Opinion
NOT TO BE PUBLISHED
San Francisco City and County Super. Ct. No. 189874
Reardon, J.
Appellant Anthony Johnson and his codefendant Antonio Woods were convicted by a jury of the first degree murder of Kevin Coleman and of being a convicted felon in possession of a firearm. The jury found true the allegations that in committing the murder, appellant personally used a firearm and that he personally and intentionally discharged a firearm causing Coleman’s death. Additionally, the jury convicted appellant of possessing cocaine for sale, possessing cocaine while armed with a firearm and misdemeanor resisting a police officer. The court sentenced him to 25 years to life in prison for the murder, with a consecutive 25 years for personally discharging a firearm causing death. Terms for the remaining counts and enhancements were stayed or ordered to run concurrently.
This court affirmed the judgment of conviction against Antonio Woods in an unpublished opinion. (People v. Woods (Sept. 13, 2007, A114359).) Woods was convicted on an aider and abettor theory of liability.
Appellant raises numerous arguments about the purported admission of testimony concerning a proposed plea agreement and a claim of self-defense; contends his counsel was incompetent; and finds constitutional fault in the exclusion of evidence that purportedly corroborated his claim to have taken ecstasy, the allowance of questions regarding his knowledge and use of guns, the purported exclusion of evidence of the victim’s alleged gang membership and the dismissal of a juror. We affirm.
I. FACTUAL BACKGROUND
A. February 8, 2003 Incident
On the afternoon of February 8, 2003, E.B. was sitting in his car in front of his house on Page and Webster Streets. Appellant and codefendant Antonio Woods drove up and parked right behind E.B.’s vehicle. E.B. noticed their eyes were red. The two men walked toward Haight Street and approximately a half hour later they returned to the corner of Webster and Page. According to E.B., the two men were “yelling and using vulgarities about someone [who] had pissed them off.” Something was said about “doing something to somebody.” Woods told appellant that the gun was in the car. Appellant went to the car; Woods returned to the corner.
Kevin Coleman arrived on the other side of the street. Woods and Coleman began arguing and yelling. Woods put his hands in the air and turned around in a circle; his shirt was open. They continued yelling. Eventually, Coleman crossed the street toward Woods. As Coleman approached Woods, Woods backed up toward where they parked their car. While they continued arguing, appellant proceeded along the wall of a building, crouching down with a gun between himself and the building. Appellant walked to a point behind Coleman and moved his arm in front of him with the gun. Coleman turned around and appellant shot him in the chest. Coleman grabbed appellant by the hand that was holding the gun; they struggled. Coleman shoved appellant against the building. Appellant put his hand out and tried to shoot Coleman again but the gun jammed; he tried to unjam the gun. Coleman ran across the street and collapsed.
R.J. also witnessed the shooting as she walked on Page Street toward Webster. She heard a couple “pops” and saw two people struggling with a gun. She identified a picture of Coleman as the victim; he did not have a gun in his hand. The shooter waved a gun in his right hand as he struggled with Coleman. R.J. “saw the gun land on [Coleman]’s chest and he was shot point blank [in] the chest.” Coleman walked across the street and collapsed. From what she could remember, the shooter started walking to the middle of the street and then got into a car and left the scene. R.J. identified appellant as the shooter during a “cold show” conducted by an officer that same day.
A.W. also observed the incident from her apartment on Page Street. She heard yelling, swearing and arguing. Looking out the window she saw two men fighting and pushing. She also saw a Volkswagen parked on the street.
A.W. saw one man pull his arm from his side; he had a gun that looked like a semiautomatic. He pointed the gun toward the other man and fired. The victim fell backward and tried to push his hand up. The gun, aimed at the man’s chest, went off again. A.W. called 911. She never saw the victim holding a gun or knife.
Meanwhile, that afternoon Officers Damato, Ryan and Warnke were on patrol near Webster and Page. They observed a group of four to five African-American men walking northbound on Webster, and recognized codefendant Woods. Turning onto Page, the officers heard a gunshot and, accelerating toward Webster, heard two or three more. At the intersection of Page and Webster, the officers saw the group of men; appellant and Coleman were fighting. Officer Warnke saw appellant kneeling on the sidewalk, holding a black, semiautomatic handgun. He was manipulating the gun to work a jam or to reload. Officer Ryan also saw appellant holding a gun. Officer Warnke ordered appellant to drop the gun; when he turned around and spotted the car and the officers, he took off running. Officers Ryan and Warnke gave chase. Appellant threw the gun into a trash can at the corner of Page and Fillmore Streets. Ultimately the officers came upon appellant in a storage area behind a bar, where he surrendered. The officers did not notice any cuts, bruises or injuries on appellant.
Back at the patrol car, Officer Damato observed Coleman start to run, momentarily raise his hands, then collapse. He had been shot in the chest; there was no weapon in his hands or near him. Damato caught up with the other officers. He saw appellant come out of the storage area. He did not recall seeing any bruises or cuts on him.
Coleman died shortly after arriving by ambulance at the hospital. The autopsy revealed that Coleman died from multiple gunshot wounds, one of which entered his chest and exited through his back, doing the most damage to Coleman’s major organs. Coleman’s hand also sustained a gunshot injury, which appeared to be a defensive wound. The wound was inflicted from an intermediate range, from a few inches to a few feet away. According to the forensic toxicologist, traces of gunshot residue were found on appellant’s hands, indicating he may have fired a gun, been in the vicinity of a fired gun, or touched something with residue.
The police retrieved the gun appellant threw in the garbage can; in the gun were a spent casing and four live rounds. The police also found a spent casing at the corner of Page and Webster. The firearms examiner concluded that the casing had been fired from appellant’s gun. It was not possible that the cartridges could have been discharged from another firearm.
The jacket appellant was wearing when arrested contained baggies with cocaine, but no paraphernalia for ingesting drugs. The designated expert opined that he possessed the cocaine for sale.
Officer Walsh interviewed appellant the day he was arrested. He did not observe any injuries on appellant. Appellant said he did not know why he had been arrested. When told he was arrested in relation to a fight on the streets that day, appellant replied he “ain’t had no problems on no street.” He said he hid from the police because of “[n]ervousness” about being chased by the police. Appellant denied possessing or firing a gun, or being near a gun that had been fired.
The police did not interview codefendant Antonio Woods until September 27, 2004. A videotape of the interview was played for the jury. Woods said he was in a store with his cousin when he heard his good friends, appellant and Kevin Coleman, arguing on the streets. Appellant was trying to get away from Coleman. Coleman was trying to “attack [appellant]. Not with no weapon just tryin’ to get ahold to him.” Woods heard two or three shots and saw appellant shoot Coleman in the chest, he guessed once or twice. He did not know from “where [appellant] got the gun.” Woods denied any involvement in the shooting, and denied giving a gun to appellant or telling him where to find one.
B. Developments in 2004
Floyd Coleman is Kevin Coleman’s father. In 2004, Mr. Coleman heard “word on the streets” and from Kevin’s mother that appellant was going to plead guilty to voluntary manslaughter. Shaka called a second time telling him to meet a person on the corner of Page and Webster who would “give [him] the person that can be a witness to the homicide.” At the appointed time he met a woman who pointed to a Volkswagen, indicating it was E.B.’s vehicle and he witnessed the shooting. Mr. Coleman and E.B. met. Mr. Coleman asked E.B. to “take the information that he had” to the police.
Apparently the information came from a telephone call by “Shaka,” someone his son had introduced him to a couple of times.
E.B. contacted the police after meeting with Mr. Coleman and spoke with Officer Walsh in July 2004. E.B. explained that Mr. Coleman said the perpetrator “was trying to say that he shot Mr. Coleman[’s son] in self-defense.” E.B. gave his statement that it was not self-defense, “[b]ecause I was there.”
E.B. stated he did not immediately come forward on February 8, 2003, because he saw the chase, heard appellant had been arrested, and assumed he was “brought to justice.” E.B. also testified that the police came to his house on May 19, 2004, in an unrelated investigation, searched his house, and found a gun and cocaine. E.B. was arrested. He did not tell the police anything about the Kevin Coleman homicide, or ask to have charges dropped if he cooperated in that case. In June 2004, E.B. agreed to be a police informant and provide information about a 2004 homicide. He did not contact the police about the Coleman murder until July 2004, following his meeting with the victim’s father.
Walsh testified that E.B. did not ask for any type of consideration. Further, he did not know at the time that E.B. was a registered informant.
C. Defense
Appellant testified that he grew up in the projects, dropped out of school in the 10th grade, and has been hustling-selling narcotics-since then. He knew of Kevin Coleman, describing him as a neighborhood bully. Appellant had seen Coleman beat up a guy and take his money. He also heard Coleman had been accused of attempted murder.
Appellant started the day of February 8, 2003, with a drink of gin, took one pill of ecstasy and smoked marijuana. The ecstasy made him “feel generated,” “hiffy,” like you “want to do a lot of things.” The combination of the three made him feel good, like he wanted to do something. When he left the house he had two bags of crack cocaine, and planned to sell them on Haight Street; he was not carrying a weapon.
He remembered seeing Antonio Woods, whom he had known for a couple of years. He had another drink of gin, and at that point was a “little woozy,” but “still normal.”
While on the street that day, Coleman walked up to appellant, slapped and punched him and called him names. He also threatened to kill appellant. Appellant managed to cross the street, but Coleman came back and attacked again. Appellant was scared. Coleman hit appellant five to 15 times, under his right eye (leaving a bruise), on his cheek and on his jaw.
Appellant tried to flee again, but Coleman followed again, threatened to kill him and displayed a firearm in his waistband. Appellant reached for the gun; as they struggled, it went off. Appellant remembered one shot, but there could have been two. Johnson was told to freeze and drop the gun after it fired, but he was in shock and ran, throwing the gun into a trash can.
II. DISCUSSION
A. No Violation of Statutory or Constitutional Rights Based on Testimony About Possible Plea Agreement
Appellant is resolute in his assertions that the above-described testimony of Mr. Coleman and E.B. that he was claiming self-defense and intended to plead guilty to voluntary manslaughter violated a myriad of statutory and constitutional rights. We are not persuaded.
1. No Violation of Statutory Rights
Appellant bases his claim of statutory violation on Penal Code section 1192.4, which provides: “If the defendant’s plea of guilty... is not accepted by the prosecuting attorney and approved by the court, the plea shall be deemed withdrawn and the defendant may then enter such plea or pleas as would otherwise have been available. The plea so withdrawn may not be received in evidence in any criminal, civil, or special action....” Appellant argues that this statute has been interpreted to include offers to plead guilty, and hence the court erred in allowing testimony that he was claiming self-defense and offered to plead guilty. He refers us to People v. Wilson (1963) 60 Cal.2d 139 (error to admit evidence of offer to plead guilty to lesser degree of crime) and People v. Tanner (1975) 45 Cal.App.3d 345, 348, 353 (error in admitting letters the defendant wrote to the district attorney conceding some guilt but less culpability than others involved, and asking the prosecutor to reconsider position on proposed plea bargain).
All statutory references are to the Penal Code unless otherwise specified.
Contrary to the case at hand, in these cases the government affirmatively introduced statements of the defendants made during the course of bona fide plea negotiations. Here, there was no evidence introduced at trial that bona fide plea negotiations had occurred and the jury was not told that appellant formally offered to plead guilty to any crime. Mr. Coleman did not know appellant, gave no details about any proposed plea agreement and made no effort to confirm the rumors he heard with the district attorney’s office. On cross-examination, counsel for codefendant Woods elicited Mr. Coleman’s vague recollection of speaking at some point to two attorneys from the district attorney’s office who indicated “it was going to be manslaughter charge instead of a homicide.” E.B. did not testify to any admission or statement of appellant, but simply related the conversation with Coleman which led him to contact the police. Like Mr. Coleman, E.B. did not testify to details of any proposed plea agreement or negotiations.
Section 1192.4 prohibits introduction into evidence of bona fide plea negotiations. Unsolicited admissions, not tendered during the course of bona fide plea negotiations, and not made with the understanding they would be inadmissible, do not come within the protection of section 1192.4. (People v. Posten (1980) 108 Cal.App.3d 633, 647-648; see also People v. Leonard (2007) 40 Cal.4th 1370, 1404.) Further, the rule of People v. Tanner, supra, 45 Cal.App.3d 345, is not without limitation. Rather, it applies only to those situations in which statements of plea negotiations are offered as substantive evidence of guilt, and thus does not prevent the prosecution from using such statements to impeach a defendant. (People v. Crow (1994) 28 Cal.App.4th 440, 450-452.) The maligned testimony was not offered as substantive evidence of appellant’s guilt. Instead, it was elicited in the context of explaining the witnesses’ motivation for acting as they did. Moreover, the defense never objected to the testimony and thus the point is relinquished. (People v. Rundle (2008) 43 Cal.4th 76, 116, 120-121, 125-126, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Section 1192.4 does not apply.
2. No Fifth Amendment Violation
Appellant also declares that his Fifth Amendment privilege against self-incrimination has been encroached by admission of his offer to plead guilty and his purported statements that he acted in self-defense. Again, there was no specific and timely objection to the testimony on Fifth Amendment or any other grounds, and thus he has forfeited this argument on appeal. (People v. Rundle, supra,43 Cal.4th at pp. 116, 120-121, 125-126.) As well, there was no evidence submitted to the jury of any details of any plea negotiations and the jury was never told that appellant made admissions in negotiations with the district attorney. What the jury heard from Mr. Coleman was that there were rumors on the streets appellant was going to plead to voluntary manslaughter, and E.B.’s reiteration of Mr. Coleman’s conversation with him that appellant was trying to say he shot the victim in self-defense. These statements were not offered for the truth of the matter; in short, they were not offered against him.
Appellant argues that admission of the statement that he was claiming self-defense tended to lighten the prosecution’s burden at trial. Beyond the assertion, he fails to show how this in fact happened. The People introduced overwhelming evidence, detailed above, that he shot and killed Coleman. Testimony of rumors that appellant was claiming self-defense played no part in the government’s case against him.
In any event, his defense at trial was self-defense. The trial court instructed the jury on self-defense and accident or misfortune, and defense counsel’s closing argument focused on self-defense and accident. There is no merit to the notion that the admission of Mr. Coleman’s and E.B.’s statements lightened the government’s burden.
Appellant attempts to avoid this reality by narrowly recasting his defense at trial. He insists his defense was that the firearm discharged accidentally, not that he shot Coleman in self-defense. Appellant splits too fine a hair. While it is true he asserted at trial that the gun accidentally discharged, appellant in effect asks us to overlook the broader context of why he and Coleman were involved in a struggle involving a weapon, namely appellant was supposedly defending himself against Coleman’s unprovoked attacks. In other words the purported accidental shooting took place while appellant engaged in legitimate self-defense.
3. No Sixth Amendment Violation
With no citation to the record, appellant asserts that prior to trial plea negotiations occurred between his former attorney and the prosecutor. However, the record does contain a defense motion to enforce a plea agreement and an opposition. The motion references that “defendant would plead guilty to all charges for a sentencing range of six to ten years.” The People’s opposition indicates that before appellant entered a plea, an eyewitness came forward with new evidence.
Appellant asserts, without authority, that since his attorney informed him of the status of negotiations, “testimony concerning these negotiations” violated his right to counsel in two respects. First, disclosure of the plea negotiations violated his right to private negotiations. Second, disclosure breached his right to confidential conversations with his attorney.
Again, appellant did not object to the assailed testimony on this or any ground and hence the matter is waived. (People v. Rundle, supra, 43 Cal.4th at pp. 116, 120-121, 125-126.) Further, this attack is premised on the notion that the People improperly disclosed information about plea negotiations. As noted above, codefendant’s counsel elicited Mr. Coleman’s testimony, without objection, that he couldn’t recall but thought he did talk with two attorneys from the district attorney’s office and was told “it was going to be manslaughter charge instead of a homicide.” This upset him. This vague statement reveals nothing about private negotiations or confidential conversations. At most it indicates what the prosecutor intended to charge. As appellant acknowledges in his next argument, the source of the statement that he was going to plead guilty to manslaughter was never clarified at trial.
4. No Hearsay or Confrontation Clause Violation
Now asserting that the source of information about plea negotiations was not clarified, appellant contends there was no foundation that Mr. Coleman or E.B. was testifying from personal knowledge and thus their testimony violated the hearsay rule. As well, he maintains his confrontation rights were offended because he could not confront or cross-examine the percipient witnesses who heard the statements.
Again, there was no objection on either ground and the argument is waived. (People v. Rundle,supra, 43 Cal.4th at pp. 116, 120-121, 125-126.) More to the point, because the testimony was not “offered to prove the truth of the matter stated,” it was not hearsay evidence. (Evid. Code, § 1200, subd. (a).) Rather, the testimony was offered to explain Coleman’s activity in seeking out a witness to the crime. Moreover, as our high court has explained, “the Confrontation Clause... applies to ‘witnesses’ against the accused-in other words, those who ‘bear testimony.’ [Citation.] ‘Testimony,’ in turn, is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ [Citation.] An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” (Crawford v.Washington (2004) 541 U.S. 36, 51.) Thus, even if appellant were correct that the disparaged testimony was hearsay, only the admission of testimonial hearsay offends the confrontation clause unless the declarant is not available and the defendant had a prior opportunity to cross-examine him or her. (People v. Gutierrez (2009) 45 Cal.4th 789, 812.)The rumors and vague recollections to which Mr. Coleman testified did not have the mark of bearing testimony against appellant as articulated in Crawford.
5. No Due Process Violation
Finally, appellant urges that the admission of “testimony concerning the plea negotiations” and the claim of self-defense violated his constitutional due process rights by rendering the trial fundamentally unfair, citing People v. Wells (1967) 256 Cal.App.2d 463. He premises this argument on the purported section 1192.4 violation.
As detailed above, there was no section 1192.4 violation.
Be that as it may, the Wells opinion is inapposite. There, an official court reporter testified that the defendant previously had pled guilty to one of the very charges submitted to jury trial. The Attorney General admitted error on appeal but claimed the defendant waived the error because he did not object below. The reviewing court held that the error went to the fundamental fairness of the trial and hence allowed the issue to be raised on appeal. (People v. Wells, supra, 256 Cal.App.2d at pp. 467-468.) Here, there was no government official telling the jury appellant made damaging admissions or concessions. Rather what we have is testimony of rumors which prompted the victim’s father to act, and his vague recollection about a statement from the district attorney’s office concerning the posture of the case (son would be charged with manslaughter, not murder).
Even if error occurred, which we do not concede, our review of the entire cause, including the evidence, compels the conclusion that any error was harmless beyond a reasonable doubt. The allegedly erroneous evidence was that prior to trial, appellant claimed he acted in self-defense, evidence that was not offered for the truth of the matter asserted. The gist of this evidence was consistent with appellant’s overall defense at trial. Moreover, the challenged testimony was “but a small item in the mass of credible, incriminating evidence... during this lengthy trial....” (People v. Wilson, supra, 60 Cal.2d at p. 156.) Nor did the People’s case rely in any manner on this evidence. Instead, the People established their case through officer testimony, eyewitnesses, appellant’s postarrest statement that he did not fire or possess a weapon, codefendant Woods’s statement to police that appellant shot an unarmed Kevin Coleman, ballistics evidence and the like.
B. No Confrontation Clause Violation Based on References to Shaka and Victim’s Mother
Appellant also sees a confrontation clause problem concerning testimony that (1) Shaka told Mr. Coleman that appellant was going to plead to voluntary manslaughter, and directed him to meet someone who would “give [him] the person that can be a witness;” and (2) the victim’s mother “also called and told me.” His complaint is that he was unable to confront and cross-examine the people who provided information to Mr. Coleman. He claims that admission of these statements was “devastating” to the defense because they “corroborated the prosecution’s contention that [E.B.] was an eye-witness to the shooting of Kevin Coleman.”
This argument lacks merit. First, appellant seems to suggest that Shaka and the mother were speaking of different eyewitnesses, but the context does not bear this interpretation. Second, either the jury believed E.B.’s testimony that he observed what he observed, or it did not. We fail to see how the identification of a purported eyewitness by Shaka or the victim’s mother in any way corroborated that E.B. was or was not a percipient witness, or otherwise bolstered his credibility.
More significantly, the above statements by Shaka and the victim’s mother were not testimonial statements subject to confrontation clause protection. They were not solemn declarations or affirmations made to the government for the purpose of establishing or proving anything about appellant. (Crawford, supra, 541 U.S. at p. 51.)
C. No Ineffective Assistance of Counsel
Not surprisingly, appellant also protests that trial counsel was incompetent because he failed to object to the admission of evidence discussed in the previous sections. He acknowledges that to succeed on such a claim he must demonstrate that (1) counsel’s performance was deficient; and (2) the deficient performance prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687.)
The record sheds no light on why counsel did not object. However, the reasons are obvious-as explained above, no error occurred. Moreover, appellant cannot show that the purported errors prejudiced the defense. He maintains that testimony about a plea and his claim of self-defense was devastating to his defense at trial that he was high on ecstasy and the firearm went off accidentally. To reiterate, the statements were not offered for the truth of the matter and were minor statements in the context of the trial. The critical chain of events is that Mr. Coleman contacted E.B., who in turn contacted the police and thereafter testified at trial. How E.B. came to be a trial witness was unimportant in the path to securing appellant’s conviction.
D. No Constitutional Impairment Concerning Purported Exclusion of Corroborating Evidence that Appellant Took Ecstasy
Appellant urges that the trial court erred in excluding the statements of (1) an informant who said, among other things, that appellant was under the influence of ecstasy when he shot Coleman; and (2) Antonio Woods, to the same effect. These statements would have corroborated his own testimony that he was under the influence of ecstasy at the time of the shooting. Appellant’s logic does not hold up.
1. Background
Prior to the commencement of testimony, appellant moved to discover the identity of a confidential informant. The court denied the motion, finding there was no reasonable possibility that nondisclosure would deprive appellant of a fair trial. Specifically, the court found that the informant was not a percipient witness to the homicide, or the events leading up, or antecedent, to it. The knowledge of the informant was confined to a redacted statement given to the defense that Woods told the secret informant “that he, Anthony Johnson, and Cory... were together in Woods[’s] brown Mercedes. Woods had a gun under his seat. Anthony was in a dispute with Kevin Coleman and Woods supplied his gun to Anthony Johnson. [Redacted.] Anthony Johnson shot Kevin Coleman. [Redacted.] Anthony Johnson was high on exstacy [sic] during this incident. [Redacted.]” (Capitalization omitted.)
Thereafter appellant moved to sever his case from that of codefendant Antonio Woods. Counsel explained that with denial of the identity of the “secret informant,” codefendant Woods was the “only source” of information that appellant was under the influence of a “powerful narcotic” at the time of the incident. Severance was necessary so he could call Woods as a defense witness. The court denied the motion. Neither party admitted any evidence at trial concerning the informant or his or her redacted statement.
Appellant testified to his ingesting ecstasy and how it made him feel. The People cross-examined him about his use and its effect.
2. Analysis
To begin with appellant’s testimony about his use of ecstasy needed no corroboration because the prosecution did not challenge this claim. Indeed, the prosecution accepted the testimony. At one point after a string of “I don’t remember” answers from appellant, the prosecutor asked: “Now, is it fair to say you don’t remember a lot of what happened because of the alcohol, the marijuana and the ecstasy?”
Further, appellant never attempted to bring in the redacted statement of the confidential informant. The reason is obvious. The statement as a whole was highly damaging. Surely the prosecutor would have moved successfully under Evidence Code section 356 to admit the entire account, thereby annihilating any benefit from the statement that appellant was high on ecstasy.
This statute provides: “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party;... when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.”
In addition, the court denied the motion to sever; it did not exclude Woods’s testimony. Appellant has not directly attacked the denial of that motion or referenced the applicable standards. The cases appellant cites have to do with exclusion of exculpatory evidence, not the propriety or impropriety of severance.
Finally, appellant apparently chooses not to recognize that evidence of his voluntary intoxication would not help his case. Section 22, subdivision (b) provides that, where the charge is murder, evidence of voluntary intoxication is admissible solely on the issues of “whether the defendant premeditated, deliberated, or harbored express malice aforethought.” Appellant’s testimony about his use of drugs and gin on the day in question would not lead a jury to conclude he did not form the requisite mental state. He felt “normal” and like he could do a lot of things. There was no expert testimony on the effect of his drug use on formation of the required mental state.
E. No Impairment of Rights Because of Questioning About Appellant’s Knowledge and Use of Guns
On direct examination, appellant said he had never handled the gun before but knew how that particular weapon operated from watching television. During the struggle, the gun “went off.” This conflicted with other evidence that appellant pointed at Coleman and shot him in the chest, and thereafter manipulated the gun to either unjam it or reload. Inquiring into the struggle, appellant reiterated that the gun fired accidentally. The prosecutor asked him if he was familiar with guns and, over objection, whether he had ever fired a gun. Appellant said “No.” The prosecutor then asked if he had ever “picked up a gun case.” Appellant said he had, and he also had narcotics with him at the time. The gun was in the glove compartment of a car. He was sitting in the passenger seat; there was no driver. Thereafter appellant admitted his hand was on the trigger when it fired, and he knew the difference between a semiautomatic and a revolver.
Appellant protests that the court should not have allowed this questioning, and this line of inquiry violated his constitutional rights. According to appellant, the gun fired accidentally; according to the People, the shooting was intentional. This was the central disputed issue. The prosecutor’s questioning about appellant’s past knowledge and use of guns was relevant to this disputed fact of consequence in the case. (Evid. Code, §§ 210, 351.) The court did not abuse its discretion in allowing this questioning to impeach appellant.
F. No Constitutional Infirmity Regarding Purported Exclusion of Evidence of Gang Membership
Prior to the start of the People’s case-in-chief, the prosecutor sought to exclude any evidence regarding gang activity of the victim and defendants. Defense counsel asked the court to reserve ruling on the issue, noting that the “self-defense issue is going to be based in part on the [behavior] of the victim in this case... and what people know about him in the community. So I think that it may be very relevant. It depends on how the evidence comes in.” The court agreed to reserve ruling and “see how it develops,” but cautioned there was to be no reference to gang activity until it ruled otherwise.
The matter was not revisited during trial. Nonetheless, appellant complains that the “exclusion of testimony concerning Kevin Coleman’s gang membership” violated his constitutional rights. Citing no proffered evidence, he asserts this phantom testimony would have helped show the victim’s propensity to violence and the basis of appellant’s fear of him. Having failed to obtain a final ruling, appellant cannot now complain of some hypothetical error the trial court had no opportunity to correct. The same can be said for failing to make an offer of proof as to the evidence that purportedly should have been admitted on the issue of gang activity. Without an offer of proof, there is no basis for saying unspecified “testimony” would be helpful.
G. Dismissal of Juror No. 9
Finally, appellant attacks the dismissal of Juror No. 9 on two fronts. He asserts that the dismissal violated his right to a fair trial by an impartial jury, and also constitutionally deprived him of the right to be present during the conference leading to the juror’s discharge. His rights were not violated.
1. Factual Background
At the end of the first full day of jury deliberations, Juror No. 9 asked to address the court, saying “Well, it seems though I disagree with all eleven other-” The court indicated it could not listen to anything about deliberations, asking the juror to put his concerns in writing to be dealt with the following day.
The next morning, in the presence of counsel, with waiver of appellant’s and Woods’s appearances, the court questioned Juror No. 9. The court explained that it could not know about how any juror was voting or what was said during deliberations. Juror No. 9 stated: “I don’t know how to explain, but I can tell you I was highly disturbed yesterday when I came home. My blood pressure was over 200 and 110. And my pulse... was over 120. And then I took some-my wife is a retired physician. We have everything in the house for that. [¶] And, well, I cannot stand how people in this room are reasoning. I cannot explain it if I don’t talk to you about what is happening.”
Reiterating that the court could talk with Juror No. 9 “about physically what is happening to you,” the following colloquy took place:
Juror No. 9: “No, nothing physically.”
Court: “Well, if you go home and you have problems with your blood pressure and your pulse.”
Juror No. 9: “Because this is probably [a] question of culture, different culture, a different understanding, a different concern about people.... I cannot say here because I am forbidden to say what people think or, what-”
Court: “That’s right.”
Juror No. 9: “Well, how to explain it? I just don’t want to be part of it.”
Court: “You just what?”
Juror No. 9: “ I don’t want to be part of it.”
Court: “And why is that?”
Juror No. 9: “Because I am thinking quite differently. And I cannot understand that eleven people, different people from different society, might have such similar-I don’t know what to say, Judge.”
Court: “So in other words, you feel as though you alone have one position and the other eleven have another position?”
Juror No. 9: “Exactly. Exactly. And I must tell you that this situation disturb[s] me a lot. I have chest pain twice yesterday. And today I took with me nitroglycerine because I have... angina pectoris. [¶]... [¶]... That is heart condition. And when I am disturbed, my blood pressure goes up. I have chest pain that won’t go away if I don’t use this. This is immediate remedy for that because it enlarge my arterials in heart and help me to go through it.”
Court: “Well, really the issues boil down to this: Are you participating in the discussions of the group?”
Juror No. 9: “Yes.”
Court: “So you are in fact deliberating with the rest of the group?”
Juror No. 9: “Yes.”
Court: “And you are following the law and the instructions that the Court gave you?”
Juror No. 9: “Yes.”
Court: “So that is appropriate conduct for a juror. And you have described some physical difficulties that you are having because this process is difficult for you?”
Juror No. 9: “Judge, it just started. Just having this conversation, it just started to feel uncomfortable.”
Court: “So you are holding your chest?”
Juror No. 9: “Yes.”
Court: “Do you believe that physically that you would be able to continue deliberating?”
Juror No. 9: “Well, despite that you can-how is English-keep me content. Is that proper expression?”
Court: “I can give you more breaks during the day in deliberations.”
Juror No. 9: “No, no, it’s not that. Even if you keep me responsible to attend this procedure..., my health conditions are such that they will risk to be punished than to go to continue.”
Court: “So let me see if I understand what you are saying. Are you saying that you are afraid if you continue that your health is going to suffer?”
Juror No. 9: “Of course.”
Court: “Does that mean that because of health reasons you don’t want to deliberate anymore?”
Juror No. 9: “Well, what is happening in this room makes me... sick. Am I clear on it or I must explain more. But I cannot explain more because-”
Court: “If I told you to go back into the jury deliberation room and continue deliberating and see how it goes and if you have a medical problem such that you cannot deliberate anymore, to send out a note to me; would you be willing to do that?”
Juror No. 9: “I don’t want to obstruct process. But I already feel some stenosis. I don’t know how-”
Court: “You are holding your chest?”
Juror No. 9: “Yeah.”
Court: “So do you believe that physically that you would not be able to return to deliberations?”
Juror No. 9: “I can return but I cannot stand this process. I can’t go there-I can go there physically, but I won’t be able to continue deliberations. Am I clear now?”
Court: “So you believe that the problems with your health are such that you cannot continue your deliberations?”
Juror No. 9: “Yeah.”
Court: “So you are asking the Court to excuse you then from this jury?”
Juror No. 9: “That’s correct.”
Following this interview, the court entertained argument about the propriety of excusing Juror No. 9, ultimately concluding that he was not suffering “tummy problems, but something that is a serious health risk to this gentleman.” Despite offering accommodations, Juror No. 9 “after the long pause stated that he could... not deliberate further. He appears to be genuine in his beliefs. [¶] The Court does not believe that this is a cultural thing.... In this Court’s mind the demonstrative reality has been met and this juror is physically unable to perform the duties of a juror, that the trial stress has overcome him to the point that he cannot further deliberate.”
The court excused Juror No. 9 and replaced him with an alternate.
2. The Trial Court Properly Excused Juror No. 9
Section 1089 provides that, at any time before or after final submission to the jury the trial court may discharge a juror who, upon “good cause shown to the court is found to be unable to perform his or her duty.... ” A trial court’s determination to discharge a juror and order an alternate into service is reviewed for abuse of discretion. (People v. Cleveland (2001) 25 Cal.4th 466, 474 (Cleveland).) A juror’s inability to perform his or her functions as a juror “ ‘ “ ‘must appear in the record as a demonstrable reality.’ ” [Citation.]’ [Citation.]” (Ibid.) Thus section 1089 permits removal of a juror who becomes physically unable to continue with jury services due to illness or other circumstances. (Ibid.)
In Cleveland, supra, 25 Cal.4th at pages 480-484, our Supreme Court discussed a trio of federal cases involving the promulgation and refinement of a standard that precluded dismissal of a juror in cases where there is “ ‘any reasonable possibility that the impetus for a juror’s dismissal stems from the juror’s views on the merits of the case....’ ” (Id. at p. 483.) It agreed with observations in these cases “that a court may not dismiss a juror during deliberations because that juror harbors doubts about the sufficiency of the prosecution’s evidence.” (Ibid.) However, the court rejected the “ ‘any reasonable possibility’ ” standard, adhering instead “to established California law authorizing a trial court, if put on notice that a juror is not participating in deliberations, to conduct ‘whatever inquiry is reasonably necessary to determine’ whether [grounds to discharge] exist [citation] and to discharge the juror if it appears as a ‘demonstrable reality’ that the juror is unable or unwilling to deliberate.” (Id. at p. 484.)
These include U.S. v. Brown (D.C. Cir. 1987) 823 F.2d 591 (Brown) and U.S. v. Symington (9th Cir. 1999) 195 F.3d 1080 (Symington).
Appellant maintains that Juror No. 9 was a holdout juror and thus his dismissal was constitutionally infirm. Not so. First, while it is apparent that Juror No. 9 felt alone in that he had one position and the others held another on some aspect of the case, the record does not indicate that the jury was deadlocked. It had deliberated only for one day. Far from having reached the end of deliberations, at the time Juror No. 9 expressed his concerns, the jury had requested two readbacks, and was awaiting a response.
Second, it is evident from this record that the trial court, in the presence of counsel, sufficiently probed the matter of Juror No. 9’s health issues and their impact on his ability to deliberate. A trial court’s discretion in determining whether to discharge a juror encompasses the discretion to decide the specific procedures to use, including whether to conduct a hearing or detailed inquiry. (People v. Beeler (1995) 9 Cal.4th 953, 989.) In this regard, a trial court’s “self-directed inquiry, short of a formal hearing” sufficed where the court had observed that jurors were inattentive or sleeping. (People v. DeSantis (1992) 2 Cal.4th 1198, 1234.)
The self-directed inquiry employed by the trial court in this case was sufficiently in-depth to resolve the concerns raised. The court’s questioning revealed that after the first day of deliberations the juror indicated his blood pressure and pulse rate were elevated, and his wife, a retired physician, had to give him medication. During the interview, the juror pulled out a canister of nitroglycerine and clutched his chest several times. The juror told the court that he had a heart condition and had experienced chest pains twice during the day of deliberations. The nitroglycerine was the immediate remedy for the chest pain. The juror experienced some pain during the interview. The court concluded that the juror appeared genuine in his belief that he could not physically continue. The court found that the trial stress had overcome the juror to the point that he could not further deliberate, and thus the “demonstrable reality” test had been met. The trial court did not abuse its discretion in discharging Juror No. 9, or violate any rights of appellant.
Third, although Juror No. 9 expressed that he thought differently from the other jurors, the record is clear that the court dismissed him because his health condition was such that he could not continue the deliberative process. Our Supreme Court has elected not to adopt the standard developed in Brown and Symington that would foreclose dismissal of a juror whenever there was “ ‘any reasonable possibility’ ” that the impetus for dismissal stemmed from the juror’s views on the merits of the matter. (Cleveland, supra, 25 Cal.4th at p. 484.) Instead, the focus is on whether, with the necessary inquiry, “it appears as a ‘demonstrable reality’ that the juror is unable or unwilling to deliberate.” (Ibid.) We are required to follow Cleveland. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
3. Appellant’s Due Process and Confrontation Rights Were Not Violated Due to His Absence from the Inquiry Regarding Discharge of Juror No. 9
Appellant also maintains that he was prejudicially deprived of his federal due process right to be present during the inquiry into whether Juror No. 9 should be discharged. We disagree.
After the jury was excused to begin deliberations, appellant’s counsel indicated appellant wished to remain upstairs unless his presence was necessary. The court queried appellant if this were correct. Appellant replied, “Yes.” Counsel further clarified: “And for the purpose of answering questions from the jury or dealing with other issues other than a verdict, I did request permission to allow him to remain upstairs.” Again, the court asked appellant if this were acceptable; he said it was. The court also asked appellant personally if it was “agreeable to you that you remain upstairs until the verdict unless otherwise requested by counsel to be here?” He replied, “Yes, Your Honor.”
At the end of the first day of deliberations, the trial court called the jury in for an admonition. The court asked defense counsel if they waived their clients’ appearances. Counsel indicated that they did. After delivery of the admonition, Juror No. 9 initially raised his concern with the court.
The next morning, in the presence of defense attorneys and Juror No. 9, the court again asked if the attorneys waived their clients’ appearances. Again, both indicated they did.
Our Supreme Court has summarized the law pertaining to a defendant’s presence at trial as follows: “ ‘A criminal defendant’s right to be personally present at trial is guaranteed by the Sixth and Fourteenth Amendments of the federal Constitution, as well as by article I, section 15 of the California Constitution.... [Citations.] A defendant, however, “does not have a right to be present at every hearing held in the course of a trial.” [Citation.] A defendant’s presence is required if it “bears a reasonable and substantial relation to his full opportunity to defend against the charges.” [Citation.] The defendant must show that any violation of this right resulted in prejudice or violated the defendant’s right to a fair and impartial trial. [Citation.]’ ” (People v. Cleveland (2004) 32 Cal.4th 704, 741.)
The record shows that appellant waived his right to be present at further proceedings until the verdict was delivered, unless his counsel requested his presence. During the exchange with Juror No. 9, counsel did not object to appellant’s absence from the in-chambers conference-indeed, counsel waived his presence. Moreover, as counsel was present he was fully able to represent appellant’s interests. So, too, that counsel did not think defendants’ presence was necessary “strongly indicates” that his presence did not bear a substantial relation to his opportunity to defend against the charges. (People v. Cleveland, supra, 32 Cal.4th at p. 741.) Further, appellant did not object once he became aware that the procedure took place. Significantly, although appellant moved for a new trial, and argued that the court erred in excusing Juror No. 9, he said nothing about his absence from the interview. Finally, on appeal appellant makes no attempt to show why his presence was necessary or would have been helpful.
We take note that numerous cases have held that similar discussions do not constitute a critical stage of the proceeding constitutionally sealing appellant’s right to be present. As summarized and recounted in People v. Santos (2007) 147 Cal.App.4th 965, 973-974, a defendant’s due process rights are not violated by exclusion at a hearing in which the trial court determined the competency of child witnesses (citing Kentucky v. Stincer (1987) 482 U.S. 730, 745-747); nor is the rereading of testimony (citing People v. Avila (2006) 38 Cal.4th 491, 598) or a bench conference discussion concerning the exclusion of a spouse from the courtroom (citing People v. Perry (2006) 38 Cal.4th 302, 312), a critical stage of the proceeding; further, defendant has no federal constitutional right to view the crime scene (citing People v. Moon (2005) 37 Cal.4th 1, 20); so, too, defendant’s presence at jury screening discussions conducted by counsel would have served little purpose and defendant had no constitutional or statutory right to attend them (citing People v. Rogers (2006) 39 Cal.4th 826, 855-856).
In his reply brief appellant asserts, cursorily, for the first time, and without citation to authority or development of the argument, that defense counsel’s failure to request his presence constituted ineffective assistance of counsel. This argument is waived, but more to the point, based on the above discussion, defense counsel acted with competence.
III. DISPOSITION
The judgment is affirmed.
We concur: Ruvolo, P.J., Sepulveda, J.