Opinion
A147784
05-18-2018
THE PEOPLE, Plaintiff and Respondent, v. DIAMOND ADAMS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. 224051)
A jury found defendant Diamond Adams guilty of attempted murder, assault with a deadly weapon, and battery with serious bodily injury after he stabbed a young man in the back in a grocery store.
Adams raises two claims of error: the trial court provided an incorrect jury instruction on imperfect self-defense, and the court should have discharged a juror for sleeping during the trial. Finding no prejudicial error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of September 3, 2014, the victim walked into Super Save, a grocery store on Third Street in San Francisco. He went to a Lotto ticket machine and bought lottery tickets. As the victim bent down to retrieve his tickets from the machine, Adams stabbed him in the back twice. The victim fell to the ground. He saw that his attacker was still trying to stab him, and he ran away.
When the victim ran out of the store, Adams followed. At the time, two police officers on foot patrol were across the street. They heard screaming and saw two men running out of Super Save. The victim ran toward the officers.
The victim had been stabbed in the middle of the back close to his spine and in the left shoulder. He suffered a collapsed lung, and was taken to a hospital where he had surgery. He was in the hospital for two weeks.
Adams ran north on Third Street, and one of the officers chased him for about two blocks. The officer ordered Adams to stop and stated that he was under arrest, but Adams did not stop initially. Other officers arrived at the scene, and Adams was detained. As he was taken into custody, Adams said to the officer who had chased him, "he jumped me last week."
The same day, a police inspector interviewed Adams at the police station. Adams had a bandage on the bridge of his nose, and he was anxious to tell his side of the story. The interview was recorded, and an audio recording was played for the jury.
In the interview, Adams told the inspector that two days earlier, on the morning of September 1, he and his cousin were on Third Street and Hudson Avenue in front of a mechanic shop when he "got jumped" by three men. He said the men got out of a car and attacked him. They kicked him in the head, and the bandage on his nose was the result of being punched. He told the inspector he would find blood where the men attacked him, because he had been bleeding "very bad in the grass over there." Adams had never seen the men before, but one of them was "[t]he man that I end up attackin' today."
The inspector testified that he walked around the area where he thought Adams said he was beaten up at Third and Hudson, but on cross-examination, he agreed that he did not inspect the mechanic shop where Adams described being jumped. At trial, the cousin who was with Adams on September 1, 2014, corroborated his account of being attacked—punched and kicked—by three men. Another relative (who was with Adams two days later when he stabbed the victim) saw Adams after he was jumped; she observed a lot of blood and puffiness and his face was swollen.
Adams reported that on September 3 (the day of the stabbing and police interview), he and another cousin were walking on Third Street when he saw "these guys" at the corner of Third Street and Palou Avenue, apparently the same men who had attacked him two days earlier. They were watching Adams and pointing. One of the men gestured to show how they had attacked Adams, acting out punching and kicking him and "stompin' [him] on the head." The man Adams later stabbed (i.e., the victim) crossed the street and started following Adams and his cousin. The victim followed directly behind Adams and his cousin, while the victim's companions followed from the opposite side of the street. Adams told the inspector, "[The victim] followed behind me. They woulda probably tried to jump me but it was police right there," noting there were two police officers across the street. The victim went into a store up the street from Super Save, and Adams and his cousin went into Super Save. Adams stood at the door of the store and watched for the men who had jumped him. "Then," Adam said, "he [the victim] came across the street and went into the store. He came in there where I was. And then I had stabbed him in his back." Adams explained he used a "little black pocket knife" and threw it on the front of someone's roof.
An officer found a black folding knife on the roof of a house near Super Save.
The inspector asked what caused Adams to stab the victim rather than, for example, going to the police officers who were across the street. Adams responded, "I was just tryin' to defend myself." Adams said he had never seen the victim before the victim jumped him two days earlier. He said he knew the victim and his companions were about to "mess me up again" because that was how those people were, suggesting they were in a gang, and the attack on him two days earlier was gang-related. Adams thought they were going to attack him again because they were following and stalking him down the street. He agreed when the inspector asked "so you felt that if you didn't attack him first, he was gonna attack you?" He said he was scared and later explained that he thought he could have been killed because those men "play with guns and all types of stuff."
The cousin who was with him on the day of the stabbing testified that Adams became fearful and paranoid as they were walking on Third Street. She herself also felt uncomfortable and suspicious because of the way the men on the street were looking at her and Adams.
The inspector said he understood how Adams felt, but "Even if that person attacked you before and followed you, it looked more like you were the aggressor in this instance." Adams responded, "Yeah. This incident I was."
At trial, the victim testified he did not know Adams before the stabbing, and denied following anybody before entering Super Save on September 3, 2014. He testified that he had not gotten into any fights or beaten anyone in the weeks before the stabbing, although he had been in fights before, and he admitted he had done things that were against the law. The victim admitted he was on probation and said he had been arrested "a lot of times." A bag of marijuana and lighters were found on the victim, and defense counsel asked whether he was selling marijuana at the corner of Third Street and Palou Avenue that day. He admitted he smoked marijuana himself but refused to say whether he sold it. Defense counsel also questioned the victim about an incident in 2010 when he robbed a person of an iPod at gunpoint. He did not deny the offense and testified he "might" have punched the person twice and thrown him to the ground.
The victim was also questioned about an incident of domestic violence that occurred in January 2015. He denied that he hit his girlfriend while he was driving. The parties stipulated, however, that a CHP officer observed him strike his girlfriend in his car at least seven times as he was speeding on a freeway, and when the victim was detained, he gave the officer a false name.
The defense called a clinical psychologist to testify as an expert in neuropsychology. He conducted a clinical interview of Adams and tested his cognitive ability. The testing showed Adams's verbal and thinking ability fell in the range of mild mental retardation, and he had the functional capacity of someone between the age of nine and 12 years old. The psychologist testified that in a very frightening situation, a person with a low functioning IQ like Adams "would have a restricted ability to plan ahead of time and figure out ways of coping." Such a person would be "kind of frozen" and unable to think.
The psychologist also explained the concept of a "persistent traumatic stressful environment" (PTSE). This is when a person is exposed to mild to severe stressors over a very long period, such as when a person grows up in a tough neighborhood where there is not much sense of safety or stability, and "an individual always has to be on guard to protect themselves." The psychologist opined that Adams's experience of growing up and living in the Hunter's Point/Bayview area constituted a PTSE. The effect on Adams was that he "is very quick to become panicked." Adams "also showed a very rigid cognitive style and . . . he was only able to see things in one perspective only. And in this case, he saw himself as the victim of violence." Defense counsel gave the hypothetical of an individual with Adams's neurocognitive deficiencies and exposure to a PTSE in a situation of being followed by someone the individual believes (1) is threatening him with physical harm and (2) attacked him a few days earlier. The psychologist opined, in this situation, the individual would "go much more into that panic state much more quickly" and his threshold for perceiving danger would be much, much lower than it would be for a person who had not been exposed to a PTSE.
DISCUSSION
A. Jury Instruction on Imperfect Self-Defense
Adams contends the trial court gave an incorrect instruction on imperfect self-defense, violating his rights to due process and a fair trial.
1. Background
The defense theory was that Adams acted in self-defense. In closing argument, his counsel told the jury the stabbing victim was "a predator, and he preyed on Diamond Adams," and Adams did not have to wait till he was injured before acting to defend himself. She argued the victim was lying in wait for Adams, stalking him and acting in concert with two others.
The trial court instructed the jury on justifiable homicide, self-defense or defense of another, giving CALCRIM No. 505. The court then instructed on imperfect self-defense, giving a former version of CALCRIM No. 604. (See Jud. Council of Cal. Criminal Jury Inst. (2009-2010) CALCRIM No. 604.) The instruction provided in pertinent part: "An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill a person because he acted in imperfect self-defense. [¶] If you conclude the defendant acted in complete self-defense, his action was lawful and you must find him not guilty of any crime. The difference between complete self-defense and imperfect self-defense depends on whether the defendant's belief in the need to use deadly force was reasonable.
"The defendant acted in imperfect self-defense if:
"1. The defendant took at least one direct but ineffective step toward killing a person.
"2. The defendant intended to kill when he acted.
"3. The defendant believed that he was in imminent danger of being killed or suffering great bodily injury. [¶] AND [¶]
"4. The defendant believed that the immediate use of deadly force was necessary to defend against the danger.
"BUT
"5. The defendant's beliefs were unreasonable."
2. Analysis
"[A]n intentional killing is reduced to voluntary manslaughter if other evidence negates malice. Malice is presumptively absent when the defendant . . . kills in the unreasonable, but good faith, belief that deadly force is necessary in self-defense." (People v. Lee (1999) 20 Cal.4th 47, 59.) Likewise, under the doctrine of imperfect self-defense, a person who "tries to kill someone because he actually, but unreasonably, believes he needs to defend himself from imminent death or great bodily injury" has committed attempted manslaughter, not attempted murder. (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 833-834.)
Adams contends the jury instruction given in this case was flawed because it told the jury imperfect self-defense could be found only if both of the defendant's beliefs were unreasonable. This would mean the jury had to find Adams (1) unreasonably believed he was in imminent danger of being killed or suffering great bodily injury, and (2) unreasonably believed the immediate use of deadly force was necessary to defend against the danger. But, Adams argues, imperfect self-defense could exist if only one of his beliefs was unreasonable.
His argument is based on People v. Her (2009) 181 Cal.App.4th 349 (Her). In that case, the Court of Appeal found the version of CALCRIM No. 604 given incorrectly told "the jury that imperfect self-defense exists only if both of the defendant's beliefs were unreasonable." (Id. at p. 353.) Instead, imperfect self-defense exists if either of the two beliefs is unreasonable. (Ibid.)
In 2011, the sentence "5. The defendant's beliefs were unreasonable" in CALCRIM No. 604 was replaced with "5. At least one of the defendant's beliefs was unreasonable." (See Jud. Council of Cal. Criminal Jury Inst. (2011) CALCRIM No. 604.)
But the Her court went on to find no prejudice: "[The d]efendant is incorrect, however, in arguing that the erroneous instruction was prejudicial to him. [He] posits that the evidence would have allowed the jurors to entertain a reasonable doubt as to whether he 'reasonably perceived imminent serious bodily danger to himself . . .' and whether 'he reasonably believed in the necessity of immediate deadly force in defense.' He further contends that '[a] juror following CALCRIM No. 604 would incorrectly understand that reasonable doubt on only one element proved attempted murder.'
"We are not persuaded. Following CALCRIM No. 505 (the pattern instruction on self-defense or defense of another) and CALCRIM No. 604, the jurors would have understood that if defendant reasonably believed he . . . was in imminent danger of being killed or suffering great bodily injury, reasonably believed the immediate use of deadly force was necessary to defend against that danger, and used no more force than was reasonably necessary to defend against that danger, defendant was not guilty of any crime. Following CALCRIM No. 604, they would have understood that if defendant held both of the foregoing beliefs but those beliefs were unreasonable, then he was guilty of only attempted voluntary manslaughter as to [the victims]. [The d]efendant posits that if the jury found he held both beliefs (or—more accurately—entertained a reasonable doubt about whether he held those beliefs), but concluded that only one of the beliefs was unreasonable, then following CALCRIM No. 604, the jury would have found he 'must be guilty of attempted murder.' In other words, he suggests the jury could have understood the instructions to require acquittal if both beliefs were reasonable (and he did not use excessive force), a verdict of attempted voluntary manslaughter if both beliefs were unreasonable, but a verdict of attempted murder if one belief was reasonable and one was unreasonable. Thus, in his view, the jury could have understood the instructions to require a harsher verdict for a partially reasonable belief in the need to defend himself . . . than for a completely unreasonable belief in that regard.
"We find no reasonable likelihood that the instructions, considered in their entirety, could have been understood in the manner defendant suggests. [Citation.] Although CALCRIM No. 604 erroneously stated that imperfect self-defense or defense of another existed only if defendant's 'beliefs' were unreasonable, another part of the instruction made clear that '[t]he difference between complete self-defense or defense of another and imperfect self-defense or imperfect defense of another depends on whether the defendant's belief in the need to use deadly force was reasonable.' Assuming for the sake of argument that the jury could have entertained a reasonable doubt as to whether defendant actually believed in the need to defend himself . . . , we conclude the jury would have understood from the instructions as a whole that the reasonableness of that belief (or those beliefs, if broken into components) went to whether defendant was guilty of attempted voluntary manslaughter or no crime at all, and not to whether he was guilty of attempted murder. Accordingly, we reject this claim of error." (Her, supra, 181 Cal.App.4th at pp. 353-354.)
In essence, the court held, the version of CALCRIM No. 604 given was technically incorrect, but the error was harmless in the context of the instructions as a whole. We agree with the Her analysis, and conclude there was no prejudice from the use of the former version of CALCRIM No. 604 given in this case.
Adams argues there was prejudice in this case because the jury could have found (1) his belief that he was in imminent peril was reasonable, but (2) his belief that he needed to use immediate deadly force was unreasonable. He proposes the following scenario: "[T]he jury could have found that Mr. Adams held an actual and reasonable belief in imminent peril," but given that the victim "was not confronting him at the time of the attack, but rather was facing away from him . . . , the jury could have found Mr. Adams acted prematurely, and unreasonably believed that the immediate use of deadly force was necessary to defend himself." (Italics added.)
If the jury had come to these two findings, then Adams would have been entitled to a conviction of the lesser offense of attempted voluntary manslaughter under Her. But, he argues, the jury instruction given would have led the jury to the incorrect conclusion that attempted voluntary manslaughter did not apply.
We are not persuaded. The jury was instructed, "Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have actually believed there was imminent danger of violence to himself." (Italics added.) " ' "[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with." ' " (In re Christian S. (1994) 7 Cal.4th 768, 783.) But if—as he now suggests—Adams acted "prematurely," then he could not have been facing an objectively "imminent peril," for an imminent peril must be dealt with instantly. And if he was not objectively facing an imminent peril, then his belief that he was would be unreasonable. Thus, it is not reasonably likely the scenario Adams proposes could have occurred. A jury would not find that his belief that he was in imminent danger was reasonable, but his belief that he needed to use immediate deadly force was unreasonable under the circumstances of this case.
Rather, if, as Adams proposes, the jury found that his belief that he needed to act immediately was unreasonable, then it would also find that any belief that he was in imminent danger was also unreasonable. But, if, as he proposes, the jury found that his belief that he was in imminent danger was reasonable, then it would not find that his belief that he had to act immediately was premature or unreasonable.
We reject Adams's claim the jury instruction violated his constitutional rights; "the instructions did not 'infect[ ] the entire trial.' " (People v. Jones (2012) 54 Cal.4th 1, 54.) We reject his claim of ineffective assistance of counsel (based on failure to request a correct instruction on imperfect self-defense) because he cannot establish prejudice. (See People v. Lewis (2001) 25 Cal.4th 610, 646 [where alleged instructional error was harmless, claim of ineffective assistance based on defense counsel's failure to request jury instruction also failed].) B. Failing to Discharge a Juror
Next, Adams contends the trial court erred in failing to discharge a juror who appeared to be asleep for 30 seconds.
1. Background
During an afternoon recess on the first day of trial testimony, the trial court noted on the record that a juror had reported to the bailiff that another juror was sleeping, and the court also noticed that Juror No. 2 "doze[d] off" for "around 30 seconds." The juror apparently dozed while the prosecutor was questioning a Super Save employee about the location of the lottery machine where the stabbing took place. Defense counsel suggested nudging or reminding the jurors to keep them alert, and the court responded, "What I'm going to do is, if this happens, I'm going to say, ladies and gentlemen, I need you to—is everybody okay? Then it will give them a cue because my question will alert them." Defense counsel said, "Okay," and that ended the on-the-record discussion of Juror No. 2.
Later the same day, after the testimony of the police officer who pursued and apprehended Adams, the trial court released the jury for the day except for Juror No. 2. The court addressed the juror, "Juror No. 2, the reason I need to speak with you with the attorneys is that I noticed that you've been dozing off and a lot. Have you been paying attention?" The juror said he had, and denied he had taken any medication or alcohol. The court told him, "I need you to pay attention. At this time, I have good cause to discharge you and remove you and bring another juror in as an alternate. I can do that. What concerns me is you have to be frank with us." The juror said he remembered and heard everything. The prosecutor asked if there was "anything we should know about," and the juror responded, "No. It's just that when it gets warm and if I sit still for too long." The court told him he could stand if he became tired. Juror No. 2 reassured the court, "I'm good, I'm good, Your Honor." The court warned, "If this happens again, I will remove." The juror said he understood. Defense counsel did not question the juror.
The next day, there was a third discussion of Juror No. 2. This occurred during an afternoon recess following testimony from the inspector who interviewed Adams. The jurors were outside the courtroom except for Juror No. 2. The trial court said, "Juror No. 2, the reason I had you stay is that I have a few questions. I'm very concerned." The court observed, "I keep looking over at you, and it seems like you're having a very hard time being alert and/or awake. Your eyes are halfway open. You try to sit forward just to keep alert. [¶] The reason I'm concerned is that this case, I need all of the jurors to pay attention, to be alert, to be awake so that you can view all the evidence, you can listen to the testimony, you can observe the credibility of the witnesses. I need everyone to be alert. I'm very concerned. And I don't believe you are. I don't believe you are." The court then asked about the juror's line of work, and he said he was a plumber and he normally worked daily 7:00 to 3:30. (He did not indicate whether these were day or nighttime hours.) Asked why he seemed to have such a hard time staying alert, Juror No. 2 said, "I'm just—sometimes, if I sit still, I just can't—I'm a motivated guy. I'm a keep-moving kind of guy." The court stated that it observed the juror yawning and his eyes drooping, and reminded him he fell asleep earlier in the trial for 30 seconds.
The prosecutor asked the juror whether he felt like he had fallen asleep or missed anything since their discussion the previous afternoon. He said he had not missed anything. Defense counsel suggested to Juror No. 2, "If you feel like you need to move around, please take the Judge's suggestion yesterday and stand up and move around. I mean, you're free to do that within your area."
The court asked, "During the 30 seconds that you fell asleep [the previous day], do you know what was discussed?" Juror No. 2 said he did not remember and admitted he did fall asleep. The court again expressed its concern that it appeared the juror had not been alert. "You've been sleeping and dozing and trying to keep—I know you're trying very hard to keep awake by sitting on the edge and looking up." The court then held an off-the-record discussion with the attorneys. Back on the record, the court instructed Juror No. 2 to stand up whenever he thought he was going to fall asleep or was getting tired. The juror agreed. The court again warned him, "If I have to do this again and talk to you privately away from the other jurors, at that time I will find cause to excuse you. I will make sure that that doesn't happen, that you don't fall asleep."
2. Analysis
Under Penal Code section 1089, "[i]f 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 . . ., the court may order the juror to be discharged and draw the name of an alternate." "Removal of a juror under section 1089 is committed to the discretion of the trial court." (People v. Thompson (2010) 49 Cal.4th 79, 137.) Our high court has made clear, however, that appellate review "involves a 'heightened standard [that] 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.' [Citations.] Specifically, the juror's 'inability to perform' his or her duty 'must appear in the record as a demonstrable reality.' " (People v. Armstrong (2016) 1 Cal.5th 432, 450.)
Adams contends the trial court erred in failing to discharge Juror No. 2 for sleeping. He relies on two cases in which the discharge of a juror for sleeping was upheld. (People v. Ramirez (2006) 39 Cal.4th 398 (Ramirez); People v. Johnson (1993) 6 Cal.4th 1 (Johnson), abrogated on another ground by People v. Rogers (2006) 39 Cal.4th 826, 879.) But these cases do not support the proposition that it was an abuse of discretion not to discharge Juror No. 2 in this case. Neither case holds that a juror must be discharged as a matter of law if the record demonstrates he slept for 30 seconds during trial testimony.
In Ramirez, supra, 39 Cal.4th 398, the trial court observed a juror " 'was asleep or dozing or catnapping or doing something other than paying rapt attention to the proceedings' " and " 'even during argument occasionally would again bounce his head up and down quickly as if rudely awakening himself or something of that nature,' " and the foreperson reported that the juror slept during deliberations. (Id. at p. 457.) Our Supreme Court held that discharge of the juror was not an abuse of discretion. (Id. at p. 458.) In Johnson, supra, 6 Cal.4th 1, the court upheld the discharge of a juror where "[t]he court, its two deputies, and the prosecutor each stated on the record that they had observed defendant exhibiting various physical indicia of sleep, including eye closures, head nodding, and slumping in his chair" and the same juror also failed to disclose two prior arrests. (Id. at pp. 21-22.)
More instructive given the circumstances of this case is People v. Bradford (1997) 15 Cal.4th 1229. There, the trial court observed that a juror was asleep during defense counsel's cross-examination of a detective. (Id. at pp. 1347-1348.) Our high court noted that the record showed "no more than that the juror had fallen asleep on the day in question and appears to have been asleep one day earlier; it d[id] not appear that the juror continued to fall asleep or had been asleep for a longer period of time." (Id. at pp. 1348-1349.) The defense counsel did not argue juror misconduct or request a hearing, and the trial court made no further inquiry regarding the juror's attentiveness. The reviewing court concluded the lower court did not abuse its discretion in failing to inquire about possible juror misconduct in light of the "absence of any reference in the record to the juror's inattentiveness over a more substantial period." (Id. at p. 1349.)
Here, it appears the trial court appropriately addressed Juror No. 2's apparent drowsiness and inattention on the first two days of trial, and the court had no further concerns about Juror No. 2 during trial or deliberations. Defense counsel did not express any concern about Juror No. 2, and nothing in the record indicates Juror No. 2 was inattentive over a substantial period during trial. Under these circumstances, the trial court did not abuse its discretion by not discharging Juror No. 2.
There were four days of witness testimony, the defense witnesses were presented on the third and fourth days, and closing arguments were heard on the fifth day of trial. --------
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.