Opinion
H042946
04-05-2017
THE PEOPLE, Plaintiff and Respondent, v. PETER ANTHONY FARNESE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Benito County Super. Ct. No. CR-14-00717)
Defendant Peter Anthony Farnese appeals from the judgment entered following his conviction, after a jury trial, of assault with a deadly weapon. On appeal, he contends comments made by a prospective juror during voir dire likely influenced other jurors, thereby denying him his constitutional rights to confrontation and an impartial jury. He further argues the trial court erred by refusing defense counsel's request to instruct the jury regarding lawful defense of another. Finding no error, we shall affirm.
I. BACKGROUND
A. Facts On the night of May 21, 2014, a group of friends had drinks around a bonfire on the shore of McAlpine Lake. The group consisted of defendant, Billy Dale Couch, Dylan Ivey, Ivey's girlfriend Amber Swannack, Joe Villanueva, and Villanueva's girlfriend Desiree Kalin. Couch and Ivey were employed at the nearby McAlpine R.V. Park where defendant and Villanueva lived. Ivey admittedly was drunk at the time of the events described below. Kalin, who was not drinking, testified Villanueva and Couch were intoxicated as well. Ivey and Villanueva got into a fist fight. Couch broke the fight up, after which Ivey, Swannack, and defendant left the bonfire. Ivey and Swannack returned and the two men immediately resumed fighting. Couch described the second fight as a wrestling match, with the men rolling around on the ground with their arms wrapped around each other. Villanueva ended up on top of Ivey. According to Ivey, as Villanueva held him down, the men began talking in an effort to resolve the matter. Ivey did not call out for help and was not injured. Kalin likewise testified that Villanueva was talking to Ivey while holding him down. All of the eyewitnesses agreed that the men did not hit each other after Villanueva restrained Ivey on the ground.
Defendant also returned to the bonfire area. Kalin heard him tell Ivey to "get that Mexican" and "use the piece on" Villanueva. Kalin also saw a knife in defendant's hand. Couch asked defendant to help pull the men apart. Defendant struck Villanueva in the side or back, the men separated, and Ivey and defendant left the area.
Couch could not say whether defendant had something in his hand when he hit Villanueva. Couch and Kalin heard defendant tell Villanueva "I stabbed you." Villanueva testified that defendant drove by in his truck shortly after the incident and yelled "I'm the one that stabbed you." Only then did Villanueva realize his back was bloody and he had a puncture wound. Ivey did not see how the fight was broken up and was not aware Villanueva had been wounded until police informed him.
Kalin called 911 and Villanueva was airlifted to San Jose for medical treatment. The outer lining of his lung had been punctured.
Officers did not recover a knife or other stabbing weapon.
B. Procedural History
The San Benito County District Attorney filed a complaint on May 27, 2014 alleging defendant committed attempted murder (Pen. Code, §§ 664, 187, subd. (a)) and assault with a deadly weapon (§ 245, subd. (a)(1)). The complaint further alleged that defendant personally used a deadly weapon (§ 12022, subd. (b)(1)) in the commission of the attempted murder and personally inflicted great bodily injury (§ 12022.7, subd. (a)) in the commission of both offenses. It also alleged that defendant had a prior strike conviction (§ 667, subd. (b)-(i)), a prior serious felony conviction (§ 667, subd. (a)(1)), a prior violent felony conviction (§ 667.5, subd. (a)), and had served three prior prison terms (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise noted. --------
Before trial, the court granted a motion to dismiss the attempted murder charge for insufficient evidence. The prosecutor withdrew the prior violent felony conviction allegation (§ 667.5, subd. (a)), and defendant admitted the prior strike, prior serious felony conviction, and prior prison term allegations.
The case proceeded to trial on August 24, 2015. On August 26, 2015, the jury found defendant guilty of assault with a deadly weapon and found true the allegation that he inflicted great bodily injury in the commission of that offense.
The court held a sentencing hearing on October 29, 2015. It sentenced defendant to 15 years in prison: six years on the assault conviction (double the middle term), plus three years for the great bodily injury enhancement, plus five years for the prior serious felony conviction enhancement, plus one year for the prior prison term enhancement. Defendant timely appealed.
II. DISCUSSION
A. Comments During Jury Voir Dire
Defendant contends he was denied his Sixth and Fourteenth Amendment rights to confrontation and an impartial jury and asserts that his trial was fundamentally unfair because of comments a prospective juror made during voir dire. While that juror was not seated, he contends her statements likely influenced other jurors, such that the trial court should have discharged the jury venire or, at a minimum, questioned potential jurors to assess any bias the statements may have caused.
1. Pertinent Facts
During voir dire, Prospective Juror No. 245556 informed the court that she had worked at Salinas Valley State Prison for 19 years. At one time, she was responsible for preparing inmates for prosecution for crimes committed in the prison. Among other things, she prepared reports for the prosecutor, organized transportation to court, and classified inmates based on "what type of gang members [they were], what type of security they needed." She also handled parole hearings for inmates with life sentences. The same prospective juror informed the court that her husband, a correctional officer, was assaulted by a hepatitis C-positive inmate. Prospective Juror No. 245556 indicated that she would not allow her job experiences or her husband's assault to influence her as a juror.
The prosecutor and defense counsel had the opportunity to question prospective jurors. Defense counsel asked whether any of them had "any concern about being fair and impartial." Prospective Juror No. 245556 responded "Not that I can't be impartial, but the fact that I work at a state institution—the way that people appear, tattoos, different personas—I know what it all means. I will try to be open and impartial, but it probably would have a little bit of bearing on what I think." When asked if she could set her beliefs aside, she reiterated "I am aware of what things mean in a prison setting and that type of institutional setting; so— . . . I'll try my best." She indicated that a different type of jury trial would be better for her but that she could be impartial. She further stated, "It's not about prejudice. It's just what the tattoos mean in the environment that I work in."
Defense counsel challenged Prospective Juror No. 245556 for cause. The court denied that challenge. Defense counsel then exercised a peremptory challenge to excuse her.
On appeal, defendant characterizes Prospective Juror No. 245556's comments as informing jurors that he had served a prior prison term and was a member of a prison gang. Defendant maintains the trial court should have dismissed the venire or conducted further voir dire to determine whether the comments tainted the panel, although he did not request such relief or otherwise object below. The People contend defendant forfeited his challenge, which they also maintain is meritless. Defendant argues trial counsel was ineffective if the claim was not preserved for appeal.
2. The Trial Court Did Not Err By Failing to Discharge the Venire
A criminal defendant has the constitutional rights to confront witnesses and to a determination of guilt or innocence by a fair and impartial jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, §§ 15, 16.) "[T]he trial court possesses broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required." (People v. Medina (1990) 51 Cal.3d 870, 889 (Medina).) "[S]uch a drastic remedy is [not] appropriate as a matter of course merely because a few prospective jurors have made inflammatory remarks." (Ibid.) Rather, "discharging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant." (Ibid.)
"Just as a finder of fact is in a better position than the reviewing court to judge the credibility of a witness, the trial judge is in a better position to gauge the level of bias and prejudice created by juror comments." (People v. Martinez (1991) 228 Cal.App.3d 1456, 1466.) Accordingly, the refusal to dismiss a jury panel is reviewed for abuse of discretion. (Ibid.; People v. Nguyen (1994) 23 Cal.App.4th 32, 41-42 (Nguyen).)
Here, the trial court did not abuse its discretion by failing to discharge the entire venire. Prospective Juror No. 245556 stated defendant's tattoos and their meaning in the prison setting might influence her, although she ultimately concluded she could be impartial. Nevertheless, she was excused from the panel on a peremptory challenge. She never explained the significance of defendant's tattoos and we think it unlikely that the panel understood her vague comments to mean defendant was a member of a prison gang, as he maintains. Thus, the comments were not as inflammatory as defendant contends. Significantly, the comments at issue "did not give the other prospective jurors information specific to the case" (People v. Cleveland (2004) 32 Cal.4th 704, 736 (Cleveland)), but just exposed them to one person's biases towards defendant. At the end of voir dire, the court confirmed that all of the prospective jurors felt "without reservation that [they could] be fair and impartial . . . ." Under these circumstances, we find no abuse of discretion. Case law confirms that conclusion. (See Cleveland, supra, at pp. 735-736 [entire venire not tainted by prospective juror and retired law enforcement officer's comments during voir dire that the death penalty was " 'too seldom [used] due to legal obstructions' " and that he could not be fair to the defendant " 'based on my knowledge of how these trials are conducted' "]; (Medina, supra, 51 Cal.3d at p. 888 [trial court did not err in failing to discharge the entire jury venire where prospective jurors made statements such as " 'even his own lawyers think he's guilty,' " and " 'bring the guilty S.O.B. in, we'll give him a trial, and then hang him' "]; (Nguyen, supra, 23 Cal.App.4th at pp. 41-42 [denial of motion to dismiss entire jury panel not an abuse of discretion where prospective juror expressed fear of retaliation because he and the defendant belonged to the Vietnamese community].)
The cases on which defendant relies are distinguishable. At issue in People v. Nesler (1997) 16 Cal.4th 561 (Nesler) was whether misconduct by a sitting juror during deliberations was prejudicial, such that the defendant was entitled to a new trial. The juror engaged in misconduct by disclosing damaging, out-of-court information about the defendant to other jurors "in an apparent attempt to persuade them to change their views." (Id. at p. 579.) Our Supreme Court explained that "[w]hen juror misconduct involves the receipt of information about a party or the case from extraneous sources, the verdict will be set aside . . . (1) if the extraneous material, judged objectively, is so prejudicial in and of itself that it is inherently and substantially likely to have influenced a juror; or (2) even if the information is not 'inherently' prejudicial, if, from the nature of the misconduct and the surrounding circumstances, the court determines that it is substantially likely a juror was 'actually biased' against the defendant." (Id. at pp. 578-579.) In Nesler, the court concluded the trial court erred by denying the defendant's motion for a new trial, reasoning there was a substantial likelihood the juror who committed misconduct was actually biased by the extrajudicial information, such that the defendant was deprived of her right to an impartial jury. (Id. at pp. 583, 587, 590.) Here, defendant does not argue "actual bias," as Prospective Juror No. 245556 was excused. Rather, he says her comments were "so prejudicial in and of [themselves] that [they were] inherently and substantially likely to have influenced a juror." (Id. at pp. 578-579.) We find the analogy to Nesler unpersuasive. As a threshold matter, it is not clear that the standard for determining whether juror misconduct involving the receipt of extraneous information was prejudicial applies here. In any event, Prospective Juror No. 245556's ambiguous statements were not so prejudicial that they were inherently and substantially likely to have influenced other prospective jurors.
In Mach v. Stewart (9th Cir. 1997) 137 F.3d 630, 633 (Mach), a habeas corpus proceeding following Mach's conviction in Arizona state court of child sexual abuse, a prospective juror stated during voir dire that, as a social worker with at least three years of experience, "she had never known a child to lie about sexual abuse." The Ninth Circuit concluded the district court erred in denying the defendant's motion for a mistrial on the ground the comments tainted the jury, stating "[a]t a minimum, when Mach moved for a mistrial, the court should have conducted further voir dire to determine whether the panel had in fact been infected by [the prospective juror's] expert-like statements. Given the nature of [the prospective juror's] statements, the certainty with which they were delivered, the years of experience that led to them, and the number of times that they were repeated, we presume that at least one juror was tainted and entered into jury deliberations with the conviction that children simply never lie about being sexually abused. This bias violated Mach's right to an impartial jury." (Ibid.)
Prospective Juror No. 245556's vague references to defendant's tattoos are not comparable to the statements in Mach, which were "directly connected to Mach's guilt." (Mach, supra, 137 F.3d at p. 634.) In Mach, the potential juror vouched for the credibility of child sexual abuse victims in a child sexual abuse prosecution based largely on a child's testimony that Mach had sexually assaulted her. Thus, the potential juror opined on one of the central issues in the case. By contrast, here, the prospective juror's statements were not relevant to the charged crime. In short, Mach is factually distinguishable. It also is not binding on this court. (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3 ["we are not bound by decisions of the lower federal courts, even on federal questions"].)
Defendant's reliance on Paschal v. United States (5th Cir. 1962) 306 F.2d 398 is likewise misplaced. There, the defendant was charged with passing counterfeit currency. A prospective juror, who was a stockholder and director of a bank, stated in front of the jury panel that his bank had received " '[s]ome Paschal money'—'[t]his defendant's money', about three years previously." (Id. at p. 399, fn. omitted.) The Fifth Circuit Court of Appeals held that even though the director was excused, the final jury was irreparably tainted, noting that "[w]hen [a juror] comes forward with the conclusion of guilt based upon some special information or knowledge he has gained, . . . the influence on the minds of the other jurors is inevitable." (Id. at p. 400.) Like Mach, and unlike our case, Paschal involved the disclosure of extraneous information bearing on the defendant's guilt of the charged offense. No such information was disclosed here.
3. The Trial Court Did Not Err By Failing to Conduct Further Voir Dire
Alternatively, defendant contends it was error for the trial court not to conduct additional voir dire to determine whether Prospective Juror No. 245556's comments generated bias among other jurors. Again, we find no abuse of discretion. "The impartiality of prospective jurors is explored at the preliminary proceeding known as voir dire. 'Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored. Without an adequate voir dire the trial judge's responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannot be fulfilled.' " (In re Hitchings (1993) 6 Cal.4th 97, 110.) That said, " 'the adequacy of voir dire is a matter " ' "not easily subject to appellate review." ' " ' " (People v. Fuiava (2012) 53 Cal.4th 622, 653.) As such, "the failure to ask specific questions [during voir dire] is reversible only on a showing of abuse of discretion: questioning that is not reasonably sufficient to test the jury for bias or partiality." (People v. Taylor (1992) 5 Cal.App.4th 1299, 1314.)
Here, the court confirmed at the end of voir dire that all of the remaining prospective jurors felt "without reservation that [they could] be fair and impartial . . . ." Given that, and the ambiguous nature of the prospective juror's comments, defendant has not shown that the voir dire was insufficient to test for bias. To the extent that defendant suggests trial courts have a sua sponte duty to question the venire about one prospective juror's statements indicating bias, he cites no case law supporting that position. And our own research discloses no such duty. (See Nguyen, supra, 23 Cal.App.4th 32 [no mention of questioning after prospective juror's comment indicating bias]; People v. Henderson (1980) 107 Cal.App.3d 475, 493 [same]; People v. Fimbres (1980) 104 Cal.App.3d 780, 788 [same].) In Medina, the court conducted such an inquiry, but at the defendant's request. (Medina, supra, 51 Cal.3d at p. 888.) The Medina court stated that "further investigation and more probing voir dire examination may be called for" where prospective jurors have made inflammatory remarks. (Id. at p. 889.) In our view, the comments at issue here were not so inflammatory as to require further investigation.
Having considered and rejected defendant's claim on the merits, we need not address the People's argument that defendant forfeited the claim of error or defendant's ineffective assistance of counsel claim. (See People v. Martinez (2003) 31 Cal.4th 673, 689.)
B. Refusal to Instruct on Defense of Another
Defendant argues the trial court erroneously denied defense counsel's request to instruct the jury with CALCRIM No. 3470 regarding lawful defense of another. We disagree.
1. Legal Principles
CALCRIM No. 3470 provides that the defendant acted in lawful defense of another if (1) the defendant reasonably believed that another person was in imminent danger of suffering bodily injury, (2) the defendant reasonably believed that the immediate use of force was necessary to defend against that danger, and (3) the defendant used no more force than was reasonably necessary to defend against that danger. "A party is entitled to a requested instruction if it is supported by substantial evidence." (People v. Ross (2007) 155 Cal.App.4th 1033, 1049.) " 'Substantial evidence' in this specific context is defined as evidence which is 'sufficient to "deserve consideration by the jury, i.e., 'evidence from which a jury composed of reasonable men could have concluded' " that the particular facts underlying the instruction did exist.' " (People v. Burnham (1986) 176 Cal.App.3d 1134, 1139.) " ' "Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the [defendant]." ' " (People v. Tufunga (1999) 21 Cal.4th 935, 944.)
On appeal, we determine independently whether substantial evidence to support a defense existed. (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1055.)
2. Analysis
There was no evidence from which reasonable jurors could have concluded that defendant (1) reasonably believed that Ivey was in imminent danger of suffering bodily injury, (2) reasonably believed that the immediate use of force was necessary to defend against that danger, and (3) used no more force than was reasonably necessary to defend against that danger.
Witnesses testified that, immediately prior to the stabbing, Villanueva was pinning Ivey down and talking to him in an attempt to resolve the dispute. Punches were not being thrown. Ivey did not ask for help. Neither Villanueva nor Ivey was armed. In view of the foregoing, no reasonable juror could have concluded that defendant reasonably believed Ivey was in imminent danger of suffering bodily injury such that the immediate use of force was necessary to defend him. Nor could jurors have concluded that it was reasonably necessary for defendant to use a knife to defend against any danger Villanueva may have posed. Therefore, we conclude the trial court did not err in refusing to instruct the jury regarding defense of another.
III. DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
RUSHING, P.J. /s/_________
PREMO, J.