Opinion
A098921.
10-9-2003
THE PEOPLE, Plaintiff and Respondent, v. LUIS GONZALEZ, Defendant and Appellant.
Defendant Luis Gonzalez was convicted of manslaughter for killing in imperfect self-defense, i.e., under an honest but unreasonable belief that his life was in danger. Defendant contends he was prejudiced by a jurors misconduct in speaking to an attorney about the penalty for manslaughter. He also contends the prosecutor based peremptory challenges to prospective jurors on group bias, in violation of People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). Finally, defendant contends the trial court erred by giving CALJIC No. 2.04, "Efforts By Defendant To Fabricate Evidence." We reject defendants contentions and affirm.
I. FACTS
Defendant owned a body shop at 1409 104th Avenue near East 14th Street, in the Oakland neighborhood known as International Boulevard. On September 1, 1998, at approximately 8:20 p.m., defendant shot and killed Jose Tenorio, a former neighbor, in front of 1420 104th Avenue. Defendant was charged with murder with personal use of a handgun and discharge of a handgun causing great bodily injury. (Pen. Code, §§ 187, 12022.5, 12022.53, subd. (d).) Defendant claimed he acted in self-defense.
Under applicable standards of appellate review, we must view the facts in the light most favorable to the judgment of conviction, and presume in support of the judgment the existence of every fact which the court or jury could reasonably find from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Neufer (1994) 30 Cal.App.4th 244, 247.)
A. The Peoples Case
At the time of the killing, Ricardo Munoz was parked in his truck with his then-girlfriend, Maria Medina, in front of her house at 1429 104th Ave. He heard two gunshots, one right after the other, and looked to see where they came from. He saw a man on the ground and another man pointing a pistol at the man on the ground. The man with the pistol took one or two steps toward the man on the ground and shot him a third time, from a distance of six feet, holding the gun at about a 60-degree angle to the ground. The area was illuminated by a streetlight, and the gunman was close enough to Munozs truck that Munoz was afraid the gunman would hear him calling 911 on his cell phone. Munoz did not hear anyone arguing, or see anyone fighting, before the shooting.
Maria Medina also heard the shots. She saw a man, whom she identified in court as defendant, shooting a man as he was falling to the ground. She heard several shots "like fast," and then a final shot a moment, or a few seconds, later. She saw defendant fire the last shot; the victim was already on the ground as defendant fired. Defendant fired down toward Tenorio, holding the gun at an angle of 60 degrees. Defendant then walked back inside his shop. The area was lit by at least one streetlight.
Maria testified about a history of conflict between defendant and Tenorio. The two men had a dispute over Tenorios keeping roosters, or cocks, on defendants vacant lot next to his body shop. Tenorio kept the cocks in cages on the lot and held cockfights on weekends. On May 15, 1998, three and a half months before the killing, Tenorio chased defendant around a car with a long-handled hoe. Tenorio struck the car with the hoe while he was trying to strike defendant. During the incident the two were arguing.
Defendant rented the lot from its owner, Arturo Lopez. It is clear from the record that Tenorio used the lot without defendants permission or approval.
Defendants neighbor, Agustin Galvan, witnessed the shooting. Galvan had been cleaning a vacant apartment and was taking out the trash. He saw defendant walk out of his body shop and across the street, "[a] little bit in a hurry." Defendant walked up to Galvan and greeted him and another neighbor, Mario Jones, as they stood near Galvans pickup truck. Tenorio was also in the group. When defendant saw Tenorio, defendant looked serious, worried, and pale. Defendant told Tenorio, "The threats are going to stop." Tenorio replied, "What do you think."
Tenorio then moved away from the truck, holding his hands up at about waist level with the palms facing forward. He was five or six feet from defendant, and facing him. He did not move toward defendant.
Without saying anything more, defendant pulled a semiautomatic pistol from his belt, held it with two hands, and shot Tenorio two or three times. Tenorio fell back. "Some seconds" later, and after having walked toward Tenorio, "[h]e bent down and shot him again," in the head, as he lay on the ground. Then defendant stood up, put away the pistol, and walked away. But before he left he told Galvan and Jones, "You are going to be witnesses." Defendant walked back into his body shop.
Galvan did not see Tenorio with a weapon or with anything in his hands. He did not see Tenorio reach into his pants pocket or waistband, or do anything that looked like he was reaching for a weapon. Tenorio did not threaten defendant before the shots were fired.
Galvan also testified that there were prior conflicts between defendant and Tenorio. He confirmed Marias account of the cockfighting on the vacant lot, and also confirmed the incident involving the hoe. He also said the two had a "physical fight" in April 1998. And apparently defendant had something to do with Tenorio being fired from his job.
A police officer responding to the scene testified that there was no weapon on or near Tenorios body. The officer found a cocked and loaded 9mm Beretta semiautomatic pistol in defendants garage. Defendant asked the officer how many times he had pulled the trigger.
The pathologist who conducted the autopsy on Tenorio testified that he died of multiple gunshot wounds. He suffered a flesh wound in the right shoulder and two wounds in his abdomen. Each of the abdomen wounds was, by itself, life-threatening. He suffered a fourth wound in the right side of the face. The bullet traveled through the face into the brain and lodged there. He was alive when he received the head wound, which was in itself fatal or near fatal.
The pathologist could not determine the order in which the wounds were inflicted. The head wound could have been inflicted first, not last, but only if all the shots were fired "within a manner of seconds." This is because the head wound would have caused "a tremendous interruption . . . of all of the major functions of the brain." The pathologist could not determine whether Tenorio was shot in the head while he was standing or as he lay on the ground. Due to the absence of gunpowder stippling, the shots were most likely fired from a distance of more than 18 to 24 inches.
The People presented evidence that defendant attempted to fabricate evidence by trying to get Maria Medina to sign a letter repudiating much of her anticipated trial testimony. The letter, in Spanish, is in the record. It was read into the record in English by an interpreter, outside the presence of the jury.
The parties are familiar with the text of the letter and we need not repeat it here verbatim. In essence, the letter purports to say that Medina was leaning over towards the floor of Munoz truck and was "distracted" by him, that it was "very dark" and the area was insufficiently lit by streetlights, and that Medina did not really see or hear what happened and shouldnt be a witness. The letter also purports to say that Medina saw only silhouettes of people and could identify no one, and heard only a volley of shots in rapid succession.
Gustavo Medina, Marias brother, testified outside the presence of the jury that defendant gave him the letter and asked him to have Maria copy it in her own handwriting, and then give defendant the copy. Defendant made this request of Gustavo two or three times. Gustavo gave her the letter "so she could read it." Maria did so but declined to make a copy, saying "How can I do this?"
Defendant objected to admitting the letter on the grounds that it did not contradict Marias testimony and that it was more prejudicial than probative. (Evid. Code, § 352.) The court overruled the objection and admitted the letter as evidence of defendants attempt to fabricate evidence.
Gustavo testified in the jurys presence that defendant, while released on bail, gave him the letter and asked him to have Maria copy it. Defendant asked this of Gustavo on several occasions. Gustavo gave Maria the letter. She read part of it and gave it back to Gustavo, who returned it to defendant. Maria never gave Gustavo a copy of the letter in her handwriting. Gustavo never gave defendant anything from Maria.
At the conclusion of Gustavos testimony, a typed English translation of the letter was provided to the jury.
B. The Defense Case
Oakland homicide investigator Michael Foster testified that he found a machete under the drivers seat of Tenorios truck, parked at the scene. Foster did not find a gun in the truck. Foster also testified that defendant had twice reported Tenorio to the police for threatening him.
A criminalist who qualified as a crime scene reconstruction expert testified, and seemed to contradict the eyewitness testimony. In the experts view, Tenorios wounds could not have been inflicted by someone firing down as Tenorio lay on the ground. But the experts conclusions were not entirely unequivocal.
Oakland police officer Biechler testified that on April 27, 1998 he responded to a complaint by defendant that Tenorio had threatened him with a metal pipe. The officer could not locate the pipe. Defendant did not want Tenorio arrested.
Arturo Perez lived on the 1300 block of 107th Avenue. Perez testified that on July 11, 1998, Tenorio grabbed him, hit him and threatened to kill him with a machete. After the fight ended Tenorio tried to run over Perez with a car. On the afternoon of September 1, 1998, the day of the shooting, Perez saw Tenorio with a revolver. Tenorio kept putting the revolver in his waistband and removing it. Perez considered Tenorio a violent person.
Perez wife, who witnessed the July 1998 attack, testified that Tenorio was a "very violent man" and had a reputation in the community for violence. Another neighbor testified that Tenorio had threatened him and owned a gun. The neighbor was afraid of Tenorio. A third neighbor said that Tenorio assaulted him, attacked him with a knife, and was known to carry a gun. This neighbor heard Tenorio say he wanted to kill defendant.
Yet another neighbor testified that he saw Tenorio with a gun all the time, and that Tenorio would play with the gun when he was drunk. The neighbor said Tenorio had a reputation in the community for violence.
The owner of a bakery testified that in June 1998 Tenorio entered his business and threatened defendant and another man with a soda bottle. Tenorio told one of the men he was going to "fuck him up." He had an object in his waistband that could have been the handle of a gun. Tenorio spit on defendant. Tenorio had a reputation in the community for being "very violent."
Eight friends or associates of defendant, including Oakland City Council President Ignacio de la Fuente, testified that he had a reputation in the community of being a peaceful and nonviolent person.
Defendants wife, Elizabeth Rodriguez, testified that defendant had problems with Tenorio over the cockfighting in the vacant lot. She said defendant suffered several wounds when Tenorio attacked him with the hoe. Tenorio would go to the bakery where defendant had his breakfast, and threaten him. In July or August someone fired shots at their house. On the night before the shots were fired, Ms. Rodriguez saw Tenorio run out of a car parked in front of the house. Tenorio also threatened defendant with a screwdriver in July 1998.
On the day of the shooting defendant was in the process of filling out the necessary paperwork with an attorney, to get a restraining order against Tenorio. Defendant had stopped eating and was afraid to go to his shop. He was depressed and had nightmares. He and Ms. Rodriguez stopped having marital relations.
Defendant testified on his own behalf. The following is a summary of his testimony.
Defendant had troubles with Tenorio for about a year prior to the shooting, starting as soon as Tenorio moved into the neighborhood. Despite defendants repeated entreaties, Tenorio persisted in using the vacant lot for cockfights. On April 27, 1998, Tenorio assaulted defendant because he thought, incorrectly, that defendant had called the police to complain. That was the day Tenorio assaulted defendant with a metal pipe. He also assaulted him with a rake.
Between April 27 and May 15, 1998, Tenorio assaulted or verbally abused defendant on at least five occasions. In early May defendant found .38 shell casings in his shop. On May 15, Tenorio assaulted him with a hoe, chased him, and struck him with the hoe several times. On May 19, Tenorio came to the bakery, threatened him with a bottle, spit on him and called him an "old fag." Some time later Tenorio attacked him with a screwdriver, tried to stab him and threatened to kill him.
Defendant had seen Tenorio with a gun "lots of times" prior to the day of the shooting. "Id see him with his gun with the cocks, in his house, in the street, in the car, in my back yard, in the vacant lot there, and he would discharge the gun there, at night he would go outside the apartments to drink and he would see me inside my shop and he would discharge his gun again and he would throw the shells into my shop."
Tenorio threatened to kill defendant many times. He also threatened defendants wife and young daughter. Defendant became scared, had trouble sleeping, and had nightmares.
On the day of the shooting, Tenorio called defendant at the body shop around 6:00 p.m. Tenorio said he was sharpening a machete and told defendant he was going to cut him up into little pieces. Tenorio made a noise over the phone that sounded like the sharpening of a tool. Defendants daughter was at the shop.
Defendant left his shop about 8:15 p.m.. Tenorio, who no longer lived in the neighborhood, had driven up and parked in front of defendants shop. Defendant put his daughter in his truck, then saw Tenorio, who was sitting in his car. Tenorio displayed a machete. Tenorio then took a revolver from the glove compartment of his car and put it in his waistband. He walked to his trunk, slammed it, and then walked toward defendant with the machete. Defendant locked his daughter in the truck and walked into his shop to get his gun. Defendant kept the gun because of four or five robberies or attempted robberies at his shop.
Defendant put his gun in his waistband and walked back outside to get his daughter. He saw Tenorio "hiding behind [a] truck." He thought Tenorio was going to kill him. Mario Jones and Agustin Galvan were there. Jones told Tenorio that defendant had a gun; Tenorio said he wasnt afraid of defendant and "Ive got mine as well."
Defendant greeted Jones and Galvan. Defendant then told Tenorio to "please . . . stop the death threats towards me and my family." Tenorio answered, "What are you thinking?" and then moved suddenly, as if he was going to take his gun from his waistband. Defendant was scared and thought Tenorio was going to kill him. Defendant pulled out his gun, pointed it at Tenorio, closed his eyes, and fired five or six shots. He didnt remember shooting at Tenorio once Tenorio was on the ground. He told Jones and Galvan that "they had been witnesses," and returned to his shop.
Finally, a clinical psychologist testified for the defense. The psychologist stated that Tenorios threats and assaults caused stress for defendant sufficient to make his shooting Tenorio a reaction to fear, not a rational decision. Defendants stress was aggravated by the presence of his young daughter at the scene.
C. Verdict and Sentence
The trial court instructed the jury on the law of homicide and the defense of self-defense. The court also instructed the jury on the lesser included offense of voluntary manslaughter, and on imperfect self-defense—i.e., that a person was guilty of voluntary manslaughter if they killed in the actual but unreasonable belief in the necessity to defend themselves from imminent peril.
After several days of deliberations, the jury found defendant not guilty of murder but guilty of the lesser included offense of voluntary manslaughter (Pen. Code § 192, subd. (a)). The jury also found that defendant personally used a handgun (Pen. Code § 12022.5).
After denying defendants motion for new trial, which we will discuss below, the trial court sentenced defendant to the middle term of six years for voluntary manslaughter and four years for use of a handgun, for a total of 10 years. He received 1257 days, almost three and a half years, of custody and conduct credit.
II. DISCUSSION
Defendant raises three issues regarding jury selection, jury instruction, and jury misconduct. We discuss them in that order.
A. Wheeler Error
Defendant contends the prosecutor violated Wheeler by using peremptory challenges to remove two Latino prospective jurors from the jury panel. We disagree. The record shows that the prosecutor exercised his peremptory challenges of the Latino prospective jurors for legitimate, race-neutral reasons. The trial court accepted the prosecutors explanations of his challenges, and denied the motion. Given the great deference we must extend to the trial court, we uphold the denial of the motion and conclude there is no merit to defendants contention.
In Wheeler, our Supreme Court held that the California Constitution prohibited the use of peremptory challenges to exclude jurors on the basis of group bias, i.e., solely because of their membership in a cognizable class such as race or religion. (Wheeler, supra, 22 Cal.3d at pp. 276-278, 287.) Latinos are a cognizable class within the meaning of Wheeler. (People v. Alvarez (1996) 14 Cal.4th 155, 193 (Alvarez); see People v. Reynoso (August 25, 2003, S103340/S103343) ___ Cal.4th ___ (Reynoso).)
Subsequently, the United States Supreme Court ruled that such use of peremptory challenges violated the federal Constitution. (See Batson v. Kentucky (1986) 476 U.S. 79.)
But a peremptory challenge may constitutionally be exercised on the basis of specific bias, i.e., "a bias relating to the particular case on trial or the parties or witnesses thereto." (Wheeler, supra, 22 Cal.3d at p. 276.) "[T]he law recognizes that a peremptory challenge may be predicated on a broad spectrum of evidence suggestive of juror partiality. The evidence may range from the obviously serious to the apparently trivial, from the virtually certain to the highly speculative." (Id. at p. 275.)
It is important to remember the legitimate bases for peremptory challenges, which include various factors which suggest the possibility of pro-defense or pro-prosecution bias. "For example, a prosecutor may fear bias on the part of one juror because he has a record of prior arrests or has complained of police harassment, and on the part of another simply because his clothes or hair length suggest an unconventional lifestyle. In turn, a defendant may suspect prejudice on the part of one juror because he has been the victim of crime or has relatives in law enforcement, and on the part of another merely because his answers on voir dire evince an excessive respect for authority." (Wheeler, supra, 22 Cal.3d at p. 275.)
As Wheeler elaborated, such factors may be less focused on the background or basic impression of a potential juror, but more commonly involve a "gut feeling" or the seat-of-the-pants subjectivity of prosecutors and defense attorneys alike. "Indeed, even less tangible evidence of potential bias may bring forth a peremptory challenge: either party may feel a mistrust of a jurors objectivity on no more than the `sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another (4 Blackstone, Commentaries * 353)—upon entering the box the juror may have smiled at the defendant, for instance, or glared at him." (Wheeler, supra, 22 Cal.3d at p. 275.) In more modern terms, a peremptory challenge may be based on a "hunch" or even an arbitrary reason, "so long as the reasons are not based on impermissible group bias. [Citation.]" (People v. Turner (1994) 8 Cal.4th 137, 165 (Turner).)
For a number of reasons, including respect for counsel as officers of the court, it is presumed that a prosecutors peremptory challenge is exercised "on a constitutionally permissible ground." (Wheeler, supra, 22 Cal.3d at p. 278.) That presumption is rebutted if the defendant shows a prima facie case that peremptory challenges were exercised solely on the basis of group bias. (Id. at pp. 278-281; see Alvarez, supra, 14 Cal.4th at p. 193.)
If the defendant makes such a showing, the burden shifts to the prosecutor to show that the peremptory challenges were made on the basis of specific bias, i.e., legitimate race-neutral factors reasonably relevant to the particular case being tried or its parties. (Wheeler, supra, 22 Cal.3d at pp. 281-282; see People v. Johnson (1989) 47 Cal.3d 1194, 1216 (Johnson).)
In the present case the prosecutor used peremptory challenges against Latino prospective jurors Luis G. and Concepcion J.
Prospective juror Luis G. was from Peru. He had been in this country about 12 years. He had studied sociology in Peru, then history in Paris. But he was currently unemployed in this country, having failed probation at the post office. He apparently had been unemployed for four months. He was physically separated from his wife, who worked in Peru. The couple saw each other once or twice a year. When asked by the prosecutor how he felt about being a juror in a murder case, he said, "I dont like it at all." Four times he said he felt uncomfortable being a juror. He also said, "[J]udging other people is something that would be really difficult for me."
Prospective juror Concepcion J. was Mexican-American. She had taught sociology at California State University in Hayward. She was currently a policy analyst with the University of California Office of the President. She had "mixed feelings" about jury service, and "[didnt] relish the idea of sitting in judgment of someone else." A relative of hers had been stalked and harassed by a spouse or ex-spouse. The stalker was arrested and prosecuted, but Ms. J. said, "He was a constant annoyance" and "[h]e could have been put away earlier."
Defendant made a Wheeler motion, arguing that the prosecutor had used two challenges to exclude the only two Latino prospective jurors. The court found that defendant had "established a prima facie case based upon the exclusion of two jurors—two of the four jurors and the only Latinos who to that time [had] been called . . . ." Apparently the prosecutor had used two of four peremptory challenges to challenge the only Latino jurors. The court ruled the burden passed to the prosecutor to explain the reasons for his challenges.
The prosecutor justified his challenge to Luis G. as follows: "The reason for him is he cant hold a job. If someone cant make post office probation—he said he couldnt get through the probation thing for the post office. He was only there two months and they let him go. You look at his other jobs, it strikes me for someone with his education that it just smacks of a problem juror. Also his wife has [a] psychology background as well. [¶] What I have here is someone that cant hold a job and is highly educated. He was educated in sociology like the other juror and then . . . history in Europe. If [he] cant get hired by the post office, I dont want him on my jury."
Apparently the prosecutor obtained from the jury questionnaire information on the jurors employment history and his wifes psychology background.
The prosecutor justified his challenge of Concepcion J. as follows: "[F]or lack of a better explanation she reminded me of my wife. When I first got this case I told my wife what the facts were and she said I would vote not guilty in this case. She says I wouldnt have women as jurors in this case because of the fact situation that you told me. Compounded by the fact [that] she . . . recently found out she is pregnant. Her field is sociology which to me would tell [of] liberal tendencies."
The prosecutor also referred to the anticipated defense "that the victim deserved to get what he got because of the victim stalking and harassing the defendant in this case. Also very, very important was her questions and answers concerning the family member who was victimized by a stalking and she said that he should have gotten it sooner and he should have been incarcerated sooner because he would have prevented future problems. [¶] . . . [¶] Theres just too many things leaking into her ability to be the kind of juror that I am looking for in this case."
The court ruled as follows: "I will deny the motion. I do find your explanation[s] somewhat thin. I am denying the motion, however."
The court observed that a few years previously the prosecutor had used a peremptory challenge because the prospective juror worked for the post office.
We review the denial of defendants Wheeler motion under well-established rules.
"The party seeking to justify a suspect excusal need only offer a genuine, reasonably specific, race- or group-neutral explanation related to the particular case being tried. [Citations.] The justification need not support a challenge for cause, and even a `trivial reason, if genuine and neutral, will suffice. [Citations.]" (People v. Ervin (2000) 22 Cal.4th 48, 74-75.)
When the trial court inquires into the reasons offered for a peremptory challenge, "[t]he proper focus . . . is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. [Citation.]" (Reynoso, supra, ___ Cal.4th ___ .) In other words, is the race-neutral reason sincere and genuine, or is it a pretext for denying the defendant equal protection of the law? (Id. at pp. 9580-9581.)
We must give "great deference to the trial court in distinguishing bona fide reasons from sham excuses. [Citations.]" (Turner, supra, 8 Cal.4th at p. 165; see Reynoso, supra, ___ Cal.4th ___ .) The Wheeler court recognized that appellate courts can "rely on the good judgment of the trial courts" in separating the constitutional wheat from the discriminatory chaff of peremptory challenges. (Wheeler, supra, 22 Cal.3d at p. 282; see Johnson, supra, 47 Cal.3d at p. 1216.)
The trial courts necessarily make credibility determinations based in no small part on those subjective and intangible factors, such as body language and the manner of answering questions, which are legitimate components of the peremptory challenge calculus which do not run afoul of the Wheeler rule. (See People v. Montiel (1993) 5 Cal.4th 877, 909; Johnson, supra, 47 Cal.3d at pp. 1218-1222.) Such factors also include "tone, demeanor, facial expression, [and] emphasis." (People v. Dunn (1995) 40 Cal.App.4th 1039, 1050.) The trial judge sees the person and hears his or her voice while we only have the benefit of the transcript.
Such credibility determinations are solely the province of the trial court. Ultimately, we must affirm if the record suggests grounds on which the prosecutor might reasonably have peremptorily challenged the jurors in question. (Turner, supra, 8 Cal.4th at p. 165; People v. Howard (1992) 1 Cal.4th 1132, 1155.)
Here there is nothing to undermine the trial courts implicit determination that the proffered race-neutral reasons were sincere and genuine.
With regard to Luis G., the prosecutor had a legitimate concern over a highly educated man who seemed to have trouble holding even a clerical position—indeed, even completing probation. The prosecutor was also concerned that Luis G. was educated in sociology which, as he articulated with regard to Concepcion J., could indicate a more liberal point of view.
Occupation and education can be relevant to a prosecutors sincere determination to exercise a peremptory challenge. In People v. Barber (1988) 200 Cal.App.3d 378, 394, the court noted that peremptory challenges "are often exercised against teachers by prosecutors on the belief [that] they are deemed to be rather liberal." And in Reynoso the court found the prosecutor could sincerely challenge a customer service representative on the belief that she lacked sufficient educational experience to sit on a jury—even if that belief was not necessarily objectively accurate. (Reynoso, supra, ___ Cal.4th ___ [2003 D.A.R. at pp. 9580-9581].)
We note that Luis G. stated several times he was uncomfortable with jury service. The prosecutor did not use this as a race-neutral reason, but certainly could have.
With regard to Concepcion J., the prosecutor had a legitimate concern her sociology training would make her inclined to be more liberal. He also had input from his own spouse how a female juror would react to a fact pattern involving harassment of a family with a young daughter. This factor is perhaps enhanced by Concepcion J.s pregnancy. And Concepcion J. had a strong feeling that a stalker and harasser in her relatives case should have been jailed sooner, a feeling which clearly would cause a prosecutor to suspect sympathy for defendant—whose defense was no doubt going to be that he killed to protect himself and his daughter.
In light of the record and the deference standard of review, we see no improper use of peremptory challenges and thus no Wheeler error.
B. Instructional Error
Defendant contends there was no showing he attempted to fabricate evidence, and thus the trial court erred by giving CALJIC No. 2.04. We disagree because the letter defendant gave to Gustavo, for Maria to recopy and return, was an attempt to fabricate evidence.
We note, as the Attorney General observes, that defendant never objected to CALJIC No. 2.04. We nevertheless review the merits of the issue. (Pen. Code, § 1259.)
The court instructed the jury as follows: "If you find that a defendant attempted to or did persuade a witness to testify falsely or attempted to or did fabricate evidence to be produced at trial, that conduct may be considered by you as a circumstance tending to show a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide."
Appellants argument is twofold: (1) that the court erred by admitting the letter to begin with, so that (2) there was no basis for giving an irrelevant or misleading instruction to defendants prejudice. With regard to (1), defendant abandons any argument under Evidence Code section 352. He argues only that the letter did not "directly contradict[]" Marias trial testimony—but on the next page of his brief he admits the letter "is at odds with" her testimony. We can settle this internal conflict. The letter clearly contradicts the fundamentals of Marias trial testimony—which was highly prejudicial to defendant.
Defendant then switches to (2). He argues that even if the letter conflicts with the testimony, there is nothing in the record to show defendant concocted a false story and urged Maria to adopt it. Thus, he claims, there was no evidentiary basis for the instruction. But the inference may fairly be made from the testimony of Gustavo, and the existence of the letter, that defendant drafted an exculpatory document which would have refuted the core of Marias expected damaging trial testimony, and wanted to make it look like she had written it in her own hand.
Defendant claims the evidence only shows that he gave the letter to Gustavo simply to have Maria determine if it set forth a correct version of her story, or to only sign it if it was correct. But this is a strained interpretation of certain portions of Gustavos testimony, given through an interpreter, and largely in response to leading questions on cross-examination. There is substantial evidence that neither defendant nor Gustavo had ever talked to Maria about her version of the shooting, so any claim defendant was simply trying to confirm what he thought was Marias actual story is rather weak.
The jury was entitled to be instructed with CALJIC No. 2.04 and make the inference if it so chose. And apart from that inference, there is substantial evidence to support defendants conviction. Thus, any error would be harmless.
C. Juror Misconduct
Defendant moved for a new trial based on juror misconduct. The motion was based on a one-page declaration of Juror No. 4, who stated that after the verdict he informed defendants counsel of the following: (1) that during jury deliberations and before the verdict, Juror No. 4 spoke to an attorney friend and asked him the penalty for manslaughter; (2) that the attorney friend told Juror No. 4 that he believed defendant would be sentenced to three or six years in prison and serve 50 percent of his term; and (3) that "based on this information" Juror No. 4 "changed [his] vote from not guilty because of self defense, to guilty of voluntary manslaughter," and if he had known that defendant "could [have] receive[d] up to twenty one years in state prison, [he] would not have changed [his] vote of Not Guilty."
At the hearing on the motion, Juror No. 4 invoked the Fifth Amendment and refused to testify. The People declined to offer the juror immunity. This left the trial court with only the jurors declaration to decide the motion.
The trial court had instructed the jurors that they were forbidden to make any independent investigation of the facts or the law (CALJIC No. 1.03 (1998 Rev.), and that they were not to consider questions of penalty or punishment (CALJIC No. 17.42. Juror No. 4 faced the possibility of being found in contempt for violating these admonitions. He also faced criminal liability under Penal Code section 96 for improperly receiving information about a case from an outside source.
The trial court followed the three-step procedure set forth in People v. Von Villas (1992) 11 Cal.App.4th 175 (Von Villas). Under this procedure, the court first determines whether the declaration is admissible evidence of juror misconduct under Evidence Code section 1150, subdivision (a). Then, if the declaration is admissible, the court must determine whether the evidence in fact establishes juror misconduct. Finally, the court must determine whether the misconduct is prejudicial. (Von Villas, supra, 11 Cal.App.4th at p. 255.)
Henceforth we refer to Evidence Code section 1150, subdivision (a) as "section 1150."
For its step one analysis, the court parsed the declaration into the three numbered components we have set forth above: (1) the jurors conduct of contacting an attorney and discussing the case with him; (2) the jurors receipt of information from the attorney regarding the sentence for manslaughter; and (3) the jurors claim that he considered this information in reaching his verdict.
The court then reviewed the declaration in the light of section 1150, which provides: "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined." (Italics added.)
The court determined that the declaration is only partially admissible under section 1150. (1) and (2) are admissible. (3) is not. The trial court determined that (3) is inadmissible under the second sentence of section 1150 (italicized above). The trial court was correct. (3) purports to show the effect of the outside information on Juror No. 4s verdict—i.e., the information purportedly caused him to change his vote from not guilty to guilty of manslaughter.
Section 1150 embodies the long-recognized rule that a juror may testify to objective facts that may show an influence on his verdict, but he may not testify how or how far that influence may have affected his thought processes. (See In re Carpenter (1995) 9 Cal.4th 634, 651-652 (Carpenter); People v. Holloway (1990) 50 Cal.3d 1098, 1108-1109 [and authorities cited therein], overruled on unrelated ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) Defendant does not challenge the trial courts determination that (3) is inadmissible evidence of juror misconduct.
The trial court moved to its step two analysis, viewing only the evidence of (1) and (2). The trial court found that Juror No. 4 did commit misconduct by going to an outside source and obtaining information about the possible penalty. Neither defendant nor the People dispute that the juror committed misconduct.
Moving to step three, the trial court found the juror misconduct was not prejudicial: ". . . I am mindful of the fact that information concerning potential penalty and punishment is widely broadcast in the newspapers, public media, in books, on television, et cetera; . . . I frankly do not find this to be prejudicial. This particular information is almost actually a matter of public knowledge what the punishment for . . . voluntary manslaughter . . . is. And to the extent that [Juror No. 4] may have misinterpreted this information I cannot speculate as to whether or not his misinterpretation was so extreme as to be prejudicial to the defendant. [¶] I will point out that I do not find that [Juror No. 4] was in any way biased against the defendant, and I do not see how the receipt of this information was prejudicial in this case."
Accordingly, the court denied the new trial motion.
Defendant contends the court erred by finding the misconduct was not prejudicial. We review the trial courts ruling only for an abuse of discretion. (People v. Dorsey (1995) 34 Cal.App.4th 694, 704 (Dorsey).) We find none and reject defendants contention for the following reasons.
Juror misconduct gives rise to a presumption of prejudice. (Carpenter, supra, 9 Cal.4th at p. 653; Dorsey, supra, 34 Cal.App.4th at p. 704.) But that presumption may be rebutted. A reviewing court may examine the entire record and determine there is no reasonable possibility of actual harm to the defendant from the juror misconduct. (9 Cal.4th at p. 653; 34 Cal.App.4th at p. 704.) In a case of a juror receiving outside information, a reviewing court will set aside the verdict only if it finds prejudice under one of two tests: (1) the outside information, "judged objectively, is inherently and substantially likely" to have influenced the juror, or (2) it is "substantially likely the juror was actually biased" against the defendant. (9 Cal. 4th at p. 653.)
Here the trial court found that Juror No. 4 was not biased against defendant and there is no admissible evidence in the record to the contrary. Thus we can only set aside the verdict if the information regarding penalty is inherently prejudicial. This is an objective test, "analogous to the general standard for harmless error analysis under California law." (Carpenter, supra, 9 Cal.4th at p. 653; see Dorsey, supra, 34 Cal.App.4th at p. 704.)
We do not find information regarding penalty to be inherently prejudicial. While the sentence for manslaughter may not be as widely known as the trial court suggested, the mere knowledge of that penalty cannot be said, in and of itself, to mandate a finding of prejudice. This is especially true given the state of the evidence. This case is not as close as defendant contends. Several eyewitnesses saw defendant fire several shots at Tenorio, who was unarmed, and then stand over him and deliver a coup de grace. We see no abuse of discretion in the trial courts determination that the juror misconduct did not prejudice defendant. As outlined in Carpenter, supra, 9 Cal.4th at 654, we look at the entire record including the nature of the jurors conduct, the circumstances under which the information was obtained, the instructions the jury received, the nature of the evidence and issues at trial, and the strength of the evidence against the defendant. The presumption of prejudice here is rebutted because there is extremely strong proof in support of the verdict and the jurors were properly instructed on how to carry out their duties.
Defendant relies on People v. Honeycutt (1977) 20 Cal.3d 150 (Honeycutt), in which the Supreme Court found outside information about penalty to be prejudicial. Honeycutt is distinguishable. First, it predates the alternative tests set forth in Carpenter, which are now the controlling law. Second, Honeycutt focuses more on the actual bias of the juror. (20 Cal.3d at p. 157.) Third, it was significant to the Honeycutt court that the juror committing the misconduct was the foreperson, "whose perceptions and conclusions may often sway other jurors." (Id. at p. 158.) Juror No. 4 was not the foreperson of defendants jury. Juror No. 12 was.
III. DISPOSITION
The judgment is affirmed.
We concur: Stein, J. and Swager, J.