Opinion
A152656
02-26-2020
THE PEOPLE, Plaintiff and Respondent, v. ADAM MICHAEL KENDALL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK-CRCR-16-87661)
A jury convicted defendant Adam Michael Kendall of attempted murder, and found true enhancement allegations that he personally used a deadly weapon and inflicted great bodily injury, whereupon the trial court sentenced him to state prison for terms prescribed by law. On appeal, defendant contends: (1) he was denied his constitutional right to the effective assistance of counsel because his attorney had a conflict of interest and failed to object to damaging evidence; (2) the trial court committed instructional error; and (3) an irregularity attending the return of the verdict denied his right to a unanimous verdict. We conclude there was instructional error and an omission in receiving the verdict prior to discharging the jury. We further conclude the errors were minor or technical, and in no way deprived defendant of a fair trial, and therefore affirm.
Defendant has also filed a habeas petition making this argument. We deny the habeas petition in a separate order filed concurrently with this opinion.
BACKGROUND
Much of the evidence was largely without dispute. There was a fight between defendant and the victim, Michael Monahan. The fight involved a hammer. Defendant hit Monahan with the hammer, and Monahan suffered substantial head injuries. However, there were significant differences in the versions told to the jury. In accordance with the requirement that the evidence be viewed most favorably to the prosecution and upholding the verdict (People v. Zamudio (2008) 43 Cal.4th 327, 357; People v. Hughes (2002) 27 Cal.4th 287, 357), the record shows the following:
Defendant and the victim had known each other for many years. They appear to have been partners in the wholesale marijuana business: defendant provided the financing, Monahan did the buying (in Mendocino) and shipping (to New Jersey). There were a few incidents of physical violence over women, but they were not serious, and did not prevent Kendall from periodically staying with Monahan. At one point they even shared an apartment.
The assault occurred on May 16, 2015. The trigger was $5,000 for the latest deal. Defendant provided the money, which an intermediary passed to Monahan. Monahan thought another partner took the money, but he knew defendant did not believe this.
Monahan's version was that the attack was completely unprovoked, that he was in his car, talking on his cell phone, when defendant suddenly began striking him, first with a fist, and then with a hammer, demanding "Where's the money?" There was no dispute that Monahan suffered multiple facial fractures and other injuries. Monahan denied he ever struck defendant.
Defendant's version was that the altercation began with him calling Monahan a name and Monahan responding with a kick. The fight moved to the garage, where Monahan reached for a hammer, but defendant got it first. Defendant did not deny hitting Monahan with the hammer, but claimed he acted in self-defense, and had no intent to kill Monahan.
Defendant testified he put the injured Monahan on a bench in front of the house. A witness observed defendant fleeing from the scene.
Monahan admitted on the stand that he had two felony convictions, one for assaulting a Fish and Game warden, the other for possessing a controlled substance while armed.
DISCUSSION
Conflict of Interest
Defendant frames the issue as follows (omitting record citations):
"Here there was an insidious, actual, conflict of interest. The operative facts are as follows:
"1. The principal prosecution witness was Michael Monahan, the alleged victim. He was the only person—other than Kendall—present for their confrontation. His testimony was critical for the prosecution. The prosecution dismissed the first charges against Kendall when the prosecutor could not bring Monahan to court for trial.
"2. At the time of Kendall's trial, Michael Monahan was represented by the Public Defender of Mendocino County, Linda Thompson. Ms. Thompson was in court when Monahan testified at trial, and she later testified she was the Public Defender.
"3. Significantly, Linda Thompson also testified for the prosecution and accused Kendall, from the witness stand, of intimidating her client [i.e., Monahan]. Kendall's defense attorney failed to ask her any questions and failed to object to Ms. Thompson's speculative claim that there was an attempt to intimidate Monahan, her client. Ms. Thompson's speculation would surely have been excluded on timely objection.
"4. Monahan was then 'under the thumb' of the prosecutor. In 2016, the year after the alleged 2015 assault in this case, Monahan committed two separate felony offenses: in January 2016, felony assault by means of force likely to cause great bodily injury on Game Warden Rose, and other offenses and in April 2016, possession of a firearm while in possession of a controlled substance. In September 2016, he pled no contest and was convicted of a felony violation of [Penal Code] section 245, subdivision (a) [felony assault on the warden], and possession of a firearm while in possession of drugs and committing that offense [Health and Safety Code § 11370.1] while on release/bail after being charged with the other felony offenses [(Penal Code) section 12022.1].
"5. At the time of his plea, the judge told Monahan he must continue to cooperate with the prosecutor in Kendall's prosecution. Indeed, cooperation with the prosecutor was an express condition of his plea agreement and reflected in [the] signed Plea Form
"6. In both cases [i.e., the subsequent felony charges], the trial court sentenced Monahan to prison: the court sentenced Monahan to five years in prison [on the assault charge] consecutive to a three-year prison term [on the firearm charge]. However, the court suspended execution of that prison sentence and placed Monahan on probation in both matters.
"7. Monahan's attorney in both cases was Linda Thompson. The prosecutor was the same man who prosecuted Kendall, David Eyster.
"8. Less than 8 months after he was sentenced in November 2016, Monahan was arrested for violating his probation. He was held in custody awaiting Kendall's trial. The Mendocino County Probation Department filed a Memorandum with the Court recommending that the court impose [sic] the state prison sentence in each case—the court had suspended a total of 8 years in prison on the two pending dockets.
"9. Just three days after the jury found Kendall guilty at this trial, Monahan appeared in court on the petition to violate his probation with Ms. Thompson as his attorney. The same prosecutor, Mr. Eyster, recommended Monahan not be sent to prison, be restored to probation and be given credit for time served. On Mr. Eyster's recommendation, the court released Monahan from custody
"10. Kendall was represented at trial by Douglas Rhoades, who was a deputy public defender in the Mendocino County Alternate Defender's Office (ADO). Ms. Thompson, the Public Defender, was responsible for the Alternate Defender's Office—as Mendocino County records, provide: the Alternate Defender operates 'under general direction of the Public Defender.' The Mendocino County Executive organizational chart confirms that the Alternate Defender reports to the Public Defender, and the Public Defender is directly involved in hiring the head of the ADO. Hence, the ADO is a part of the PD's office and the head of both is Ms. Thompson.
"Monahan was in a very dangerous position. He was on probation in two separate dockets, both for violent felonies. The Probation Department had petitioned to revoke [Monahan's] probation. He had already been sentenced to eight years in prison, with only execution of that sentence suspended. The Probation Department recommended the court sentence [sic] him to prison for eight years. Ms. Thompson was his attorney, and her job was to defend him as aggressively as possible to secure his release from custody and void imposition of an eight-year prison sentence. Plainly, the prosecutor would have the key, determining role in deciding if Monahan was sent to prison—the same prosecutor then prosecuting Kendall in this case.
"It was in Ms. Thompson's interest to portray Monahan, her client, as the victim of a vicious beating for which he bore no responsibility. The more 'bad' information about Monahan that came out at the trial would undermine her contention that her client is a victim, should be released and have his probation restored. The only person who could bring out facts that cast Monahan in a bad light and undermine his credibility would be Kendall's attorney, Mr. Rhoades. Mr. Rhoades ultimately worked for Ms. Thompson, who selected the head of Mr. Rhoades' Alternate Defender Office."
It is not entirely clear from this, and from defendant's lengthy ensuing argument, precisely what is the conflict. He concedes that Thompson was not his actual attorney, so she had no duty of loyalty to him, only to Monahan, her client in fact. Still, she, and the protection of her client, are at the center of defendant's arguments. After a careful reading of those arguments, we believe a fair characterization is that defendant's attorney, in defendant's phrase, "pulled his punches," not to best defend defendant, but to advance, or not hinder, the interests of the client of Ms. Thompson, his "boss['s] boss."
Before addressing the merits of defendant's contention, a little history is illuminative.
At the very first step of the prosecution, defendant's arraignment on the criminal complaint on April 20, 2017, the reporter's transcript commences with Mr. Rhoades stating: "my understanding is the public defender declared a conflict and could not accept appointment on this," which the court confirmed. Mr. Rhoades stated he was making "a special appearance for Mr. Kendall," who had retained "Mr. Geoffrey Dunham, an attorney out of Sonoma County." The matter was continued after bail was set.
On April 24, Mr. Dunham made a "special appearance" because "the family . . . should be able to retain me before week's end." Defendant's arraignment was continued to May 3.
On May 3, Mr. Dunham made a general appearance, and on defendant's behalf entered a plea of not guilty and denial of the enhancement allegations. The preliminary examination was set for May 17 "with a confirmation on the 10th."
On May 10, Mr. Dunham advised the court that "I'm requesting to be relieved. Mr. Kendall . . . [is] requesting . . . that the Alternate Defender be appointed. I don't believe that the Public Defender is eligible because I think the complaining witness here was represented by the Public Defender and may still be." After the court confirmed that "your client is not requesting to hire Counsel, your client's requesting appointed counsel," it relieved Mr. Dunham and "appoint[ed] the office of the Alternate" on condition that defendant "could be required to pay a $50 enrollment fee." Defendant was asked by the court whether "you accept appointed Counsel," to which defendant replied "Yes, Your Honor." Another confirmation was set for June 13.
On June 13, Mr. Rhoades advised the court that "Mr. Kendall was denied the appointment of counsel because he refused to sign the financial declaration." After a brief discussion, Mr. Rhoades told the court, "[h]e's willing to sign the document." Defendant was advised that "collections" would "interview Mr. Kendall to ensure that he qualifies for the appointment of counsel." The date of the preliminary examination was confirmed for May 27.
On May 27, there was some discussion as to whether "collections" contacted defendant and whether he had "again refused to sign the declaration," following which defendant waived his right to a preliminary hearing "after consulting with counsel [i.e., Mr. Rhoades]." Defendant's arraignment on the information was set for July 11.
Thereafter, the cause proceeded to trial and sentencing with no further reference to Mr. Rhoades's status or a conflict of interest vis-à-vis Ms. Thompson.
This court examined this issue in People v. Christian (1996) 41 Cal.App.4th 986 (Christian). Defendant mentions Christian in his brief, but dismisses it as "readily distinguishable." On the contrary, it is virtually dispositive.
Christian involved two co-defendants who were jointly charged with armed robbery. One defendant was represented by a Contra Costa County deputy public defender, the other by an attorney from the ADO. Jackson, the defendant represented by the ADO attorney, contended "because both offices are under the supervision of Public Defender Charles James, they are not separate entities for conflict of interest purposes, and the joint representation of Jackson and his codefendant denied Jackson the right to conflict-free and independent counsel." (Christian, supra, 41 Cal.App.4th at p. 989.) "[I]n light of the fact that Christian was represented by an attorney from the PD and Jackson was represented by an attorney from the ADO[,] the public defender in effect represented both codefendants. Jackson's basic argument is that Charles James's position as the administrative overseer of both the PD and the ADO creates a per se conflict of interest between attorneys in the two offices." (Id. at p. 991.)
This court rejected the contention. "[T]he record shows that the PD and the ADO not only claim to have an ethical separation, but that such a separation in fact exists. . . . [T]he Public Defender of Contra Costa County is nominally in charge of both offices, but [only] in a strictly administrative sense. He is not involved in any way in the day-to-day operation of the ADO. . . . [H]is role is limited to reviewing and acting upon the recommendations of the ADO supervising attorney. In addition, . . . attorneys from the two offices remain physically apart, have no access to each other's files, and adhere to a well-known policy of keeping all legal activities completely separate. There is no evidence that use of these 'ethical walls' have been ineffective in avoiding conflicts of interest between the PD and the ADO." (Christian, supra, 14 Cal.App.4th at pp. 998-999.)
"Furthermore, . . . the PD and the ADO do not constitute a single 'firm' in that they present themselves to the public as separate entities with separate offices, phone numbers, letterhead, pleading paper, and distinct business cards. The two offices likewise conduct themselves as separate firms. They keep separate confidential files, none of which are cross-accessible, and each office has its own support staff and keeps separate computers, as well as copying and facsimile machines. Importantly supervision of ADO attorneys is the responsibility of the ADO supervising attorney, not the public defender, and neither office consults with the other on general litigation strategy or the handling of individual cases. These rules are reflected in the public defender's policy statement, disseminated to all staff in the PD and ADO. In sum, the two offices are separate 'firms,' coinciding only for matters of administrative convenience and only at the top administrative level." (Christian, supra, 41 Cal.App.4th at p. 1000.)
We said that Christian was "virtually" dispositive. There are differences. We are not dealing with codefendants being tried together, but rather a defendant and a prosecution witness who was the defendant in an ongoing criminal case. Christian involved a deputy public defender, whereas in this case Monahan was represented by the actual public defender. Most importantly, in Christian we took judicial notice of a trial record where the precise relationship of the PD and the ADO were fully developed in the trial court. (Christian, supra, 41 Cal.App.4th at pp. 992, fn. 3, 993.) We have fewer resources here. Defendant relies on "Mendocino County records" on the county's website. So do the People, responding that "the Mendocino County Board of Supervisors is on record as stating that the two offices are separate and specifically disclaiming any such day-to-day overlap between the two offices." Nevertheless, we believe we have sufficient information to decide the issue. The nature of that information is largely inferential.
Defendant filed a request for judicial notice of those records on September 11, 2018, which was unopposed. We now grant that request.
The PD-ADO relationship considered in Christian was in place prior to our decision. Allowing for local variations, it is the norm in most counties in this appellate district. It clearly is the model for Mendocino County. It has been given partial codification by the Legislature. (See Pen. Code, § 987.2, subd. (e).) As such, it would be obviously familiar to the court and the attorneys in this case. We assume the same "ethical walls" and safeguards are in place. Tellingly, defendant makes no claim to the contrary. The trial court was fully alive to the possibility of a conflict between the interests of defendant and Monahan, yet it perceived no problem with having Ms. Thompson continue to represent Monahan while the ADO would represent defendant.
This last point is telling. "[W]hen a trial court knows . . . that defense counsel and the client may have a conflict of interest, it must inquire into the matter." (People v. Seaton (2001) 26 Cal.4th 598, 642.) Here, the trial court knew of the conflict between defendant and the public defender, yet it made no inquiry. The only possible explanation for this omission is that the court had no ethical qualms about appointing ADO Rhoades to represent defendant.
Defendant tells us "This case is most unusual" in that "the star prosecution witness" and he "were represented at the same time by two related Public Defender Offices." We cannot believe it is a rarity in the Mendocino criminal courts for one indigent person in a prosecution to testify against another indigent person in a different prosecution. It is inconceivable that the Mendocino Superior Court does not have a system in place to avoid a conflict of interest in providing defense attorneys to both.
In Christian, we determined that " 'Speculative contentions of conflict of interest' " were insufficient to secure reversal. (Christian, supra, 41 Cal.App.4th at pp. 1001-1002; see also People v. Doolin (2009) 45 Cal.4th 390, 417 ["In the context of a conflict of interest claim, deficient performance is [not] demonstrated by . . . 'a mere theoretical division of loyalties' "].) Defendant's speculation that Mr. Rhoades's professional obligations were constrained by the desire not to offend his "boss's boss" is equally unavailing. This is especially so since one of the documents on which defendant relies indicates that the ADO, not the public defender, has supervisory responsibility over the attorneys and staff in the ADO.
The Mendocino County Government Class Specification attached to defendant's request for judicial notice states that Alternate Defender "is responsible for the overall day-to-day administration and management of all functions within the [ADO]," including hiring, training, assigning and directing work, supervising, appraising performance and rewarding and disciplining employees of the ADO. The only specific duty listed that pertains to the Public Defender is to "Advise Public Defender regarding staffing and resource needs of the division; work within the confines of budget decisions of the Public Defender."
In short, Mr. Rhoades could have made the reasonable tactical decision not to challenge the appointments of counsel because a conflict of interest claim would not succeed.
Ineffective Assistance of Counsel
In the course of his argument, defendant advances several instances of acts or missions as evidencing ineffective assistance by Mr. Rhoades.
Legal Principles
" 'The law governing defendant's claim is settled. "A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. [Citations.] 'Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance.' " [Citations.] It is defendant's burden to demonstrate the inadequacy of trial counsel. [Citation.] We have summarized defendant's burden as follows: " 'In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because his "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." [Citations.] Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." ' " [Citation.] [¶] Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." [Citation.] Defendant's burden is difficult to carry on direct appeal, as we have observed: " 'Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission.' " [Citation.]' [Citation.] If the record on appeal ' " 'sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' the claim on appeal must be rejected," ' and the "claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding.' " (People v. Vines (2011) 51 Cal.4th 830, 875-876.)
" ' "[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance." ' " (People v. Arredondo (2019) 8 Cal.5th 694, 711, quoting People v. Salcido (2008) 44 Cal.4th 93, 172.)
We now turn to the specific instances of acts or missions defendant contends evidence ineffective assistance by Mr. Rhoades.
Failure to Object
Defendant's brief has several instances where he faults Mr. Rhoades for failing to object to testimony by prosecution witnesses.
(1)
Defendant argues, "Astonishingly, Mr. Rhoades never asked a single question of Monahan about his prior convictions" or "why he was then in custody," that is, "Monahan was on felony probation when he testified." Nothing astonishing about it.
The trial court granted defendant's motion to impeach Monahan's credibility with his two 2016 convictions, but it made clear that this authorized only "the fact" of the convictions. "It has long been the rule that ' "[t]he scope of inquiry when a criminal defendant is impeached with evidence of a prior felony conviction does not extend to the facts of the underlying offense." [Citation.]' [Citation.] 'Evidence of prior convictions offered for this purpose is restricted to the name or type of crime and the date and place of conviction. [Citations.]' " (People v. Gutierrez (2018) 28 Cal.App.5th 85, 88-89.) Mr. Rhoades was not incompetent because he respected the court's ruling.
Concerning Monahan, the prosecutor in his opening statement told the jury, "what he'll tell [is] that he's in jail right now. You're going to see him. He'll be in probably green and white stripes." "[H]e's a convicted felon. You'll hear—he'll tell you that he's been convicted of assault on a Fish and Game warden. He's also been convicted of possessing methamphetamine with a loaded weapon. Both of those out of this county; both of those in 2016, after the incident we're talking about." Monahan commenced his testimony by telling the jury he was wearing "a green and white outfit" because "I was moved out to the Lake County Jail about a month ago." He admitted to the convictions for assault on a game warden and felony possession of methamphetamine with a loaded firearm and that the prosecutor involved in this case was the one who prosecuted him for those crimes.
The jury thus was aware that Monahan had committed subsequent crimes involving violence, drugs and guns and was currently incarcerated, from which it would be obvious that his difficulties with the law were ongoing. For present purposes, we accept that Mr. Rhoades could have questioned Monahan about his current probationary status as evidencing bias or a motive to lie. (E.g., Evid. Code, § 210; People v. Coyer (1983) 142 Cal.App.3d 839, 843.) However, Monahan testified on direct examination that no "promises" or "guarantees" had been made by the prosecution. He had already testified to being involved in large-scale purchases of marijuana for illegal purposes and to being a long-time heroin addict. The jury also knew that Ms. Thompson was in the audience, presumably to protect his interests while he testified. Mr. Rhoades had previously told the court, "I don't want to be hearing any . . . invocations of . . . privilege or something."
In short, the jury was already aware that Monahan was a deeply compromised individual. Mr. Rhoades could make a rational tactical decision that Monahan's credibility had been more than sufficiently impeached without running the risk that his probationary status might open up distracting or damaging collateral issues.
(2)
As already quoted, defendant argues that Ms. Thompson "testified for the prosecution and accused Kendall from the witness stand of intimidating her client. Kendall's defense attorney failed to ask her any questions, and failed to object to Ms. Thompson's speculative claim that there was an attempt to intimidate Monahan, her client. Ms. Thompson's speculation would surely have been excluded on timely objection."
Monahan testified that, while in the Sonoma County Jail, an inmate passed him a note asking him (Monahan) to write a letter to the prosecution stating that it was not defendant who attacked him. Monahan gave the note to his attorney, Ms. Thompson. Shortly thereafter, Monahan was moved to the Lake County Jail.
Ms. Thompson testified that Monahan "is still my client." The note (which was received in evidence) had the words "Mike is a sneaky rat" written on the back. When asked "what that means?," she answered, based on her 33 years as a public defender, "It means that someone is trying to paint Mr. Monahan as a snitch, which would endanger my client's life both in and out of the facility." Moreover, "I was very concerned that someone through this writing was trying to intimidate Mr. Monahan or have him be concerned for his well-being in the county jail because I knew that my client was either in the same module or close to where Mr. Kendall was . . . ."
Ms. Thompson was asked, "So you received this and you make a professional decision on what to do?" She answered, "I did. And initially—after many years I don't always turn these kind of things over [to the prosecution], but it took me no time at all to decide to turn it over, and I let you know that, number one, I was concerned about Mr. Monahan's well-being and I wanted him safe and, number two, I wanted you to see both sides of this document to show that somebody was getting to him . . . ."
Ms. Thompson's testimony occupies less than six pages of the reporter's transcript. Mr. Rhoades made no cross-examination.
Defendant overstates the testimony in asserting that Ms. Thompson "accused" him of being the author of the note. Ms. Thompson was scrupulous in not identifying the note's source ("someone was asking" "this appeared to be someone—and I couldn't say who" "I was very concerned that someone through this writing" "someone is trying to paint Mr. Monahan as a snitch"). True, her testimony that she was concerned that Monahan was close to where Mr. Kendall was implied a concern that defendant could be the author, but she made clear she did not know that was the case. In effect, Ms. Thompson was doing no more than laying a foundation for the document, explaining its chain of custody and laying a foundation for why Monahan ended up in the Lake County Jail. Moreover, as the People note, Mr. Rhoades "was also well aware that Classification Unit Sergeant Michael Grant was scheduled to testify concerning the security risk for a person being labeled a snitch, both at the jail and outside the correctional facility." Moreover, the jury had already heard that defendant was in the habit of making threats, or attempts to intimidate, to Monahan and his family.
In light of these circumstances, Mr. Rhoades could have made a rational tactical decision not to object, and to let well enough alone.
(3)
Defendant's cellphone was seized when he was arrested. One of the officers at the arrest testified that the phone had some text messages made by defendant and Monahan "that indicated why this assault had occurred and that there was some prior threats that an assault was going to occur." The entirety of the phone's contents were later searched pursuant to a warrant. District Attorney investigator Bryan Arrington analyzed the more than 8,000 text messages recovered.
Defendant contends Mr. Rhoades was constitutionally derelict. He concedes he "does not allege on this appeal that the text messages were irrelevant or inadmissible." What he finds objectionable is that "[o]ver and over again, . . . on almost every page of his 70 pages of testimony, Arrington summarized the contents of a text message and/or opined for the jury that the text was sent or received by Kendall and that the other participant in the text message was Monahan [or someone else]. However reasonable Arrington's speculation, his testimony was inadmissible speculation. He had no business testifying to facts he could not know. But he did so over and over again."
The People cogently demonstrate why defendant's contention must fail. Omitting citations to the record, we adopt it as our own:
"At trial, Arrington testified that he . . . prepared a 12-page package of extracted texts made during the time period prior to the assault." "The logs of the text messages extracted from appellant's phone pursuant to a search warrant were admitted at trial. The identity of any text message author or receiver was generated by the names in the phone's directory associated with phone number sending or receiving the text. During Arrington's testimony, copies of the 12 pages of text logs were distributed to the jury to enable it to follow along the examination. Although Arrington reiterated and/or described the content of those text message exchanges between persons, his testimony was entirely based on the records before him and the jurors. In other words, at no point did Arrington opine or speculate as to a text author or receiver's identity, his testimony simply reflected what was in the record before the jury.
"Assuming arguendo any of Arrington's testimony was objectionable as improper opinion, or speculation, counsel could well have concluded to forgo an objection knowing that the jury had before it the record log of text messages. In other words, objecting on this basis would not preclude the jury from learning the substance of the texts or the identity of the authors as recorded in those logs. Counsel also could have well anticipated . . . that appellant would testify and admit authorship of the phone and authorship of the text messages, which he did.
". . . [T]he jury had the messages before them for consideration, appellant admitted authorship of the texts, and Monahan [had already] testified as to his text communications with appellant prior to appellant's appearance and deadly assault. In other words, the text messages were both authenticated by multiple sources and were not the only source of appellant's activities and intent before the assault."
We add only two comments. First, defendant acknowledges that Arrington's 12-page log "show[ed] the date and time of the text message, the phone number which sent the text, the phone number to which the text [was] sent, and the message." In short, the jury was going to learn that defendant had made a number of threatening comments to Monahan, who had already testified that defendant was in the habit of making threats. In these circumstances, Mr. Rhoades could make a rational tactical decision not to interpose a number of objections that might only irritate the jury by forcing Arrington (or Monahan) to laboriously establish the provenance of each text, one by one. Second, Arrington testified as an expert, and was thus allowed to express opinion within his area of expertise. (Evid. Code, § 801, subd. (b); People v. Veamatahau (2018) 24 Cal.App.5th 68, 74 [an expert may give an opinion about what case-specific facts mean].)
Instructional Error
Prior to the start of closing arguments, the trial court instructed the jury with a modified version of CALCRIM No. 3516 as follows:
"The defendant is charged in Count One with attempted murder. There is also in the law an uncharged lesser crime of attempted voluntary manslaughter. These are alternative charges that are dependent on your findings of fact [regarding defendant's claim that he acted in self-defense].
"If you find the defendant guilty of attempted murder, you should not return any verdict on the lesser crime of attempted voluntary manslaughter. However, you may find the defendant guilty of attempted voluntary manslaughter only if you first find the defendant not guilty of attempted murder. You cannot find the defendant guilty of both attempted murder and attempted voluntary manslaughter." (Italics added.)
The gist of the instruction was reiterated just prior to the jury commencing deliberations, during the course of which the court told the jury: "If you should find the defendant not guilty of attempted murder in Count 1, then you go forward to consider the issue of attempted voluntary manslaughter." (Italics added.)
Although defendant frames his contention as "[t]he trial court interfered with the jury's deliberations mandating reversal," the substance of his claim is instructional error, and we analyze it as such.
Defendant contends the language we have italicized "told the jurors to not even 'consider' the elements or issues related to attempted voluntary manslaughter, including all instructions on circumstances that would negate malice, such as heat of passion, unless they had acquitted Kendall of attempted murder." As defendant sees it, "By so instructing the jurors, the jurors would understand themselves barred from considering heat of passion, provocation and imperfect self-defense . . . ." Defendant views the instruction(s) as coercive, contrary to the holding of People v. Kurtzman (1988) 46 Cal.3d 322 (Kurtzman) that the jury can consider the degrees of homicide in any order it chooses, and violative of due process. We agree that the italicized language should not have been used, but conclude it was not prejudicial.
Claims of instructional error are viewed de novo. (People v. Mitchell (2019) 7 Cal.5th 561, 579; People v. Manriquez (2005) 37 Cal.4th 547, 581, 584, 587.) "As we said in People v. Castillo (1997) 16 Cal.4th, 1009, 1016, ' "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." ' (. . . People v. Burgener (1986) 41 Cal.3d 505, 538 [' "The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole" ']; see also People v. Chavez (1985) 39 Cal.3d 823, 830 ['[W]e must look to the entire charge, rather than merely one part, to determine whether error occurred']; People v. Noguera (1992) 4 Cal.4th 599, 630-631." (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.)
Moreover, "not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is ' "whether the ailing instruction . . . so infected the entire trial that the resulting conviction violates due process." ' [Citations.] ' "[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." ' [Citations.] If the charge as a whole is ambiguous, the question is whether there is a ' "reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.' " (Middleton v. McNeil (2004) 541 U.S. 433, 437; accord, People v. Huggins (2006) 38 Cal.4th 175, 192.)
The bottom line is that the reviewing court determines whether it is reasonably likely the jury misconstrued the instructions as precluding it from considering an issue or category of evidence. (People v. Covarrubias (2016) 1 Cal.5th 838, 897; People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1223; People v. Johnson (2016) 243 Cal.App.4th 1247, 1289.)
In Kurtzman, our Supreme Court held that, under its prior decision in Stone v. Superior Court (1982) 31 Cal.3d 503, a trial court may "restrict[] a jury from returning a verdict on a lesser included offense before acquitting on a greater offense," but may not "preclude [it] from considering lesser offenses during its deliberations." (Kurtzman, supra, 46 Cal.3d at pp. 324-325.) The language used by the trial court cannot be squared with this principle, a violation of which is state error. (People v. Berryman (1993) 6 Cal.4th 1048, 1077, fn. 7 (Berryman); Kurtzman, supra, at p. 335.)
The jury was instructed (1) with CALCRIM No. 6034 that "The People have the burden of proving beyond a reasonable doubt that the defendant attempted to kill someone and was not acting as a result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of attempted murder" (2) with CALCRIM No. 604 that "If you conclude the defendant acted in complete self-defense, his action was lawful and you must find him not guilty of any crime" and (3) with CALCRIM No. 3470 that "Self-defense is a defense to attempted murder and the lesser crime. The defendant is not guilty of either crime if he used force against the other person in lawful self-defense," that "The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant not guilty of attempted murder," and that "The People have the burden of proving beyond a reasonable doubt that defendant did not act in lawful self-defense. If the People have not met this burden, you must find the defendant not guilty of both the attempted murder and the lesser crime."
We presume jurors are intelligent people who are capable of understanding and correlating all of the instructions they are given. (People v. Sattiewhite (2014) 59 Cal.4th 446, 475; People v. Hajek and Vo, supra, 58 Cal.4th at p. 1246.)
The People argue we need not reach the merits because defendant was given an opportunity to object to the instructions and failed to do so. However, failure to object to an erroneous instruction does not forfeit a challenge to an instruction that affected the defendant's substantial rights. (People v. Gonzales (2012) 54 Cal.4th 1234, 1278; People v. Young (2005) 34 Cal.4th 1149, 1211.)
The court made the italicized statements as part of a brief aside about the verdict forms, after it had read the full instructions on attempted murder and attempted voluntary manslaughter, including perfect and imperfect self-defense and heat of passion. The challenged language did not state the jury could not consider the lesser included offense, or any evidence relevant to the factors that could reduce the charged offense of attempted murder to the lesser included offense of attempted voluntary manslaughter. The obvious import of CALCRIM Nos. 603, 604, and the two versions of 3470, quoted above, instructed the jurors that they could not convict defendant of attempted murder unless the prosecution proved beyond a reasonable doubt that he did not attempt to kill as the result of perfect or imperfect self-defense or in the heat of passion. Thus, there is no reasonable likelihood the jury considered in isolation whether defendant attempted to kill Monahan without considering the issues that would justify a verdict of attempted voluntary manslaughter.
People v. Olivas (2016) 248 Cal.App.4th 758, cited by defendant, is distinguishable because there, a question from the jury during deliberations whether they could consider an alternative charge if they were "hung" on the other alternative, they were expressly told they could not. (Id. at p. 769.) That factor in aggravation is absent here.
Finally, we note that our Supreme Court has observed that the impact of Kurtzman error is deeply ambiguous: "an acquittal-first instruction appears capable of either helping or harming either the People or the defendant. In any given case, however, it will likely be a matter of pure conjecture whether the instruction had any effect, whom it affected, and what the effect was." (Berryman, supra, 6 Cal.4th at p. 1077, fn. 7.)
In light of the foregoing, we conclude that while use of the italicized language was unfortunate, it was not prejudicial because it is not reasonably probable that a more favorable verdict would have been returned in the absence of the error. (Cal. Const., art. VI, § 13; Berryman, supra, 6 Cal.4th at p. 1077, fn. 7; Kurtzman, supra, 46 Cal.3d at p. 335.)
The Verdict
After the jury began deliberating, the court was made aware that defendant had been recorded making a statement that correctional officers regarded as menacing, and they asked the court to authorize fitting defendant with a "stun belt" (actually a concealable vest). The court authorized this precaution, and then adjourned for the day. Defendant does not challenge the validity of that decision.
The following day, the court was advised that defendant (who was present in handcuffs and a "leg brace") refused to wear the device in court. After Mr. Rhoades stated, "I think that if [defendant's] behavior does not conform to the security requirements, particularly that the court has already ordered and he refuses that, that he has voluntarily absented himself from the proceedings," discussion turned to defendant waiving his presence when the verdict was returned, in conformity with Penal Code section 977 (section 977). The following then occurred:
"THE COURT: . . . I think the defendant can waive his right to be present when the jury comes back with a verdict. Why don't we see if he just wants to make a 977 waiver.
"MR. EYSTER: Yes, Sir.
"THE COURT: Do we have a 977 form available here?
"MR. RHOADES: I think we do, Judge.
"(Brief pause in proceedings.)
"THE COURT: We're reconvening in the matter of People versus Kendall.
"Mr. Kendall's present with his attorney, Mr. Rhoades. Mr. Eyster for the People.
"We're reconvening outside the presence of the jury.
"Court's been informed that Mr. Kendall refused to put on the vest that I ordered yesterday. [¶] . . . [¶]
" . . . If the defendant wants to sign a 977 waiver of being personally present when the jury returns its verdict, I'll let him do that and I won't need to go into the vest issue [i.e., making a formal record of the necessity for it]. If he does want to appear in court, I ordered that he be outfitted with the vest. So that's kind of his choice.
"MR. RHOADES: All right. Let me ask this question, anticipating a question that if he [defendant] voluntarily signs a 977 waiver for the verdict return from the court, once the jury has been discharged, may he then return to the court shackles?
"THE COURT: Yes.
"MR. RHOADES: Let me just discuss that with him.
"THE COURT: Sure.
"(Counsel and Defendant confer)
"MR. RHOADES: Again, Mr. Kendall, I've advised you that you have a right to be present at virtually all proceedings of the court.
"Do you understand that?
"THE DEFENDANT: Yeah. This isn't saying I can't go to all the proceedings.
"MR. RHOADES: No, no. What we're proposing here, you're voluntarily saying I do not wish to be present when the jury returns with a verdict.
"THE DEFENDANT: Yes, that's fine.
"MR. RHOADES: You understand that?
"THE DEFENDANT: Yes.
"MR. RHOADES: You understand you're giving up that right?
"THE DEFENDANT: Yes.
"MR. RHOADES: He has executed the 977 waiver, Judge, as have I.
The form, entitled "WAIVER OF DEFENDANT'S PERSONAL PRESENCE (Penal Code Section 977)," reads: "The undersigned defendant, having been advised of his right to be present at all stages of the proceedings, including but not limited to presentation of arguments on questions of law, and to be confronted by and cross-examine witnesses, hereby waives the right to be present at the hearing of any motion or other proceeding in this cause[, when a motion to set aside the indictment or information pursuant to the provisions of Penal Code, Section 995 and following is heard, when a motion for reduction of bail or for a personal recognizance release is heard, when a motion to reduce sentence is heard, and when questions of law are presented to or considered by the court]. The undersigned defendant hereby requests the court to proceed during every absence of his which the court may permit pursuant to this waiver, and hereby agrees that his interest will be deemed represented at all times by the presence of his attorney the same as if the defendant himself were personally present in court, and further agrees that notice to his attorney that his presence in court on a particular date at a particular time is required will be deemed notice to him of the requirement of his appearance at said time and place." Apart from the bracketed material, the language is taken from subdivision (b)(2) of the statute.
"THE COURT: Show Mr. Eyster first.
"MR. RHOADES: And I'll just hand this to the court.
"THE COURT: Appreciate that.
"So, Mr. Kendall, you understand and give up the right to be personally present when the jury comes back with whatever its verdict is or any questions that have?
"THE DEFENDANT: I'll do what I have to do. I did what I had to do, I signed the papers.
"THE COURT: Okay. I am going to allow the defendant, then, to not be present when the jury comes back, either with a verdict, or questions."
Within a matter of minutes, the jury returned to the courtroom, and the following occurred:
"THE COURT: Welcome back, ladies and gentlemen.
"We're reconvening in the matter of People versus Kendall. Both counsel are present. Mr. Rhoades for Mr. Kendall and Mr. Eyster for the prosecution.
"Mr. Kendall waived his appearance for this purpose and signed a written waiver of appearance.
"[Addressing the foreperson]: Has the jury reached a verdict?
"[FOREPERSON]: Yes.
"THE COURT: Could you—you're the foreperson?
"[FOREPERSON]: Yes.
"THE COURT: Could you hand the verdict to the bailiff, please.
"So the verdict is proper in form. I'm going to ask the . . . court clerk, as is our practice, to read it. I'm going to ask the court reporter to take it down.
"Go ahead.
"[Verdict read.]
"THE COURT: Ladies and gentlemen of the jury, are these your verdicts?
"Does either side wish the jury polled?
"MR. EYSTER: No.
"MR. RHOADES: No.
"THE COURT: Then, ladies and gentlemen, this concludes your jury service. [¶] . . . [¶]
"[T]he clerk should enter the verdicts on the record." Defendant was present when a date was set for sentencing, and at the sentencing itself. He waived his right to be present at the victim restitution hearing.
Defendant contends he "was denied his federal and California constitutional right to trial by jury" because the trial court "failed to insure the integrity of [his] right to a unanimous jury verdict." It is not easy to detect the precise focus of the ensuing discursive argument.
If defendant is challenging his absence when the verdict was returned, he cannot prevail.
" ' "A criminal defendant's right to be personally present at trial is guaranteed by the Sixth and Fourteenth Amendments of the federal 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.]' [Citations.] The same analysis applies under article I, section 15 of the California Constitution. [Citations.] 'The standard under section[] 977 . . . is similar. " '[T]he accused is not entitled to be personally present during proceedings which bear no reasonable, substantial relation to his opportunity to defend the charges against him . . . . [Citation.]' [Citation.]" ' " (People v. Virgil (2011) 51 Cal.4th 1210, 1234.) The court has also stated the defendant must demonstrate how his presence would have contributed to the " 'fairness of the proceeding' " (People v. Kelly (2007) 42 Cal.4th 763, 781-782), or why it is reasonably probable a more favorable result would have occurred if he had been present. (People v. Bell (2019) 7 Cal.5th 70, 116.)
Defendant's momentary absence before the jury returned cannot justify reversal under these standards. It did not affect his full opportunity to defend against the charge because that defense, in terms of evidence and closing argument, had already occurred. He makes no attempt to demonstrate why his brief non-appearance when the jury returned its verdict compromised his right to a fair and impartial trial, or why his presence would make it reasonably probable that a more lenient verdict would have been returned.
Moreover, defendant's absence was the result of his own volitional choice. A defendant's voluntary absence does not suspend the power of the court to proceed with a non-capital criminal trial. (E.g., People v. Gutierrez (2003) 29 Cal.4th 1196, 1203-1204; cf. Taylor v. United States (1973) 414 U.S. 17, 19 [accused's voluntary absence " 'does not nullify what has been done or prevent the completion of the trial' "]; id. at p. 20 ["Petitioner had no right to interrupt the trial by his voluntary absence," " 'there can be no doubt whatever that the government prerogative to proceed with a trial may not be defeated by conduct of the accused that prevents the trial from going forward' "].) The judicial clock is not stopped for the defendant who is disruptive (Illinois v. Allen (1970) 397 U.S. 337) or who flees the jurisdiction (Taylor, at p. 19; People v. Concepcion (2008) 45 Cal.4th 77). In such circumstances, there is no question of waiver in the sense of an informed and intelligent choice by the defendant, and section 977 has no operation.
However, for the usual situation, section 977 governs. Courts routinely accept a defendant waiving the right to be present at trial, so long as that waiver is " 'voluntary, knowing and intelligent.' " (E.g., People v. Mendoza (2016) 62 Cal.4th 856, 898-899; People v. Davis (2005) 36 Cal.4th 510, 531.) "[A]n irregularity in the procedure by which the waiver is executed is not grounds for reversal of the judgment in the absence of a showing both that the irregularity affected the voluntary and intelligent nature of the waiver, and that the defendant suffered prejudice as a result of his absence from those [proceedings] from which he had absented himself." (People v. Visciotti (1992) 2 Cal.4th 1, 49-50.) Our discussion concerning why defendant's constitutional right to be present was not prejudicially impaired is equally applicable here.
Pointing to various statutes regulating return of a criminal verdict (Pen. Code, §§ 1147-1149, 1163-1164), with particular emphasis on Penal Code section 1149, defendant asserts they "secure [] the constitutional right to trial by jury and the right to a unanimous jury." Moreover, because these procedures have been codified, he argues (citing Hicks v. Oklahoma (1980) 447 U.S. 343), the federal constitutional right of due process attaches to compliance with them.
"When the jury appear they must be asked by the Court, or Clerk, whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required declare the same."
Defendant continues: "Here, the jurors returned a written verdict form. However, when the court asked the jurors—and he did not ask just the foreperson but all the 'jurors'—none of the jurors affirmed the guilty verdict was their verdict. Kendall was not in the courtroom and not aware this occurred . . . nor had he consented to be absent for these procedures."
"Here, neither the court nor defense counsel advised Kendall that if he waived his appearance, he would not be waiving only his right to be in the courtroom when the jury handed its written verdict to the court . . . . He was told he was giving up his right to be 'present when the jury returns a verdict,' and to be present if the jury had questions. . . . The court did not tell him he would be absent when the jury had to affirm orally its verdict and to have the jury polled if the verdict, in whole or in part, was adverse to Kendall. He cannot be held to have waived his constitutional right to be present if he did not know a waiver included proceedings beyond those described to him."
Hence, "The trial court's failure to follow the procedures . . . , and the denial of Kendall's personal presence at proceedings related to the verdict, denied Kendall his right to a unanimous jury verdict." "[T]he errors here also denied Kendall his rights under the United States Constitution to due process and a jury trial."
Initially, we note that the issue could be treated as not properly preserved for review. Our Supreme Court has held that "A party that eschews the opportunity has no cause to complain that the court failed to test the verdict's accuracy by requiring public affirmation. Accordingly, a defendant who does not object to the trial court's failure to comply with [Penal Code] section 1149 forfeits the argument that the trial court erred." (People v. Anzalone (2013) 56 Cal.4th 545, 551.) Mr. Rhoades did not object before the jury was discharged. However, to forestall yet another claim of ineffective assistance, we will address the merits.
With respect to a far more comprehensive right, our Supreme Court has "persistently declined to mandate any specific admonitions describing aspects of the jury trial right." (People v. Daniels (2017) 3 Cal.5th 961, 992 (lead opn. of Cuéllar, J.).) Yet that is precisely what defendant is arguing here, that no waiver would be informed and voluntary unless every statutory aspect of a verdict return was spelled out in advance. We decline to impose such an onerous requirement.
We have reproduced virtually the entire reporter's transcript on this point to substantiate our conclusion that "the record makes clear that defendant voluntarily waived his right to be present" (People v. Huggins, supra, 38 Cal.4th at p. 203) and that his waiver was an informed one.
We feel obliged to note that defendant's reliance on Hicks v. Oklahoma, supra, 447 U.S. 343, is misplaced. That decision did not, as defendant argues, extend federal due process protection to every state procedural statute. Hicks was sentenced to 40 years imprisonment under a recidivist statute subsequently declared unconstitutional. Speaking for the majority, Justice Stewart wrote:
"By statute in Oklahoma, a convicted defendant is entitled to have his punishment fixed by the jury. [Citation.] Had the members of the jury been correctly instructed in this case, they could have imposed any sentence of 'not less than ten . . . years.' [Citation.] . . . .
"It is argued that all that is involved in this case is the denial of a procedural right of exclusively state concern. Where, however, a State has provided for the imposition of criminal punishment in the discretion of the trial jury, it is not correct to say that the defendant's interest in the exercise of that discretion is merely a matter of state procedure. The defendant in such a case has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion [citation], and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State. [Citations.] In this case Oklahoma denied the petitioner the jury sentence to which he was entitled under state law . . . .
" . . . The State concedes that the petitioner had a statutory right to have a jury fix his punishment in the first instance, and this is the right that was denied. Moreover, it is a right that substantially affects the punishment imposed. . . . In consequence, it appears that the right to have a jury fix the sentence in the first instance is determinative, at least as a practical matter, of the maximum sentence that a sentence will receive." (Hicks v. Oklahoma, supra, 447 U.S. at pp. 345-347.)
In this day of Apprendi v. New Jersey (2000) 530 U.S. 466, it requires no elaboration to understand that the right to have the jury determine the predicate facts for punishment, and punishment itself if allowed by statute, stands on a qualitatively different plain from the formalities of returning a verdict.
This is not to deny that a unanimous verdict is an aspect of the right to trial by jury in California. (People v. Collins (1976) 17 Cal.3d 687, 692-693.) When the trial court asked, "Ladies and gentlemen of the jury, are these your verdicts?," and when neither side requested that the jury be polled, we can only assume that in the interim the jurors nodded their heads or gave other unarticulated indications of assent (which would certainly explain Mr. Rhoades's silence). After hearing the verdict read aloud, no juror gave any indication they dissented. This is sufficient. (See Pen. Code, § 1164, subd. (a) ["if no disagreement is expressed, the verdict is complete"]; People v. Masajo (1996) 41 Cal.App.4th 1335, 1340 ["the trial court's failure to ask each juror if the verdict was his or hers" not required "when the record is completely devoid of any indication that the verdict was not unanimous"].)
Our Supreme Court has held that this precise type of omission is not structural error, but ordinary state trial error, requiring reversal only if it is reasonably probable that a different result would occur had the error not occurred. (People v. Anzalone, supra, 56 Cal.4th at pp. 552-557, 560 ["noncompliance with section 1149 is procedural error, subject to harmless error review. (People v. Watson [(1956) 46 Cal.2d 818, 836]"].) In fact, the court likened it to a "technical violation[] of the statutory requirements for receiving jury verdicts." (Id. at p. 556.) Does the absence of the word "Yes" from the foreperson in response to the trial court's inquiry "are these your verdicts?" establish a reasonable probability that a different verdict would have been returned? The question answers itself.
The court also discussed People v. Traugott (2010) 184 Cal.App.4th 492—upon which defendant places considerable reliance—which it called "readily distinguishable from our case" (People v. Anzalone, supra, 56 Cal.4th at p. 560), and thus, from the one here. --------
DISPOSITION
The judgment of conviction is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.