Opinion
E069494
11-20-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOHN FRANCO, Defendant and Appellant.
Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1303332) OPINION APPEAL from the Superior Court of Riverside County. Anthony R. Villalobos, Judge. Affirmed with directions. Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
While high on methamphetamine, defendant and appellant, Michael John Franco, sliced his girlfriend's throat three times, causing her to bleed profusely. Over four hours later, while still high on methamphetamine, defendant drove her to a nearby golf course. After she exited the vehicle, defendant ran her over, killing her. A jury convicted defendant of one count of first degree murder (Pen. Code, § 187, subd. (a); count 1), one count of unlawfully possessing a firearm as a felon (§ 29800, subd. (a)(1); count 2), and one count of unlawfully transporting a firearm as a felon (§ 25850, subd. (c)(1); count 3). The jury also found true the special circumstance allegations that defendant committed the murder during the commission of a kidnapping (§ 190.2, subd. (a)(17)(b)), and that the murder involved the infliction of torture (§ 190.2, subd. (a)(18)). The trial court sentenced defendant to life without the possibility of parole plus a determinate term of 12 years.
Unless otherwise specified, all further statutory references are to the Penal Code.
On appeal, defendant contends (1) substantial evidence does not support either special circumstance; (2) the trial court prejudicially erred by refusing to give his requested mistake of fact instruction to the jury; (3) the trial court prejudicially erred by declining to release jurors' contact information; and (4) the abstract of judgment must be corrected. We agree with defendant's fourth contention, but reject his other arguments and affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
The victim, Jill G., began dating defendant about a year before her death. Jill allowed defendant to move in with her and she financially supported him. Jill knew of defendant's substance abuse problems and told him that she wanted him to stop using drugs.
On the night of December 22, 2013, Jill and defendant got into an argument. Jill had become upset because defendant's friend, I.T., texted defendant to get the phone number of defendant's drug dealer. Jill suggested to defendant that their relationship "wasn't working" and indicated that she was going to end it. When defendant mentioned he was getting some of his belongings from Jill's car, she responded by saying she would "call the cops and report [the] car stolen" if defendant took the car.
Around 12:30 a.m., defendant accidentally called I.T.'s phone, and I.T.'s voicemail recorded part of the argument between Jill and defendant. In the voicemail, defendant mentioned taking Jill to the hospital or calling 911. Jill responded, "Wait until I can think of, another idea. What if I drive the car some place and call myself and say I was attacked? Would that work?"
About 45 minutes later, around 1:15 a.m., defendant, driving Jill's car, exited the gated community where she and defendant lived, and then reentered a minute later. Several hours later, just before 5:00 a.m., defendant left in Jill's car again and returned four minutes later. Defendant then immediately left again in Jill's car at 5:04 a.m.
Jill's residence was a short drive away from a golf course. Maintenance employees began arriving for work around 4:45 a.m. on the morning of Jill's death. They heard a woman screaming in the distance. One of the employees described the woman's scream as "a scream of desperation."
The employees found Jill's body around 6:30 a.m. and called the police. She was found lying in bushes. A pair of women's sandals was found near her body. There were "drag marks" and blood in the dirt, as well as tire tracks that were consistent with a vehicle accelerating. The tracks led into the bushes, where officers found broken twigs and paint that appeared to have come from a vehicle. The officers also found a cloth saturated in blood.
Jill had three incision wounds on her neck which measured 1.2, 11, and 13 centimeters long, respectively. Incisions on her right hand were consistent with "defensive type wounds." Jill had numerous scrapes and bruises all over her body, and had several broken bones, including a broken clavicle, a broken femur, and broken ribs. Jill also had brain and spinal cord injuries. The cause of death was blunt force injuries, which were consistent with having been run over by a vehicle.
Defendant and Jill were supposed to host a Christmas party in the evening on the day of her murder. When guests arrived, they could not enter Jill's complex because the guard had not been given their names and had not been told that Jill was hosting a party. The guests could not get in touch with Jill, so they called her brother, Michael, who then called defendant. Defendant told Michael that Jill left after she and defendant had an argument the night before, and defendant had not seen her since. Michael called the police and defendant was subsequently arrested.
While in jail, defendant shared a cell with an acquaintance, C.E. C.E. asked defendant if he had killed Jill. Defendant nodded, then said he had killed Jill and that it "felt good to get it off his chest." Defendant explained that he and Jill had gotten into a fight "over drugs" and that "'the bitch wouldn't shut up.'" Defendant told C.E. that he cut Jill's throat, put a towel on it to stop the bleeding, and drove her out into the desert. She got out of the car and tried to run, but defendant ran her over. Defendant later made "strange comments . . . like talking about how hard it is to kill a person." C.E. specifically recalled that defendant said "'[a] human being just doesn't die very easily . . . it is hard to take somebody's life.'"
III.
DISCUSSION
A. Substantial Evidence Supports the Special Circumstance Allegations
Defendant asserts there was insufficient evidence to support the special circumstances allegations. We disagree.
1. Applicable Law and Standard of Review
"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility." (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
"'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.'" (People v. Thomas (1992) 2 Cal.4th 489, 514.)
2. Torture Special Circumstance Allegation
To find the torture special circumstance allegation true, the jury had to find that defendant (1) "intended to kill Jill"; (2) "intended to inflict extreme physical pain and suffering on Jill . . . while that person was still alive"; (3) "intended to inflict such pain and suffering on Jill . . . for the calculated purpose of revenge, extortion, persuasion, or any other sadistic reason"; and (4) "did an act involving the infliction of extreme physical pain and suffering on Jill."
Substantial evidence supports the jury's finding the torture allegation true. On this record, the jury could reasonably find that defendant intended to torture Jill by (1) cutting her neck several times; (2) failing to get her medical care while she bled for hours without doing anything except giving her a towel to control the bleeding; (3) trying to drive her "out into the desert," where she presumably would continue to suffer pain; and then (4) running her over with her car when she tried to run away. Moreover, defendant later made comments to C.E. that "a human being just doesn't die very easily" and "the bitch wouldn't shut up." From this evidence, the jury could find that defendant intended to kill Jill while intentionally causing her extreme pain and suffering over the course of several hours.
The jury could also reasonably find that defendant did so for purposes of revenge, extortion, persuasion, or another sadist purpose. Defendant and Jill got into an argument because of his drug use, and he testified that Jill suggested she was breaking up with him during the argument. At one point during their argument, defendant began gathering his belongings and mentioned he was going to retrieve something from Jill's car. Jill responded by telling him she would call the police and report her car stolen if defendant took it. The jury could reasonably conclude from this evidence that defendant intended to cause Jill to suffer as revenge for her arguing with him about his drug use, breaking up with him (or at least threatening to do so), and threatening to call the police if he took her car.
Viewing the evidence in the light most favorable to the judgment, we conclude substantial evidence supports the jury's true finding on the torture special circumstance allegation.
3. Kidnapping Special Circumstance Allegation
To find the kidnapping special circumstance true, the jury had to find that (1) defendant "took, held, or detained" Jill "by using force or by instilling reasonable fear"; (2) "[u]sing that force or fear," defendant moved Jill or made her "move a substantial distance"; (3) Jill did not consent to the movement; and (4) defendant did not actually and reasonably believe that the other person consented to the movement.
Substantial evidence supports the jury's finding the kidnapping special circumstance true. On this record, the jury could reasonably find that Jill did not consent to defendant's driving her in her car and that she entered the car due to her fear of defendant. By the time Jill entered the car, she had been bleeding profusely from the wounds defendant inflicted hours earlier. Jill later exited the car near the golf course around 5:00 a.m.—by herself, bleeding from multiple neck wounds, and holding a blood-stained cloth—and was heard screaming in "desperation." The jury could reasonably conclude from this evidence that Jill tried to run away from defendant, which suggests that Jill was not in the car voluntarily, she did not consent to where he was taking her, and defendant reasonably knew she did not consent. Accordingly, there was sufficient evidence for the jury to find the kidnapping special circumstance true.
B. Mistake of Fact Jury Instruction
Defendant contends the trial court erred by declining his request for a mistake of fact jury instruction. We agree with respect to the torture special circumstance allegation, but conclude any resulting error was harmless.
1. Additional Background
Defendant testified that he has a "fuzzy" memory of what transpired in the hours before Jill's death because he had used more methamphetamine he had ever used before within a 24-hour period. According to defendant, he injected methamphetamine shortly before their argument began on December 22. He was "high as a kite" and trying to calm Jill down while they argued for "hours." He has no recollection of what happened to Jill's neck, although he recalled her asking him to clean up her blood "before [the] cats ate it." Defendant remembered grabbing some towels, giving one to Jill, and cleaning up the blood on the floor. He also recalled that he was packing up his belongings at one point because he thought Jill was breaking up with him.
At some point during the fight, defendant called his drug dealer to get two "eight balls" of methamphetamine. Defendant drove Jill's car past her building complex's gate to retrieve the methamphetamine. Although he was unsure of what he did next, defendant thought he returned to Jill's apartment, parked in the garage, and "immediately" injected the methamphetamine.
Defendant had "some memory of putting [Jill] in the car" after retrieving and injecting the methamphetamine. He remembered that Jill was "unresponsive" and that he did not believe she was alive. Defendant was unsure of when he first thought Jill was dead, but thought it might have been before he went to retrieve the drugs from his dealer. Defendant also testified that he might have thought Jill was dead when he came back from getting the drugs, but he was not certain. The next thing defendant remembers was being at his friends' house later that day.
Based on his testimony about his mistaken belief that Jill was dead, defendant requested a mistake of fact instruction. The instruction would have instructed the jury in relevant part that "[i]f you find that the defendant believed that [Jill] was dead and if you find that belief was reasonable, he did not have the specific intent or mental state required for . . . the special circumstances kidnapping and torture." Defendant argued the instruction was appropriate because of his belief Jill was dead by the time he went to retrieve drugs from his dealer, which was around 1:15 a.m. Defendant argued he could not be liable for either special circumstance if he thought Jill was dead around 1:15 a.m., reasoning that one cannot kidnap or torture a dead person. Further, defendant argued his belief that Jill was dead around 1:15 a.m. undercut the People's argument that he tortured Jill because he "'sat there'" while she "'suffered for five hours.'"
The trial court initially agreed to give the instruction, but later decided not to do so. The trial court reasoned that the instruction was improper under this court's decision in People v. Scott (1983) 146 Cal.App.3d 823 (Scott), which the trial court interpreted as holding that a mistake of fact instruction is not applicable when the "defendant's mental state ha[s] been caused by voluntary intoxication, which . . . is what we have here."
During its deliberations, the jury asked the trial court, "[i]f the victim is believed unresponsive or dead, and the body is moved is that deamed [sic] kidnapping?" Defendant's counsel reiterated his request for a mistake of fact instruction, but the trial court answered the jury's question by directing the jury to certain instructions the court had already given.
2. Applicable Law and Standard of Review
"[A] trial court needs to give only those requested instructions that are supported by substantial evidence. [Citation.] In deciding whether defendant was entitled to the instructions urged, we take the proffered evidence as true, 'regardless of whether it was of a character to inspire belief. [Citations.]' [Citation.] '"Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused." [Citations.]' [Citation.] Even so, the test is not whether any evidence is presented, no matter how weak. Instead, the jury must be instructed when there is evidence that 'deserve[s] consideration by the jury, i.e., "evidence from which a jury composed of reasonable [people] could have concluded"' that the specific facts supporting the instruction existed." (People v. Petznick (2003) 114 Cal.App.4th 663, 677.) "'The duty to instruct, sua sponte, on general principles closely and openly connected with the facts before the court also encompasses an obligation to instruct on defenses,'" (People v. Lopez (1992) 11 Cal.App.4th 1115, 1120), but only if they are "supported by substantial evidence [and] . . . are not inconsistent with the defendant's theory of the case." (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) We review the trial court's refusal to give a requested instruction de novo. (People v. Larsen (2012) 205 Cal.App.4th 810, 824.)
3. Analysis
The parties agree, as do we, that both special circumstances required a showing that the victim was alive at the time of the charged conduct. (People v. Brooks (2017) 3 Cal.5th 1, 74 (Brooks) [kidnapping]; People v. Davenport (1985) 41 Cal.3d 247, 271 [torture].) Defendant argues the trial court erred by declining to give the jury his requested mistake of fact instruction because he believed Jill was dead around 1:15 a.m. The People contend the trial court was not required to give the instruction because defendant's belief that Jill was dead was not reasonable.
A mistake of fact need only be reasonable for general intent crimes. (People v. Lawson (2013) 215 Cal.App.4th 108, 115; People v. Givan (2015) 233 Cal.App.4th 335, 350 (Givan) ["[F]or a general intent crime any mistake of fact must be both reasonable and actual before it is presented to the jury."].) "In contrast, an unreasonable mistake of fact may be asserted in a specific intent crime, or a crime involving knowledge, so long as the defendant had an actual mistaken belief." (Givan, supra, at p. 350.) Accordingly, "if the mental state of the crime is a specific intent or knowledge, then the mistaken belief must only be actual." (People v. Lawson, supra, at p. 115, italics added.)
Torture is a specific intent crime. (People v. Leach (1985) 41 Cal.3d 92, 110.) Thus, as to the torture special circumstance allegation, whether defendant reasonably believed that Jill was dead was immaterial. (See Givan, supra, 233 Cal.App.4th at p. 343 [explaining a mistake of fact defense for "specific intent crimes . . . require[s] only an actual mistaken belief," italics added].) The trial court therefore had a duty to give a mistake of fact instruction that pertained to the torture special circumstance allegation if there was substantial evidence that defendant actually, but mistakenly, believed that Jill was dead. (See People v. Russell (2006) 144 Cal.App.4th 1415, 1427 [mistaken belief that property is abandoned negates specific intent required for receipt of stolen property], disapproved on another ground by People v. Covarrubias (2016) 1 Cal.5th 838; see also People v. Wooten (1996) 44 Cal.App.4th 1834 [mistaken belief that defendant has legal right to property negates specific intent required for theft].)
We conclude that there was. Defendant repeatedly testified that he thought Jill was dead. "The testimony of one witness . . . may constitute substantial evidence [citation], and doubts as to the sufficiency of the evidence must be resolved in favor of the accused. [Citation.]" (People v. Speaks (1981) 120 Cal.App.3d 36, 40.) Several cases demonstrate that defendant's testimony alone was substantial evidence that required the trial court to give the jury his requested mistake of fact instruction.
In People v. Speaks, supra, 120 Cal.App.3d at page 37, defendant was charged with receiving stolen property after his co-workers found money that had been stolen from their employer in a plastic bag in his car trunk. Defendant testified he had not used the plastic bag in months, did not know the money had been stolen, and denied knowing that it was in the bag in the trunk of his car. (Id. at p. 38.) Because receiving stolen property is a specific intent crime in that the defendant "must know he received or was in possession of the [stolen] goods," the defendant asked the trial court to give the jury an instruction that explained he was guilty of the offense only if "he had knowledge of the presence of the stolen money in his trunk." (Id. at p. 39.) The Speaks court held that the defendant's testimony alone was substantial evidence that justified giving the jury his requested instruction and that the trial court prejudicially erred by refusing to do so. (Id. at p. 40.)
Likewise, in People v. Navarro (1979) 99 Cal.App.3d Supp. 1, the defendant was charged with grand theft, a specific intent crime, but he argued he "lacked the specific intent required for the crime of theft." (Id. at p. 11.) The defendant therefore requested two jury instructions that would have explained he was not guilty of theft if he had a "good faith belief" that the property was abandoned or if he had permission to take it. The trial court denied the defendant's request and instructed the jury that the defendant's belief had to be reasonable. (Id. at p. 3.) The Navarro court held the trial court erred in doing so because the defendant could not form the specific intent required for theft if he actually believed he had the right to take the property, even if his belief was unreasonable. (Id. at pp. 10-11.)
Russell, supra, 144 Cal.App.4th at page 1427, involved a similar situation. There, the defendant was charged with the specific intent crime of receiving a stolen motorcycle. (Id. at p. 1419.) He testified that he honestly believed the motorcycle was abandoned and therefore argued he did not have the requisite specific intent. (Id. at pp. 1419, 1422.) The Russell court held the trial court erred by failing to instruct the jury that "a good faith belief, even an unreasonable good faith belief, would negate" the specific intent required for the offense, which "would have drawn the jury's attention to facts that could raise a reasonable doubt about defendant's guilt." (Id. at p. 1433.)
Our Supreme Court disapproved Russell only to the extent it held the trial court erred by failing to give mistake of fact and "claim of right" instructions sua sponte. (People v. Covarrubias, supra, 1 Cal.5th 838, 874 fn. 14.)
Here, defendant testified that he believed Jill was dead around 1:15 a.m. on the night of her murder. Based on this testimony, he requested a mistake of fact jury instruction, arguing that the torture special circumstance allegation could not be found true if he actually believed Jill was dead shortly after he cut her neck. As in Speaks, Navarro, and Russell, defendant's testimony was substantial evidence to warrant giving the instruction. If his testimony was "believed by the jury, [it] was sufficient to raise a reasonable doubt" as to the People's theory that defendant watched Jill suffer for hours and as to whether defendant tortured Jill since one cannot torture a corpse. (People v. Salas (2006) 37 Cal.4th 967, 982.) Because defendant only had to actually but mistakenly believe that Jill was dead in order to raise a mistake of fact defense to the torture special circumstance allegation, and his testimony was substantial evidence supporting the defense, the trial court erred by refusing to give his requested mistake of fact jury instruction.
Our analysis differs with respect to the kidnapping special circumstance allegation because kidnapping is a general intent crime. (People v. Moya (1992) 4 Cal.App.4th 912, 916; accord, People v. Bell (2009) 179 Cal.App.4th 428, 435.) The People are therefore correct that defendant's belief that Jill was dead had to be reasonable to negate the general intent required for kidnapping. (See Brooks, supra, 3 Cal.5th at p. 74 ["[A] defendant's honest and reasonable, albeit mistaken, belief in the victim's consent is a complete defense to a charge of kidnapping," italics added]; People v. Hillhouse (2002) 27 Cal.4th 469, 498 [Kidnapping requires a live victim.].) The People argued, and the trial court agreed, that defendant's belief Jill was dead was not reasonable because he was high on methamphetamine at all relevant times.
To reach this conclusion, the trial court relied on our decision in Scott, supra, 146 Cal.App.3d 823. "Scott involved outlandish circumstances where [the] 'defendant unknowingly and therefore involuntarily ingested some kind of hallucinogen which caused him to act in a bizarre and irrational manner.'" (People v. Raszler (1985) 169 Cal.App.3d 1160, 1165 fn. 2.) The defendant thought he was a "secret agent" and that it was necessary "to 'take' vehicles belonging to others without their consent" to save his life and the life of the President. (Scott, supra, at p. 831.) He therefore argued he was not guilty of attempted unlawful driving or taking of a vehicle because he did not possess the requisite specific intent for the offense. (Ibid.)
This court agreed, reasoning that "[a]lthough [the] defendant's mistake of fact was undoubtedly irrational, it was also undoubtedly reasonable under the circumstances" because he was involuntarily intoxicated. (Scott, supra, 146 Cal.App.3d at p. 832.) In a footnote, however, we explained that, "[h]ad [the] defendant's delusions resulted from voluntary intoxication, his mistake of fact could not be considered reasonable. (Cf. Pen. Code, § 22 [which provides in part: 'No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition . . . .'])." (Scott, supra, at p. 832 fn. 4.)
Although defendant testified that he thought Jill was dead, he did not testify that he also thought Jill was unresponsive because he was high. Instead, he thought she was dead because she was unresponsive. Unlike the defendant in Scott, defendant does not contend that the mistake of fact at issue here—his mistaken belief that Jill was dead—was caused by his intoxication. We therefore agree with defendant that Scott is distinguishable and does not control here.
Rather, Brooks guides our analysis. In Brooks, the defendant was charged with first degree murder with a kidnapping special circumstance allegation. (Brooks, supra, 3 Cal.5th at p. 16.) On appeal, he argued he mistakenly believed the victim was dead before he moved the victim and that the trial court erred by not giving a mistake of fact instruction sua sponte. (Ibid.)
Our Supreme Court disagreed that the trial court erred. (Brooks, supra, 3 Cal.5th at p. 74.) The Brooks court explained that defendant's claim of instructional error "implicate[d] the court's duty to instruct on its own motion either when the defense is relying on that theory at trial, or when there is substantial evidence to support the defense and it is not inconsistent with the defense theory of the case." (Ibid.) The Brooks court held, however, that the trial court did not violate this duty because (1) defendant did not rely on a mistake of fact defense at trial; (2) there was no substantial evidence that he reasonably, but mistakenly believed the victim was dead before moving his body; and (3) a mistake of fact defense was "arguably inconsistent" with his defense. (Ibid.) The Brooks court therefore concluded "that the court had no sua sponte duty to instruct on a mistake of fact defense in connection with the kidnapping-murder special-circumstance allegation. Because the defense did not request such an instruction for that allegation, the court did not err in failing to give one." (Id. at p. 75.)
By contrast, defense counsel in the instant action requested a mistake of fact instruction, specifically argued to the trial court that it applied to both special circumstance allegations, and argued in closing argument that defendant was not guilty of either special circumstance because he believed that Jill was dead. Moreover, unlike in Brooks, where there was "no direct evidence" of the defendant's mistaken belief that the victim was dead because he did not testify at trial, defendant unambiguously testified that he thought Jill was dead.
Although the prosecutor argued in the trial court that defendant's mistake-of-fact defense was inconsistent with his overall defense, the People do not make this argument on appeal. In any event, unlike in Brooks, defendant's mistake of fact defense was not inconsistent with his theory of the case. The prosecutor argued it was inconsistent because defendant argued he was in a "meth blackout" at all relevant times. But defendant did not testify that he could not remember anything between the time he injected methamphetamine (around midnight) and the time he killed Jill (around 5:00 a.m.).
As explained above, defendant testified that his memory was "fuzzy" in that he could only remember certain details, such as bringing Jill towels because she was bleeding, Jill asking him to clean up her blood before her cats got to it, and defendant thinking she was dead because she was unresponsive. His mistake-of-fact defense therefore was consistent with his overall defense that he had a piecemeal recollection of what transpired in the hours leading up to Jill's murder.
Nonetheless, the People argue defendant was not entitled to a mistake of fact instruction under Brooks because his belief that Jill was dead was not reasonable given that he was high on methamphetamine at the time. But the cases the People cite involved situations where the defendant's mistake of fact was caused by intoxication, or the mistake of fact itself was unreasonable. (E.g., People v. Geddes (1991) 1 Cal.App.4th 448 [defendant's intoxication caused him to mistakenly believe his wife and baby were being held hostage]; Scott, supra, 146 Cal.App.3d at p. 832 [defendant's intoxication caused him to believe he was a secret agent and taking someone's car was necessary to save his life and the President's life]; Givan, supra, 233 Cal.App.4th at p. 350 [defendant unreasonably believed drinking an energy drink "masked" his intoxication and made him "okay to drive"].) As several cases have held, a defendant's mistake of fact caused by the defendant's intoxication generally is not reasonable. (See Givan, supra, at p. 350 ["The law generally does not find a mistake of fact reasonable when it is due to voluntary intoxication."].) Thus, an intoxicated person's mistake of fact is not, as the People suggest, always unreasonable.
Under certain circumstances, an intoxicated defendant's mistaken belief could be grounded in reality. Here, for instance, defendant testified that he believed Jill was dead because she was unresponsive, and there is no evidence in the record (and the People do not argue on appeal) that defendant's belief was the result of a drug-induced delusion.
In order to determine if defendant's mistake of fact was reasonable, we employ an objective standard, which asks whether a reasonable person would have believed Jill was dead under the circumstances. (See People v. Russell, supra, 144 Cal.App.4th at p. 1427; People v. Navarro, supra, 99 Cal.App.3d Supp. at p. 10.) Defendant did not explain why he thought Jill was dead beyond testifying that she was "unresponsive." But defendant did not confirm his belief that Jill was dead. There is no evidence that defendant checked her pulse or whether she was breathing, or did anything else to determine whether she was actually dead. Instead, he apparently did nothing—for hours—while Jill purportedly remained unconscious.
We agree with the People that any reasonable person would have at least tried to confirm whether Jill was dead before concluding that she was. We therefore conclude defendant's mistaken belief that Jill was dead was not reasonable under the circumstances. (Cf. King v. State (Tex. App. 1996) 919 S.W.2d 819, 821-822 [defendant's mistaken belief that wife was dead was not reasonable in part because whether she was dead "was easily verifiable"].) Accordingly, as to the kidnapping special circumstance allegation, the trial court did not err by declining to give defendant's requested mistake of fact instruction. (See Givan, supra, 233 Cal.App.4th at p. 345 [mistake of fact instruction not required for general intent crime where defendant's mistaken belief was not reasonable].)
4. Harmless Error
Although the trial court erred by declining to give a mistake of fact instruction as to the torture special circumstance because defendant actually believed Jill was dead, we conclude the error was harmless. We review the error under People v. Watson (1956) 46 Cal.2d 818, and ask whether it is reasonably probable that defendant would have obtained a more favorable result had the trial court given his requested mistake of fact instruction. (People v. Vasquez (2015) 239 Cal.App.4th 1512, 1520.) We conclude that it is not.
By finding the torture special circumstance true, the jury found that defendant (1) intended to kill Jill; (2) intended to cause her "cruel or extreme pain and suffering while she was still alive"; (3) intended to inflict such pain and suffering for purposes of revenge, extortion, persuasion, or any other sadistic reason; and (4) committed an act involving the infliction of extreme physical pain and suffering on Jill. (Italics added.)
The jury's finding all of these elements true shows that the jury did not believe that defendant honestly and reasonably believed Jill was dead before torturing her. (See People v. Campbell (2015) 233 Cal.App.4th 148, 167 ["[A] jury's determination on a factual issue under other instructions is relevant to determining whether an instructional error is harmless"].) The jury could not have made its finding on the torture special circumstance allegation if it credited defendant's testimony that he thought Jill was dead because the instructions explicitly required the jury to find that (1) defendant intended to kill Jill; (2) defendant intended to cause her to suffer extreme pain and suffering; and (3) defendant actually caused her to suffer extreme pain and suffering. By finding the torture special circumstance true, the jury necessarily found that Jill was alive, defendant intended to torture her, and defendant did torture her. Moreover, it is impossible to intend to cause a corpse pain and suffering, so the jury could not have possibly found that defendant tortured Jill if it believed that he thought she was dead. (Cf. People v. Kelly (1992) 1 Cal.4th 495, 524 [explaining it is legally impossible to rape a dead body because "[a] dead body cannot consent to or protest a rape"].) Thus, defendant's belief that Jill was dead necessarily factored in to the jury's determination of the torture special circumstance allegation. It is therefore not reasonably probable that the jury's decision would have been more favorable had defendant's requested mistake of fact instruction been given. (See People v. Hanna (2013) 218 Cal.App.4th 455, 463 [failure to give mistake of fact instruction as to victim's age was harmless because "the jury knew it had to determine defendant intended to attempt a lewd act upon a child"].)
C. Petition for Release of Juror Information
After trial, Juror No. 4 gave the prosecutor a copy of the diary he kept about the trial. The diary is about 17 single-spaced pages, and contains daily entries that Juror No. 4 entered each night after trial. The diary outlines Juror No. 4's thoughts about the trial, including the evidence, other jurors, witnesses, the judge, the prosecutor, Kristi Kirk, and defense counsel, Dante Gomez.
Defendant filed a petition under Code of Civil Procedure section 206 for the release of juror contact information, arguing that Juror No. 4's diary established numerous instances of juror misconduct by Juror No. 4 and other jurors. Defendant contends the trial court erroneously denied the petition. We disagree.
1. Applicable Law and Standard of Review
Under Code of Civil Procedure section 206, "[p]ursuant to [Code of Civil Procedure] [s]ection 237, a defendant or defendant's counsel may, following the recording of a jury's verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court's records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose. This information consists of jurors' names, addresses, and telephone numbers." (Code Civ. Proc., § 206, subd. (g).)
A petition for the release of juror identifying information must establish good cause. (People v. Wilson (1996) 43 Cal.App.4th 839, 852.) "Good cause, in the context of a petition for disclosure to support a motion for a new trial based on juror misconduct, requires 'a sufficient showing to support a reasonable belief that jury misconduct occurred . . . .' [Citations.] Good cause does not exist where the allegations of jury misconduct are speculative, conclusory, vague, or unsupported. [Citation.]" (People v. Cook (2015) 236 Cal.App.4th 341, 345-346.) The alleged misconduct must be "'of such a character as is likely to have influenced the verdict improperly.'" (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322.) "[T]he defendant simply has to prove that talking to the jurors is reasonably likely to produce admissible evidence of juror misconduct." (People v. Johnson (2013) 222 Cal.App.4th 486, 493.)
"Discovery of juror names, addresses and telephone numbers is a sensitive issue which involves significant, competing public-policy interests." (People v. Rhodes (1989) 212 Cal.App.3d 541, 548.) Accordingly, "[t]rial courts have broad discretion to manage these competing interests by allowing, limiting, or denying access to jurors' contact information. [Citations.]" (People v. Tuggles (2009) 179 Cal.App.4th 339, 380.) A trial court's denial of a motion for release of juror identifying information will not "'be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
2. Analysis
At the outset, we reject the People's suggestion that Juror No. 4's diary was not admissible because it reflected Juror No. 4's subjective reasoning processes. Under Evidence Code section 1150, subdivision (a), "[e]vidence of a juror's mental process—how the juror reached a particular verdict, the effect of evidence or argument on the juror's decisionmaking—is inadmissible." (In re Boyette (2013) 56 Cal.4th 866, 894.) However, a statement reflecting a juror's bias is admissible as it is both a description of the juror's mental state and a disclosure of bias. (See Grobeson v. City of Los Angeles (2010) 190 Cal.App.4th 778, 792 (Grobeson).)
In Grobeson, the defendants filed two juror declarations stating that a third juror had said, "'I made up my mind during trial.'" (Grobeson, supra, 190 Cal.App.4th at p. 790.) This statement established the third juror's bias (prejudging the case), which "was an improper influence on the verdict." (Id. at p. 792). The court explained that "there is at least one state of mind that we must take into account and that is where the juror has prejudged the case or was biased." (Id. at p. 188.) The Grobeson court therefore held Evidence Code section 1150 did not prevent the court from considering the third juror's statement even though it revealed the third juror's mental processes because it was "a statement of bias." (Ibid.)
Following Grobeson, we conclude Juror No. 4's diary was admissible because its entries were offered only to show alleged juror bias. (Grobeson, supra, 190 Cal.App.4th at p. 791 ["'[A] statement by a juror during deliberations may itself be an act of misconduct, in which case evidence of that statement is admissible. [Citation.]'"]; see People v. Lewis (2001) 26 Cal.4th 334, 389 ["Evidence Code section 1150, subdivision (a) "does not prohibit admitting a statement that reflects a juror's reasoning processes if the statement itself amounts to juror misconduct."].) We address below each instance of alleged juror bias defendant re-asserts on appeal.
In his petition, defendant argued Juror No. 6 made comments in a post-trial television interview that suggested the jury committed misconduct, and also pointed to eleven discrete instances of alleged juror misconduct portrayed in Juror No. 4's diary. On appeal, however, defendant focuses on only a handful of instances of alleged juror misconduct. To the extent defendant failed to address any alleged misconduct in his opening brief, he has waived the issue. (People v. Stanley (1995) 10 Cal.4th 764, 793 [issues not addressed in opening brief are waived].)
Juror No. 4 noted in his diary that a potential juror had a guide dog. According to Juror No. 4, defendant twice turned around and smiled at the dog, and both times it "immediately turned its head and body completely away from [defendant]. The dog did this with no other person."
We disagree with defendant that this entry suggests Juror No. 4 was biased against him. Nothing in this entry indicates that Juror No. 4 considered the dog's actions when deliberating or deciding the case. Instead, the dog's actions are just one of dozens of courtroom observations described in Juror No. 4's diary.
In another entry, Juror No. 4 wrote that three "female jurors giggle[d] like silly schoolgirls" when a male officer took the stand. Juror No. 4 also believed "one of the jurors ha[d] a crush on [the officer] and expressed that to several of the other female jurors." Defendant argues this shows the jurors were biased. We disagree. Juror No. 4's diary does not suggest any of these jurors was biased against defendant or biased in the prosecution's favor because of the officer's physical appearance, or that any purported bias influenced their deliberations or decision. (See People v. Jefflo, supra, 63 Cal.App.4th at p. 1322 [alleged misconduct justifying release of juror contact information must be "'of such a character as is likely to have influenced the verdict improperly'"].) Defendant did not offer anything beyond his own speculation that releasing the jurors' contact information would lead to evidence showing that the three female jurors were biased against him.
Defendant claims an entry from Juror No. 4's diary showed that Juror 4 "intentionally stopped listening" to the evidence. In that entry, Juror 4 explained that, at one point during the trial, the recording from I.T.'s voicemail, which the jury had already heard twice, was going to be played for a witness. Juror No. 4 wrote that, "[a]fter hearing this twice and my past emotional response I had no intention to hear it again. Jill pleaded [sic] for him to let her go is so painful. I plugged my ears with my fingers and put my head between my knees until it was over." Even if true, this entry does not show that Juror No. 4 committed misconduct. As the entry makes clear, Juror No. 4 had already heard the voicemail twice and therefore knew what it said. This entry does not imply that Juror No. 4 disregarded the voicemail. If anything, it shows that Juror No. 4 was well-aware of its content.
The trial court found that this statement "sounds like exaggeration" and noted that it had not observed any such behavior from Juror No. 4 during the trial. --------
Finally, defendant argued in his petition that Juror No. 4 committed misconduct because Juror No. 4 wanted deliberations to last at most five hours "because that's how long [Jill] suffered." Defendant drew this conclusion from an entry in Juror No. 4's diary about the first full day of deliberation, which was held on a Monday. The jury began deliberations the Friday before, but only deliberated for 90 minutes. The entry read: "It was nice to hear that once we were all back in the deliberation room this morning everyone voiced they had thought a lot about the trial the past three days. My decision had not changed however I told myself repeatedly that Jill Grant suffered five hours with her throat cut before she was killed and that it should not take us more than five hours to agree on a decision. Between the 90 minutes last week and today minus our lunch break it took five hours!" (Italics added.) Defendant contends this entry shows that Juror No. 4 reached a decision not based on the evidence, but impermissibly based on "sympathy" for Jill. (Emphasis added.)
We disagree. The entry does not indicate that Juror No. 4 disregarded the trial court's instruction to consider all of the evidence and not to decide the case based on sympathy. Nor does the entry indicate that Juror No. 4 ignored any other "evidence, argument, instructions, or the views of other jurors." (People v. Allen and Johnson (2011) 53 Cal.4th 60, 73.) Instead, the entry explains that the jury deliberated for 90 minutes on the Friday before their first full day of deliberation on the following Monday, and Juror No. 4's opinion about the case had not changed over the weekend. This does not amount to misconduct because Juror No. 4 was entitled to maintain the same opinion over the weekend and throughout deliberations.
Defendant's primary argument as to alleged juror misconduct relates to Juror No. 4's purported "fascination, indeed, infatuation with" the prosecutor, Ms. Kirk. Juror No. 4 referred to Ms. Kirk exclusively by her first name, Kristi. Juror No. 4 is an artist and routinely sketched Ms. Kirk's jewelry during and after trial, including on the weekends, and planned to exhibit certain sketches in an exhibit entitled, "Kristi's Jewels." In the diary, Juror No. 4 repeatedly praised Ms. Kirk's jewelry and outfits, appearance, courtroom presence, and performance. Juror No. 4 also made complementary remarks about Ms. Kirk in the diary, such as how she has "great taste in adornments," that Juror No. 4 "would not want to be her husband and get in an argument with her as chances of winning would be extremely slim," and that she did a "great job," "gave an award worthy opening statement," and had "a nice voice to listen to."
After the trial, Juror No. 4 approached Ms. Kirk and told her "what a great job she did and how entertaining she was." Juror No. 4 also told her about "telling people [Juror No. 4] would not want to be her husband and get in an argument" because Ms. Kirk would "always win." Juror No. 4 thought Ms. Kirk "was much warmer than in the courtroom" and "would have been very disappointed if she came across otherwise." Juror No. 4 also explained to Ms. Kirk that her jewelry "inspired some of the work" for Juror No. 4's upcoming art exhibit.
A few days after the trial, Juror No. 4 sent Ms. Kirk a copy of the diary. In the cover letter, Juror No. 4 told Ms. Kirk that "[i]t was a pure joy seeing you in action, in person and up close." Juror No. 4 explained that Ms. Kirk would be receiving an announcement of Juror No. 4's upcoming art exhibit, which would feature several works that were "inspired by [Ms. Kirk] and [her] attire in the courtroom."
Juror No. 4's comments to and about Ms. Kirk do not reflect bias in favor of the prosecution or against defendant. Rather, they show that Juror No. 4 was impressed by Ms. Kirk's trial performance, presentation, courtroom presence, and appearance. Even if Juror No. 4 was "infatuated" with Ms. Kirk, Juror No. 4's diary does not suggest that Juror No. 4 failed to consider all of the evidence and counsel's arguments, or that Juror No. 4 was impermissibly biased in Ms. Kirk's favor. Nor does the diary suggest that Juror No. 4's opinions about Ms. Kirk impermissibly influenced Juror No. 4's decisionmaking. Moreover, while Juror No. 4 criticized Mr. Gomez's performance and appearance, Juror No. 4 also thought he "shed no new light for" Juror No. 4 but "made a good attempt," "gave a great show and spoke well," "tried his best," and "did not convince" Juror No. 4, but "did his job well." In our view, this shows that Juror No. 4 fairly evaluated both the prosecution and the defense. In short, the record does not show that Juror No. 4 was biased in Ms. Kirk's favor. Instead, it shows that Juror No. 4 listened to both sides and considered their arguments and evidence, but thought that Ms. Kirk presented a more compelling case, she was an overall better attorney than Mr. Gomez, and her trial performance was impressive. This does not amount to juror misconduct. (See People v. Hardy (1992) 2 Cal.4th 86, 174-175 [no juror misconduct where juror gave female prosecutor a present in open court because he found her attractive].)
Based on the foregoing, we conclude the trial court reasonably concluded that defendant's petition for release of juror information lacked good cause. There was no evidence that defendant's "talking to the jurors [was] reasonably likely to produce admissible evidence of juror misconduct." (People v. Johnson, supra, 222 Cal.App.4th at p. 493.) Instead, defendant's "allegations of jury misconduct are speculative, conclusory, vague, or unsupported. [Citation.]" (People v. Cook, supra, 236 Cal.App.4th at pp. 345-346.) Further, the jurors' purported misconduct is not "likely to have influenced the verdict improperly." (People v. Jefflo, supra, 63 Cal.App.4th at p. 1322.) Thus, on this record, the trial court did not abuse its discretion in finding that defendant had not made a showing of good cause for the release of juror identifying information. The trial court therefore did not err by denying defendant's petition.
D. Abstract of Judgment
As to count 1, the trial court sentenced defendant to an indeterminate term of life without the possibility of parole, plus five years for a prior serious felony offense, plus one year for a deadly weapon enhancement. As to count 2, the trial court sentenced defendant to a determinate term of six years, and imposed and stayed the sentence on count 3.
The parties agree that the trial court erroneously included defendant's sentence for two weapons enhancements and his prior serious felony offense in both the indeterminate and determinate pages of the abstract of judgment, which is inconsistent with the trial court's oral pronouncement of judgment. We agree. (People v. Mitchell (2001) 26 Cal.4th 181, 185 ["An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add or modify the judgment it purports to digest or summarize."].) We further agree with the parties that the abstract of judgment should be corrected to include the terms for the weapon enhancement and prior serious felony enhancement on only the indeterminate section of the abstract, not on the determinate section, because the enhancements apply only to the indeterminate term imposed on count 1. Accordingly, the terms imposed for the weapons enhancements and defendant's prior serious felony are stricken from the determinate portion of the abstract of judgment. We therefore modify the "total time" on the determinate portion to reflect that defendant's determinate term is six years, not 12 years.
IV.
DISPOSITION
The judgment is affirmed. The trial court is directed to issue an amended abstract of judgment, striking from the determinate portion of the abstract of judgment sentencing imposed for the weapons enhancements and defendant's prior serious felony enhancement. The trial court is also directed to amend the abstract of judgment to reflect that defendant's determinate sentence is six years in prison, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: SLOUGH
J. FIELDS
J.