
court’s inquiry was centered around the allegations that Juror No. 604 was refusing to
participate in deliberations. While several jurors commented that Juror No. 604 would
refer to her own personal experiences, those comments were made in reference to her
refusal to deliberate and/or discuss the evidence that had been presented in the case.
Appellant also claims that the trial court did not adequately inquire regarding Juror
No. 604’s allegation that racial issues had come up during deliberations, claiming this
inadequate inquiry “resulted in the real possibility that the verdicts in this case were
rendered by a jury that include one or more jurors who should have been discharged for
racial bias .…”8 In response to an admonition by the trial court concerning the “blowup”
that occurred and that the jury should not be using profanity, Juror No. 604 expressed that
the issue was what “people think of other people’s races.” Later, when questioning each
juror individually, the trial court then questioned Juror No. 604 about the issue of race.
She claimed jokes about race were made “regularly.” Juror No. 604’s allegations,
however, were not confirmed by any other juror.
8 The parties agree that Juror No. 604 and Juror No. 207 were the only two African-
American jurors on the jury.
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After the note was delivered to the trial court questioning whether Juror No. 604
could be discharged, the trial court spoke to Juror No. 303 and asked if race was
interjected into any of the arguments or discussion. Juror No. 303 stated that it was Juror
No. 604 who linked her race with her argument. Juror No. 303 denied there had been any
jokes related to race, but that there had been a “borderline” insinuation that certain people
were voting certain ways based on race, which Juror No. 303 then brought “out into the
open.”
The trial court also questioned Juror No. 833, who stated race had been interjected
into the discussions maybe the first two days, but that the comments were taken the
“wrong way” by Juror No. 604. Juror No. 458 also stated that it was Juror No. 604 who
brought up the issue of race when there had been a discussion of how Juror No. 207 at
times agreed with Juror No. 604, asking “is this because we’re black?” The jurors had all
agreed that had nothing to do with it. Juror No. 823 also agreed that it was Juror No. 604
who had brought up the issue of race whenever the other jurors did not agree with her.
Juror Nos. 439, 330, 243, and 617 echoed the same sentiments as the other jurors, that
Juror No. 604 equated a disagreement with her views as an attack on her race.
Juror No. 207, the only other African-American on the jury, was also asked about
the issue of race. He acknowledged the issue had come up and when asked if there had
been any jokes about race, he stated:
“I don’t even know if it was a joke. I just attributed [it] to age and silliness,
but a comment was made that I can relate to what you guys are going
through, meaning me and [Juror No. 604], because people have called me
the N word or called me a sand N word. And so my thing was, like, what
the hell does that have to do with this? [¶] So it didn’t go anywhere,
because, you know, I just thought it was silly, but I understood, I guess,
what he was trying to say. I guess he was trying to relate to the argument.
I don’t think it was … malice.”
In attempting to properly limit its inquiry regarding the content of the jury’s
deliberations, the trial court’s focus was limited to the jurors’ conduct during
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deliberations — specifically whether or not Juror No. 604 was refusing to deliberate.
Once the trial court determined there was sufficient evidence to support its finding that
Juror No. 604 should be discharged from the jury, it properly limited its intervention in
order to respect the sanctity of the deliberative process. There was no need for further
inquiry in this situation on the issue of race, and we reject appellant’s claim to the
contrary.
IV. DID THE TRIAL COURT ABUSE ITS DISCRETION IN DENYING THE
REQUEST TO DISCLOSE JUROR IDENTIFYING INFORMATION?
Appellant next contends that the trial court abused its discretion in denying his
petition for access to confidential juror information and in failing to follow the
procedures set out in Code of Civil Procedure section 237, which prevented him from
“developing a motion for new trial based on juror misconduct.” We find no error.
Background
On August 22, 2019, the jury found appellant guilty on counts 10, 11, 12, 13, and
15, and found true the special circumstance, enhancements, and special sentencing
allegations as to those counts. The jury was unable to reach a verdict on counts 1 through
9, and a mistrial was declared as to those counts.
On October 1, 2019, defense counsel filed a motion for new trial arguing, in part,
that juror misconduct had occurred.
On October 25, 2019, defense counsel filed a motion to order the disclosure of
juror information to “supplement [the] motion for new trial.” The motion alleged “good
cause” existed for disclosure of juror contact information, as provided by a defense
investigator, Mr. Pierce, who had been contacted by Juror No. 207 and told about events
“taking place during jury deliberations in this case.”
Defense counsel submitted a declaration from the investigator, who alleged that
Juror No. 207 claimed: (1) the foreperson did not preside over the deliberations; (2) the
jurors, at the outset, stated appellant was guilty and refused to deliberate; (3) the
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foreperson made comments regarding the amount of money that had been spent on the
trial and that the jury must therefore find appellant guilty; (4) Juror No. 330 professed to
be a firearms expert and stated his opinions to his fellow jurors; (5) the jurors attacked
other jurors to convince them to vote guilty; (6) the jurors exchanged text messages after
the trial regarding a social gathering to celebrate the conviction; and (7) at least one juror
conducted an internet search regarding the defense attorneys.
On October 29, 2019, the People filed an opposition to the motion for new trial,
arguing appellant “presented no evidence showing misconduct or bias on the part of any
juror” and that the declaration was inadmissible and “far from reliable.” In its opposition
for disclosure of juror information, the People noted that, while defense counsel was
already in possession of contact information for Juror No. 207, it had not submitted a
declaration from that juror.
Defense counsel subsequently filed additional exhibits to the motion, including
screenshots of post-verdict Facebook communications between the jurors arranging to
meet for drinks.
A hearing on the motion was held October 31, 2019, at which time defense
counsel argued that Juror No. 207 had disclosed that the foreperson “repeatedly raised the
issue of the cost of the trial as a reason to convict.” Defense counsel also referenced the
Facebook posts, arguing that “there was a great deal of social life going on” and
“certainly enough to investigate how far that went [and] when it began .…”
The People argued that Juror No. 207 had not come forward on his own or made
any statements under oath, but that the defense investigator knew Juror No. 207 through a
personal relationship, which led to the investigator’s statement. The People argued
further that the Facebook messages did not indicate the jurors were “celebrating a
conviction” and their communication and research into the issues after the verdict was
not improper.
36.
In addressing defense counsel’s request for disclosure of juror information, the
trial court noted that the investigator’s declaration listed “potentially eight issues that
were being raised … relative to some possible misconduct,” but that, in order to release
jury information, there must be a “prima facie showing of a good cause.” The trial court
then addressed the fact that there had been two juries involved in this case, the initial jury
and the jury after Juror No. 604 was discharged and another juror dismissed for hardship.
The trial court noted there had been “extensive investigations” into potential misconduct
on multiple occasions, including during deliberations.
The trial court noted that the affidavit defense counsel presented in support of
requesting juror information was not from Juror No. 207 himself but instead from the
defense investigator purporting to say what Juror No. 207 told him. Nevertheless, the
trial court explained that it was going to look at the allegations and assume they were true
and determine whether they established good cause for releasing the requested
information. In going through each of the allegations, the trial court noted that it had
evidence that some of the allegations were not true9 and, regardless, none of the
allegations supported a finding of misconduct, keeping in mind that it was “the second
jury that convicted [appellant], not the first jury.”
The trial court, in denying the motion for release of juror information, found no
prima facie showing of good cause for release of the jurors’ information based on what
had been presented, stating:
9 The trial court noted as to the allegations that there was no requirement that the
foreperson “preside over” deliberations, only that they guide them and make sure
everyone has a fair chance to be heard; that the refusal to deliberate had been
“extensively examine[d]”; that stating someone was guilty from the onset was not
“precluded” but “not usually helpful”; that the remarks about the cost of the trial and
whether jurors “attacked” other jurors were speculative and questionable as to whether
they were admissible; that the allegation that Juror No. 330 professed to be a firearms
expert was conclusory; and that the text messages related to the social gathering and
research on the attorneys took place after trial and were not relevant.
37.
“I have nothing that leads me to believe — because we had no issues with
the second jury. They deliberate[d] for a lengthy period of time and did
hang on many of the counts, most of the counts and we did not have any of
the issues that we had with that first [jury], so I have every reason to
believe they did follow the law.”
Applicable Law and Analysis
A trial court has “broad discretion” in ruling on a motion for jurors’ identifying
information, and we therefore review the court’s order denying defendant’s disclosure
request under a deferential abuse of discretion standard. (Cf. People v. Avila (2006) 38
Cal.4th 491, 604 (Avila); Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1096-1097
(Townsel).)
After the recording of a jury’s verdict in a criminal trial, the trial court must seal
“personal juror identifying information” such as jurors’ names, addresses, and telephone
numbers. (Code Civ. Proc., § 237, subd. (a)(2).) After a verdict is entered, a criminal
defendant may “petition the court for access to personal juror identifying information
within the court’s records 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).) Code of Civil Procedure section 237, subdivision (b) provides
that “[t]he petition shall be supported by a declaration that includes facts sufficient to
establish good cause for the release of the juror’s personal identifying information.”
Absent a showing of good cause for the release of the information, the public interest in
the integrity of the jury system and the jurors’ right to privacy outweighs the defendant’s
interest in disclosure. (Avila, supra, 38 Cal.4th at p. 604; Townsel, supra, 20 Cal.4th at p.
1096.)
To demonstrate good cause, a defendant must make a sufficient showing that
“talking to the jurors is reasonably likely to produce admissible evidence of juror
misconduct.” (People v. Johnson (2013) 222 Cal.App.4th 486, 493; see also People v.
Cook (2015) 236 Cal.App.4th 341, 345 [“Good cause, in the context of a petition for
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disclosure to support a motion for a new trial based on juror misconduct, requires ‘a
sufficient showing to support a reasonable belief that jury misconduct occurred.’ ”].)
Moreover, 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, quoting Evid. Code, § 1150, subd. (a).) “Good cause does not exist where the
allegations of jury misconduct are speculative, conclusory, vague, or unsupported.”
(Cook, at p. 346.) Our Supreme Court has cautioned that requests to access confidential
juror records “ ‘should not be used as a “fishing expedition” to search for possible
misconduct,’ ” and any further evidentiary hearing “ ‘should be held only when the
defense has come forward with evidence demonstrating a strong possibility that
prejudicial misconduct has occurred.’ ” (Avila, supra, 38 Cal.4th at p. 604.)
In addition, there are limits on the type of evidence that may be used to make the
prima facie showing of good cause. “Upon an inquiry as to the validity of a verdict, any
otherwise admissible evidence may be received as to statements made, or conduct,
conditions, or events occurring, either within or without the jury room, of such a
character as is likely to have influenced the verdict improperly. No evidence is
admissible to show the effect of such statement, conduct, condition, or event upon a juror
either in influencing him to assent to or dissent from the verdict or concerning the mental
processes by which it was determined.” (Evid. Code, § 1150, subd. (a), italics added.)
Therefore, neither we nor the trial court may consider why the foreperson made the
alleged comment regarding the time and cost associated with the trial, or whether the
comment had any impact on her or any other juror’s ultimate decision to find appellant
guilty. (See, e.g., People v. Jones (1998) 17 Cal.4th 279, 317 [“Telling a newspaper that
‘[w]e need a deterrent’ does not suggest that the juror, or any juror, considered deterrence
in deliberating.”]; see also People v. Hedgecock (1990) 51 Cal.3d 395, 419 [“when a
juror in the course of deliberations gives the reasons for his or her vote, the words are
simply a verbal reflection of the juror’s mental processes” and “[c]onsideration of such a
39.
statement as evidence of those processes is barred”].) Based on the foregoing, the trial
court did not abuse its discretion in refusing to release juror information in order to allow
defense counsel to go on a “fishing expedition” as to unknown statements that were
possibly made in the jury room.
Neither did the trial court abuse its discretion in finding that the defense
investigator’s declaration regarding Juror No. 330 was insufficient to justify the release
of sealed juror information. The declaration stated that Juror No. 207 told the
investigator that Juror No. 330 “professed to be a firearm expert and stated his opinion
and understanding about firearms throughout the deliberations as if he were a prosecution
witness.” While a juror commits misconduct by making a “claim to expertise or
specialized knowledge of a matter at issue,” “[i]t is not improper for a juror, regardless of
his or her educational or employment background, to express an opinion on a technical
subject, so long as the opinion is based on the evidence at trial.” (In re Malone, supra, 12
Cal.4th at p. 963.) “Jurors’ views of the evidence, moreover, are necessarily informed by
their life experiences, including their education and professional work.” (Ibid.) Jurors
“ ‘must be given enough latitude in their deliberations to permit them to use common
experiences and illustrations in reaching their verdicts.’ ” (People v. Cumpian (1991) 1
Cal.App.4th 307, 316.)
In People v. Steele (2002) 27 Cal.4th 1230, the defendant argued that jurors
with military and medical experience offered their expertise during deliberations.
While discussing the issue, the Supreme Court made the following pertinent
observation:
“A juror may not express opinions based on asserted personal expertise that
is different from or contrary to the law as the trial court stated it or to the
evidence, but if we allow jurors with specialized knowledge to sit on a jury,
and we do, we must allow those jurors to use their experience in evaluating
and interpreting that evidence. Moreover, during the give and take of
deliberations, it is virtually impossible to divorce completely one’s
background from one’s analysis of the evidence. We cannot demand that
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jurors, especially lay jurors not versed in the subtle distinctions that
attorneys draw, never refer to their background during deliberations. ‘Jurors
are not automatons. They are imbued with human frailties as well as
virtues.’ [Citation.] [¶] “A fine line exists between using one’s
background in analyzing the evidence, which is appropriate, even
inevitable, and injecting ‘an opinion explicitly based on specialized
information obtained from outside sources,’ which we have described as
misconduct.” (Steele, supra, 27 Cal.4th at p. 1266.)
The trial court here found the statement regarding Juror No. 330 “really
conclusory,” and did not provide any facts upon which the trial court could have found
misconduct. The trial court noted that there had been “extensive testimony from firearms
experts on bullets, the size of bullets” at trial. We note that nothing in the investigator’s
statement indicated that Juror No. 330’s comments were anything other than expressing
an opinion based on the evidence at trial. (In re Malone, supra, 12 Cal.4th at p. 963.)
Under these circumstances, the trial court could well conclude appellant had not
made a sufficient showing “ ‘to support a reasonable belief that jury misconduct
occurred.’ ” (Jones, supra, 17 Cal.4th at p. 317, italics added.) Therefore, we cannot say
the trial court’s findings in this regard were an abuse of discretion and we deny
appellant’s request to remand the matter to the trial court to release juror information.
V. DID THE TRIAL COURT ABUSE ITS DISCRETION IN DENYING
APPELLANT’S MARSDEN MOTION?
Appellant next contends that the trial court abused its discretion in denying his
Marsden motion, because defense counsel “had fallen asleep” and was “absen[t]” during
“critical portions of the trial.” We disagree.
Background
A criminal complaint was filed against appellant on July 27, 2016. Attorney J.
Anthony Bryan (Bryan) was appointed to represent appellant and, after a preliminary
hearing March 7, 2017, appellant was held to answer the charges on March 14, 2017.
More than two years later, after several motions were filed and argued by both the
People and defense counsel, voir dire began on May 13, 2019, and continued for nine
41.
days. On the seventh day of voir dire, one of the potential jurors asked to speak to the
court in private. When doing so, the potential juror stated his concern that, “the defense
attorney is sleeping, because I actually asked him or talked about him when I was being
asked questions yesterday and the other defense attorney[10] had to nudge him to wake
him up and I don’t think he even knows that I was talking about him.”
The trial court noted that it did not see defense counsel sleeping, but that it was
possible that it was not paying attention. The trial court then asked the potential juror if
he would potentially hold this against appellant or defense counsel. The potential juror
stated that he would not hold it against appellant, but that he “may be more inclined to
say, [appellant] isn’t get[ting] a fair shake. It could go either way.” The potential juror
then clarified that, if he got on the jury, it would rub him the wrong way, but he did not
think it would influence his decisions. The potential juror was subsequently excused by
then co-defendant Lee’s counsel.
The jury was ultimately sworn on May 23, 2019, opening statements were made
on May 29, 2019, and the first witness testified May 31, 2019. Witness testimony
continued June 3, 4, 5, 7, and 11, with defense counsel Bryan actively cross-examining
the prosecution’s witnesses. No witnesses were called June 6 and 10, 2019.
On June 12, 2019, prior to the sixth day of witness testimony, appellant requested
a Marsden hearing, which was held outside the presence of the prosecutor and
codefendant’s attorney. At the hearing, appellant stated that he did not think he was
being represented to the “best ability,” due to Bryan’s illness. Appellant felt that Bryan’s
cross-examination of the witnesses was ineffective because he was “falling asleep” or
“dozing off” during the prosecution’s questioning of the witnesses. Appellant claimed
10 Referring to defense attorney Gary Turnbull, who was representing then
codefendant Lee (see fn. 2).
42.
his family had seen Bryan falling asleep and that he kept “having to tap him and wake
him up.”
Appellant further argued:
“I know that he’s sick, so I really be trying to be hold off and just let
him get through what he’s going through. At the end of the day, it’s still
my life, sir. It’s ineffective counsel. And, then, when he get up there to
examine the witnesses, he’s misstating testimony almost every time he get
up there and the prosecutor even is saying, oh, no, that’s wrong. Mr. Bryan
is totally wrong and everybody in this courtroom sees Mr. Bryan falling
asleep, everybody, the jurors, my family.
“I’m pretty sure you’ve seen it and even the bailiffs, they see that.·
Everybody that has Mr. Bryan as a client says that Mr. Bryan falls asleep
and it’s not fair to me. I feel like because I’m facing so much time, my
family want me home. At least if we go through this trial, I want to go
through this trial with an attorney that’s going to be here that’s paying
attention to everything that’s going on with every witness, not just the
witnesses ... that’s supposed to be victims or witnesses to a crime that
happened, every witness, the doctors, everything, sir and I’m not get
representing right and there have been times where I wrote stuff down and
let Mr. Bryan know that I wrote this down, because he didn’t hear it.
“It’s been times where the D.A. showed [codefendant’s attorney]
pictures and Mr. Bryan is right here nodding off and I got to tap him to look
at the picture. I feel like it’s really not fair to me and my life, sir.”
When asked, Bryan responded that appellant had been upset regarding objections
the prosecutor had made during cross-examination, and that he had tried to explain to
appellant that he could not stop the prosecutor from making such objections. Bryan also
stated that he had looked at “every single diagram” and was in possession of the
photographs the prosecutor was presenting. Bryan further explained that he had spoken
with appellant at the jail and they had discussed his defense strategy, which Bryan
disagreed with.
The trial court then asked Bryan about appellant’s concerns regarding Bryan
dozing off, stating that the court “well may have observed something” and they had taken
off days for Bryan’s medical appointments. The trial court also brought up the fact that
43.
the earlier noted potential juror believed Bryan had been dozing off. The trial court
stated that it was “difficult to tell if somebody [is] dozing off or somebody is just in some
sort of deep thought,” and while the trial court did not know if Bryan was dozing off, it
was aware that Bryan “certainly had [his] eyes closed.” The trial court also noted,
however, that Bryan was responsive when it was his turn, “which [was] some indication”
that he was not asleep.
Bryan stated that appellant had “accused [him] of [sleeping] numerous times when
[he] was not.” Bryan explained that he did close his eyes to listen, he could hear what
was going on and was ready when it was his turn to respond.
The trial court explained that it had been involved in “some lengthy trials” with
Bryan in the past and that it could not recall any other times where Bryan may have been
sleeping. The trial court stated it did not wish to “delve deeply” into Bryan’s “situation,”
but asked Bryan if there was “something now that you’re taking or some medication that
they are giving you that you think might cause drowsiness.” Bryan responded that he
was taking “ a lot of stuff,” but was “pretty sure” none of them were narcotic.
The trial court noted that it recalled informal discussions in chambers where Bryan
may have dozed off, but the discussions were inconsequential, although they had
occurred in the middle of the day, “which is of some concern.” The trial court asked
Bryan “how many times do you think [appellant] may have nudged and you’ve had some
sort of discussion with him that he thought you were sleep?”
Bryan agreed that appellant had nudged him numerous times, but that he was
“absolutely not” sleeping “most of the time,” but acknowledged that he did not know for
sure “about the others.” Bryan explained that he had “closed [his] eyes in probably every
lawsuit [he had] ever done and sometimes it helps [him] listen.” The trial court, noting
that it was not a requirement for Bryan to have his eyes open, asked if he was “missing
some aspects of the testimony or the evidence or some issues in the case that somehow
44.
are impacting [his] representation.” Bryan stated that he knew “what every witness has
said.”
When the trial court asked appellant if he wished to respond, appellant stated that
there had been numerous times he had nudged Bryan and Bryan did not wake up.
Appellant insisted that “anybody on the panel or anybody in the audience” would agree
that Bryan appeared to be sleeping. Appellant then gave examples of Bryan’s tactical
choices which he disagreed with, and he had a “gut feeling” he needed a new attorney.
Appellant claimed Bryan had been “popping pills, taking prescription medicine, a whole
bag full” while in court. Bryan responded that he was taking a medication for restless leg
syndrome, but that was the only medication he had taken in the courtroom.
Appellant then asked the trial court if it was possible for the court to “ask anybody
that’s been in the courtroom if they have seen [Bryan] falling asleep.” The trial court
stated that it did not need to do so because “people’s opinions might differ,” but that it
was “accepting” appellant’s idea that he thought and honestly believed Bryan had dozed
off at times and he had to nudge him to wake him up.
Appellant again reiterated his concerns that Bryan was not paying attention to
what was going on. He further claimed that Bryan was “sick” and an “older man” and
that the issue had been going on for years “since [the] preliminary hearing.”
The trial court stated that it had been through “numerous in limine motions” with
Bryan in this case and that Bryan had been “relentless in his defense.” The trial court
noted that there had been one situation prior to jury selection where it believed, in its
opinion, that Bryan was asleep, “beyond that, [it had] watched and [it could not] say 100
percent if he was awake or not.” The court explained further that it was “assuming for
argument’s sake, [Bryan] dozed off and he hasn’t caught everything that’s said in the
courtroom,” but that, given Bryan’s questioning of the witnesses, the trial court could not
“say there’s evidence within his performance that [led the court] to believe he’s missed
something significant to the extent that somehow he’s not effectively representing, but [it
45.
could not] say 100 percent he hasn’t missed something.” The trial court noted, however,
that even when attorneys are awake they may not be paying attention.
Appellant again stated that he would wake Bryan when he realized the prosecutor
was going to be done with a witness, and he would give his notes to Bryan, and appellant
did not feel that he should have to assist counsel in such a way.
The trial court again stated that it was not discounting what appellant was saying,
but that there was no indication, based on Bryan’s performance, that he had dozed off in a
way that had impacted his ability to represent appellant. The trial court further noted that
Bryan was “zealously representing” appellant in cross-examination and that the court had
evidence, based on Bryan’s arguments with the prosecutor and codefendant’s attorney, as
well as issues with the court, “that obviously shows he’s paying attention to what’s going
on.”
Appellant again reasserted that Bryan was dozing off, and the trial court explained
that that was not enough evidence to find Bryan had not been effectively representing
him. The trial court stated that it was going to deny the motion “at this time,” but was
going to pay “closer attention” to Bryan and appellant could raise the issue in the future if
the issue persisted. The trial court invited appellant to take up the issue at any break in
the trial, and it asserted that, if he did so, the court would have another Marsden hearing.
Appellant did not request another Marsden hearing, and, at the end of trial after
the jury was unable to reach a verdict as to nine counts, the trial court stated that Bryan
had “represented [appellant] to the fullest.”
Applicable Law and Analysis
“The seminal case regarding the appointment of substitute counsel is Marsden,
supra, 2 Cal.3d 118, which gave birth to the term of art, a ‘Marsden motion.’ ” (People
v. Smith (1993) 6 Cal.4th 684, 690.) Marsden held that a defendant has a right to
substitute counsel on a proper showing that the constitutional right to counsel would
46.
otherwise be substantially impaired. (Marsden, supra, at p. 123; see People v. Nakahara
(2003) 30 Cal.4th 705, 718.)
“The legal principles governing a Marsden motion are well settled.” (People v.
Lara (2001) 86 Cal.App.4th 139, 150.) When a defendant pursuant to Marsden seeks
substitution of appointed counsel, “ ‘the trial court must permit the defendant to explain
the basis of his contention and to relate specific instances of inadequate performance. A
defendant is entitled to relief if the record clearly shows that the appointed counsel is not
providing adequate representation or that defendant and counsel have become embroiled
in such an irreconcilable conflict that ineffective representation is likely to result.’ ”
(People v. Taylor (2010) 48 Cal.4th 574, 599 (Taylor).) “A trial court should grant a
defendant’s Marsden motion only when the defendant has made ‘a substantial showing
that failure to order substitution is likely to result in constitutionally inadequate
representation.’ ” (People v. Hines (1997) 15 Cal.4th 997, 1025.) “A defendant does not
have the right to present a defense of his own choosing, but merely the right to an
adequate and competent defense.” (People v. Welch (1999) 20 Cal.4th 701, 728.)
“We review the denial of a Marsden motion for abuse of discretion.” (Taylor,
supra, 48 Cal.4th at p. 599.) “Denial is not an abuse of discretion ‘unless the defendant
has shown that a failure to replace counsel would substantially impair the defendant’s
right to assistance of counsel.’ ” (Ibid.)
The theme dominating appellant’s Marsden motion was that he alleged Bryan was
not paying attention because he was dozing off and therefore not providing him with
effective assistance. It is clear from the record here, which we addressed at length, that
the trial court conducted a sufficient inquiry during the Marsden hearing. (See People v.
Silva (2001) 25 Cal.4th 345, 367.) As explained by our Supreme Court, “a Marsden
hearing is not a full-blown adversarial proceeding, but an informal hearing in which the
court ascertains the nature of the defendant’s allegations regarding the defects in
counsel’s representation and decides whether the allegations have sufficient substance to
47.
warrant counsel’s replacement.” (People v. Hines, supra, 15 Cal.4th at p. 1025.) Here,
the trial court allowed appellant to state his concerns at length and permitted Bryan to
respond; after appellant’s conviction, the trial court concluded Bryan had “represented
[appellant] to the fullest.” To the extent the trial court made a credibility determination,
the court “was ‘entitled to accept counsel’s explanation.’ ” (People v. Rices (2017) 4
Cal.5th 49, 69.) We find no abuse of discretion on the part of the trial court in finding it
unnecessary to replace Bryan.
“The standard for prejudice regarding a denied Marsden motion is under Chapman
v, California (1967) 386 U.S. 18.” (People v. Loya (2016) 1 Cal.App.5th 932, 945.)
Here, even if the trial court erred in denying appellant’s Marsden motion, the error was
harmless beyond a reasonable doubt. The record shows beyond a reasonable doubt
appellant would not have achieved a more favorable result had the trial court appointed
new counsel to represent him. (See e.g., People v. Washington (1994) 27 Cal.App.4th
940, 944.) Bryan was able to get the jury to hang on nine counts and appellant has not
argued on appeal that there was insufficient evidence to uphold his convictions on the
remainder of the counts, including murder, attempted murder and conspiracy to commit
murder.
VI. MUST THE GREAT BODILY INJURY ENHANCEMENT APPLIED TO
COUNT 13 AND THE ATTACHED GANG ENHANCEMENT BE
STRICKEN?
Appellant next contends that the trial court erred in imposing firearm (§ 12022.5,
subd. (a)) and great bodily injury (§ 12022.7, subd. (a)) enhancements on his conviction
on count 13, possession of a firearm by a felon (§ 29800, subd. (a)(1)). He further
contends that the trial court erred in imposing a 10-year gang enhancement (§ 186.22,
subd. (b)(1)) on that count. We agree and remand for resentencing.
48.
Background
Appellant was charged, inter alia, in count 13 of possession of a firearm by a felon
(§ 29800, subd. (a)(1)). As to all counts, it was alleged that he had a prior strike (§ 667,
subds. (c)-(j)), a prior serious felony (§ 667, subd. (a)), and two prison priors (§ 667.5,
subd. (b)). As to counts 1 through 13, it was alleged that appellant had committed the
offenses for the benefit of, at the direction of, or in association with a criminal street gang
(§ 186.22, subd. (b)(1)). As to count 13, specifically, it was further alleged that appellant
used a firearm during the commission of the offense (§ 12022.5, subd. (a)), and that he
inflicted serious bodily injury (§ 12022.7, subd. (a)). Appellant was found guilty of the
underlying offense and the jury found all three enhancement allegations true.
The trial court sentenced appellant to the upper term of three years on count 13,
plus 10 years for the gang enhancement, 10 years for the firearm enhancement, and three
years for the great bodily injury enhancement. The sentence on count 13 was stayed
pursuant to section 654.
Applicable Law and Analysis
Section 29800, subdivision (a)(1) provides, in pertinent part, “[a]ny person who
has been convicted of a felony … and who owns, purchases, receives, or has in
possession or under custody or control any firearm is guilty of a felony.”
Section 12022.5, subdivision (a), provides, in pertinent part, that “any person who
personally uses a firearm in the commission of a felony or attempted felony shall be
punished by an additional and consecutive term of imprisonment in the state prison for
three, four, or 10 years, unless use of a firearm is an element of that offense.” Similarly,
section 12022.7, subdivision (a) provides, in pertinent part, that “[a]ny person who
personally inflicts great bodily injury on any person other than an accomplice in the
commission of a felony or attempted felony shall be punished by an additional and
consecutive term of imprisonment in the state prison for three years.”
49.
“A gun use occurs ‘in the commission of’ an offense if the gun use in fact
objectively facilitated the commission of the offense.” (People v. Wardell (2008) 162
Cal.App.4th 1484, 1495, ital. in orig.) “ ‘Although the use of a firearm connotes
something more than a bare potential for use, there need not be conduct which actually
produces harm but only conduct which produces a fear of harm of force by means or
display of a firearm in aiding the commission of one of the specified felonies. “Use”
means, among other things, “to carry out a purpose or action by means of,” to “make
instrumental to an end or process,” and to “apply to advantage.” ’ ” (People v. Bland
(1995) 10 Cal.4th 991, 997, quoting People v. Chambers (1972) 7 Cal.3d 666, 672.)
In In re Pritchett (1994) 26 Cal.App.4th 1754, the defendant struck his former
girlfriend in the head with the barrel of a sawed-off shotgun. (Id. at p. 1756.) He was
convicted of possession of a short-barreled shotgun, and a gun use enhancement under
section 12022.5, subdivision (a), was found to be true. On review, the court ordered that
the gun use enhancement be stricken because the gun was not used in the commission of
the possession offense. (Id. at pp. 1757-1758.) The court explained that, “[a]lthough [the
defendant] used the shotgun as a club during the possession of it, he did not use it ‘in the
commission’ of his crime of possession. Possession was complete without use of the
shotgun. In addition to possessing it, he did use it, but using it as a club in no way
furthered the crime of possession.” (Id. at p. 1757.)
The “commission of a crime under [section 29800] is complete once the intent to
possess is perfected by possession.” (People v. Ratcliff (1990) 223 Cal.App.3d 1401,
1414 [addressing section 12021 which was repealed and continued by section 29800
without substantive change].) “What the ex-felon does with the weapon later is another
separate and distinct transaction undertaken with an additional intent which necessarily is
something more than the mere intent to possess the prescribed weapon.” (Ibid.) Thus,
50.
appellant’s later use of the gun to facilitate the crimes and inflict great bodily injury in no
way furthered the already completed crime of possession of the firearm. Thus, the gun-
use enhancement (§ 12022.5, subd. (a)) and the great-bodily injury enhancement
(§ 12022.7, subd. (a)) on count 13 must be stricken.
We next address the 10-year gang enhancement. Section 186.22, subdivision
(b)(1), provides for enhancing a felony sentence as follow: “(A) Except as provided in
subparagraphs (B) and (C), the person shall be punished by an additional term of two,
three, or four years at the court’s discretion. [¶] (B) If the felony is a serious felony, as
defined in subdivision (c) of Section 1192.7, the person shall be punished by an
additional term of five years. [¶] (C) If the felony is a violent felony, as defined in
subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10
years.”
While section 667.5, subdivision (c), lists a violation of section 12022.5 and
12022.7 as a “violent felony,” and subject, according to section 186.22, subdivision
(b)(1)(C), to an additional 10-year term, once the sections 12022.5 and 12022.7
enhancement allegations are stricken from count 13, the 10-year gang enhancement
imposed would not apply.
Section 667.5, subdivision (c), does not list the underlying offense, felon in
possession of a firearm as a violent felony, and section 1192.7, subdivision (c), does not
list felon in possession of a firearm as a serious felony. (See People v. Prieto (2003) 30
Cal.4th 226, 276 [possession of a firearm by a felon in violation of section 29800,
subdivision (a)(1) (former § 12021, subd. (a)) “ is not a serious felony as defined in
51.
section 1192.7, subdivision (c)”].) Thus, the maximum gang enhancement the trial court
was authorized to impose on count 13 was four years.11 (§ 186.22, subd. (b)(1)(A).)
Accordingly, we remand the matter to the trial court to resentence appellant on
count 13.12
VII. WAS APPELLANT INCORRECTLY SENTENCED ON COUNT 11?
Appellant was convicted of premeditated attempted murder in count 11, and the
trial court imposed a sentence of 15 years to life, plus 20 years under section 12022.53,
subdivision (c). In sentencing appellant on this count, the trial court made no mention of
the enhancement finding under section 186.22, subdivision (b).
Where, as here, the gang allegation under section 186.22, subdivision (b) was
found true and the underlying felony already carries a life sentence (§ 664, subd. (a)
[prescribing life sentence for attempted willful, deliberate and premeditated murder] ),
“section 186.22, subdivision (b)(5) ... applies and imposes a minimum term of 15 years
before the defendant may be considered for parole.” (People v. Lopez (2005) 34 Cal.4th
1002, 1004; accord People v. Johnson (2003) 109 Cal.App.4th 1230, 1239 [when crime is
gang-related and underlying felony already carries life sentence, “section 186.22,
subdivision (b)(5) requires that the defendant serve a minimum of 15 calendar years
before being considered for parole”]; People v. Harper (2003) 109 Cal.App.4th 520, 527
[“Because Harper was sentenced to a life term, section 186.22 mandates that the alternate
punishment of a 15-year parole eligibility be imposed.”].)
Appellant contends that the trial court erred when it imposed a sentence of 15
years to life on this count, as the sentence for premeditated attempted murder is an
11 But see part XI. of the Discussion, in which we address the validity of the gang
enhancements in the wake of Assembly Bill 333.
12 It is noted that none of the enhancements for count 13 are listed on the abstract of
judgment. Upon remand, whatever enhancements remain should be listed correctly.
52.
indeterminate term of life in prison with the possibility of parole. While appellant
acknowledges that the gang enhancement attached to that count would have allowed for a
15-year minimum parole eligibility, the “record is unclear regarding why the court
sentenced [appellant] to 15 years to life on count 11” and argues that the matter must be
remanded to allow the trial court to resentence him. The trial court does have the ability
to exercise leniency regarding the gang enhancement. (See People v. Fuentes (2016) 1
Cal.5th 218, 222 [“A trial court has the discretion to strike the gang enhancement
altogether under section 1385(a)”].) Here, the record indicates that, before sentencing
appellant, the trial court stated that the gang enhancement allegations were all found true,
but they were moot due to the length of the sentence appellant would be serving on each
count.
Appellant further contends that, if the trial court imposed the 15 years to life
sentence on count 11 based on the gang enhancement finding, the trial court still erred
because section 186.22, subdivision (b)(5) provides that where, as here, a defendant
commits a crime punishable by imprisonment for life, the defendant “shall not be paroled
until a minimum of 15 calendar years have been served.” Thus, the sentence should be
stated as a 15-year minimum parole period, not as a sentence of 15 years to life.
Appellant asks that we remand to the trial court to clarify how and why the trial
court sentenced appellant to 15 years to life on count 11. Respondent does not oppose
appellant’s request to modify the sentence on count 11 to a life term with a minimum
parole eligibility of 15 years, but does not think remand is necessary, questioning whether
there is a practical effect between the sentence imposed by the trial court of 15 years to
life and a life term with a minimum parole eligibility of 15 years.
53.
We are already remanding this case to allow the trial court to resentence appellant
on count 13. We therefore remand to allow the trial court to clarify or resentence
appellant on count 11 as well.13
VIII. SHOULD THE ABSTRACT OF JUDGMENT BE MODIFIED TO
ACCURATELY REFLECT THE PROCEEDINGS AS TO COUNTS 1 AND
3 THROUGH 6?
Appellant next requests that the abstract of judgment be modified as it mistakenly
states that the sentences for counts 1, 3, 4, 5 and 6 were consecutive terms, and that these
convictions were by jury rather than by plea. Respondent agrees that the abstract of
judgment be modified to reflect this, as do we.
Background
On August 22, 2019, a jury found appellant guilty on counts 10, 11, 12, 13, and
15, and a mistrial declared on counts 1 through 9, after the jury was unable to reach a
verdict on those counts.
On September 4, 2019, counts 1 and 3 were amended to charge appellant with
assault with a firearm (§ 245, subd. (b)). Appellant subsequently plead no contest to five
counts of assault with a firearm: counts 1, 3, 4, 5, and 6; counts 2 and 7, 8 and 9, were
dismissed in the interest of justice.
The written plea form signed by appellant states that the 17-year total sentence on
counts 1, 3, 4, 5, and 6 would be concurrent to the sentence on counts 10 through 15. At
the time appellant entered the plea, the People noted that the 17 years would run
concurrent to the sentence for the counts found true by the jury. The oral pronouncement
of sentence and the minute order correctly reflect that the sentence on count 1, 3, 4, 5,
and 6 would be served consecutive to one another, totaling 17 years, but that the 17 years
would be served concurrent with count 10.
13 But see footnote No. 11, above.
54.
The abstract of judgment on the determinate sentence, states that the sentence on
each of counts 1, 3, 4, 5, and 6 are consecutive, but nowhere does the abstract state that
the 17 years is concurrent with appellant’s sentence on the remaining counts. The
abstract of judgment also states that appellant was convicted by jury of those counts,
rather than by plea.
The abstract of judgment is not itself the judgment of conviction and cannot
prevail over the trial court’s oral pronouncement of judgment to the extent the two
conflict. (§§ 1213, 1213.5; People v. Mitchell (2001) 26 Cal.4th 181, 185.) An appellate
court may exercise authority to correct clerical errors, including correcting an abstract of
judgment. (Mitchell, supra, at p. 185.)
We order that the abstract of judgment be corrected to indicate that appellant
entered a plea as to counts 1, 3, 4, 5, and 6. In addition, at the bottom of the abstract of
judgment, where it states, “TIME IMPOSED ON THIS ATTACHMENT PAGE,” with
the total “23” years, should be an indication that the consecutive 17 years for counts 1, 3,
4, 5, and 6 are to run concurrent to the term imposed in count 10.
IX. MUST THE ABSTRACT OF JUDGMENT BE CORRECTED TO REFLECT
THE NAMES OF THE VICTIMS RECEIVING RESTITUTION?
Appellant next contends that the abstract of judgment must be corrected to show
the payees of the order for victim restitution. We disagree, finding that this information
is adequately included in the probation officer’s report.
Background
At the time of sentencing, the trial court ordered appellant to pay a total of $1,834
in victim restitution. This amount included $334 to the family of Bryan Anderson and
$1,500 to the restitution fund to cover the amount that had been paid out to Katrina
Davis. The trial court noted that the amount related to the remaining victims were to be
determined. The abstract of judgment notes the total amount of the victim restitution, but
55.
it does not list the breakdown. Instead, the abstract of judgment notes that the victims’
names are included in the probation officer’s report.
The probation report states that appellant is to pay $334 to Anderson’s family and
$1,500 to the Victim Compensation and Government Claims Board to reimburse it for
moneys paid to Davis. The probation report states further that other amounts are to be
determined for the remaining victims.
Analysis
The abstract of judgment form provides an option to either list the victims’ names
on the form itself, or note that the information is provided in the probation report. Here,
the latter option was used. Appellant does not explain why the reference to the probation
report is insufficient. Because the victims’ names and the breakdown of payments are
accurately reflected in the probation report, we see no reason to require that the abstract
of judgment be amended for this purpose.
X. IF APPELLANT’S MURDER CONVICTION IS REVERSED, MUST THE
TRIAL COURT RE-EVALUATE HIS ELIGIBILITY FOR CONDUCT
CREDITS?
Because appellant was convicted of murder, he was not awarded any conduct
credits, which are precluded by section 2933.2, subdivision (a), which provides no
conduct credits are to be given to “any person who is convicted of murder.” Appellant
contends that, if his murder conviction is reversed, he would be entitled to conduct credits
for counts 1 and 3, 4, 5, and 6, the counts to which he pled no contest.
We, however, find no error requiring reversal of the murder conviction and
therefore do not need to address this issue further.
56.
XI. DOES ASSEMBLY BILL 333 APPLY TO THE SUBSTANTIVE OFFENSE
IN SECTION 186.22, SUBDIVISION (A), THE GANG SENTENCING
ENHANCEMENT IN SUBDIVISION (B)(1), AND THE SECTION 190.2,
SUBDIVISION (A)(22), THE GANG-MURDER SPECIAL
CIRCUMSTANCE ENHANCEMENT?
Appellant was convicted, in count 10, of the 2015 murder of Brian Anderson with
malice aforethought. (§ 187.) The jury also found that appellant committed the murder
while participating in, and for the benefit of a criminal street gang (§ 190.2, subd.
(a)(22)). The jury also convicted appellant, in count 11, of the attempted murder of
Darnell Dickerson (§§ 664/187, subd. (a)), in count 12, with conspiracy to commit
murder (§ 182, subd. (a)(1)), and, in count 15, of active participation in a criminal street
gang (§ 186.22, subd. (a)). As to counts 10, 11, 12, and 13, the jury also found true the
allegations that appellant committed the offenses for the benefit of, at the direction of, or
in association with a criminal street gang (§ 186.22, subd. (b)(1)).14
In supplemental briefing, appellant contends Assembly Bill 333 requires reversal
of the gang-based findings in this case (§ 186.22, subds. (a) & (b)(1)), as well as the
gang-based special circumstance findings (§ 190.2, subd. (a)(22)). The People agree that
the amendments to section 186.22 should be applied retroactively, but contend the error
in this case is harmless. The People also contend Assembly Bill 333 unconstitutionally
amended section 190.2, subdivision (a)(22).
We agree that the amendments to section 186.22 apply retroactively. Section
186.22, subdivisions (a) and (b)(1) provide for additional punishment when the defendant
is found guilty of participation in a criminal street gang (§ 186.22, subd. (a)) and the
defendant committed the offense(s) for the benefit of, or in association with, a criminal
street gang (§ 186.22, subd. (b)(1)). Under In re Estrada (1965) 63 Cal.2d 740, absent
evidence to the contrary, we presume that the Legislature intended such ameliorative
14 But see part VI. of the Discussion, above, addressing the gang enhancement
allegation in count 13.
57.
changes to the criminal law to apply to all criminal cases not yet final on appeal. (Id. at
pp. 744-746; People v. Nasalga (1996) 12 Cal.4th 784, 792; Tapia v. Superior Court
(1991) 53 Cal.3d 282, 301.) Assembly Bill 333 is an ameliorative amendment that
increases the threshold for imposition of a gang enhancement. (People v. Lopez (2021)
73 Cal.App.5th 327, 345 (Lopez 2021); accord, People v. Vasquez (2022) 74 Cal.App.5th
1021, 1032.) Because Assembly Bill 333 is silent regarding retroactivity, under Estrada,
we presume it applies retroactively to all nonfinal cases on appeal, including this one.
(See, e.g., Lopez 2021, supra, at pp. 343-344; People v. Sek (2022) 74 Cal.App.5th 657,
667 (Sek).)
We also agree that the amendments require the reversal of the gang conviction and
enhancements under section 186.22, and, despite the People’s argument (which we
discuss below), also apply to the gang-murder special circumstance findings under
section 190.2, subdivision (a)(22).
Before Assembly Bill 333 was enacted, the statute defined a “ ‘criminal street
gang’ ” as “any ongoing organization, association, or group of three or more persons, ...
having as one of its primary activities the commission of one or more [enumerated
criminal acts], having a common name or common identifying sign or symbol, and whose
members individually or collectively engage in, or have engaged in, a pattern of criminal
gang activity.” (§ 186.22, former subd. (f); Stats. 2017, ch. 561, § 178.) To establish a
“pattern of criminal gang activity,” the prosecution needed to prove only that those
associated with the gang committed two or more predicate offenses within a period of
three years and that the offenses were committed on separate occasions, or by two or
more persons on the same occasion. (§ 186.22, former subd. (e); Menifee v. Superior
Court (2020) 57 Cal.App.5th 343, 362.) A predicate offense could be established by
evidence of the charged offense, and, in most cases, it was unnecessary to prove that the
predicate offenses were gang related. (Menifee, supra, at p. 362; People v. Rodriguez
58.
(2022) 75 Cal.App.5th 816, 822 (Rodriguez); People v. Garcia (2020) 46 Cal.App.5th
123, 165.)
Assembly Bill 333 increased the evidentiary requirements to prove a gang-related
enhancement in several respects. First, it narrowed the definition of “ ‘criminal street
gang’ ” to “an ongoing, organized association or group of three or more persons ... whose
members collectively engage in, or have engaged in, a pattern of criminal gang activity.”
(§ 186.22, subd. (f).) The statute now requires the prosecution to prove that two or more
gang members committed each predicate offense. (People v. E.H. (2022) 75 Cal.App.5th
467, 477 (E.H.).)
Second, Assembly Bill 333 created stricter requirements to prove “a pattern of
criminal gang activity.” Under the new legislation, (1) the last predicate offense must
have occurred not only within three years of the prior predicate offense, but also within
three years of the date of the currently charged offense; (2) the predicate offenses must
have “commonly benefited a criminal street gang,” and that benefit must be “more than
reputational;” and (3) the currently charged offense cannot be used as a predicate offense.
(§ 186.22, subds. (e)(1)-(2), (g); Lopez 2021, supra, 73 Cal.App.5th at p. 345; Rodriguez,
supra, 75 Cal.App.5th at pp. 822-823.)
The evidence presented regarding the pattern of criminal gang activity consisted of
several members of the Bakersfield Police Department testifying regarding past criminal
conduct of members of the County Boy Crips. The predicate offenses that were
presented involved Country Boy Crips members Jimmy Baker, Tevin Williamson, and
Adolphus Newell.
Officer John Billdt testified that, on February 10, 2013, Flowy Beam was shot and
killed in the area of Roy’s Market in Kern County. Officer Ryan Kroeker testified that
Baker was subsequently arrested and convicted of Beam’s murder.
Officer Robert Woods testified that, on March 16, 2013, he and his partner David
Brooks were on patrol in an area known to be “within the traditional boundaries of the
59.
East Side Crips.” While on patrol, the officers observed a vehicle and, as the vehicle
passed the officers, the two occupants attempted to duck out of view. The vehicle then
made an abrupt turn and took off; Officers Wood and Brooks pursued the vehicle and
attempted to make a traffic stop. The vehicle continued to accelerate and eventually
crashed into a fence. One of the occupants, Williamson, exited the vehicle, holding a
handgun and fled on foot. Another officer subsequently found a nine-millimeter handgun
in the area and Williamson was apprehended and later convicted of possession of a
handgun.
Detective Keegan Gavin testified that, on July 5, 2014, he was in the area of 20th
and K street, a common hangout for the Country Boy Crips, when he observed Newell
walking through the parking lot. When Newell saw Detective Gavin, he removed a “dark
colored object” from his waistband, and fled. Newell was subsequently apprehended and
a firearm located in the area where he fled. When Newell was arrested, he was wearing a
T-shirt with airbrushed writing referencing subsets of the East Side Crips. Newell was
later convicted of possessing the gun that had been recovered.
Officer Michael Malley testified as an expert in the area of criminal street gangs
and opined, based on other officer’s contact with appellant and appellant’s tattoos and
social media, that appellant was an active member of the Country Boy Crips on July 9,
2015. Officer Malley testified that the primary activities of the Country Boy Crips are
“[m]urders, assaults with deadly weapons, robberies, carjackings, burglaries, criminal
threats, witness intimidation as well as possession of stolen property and illegal firearms,
possession as well as the possession for sale and the sell[ing] of illegal drugs.” Officer
Malley opined that the Country Boy Crips has a reputation of being violent and that
firearms are a tool that allow its members to “commit a number of primary activities,”
“control victims,” and “victimize their rivals” as well as provide mutual protection for the
Country Boy Crips.
60.
Officer Malley referenced the three predicate offenses that had been introduced
into evidence earlier by other officers and opined that Baker, Williamson, and Newell
were all active members of the Country Boy Crips. Officer Malley explained that
Baker’s offense involved a murder that occurred in the territory of a rival gang, the East
Side Crips; that Williamson’s offense involved possession of a firearm and gang
participation also occurring in the territory of a rival gang, and he then fled to a location
that was common for Country Boy Crips members to use in an attempt to escape police;
and that Newell was in possession of a firearm at a “known” Country Boy Crips hangout
and was wearing a shirt disrespecting his rival gang.
Here, we find the evidence presented at trial was insufficient to prove the gang
enhancements under the new law. While the prosecution’s expert testified about several
ways in which a crime would benefit a criminal street gang, at least one of these (to
“control victims” and perhaps “victimize their rivals”) was reputational. In closing
arguments, the prosecutor argued appellant’s crimes benefited the gang because “the
benefit of the gang,” is that “You are feared. You are a force. You are in power.”
Consistent with former section 186.22, the trial court instructed the jury in this
case on the gang enhancement, and informed the jury that “[t]he crimes, if any, that
establish a pattern of criminal gang activity, need not be gang-related.” (See CALCRIM
No. 1401.) The jury instructions given did not reflect the change in the law that the
common benefit from the offense needs to be something more than reputational (Assem.
Bill 333, subd. (e)). While there was evidence of benefits to the gang that went beyond
reputational, we cannot rule out the possibility that the jury relied on reputational benefit
to the gang as its bases for finding the enhancements true.
Also, there was no evidence any of the predicate offenses were committed by two
or more gang members. (See CALCRIM No. 1401.) The jury was also not prohibited
from relying on the currently charged offenses to establish a predicate offense.
61.
The jury was not asked to, and therefore did not make, the factual determinations
now required to convict of a substantive offense or impose a gang enhancement under
section 186.22. We therefore conclude the section 186.22, subdivision (a) conviction and
subdivision (b) enhancements must be vacated. “The proper remedy for this type of
failure of proof — where newly required elements were ‘never tried’ to the jury — is to
remand and give the People an opportunity to retry the affected charges.” (E.H., supra,
75 Cal.App.5th at p. 480; accord People v. Lopez (2022) 82 Cal.App.5th 1, 14 (Lopez
2022)15; Sek, supra, 74 Cal.App.5th at p. 669; Rodriguez, supra, 75 Cal.App.5th at pp.
822-823 & fn. 19.)
The changes brought by Assembly Bill 333 also require that we vacate the gang-
murder special circumstance findings in this case (§ 190.2, subd. (a)(22)). Section 190.2,
subdivision (a)(22) requires proof beyond a reasonable doubt that the defendant
“intentionally killed the victim while the defendant was an active participant in a criminal
street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried
out to further the activities of the criminal street gang.” The express reliance on the
gang-murder special circumstance statute on the definition of a criminal street gang in
section 186.22, means that appellant is entitled to the benefit of this change in the law as
to the special circumstance finding under section 190.2, subdivision (a)(22). (Lopez
2021, supra, 73 Cal.App.5th at p. 347.)
Appellant and the People disagree about whether Assembly Bill 333’s
amendments apply to the gang-murder special circumstance findings (§ 190.2, subd.
(a)(22)). Appellant contends they do; the People say they do not. We conclude the
amendments apply to the section 190.2, subdivision (a)(22) findings and reverse that
finding as well.
15 We refer to two separate cases both titled People v. Lopez. In order to avoid
confusion, we refer to People v. Lopez (2021) 73 Cal.App.5th 327 as Lopez 2021, and
People v. Lopez (2022) 82 Cal.App.5th 1 as Lopez 2022.
62.
There is a split of authority on this issue. In Lopez 2021, supra, 73 Cal.App.5th
327, the Second Appellate District, Division Eight, concluded “Assembly Bill 333’s
changes to section 186.22 affect not only the gang enhancement allegations under that
statute but other statutes that expressly incorporate provisions of section 186.22”
including section 190.2, subdivision (a)(22). (Lopez 2021, supra, at p. 346.) Section
190.2, subdivision (a)(22) was enacted as part of Proposition 21, an initiative measure
approved by the electorate in the March 2000 primary election. (People v. Shabazz
(2006) 38 Cal.4th 55, 64-65.) Section 190.2, subdivision (a)(22) makes first degree
murder a capital crime if “ ‘[t]he defendant intentionally killed the victim while the
defendant was an active participant in a criminal street gang, as defined in subdivision (f)
of Section 186.22, and the murder was carried out to further the activities of the criminal
street gang.’ ” (Lopez 2022, supra, 82 Cal.App.5th at p. 14.)
The Second Appellate District’s Lopez 2021 opinion holds that because “the
definition of a criminal street gang has been narrowed by Assembly Bill 333 and new
elements added in order to prove a criminal street gang and a pattern of criminal
activity,” the requirements for proving a gang special circumstance under section 190.2,
subdivision (a)(22) have likewise changed. (Lopez 2021, supra, 73 Cal.App.5th at p.,
347.)
In People v. Rojas (2022) 80 Cal.App.5th 542 (Rojas), review granted October 19,
2022, a divided panel in our district reached the opposite conclusion. The Rojas majority
held that “[b]ecause Assembly Bill 333 ‘takes away’ from the scope of conduct that
Proposition 21 made punishable under section 190.2,” (Rojas, supra, at p. 555) it is
“unconstitutional to the extent it would amend that initiative.” (Id. at p. 557.)
The Rojas majority relied on the fact that California voters restricted the
Legislature’s ability to amend the provisions of Proposition 21. The majority’s reasoning
was as follows: “While the Legislature was free to amend Proposition 21 ..., it could only
do so with a two-thirds vote in each house. (Voter Information Guide, Primary Elec.
63.
(Mar. 7, 2000) text of Prop. 21, ... § 39, p. 131.) Assembly Bill 333 did not comply with
that requirement and therefore cannot amend Proposition 21.” (Rojas, supra, 80
Cal.App.4th at p. 555.) In practical effect, Rojas holds that a special circumstance
murder allegation under section 190.2, subdivision (a)(22) may be proven based on a
different, less restrictive definition of a “criminal street gang” than is found in the current
version of section 186.22. (See Rojas, supra, at p. 558 [holding Assembly Bill 333 does
not alter the scope or effect of section 190.2, subdivision (a)(22)].)
In People v. Lee (2022) 81 Cal.App.5th 232 (Lee), review granted October 19,
2022, Division Four of the Second District concluded Assembly Bill 333 does not
unconstitutionally amend section 190.2, subdivision (a)(22). Focusing on the question of
voter intent, the Lee court opined there is “nothing to suggest that the electorate intended
to impose a time-specific incorporation of the term ‘ “criminal street gang” ’ in the gang-
murder special-circumstance statute.” (Id. at p. 245.) Accordingly, Lee holds that the
term “ ‘criminal street gang’ as incorporated in the gang-murder special-circumstance
statute was ‘intended to conform at all times’ and ‘remain permanently parallel’ to
section 186.22.” (Ibid.)
In Lopez 2022, supra, 82 Cal.App.5th 1, relying on Lee, a panel of justices from
this district different from the one that decided Rojas rejected a similar argument that
Assembly Bill 333 improperly amended the gang conspiracy statute, section 182.5,
enacted as part of Proposition 21. The court determined there was no time-specific
provision in Proposition 21 for section 182.5 as there was for other provisions of the
criminal law. (Lopez 2022, supra, at pp. 23-24.) The court concluded, “[W]e agree with
Lee’s conclusion that ‘the electorate clearly knew how to express the intent to freeze a
statutory definition,’ ” and “[t]he absence of such time-specific language in section 182.5
leads to our rejection of the People’s claim.” (Lopez 2022, supra, at pp. 24-25.)
64.
The People submit that Assembly Bill 333’s “amendment to section 186.22,
subdivisions (e) and (f), appears to be an unconstitutional amendment to the gang-murder
special circumstance created by the voters via Proposition 21.” Although the People’s
supplemental briefing was filed before Rojas was published, their argument tracks the
rationale espoused by the Rojas majority. Likewise, the People claim there are now two
statutory definitions of a “criminal street gang.” Although the gang conspiracy statute
incorporates the definitions set forth in section 186.22, subdivision (e) and (f), the People
argue those references must be read to mean as the provisions existed prior to Assembly
Bill 333.
The People urge us to adopt the Rojas court’s view, while appellant, in his
supplemental reply brief, urges us to follow the reasoning in Lee. Obviously, since both
Rojas and Lee have been granted review by our Supreme Court, this issue has not been
decided. We, however, agree with and endorse the reasoning of Lee. Applying that
reasoning here, the section 190.2, subdivision (a)(22), special circumstance findings must
also be reversed.
We strike the findings under both section 186.22, subdivisions (a) and (b)(1) and
section 190.2, subdivision (a)(22), and remand the matter to afford the People the
opportunity to retry these allegations under the current law.
DISPOSITION
On count 10, we vacate the true findings on the gang-murder special
circumstance allegation (§ 190.2, subd. (a)(22)), the gang enhancement allegation
(§ 186.22, subd. (b)(1)); and therefore also the gang-related firearm enhancement
allegations (§ 12022.53, subds. (c)-(d), (e)(1)), and strike the related sentences.
On counts 11 and 12, we vacate the true findings on the gang enhancement
allegations (§ 186.22, subd. (b)(1)) and therefore also the gang-related firearm
enhancements (§ 12022.53, subds. (c)-(d), (e)(1)), and strike the related sentences.
65.
On count 13, we vacate the personal use of a firearm allegations (§§ 12022.5,
subd. (a); 12022.7, subd. (a)) and the gang enhancement allegation (§ 186.22, subd.
(b)(1)), and strike the related sentences.
On count 15, we vacate the active participation in a criminal street gang
allegation (§ 186.22, subd. (a)) and therefore also the personal use of a firearm
allegations (§§ 12022.5, subd. (a); 12022.7, subd. (a)), and strike the related
sentences.
We remand to the superior court. On remand, the People shall decide whether
to retry appellants on the gang-murder special circumstance allegations (§ 190.2,
subd. (a)(22)), the active participation in a criminal street gang allegation (§ 186.22,
subd. (a)), gang enhancement allegations (§ 186.22, subd. (b)), and gang-related
firearm enhancement allegations (§ 12022.53, subds. (c)-(d), (e)(1)).
If the People elect not to retry these allegations, the superior court is directed to
resentence appellants according to applicable law.
If the People decide to retry appellants on the gang-murder special
circumstance allegation (§ 190.2, subd. (a)(22)), the active participation in a street
gang offense (§ 186.22, subd. (a)), gang enhancement allegations (§ 186.22, subd.
(b)), the personal use of a firearm allegations (§§ 12022.5, subd. (a); 12022.7, subd.
(a))16, and the gang-related firearm enhancement allegations (§ 12022.53, subds. (c)-
(d), (e)(1)), and if any such allegations are found true, the court shall resentence
appellant according to applicable law.
Upon determination as to the status of these allegations (no retrial, or retrial and
final resolution), the clerk of the superior court shall prepare an amended abstract of
judgment for appellant reflecting the appropriate modifications, as set forth above and
16 But not as to count 13, see part VI. of the Discussion, above.
66.
addressed in part VIII., and forward it to the California Department of Corrections and
Rehabilitation.
As modified, the judgment is affirmed.
FRANSON, Acting P. J.
WE CONCUR:
PEÑA, J.
SMITH, J.
67.