Opinion
A127336
12-20-2011
THE PEOPLE, Plaintiff and Respondent, v. TERRANCE DESHUN BREWER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 090174-4)
I. INTRODUCTION
Defendant and appellant Terrance Brewer (defendant or Brewer) was convicted of two counts of murder (Pen. Code, § 187), two counts of second degree robbery (§§ 211, 212.5, subd. (c), § 664), assault with a firearm (§ 245, subd. (a)(2)), and arson of one's own property (§ 451, subd. (d)). The jury also found that he discharged a firearm in the commission of the murder and the robbery.
All further statutory references are to the Penal Code, unless otherwise noted.
On appeal, Brewer argues that the trial court erred when it (1) discharged a juror who, during voir dire, concealed the fact that her brother had been in and out of jail; (2) granted a prosecution challenge for cause of a juror who said she would not be biased even though her son had had unfavorable encounters with the police and the courts; and (3) denied his motion for a new trial on the ground of newly discovered evidence. He also contends that (4) the cumulative effects of these errors infected the trial with unfairness; (5) his sentence of life imprisonment constitutes cruel and unusual punishment; and (6) his lawyer was ineffective because he failed to raise the issue of cruel and unusual punishment at trial.
Finding no error, we affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
The victims in this case, Abdiel Mejia and Adam Bella, were killed in a marijuana deal that went awry in March 2008.
Aaron Mejia testified that on March 16, 2008, Adam Bella called Aaron to arrange the purchase of an ounce of marijuana. They arranged to meet later at the Safeway parking lot in Concord. Although Aaron Mejia usually conducted drug sales alone, this time he brought Abdiel, his younger brother, because the two planned to smoke marijuana after the sale was concluded. Abdiel sat in the back seat of Aaron's car so that Bella could sit in the front seat to buy the marijuana.
Dominic DiSibio, who was a friend of both Adam Bella and defendant, was at home on March 16, 2008, when defendant called him and asked him to pick him up. DiSibio, who drove a Chevy Impala, went to Pittsburg, where he found defendant sitting in a car smoking marijuana with their friends, Adam Bella, Correy Roseboro, and Roberto Ramos. Defendant complained about not having a job and needing one badly to make money. DiSibio offered defendant $150 worth of signatures on election petitions. Defendant rebuffed DiSibio's offer, saying $150 was not enough, he was desperate, and he was going to do something very bad because he could not control himself.
The men got in DiSibio's car. Bella sat in the front passenger seat next to DiSibio, defendant sat behind Bella, Ramos sat in the middle, and Roseboro sat behind DiSibio. DiSibio told the men that he thought the robbery was a bad idea. The other men disagreed. Bella described Aaron Mejia as a "punk" who had a lot of money and who would give up easily. He said nothing bad would happen.
During the drive, the men in the car made a plan to rob Aaron Mejia. They agreed that Bella would get into Mejia's car. He would show Mejia the money he had brought to buy the marijuana. Then he would pull out a gun and demand Mejia's money and the marijuana he had with him. The men who were in DiSibio's car would then jump out of the car and surround Mejia's car. They would scare Mejia so he would give up. They would also take his car keys and cell phone so he could not follow them after the robbery.
According to DiSibio, Bella had a black revolver with a wood grip in his possession which he said he was going to use to scare Mejia. Defendant, who is left handed, had a black handgun by his left hip. They assured DiSibio that nothing more serious than a pistol whipping would occur and no one would be shot. DiSibio continued to talk his friends out of robbing Mejia. He even went so far as to offer Bella money to buy the marijuana, although he could see that Bella already had money.
When they arrived at the Concord Safeway, Bella told DiSibio to drive past Mejia's car and park. DiSibio parked the car so that the passenger side was closest to the driver's side of Mejia's car.
Mejia drove a Cadillac. There was a man sitting in the rear passenger seat of the Cadillac, which took Bella by surprise. Bella got into Mejia's car. DiSibio saw Bella pick up a baggie of marijuana and look at it to evaluate it. DiSibio looked away, and when he looked back at Mejia's car, he saw that Bella and the driver were wrestling in the front seat and struggling over something.
Defendant and Roseboro jumped out of DiSibio's car. DiSibio saw the passenger in the back seat of Mejia's car reach over the front seat and punch Bella in such a way as to knock something out of his hand. The rear door on the driver's side of Mejia's car opened. Defendant was closest to that door. DiSibio heard a muffled gunshot inside Mejia's car. Defendant took one step back from the open rear door of Mejia's car. DiSibio heard about six louder gunshots.
Although there was still a struggle going on inside the Cadillac, the man in the rear seat seemed to be getting weaker. When he slumped over, the wrestling stopped. DiSibio could still hear someone inside Mejia's car yelling.
DiSibio put his car into reverse without waiting for the rear doors to close. He drove behind Mejia's car and Roseboro jumped in. DiSibio waited for defendant and Bella, but Ramos and Roseboro told him to go. DiSibio drove away with the rear passenger door still open. As DiSibio pulled out of the Safeway parking lot, Mejia's car went into reverse and pulled out. The rear passenger was slumped over the front seat. DiSibio could not see Bella, but saw a hooded sweatshirt.
As DiSibio drove toward him, defendant jumped over some bushes at the edge of the parking lot and into the front passenger seat of DiSibio's car. Although defendant was not carrying a gun, he told DiSibio he had shot it. DiSibio drove to a residential neighborhood, stopped, and his three passengers got out. They all wanted to get away from each other. DiSibio drove back to the Safeway parking lot to look for Bella, did not find him, and then drove back to Pittsburg alone.
Aaron Mejia, who was the driver of the Cadillac, testified to the events that occurred when Bella was in his car. Bella got into the front passenger seat of Mejia's car and the two men began to talk. Mejia showed Bella a baggie with an ounce of marijuana, Bella looked at it and then paid for it. Just as Mejia was counting the money Bella had given him, Bella pulled a gun up, pointed it at Mejia, and told him to "give me what you got." Mejia grabbed the barrel of Bella's gun and the two men started fighting. As they did so, Bella shot the gun about five times. Bullets from Bella's gun hit Mejia in the stomach and leg.
While Mejia and Bella were wrestling for the gun, and Abdiel Mejia was on top of Bella, shots were fired into the driver's side of Mejia's car. Aaron Mejia put his car into reverse, hit another car, put his car into drive and "got out of there." He drove a few blocks away, tried to walk but fell down, and screamed for help. There were two open knives in Mejia's car, including one in the driver's door panel, but Mejia did not have time to grab one. He denied shooting Bella.
A neighbor heard Mejia yelling and called the police. When officers got to Mejia's car, it was in the middle of the street with one person lying on the ground yelling for help. Two dead people were in the car. Paramedics determined that the passenger was not breathing and had a wound to the right side of the neck. He was pronounced dead. The person slumped over from the rear seat was not breathing, had no pulse, and was also dead. The passengers were later identified as Abdiel Mejia and Adam Bella, respectively.
Later that night, after the 11 p.m. news came on, defendant phoned DiSibio to say that his car had been seen so they needed to burn it. DiSibio agreed to this plan, convinced by defendant that his insurance would cover it. Around 1 or 2 a.m., defendant, Roseboro, Ramos, and a friend of theirs, Rubio, showed up with tools. DiSibio followed defendant, Roseboro, Ramos, and Rubio in his father's car. They drove down Highway 4, stopped at a station to fill a container with gasoline, and drove about eight miles from the gas station down a long road with no lights. They broke the windows of DiSibio's car, popped the ignition to make it look stolen, poured gasoline on the car, jammed a rag into the gas tank, and burned the Impala. They ran to DiSibio's father's vehicle and drove back to Pittsburg. The others told DiSibio to call the police in the morning to report the Impala stolen.
On March 17, 2008, at 2:10 a.m., a California Highway Patrol officer was dispatched to a vehicle fire at Mountain House Road north of Grant Line Road. He found a Chevy Impala fully engulfed in flames. No one was there. The vehicle was towed.
On March 17, 2008, at 5:30 a.m., an officer took a stolen car report from Dominic DiSibio in Brentwood. DiSibio said his 2007 Chevy Impala was parked in the driveway when he went to bed on March 16, 2008, and was missing the following morning. Examination of DiSibio's car revealed that a rag or other combustible material had been shoved down the fuel filler neck. There was a strong odor of ignitable liquid in the passenger compartment.
On March 20, 2008, a detective asked Dominic DiSibio to come to the Concord Police Department to talk about the burned vehicle. The detective also told DiSibio that he was a suspect in a murder investigation. After this conversation, the detective let him go. DiSibio was told that the police did not have enough evidence to arrest him yet, but that if he did not come forward with the truth it might all be placed on him as the shooter. DiSibio told his friends that the police knew what happened, cell phones would be tracked, the crime was going to be solved, and they should "clear out."
On Good Friday, March 21, 2008, defendant told DiSibio he was moving to New Orleans to start a new life because of this incident. DiSibio called in sick to work on Good Friday because he was being terrorized by his memories of his close friend dying and could not sleep at night. He could not live with the lie. On Good Friday evening, DiSibio, who had been advised by his pastor and other church members to contact the police, told the police what had happened because he did not kill anybody and was not going to be the scapegoat. DiSibio agreed to testify truthfully in exchange for a reduced state prison sentence of eight years.
Bullets and bullet fragments were recovered from the bodies of Abdiel Mejia and Adam Bella, and from Aaron Mejia. Four cartridge casings were found in the Safeway parking lot. They were nine millimeter.
An open folding knife was found on the ground outside the open driver's door of Mejia's car and placed on top of the car. A second folding blade knife was found in the rear seat. Bella was sitting in the passenger seat, and the other deceased man was slumped over the back of the seat. There was a cartridge casing by the seat belt buckle and another cartridge casing between the seat belt buckles. There was broken glass and a cartridge casing on the rear window deck by the speakers.
When Bella's body was removed, a gun was on the front passenger seat along with a cartridge casing. The gun was .45 caliber. The rear window was shattered. There was a bullet hole in the rear window frame. There was $172 in currency outside the Cadillac on the street and $637 inside it. Spent bullets were collected. Some of the cartridge casings found inside the Cadillac were .45 caliber, the same as the .45 caliber Colt semiautomatic pistol found there. The Colt .45 was empty of cartridges. Some expended bullets were also .45 caliber. Other expended bullets and cartridge casings were nine millimeter. Of the six cartridge casings found in the Cadillac, three in the back seat were nine millimeter and three in the front passenger seat were .45 caliber. A firearms expert determined that all the bullets and casings appeared to come from two guns, a .45 caliber pistol and a nine millimeter pistol. A fingerprint expert determined that defendant's hand was on the Cadillac roof at some time because his palm print was there.
All three of the men in DiSibio's car fled Pittsburg immediately after the shootings. On April 14, 2008, a Contra Costa County Deputy Sheriff went to New Orleans with a fugitive warrant for defendant and transported him from the New Orleans Parish lockup unit to the Martinez Detention Facility. Ramos was later arrested in Fresno. On April 10, 2008, a Contra Costa Deputy Sheriff went to Texas, picked up Roseboro, and booked him into the Martinez Detention Facility the following day.
Defendant testified that at the time of the robbery and murder, he knew that his friend Bella was a marijuana dealer and carried a gun. On March 16, 2008, defendant, Bella, Correy Roseboro, and Roberto Ramos were sitting in defendant's car smoking marijuana and listening to music. Dominic DiSibio joined them. They needed more marijuana, so Bella made a phone call to arrange to buy an ounce. They all went with Bella to get the marijuana.
Defendant denied having a gun or ever being caught with one. He knew his friends Bella, Roseboro, and DiSibio often carried firearms, especially when they were going to parties. On the way to Concord, Bella said he was thinking about taking the marijuana from the dealer. Bella pulled out his gun, and Roseboro pulled out his. DiSibio said they should all hop out of the car and surround the dealer's car. It was a shock to defendant that Roseboro was carrying a gun. Defendant asked to glance at Roseboro's gun because defendant had never touched his friends' guns before. Roseboro passed his gun around the back seat to defendant and Ramos so they could touch it.
DiSibio said they should take the dealer's keys so they could get a head start to get away. No one was enthusiastic about the plan to get one ounce of marijuana or suggested making it a larger quantity. Defendant never signed on to the plan and neither did Bella. Bella put his gun back and said he did not want to rob the dealer because it would mess up his business and he had money. He also said he did not want to rob the seller because they did business together and the person was a friend. Defendant expected that Bella would not rob the person for an ounce of weed.
When they got to Concord, Bella got out of the car to buy marijuana and everybody else stayed inside. Bella got in the front passenger seat of the dealer's car, closed the door, and the doors locked. Defendant thought it was suspicious that there was somebody in the rear seat of the dealer's car. After Bella talked to the driver for a minute, Bella pulled out his money and gave it to the driver. The driver handed Bella the marijuana. Bella was looking at the marijuana with both hands in the air. Defendant looked away, and when he looked back he saw that Bella and the driver were struggling as if they were wrestling over something. Then the man in the back seat reached over and swung at Bella.
Defendant was surprised. He opened the door of DiSibio's car, heard three gunshots in Mejia's car, and grabbed a gun someone handed him. He got out of DiSibio's car, and walked cautiously to Mejia's car. Defendant decided that he must have opened the door because he did not see anybody else open it. As he did so, he saw his friend Bella not moving and the person in the back pointing a gun at him. Defendant "blacked out." He thought he was going to be shot and started shooting. He did not know how many times he pulled the trigger because he blacked out and panicked, thinking he was going to die.
Defendant did not intend to rob or kill anyone. He did not know if he shot the person. He ran away, hopped over the bushes, ran down the street, and got into DiSibio's car. He told DiSibio to stop, and he got out, because did not want to get caught after he shot at somebody. After they heard that Bella had died, they got together and burned DiSibio's car in a secluded area after Jose Rubio poured gasoline on it.
On March 18, 2008, defendant bought a bus ticket for New Orleans. He and his girlfriend took the bus to New Orleans. Defendant thought he had killed the man in the back of the car, so he planned to be gone for a long time and get away from the situation.
Johnnie LeBlue testified that defendant was his nephew and defendant's mother was his sister. He made sure that his sister and nephew had money. In March 2008, defendant was living with him rent free, and LeBlue gave defendant money whenever he needed it. He hired defendant to do odd jobs. Defendant was not a violent person, did not start fights, did not boast about fights, and did not have a weapon. There were no complaints from neighbors about defendant stealing or bullying. Defendant's friend, Adam Bella, had a firearm. LeBlue told defendant not to hang out with Bella because he had a gun.
Dashunda LeBlue testified that defendant was her son. Defendant did not fight or bully other kids. He did not have firearms and was not a violent person. Nobody complained about his stealing. She would see Adam Bella hanging out on West Boulevard, but defendant did not hang out there with him. Defendant went to Job Corps instead of senior year at high school because he was having behavioral problems in school. Specifically, defendant was disrupting school activities, failing to show up for detention, had excessive tardiness, was argumentative with a teacher, threatened two other children to fight, and used constant profanity in class. He was also tardy 35 times and absent 45 times.
In 2003, defendant was detained and brought home in handcuffs for an incident involving a BB gun that he had in a backpack, but did not know people were watching while he was waiving it around.
The jury convicted defendant of all six counts and found that he used a firearm as alleged in counts 1 through 4.
The trial court sentenced appellant to state prison for a term of 50 years to life plus eight months, consisting of 25 years to life for count 1, plus a consecutive term of 25 years to life for the firearm use enhancement, plus a consecutive term of eight months for one-third of the midterm of two years for count 6. Terms for count 2 were imposed concurrently, and terms for counts 3, 4, and 5 were stayed pursuant to section 654.
This timely appeal followed.
III. DISCUSSION
A. Discharge of Juror No. 10
Brewer argues that the trial court erred when it granted the prosecutor's motion to discharge a juror who, during voir dire, failed to reveal that her brother was "in and out of jail." We disagree.
1. Factual Background
During voir dire, Juror No. 10, who was ultimately discharged, assured the court that she would be an objective juror. When questioned about whether "a family member or close friend" had "been a victim, defendant, or witness in a criminal matter," she revealed that she had attended the trial of a friend who had been hit by a drunk driver. The court asked her if there were "any other issues that you've heard us discuss that prompted a response on your part." Juror No. 10 said there were no such issues.
Five days after she was seated on the jury, and on the first day of trial, Juror No. 10 called the clerk to advise the court that she had not revealed that her brother had been in and out of jail since he was 15 years old. Juror No. 10 was then questioned outside the jury's presence as follows:
"THE COURT: So, first can you let me know what it is that you thought of that you thought we should all know?
"JUROR NUMBER 10: Well, my brother, he has been in and out of jail actually since he has been 15.
"THE COURT: Okay.
"JUROR NUMBER 10: I didn't say anything because I didn't think that it actually affected me in anything.
"THE COURT: Okay.
"JUROR NUMBER 10: But talking to my husband this weekend he says I should have actually said something, so that is what prompted me to come in saying.
"THE COURT: And again, we only care how this affects you. Do you feel that your brother was treated fairly?
"JUROR NUMBER 10: Yeah, I mean, I don't really know much of it since I was 14. But, yeah, I think so.
"THE COURT: I see. Okay. Can I ask the nature of the cases, anything close to any of the charges here?
"JUROR NUMBER 10: No, uhmm, the first one when he was 15. I guess he just beat up some guy really bad and the other one I think is just hanging around with the bad crowd and
"THE COURT: And presently are you in communication with your brother?
"JUROR NUMBER 10: I haven't seen him since April, actually. I haven't talked to him since April. Actually, they live down south in Riverside.
"THE COURT: And again the—what we are concerned with is how this may affect you. You started out saying you didn't feel it would affect you as a juror. Is that still how you feel about it?
"JUROR NUMBER 10: Yeah.
"THE COURT: Can you decide this case just on the evidence here and not be influenced by your brother's experience?
"JUROR NUMBER 10: I can.
"THE COURT: Anything about what you know of his experience that you think you would hold against either of these attorneys?
"JUROR NO. 10: No, he really doesn't talk to me about that."
Juror No. 10 told the court that when she was filling out the jury questionnaire she did not think about her brother. During voir dire, she didn't think her brother's criminal history would affect her, so she didn't mention it. She explained that "I was not thinking of my brother. When we sat here and he kept asking the questions and then said will it affect you, then I thought, okay, I just won't say anything because it won't affect me."
Over appellant's objection, the prosecutor requested that the court excuse Juror No. 10. The prosecutor explained: "I don't doubt her sincerity when she explains when she filled out her questionnaire she wasn't thinking of her brother. Although, one does wonder a little bit, the man just got out of prison, she clearly has been in touch with . . . him, she knows his background. It's interesting to have such a close relative . . . slip her mind. But she says she wasn't thinking of it when she filled out the questionnaire and I will take her at face value on that. [¶] But during voir dire the Court followed that question up with every single juror who checked yes. Numerous jurors checked yes, and the Court went into detail with each juror about who it was they were referring to and whether the person was a victim, witness or defendant in a criminal case. And at that point she had to have known that that was a matter of inquiry for every one and she essentially admitted that she did know that. But she felt that it wouldn't affect her so she didn't mention it. . . . [¶] So for those reasons I think the Court, at this point, does have good cause to excuse her as a juror even though she has said that she thinks she can be fair, because of that backdrop and that overall situation. And I'm handcuffed because I can't now, after she [has] been seated, begin to question her repeatedly about this, what in her mind is a fairly minor point because I don't want her to develop hard feelings towards the prosecution. And that is why I didn't—the specific reason why I didn't ask any more questions."
Defense counsel told the court that "I would prefer to keep her and submit the matter."
The trial court excused Juror No. 10. It explained its ruling as follows: "I think I'm going to have to excuse her. Essentially, I agree that she probably very well could have not thought about her brother when she answered the question during the questionnaire process because the question has so many parts in it, it's easy to glaze over one of them. [¶] But it's hard to imagine with the discussion we had with all of the jurors not triggering a response and, in fact, it did trigger her thinking of her brother, but [she] made a conscious decision not to mention it. And she—she says she discussed it with her husband who recognized that it was an issue that was significant to her and said you better tell us about it. [¶] I take it, reading everything she said, that she knew that she should have reported it, but was not anxious to discuss it publicly and convinced herself that it was justifiable not to report it because she did not think it would not [sic] affect her, but I don't think that that is an acceptable response. I think she ultimately withheld something that is significant, and it's not a risk that I can take having gone through that with the other jurors. [¶] So I do think I'm going to excuse her for cause because I believe that she withheld a significant fact although she had rationalized it in her own mind, and I don't think that it was appropriate not to mention it."
2. Legal Principles
Brewer argues that the discharge of Juror No. 10 violated his constitutional right to a fair trial. We disagree. In People v. Wilson (2008) 44 Cal.4th 758 (Wilson), our Supreme Court discussed the question of whether a juror who does not give truthful information during voir dire can be challenged. The Wilson court explained: " ' "Voir dire examination serves to protect [a criminal defendant's right to a fair trial] by exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to questions on voir dire may result in a juror's being excused for cause; hints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges. The necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious." [Citation.] [¶] A juror who conceals relevant facts or gives false answers during the voir dire examination thus undermines the jury selection process and commits misconduct.' [Citation.]" (Id. at pp. 822-823.)
The Wilson court went on to conclude that: " 'Although intentional concealment of material information by a potential juror may constitute implied bias justifying his or her disqualification or removal [citations], mere inadvertent or unintentional failures to disclose are not accorded the same effect. "[T]he proper test to be applied to unintentional 'concealment' is whether the juror is sufficiently biased to constitute good cause for the court to find under Penal Code sections 1089 and [former] 1123 that he [or she] is unable to perform his [or her] duty." ' [Citations.]" (Wilson, supra, 44 Cal.4th at p. 823.)
The court has also held: "On appeal, we review for abuse of discretion the trial court's decisions concerning whether and how to investigate the possibility that a juror should be discharged for failure to perform his or her duties, and whether, ultimately, to discharge the juror or to take some other action. [Citation.]" (People v. Alexander (2010) 49 Cal.4th 846, 927.)
This abuse of discretion standard is, however, modified somewhat by the requirement that although "decisions to investigate juror misconduct and to discharge a juror are matters within the trial court's discretion [citation], . . . 'a somewhat stronger showing' than is typical for abuse of discretion review must be made to support such decisions on appeal. [Citation.]" (People v. Lomax (2010) 49 Cal.4th 530, 589 [Lomax].) The basis for a juror's disqualification must appear on the record as a " 'demonstrable reality.' " (People v. Martinez (2010) 47 Cal.4th 911, 943 (Martinez).) "This standard involves 'a more comprehensive and less deferential review' than simply determining whether any substantial evidence in the record supports the trial court's decision. [Citation.] It must appear 'that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that bias was established.' [Citation.] However, in applying the demonstrable reality test, we do not reweigh the evidence. [Citation.] The inquiry is whether 'the trial court's conclusion is manifestly supported by evidence on which the court actually relied.' [Citation.]" (Lomax, supra, 49 Cal.4th at pp. 589-590.)
In sum, "[w]hen the trial court discovers during trial that a juror misrepresented or concealed material information on voir dire tending to show bias, the trial court may discharge the juror if, after examination of the juror, the record discloses reasonable grounds for inferring bias as a 'demonstrable reality,' even though the juror continues to deny bias. [Citations.]" (People v. Price (1991) 1 Cal.4th 324, 400.)
The trial court found that Juror No. 10 knew that she should have reported her brother's criminal activities, but did not because she did not want to discuss the matter. Instead, she concluded that it would not influence her and purposely withheld this information. During voir dire, the importance of this issue would have been difficult for Juror No. 10 to miss, given that there was extensive questioning, including of Juror No. 10 herself, who disclosed only that a family member or close friend had been involved in a criminal matter, without mentioning her brother's involvement in criminal activity. Given how clear the question was, the court reasonably concluded that Juror No. 10 intentionally withheld this information. Certainly, the fact that her brother was "in and out of jail" for years was significant, at least on par with the drunk driving matter involving a friend, which another prospective juror did report.
Applying the " 'demonstrable reality' " test, we conclude from our review of the record that the trial court did not abuse its discretion when it discharged Juror No. 10 on the ground that she had concealed significant information during voir dire. (Martinez, supra, 47 Cal.4th at p. 943.)
We reject appellant's contrary arguments. Relying on McDonough Power Equipment, Inc. v. Greenwood (1984) 464 U.S. 548, appellant argues that Juror No. 10's failure to inform the court that her brother not only had a criminal record, but had been "in and out of jail" since he was 15 years old, did not rise to the level of misconduct. McDonough, however, is factually inapposite. In McDonough, the court found that a juror did not willfully withhold information but, rather, misunderstood the nature of the information that was sought during voir dire. In so doing, the court observed that "jurors are not necessarily experts in English usage. Called as they are from all walks of life, many may be uncertain as to the meaning of terms which are relatively easily understood by lawyers and judges." (Id. at p. 555.) Here, however, the evidence refutes defendant's assertion that Juror No. 10 might have "[forgotten] incidents long buried in [her] mind[], misunderst[ood] a question or ben[t] he truth a bit to avoid embarrassment." (Dyer v. Calderon (9th Cir. 1998) 151 F.3d 970, 973.) Juror No. 10 was aware of her brother's record and understood that it was relevant to the question she was asked during voir dire. Her failure to disclose it during voir dire cannot be chalked up to a minor bending of the truth.
In sum, there was no constitutional error here. (Lomax, supra, 49 Cal.4th at p. 591 [" 'The substitution of a juror for good cause pursuant to section 1089, even after deliberations have commenced, " 'does not offend constitutional proscriptions.' " [Citation.]' [Citation.]"].) Therefore, having concluded that the trial court did not abuse its discretion in discharging Juror No. 10, we also find that the discharge of Juror No. 10 did not violate defendant's constitutional rights. (Id. at p. 592.) B. Challenge for Cause
Brewer also argues that the court erred when it granted the prosecution's challenge for cause of prospective Juror No. 43.
When the court asked Juror No. 43 about friends or relatives that were lawyers, she said that "the two that I'm pretty close to both practice criminal." She indicated that they were defense lawyers, but that the relationship would not cause her to favor either side in this case. When the court asked her whether her "opinion or attitude about the criminal justice system which would make it difficult for you to be fair," the following colloquy took place:
"THE PROSPECTIVE JUROR: I don't know if it falls under the criminal justice system, but with the police department, I'm from Southern California, I just moved here a couple of years ago.
"THE COURT: I see.
"THE PROSPECTIVE JUROR: And my youngest son had some issues with the police department. Being young, we stayed in a nice neighborhood, drove a nice car, he was constantly being stopped and harassed.
"THE COURT: I see.
"THE PROSPECTIVE JUROR: There was one particular incident where—he was also home schooled, he was jogging during the day. And he was jogging to a friend's house about ten blocks away and he noticed a helicopter is following him. And his first thought was I haven't done anything, so they couldn't really be following me, maybe it's my imagination. [¶] So when he got to his friend's house he went upstairs to the apartment, someone from the helicopter on the bull horn, you know, you in the white shirt come out with your hands up. And his first thought was I hadn't done anything, they couldn't be talking about me. [¶] So they said it again and said if you don't come out we are coming in. So when he came out, they threw him on the ground, they handcuffed him and it was about 60—and I still get very emotional about this.
"THE COURT: I understand.
"THE PROSPECTIVE JUROR: There were all of these guns pointed at his head and there was one of the neighbors who was a member of my church, I worked for a church in Southern California, she called me and she said . . . you need to get down here right away and she told me what was going on. [¶] And by the time I got there it had been resolved. It was a mistaken identification. Some guy had robbed the postman and he had been wounded in the area, but the description was he was dark-skinned wearing a black T-shirt. My son is light-skinned wearing a white T-shirt. And they still took him through all of this. And he tried to explain to them and they keep telling him shut up, don't move. [¶] He had a broken finger at the time. He said the handcuffs are aggravating that. I mean, it was just a really bad experience. And by the time I got there it had been resolved but they still wouldn't let me go and talk to him at that time. [¶] So I still have, like I'm very emotional about that, and it's been over ten years.
"THE COURT: Okay. It's understandable why you would have very strong feelings about it. Really, I think what it comes down to is, as we have talked with many of the jurors, some things are clearly factually unrelated to the present case but leave us with such strong opinions that we can't get away from the whole of the emotional response.
"THE PROSPECTIVE JUROR: Un-huh.
"THE COURT: Emotional is not a great word, but that experience has left you with some very strong feelings, obviously.
"THE PROSPECTIVE JUROR: Yes.
"THE COURT: The question, as with all the jurors, is whether—we wouldn't ask you to leave that behind because that is impossible and we wouldn't ask that of you, but the point is that can you decide this case just on the evidence here and evaluate each witness starting off on a level playing field including police officers? Or, are already the law enforcement witnesses in this case going to start off kind of behind the eight-ball because of your son's experience?
"THE PROSPECTIVE JUROR: I couldn't say for a 100 percent that I could.
"THE COURT: Okay. I know that it sounds like you have been thinking about and struggling with that issue yourself?
"THE PROSPECTIVE JUROR: Yes, yes . . . .
"THE COURT: Okay. Any other issues that I have talked with the other jurors about that left you with any impressions that we should talk about, anything that would be relevant to you as a juror?
"THE PROSPECTIVE JUROR: Well, there was another issue with a judge.
"THE COURT: Okay. As I said, there are good ones and bad ones in every profession.
"THE PROSPECTIVE JUROR: Well, someone, same son, someone was using his identity. And they were—they had driving—I mean, tickets in his name. They gave his name and signed his name because they didn't, of course, have his driver's license. And this we found out was a friend of his. [¶] But it happened in two different counties and the first judge we went to he could see that the signature was a forgery, that it was not my son's, so he threw it out. [¶] But the second judge in another county, he was very hard-nosed and gave my son a really hard time and he told him he had to come back. And my son said, mom, this judge does not like me, I need you to come back with me. And I did.
"The next time we got there—I mean, and he was really nasty to my son. My son explained to him we don't have the police report because they had caught the guy. He was shoplifting and he gave my son's name again. [¶] So we knew what was going on and the police department called us and said we will send a police report, but we didn't get it in time to go back to court.
"THE COURT: I see.
"THE PROSPECTIVE JUROR: But we did have a statement over the phone and the judge wouldn't accept it, so he made us come back a third time with the police report before he finally dismissed it. He actually accused my son of lying. He said, you know, this is your signature, you did this. So, again, you know, I'm still very emotional about that whole experience.
"THE COURT: Okay.
Following this colloquy, the prosecutor questioned the prospective juror. The relevant portion of this interchange is as follows:
"[THE PROSECUTOR]: Do you feel comfortable making your decision, like the ones we have been talking about like trying to figure out what happened and then applying the facts to the law and then ultimately going through to guilty or not guilty?
"THE PROSPECTIVE JUROR: No.
"[THE PROSECUTOR]: Are you still at the same spot you were a few moments ago when you said you couldn't say for sure for 100 percent that you would be fair and unbiased and impartial in a case like this; do you still feel that way?
"THE PROSPECTIVE JUROR: 100 percent, I would try to be, but in all honesty, I don't know.
"[THE PROSECUTOR]: Okay. Thank you for being honest. I appreciate that."
Defense counsel also questioned the prospective juror as follows:
"[DEFENSE COUNSEL]: I think what the judge probably was most interested in is when these officers, whether they be black, white or Hispanic, walk up and swear to tell the truth, whether you will judge them just as you would judge Terrance Brewer's mother. You would look at them and decide whether they have any particular biases, decide whether you think they are telling the truth, whether you know they are telling the truth, these are folks you don't know. [¶] And the question then becomes when you are going to hold against them something that some other officer in Southern California did years ago. [¶] And you said you would try, you would try not to hold it against them; isn't that right?
"THE PROSPECTIVE JUROR: Yes.
"[DEFENSE COUNSEL]: And you recognize that that would be pretty unfair to [the prosecutor] and to those officers personally to have it held against them, what some other officer did years ago?
"THE PROSPECTIVE JUROR: Sure.
"[DEFENSE COUNSEL]: I suppose you also recognize that if we had jury—I should let you know here, I don't think you are going to hear about any police officers that did anything wrong, that did harassment, that did any undue violence, you're just not going to hear any of that. So I don't really think it's going to be an issue. So, my interest here is to have you be able to tell [the prosecutor] that you are going to do your levelheaded best not to be biased against these police officers that you don't know and you don't think you are going to feel any of that bias; isn't that right?
"PROSPECTIVE JUROR: You're right.
"[DEFENSE COUNSEL]: And when you set your mind to doing something that you know is fair and that you know is right, you are generally able to do that, aren't you?
"PROSPECTIVE JUROR: Yes."
The prosecutor challenged two prospective jurors for cause, including prospective Juror No. 43. Defense counsel argued that his questioning had clarified her sense of fairness. The prosecutor argued that the few questions by defense counsel could not eliminate the prospective juror's mindset over such an emotionally intense experience.
The court granted the challenges for cause with the following findings. It explained that "[m]y view is that on these matters I have to look both at what the jurors, potential jurors, say and demeanor and so forth and try to evaluate, to the extent I can actual bias whether entirely conscious or subconscious. And I think sometimes I have to go beyond the actual words they say and look for clues as to what their actual state of mind is." The court then granted both challenges. It found that the statements made by both jurors when they were first questioned regarding the ability to be were better indicators of the juror's state of mind than their responses to defense counsel's "masterful job" of asking leading of leading questions regarding their ability to be fair.
The trial court found the prospective juror "extremely intelligent and thoughtful." He described her initial comments, which were "prompted just by the objective questions on the questionnaire were both deeply felt. She is, as she said herself, she gets emotional about it. She was—wouldn't go so far to say she was choked up, but very clearly emotionally affected by her son's what sounds like very poor treatment of her son by both the police and the judge in . . . L.A. or Southern California and that she volunteered that as something that would affect her and I think she was honest when she said she is not sure that she can be fair under the circumstances. [¶] Again, through very successful kind of leading down the path, she was able to say that she would not in fact hold that against the police in this case. But I don't—I'm not saying I don't believe she is telling the truth when she answers those questions. What I believe is that she is being kind of led to the path where she understands that she needs to try not to let it bother her. But I'm looking for actual motivation and likely ability to set these matters aside and not allow them to affect one's judgment on the issues outside the evidence. And I think her initial comments reflect her actual state of mind. [¶] So I think both are excusable on the basis of cause and both challenges are granted."
After defense counsel asked the court to reconsider its decision as to Juror No. 43, the court stated, "it may be easy to check a box in the jury room, but one doesn't, I think, affirmatively check a box and then affirmatively offer these very personal, very deeply felt emotional experiences where her son was severely mistreated and almost—and put in danger with 40 guns pointed at his head unfairly. . . . All of that was unprompted and that is why I find it more persuasive. [¶] I agree that she was thoughtful, that she was responding to your questions thoughtfully and I believe in good faith and honestly, but I don't believe that those answers as they were I think successfully and very skillfully led her to the answers that were being sought. I don't think that that overcomes what was her initial and I think heartfelt concern about her ability to be fair. [¶] So, ultimately, I conclude that her initial comments were more unvarnished or unscripted statement of her views, and I think she was honest at that time, as well. [¶] So I do think that she should be excused for cause."
The trial court did not err in so ruling. "In general, the qualification[s] of jurors challenged for cause are 'matters within the wide discretion of the trial court, seldom disturbed on appeal.' " (People v. Kaurish (1990) 52 Cal.3d 648, 675.) "[W]here answers given on voir dire are equivocal or conflicting, the trial court's assessment of the person's state of mind is generally binding on appeal. [Citation.] The trial court is in the unique position of assessing demeanor, tone, and credibility firsthand—factors of 'critical importance in assessing the attitude and qualifications of potential jurors.' [Citation.] Hence, the trial judge may be left with the 'definite impression' that the person cannot impartially apply the law even though, as is often true, he has not expressed his views with absolute clarity. [Citation.]" (People v. DePriest (2007) 42 Cal.4th 1, 21.)
Here, the trial court found that the prospective juror's responses to the court's unprompted questions regarding potential bias were more credible that the juror's response to defense counsel's leading questions. The court also based its decision on its observation of the juror and, in particular, her "heartfelt concern about her ability to be fair," which the court found truly reflected her state of mind.
Defendant argues that one of the events prospective juror No. 43 described had occurred a decade previously and the other occurred sometime before she moved to Northern California two years earlier and therefore were no longer significant to her. The fact that the events the prospective juror described occurred 10 years and more than two years before the trial in this case does not undermine the trial court's observation that the prospective juror was "emotional" about what she described as police mistreatment of her son or that the juror's statement that she could not be fair as a result of these encounters between her son and the justice system was "heartfelt."
The trial court did not err in excusing this prospective juror for cause. C. New Trial Motion
Appellant contends that the trial court abused its discretion in denying his motion for a new trial based on a witness's post-trial change of opinion. We do not agree.
California law authorizes courts to grant a motion for new trial "[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial." (Pen. Code, § 1181, subd. (8).) The standard of review of an order denying such a motion for new trial was set forth by the California Supreme Court in 1887, and has since remained unchanged: "To entitle a party to a new trial on the ground of newly discovered evidence, it must appear,—'1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.' " (People v. Sutton (1887) 73 Cal. 243, 247-248, quoting 1 Hayne on New Trial and Appeal, § 88; see also People v. Martinez (1984) 36 Cal.3d 816, 821.) "A trial court's ruling on a motion for new trial is so completely within that court's discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion." (People v. Hayes (1999) 21 Cal.4th 1211, 1260-1261.)
1. Factual Background
Brewer's new trial motion was based on a change in the opinion of witness Dominic DiSibio regarding whether Adam Bella intended to rob Aaron Mejia the night of the murders. In testimony he gave at a hearing held on that motion, DiSibio stated that he now believed that Bella might have only intended to buy marijuana. He based this change of opinion on the fact that, during the 10 minutes that they waited for Mejia to arrive at the Concord Safeway, the other men in the car stopped talking about a robbery and DiSibio hoped he had convinced the other occupants of the car that they should not rob the dealer. He knew Adam Bella had money so he hoped Bella was taking money to buy marijuana because Bella did not need to commit a robbery.
DiSibio felt guilty that he had failed to stop Bella from trying to rob the pot dealer. DiSibio agreed that he tried to tell the truth to the police because of a religious experience and felt God was directing him to tell the truth. At trial he had testified to the whole truth, i.e., the same as what he told the police. What he saw and heard had not changed from the time of his testimony at trial and his testimony during the evidentiary hearing on the new trial motion.
The motion was submitted on the evidence of DiSibio's testimony at the hearing on the new trial motion rather than the affidavits that appellant had filed. After argument, the court denied the motion for new trial. In a thorough and thoughtful ruling, with which we agree and, therefore, quote at length, the trial court explained its reasoning for denying the motion as follows: The court first summed up DiSibio's testimony at trial: "I first say that I do credit Mr. DiSibio's testimony at trial and talked about specifically to the extent there is any differences in his testimony at the hearing, but at trial Mr. DiSibio testified that—I'm not going to cover everything he said, but the salient points for purposes of this motion, I believe, is that when he went to pick up Mr. Brewer, and Mr. Brewer said that he felt like he was going to do something bad because he was desperate for money, that Mr. Brewer, Mr. Bella, Mr. Ramos and Mr. Roseboro were all in agreement to do something bad according to Mr. DiSibio. Mr. DiSibio tried to talk Mr. Brewer out of this bad act and offered him a means of collecting $150 for signatures that had legally been obtained by Mr. DiSibio and that was Mr. DiSibio's method of offering money to Mr. Brewer to solve his money problems, so he didn't have to do something bad to obtain the money. Mr. Brewer responded he needed more than $150. [¶] The defendants, and by that I mean the other gentlem[e]n I just named, Mr. Bella, Mr. Ramos and Mr. Roseboro, told Mr. DiSibio they planned to rob a drug dealer because Mr. Brewer needed money. Mr. DiSibio testified at trial very clearly that he opposed this idea throughout and tried to talk the robbers, or the defendants out of it. [¶] On the other hand all four defendants urged Mr. DiSibio to drive them to the scene of the robbery and ultimately persuaded him to do so. And he [DiSibio] described succumbing to peer pressure and manipulation. [¶] Mr. DiSibio testified that the plan was for Adam Bella to get out of Mr. DiSibio's car and get into Mr. Mejia's car, show Mr. Mejia the purchase money, which Mr. Bella had on his person and pretend to buy the marijuana in the car and then upon completion of that process when Mr. Bella got out of the car, Mr. Mejia's car, that is when he was planning to pull his gun out and that would be a signal to the other defendants in the car, the three people in Mr. DiSibio's back seat, to get out of Mr. DiSibio's car, surround Mr. Mejia's car so that Mr. Mejia would not be inclined to resist or to get out and run away. [¶] Mr. DiSibio testified at trial that he told all of the defendants not to do anything stupid and he offered to give Mr. Bella money to buy the marijuana rather than steal the money from Mr. Mejia. [¶] And Mr. DiSibio testified at trial that his last words to Mr. Bella when he got out of the car was don't do anything stupid. Mr. DiSibio testified that the plan never changed even after they saw—when Mr. Mejia pulled up at the Safeway parking lot, that there was another gentleman in the back seat of Mr. Mejia's car. Even having seen the second passenger they discussed the possible risk that a second person in the back seat may have a gun, but the plan never changed. . . . [¶] Mr. DiSibio made it clear that he was the only one who referred to stopping the plan, no one else referred to stopping it at any point. . . . [¶] While Mr. Bella was in Mr. Mejia's car, Mr. DiSibio and the other defendants could see that Mr. Bella and Mr. Mejia and eventually Mr. Mejia's little brother in the back seat were beginning to wrestle inside the car. [¶] Prior to that occurring before the struggle was seen Robert Ramos, who was sitting in the middle of the back seat of the car, told Mr. Brewer and Mr. Roseboro to get ready. [¶] Mr. DiSibio described that that necessarily referred to get ready to jump out of the car when Mr. Mejia got out, excuse me, when Mr. Bella got out to signal the robbery, because Mr. Ramos was stuck in the middle and couldn't get out until one of the two gentlemen on either side of him got out. [¶] So to Mr. DiSibio that signaled an obvious plan to get out of the car and commit the robbery. [¶] Then they saw the struggle go on inside Mr. Mejia's car. And at that point Mr. Brewer and Mr. Roseboro got out of the back seat, out of their respective doors, panic set in, everybody in the car—Mr. DiSibio's car yelled get out and go and that's when Mr. Brewer and Mr. Roseboro got out. [¶] After Mr. Brewer and Mr. Roseboro got out of Mr. DiSibio's car Mr. Brewer opened the back driver's side door to the Cadillac, that is Mr. Mejia's Cadillac, and that's when Mr. DiSibio heard shots from inside the Cadillac. . . . [¶] On cross-examination Mr. DiSibio was asked specifically whether he knew he was a wheelman for a robbery. And Mr. DiSibio responded that he knew that they, the defendants, intended to rob somebody at that time, he just wasn't sure of the precise details of how they were going to commit the robbery. [¶] Mr. DiSibio also said on cross that he didn't know that when he went to the police and he voluntarily reported the occurrences of the robbery that he could be held responsible because he knew that they were going to commit a robbery when he drove into the location. [¶] Mr. DiSibio also said that he received and read the police reports in the case in the event that he had to go to trial himself."
The trial court then considered the evidence proffered at the evidentiary hearing on the new trial motion. "[T]he only new factor presented was Mr. DiSibio's testimony at the hearing that while they waited at the Safeway parking lot for ten minutes there was no further discussion of the robbery during that ten-minute period. [¶] Now, that is, in my view, contrary to his testimony at trial. At trial Mr. DiSibio testified that during the seven to ten-minute wait in the Safeway parking lot he, Mr. DiSibio, kept telling the defendants not to do anything stupid, and that Mr. DiSibio offered to give money to Mr. Bella to buy the marijuana, and that they discussed the worst case scenario that could occur and the defendants told Mr. DiSibio that the worst they would have to do was to hit the victims with their guns, that is, to pistol whip them and that the plan was bullet proof. . . . So in that respect the new evidence being that his new testimony is that there was no conversation for that ten minutes, his trial testimony gave the specifics that I just described. [¶] The other new proffered evidence is that Mr. DiSibio felt that during that ten-minute wait at Safeway the opposition to his plan to buy the marijuana was diminishing. He inferred that from the silence, apparently. [¶] Third, that Mr. DiSibio is not sure whether he knew at the time of the robbery that Bella had a lot of money on him. [¶] The evidence regarding the amount of money found in Mr. Mejia's car and its location was, of course, known to the parties and was presented to the jury at trial. [¶] Mr. DiSibio's knowledge of the amount of money that Mr. Bella had is irrelevant because he clearly knew Mr. Bella had money to buy the marijuana because that was the plan to begin with. [¶] Mr. DiSibio also testified at the hearing that he is not sure whether he learned before or after the robbery that the plan was to have Mr. Brewer and others wait in Mr. DiSibio's car until Mr. Bella got out to signal the robbery, but, again, I don't think that is materially different from his trial testimony. The question is not when he learned it, but whether there was any plan other than the plan he described, and there is [not] presently and never has been any evidence of any plan other than that Mr. Mejia would give—excuse me, Mr. Bella would get into Mr. Mejia's car, buy the marijuana, and then when he got out, pull his gun and the other defendants would get out, surround the car and commit the robbery. [¶] And, finally, Mr. DiSibio testified at the hearing that he did not know that the victims['] two kni[v]es were found in an open position inside Mr. Mejia's car. And that learning this information after the trial caused him to reconsider his opinion on whether Mr. Bella intended to rob the victims in this case. [¶] And again, this information was known to all parties during the trial and was presented to the jury during the trial. So the fact of the open knives is not new evidence, it is newly presented to Mr. DiSibio and as a result of that Mr. DiSibio has modified his opinion on what Mr. Bella intended to do."
After this summary of DiSibio's testimony both at trial and at the evidentiary hearing on the new trial motion, the trial court then ruled on that motion thusly: "First, my view is that there is in fact no new material evidence that has been discovered. The change since the trial primarily is that DiSibio has drawn some assumptions and conclusions that may be different from those drawn at the time of the trial. However, all of the facts upon which those conclusions and assumptions were made were known to all parties and were elicited at the time of the trial. [¶] Secondly, I don't believe that Mr. DiSibio's change in opinion or inferences or speculation would render a different result probably at trial because none of it would have been admissible. [¶] Third, the facts that were disclosed to Mr. DiSibio that caused him to reconsider his assumptions were known to all parties and could have been used during the cross-examination of Mr. DiSibio, and were used to some extent to cross Mr. DiSibio and were used in argument extensively to the jury. [¶] As I indicated, the only arguably new evidence is the ten-minute waiting period where now Mr. DiSibio says simply there was no talk of the robbery, as opposed his detailed testimony during the trial about several conversations about this being a bullet proof plan, that all they would have to do is pistol whip the victims at worst, that Mr. DiSibio continued to try and talk them out of it, and offered to provide money to buy the marijuana. [¶] I do not find Mr. DiSibio's testimony on this one point at the hearing to be worthy of belief by the jury. He states simply and conclusionar[il]y there was no talk of the robbery during the ten-minute waiting period, yet at trial he describes in great detail specific conversations that occurred during this ten-minute waiting period in context as Mr. Bella was calling Mr. Mejia on the cell phone to connect up to cars in the back of the Safeway parking lot. So in my view it does not meet the threshold requirement of being worthy of belief by the jury. However, even if presented at trial and credited by the jury the silence during the ten-minute period is not evidence of [sic] the robbery plan was abandoned, and, therefore, does not provide new material evidence that would likely cause a new result even if believed by the jury. [¶] And I understand [defense counsel's] point that he wanted to elicit the change in opinion by Mr. DiSibio because it affected his recollection, but only his—any changes in recollection are admissible. You can refresh his recollection all day-long with anything you want, but that doesn't make it admissible at trial, and none of Mr. DiSibio's speculation, opinions or beliefs would have been admissible as trial. And that's why I sustained the objections.
However, to [the] extent he had different recollections as a result of his memory being refreshed, or reconsidered as a result of the factors that the defense has raised, he was free to defense [sic] to his difference recollections, and as far as I can tell he did when he testified that no conversation occurred during the ten minutes. But again, I don't think that that change is worthy of belief in light of the detailed testimony at trial, and if believed I don't think it would change the result because silence does not equate abandonment of a plan, and nothing that occurred factually in—according to Mr. DiSibio's testimony is inconsistent with the plan being carried out. [¶] Mr. DiSibio testified repeatedly including on cross that the defendants intended to rob Mejia throughout this process and that he was the only one who ever expressed any desire to the contrary. [¶] As I indicated, the ten-minute wait at the Safeway discussed in great detail the worst case scenario, the pistol whipping, the bullet proof plan and so forth. [¶] While Mr. Bella was in Mr. Mejia's car pretending to negotiate the marijuana transaction, Mr. Ramos, as I indicated, told Mr. Brewer and Mr. Roseboro to get ready in the context meaning to get ready to jump out of the car consistent with the plan to rob. [¶] And, finally, when Mr. Bella and Mr. Mejia began struggling in Mr. Mejia's car before Mr. Bella got out to signal the robbery, that the struggle occurred before he got out so the fact that the defendants in the back seat did not get out of the car prior to the struggle is not inconsistent with the plan because the plan was always to begin the robbery after Mr. Bella got out of the car. So the fact that they sat in the car is not inconsistent with the plan to rob. [¶] So the bottom line is the purported new evidence is almost entirely inadmissible. It's Mr. DiSibio's reconsideration of his assumptions about what Mr. Bella was thinking and what his intent was when he got into Mr. Mejia's car, and speculation as to the other defendant's intent whether to abandon the plan or not because it was never specified and no one other than Mr. DiSibio suggested the plan should be abandoned. [¶] Now, Mr. DiSibio's beliefs, hopes, assumptions and speculation are inadmissible and are irrelevant. There is no evidence at all that the robbery was called off by anyone, and the only arguably new evidence, as I have indicated, would not change the result in the case. So the motion for new trial is denied." (Italics added.)
We agree with the trial court's well-reasoned and clearly articulated analysis. The "newly discovered" evidence was neither newly discovered nor, in the case of DiSibio's testimony that there was silence in the car while they waited for the dealer to arrive, credible. It was also, as noted by the trial court, totally speculative. The trial court did not abuse its discretion in denying the new trial motion. D. Cruel and Unusual Punishment
Appellant argues that his sentence to a term of 50 years to life plus eight months be stricken as cruel and unusual punishment under the Eighth Amendment to the Constitution of the United States and article I, section 17, of the California Constitution, as applied under People v. Dillon (1983) 34 Cal.3d 441 (Dillon). He is incorrect.
The trial court sentenced appellant to state prison for a term of 50 years to life plus eight months, consisting of 25 years to life for count 1, plus a consecutive term of 25 years to life for the firearm use enhancement, plus a consecutive term of eight months for one-third of the midterm of two years for count 6. The prison terms for count 2 were imposed concurrently, and terms for counts 3, 4, and 5 were stayed pursuant to section 654.
"In deciding whether the punishment is cruel or unusual, the court must determine whether the punishment 'is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.' (In re Lynch (1972) 8 Cal.3d 410, 424.) An examination of the nature of the offense and of the offender, ' "with particular regard to the degree of danger both present to society" ' is particularly relevant in determining this issue. (Dillon, supra, 34 Cal.3d at p. 479.) In assessing the nature of the offense, a court should consider the circumstance of the particular offense such as the defendant's motive, the way the crime was committed, the extent of his involvement and the consequences of his acts. (Ibid.) In analyzing the nature of the offender, a court should consider his 'age, prior criminality, personal characteristics, and state of mind .' (Ibid.) '[A] punishment which is not disproportionate in the abstract is nevertheless constitutionally impermissible if it is disproportionate to the defendant's individual culpability.' (Id. at p. 480.)" (People v. Felix (2003) 108 Cal.App.4th 994, 1000.) Further, "[w]hether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment." (People v. Martinez (1999) 76 Cal.App.4th 489, 496.) "Because it is the Legislature which determines the appropriate penalty for criminal offenses, [a] defendant must overcome a 'considerable burden' in convincing us his sentence was disproportionate to his level of culpability." (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197.)
Defendant was not only a participant in an armed robbery, but he also shot and killed a man during that robbery, which also claimed the life of his friend, Adam Bella. He carried out this crime despite the fact that the driver who took him to the scene of these crimes offered to help him obtain money quickly and legally. Defendant's punishment for these serious crimes is in no way grossly disproportionate to the severity of the crimes.
Nor is defendant's comparison of this case and Dillon helpful. There is little similarity between the juvenile offender in Dillon and defendant. Dillon was "unusually immature." Here, in contrast, defendant is an adult who helped to plan and carry out an armed robbery in which two men were killed.
We reject defendant's argument that his lack of a criminal history makes his punishment constitutionally invalid. In People v. Lucero (2000) 23 Cal.4th 692, 739, and People v. Felix, supra, 108 Cal.App.4th, at page 1001, defendants who had no criminal histories failed to make out claims for cruel and unusual punishment. An insignificant criminal record is "not determinative in a cruel and unusual punishment analysis." (People v. Gonzales (2001) 87 Cal.App.4th 1, 17.) Further, although there evidence of defendant's good behavior in the community came from family and friends, such representations receive little or no weight in a cruel or unusual punishment analysis. (People v. Martinez, supra, 76 Cal.App.4th at pp. 496-497; People v. Mora (1995) 39 Cal.App.4th 607, 612, 613-619.)
In conclusion, "Neither the circumstances of the crime nor those of the offender in this particular case compel the conclusion that the punishment provided by law would be so disproportionate as to shock the conscience of the court or offend fundamental notions of human dignity." (People v. Young (1992) 11 Cal.App.4th 1299, 1310.)
Having reached the conclusion that none of the foregoing claimed errors have merit, we also reject defendant's argument regarding cumulative error. His ineffective assistance of counsel argument is also conceded to now be "moot."
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IV. DISPOSITION
The judgment is affirmed.
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Haerle, J.
We concur:
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Kline, P.J.
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Richman, J.