Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. BA292940, Patricia M. Schnegg, Judge.
Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie A. Miyoshi and Sarah J. Farhat, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
A jury convicted defendant and appellant Moises Hernandez of first degree murder and of attempted murder. During jury deliberations, a juror was excused and replaced by an alternate juror. The trial court, however, neglected to instruct the reconstituted jury to begin deliberations anew. Defendant now contends that this failure to instruct the jury constitutes prejudicial error. We reject the contention and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
A. The murder of Jason Tabora and attempted murder of Andres Velasquez.
On November 3, 2005, Robert Gutierrez was at a bus stop. Defendant and a female approached Gutierrez. Defendant asked Gutierrez where he was from. Gutierrez said he was from nowhere. Defendant said he was Little Youngster from Playboys, but Gutierrez, who knew defendant, thought he was from a different gang. The female with defendant displayed a gun.
Two days later, on November 5, 2005, Mirelda Reyes (Dopey) was with her boyfriend, Jorge Rivera (Smiley), and David Otero (Downer). All three were members of the Playboys gang. They met defendant, whom Reyes knew as Goofy. Defendant was a member of the SSK gang, a small gang. The four of them went to a bar where they met Toby, a “big homie.” Defendant, Rivera and Toby left; defendant said they were going to look for some “Mid Cities,” a rival gang of the Playboys. Someone also used the word “ ‘jale,’ ” which means to do work for the gang, for example, jumping or killing someone or graffiti. Defendant, Rivera and Toby were gone for about 30 minutes.
Upon returning, defendant, Rivera, Otero and Reyes left to buy spray paint; they were going to “cross somebody out”—write an X through rival graffiti. They were, however, unable to find spray paint. Defendant said they were going into the territory of Easy Riders, the Playboys’ rival gang. Reyes thought someone had a gun. They went through an alley near New Hampshire Street, and, upon exiting, Reyes and Rivera screamed, “Playboys.” Defendant said, “ ‘Fuck Easy Riders.’ ” Upon exiting the alley, Reyes saw a man, who started to run. Defendant shot at the man, and they all then ran.
That man, Andres Velasquez, testified he was outside smoking in his neighborhood near New Hampshire Street and Washington Boulevard. He saw four or five people comprised of males and females come out of a nearby alley. Defendant was a member of the group. He was wearing a hat, white shirt and shorts. Defendant pulled out a gun and shot at Velasquez. Velasquez heard a girl scream Eastside Playboys. Unharmed, Velasquez ran.
After defendant shot at Velasquez, Reyes ran. Defendant ran behind her. As they ran, Reyes heard two more shots, and she saw defendant throw a gun toward some trees. Arlene Duran and Jason Tabora were sitting together outside a house. Duran heard what sounded like firecrackers. Tabora got up to investigate. As he was walking back to Duran, three people ran by. The third person, a man, stopped in front of Tabora, asked, “ ‘Where you from,’ ” and said “ ‘Playboys’ ”; he then shot Tabora. According to Duran, the shooter was bald, and he wore white tennis shoes, long socks, dark shorts and a white T-shirt. When he passed by, the shooter did not have on a hat. Tabora died from a gunshot wound to his torso.
At the outset of these events, Fabian Hernandez was in an apartment building when he heard gunshots. He went outside to investigate. He saw three people, including defendant. Defendant was wearing a blue hat, shorts and a white T-shirt, and he had a tattoo. Defendant was shooting a gun. Hernandez followed defendant and saw him shoot Tabora.
B. The investigation.
Soon after Tabora was shot, defendant, Otero and Reyes were arrested and a field show-up was held. During the show-up, defendant wore a baseball cap. About 20 minutes after Tabora was shot, Duran identified defendant at a single person field show-up as the shooter. She said that the shooter was wearing the same clothes as when he shot Tabora, except the shooter wore a hat at the line-up. She could not identify anyone else. Velasquez also identified defendant as the shooter at the field show-up. Otero looked familiar to Velasquez, who guessed that Otero was with defendant. He also identified Reyes as the person who screamed, “Playboys.” Hernandez was taken to the police station, where he identified defendant. At trial, Hernandez said he was “[a] hundred percent, totally” sure defendant was the shooter. On January 12, 2006, Duran went to a live line-up. She identified defendant as the person who, a day or two before Tabora was shot, yelled “ ‘Playboys’ ” at them. But she did not recognize anyone from the night of the shooting.
Velasquez said that defendant might have changed clothes after shooting Tabora. At the preliminary hearing, Velasquez had said that defendant was wearing a white shirt when he shot Tabora, but at the field show-up he had a different shirt “ ‘with things on it’ ” and he may have had a sweater.
A gun was found between a planter and a tree near the shooting. A forensics print specialist was unable to get any prints from the gun and rounds. But gunshot residue was found on defendant.
In January 2006, Deputy Yvette Mattes was setting up a line-up that included defendant. She noticed his age, 18, and asked why he was housed in juvenile hall rather than Men’s Central Jail. He replied, “ ‘Because when I did it, I was 17.’ ” He then said, “ ‘I meant, when they said I did, it I was 17.’ ”
Detectives interviewed Reyes four times. During her second interview, Reyes said that defendant wanted to become Little Youngster from the Playboys. Defendant’s cousin, Youngster, was already a member of the gang.
Reyes signed an Immunity Leniency Agreement. She admitted to attempted murder and a gang allegation. Upon completing her testimony she would be sentenced to five years in California Youth Authority, and remaining charges would be dismissed.
C. Gang evidence.
Reyes testified that defendant was not a member of the Playboys. But during a recorded jailhouse conversation on June 3, 2007, defendant identified himself as Little Youngster from Playboys. Defendant does not have any Playboys tattoos, but he does have other gang-related tattoos. “ ‘17 Street Kooks’ ” is tattooed on defendant’s upper chest; “Krooks” is on his left hand; and “S.S.K.” is on his left leg.
Officer Christopher Andrade testified for the People as a gang expert. He belonged to the Rampart Gang Enforcement Detail from May 2004 to May 2007. During that time, he was in “charge of” the Playboys gang. In November 2005, there were approximately 50 to 75 Playboys gang members. They have a common hand sign, and a playboy bunny is their sign or symbol. Mid Cities and Easy Riders, among others, are Playboys’ rivals. SSK is a small inactive gang located in territory the Easy Riders gang claims. Mirelda Reyes, George Rivera and David Otero are members of the Playboys gang.
The Playboys’ primary activities are selling narcotics, extortion, robbery, assault with a deadly weapon, murder and witness intimidation. To protect their territory, gangs carry weapons and do graffiti to instill fear in the citizens living in that area. The shooting of Tabora occurred in Easy Riders’ territory.
Officer Andrade was given the following hypothetical: Three gang members from gang A and a fourth person who wants to be a member of gang A enter enemy territory. That fourth person shoots at a young Latino male while his companions yell out the name of gang A. Person No. 4 then asks another young man, “ ‘Where are you from,’ ” before shooting him. Both shootings were, in Officer Andrade’s opinion, done in association with gang A and to benefit gang A.
II. Procedural background.
Defendant was tried by a jury. On August 27, 2007, the jury found defendant guilty of count 1, first degree murder (Pen. Code, § 187, subd. (a)), and of count 2, attempted murder (§§ 187, 664). The jury found true a gang enhancement allegation (§ 186.22, subd. (b)(1)(A)) as to both counts. The jury found true a gun enhancement allegation under section 12022.53, subdivision (d), as to count 1, and under section 12022.53, subdivision (c) as to count 2. The jury also found true the allegation defendant was at least 16 years old at the time he committed the offenses.
Defendant was jointly tried with David Otero. The jury found Otero not guilty of murder and of attempted murder.
All further undesignated statutory references are to the Penal Code.
The trial court sentenced defendant on September 14, 2007 to 25 years to life plus an additional 25 years to life for the gun enhancement (§ 12022.53, subd. (d)) on count 1. The court sentenced defendant on count 2 to a consecutive life term plus a consecutive 20 years for the gun enhancement under section 12022.53, subdivision (c). The court stayed the sentence on the gang allegations.
DISCUSSION
I. Failure to instruct the reconstituted jury to begin deliberations anew.
A deliberating juror was replaced with an alternate juror. The trial court, however, failed to instruct the jurors to begin deliberations anew. Defendant contends that the error violated his right to a unanimous verdict under California’s Constitution and to due process under the federal Constitution. We find that the error was harmless.
The times cited are from the clerk’s transcript. The reporter’s transcript does not always time stamp events.
On August 23, 2007, jury deliberations began at 11:50 a.m. After a lunch break, deliberations resumed at 1:35 p.m. The jury notified the court they had questions at 3:55 p.m. They asked for transcripts from the testimony of Hernandez, Velasquez, two officers and Reyes. The jury also asked whether the “ ‘perpetrator’ in CALCRIM 401 need[s] to be proved to be Hernandez in order to convict Otero of Counts 1 and 2? Can the ‘perpetrator’ be someone else?” The jury was dismissed for the day at 4:00 p.m. The jury thus deliberated for 2 hours, 35 minutes that day.
The next day, August 24, 2007, deliberations resumed at 10:30 a.m. But from 11:00 a.m. to 12:00 p.m., the court reporter read back testimony per the jury’s request. Read back continued from 1:35 to 3:00 p.m. and from 3:20 to 3:40 p.m. Alternates were present for the read back. At 3:40 p.m., Juror No. 2 was excused due to hardship and replaced with alternate Juror No. 1. The trial court gave no further instruction. The jury resumed deliberations briefly, from 3:45 to 3:55 p.m.
The clerk’s transcript states that deliberations resumed at 10:30 a.m., but it is unclear whether the trial court was addressing the jury’s question at this time or whether the jury was in the jury room deliberating.
Deliberations resumed on August 27, 2007, at 10:30 a.m. At 11:45 a.m., the jury sent out a question. The jury was on break from 12:00 to 1:30 p.m., and deliberations resumed at 1:30 p.m.. Read back commenced at 1:35 until 1:40 p.m. At 3:10 p.m., the jury notified the court it had reached a verdict.
B. Defendant was not prejudiced by the trial court’s failure to instruct the jury to begin deliberations anew after the alternate was substituted in as a juror.
Section 1089 authorizes substitution of an alternate juror before or after final submission of the case to the jury on a showing of good cause. (See also People v. Collins (1976) 17 Cal.3d 687, 691-694, disapproved on another point by People v. Boyette (2002) 29 Cal.4th 381, 443, 462, fn. 19.) Post submission substitution does not violate a defendant’s right to a trial by jury and its essential element of a unanimous verdict provided the trial court instructs the jury to commence deliberations anew when a substitution is made after submission of the cause. (Collins, at p. 694.) “The requirement that 12 persons reach a unanimous verdict is not met unless those 12 reach their consensus through deliberations which are the common experience of all of them.” (Id. at p. 693.)
Thus, when an alternate is substituted in, the trial court should instruct the jury with, for example, CALCRIM No. 3575. It provides, “One of your fellow jurors has been excused and an alternate juror has been selected to join the jury. [¶] Do not consider this substitution for any purpose. [¶] The alternate juror must participate fully in the deliberations that lead to any verdict. The People and the defendant[s] have the right to a verdict reached only after full participation of the jurors whose votes determine that verdict. This right will only be assured if you begin your deliberations again, from the beginning. Therefore, you must set aside and disregard all past deliberations and begin your deliberations all over again. Each of you must disregard the earlier deliberations and decide this case as if those earlier deliberations had not taken place. [¶] Now, please return to the jury room and start your deliberations from the beginning.” (See also CALJIC No. 17.51.)
Where, as here, this or a like instruction was not given, the error is reviewed under the standard in People v. Watson (1956) 46 Cal.2d 818, 836, namely, is there a reasonable probability that a more favorable verdict would have been returned had the jury been properly instructed following the substitution? (People v. Collins, supra, 17 Cal.3d at p. 697.) To determine prejudice, we consider whether the case is a close one and compare the time the jury spent deliberating before and after substitution of the alternate juror. (People v. Proctor (1992) 4 Cal.4th 499, 537.)
Although defendant acknowledges that the failure to instruct the jury to begin deliberations anew when an alternate replaces a juror is evaluated under the standard in People v. Watson, supra, 46 Cal.2d at page 836, he nonetheless suggests that his federal due process rights were violated, and therefore the standard in Chapman v. California (1967) 386 U.S. 18, 24, applies. He relies on Hicks v. Oklahoma (1980) 447 U.S. 343. In Hicks, the defendant was convicted of unlawfully distributing heroin. Because he had prior felony convictions, he was sentenced to 40 years under Oklahoma’s habitual offender statute, then in effect. Thereafter, an appeals court declared unconstitutional the portion of the statute under which defendant had been sentenced. Nonetheless, the Oklahoma appeals court affirmed defendant’s conviction and sentence.
A consideration of these factors led the Proctor and Collins courts to conclude that prejudice did not result from any instructional error. In Proctor, the jury had deliberated less than one hour before the alternate was substituted in. (People v. Proctor, supra, 4 Cal.4th at p. 537.) The newly constituted jury thereafter deliberated for two and one-half days. The court found that any error was therefore harmless. In Collins, the court based its finding of no prejudice in part on the strength of the case against the defendant. Two of three robbery victims identified the defendant. Defendant’s two accomplices also testified against him. (People v. Collins, supra, 17 Cal.3d at p. 697.) Similarly, in People v. Odle (1988) 45 Cal.3d 386, 406, disapproved on another ground by People v. Prieto (2003) 30 Cal.4th 226, 256, the evidence against the defendant was “overwhelming”; defendant admitted responsibility for the crimes. In addition, the jury had deliberated for only part of one afternoon before the substitution occurred, and the newly constituted jury deliberated for two and one-half days thereafter. (Odle, at p. 406.)
In Proctor, the trial court did instruct the jury to begin deliberations anew, although the instruction did not embody all of the elements required by Collins. (People v. Proctor, supra, 4 Cal.4th at pp. 537-538.)
In contrast to Proctor, Collins, and Odle, prejudice has been found in “close” cases. For example, in People v. Martinez (1984) 159 Cal.App.3d 661, 666, a juror was substituted after over two hours of deliberation. The trial court instructed the jury: “ ‘Now that there is a new member of the jury, the jury will resume their deliberations starting over with the new trial juror.’ ” (Id. at p. 664.) Six days of deliberation followed before the jury convicted the defendant of murder. (Id. at p. 666.) Martinez found the jury had not been properly admonished and found prejudice, because the issues before the jury of premeditation and malice were very complex and the case was “close.” (Id. at p. 665.)
The length of deliberations after a juror substitution was key to the finding of prejudice in Griesel v. Dart Industries, Inc. (1979) 23 Cal.3d 578, 583 (Griesel). The issues in Griesel concerned the duty of a landowner to warn others of the dangers of an unreasonable risk of harm, and the landowner’s duty, as the employer of an independent contractor, to provide precautions against a peculiar risk of harm. (Id. at pp. 582-583.) The jury in Griesel had been deliberating for seven days when an alternate replaced a juror. (Ibid.) The court merely instructed the jury to continue its efforts and consideration of the case, rather than in accord with Collins. The newly constituted jury then deliberated for a little less than four hours before returning a nine-to-three verdict in the defendant’s favor. The court said, “Given the closeness of the case, the composition of the nine jurors returning the verdict and the comparison of time spent deliberating before and after the substitution of the alternate juror, we conclude that this error was prejudicial.” (Griesel, at p. 585.)
Overruled on another ground by Privette v. Superior Court (1993) 5 Cal.4th 689, 696.
This case is more like those cases we have cited in which no prejudice resulted from the failure to instruct the jury to begin deliberations anew. This was not a complex case, and the evidence that defendant attempted to murder Andres Velasquez and murdered Jason Tabora and that the crimes were committed in furtherance of the gang was strong. Two days before the shootings, defendant threatened Robert Gutierrez and identified himself as a Playboys gang member. Three witnesses identified defendant as the shooter: Arlene Duran, Andres Velasquez and Fabian Hernandez. One of defendant’s accomplices, Mirelda Reyes, said he shot at Velasquez. She also said she heard additional gunshots as defendant ran behind her. Gunshot residue was found on defendant. While in custody for the crimes, defendant made an arguably inculpatory statement that when he “did it” he was 17 years old. Defendant also committed the crimes in the company of Playboys gang members, and “Playboys” or gang challenges were yelled at the time of the shootings.
Given the strength of this evidence, discrepancies in the testimony of some witnesses about what the shooter was wearing, Reyes’s credibility, and the validity of the witness identifications at the show-ups and line-ups do not change our conclusion that the evidence against defendant was strong. Indeed, the court in Collins characterized the case against that defendant as “very strong” notwithstanding the “rather confused testimony” of one victim who identified the defendant. (People v. Collins, supra, 17 Cal.3d at p. 697.)
Nor does the length of the deliberations before and after the substitution support a finding of prejudice. The record is not clear down to the minute how long the jury deliberated before the substitution occurred and how long the newly constituted jury deliberated after the substitution. It appears that the jury deliberated about 155 to 165 minutes before the substitution and about 195 minutes after the substitution, excluding read back in all instances. We see nothing alarming about the length of the deliberations. The jury deliberated approximately the same amount of time after the substitution as before. The case was fairly straightforward, with the main issue being identity. This was not a complex case in which, for example, the original jury deliberated for seven days, but returned a nine-to-three verdict after deliberating only an additional four hours after a substitution, as in Greisel, supra, 23 Cal.3d 578.
We therefore conclude that defendant was not prejudiced by the trial court’s instructional error.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P. J., KITCHING, J.
The United States Supreme Court rejected the state’s argument that “all that is involved in this case is the denial of a procedural right of exclusively state concern.” (Hicks v. Oklahoma, supra, 447 U.S. at p. 346.) The court explained that a state law guaranteeing a criminal defendant certain procedural rights at a sentencing hearing, even if not constitutionally required, may give rise to a liberty interest protected against arbitrary deprivation by the due process clause. (Ibid.)
Defendant does not explain here how the replacement of a juror with an alternate juror without instruction to begin deliberations anew is the equivalent of a guarantee of a procedural right based in state law. A contrary holding would convert all incorrect rulings by trial courts into constitutional error. We therefore need not analyze the instructional error under the Chapman standard.