Opinion
A157751
10-06-2021
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO CARLOS FRANCOGUARDADO, Defendant and Appellant.
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 17-NF-014333-A
STREETER, J.
A jury convicted defendant Roberto Carlos Francoguardado of assault with a deadly weapon. On appeal, he contends the trial court (1) abused its discretion in declining to remove a seated juror for cause; (2) improperly permitted cross-examination of his wife on his prior DUI convictions; and (3) erred by reading jury instruction CALCRIM No. 361. We affirm.
I. BACKGROUND
Francoguardado was charged by information with assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) The information further alleged that Francoguardado personally inflicted great bodily injury during the assault. (§ 12022.7, subd. (a).)
Undesignated statutory references, unless otherwise indicated, are to the Penal Code.
A. Trial Testimony
Hector Soto testified at trial that on November 22, 2017, he was walking home after having had four or five beers when he was approached by Francoguardado. Francoguardado was carrying a “long tool” in one hand and a boxcutter in the other, and said he had heard that Soto was “injuring someone” or “had killed someone.” Soto denied the accusation, and identified the house where he was living. Francoguardado responded that he knew the owner of that house and there was no longer a problem. He put the tool in his car and offered Soto a beer. Francoguardado then invited Soto to continue drinking upstairs in his apartment, which was next to Soto's house. While Francoguardado and Soto drank more inside the apartment, Francoguardado was intermittently aggressive. When Soto tried to leave, Francoguardado pulled the box cutter out from his jacket, slashed Soto's face, and yelled, “I'm going to kill you.” When someone else who was in the apartment pulled Francoguardado off Soto, Soto ran to a bathroom and locked himself inside. Soto heard a woman's voice threatening to call the police, and he told her to call the police because Francoguardado wanted to kill him. The police arrived, and Soto was taken to the hospital. Soto had lacerations on his face, neck, and hands.
Francoguardado's wife testified that she was asleep in the apartment bedroom with her three children when the altercation started, but called 911 when she saw her husband and Soto struggling. On direct examination, Francoguardado's counsel asked his wife if she had seen him when he was intoxicated. She responded, “Yes.” Counsel then asked, “And in those moments, was he ever violent?” Francoguardado's wife responded, “No.” On cross-examination, the prosecutor asked if Francoguardado ever had a problem with alcohol. His wife responded, “No.” The prosecutor then asked if Francoguardado had ever been in trouble with the law for drinking and driving. Francoguardado's counsel objected pursuant to Evidence Code section 352. The trial court overruled the objection. Francoguardado's wife testified that he had three prior DUI convictions; he was arrested for the third DUI six weeks prior to the incident with Soto and was on probation at the time of trial.
Francoguardado testified that he approached Soto, having had about 12 beers by that time, because he thought someone else on the street might have been attacked. Soto told Francoguardado that he should mind his own business and would “really pay for this, and that [he] did not know whom [he] had messed with.” When Francoguardado went inside his apartment to get more alcohol for others drinking on the street, Soto was standing near his front door. Francoguardado invited Soto inside for a drink because he was “afraid for [his] family” and wanted Soto “close to [him] all the time.” After Francoguardado and Soto rehashed their conversation on the street, Francoguardado told Soto to leave. When Soto refused to leave, Francoguardado began pushing him. They started to struggle, and Soto ran into the bathroom. With Soto still inside the bathroom, Francoguardado left the apartment. Police found a boxcutter in Francoguardado's car.
Francoguardado denied cutting Soto's face or threatening to kill him. He did not know how Soto was injured. He did not know why there was blood in his hallway and bathroom. Francoguardado had told police that he had shown Soto a knife, but testified that he had only made this statement because he was “very, very drunk.” Francoguardado also told police there was blood on him because he had donated blood. When shown a photograph of his shirt from the incident, Francoguardado testified that he did not remember having blood on his shirt because he “never looked at [his] shirt.”
B. Trial Court Inquiry Regarding Juror TRJ01XX
During trial, Juror TRJ01XX sent a note to the court that she believed she lived near the location of the incident, and did not “feel comfortable” about her proximity to Francoguardado. Juror TRJ01XX was questioned outside of the presence of the other jurors. Francoguardado's counsel asked, “Because of this fear, do you think you would have a bias against the defendant, or you would be unable to find him not guilty even if the evidence does not convince you because you would fear that you would encounter him near the supermarket?” Juror TRJ01XX responded, “I think so. Although, he may not be a really bad person, maybe under alcohol. But I just don't feel very comfortable at this point to make my decision at the end.” Francoguardado's counsel then asked, “Are you telling us, because you fear you're going to encounter the defendant at the market, that that fear is going to prevent you from looking at the evidence objectively and fairly?” Juror TRJ01XX responded, “Correct.” The trial court explained it would discuss with counsel, proceed with further evidence for the day, and then revisit the issue.
The questioning of Juror TRJ01XX resumed at the end of the day, and Francoguardado waived his presence. The court reviewed a map with Juror TRJ01XX, indicating it was a six-minute drive between her house and the location of the incident. The court then asked Juror TRJ01XX about the amount of time she spent in the downtown area near the incident, including the supermarkets and restaurants. Juror TRJ01XX responded, “Sometimes, not a lot of time.” The court then asked, “So does that change what your feeling is about whether you're afraid of, depending on how the case comes out, that you're afraid that the defendant might come after you with some kind of retribution for what you might decide in this case?” Juror TRJ01XX responded, “Think I'm a little less concerned because the distance is a little further than what I thought before.” When Francoguardado's counsel asked Juror TRJ01XX to clarify, she stated: “Yeah. After you told me that it's south of downtown and [sic] less uncomfortable. I think I messed up with the other too.”
Francoguardado's counsel then asked if Juror TRJ01XX was afraid of him because she thought he committed the crime. Juror TRJ01XX responded, “No. I just don't want to run into the people that often that I make a decision. I don't know. I don't know yet because I still don't know what my decision is. But maybe, I think he's-at the end, I think maybe he's wrong. It's possible, right. But it's so early of the case.” Francoguardado's counsel asked, “But your fear of what you express is not going to give you a bias against the defendant at this point?” Juror TRJ01XX responded, “Probably not.” The court then asked, “How confident are you really that you can decide the case straight up based on the evidence that you hear and within the instructions that I'll give you free from some idea that maybe you'll run into the defendant after the trial is over and that there might be a problem for you?” Juror TRJ01XX responded, “I think I'm okay.”
The court declined to remove Juror TRJ01XX for cause, finding it “pretty significant that she changed what she had to say at the end of the day.” It explained that Juror TRJ01XX had demonstrated the qualities of a “good juror” because she had received supplemental information about the actual distance and then made a decision based on those facts.
The court also noted that there may have been some “initial reluctance” by Juror TRJ01XX to sit on the jury. Based on her “demeanor and facial expressions” during the first part of the inquiry, the trial court concluded that it “did not see anything that looked to me like there was a situation here of real fear” and “didn't think that things that she voiced in the first session to us were really credible.” It continued: “I think initially she probably hasn't wanted to be here, and as she's been here a little more, she maybe understands what the value of having this kind of trial really is.”
C. Motion for Mistrial and Acquittal
Counsel for Francoguardado moved for mistrial and acquittal on various grounds, including that the cross-examination of Francoguardado's wife on the DUI's was improper impeachment. The trial court denied the motion, finding Francoguardado's counsel had “opened the subject” on direct examination.
D. Jury Instructions
The instructions to the jury included CALCRIM No. 361. The instruction was read as follows: “Now, the defendant testified here, and if [Francoguardado] failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating the evidence. Any such failure is not enough by itself to prove guilt. The People must still prove the defendant guilty beyond a reasonable doubt. If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure.”
E. Verdict and Sentence
The jury found Francoguardado guilty of assault with a deadly weapon, but found the great bodily injury allegation not true. Francoguardado was sentenced to three years in prison.
DISCUSSION
A. No Abuse of Discretion in Declining To Remove Juror TRJ01XX
Francoguardado argues that his conviction must be reversed because the trial court abused its discretion in declining to remove Juror TRJ01XX after she “revealed an inability to be fair and impartial.”
A criminal defendant has the constitutional right to be tried by a fair and impartial jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16.) Consistent with this constitutional right, a trial court may discharge a juror if he or she “dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor.” (§ 1089.) The trial court “ ‘must determine whether good cause exists to discharge the juror, and its reasons for discharge must appear in the record as a demonstrable reality.' ” (People v. Landry (2016) 2 Cal.5th 52, 89.) We review this determination for abuse of discretion. (Id.at p. 88.)
Here, the trial court provided two reasons for declining to remove Juror TRJ01XX: (1) she “changed what she had to say” to ultimately conclude she could be impartial; and (2) her initial statement of fear was not credible. Neither constitutes an abuse of discretion.
First, California courts have upheld similar determinations by a trial court to retain a juror who expresses some initial concern but ultimately concludes that he or she can be impartial. (E.g., People v. Beeler (1995) 9 Cal.4th 953, 972-975 (Beeler).) In Beeler, a juror informed the trial court shortly before the trial's guilt phase that she could not fulfill her duties because the nature of the case was “ ‘very upsetting to her.' ” (Id. at p. 972.) When questioned by the court, the juror stated that she was initially in a state of shock but then continued, “ ‘I think-I think I could be fair.' ” (Id. at p. 973.) The court asked the juror if she wanted to be excused from the case. (Id. at p. 974.) She responded, “ ‘I feel I can do it.' ” (Id. at p. 975.) Beeler explained that in response to the court's questioning, the juror “made clear her belief that she could be impartial and able to serve despite her prior misgivings.” (Ibid.) Beeler thus concluded that the trial court acted within its discretion not to remove her from the jury. (Ibid.)
Francoguardado acknowledges this authority, but argues it is factually distinguishable because Juror TRJ01XX “never unequivocally assured the court she could meet her duty.” We are not persuaded. Like the juror in Beeler, Juror TRJ01XX was less than emphatic when ultimately concluding that she could be impartial. (Beeler, supra, 9 Cal.4th at p. 975 .) Indeed, Juror TRJ01XX used similar language in expressing both her initial concern and her ultimate conclusion. When initially asked if she might be biased because she was afraid of running into Francoguardado, Juror TRJ01XX responded, “I think so.” After reviewing the mapping information, she explained that she was “a little less concerned because the distance is a little further [sic] than what I thought before.” When asked if she was now confident that she could be impartial, Juror TRJ01XX responded, “I think I'm okay.” As in Beeler, these statements made clear that Juror TRJ01XX could be impartial, despite her initial concern. (Id. at p. 975.)
Second, the trial court declined to remove Juror TRJ01XX upon finding that her initial statement of fear was not credible, but instead potentially connected to her “initial reluctance” to sit on the jury. The court evaluated her “demeanor and facial expressions” and concluded that it “did not see anything that looked... like there was a situation here of real fear.” To determine whether a juror has a disqualifying bias, trial courts often must weigh the credibility of the testimony it receives, “taking into account the nuances attendant upon live testimony” and drawing observations it has made of the jurors. (People v. Barnwell (2007) 41 Cal.4th 1038, 1053.) “Naturally, in such circumstances, we afford deference to the trial court's factual determinations, based, as they are, on firsthand observations unavailable to us on appeal.” (Ibid.; Beeler, supra, 9 Cal.4th at p. 989 [“Likewise, the trial court was in the best position to observe the juror's demeanor”].) Accordingly, we defer to the trial court's finding that Juror TRJ01XX's statement of fear-the basis of her concern about partiality-was not credible. On this record, we are satisfied that Juror TRJ01XX's disqualifying bias was not established to a “ ‘demonstrable reality.' ” (People v. Landry, supra, 2 Cal.5th at p. 89.)
In sum, we conclude the trial court did not abuse its discretion in declining to remove Juror TRJ01XX.
B. No Evidentiary Error on Cross-Examination Regarding DUI's
Francoguardado argues that the trial court erred in allowing the prosecutor to cross-examine his wife regarding his prior DUI convictions. Specifically, he claims that the evidence was inadmissible because (1) it had no tendency to impeach either Francoguardado or his wife; and (2) the probative value of the evidence was far outweighed by its prejudicial impact. We reject both claims.
First, Francoguardado forfeited the improper impeachment objection. The objection, as to impeachment of Francoguardado, was never made to the trial court. (People v. Lopez (1978) 81 Cal.App.3d 103, 108 [“[O]bjections to evidence must state specific grounds for exclusion, and the grounds cannot be changed on appeal”].) As to his wife, the objection was belatedly raised on the motion for mistrial and acquittal the day after the cross-examination. (People v. Suff (2014) 58 Cal.4th 1013, 1075-1076 [concluding objections were forfeited as untimely when made after, instead of during, witness testimony].) Even if forfeited, however, Francoguardado argues that the issue is properly presented on appeal as an ineffective assistance of counsel claim. The test for ineffective assistance of counsel requires a criminal defendant to establish both that his or her counsel's performance was deficient and that he or she suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.) “[I]f the record sheds no light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsel's performance.” (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) The record here sheds no such light, and defense counsel's decision not to object on impeachment grounds may have resulted from a choice within the range of reasonable competence, particularly given the prior testimony from Francoguardado's wife on direct examination (that Francoguardado was never violent when drunk) and cross-examination (that Francoguardado never had an alcohol problem). (Evid. Code, § 1101, subd. (c) [providing that evidence of past conduct is admissible to “attack the credibility of a witness”].) We reject Francoguardado's ineffective assistance of counsel claim.
Second, we conclude that the trial court did not abuse its discretion in overruling the Evidence Code section 352 objection. (People v. Jones (2017) 3 Cal.5th 583, 609 [“ ‘We will not reverse a court's ruling on such matters unless it is shown “ ‘the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice' ”' ”].) Evidence Code section 352 vests the trial court with discretion to exclude otherwise relevant evidence if “its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
To satisfy this standard, Francoguardado argues first that the evidence had no probative value because it had “no tendency to impeach either appellant or his wife.” We disagree. As described above, Francoguardado's wife testified on direct examination that he was never violent when he was drunk. On cross-examination, she then testified that he had never had a problem with alcohol. We agree with the trial court that the testimony solicited by Francoguardado's counsel on direct examination opened the door to the subject of his drinking and violent behavior. Her testimony on cross-examination denying that Francoguardado had any drinking problem then opened the door to the question of whether he had ever been in trouble with the law for drinking. The evidence regarding Francoguardado's prior DUI convictions bore directly on the credibility of his wife's testimony.
Francoguardado argues next that any probative value was outweighed by its prejudicial impact because it “established” that Francoguardado was “disposed toward criminal behavior.” Again, we disagree. “The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.” (People v. Karis (1988) 46 Cal.3d 612, 638.) Instead, such prejudice arises from evidence that “ ‘uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.' ” (Ibid.) Here, the brief testimony on Francoguardado's DUI's was less inflammatory than the testimony concerning the charged offense (assault with a deadly weapon), making it “ ‘unlikely... that the jury's passions were inflamed....' ” (People v. Ortiz (2003) 109 Cal.App.4th 104, 118.) “Moreover, defendant had been punished-via convictions-for the prior [DUI's] introduced before the jury, a circumstance courts have acknowledged lessens its prejudicial impact.” (Ibid.) In other words, the impact of the testimony on the DUI's “ ‘was minimized by proof of the [prior] conviction. It validated the evidence and minimized the chance a jury would punish [the defendant] for the prior offense, for which he had already been punished.' ” (Ibid.) Accordingly, we conclude that the testimony, relevant to the credibility of the only known witness to the incident, was not substantially outweighed by undue prejudice.
Finally, even if the court abused its discretion in admitting evidence of Francoguardado's prior DUI convictions, any resultant error was harmless. (People v. Duarte (2000) 24 Cal.4th 603, 618-619 [explaining that erroneous admission of evidence requires reversal of the judgment where “ ‘reasonably probable that a result more favorable to defendant would have been reached' ”].) We do not find it reasonably probable that Francoguardado would have reached a more favorable result had the prosecution not cross-examined his wife about his prior DUI convictions. (Ibid.) The jury heard evidence that Francoguardado, who admitted to drinking 12 beers even before he first met Soto, became aggressive and slashed Soto's face with a boxcutter. It was also presented with evidence that blood was in Francoguardado's home and on his shirt, and a boxcutter was found in his car. Francoguardado offered no alternative explanation for Soto's injuries or the presence of the blood. On this record, any potential error in admitting Francoguardado's prior convictions was harmless.
C. Francoguardado Forfeited Instructional Error Claim
Francoguardado argues that the trial court erred in reading the CALCRIM No. 361 instruction because it was not supported by the evidence. Despite having raised no such objection in the trial court, Francoguardado contends that the issue is not forfeited because it affected his “substantial rights” at trial. Section 1259 provides that an appellate court may “review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.”
To determine whether Francoguardado's substantial rights were affected, we must consider prejudice: whether it is “reasonably probable” that he would have obtained a more favorable result had the CALCRIM No. 361 instruction not been read. (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Francoguardado argues that because there were no “significant omissions” in his testimony and thus no basis for the instruction, he was prejudiced because the instruction “improperly impugned” his credibility. We disagree. As a preliminary matter, there was ample evidence to support the reading of the instruction: Francoguardado testified that he had no idea how Soto was injured, or why there was blood in his hallway and bathroom.
Moreover, CALCRIM No. 361 does not direct the jury to draw the adverse inference on credibility that Francoguardado suggests. (People v. Vega (2015) 236 Cal.App.4th 484, 502.) The language is neutral: it instructs the jury that “if” the defendant fails to explain or deny evidence, it “may” consider that failure. Moreover, the instruction explicitly preserves the presumption of innocence (the failure “ ‘is not enough by itself to prove guilt' ”) and the prosecution's burden of proof (the People “ ‘must still prove each element of the crime beyond a reasonable doubt' ”). (Id. at pp. 495-496, 502.) Because we must presume the jury followed this instruction in the absence of contrary evidence (People v. Harris (2005) 37 Cal.4th 310, 350), we do not find it “reasonably probable” that Francoguardado would have obtained a more favorable result absent the reading of CALCRIM No. 361 (People v. Andersen, supra, 26 Cal.App.4th at p. 1249). We thus conclude that the instructional error claim is forfeited.
Even if forfeited, Francoguardado argues that it gives rise to a claim for ineffective assistance of counsel. We again reject the claim, as the record sheds no light on counsel's reasoning and the decision may have resulted from a reasonable choice, particularly given the omissions in Francoguardado's testimony regarding the cause of Soto's injuries and the physical evidence in the case.
DISPOSITION
The judgment is affirmed.
WE CONCUR: POLLAK, P. J., BROWN, J.