Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County No. LA045822, Susan M. Speer, Judge. Judgment affirmed in part, reversed in part and modified as to Defendant Richard Lara.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant Richard Lara.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Diaz.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
A jury convicted Richard Lara and Anthony Diaz of first degree murder, attempted murder and conspiracy to commit murder. The jury found true the allegation that the defendants committed the murder by means of lying in wait. The jury also convicted Lara of shooting at an inhabited dwelling and making criminal threats. We reverse the judgment as to Diaz because the evidence is insufficient to convict him of murder, attempted murder and conspiracy. As to Lara, we reverse for insufficient evidence of the special circumstance finding that he committed the murder by means of lying in wait and the verdict that he shot at an inhabited dwelling. In all other respects we affirm the judgment as to Lara.
FACTS AND PROCEEDINGS BELOW
A. Evidence Pertaining to the Murder and Attempted Murder
In April 2004, Richard Ybarra and Cesar Cabrera, were shot in the parking lot of a market. Ybarra died. Cabrera survived. We state the facts briefly for background purposes and discuss further details as relevant in resolving the issues on appeal.
Ybarra and Cabrera, members of a tagging crew called UK, entered the El Super market in North Hollywood where Jessie Heredia, who worked at the market, saw them. Heredia had friends in a rival tagging crew, UE. Heredia followed Ybarra and Cabrera as they walked around the store. After watching the two men for approximately 10 minutes, Heredia borrowed a cell phone from Carlos Chavez, a coworker, and called defendant Lara’s brother, Eric. A few minutes later Heredia made a call to the home of Eric’s girlfriend.
Ybarra and Cabrera left the market at approximately 8:35 in the evening. As they walked toward their car in the parking lot they were confronted by Lara, a member of the UE tagging crew. Lara engaged Ybarra and Cabrera in an angry conversation. Lara punched Cabrera knocking him to the ground. Lara then pulled a gun from his waist and shot Ybarra and Cabrera. At that point a second man, whom the prosecution claimed was defendant Diaz, ran out from between some cars in the parking lot and shot both Ybarra and Cabrera as they lay on the ground. Lara and the second shooter then sprinted across the street and escaped.
After the shooting, Heredia told Chavez that he had borrowed Chavez’s cell phone because he saw “a couple of guys that his friends had problems with” and he wanted to “call his friends . . . to handle it.” He also told Chavez “not to say anything.”
Cabrera picked Lara from a photographic lineup as one of the persons who shot him.
Santiago Sencion also witnessed the shooting. He selected Diaz from a photographic lineup as the person who “looks like the one [who] ran between the cars.” At trial, Sencion identified Lara as the first person who shot Cabrera and Ybarra.
Michael Kushner was driving to the market at the time of the shooting. As he neared the market, two men ran across the street in front of his car causing him to brake hard. At the trial Kushner identified Lara as one of the men and also identified a blue and white Pendleton jacket as the jacket Lara had been wearing.
Akarapong Sasomsup worked at the Yoshinoya restaurant across the street from the market. At the time of the shootings, he was taking a break in the restaurant parking lot. He saw two men run from the direction of the market through the restaurant parking lot and climb over a wall at the end of the lot. Upon being shown a photographic lineup, Sasomsup circled the pictures of Lara and Diaz. He told police: “‘They look like those guys who jumped the wall behind my business.’”
Yurik Hovhannisyan, who lived near the market, came out of his apartment sometime after the shooting and got into his silver colored car. As he started to drive away he heard a sound from the area of his left rear tire. When he investigated the source of the noise he found a .38 caliber revolver lying on the ground near the tire. Hovhannisyan called the police who took possession of the gun. The following morning, police officers staked out the area where Hovhannisyan discovered the gun. They saw a car stop and Lara get out. Lara walked to a white car parked on the street and moved his hand back and forth over the front left tire. He then removed his hand and ran down an alley where the officers lost sight of him. He returned 15 or 20 seconds later, got back in the car and the car drove away. Three of the bullets recovered at the shooting scene at the market were fired from the gun Hovhannisyan discovered near the wheel of his car.
Maricela Lara and Maria Garcia, defendant Lara’s cousins, told police that approximately 25 minutes after the shooting defendant Lara and a friend of his visited their apartment which was located near the market, on the other side of the wall behind the Yoshinoya parking lot. They both described defendant Lara’s friend as a male with “tattoo writing” on the right side of his neck. Diaz has the words “Sweet Lady Sylvia” tattooed on the right side of his neck.
B. Evidence Pertaining to the Shooting at an Occupied Dwelling and the Making of a Criminal Threat
The People charged Lara with making a criminal threat to Fred Green and shooting at Green’s occupied apartment. The court found Green was unavailable as a witness and allowed his preliminary hearing testimony to be read to the jury.
Green testified that he and Lara knew each other from high school. They had a long history of “problems” between them. In March 2004, Green encountered Lara behind a fast food restaurant. Lara told Green he was going to kill him the next time he saw him and showed Green the handle of a gun he was carrying in the back of his pants. Green took the threat seriously and it frightened him.
The following month Green was in his apartment when he heard someone yell “‘UE, fuck you’” followed by gun shots. The police found several bullet holes in the walls of Green’s apartment building and the bedroom window of Green’s apartment. Two of the bullets recovered from Green’s apartment building were fired from one of the guns used in the Ybarra murder.
C. Verdicts and Sentencing
The People charged Lara, Diaz, Heredia and Lara’s brother Eric with first degree murder, attempted murder and conspiracy to commit murder. They were tried together.
The jury convicted Lara and Diaz of first degree murder, attempted murder and conspiracy to commit murder. It found that both defendants committed the murder by means of lying in wait and that the attempted murder was committed willfully, deliberately and with premeditation. The jury also found true all of the firearm and great bodily injury enhancement allegations. In addition, the jury found Lara guilty of shooting at an inhabited dwelling and making a criminal threat.
The jury also convicted Heredia of the murder of Ybarra, the attempted murder of Cabrera and conspiracy to commit murder. It could not reach a verdict as to Eric. (People v. Heredia (Apr. 15, 2008, B195585) [nonpub. opn.].)
The court sentenced Lara and Diaz to life without possibility of parole plus 25 years to life for the murder of Ybarra; a consecutive term of 50 years to life for the attempted murder of Cabrera; and 25 years to life for conspiracy to murder Ybarra. The court also sentenced Lara to 6 years for shooting at an inhabited dwelling and to 18 months for the criminal threat.
DISCUSSION
I. DIAZ’S APPEAL
Diaz contends the evidence was insufficient to support a finding beyond a reasonable doubt that he was the second shooter. We agree.
A. Standard of Review
In People v. Johnson (1980) 26 Cal.3d 557, 576, our Supreme Court reaffirmed the rule that when a defendant challenges his conviction based on insufficiency of the evidence “‘[t]he test on appeal is whether substantial evidence supports the conclusion of the trier of fact . . . .’” (Quoting People v. Reilly (1970) 3 Cal.3d 421, 425.) In determining whether the evidence is substantial, the reviewing court does not limit its review to “isolated bits of evidence” that support the conviction but “‘resolve[s] the issue in the light of the whole record . . . ’” (People v. Johnson, supra, 26 Cal.3d at p. 577.) Evidence which appears at first to support the conviction may, upon examination of the whole record, turn out not to be “reasonable, credible and of solid value.” (Id. at pp. 577-578.)
B. Physical Evidence
The police arrested Diaz as he left an apartment two days after the shootings. In the apartment the police recovered a jacket that Sencion and Kushner later testified matched the jacket Lara was wearing when he shot Ybarra and Cabrera.
The People produced no evidence linking the jacket to Diaz. The officer who conducted the search of the apartment found no evidence that Diaz resided there or maintained any of his belongings there. The prosecution did not have Diaz try on the jacket in front of the jury nor was any photographic or forensic evidence introduced to show that Diaz had ever worn the jacket.
C. Identification Evidence
1. Lara’s cousins
Lara’s cousins, Maricela Lara and Maria Garcia, lived in an apartment building on the other side of the wall of the Yoshinoya parking lot. Approximately 25 minutes after the shooting,) Lara arrived at his cousins’ apartment with a friend. The two cousins described Lara’s friend as a male with writing tattooed on the right side of his neck.
The People maintain that because “Sweet Lady Sylvia” is tattooed on the right side of Diaz’s neck, a trier of fact could reasonably infer that Diaz was the tattooed person who visited the apartment with Lara. Although the People do not explain the relevance of that inference, presumably the theory is that the jury could infer that Diaz must have been the second shooter from the fact Diaz accompanied Lara to his cousins’ home near the market shortly after the shooting. No path of logic could lead a reasonable trier of fact to reach that inference.
“An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.” (Evid. Code, § 600, subd. (b).)
There are undoubtedly thousands of young men in the Los Angeles area with writing tattooed on the right sides of their necks. Neither Maricela nor Maria described what was written on Lara’s friend’s neck. Furthermore, no witness testified that one of the shooters had a tattoo on his neck.
Even assuming Diaz was the friend who accompanied Lara to his cousins’ apartment, that fact would not support a logical inference that Diaz was the second shooter. Lara and Diaz did not arrive at Lara’s cousins’ apartment until approximately 25 minutes after the shooting. That left ample time for Lara and the second shooter to have separated and for Diaz to have joined Lara in visiting his cousins.
2. Sasomsup
Three days after the shooting Sasomsup picked Lara and Diaz out of a photographic lineup, telling the police “‘they look like those guys who jumped the wall behind my business.’” At trial, however, Sasomsup admitted “I didn’t really see their face[s].” He testified he circled the photographs of Lara and Diaz even though he did not “really . . . recognize their face[s]” because the police told him “not to worry about circling the wrong person,” just circle a person he thought “looked the most like the suspect.” Sasomsup did not identify Diaz at a live lineup nor at trial.
No reasonable trier of fact could have placed any confidence in Sasomsup’s identification of Diaz from the photographic lineup.
3. Kushner
Kushner did not identify Diaz as one of the persons who ran in front of his car just after the shooting at the market. Kushner circled two persons on a photographic lineup card the police showed him and wrote on the card: “‘The guy I saw running across the street looks like one of the two guys.’” When asked at trial to clarify what he meant by the note he wrote on the lineup card, Kushner testified that he meant two of the photographs on the card looked like the person in the plaid jacket who ran in front of his car. He identified that person as Lara. Kushner did not identify Diaz in the photographic lineup, at the live lineup, at the preliminary hearing or at trial.
4. Sencion
Sencion selected Diaz from a photographic lineup as the person who “looks like the one ran between the cars.” Sencion’s trial testimony revealed how weak this identification was. On direct examination, Sencion testified as follows:
“Q. When you saw the second person come out from between the cars, did you get a look at that person?
“A. No.
“Q. Did you see any part of that person’s body?
“A. Just his head.
“. . .
“Q. What part of the head?
“A. The top of his head. It was bald.”
“. . .
“Q. What portion of his head could you see? . . . Could you see the side of his face?
“A. No.
“Q. What could you see?
“A. I didn’t get a close look at him.
“Q. Did you in fact get to even glimpse or at any point see any part of his face?
“A. Yeah.
“Q. How quick was that?
“. . .
“A. Maybe a second.”
The People produced no evidence that Diaz was bald or had a shaved head at the time of the shootings. Officer Thomas Townsend testified that when Diaz was arrested two days after the shootings he had “a very close haircut, but it’s not clean shaved.”
Sencion was unable to identify Diaz as one of the shooters at a live lineup, at the preliminary hearing or at trial.
As with Sasomsup, no reasonable trier of fact could have placed any confidence in Sencion’s identification of Diaz as one of the shooters.
5. Cabrera
Cabrera was unable to identify Diaz from a photographic lineup as one of the shooters and did not identify him at the preliminary hearing.
D. Insufficiency of the Evidence
The only factual issue with respect to Diaz’s guilt was identification. Diaz’s identification as the second shooter rested solely on his identification in photographic lineups by two witnesses—one who saw the shootings and one who saw two men fleeing from the direction of the market immediately after the shootings. Sencion, the witness who saw the shootings, testified on direct examination that he saw some part of the face of the person whom he identified as Diaz for “maybe a second” and that the top of the person’s head was bald. Sasomsup, the witness who saw two men running from the direction of the market after the shootings, testified on direct examination that he selected Diaz’s photograph even though he “didn’t really see their face[s]” because the police told him not to worry about selecting the wrong person, just circle the person who “looked the most like the suspect.”
We apply the substantial evidence test to determine the sufficiency of an out-of-court identification to support a criminal conviction. (People v. Cuevas (1995) 12 Cal.4th 252, 276.) Where, as here, the witnesses had a very limited opportunity to observe the second shooter and their identifications of Diaz are not corroborated by other evidence, a reasonable trier of fact could not find from the evidence that the prosecution had shown beyond a reasonable doubt that Diaz was the second shooter. Accordingly, we conclude that in light of the whole record the identification of Diaz as one of the shooters was not supported by “evidence which is reasonable, credible, and of solid value.” (People v. Johnson, supra, 26 Cal.3d at p. 578.) There being no independent evidence of Diaz conspiring to murder Ybarra and Cabrera, we reverse Diaz’s convictions for murder, attempted murder and conspiracy to commit murder.
II. LARA’S APPEAL
A. Admissibility of Heredia’s Statements to a Coworker
Chavez, defendant Heredia’s coworker at the market, testified that prior to the shootings Heredia asked to borrow his cell phone. Chavez lent Heredia the phone and Heredia returned it after approximately 10 minutes. Following the shootings, Heredia came to Chavez and told him why he had wanted to borrow the phone. Chavez testified Heredia told him “that he seen a couple of guys that his friends had problems with and he asked me to let him borrow the phone so he could call his friends . . . to handle it.” Heredia also informed Chavez that when he called his friends he told them “not to burn the spot” which Chavez understood to mean not to attract attention to the market. After making these statements to Chavez, Heredia told him “not to say anything.”
Lara objected to the introduction of Chavez’s testimony on the grounds that it was inadmissible hearsay and that it violated his Sixth Amendment right to confront the witness against him as that right was interpreted in Crawford v. Washington (2004) 541 U.S. 36 (Crawford). The court rejected both arguments finding Heredia’s testimony was “nontestimonial” and reliable.
The Sixth Amendment states in relevant part: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
Lara presses his Crawford objection on appeal. We conclude Heredia’s statements to Chavez were nontestimonial and therefore not barred by the Confrontation Clause of the Sixth Amendment.
Lara does not challenge the court’s hearsay ruling.
In Crawford the United States Supreme Court held that under the Confrontation Clause “[t]estimonial statements of witnesses absent from trial [are admissible] only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” (Crawford, supra, 541 U.S. at p. 59, fn. omitted.)
It is undisputed that Heredia, a co-defendant, was not available to testify and that Lara had no opportunity to cross-examine him on his statement to Chavez. The issue is whether Heredia’s statements to Chavez were testimonial.
Crawford involved statements by a witness to a police officer in the course of an interrogation which, the court concluded, were testimonial under “any conceivable definition” of the term. (Crawford, supra,541 U.S. at pp. 51-52, 54, fn. 4.) The court, however, did not decide whether or under what circumstances an unsolicited statement by a declarant to someone who is not connected to law enforcement would be “testimonial.”
Shortly after the Crawford decision, California courts decided three cases involving hearsay statements to friends or coworkers. In all three cases, the courts concluded that the statements were not testimonial under Crawford, albeit for different reasons. (People v. Rincon (2005) 129 Cal.App.4th 738, 757 [statement lacked “legal or procedural formality;” declarant could not have reasonably believed witness would repeat his statements to the police]; People v. Butler (2005) 127 Cal.App.4th 49, 58-59 [statements bore no resemblance to affidavits, custodial examinations or prior testimony]; People v. Cervantes (2004) 118 Cal.App.4th 162, 173-174 [ statement “appears to have been made without any reasonable expectation it would be used at a later trial”].)
After the decisions in Rincon, Butler and Cervantes, the Supreme Court, in Davis v. Washington (2006) 547 U.S. 813, revisited the issue of testimonial statements and concluded that, at least in the case of police interrogation, a declarant’s statement is testimonial if “the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Id. at p. 822.) The court, again, left undecided “whether and when statements made to someone other than law enforcement personnel are ‘testimonial.’” (Id. at p. 823, fn. 2.) Following Davis, our Supreme Court has identified several “basic principles” for determining whether a statement is testimonial. (People v. Cage (2007) 40 Cal.4th 965, 984.)
Applying the teaching of Davis and Cage, Heredia’s statement is nontestimonial because, if for no other reason, viewed “‘objectively,’ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation” it was not made “primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial.” (People v. Cage, supra,40 Cal.4th at p. 984, fns. omitted.) Whatever Heredia’s purpose in confiding to Chavez, viewed objectively it was not “‘for the purpose of establishing or proving some fact’” as in a court of law. (Crawford, supra, 541 U.S. at p. 51.) Indeed, Heredia specifically told Chavez not to repeat what he had told him.
B. Admissibility of Green’s Preliminary Hearing Testimony
As discussed above, the Confrontation Clause does not bar the admission of testimonial hearsay if the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. (Crawford, supra,541 U.S. at p. 59.) In the case before us, the court found Fred Green was unavailable as a witness and admitted his preliminary hearing testimony against Lara on the charges of making a criminal threat and shooting at an occupied building.
Lara contends the court erred in admitting portions of Green’s preliminary hearing testimony. He concedes that he had the opportunity to cross-examine Green at the hearing but he maintains that opportunity was inadequate because the attorney who represented him did not object to certain direct testimony by Green and that his cross-examination of Green with respect to the charge of making a criminal threat undermined the defense to that charge that his new attorney wanted to raise at trial. Neither contention has merit.
Prior to the introduction of Green’s preliminary hearing testimony, the court allowed Lara’s attorney to object to those parts of Green’s testimony that he contended his former counsel should have objected to at the preliminary hearing. The court overruled the objections. Lara does not challenge those rulings on appeal.
Lara cites no authority for the proposition that a witness’s preliminary hearing testimony must be excluded if the defendant’s cross-examination at the hearing was at odds with the new defense he wishes to raise at trial. Nor are we aware of any such authority.
C. Exclusion of Impeachment Evidence
Cabrera, a victim of the shooting at the market, and Green, the victim of the criminal threat, did not testify at trial, having invoked their Fifth Amendment rights. Their preliminary hearing testimony was admitted into evidence and read to the jury. At the preliminary hearing, both denied belonging to a gang. In order to impeach their testimony, Lara sought to present evidence that Cabrera and Green were in fact gang members. The court ruled such evidence inadmissible under Evidence Code section 352 on the ground that it was collateral, and unduly prejudicial and time-consuming. Lara argues the court erred because Cabrera was a major witness against him on the murder charges and Green was the only witness against him on the criminal threat charge. Therefore, he maintains, undermining their credibility was a key aspect of his defense. We affirm the trial court’s ruling.
Relevant evidence includes “evidence relevant to the credibility of a witness or hearsay declarant.” (Evid. Code, § 210.) Nevertheless, such evidence can be excluded in the court’s discretion “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice[.]” (Evid. Code, § 352.) The determination of admissibility of collateral evidence offered to affect the credibility of a witness is also a matter within the sound discretion of the court (People v. Price (1991) 1 Cal.4th 324, 412) and its determination will not be disturbed on appeal “‘except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice. . . .’” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
On this record, we cannot say that the court abused its discretion. Lara conceded that he had no evidence that Cabrera or Green were gang members. Instead he proposed to ask the prosecution’s gang expert if Cabrera was a gang member. The problem with this shot-in-the-dark question was that it could have “a highly inflammatory impact on the jury” (People v. Williams (1997) 16 Cal.4th 153, 193) regardless of the answer. Even if the witness testified Cabrera was not a gang member or that he did not know Cabrera’s gang status, the risk of prejudice from planting in the jurors’ minds the possibility that Cabrera was a gang member outweighed any benefit Lara might gain if it were shown Cabrera lied when he denied gang membership.
D. Instruction on Evaluating Eyewitness Identification
The court instructed the jury under CALCRIM No. 315: “You have heard eyewitness testimony identifying the defendant or defendants. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. In evaluating identification testimony, consider the following questions: . . .” The instruction then listed numerous factors for the jurors to consider in evaluating eyewitness testimony. Lara argues that giving this instruction was reversible error because it prevented the jurors from formulating questions which, in their own minds, they believed should be considered in determining whether a witness’s eyewitness identification was truthful and accurate.
Lara’s argument fails because the court also instructed the jury under CALCRIM No. 226 that: “In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony.” In People v. Felix (2008) 160 Cal.App.4th 849, 858-859 the court held that these two instructions taken together directed the jurors’ attention to the factors listed in CALCRIM No. 315 but permitted them to consider other factors as well.
E. Instruction on Aiding and Abetting
The court instructed the jury under CALCRIM No. 400 that: “A person may be guilty of a crime in two ways: one, he may have directly committed the crime; two, he may have aided and abetted someone else who committed the crime. . . . A person is equally guilty of the crime whether he committed it personally or aided and abetted the perpetrator who committed it.” Lara maintains that when two or more defendants are tried together for the same crime it is prejudicial error to give this instruction because it tells the jury that at least one of the defendants is the perpetrator of the crime. He further contends the “equally guilty” language of the instruction is an incorrect statement of the law because an aider and abettor may be found guilty of a lesser crime or lesser degree of the crime than the perpetrator. (People v. Woods (1992) 8 Cal.App.4th 1570, 1589.)
We do not agree that a reasonable juror would interpret the instruction as a statement by the court that one of the defendants is the perpetrator and the jury’s only job is to decide which is the aider and abettor. There are too many instructions that counter that interpretation including CALCRIM No. 401 which states in relevant part: “To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that . . . the perpetrator committed the crime[.]” (Italics added.)
Nor do we agree that the “equally guilty” language of the instruction requires the jury to find an aider and abettor guilty of the same crime or degree of crime as the perpetrator. Indeed, the jury’s verdict in this case belies Lara’s concern over jury confusion. The jury convicted Heredia of second degree murder even though the People’s only theory of his guilt was as an aider and abettor of Lara and Diaz whom the jury convicted of first degree murder.
F. Discharge of Juror No. 9
Penal Code section 1089 provides that the court may discharge and replace a juror if it finds the juror is unable to perform his duty. On appeal, we review the court’s decision for abuse of discretion. (People v. Marshall (1996) 13 Cal.4th 799, 843.) If substantial evidence supports the trial court’s decision, we uphold it. (Ibid.)
Deliberations began at 11:50 a.m. on Tuesday, October 24, 2006. On Thursday, October 26, after 3:00 p.m., the jury foreperson and three other jurors sent a note to the court which stated: “A number of jurors have concerns about juror #9. Since deliberations have begun he has disclosed information such as ‘I was arrested for murder,’ ‘all prosecutors lie,[’] ‘you don’t know how much the police lie,’ ‘I was involved in a shooting once.’ His bias & refusal to accept any witness or evidence as credible is seriously hampering our consensus. He seems to be concerned about penalty.”
On Friday, October 27, the court suggested questioning the foreperson in chambers. The court then received a second note indicating that the jury was continuing its deliberations. The court decided not to take any action at that time.
On Monday, October 30, the court received another note from the jury which read, “‘Your honor, [ten] jurors are in agreement that Juror #9 is refusing to deliberate or give reasons why he won’t accept any evidence beyond “I need more.”’” The note was signed by the foreperson and nine other jurors. The court also received a two-page letter from the foreperson stating in part:
“‘Your Honor, first I want to say that I’m convinced that we each believe that we are conscientiously following your instructions in order to reach a decision in our deliberations. We have read and reread them many times during this process. We are unsure as to whether our frustration and disappointment about not being able to come to a consensus is a normal part of the difficult deliberation situation or if we are indeed being hindered by one person who came into this process with a personal grudge or agenda and is . . . unable and unwilling to evaluate the evidence as presented.’”
The letter repeated the comments regarding the police and prosecutors lying, and stated that Juror No. 9 said he had been involved in a shooting, had been removed from 13 high schools, and was discharged from the military for incompatibility.
The court noted that Juror No. 9’s voir dire responses were in direct contradiction to his statements made during deliberations. The court explained that Juror No. 9 had indicated in voir dire that he had been arrested once for assault and that it was later reduced to a disturbance charge. The court further noted that Juror No. 9 had indicated in voir dire that he had been fairly treated by the police during his arrest, that he had no ill feelings toward anyone once the case was over, that he would not hold the prosecutor in this case responsible for his prior incident, that he did not believe police officers were either more or less likely to tell the truth, that there was no reason why he could not be a fair and impartial juror in this case, and that he had never been unfairly treated by a law enforcement officer.
The court then began individual questioning of the jurors. The court started with the foreperson. He indicated that Juror No. 9 had initially participated in the discussions, but he had changed and was either turning his back in the jury room, facing or looking at the wall, or laying his head on the table. The foreperson also repeated Juror No. 9’s comments about being accused of murder and how all police lie.
The court next examined Juror No. 9 and the following occurred regarding Juror No. 9’s voir dire responses and his statements in the jury room.
“The Court: We do have the transcript from your voir dire. I have reviewed that, including the Court’s questionnaire. [¶] Were you accused of murder?
“Juror No. 9: No. No. I believe the charge—the charge—the person made against me I believe it was attempted murder, but I don’t believe it was ever charged. It was bumped down to assault with a deadly weapon ultimately bumped down to a 415 disturbance.
“The Court: So attempted murder was never actually filed against you, it was only complained of by the person who brought the charges against you, is that what you are saying?
“Juror No. 9: I believe so. I can’t remember exactly how the charge went. It was very—it was very confusing. [¶] My brother was a police officer at the time. So most of the charge went through him and I was a co-defendant with him, and so I can’t remember exactly what the original charge was. But I don’t believe I was ever charged with the attempted murder. But I believe that was the charge he wanted of me which is what came up in there.
“The Court: Because you were quoted as saying that you were accused of murder not attempted murder or assault.
“Juror No. 9: No.
“The Court: You never made those statements?
“Juror No. 9: I said I was charged, which is what I believe the charge was originally.
“The Court: You were charged with murder or attempted murder?
“Juror No. 9: I believe the charge was attempted murder, I think is what he wanted originally. I don’t believe it ever made it that far. I’m not certain of even how the process went.
“The Court: Why wasn’t that disclosed when we asked you about prior arrests?
“Juror No. 9: Because I’m certain the charge was assault with a deadly weapon when it came down to it. I don’t know what it was originally. That sounds terrible. . . . The charge was—it was a while ago and I don’t remember what the original charge was for it. I do remember being charged with assault with a deadly weapon. [¶] My point to them was that the charge the person wanted was nowhere near what was reasonable for the incident.
“The Court: And why is that relevant to your deliberations in this case? Why is it even brought up?
“Juror No. 9: One of them had brought up something in regards to—how can I say it without telling anything—in relation to this case, we were talking about how things can get escalated. That’s all.
“The Court: You felt that that happened to you and that you were charged with a greater offense that was later reduced?
“Juror No. 9: I was explaining how the person charging sometimes escalates the charge on the assumption it’s going to be dropped down sometime.
“The Court: All right. And we talked to you in voir dire about your feelings about police officer credibility and whether or not you could be fair to both sides in this case and you indicated you could. Do you have a different feeling?
“Juror No. 9: I don’t. I don’t. I’ve indicated to them that the police could lie just like anyone else could. I believe a lot of my statements are being taken to the extreme in there, your Honor.
“The Court: You never said anything about all police officers lie?
“Juror No. 9: I never said all police officers lie.
“The Court: Have you ever said anything about prosecutors lying?
“Juror No. 9: Not that I remember directly. But if it was anything, it would have been that they could just like anyone else.
“The Court: And you never made the direct statement or something close to the effect that all police officers lie or all prosecutors lie?
“Juror No. 9: No. I try very hard in there to make sure my statements sound very reasonable being that I’m the dissenting opinion.”
After examination of Juror No. 9, the court then examined four other jurors. Juror No. 1 stated that Juror No. 9 “won’t deliberate,” that he had “an agenda of some sort,” and a “mindset from the outset.” Juror No. 8 indicated that at the beginning of deliberations, Juror No. 9 expressed an extreme bias. Juror No. 8 stated that Juror No. 9 expressed bias against prosecutors and police officers because he stated, “cops are all liars,” “prosecutors are slimy,” and “they concocted an entire case against me.”
The court then spoke to Juror No. 11, who indicated that Juror No. 9 was deliberating, and that she did not recall Juror No. 9 making any statements in deliberations that were inconsistent with his voir dire responses. Juror No. 2 was then questioned and stated that Juror No. 9 discussed “when he went to court, how they tried to frame him and stuff like that.” Juror No. 2 also expressed a belief that Juror No. 9 was not willing to deliberate.
The court excused Juror No. 9. The court found that Juror No. 9 had been either deliberately falsifying answers in voir dire or substantially misrepresenting the facts regarding his feelings about the credibility of police officers and prosecutors. The court also found that Juror No. 9 misrepresented his prior criminal record or at least minimized it substantially. The court found the statements of the foreperson and the other jurors, with the exception of Juror No. 11, to be credible.
In discharging Juror No. 9, the court relied on the case of People v. Thomas (1990) 218 Cal.App.3d 1477. In Thomas, the court properly discharged a juror who had stated that police officers in Los Angeles generally lie and that she could not accept the testimony of the officers who testified at trial. (Id. at pp. 1482-1485.)
A trial court’s decision to remove a juror for cause will be upheld on appeal if the juror’s inability to perform as a juror appears on the record as a “demonstrable reality.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) In Barnwell, the California Supreme Court held that the court properly discharged a juror for cause because the record demonstrated that the juror “exhibited a general bias against police officers that prevented him from fairly weighing police testimony in this case.” (Id. at p. 1048.) In Barnwell, the court examined all 12 jurors to investigate an allegation that one juror was not deliberating due to a bias against law enforcement officers. Nine of the jurors indicated that the discharged juror had exhibited bias against police officers. (Id. at p. 1049.) This was sufficient to demonstrate inability to perform as a demonstrable reality. (Id. at p. 1053.)
In our case, as in Barnwell, it appears on the record as a “demonstrable reality” that Juror No. 9 was unable to perform his duties as a juror based upon his actual bias against police officers and prosecutors. (People v. Barnwell, supra, 41 Cal.4th at p. 1052.) The court’s examination of five jurors supports its decision to excuse Juror No. 9 based upon bias. This was sufficient. (Id. at p. 1053.)
Defendant also contends that the court’s inquiry violated the sanctity of jury deliberations. We disagree.
People v. Cleveland (2001) 25 Cal.4th 466 discusses the trial court’s inquiry into possible grounds for discharge of a juror. The court noted that “[d]etermining whether to discharge a juror because of the juror’s conduct during deliberations is a delicate matter, especially when the alleged misconduct consists of statements made during deliberations.” (Id. at p. 484.) Evidence Code section 1150 prohibits admission of evidence of jurors’ mental processes when there is a postjudgment inquiry into possible juror misconduct. (People v. Cleveland, supra, 25 Cal.4th at p. 484.) It permits introduction of evidence of statements made within the jury room when “‘the very making of the statement sought to be admitted would itself constitute misconduct.’” (Ibid.) But “because ‘[s]tatements have a greater tendency than nonverbal acts to implicate the reasoning processes of jurors,’” caution must be used in admitting evidence of such statements. (Ibid.) These same rules should guide a judge in making an inquiry into possible grounds for discharge of a juror; the “trial court’s inquiry into possible grounds for discharge of a deliberating juror should be as limited in scope as possible, to avoid intruding unnecessarily upon the sanctity of the jury’s deliberations.” (Id. at p. 485.)
The court’s inquiry into misconduct was appropriate and did not violate the sanctity of jury deliberations. The inquiry focused on the objective conduct of Juror No. 9 and his ability to be an impartial juror. The focus included whether Juror No. 9 was discussing the evidence with the other jurors and whether he had made statements that reflected any bias. (See, e.g., People v. Barnwell, supra, 41 Cal.4th at p. 1054.)
Lara did not join in Diaz’s motion for release of juror identifying information, so we do not address that issue.
G. Evidence Lara Belonged To a Tagging Crew
Lara objected to the introduction of evidence linking him to a tagging crew on the grounds the evidence was irrelevant to the murder and attempted murder counts and unduly prejudicial. The trial court properly found the evidence was relevant to prove the motive for the murder and attempted murder. We cannot say the court abused its discretion in admitting this evidence. The evidence was not so highly inflammatory as “to evoke an emotional bias against defendant as an individual.” (People v. Yu (1983) 143 Cal.App.3d 358, 377.)
H. Insufficiency of the Evidence of Lying In Wait
Lara contends the evidence was insufficient to support the jury’s special circumstance finding that he murdered Ybarra “by means of lying in wait.” (Pen. Code, § 190.2, subd. (a)(15).) We agree.
1. The evidence
Two persons witnessed the shootings: Cabrera, one of the victims, and Sencion, the market employee in the parking lot.
Sencion testified that he first saw Lara when Lara was walking toward him in the parking lot. When Ybarra and Cabrera came out of the market, Lara turned away from Sencion and started walking toward them. The three men continued walking toward each other until they were face-to-face. They then began circling each other and engaged in an angry conversation. Lara pulled a gun from his waist and shot Ybarra and Cabrera.
Cabrera testified that when he came out of the market he saw Lara in the parking lot walking toward him from the area where Cabrera had parked his car. As Cabrera continued walking to his car, Lara came up to him, hit him, and knocked him down As he lay on the ground, Cabrera saw Ybarra start to fight with Lara. He did not see Lara shoot Ybarra and did not remember being shot himself.
2. Elements of “lying in wait”
The lying in wait special circumstance requires proof beyond a reasonable doubt “‘of “an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage.”’” (People v. Lewis (2008) 43 Cal.4th 415, 508, citations omitted.)
Proposition 18, an initiative approved by the voters in the March 7, 2000, Primary Election, and effective March 8, 2000, changed the language of the lying in wait special circumstance to delete the word “while” and substitute in its place “by means of.” Thus, at the time of the murder in this case the same elements had to be proved to establish first degree murder by means of lying in wait (Pen. Code, § 189) and the special circumstance of lying in wait (Pen. Code, § 190.2, subd. (a)(15).) (People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297, 310.) The only difference is that the lying in wait special circumstance requires the specific intent to kill, whereas first degree murder by lying in wait does not. (People v. Webster (1991) 54 Cal.3d 411, 448.)
“Concealment of purpose” does not require the defendant to physically conceal himself from the victim as in an ambush. “‘It is sufficient that a defendant’s true intent and purpose were concealed by his actions or conduct.’” (People v. Morales (1989) 48 Cal.3d 527, 555, citation omitted.) In other words, there is a concealment of purpose if the killer engages in a pretense or subterfuge to keep the victim from raising his guard. Mere concealment of purpose is not sufficient, however, to establish lying in wait. If it were, lying in wait would not be a “special” circumstance since “many ‘routine’ murders are accomplished by such means[.]” (Id. at p. 557.) Rather, the concealment of purpose, along with the period of watching and waiting discussed below, must be in aid of the murderer’s ultimate goal: a surprise attack on an unsuspecting victim from a position of advantage. (Ibid.)
There is no minimum amount of time that will qualify as a “substantial period of watching and waiting.” Even when the period of waiting is relatively short, it is sufficient if it negates any inference that the murder was “the result of panic or sudden impulse.” (People v. Moon (2005) 37 Cal.4th 1, 24.) Again, the watching and waiting must be in aid of taking the victim by surprise. (People v. Morales, supra,48 Cal.3d at p. 557.)
“A surprise attack on an unsuspecting victim from a position of advantage” occurs when the killer uses pretense or subterfuge to conceal his purpose to kill and has held off his attack until he has a relative advantage over the victim. In People v. Hillhouse (2002) 27 Cal.4th 469, 501, for example, the defendant, who had displayed no previous sign of menace, waited until the victim was urinating at the side of the road before stabbing him. In People v. Combs (2004) 34 Cal.4th 821, 853, the defendant, who was sitting in the back seat of the victim’s car, waited until the victim parked the car then surprised her by reaching over the seat, placing an electrical cord over her head and strangling her.
3. Insufficiency of the evidence of the lying in wait special circumstance.
We have already discussed the standard of review of a claim of insufficiency of the evidence. (See pp. 5-6, ante.) Here the prosecution failed to present solid, credible evidence to support the elements of concealment, watching and waiting and surprise attack from a position of advantage.
The record contains ample evidence of Lara’s intent to kill Cabrera. (See discussion at pp. 2-3, ante.
The evidence failed to show concealment of purpose. Lara never attempted to hide his intent to do Ybarra harm. According to Cabrera and Sencion, as soon as Lara saw Ybarra and Cabrera come out of the market, he walked up to them directly and either got into an argument with them (Sencion’s version) or Lara knocked Cabrera down and then shot him (Cabrera’s version).
The element of watching and waiting was not established because there was no evidence of how long Lara had been in the parking lot before Ybarra and Cabrera came out of the market. The evidence is undisputed that Lara approached Ybarra and Cabrera as soon as he saw them leave the store.
Given this evidence, no reasonable juror could find Lara used concealment of purpose and watching and waiting in order to spring a surprise attack on Ybarra. Lara did not shoot Ybarra as soon as he came out of the market. Rather he first began walking toward Ybarra and began arguing with him. Finally the evidence does not support a finding that Lara shot Ybarra from “a position of advantage.” To the contrary, the evidence shows that Lara was at a disadvantage. He was out-numbered two-to-one, Ybarra and Cabrera were circling him, not backing off, and for all Lara knew both men could have been armed.
4. Effect on the first degree murder conviction
The court instructed the jury it could find Lara guilty of first degree murder on either of two theories—lying in wait or a “willful, deliberate and premeditated killing.” (Pen. Code, § 189) The lack of evidence to support the lying in wait special circumstance verdict calls into question the first degree murder verdict to the extent it rests on the theory of lying in wait.
As we noted above, the elements of lying in wait special circumstance and lying in wait first degree murder are the same except that the latter does not require proof of an intent to kill. (See discussion at p. 23, ante.)
In People v Guiton (1993) 4 Cal.4th 1116, 1127, our Supreme Court held that when the trial court erroneously instructs the jury on a theory that lacks evidentiary support the error is one of state law judged by the traditional test of People v. Watson (1956) 46 Cal.2d 818, 836, which asks whether it is reasonably probable that the result would have been more favorable to the defendant had the error not occurred. The court stated that in determining prejudice, the appellate court should examine the entire record including the facts and instructions, the arguments of counsel, any communications from the jury during deliberations and the entire verdict. (People v. Guiton, supra, 4 Cal.4th at p. 1130.) The judgment should be affirmed “unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury found the defendant guilty solely on the unsupported theory.” (Ibid.)
Here, strong evidence supports a verdict of first degree murder based on the theory that the murder of Ybarra was a willful, deliberate and premeditated killing and nothing in the record affirmatively demonstrates a reasonable probability that the jury found Lara guilty of first degree murder solely on the theory of lying in wait.
The best evidence that the jury convicted Lara of the murder of Ybarra on the theory of a willful, deliberate and premeditated killing is that the jury convicted him of willful, deliberate and premeditated attempted murder of Cabrera. Further evidence of deliberation and premeditation is shown by the evidence that Lara and his companion arrived at the market with guns to “handle” “a couple of guys” they “had problems with.” Lara approached Ybarra and Cabrera when they exited the market but he did not shoot immediately. He first engaged the victims in an angry confrontation and punched Cabrera, knocking him down. This evidence shows Lara had time to weigh his course of action and to reflect on that action before he carried it out. (Cf. People v. Harris (2008) 43 Cal.4th 1269, 1286-1287.)
Lara does not point to anything in the record which demonstrates a reasonable probability that the jury found Lara guilty of first degree murder solely on the theory of lying in wait. Nor in reviewing the whole record have we found any support for such a conclusion. The jury was instructed on both theories and the prosecutor argued both theories to the jury. The jury did not ask questions on either theory.
5. Effect on the attempted murder conviction
We reject Lara’s contention that the lack of evidence of lying in wait entitles him to reversal of his attempted murder conviction. The jury was not instructed it could find Lara guilty of attempted murder if it found he attempted the murder by means of lying in wait. Rather the jury was instructed, correctly, that the People must prove “that the attempted murder was done willfully and with deliberation and premeditation.”
I. Insufficiency of the Evidence of Shooting at an Inhabited Dwelling
The jury convicted Lara of shooting at the apartment occupied by Fred Green. Lara maintains the evidence is insufficient to sustain that conviction. Again, we agree.
1. The evidence
Green told police that on the evening of the shooting he heard someone yell: “UE. Fuck you.” He then heard gunfire. Police found a bullet hole in Green’s bedroom window and in the stucco above the window. Green handed the officers a bullet and bullet fragments and the police recovered another fragmented bullet from the wall below the window.
The prosecution’s evidence linking Lara to the crime consisted of testimony Lara and Green were enemies; Lara had previously threatened to kill Green; Lara was a member of the UE tagging crew; UE claimed the territory that included Green’s apartment building; and the gun that fired the bullets at Green’s apartment was one of the guns used later in the shooting of Ybarra and Cabrera at the market.
No witnesses saw Lara shoot at the building. Green had known Lara since high school and had several recent contacts with him but Green did not identify the voice that yelled “UE. Fuck you” as Lara’s. The prosecution’s gang expert testified the UE tagging crew had at least 15 or 16 members. The gun used to shoot at Green’s apartment was the same gun used by one of the shooters at the market but it was not the gun Lara sought to recover the day after the shooting. (See Statement of Facts at pp. 3-4, ante.)
2. Insufficiency of the evidence
The most that a reasonable trier of fact could infer from the prosecution’s evidence is that some gang member shot at Green’s apartment. No reasonable trier of fact could logically and reasonably infer from the evidence that the shooter was Lara.
J. Sentencing Issue.
Lara contends that the trial court erred in sentencing him to a term of 25 years to life for the attempted murder of Cabrera. The People agree.
Penal Code section 664, subdivision (a), states: “If the crime attempted is willful, deliberate and premeditated murder, as defined in section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with possibility of parole.” The jury convicted Lara of the premeditated attempted murder of Cabrera, thus the correct sentence on that count is life with possibility of parole, not 25 years to life.
DISPOSITION
The judgment as to Diaz is reversed. As to Lara, the conviction for shooting at an inhabited dwelling is reversed. The special circumstance finding of lying in wait is vacated and the sentence for the murder of Ybarra is modified to a term of 25 years to life. The sentence for the attempted murder of Cabrera is modified to life with the possibility of parole. The trial court is directed to prepare respective amended abstracts of judgment accordingly and forward certified copies of the corrected abstracts to the Department of Corrections and Rehabilitation. In all other respects the judgment as to Lara is affirmed.
We concur: MALLANO, P. J., NEIDORF, J.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.