Opinion
F048744
4-30-2007
THE PEOPLE, Plaintiff and Respondent, v. JUAN ANTONIO LOPEZ, Defendant and Appellant.
The Chase Law Group and Lorilee M. Gates for Defendant and Appellant. Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Stanley Cross, Acting Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant was convicted of first degree murder (Pen. Code, § 187, subd. (a); count 1) and conspiracy to commit murder (§ 182, subd. (a)(1); count 2). As to both counts, the jury found true allegations that defendant committed the offenses for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1). The jury also found true the criminal-street-gang special-circumstance allegations under section 190.2, subdivision (a)(22). The jury further found that defendant personally and intentionally discharged a firearm in the commission of the offenses within the meaning of section 12022.53, subdivisions (d) and (e)(1). On count 1, the court sentenced defendant to life without the possibility of parole based on the criminal-street-gang special-circumstance, and a consecutive term of 25 years to life for the firearm enhancement. The same sentence was imposed on count 2, and then stayed under section 654.
Further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant contends: (1) the prosecutor improperly exercised 10 peremptory challenges to excuse African-American and Hispanic prospective jurors because of their race; (2) the court erred in failing to discharge Juror No. 8 for sleeping during trial testimony and speaking to a nonjuror about the case, and in failing to investigate further the alleged misconduct; (3) the prosecutor committed prejudicial misconduct by improperly prompting one of the two eye witnesses, Adelaida Moreno, to identify defendant in court as the shooter; (4) the court erred in denying his motion to exclude the testimony of the gang expert on Evidence Code section 352 grounds, and in allowing the gang expert to offer an opinion as to defendants state of mind; (5) the court erred in admitting over his Evidence Code section 352 objection, a tape recording of a jail call between Pedro Valles and an unidentified male; (6) the court erred in instructing the jury with a modified version of CALJIC No. 17.24.3; and (7) the court erred in utilizing the section 190.2, subdivision (a)(22) enhancement to impose a sentence of life without the possibility of parole on count 2, and that he should have received instead only a sentence of 25 years to life for that count. We agree with defendants last contention, and will modify his sentence accordingly. In all other respects, the judgment is affirmed.
FACTS
This case arises out of the shooting death of Robert Moreno (the victim) on May 21, 2004. Because defendant does not challenge the sufficiency of the evidence to support his convictions or the associated enhancements, we briefly set out the essential facts, focusing on those relevant to the issues raised. We will also set out more fully facts pertinent to defendants specific contentions in the discussion section of this opinion.
I. The prosecution
The conflict that led to the fatal shooting of the victim began with a dispute between Adelaida (also known as Della) Moreno, the victims aunt, and Diane Hyder, the sister of Pedro Valles. Hyder, at the invitation of Moreno, had been living with Moreno and Morenos children in a house Moreno rented. Moreno and Hyder had a disagreement and, on May 21, 2004, Hyder was asked to move out of the house.
Hyder left the house that day in the late morning and, about two hours later, received a telephone call from Morenos adult daughter, Daphnie Barrera, asking whether she was going to return and get her belongings. Hyder replied that she intended to return and warned that "...all her stuff better be there or else ...." and that "...nobody better had stole her stuff ...." The victim and other relatives moved all of Hyders possessions, including furniture, onto the front yard. Barrera testified that the victim was present at the house "...to protect the family...." and had been invited by two of her aunts.
Later, on May 21, 2004, when defendant was done working, he persuaded his employer, Thomas Womack, to drive Valles and him somewhere, saying that he had someone with whom he wanted to visit. Womack drove his pickup, and defendant directed him to the house where Hyder lived. During the drive, defendant and Valles spoke to each other in Spanish. Womack could not understand what they were saying.
Womack owned "AAA Pumping," a business that rents portable toilets and pumps septic tanks. Valles had been an employee of his for about three years. After Valles quit in 2003, defendant came to work for him and was Womacks only employee at the time of the shooting. Although he no longer employed Valles, Womack testified that he would occasionally lend Valles money and do things for him in order "...to keep him away ...." Around the time of the shooting, Womack was paying for a motel room for Valles because Valles place was being fumigated.
After they arrived, defendant and Valles approached the house. Barreras fiancé, Jose Hernandez, who had come out of the house, testified that Valles was angry, had his right hand in his pocket, and asked "Why is my sisters shit in the front yard?" Hernandez told Valles that he thought Hyder was moving out. Valles asked Hernandez if he was "Tony or Tiny." Hernandez said no. Defendant went inside the house. Hernandez testified that before Valles went inside the house, he saw a gun handle as Valles was reaching into his right pocket.
Once inside the house, defendant asked the victim if he was "Tiny" or "Midget." Defendant fired a shot at the victim while the victim was in a chair in the living room. The victim jumped up and went into the kitchen. Defendant followed and fired a second shot at the victim. The victim started to lose his balance. Defendant fired several more shots at the victim. The victim collapsed in the garage next to the kitchen. The victim bled to death from his gunshot wounds.
Relatives of the victim testified his nickname was "Midget" due to his small stature (approximately 4 feet 11 inches), and the gang expert testified that the victims forearm included the tattoo "Mr. Midget."
Moreno had the kitchen telephone in her hand and was going to dial 911, when defendant pointed his gun at her and she dropped the telephone. Defendant then pulled the telephone cord out of the wall.
Defendant, Valles, and Womack left in Womacks pickup truck. They drove to defendants house and left the pickup there.
Kern County Sheriffs Deputy Adam Plugge testified as a gang expert for the prosecution. Deputy Plugge testified that, in his opinion, defendant and Valles were active members of the Los Primos subset of the Loma Bakers criminal street gang, and the victim was an active member of the Southside Bakers. Deputy Plugge further testified the Loma Bakers and the Southside Bakers were rivals. Deputy Plugge also testified generally regarding the activities, culture, and territories of the gangs.
Although defendant does not challenge the sufficiency of the evidence supporting the gang enhancements, some of the evidence upon which the expert relied in reaching his opinion bears mentioning. The victims forearm bore the tattoo of his moniker, "Mr. Midget." He had the tattoo "SSBKS" on his back, "Bakers" on his chest, and "Southside" on his forearm. Field identification cards reflected that the victim had claimed in the past to be an active member of the Southside Bakers.
Defendant and Valles both had documented tattoos associated with the Loma Bakers and the Los Primos subset. Valles admitted being a being a member Los Primos in interviews with detectives, and field identification cards and police reports also reflected admissions of gang membership.
Defendants left forearm included the tattoos "Loma" and "XIII." His right inner arm included the tattoos "Loma" and "13." Defendant had the tattoo "Primos" on his stomach. Field identification cards, dating from the 1990s, documented various police contacts with defendant. One field identification card, dated February 18, 1995, documented that he was contacted with a subject, either Carlos or Jesus Hyder, who was arrested for possession of a sawed-off shotgun. Another report showed that, in 1994, defendant was contacted with Valles. Valles was seen waving a handgun, and was later arrested for possession of the handgun. Defendants arrest reports reflected that in 1990, defendant and another subject were arrested for assault with a deadly weapon and were booked at juvenile hall. The juvenile transfer of custody sheet indicated that defendant claimed involvement in the case and claimed to be Los Primos.
On May 27, 2004, defendants house was searched pursuant to a search warrant. The sheriffs department seized a work-shirt with "Silent" printed on it, and three baseball caps. A number of photographs were also seized from defendants house and reviewed by Deputy Plugge. One of the photographs, bearing a stamp date of May 9, 2004, showed defendant making a peace sign with his right hand. Deputy Plugge explained this sign stands for Los Primos. Another photograph, bearing a date stamp of May 7, 2005, showed Valles with a jersey with his last name and the number 13.
Two other photographs showed defendant or Valles "throwing" gang signs with their hands which stood for Los Primos. One photograph showed defendant signing a "P" with his right hand. Another showed Valles sitting and throwing a "P" sign with his right hand and an "L" sign with his left hand. Another person in this photograph appeared to be holding a sawed-off shotgun. Defendants gang moniker, "Silent," was written on the wall in the background of the photograph.
After being presented with a hypothetical based on the evidence in the case, including Valles claim that he spoke with the victim on the telephone before the shooting and that the victim threatened to harm Valles sister and nephew, Deputy Plugge testified that, in his opinion, the shooting was done for the purpose of furthering the Loma Bakers criminal street gang. Deputy Plugge explained:
"In the hypothetical that you gave me, you had two Loma Bakers that go over to a residence of a rival gang members house after a disrespect or after a threat was made to one of the gang members. Um, threats fall under disrespecting to gang members. If you threaten a gang member, its a sign of disrespect. [¶] ... [¶]
"Um, again, the two gang members that go over to a house, um, they only shoot the rival gang member that disrespected one of the other gang members.
"And the fact that you have two gang members that go over there, um, again, strength in numbers, its not uncommon for gang members to go in pairs and threes and fours over to residences or houses and commit their crimes.
"In addition to that, that second gang member is a trusted associate or a trusted gang member of the other gang member; so they — the thinking is or the belief is that theyre not going to be the ones that are going to give out on them or tell on them or tell the cops on them.
"And thirdly, when you have a second gang member there present during an incident involving other gang members that gang member acts as a witness, um, that that crime was committed or that that gang member or these gang members committed that crime and did that act, um, which further promotes their reputation within the community, um, going back again to the fear and intimidation that gang members — gang members, um, are able to live by in our community."
Deputy Plugge testified his opinion would be the same even assuming "...the sequence of the events involved getting a non-gang member, somebody who is the current employer of one of the Loma Bakers and the former employer of one of the other Loma Baker[s] to actually drive them to the scene in a readily identifiable company truck and theres enough daylight out on the street for witnesses to actually see the truck, see people getting out, and actually making note of the license plate." Although Deputy Plugge acknowledged this was "...a non-typical fact for a gang shooting ....", he was still of the opinion that the shooting itself was done for the purpose of furthering the gang, explaining: "Due to the fact that hes an employer, possibly another trusted person, the belief that he may not be the one that is going to, uh, again be the weak link in the chain and tell on the other two gang members that are over there."
The defense
The theory of the defense was that Valles was the one who shot the victim and that he acted alone. Valles, who was also charged with the May 21, 2004, murder and was awaiting trial, testified for the defense over the advice of his counsel and after being admonished of his rights by the court.
Valles testified that although he had quit working for Womack a year earlier, he was planning to work for him on May 21, 2004, as an "under-the-table thing." Valles knew defendant was going to be his coworker that day. He called defendant in the morning, and asked defendant to drive him to a park where he had a prearranged visitation with his eight-year-old daughter. Afterwards, defendant drove Valles to the job site.
Valles and Womack later went to a Taco Bell to get something to eat, while defendant remained at the job site. While Womack was ordering food, Valles sister called him on his cell phone and explained the situation where she was staying and gave him a telephone number for the house. Valles called the house and spoke to someone who lived there. That person made threats and talked about killing Valles sister and her son. Valles testified that in response, "...I told him, you going to take my nephews life, then Ill be over there...." and "...pre warned him that I was going." Valles did not tell Womack about the telephone call.
Womack drove Valles to the motel where he was staying. Womack was supposed to be dropping Valles off but then defendant arrived and reminded them they still had another job site to go to.
Valles rode to the other job site with defendant and Womack in Womacks pickup truck. He did not tell either of them about the telephone call he had received. After they finished working, Valles asked them to give him a ride. Womack was driving, and Valles directed him to the house where his sister lived. Valles explained to them that the stuff in the front of the house was his sisters. After they arrived at the house, Valles told defendant and Womack they could leave, but Womack said they would just sit and wait for him.
Valles got out of the truck and walked up to the house. He saw this "clown" sitting on the front porch and asked him if he was "Tiny" or "Midget." That person pointed inside the house. When he went inside the house, Valles was feeling angry and enraged because his sisters belongings had been "...thrown out there like trash." Valles described the shooting incident as follows: "I walked in. I seen that fool laying there. I asked him, you Tiny? You Midget? He jumped up, started running. Apparently he had to be, right? So I shot, chased him down, and killed him."
Valles did not tell defendant or Womack what his intentions were or what he was going to do before he went inside the house. When asked where he got the gun he used, Valles responded that he "always pack[s]." Valles did not see any other guns that day. Valles testified that defendant did not help him perpetrate the shooting in any way.
Valles became an uncooperative witness during cross-examination and refused to answer questions about the specific details of the shooting, including questions about how his gun worked, where he was aiming on the victims body, and his movements inside the house. Ultimately, Valles refused to answer any more questions from either the prosecutor or defense counsel.
DISCUSSION
I. The prosecutors use of peremptory challenges
Defendant contends the prosecutor improperly exercised 10 peremptory challenges to excuse African-American and Hispanic prospective jurors because of their race, in violation of the state and federal constitutions. (See People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler); and Batson v. Kentucky (1986) 476 U.S. 79, 84-89 (Batson).) Defendant argues generally that the prosecutors exercise of 71% of his peremptory challenges (10 of 14) against minorities established a prima facie case of purposeful discrimination and the prosecutors stated reasons for excusing the jurors were disingenuous.
Initially, we note defendant does not address the applicable standard of review on appeal or set forth, in meaningful detail, the procedural background of his contentions. Nor does he provide record citations to support a number of his factual assertions regarding the ethnicity of the prospective jurors. Also, in arguing the prosecutors reasons for excusing jurors did "not pass muster," defendant only briefly addresses the prosecutors reasons for excusing five of the 10 jurors he claims were improperly excused.
Although we have chosen to evaluate the merits of defendants contentions based on the record available to us, we feel compelled to remind counsel that a reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. Under California law, it is the duty of counsel to refer the reviewing court to the portion of the record which supports the appellants contentions on appeal. If no citation is furnished on a particular point, the reviewing court may treat it as waived. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.)
A. Applicable legal principles
With that said, we turn to the law governing Wheeler-Batson motions. Under article I, section 16 of the California Constitution, a defendants right to trial by a representative jury is violated by the use of peremptory challenges to exclude jurors solely on the basis of group bias. Group bias exists when a party presumes certain jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds. (Wheeler, supra, 22 Cal.3d at pp. 272, 276.) Batson, supra, 479 U.S. 79, affords similar protection to an accused under the federal Constitutions equal protection clause. "Under Wheeler, there is a presumption that a prosecutor uses his peremptory challenges in a constitutional manner. [Citation.]" (People v. Alvarez (1996) 14 Cal.4th 155, 193.) Therefore, a defendant who believes the prosecutor is using peremptory challenges to strike prospective jurors on the ground of group bias alone carries the burden of establishing a prima facie case of purposeful discrimination. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1122; People v. Alvarez, supra, 14 Cal.4th 155 at p. 193; People v. Arias (1996) 13 Cal.4th 92, 134-135.)
"In ... [Johnson v. California (2005) 545 U.S. 162, 162 L.Ed.2d 129], the United States Supreme Court reaffirmed that Batson states the procedure and standard to be employed by trial courts when challenges such as defendants are made. `First, the defendant must make out a prima facie case by "showing that the totality of the relevant facts give rise to an inference of discriminatory purpose." [Citations.] Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the racial exclusion" by offering permissible race-neutral justifications for the strikes. [Citations.] Third, "[i]f a race-neutral explanation is tendered, the trial court must then decide ... whether the opponent of the strike has proved purposeful racial discrimination."" (People v. Cornwell (2005) 37 Cal.4th 50, 66-77.)
B. Background
Defendant contends the prosecutor improperly excused two prospective jurors he identifies as African American, Juror Nos. 567531 and 559418, and eight prospective jurors he identifies as Hispanic, Juror Nos. 650411, 580048, 466692, 564595, 456708, 429774, 571866, and 546645.
Although defendant asserts he raised timely Wheeler-Batson objections respecting each of the above listed jurors, the record reflects that he did not object when the prosecutor used his first two peremptory challenges to excuse Jurors No. 650411 and 580048. Rather, defendant made his first Wheeler-Batson motion after the prosecutor exercised his third peremptory challenge to excuse Juror No. 567531, and after the court first denied the prosecutors motion to excuse that juror for cause. After the prosecutor exercised the peremptory challenge against Juror No. 567531, defense counsel stated: "Your Honor, there would be a Wheeler-Batson motion." The court responded: "Thats fine. You can put that on the record at the next break."
When the court took the issue up on the break, the following discussion occurred:
"THE COURT: Court continues in session now in the matter of People versus Lopez. There was a request to make a motion by — I believe it was by the Defense, a Wheeler motion. This is a good time to put it on the record.
"[DEFENSE COUNSEL]: Yes, your Honor.
"We made a Wheeler, slash, Batson motion with the exclusion of Mr. 567531 who was the black male, worked for Texaco, very articulate.
"The Prosecution has engaged in the systematic exclusion of minorities with his peremptories. Hes only exercised three peremptories at this point, but each was a minority, the last one being Mr. 567531, who is black. The one before that was Mr. 580048.... Hes Hispanic. The one before that was Ms. 650411 ..., who was also Hispanic surname. And based on the exclusion of Mr. 567531, I thought it was necessary to make the Wheeler-Batson motion.
"Mr. 567531 was certainly willing to do his civic duty. He was very well educated. His experience from the 1970s would not disqualify him. And the fact that he would want to be a willing participant, set aside — rather not the willing participant but set aside his personal concerns and participate in his civic duty, uh, and be fair to both sides would not be reasons for disqualification.
"So it appears that counsel has violated Wheeler and Batson in his exclusion of Hispanics and blacks from this jury.
"THE COURT: Comments by the People?
"[THE PROSECUTOR]: Judge, is it just a general Im excusing minorities? Is that the allegation in general?
"THE COURT: No. In particular were addressing this — this is being addressed to the one particular juror who was called and who was questioned at some length.
"[THE PROSECUTOR]: Okay. Because I had understood [defense counsel] to say that Im excluding blacks and Hispanics.
"THE COURT: Well, hes out of line in his comments. The motion that he made had to do with a particular named juror
"[THE PROSECUTOR]: Yes.
"THE COURT: — and thats all were dealing with here.
"[THE PROSECUTOR]: Okay. Well, with that being said — and I am prepared to make a record on the other jurors if the Court is interested. Um, and actually, in light of that new Supreme Court case, I would like to make a record on the other jurors that you mentioned.
"THE COURT: Go ahead. You can make the record.
"[THE PROSECUTOR]: Sure.
"In regard to Mr. 567531, he did appear to be a black male, but he said so much I think he said he thought over the weekend that he was willing to sacrifice his personal career goals to come in here and give this defendant a fair trial. And when we explored that in questioning, he said that — he flat out said that he would be oriented to the Defense I think is how he answered one of the questions that I asked him. He said so much more that made me think that hed be not a fair juror to both sides. Ill submit it on that.
"I would like to say in regard to Hispanics, my understanding is to call Hispanics a minority anymore is false because my understanding is theyre no longer a minority in the state of California. But with that being said, 650411 appeared to me to be a white or Caucasian lady who perhaps picked up 650411 as a married name. I dont know if the Court has a different observation or not, but she did not appear to be Hispanic at all to me.
"THE COURT: Im not even going to address that because thats not part of the motion.
"[THE PROSECUTOR]: Oh, okay.
"Well, I just wanted to make a record in that regard. She also indicated that she had had negative experiences with law enforcement. She also struck me as somewhat, frankly, weird in her demeanor and her answers.
"In regard to Mr. 580048, who was also named by [defense counsel], he also made comments — he actually snapped at me at one point, didnt like the fact that I was asking him about the situation with his sister which he described as a murder-suicide. And I asked him, are you comfortable talking, and he snapped at me and said, why? What for? Obviously he was not going to be fair with me. And Ill submit it on that.
"THE COURT: The motion is denied.
"The Wheeler motion is denied as related to Mr. 567531. Mr. 567531 made it quite clear in his comments ultimately that he had a leaning toward the Defense in handling this case. His past experience was of such a nature that he had prejudice against law enforcement; and, therefore, the motions denied. And the 567531 excusal is certainly not a violation in any way of the Wheeler theory."
Subsequently during voir dire, defense counsel made a series of six Wheeler-Batson motions, after the prosecutor exercised peremptory challenges to excuse Juror Nos. 466692, 564595, 456708, 429774, 559418, and 571866. In each instance, the court addressed the motions in a summary fashion, stating either that it was noting the motion for the record or denying it. It appears from later comments by the court and counsel that the parties understood the courts responses to constitute a denial of each of the motions.
Defense counsel did not request clarification of the courts rulings on his Wheeler-Batson objections or seek to develop them at the break, as the first Wheeler-Batson motion was handled. It was the prosecutor who first raised the issue and the following discussion occurred:
"[THE PROSECUTOR]: [Defense counsel] has made several Wheeler-Batson motions throughout jury selection.
"THE COURT: Yes, sir.
"[THE PROSECUTOR]: Since we have a sort of a break in the afternoon proceedings, I think it would be a good opportunity to at least make a record on that. I also think that [defense counsel], rather than stating Wheeler-Batson, I think if he just wants to orally make — tell the Court hes got a motion, I think thats a more appropriate way to handle it, for what its worth. And we all know what hes talking about.
"THE COURT: Any comments from the Defense?
"[DEFENSE COUNSEL]: Uh, I probably should protect the record for appeal; so Ill just keep making the Wheeler-Batson. The Courts already ruled on those motions. I dont know whether — what other record we need to make at this point.
"THE COURT: Well, I dont think theres any need for any substantial record keeping in it — in the matter. The appeal process is the appeal process. And certainly I think if you have a concern about a particular juror being excused on Wheeler plus basis just making a motion probably is sufficient.
"[DEFENSE COUNSEL]: Okay. So
"THE COURT: The record
"[DEFENSE COUNSEL]: So if I say I have a motion at this point, Im protecting the record for Wheeler-Batson?
"THE COURT: Yes, sir.
"[DEFENSE COUNSEL]: Okay.
"THE COURT: Does that
"[DEFENSE COUNSEL]: If theres any clarification, maybe we can do it during break then, I guess.
"THE COURT: Thats fine.
"[DEFENSE COUNSEL]: Okay.
"[THE PROSECUTOR]: Can I at least put my — put my positions on the record on these issues? Because [defense counsel] has made these motions, and I know that theres a new case out from the U.S. Supreme Court, and I dont know how its going to be treated by the appellate
"THE COURT: Well, lets hold off for a few minutes. Let me get these jurors in here
"[THE PROSECUTOR]: Thank you.
"THE COURT: — and send them home and then we can put whatever else on the record youd like to put on the record. Okay?
"[THE PROSECUTOR]: Thank you."
After the jurors were excused, the prosecutor stated his reasons for excusing Juror Nos. 580048 and 650411, regarding whom no specific Wheeler-Batson motions were made but were mentioned by defense counsel in his first motion challenging the excusal of Juror No. 567531, set forth above. The prosecutor also stated, at length, reasons for excusing the six jurors who were subsequently excused.
The court then asked defense counsel if he had any comments. Defense counsel responded:
"Based on whats in the record, these were all qualified jurors. [¶] In particular, the young Army specialist that spent eight years in the Army, uh, as well as the County employees. Theres a series, based on the record, of individuals who are identified as black and the remainder with all Hispanic surnames, and the Prosecution has exercised a majority of his challenges against blacks and Hispanics, which gives not only the appearance but appears to be racially motivated based on the current rulings regarding Batson-Wheeler. And, uh, the Court has denied my motions, so Ill let the record speak for itself."
The court then stated its rationale for denying the Batson-Wheeler motions in the first instance:
"My record — my review of these matters is at the time that the exercises were made I concluded that in each instance in which there was a — an excusal by the District Attorney of a peremptory nature it was clear to me in each instance that even though there may have been an overlap of Hispanic name, Hispanic appearance, black or whatever, that there were factors in the responses of these various prospective jurors that made it reasonable for the District Attorney to excuse them. Therefore, I denied the motion, the Wheeler motion and the related motion, by [defense counsel].
"And the Court has advised them that — as we continue with this jury selection process the Court will treat it as if there is an ongoing motion by the Defense of a Wheeler nature on any excusals. And if — at the break that comes up after those, we can discuss those. Unless the Court makes a determination in the meantime of a valid basis upon which for the motion to be given appropriate consideration, the Court will continue to allow those jurors to be excused, and well put on the record whatever is appropriate to put on the record on behalf of the Defense.
"But I think that both counsel have responsibly carried out their functions as — as attorneys should as it relates to peremptory challenges and without any particular reason being that Hispanic is the byword or whatever.
"The record will clearly reflect that a number of the prospective jurors are of Hispanic background and, therefore, although it may seem that theres a lot of Hispanics that are being excused, theyre being excused for a variety of reasons which are appropriate.
"So if you want to put anything more on the record regarding any of these we can put it on the record at the break after the exercises have been — and the Court will give consideration to — to this at the time that a juror is excused. If the Court concludes there is an appropriate basis for a Wheeler motion, I will interrupt the proceeding, well get the jurors out of here, and well — well put something on the record at that point.
"[DEFENSE COUNSEL]: Okay. Your Honor, as I understand you now, I do not have to make the motion at all to protect the record; just wait for the break.
"THE COURT: Thats right."
Later during voir dire, defense counsel stated he was reserving "a motion" after the prosecutor used a peremptory challenge to excuse Juror No. 546645. The court responded: "Yes, sir. The notation will be reflected in the record." No further discussion of Wheeler-Batson issues took place during jury selection.
The prosecution presented its first witness on June 30, 2005. On July 11, 2005, near the end of the prosecutions case-in-chief, the defense filed a motion seeking a mistrial based on "...the systematic exclusion of Blacks and Hispanics by the prosecution during jury selection" The factual basis for the motion was presented as follows: "The Prosecution excluded 100% of the Blacks ([names of two jurors]) called to the box who were not otherwise excluded for cause or hardship and a large majority of Hispanics, including the following: [names of eight jurors]."
The court heard the motion on July 12, 2005. Defense counsel submitted it on the moving papers. The court asked the prosecutor if he had any comments. The prosecutor responded:
"The only thing I wanted to add by way of comment is if the Court could confirm for the record that we currently have three Hispanic people sitting on this jury. Juror Number 4 is a Hispanic male, Juror Number 7 is a Hispanic male, and Juror Number 11 is a Hispanic female. Thats the only thing based — in addition to what weve already talked about at length on this issue that I would like the Court just to make a finding that thats a fact."
The court then stated:
"All right. The Courts considered the motion for a mistrial based upon this allegation, and its denied. [¶] The — there has not been any violation of the Wheeler-Batson issues in this case by the District Attorney. Hes handled this position as it relates to exercising peremptory challenges, for instance, with appropriate consideration and, therefore, its not a situation where theres been some arbitrary dismissal of jurors because of race. [¶] The motions denied."
C. Analysis
On appeal, defendant does not challenge the courts procedure for addressing the Wheeler-Batson issues in this case. However, it does appear to us from the record that the court may have been unfamiliar with the pertinent legal standard for assessing the merits of defendants motions. In summarily denying each motion when it was made during jury selection, the court did not make an express determination on the record as to whether defendant had made a prima facie showing of purposeful discrimination and arguably denied the defense an opportunity to state the basis for each motion and make the requisite showing. The court did later allow the parties to make a record of their respective positions concerning defendants first seven Wheeler-Batson motions and indicated that the parties could make any record they deemed necessary at breaks in the proceedings. However, the court also appeared to advise defense counsel that simply making an objection was sufficient to preserve the issue for appeal. This advice was problematic, however, because a defendant asserting a prima facie case of racial discrimination has the burden of creating as complete a record as possible. (Wheeler, supra, 22 Cal.3d at p. 280)
The Supreme Court reiterated the proper procedure for addressing a Wheeler-Batson motion in People v. Turner (1994) 8 Cal.4th 137: "`When a Wheeler motion is made, the party opposing the motion should be given an opportunity to respond to the motion, i.e., to argue that no prima facie case has been made. At this point no explanation for the exercise of peremptory challenges need be given. After argument, the trial court should expressly rule on whether a prima facie showing has been made. [Citation.]" (Id. at p. 167, see also People v. Snow (1987) 44 Cal.3d 216, 222 ["In subsequent cases [to Wheeler], we have stressed the importance of an express ruling by the trial court as to whether a prima facie case has been shown, thereby requiring some response or explanation by the party exercising the peremptory challenges."].) As this court noted in People v. Cervantes (1991) 233 Cal.App.3d 323: "`The prima facie showing requirement is a distinct step which should be treated as such." (Id. at pp. 333-334.) "Once a prima facie case has been shown, and an explanation tendered, the trial court must make a `sincere and reasoned attempt to evaluate the ... explanation ...." (People v. Snow, supra, 44 Cal.3d at p. 222.)
Although a prima facie finding may be implied when the trial court solicits an explanation of the challenged excusals without first indicating its views on the prima facie issue, that is not what happened here. (People v. Arias, supra, 13 Cal.4th at p. 135.) It is apparent from the courts comments in this case, particularly in regard to the series of six motions following its denial of the defense counsels first Wheeler-Batson motion, that it had already determined that no Wheeler-Batson violation had occurred before it listened to the prosecutors reasons which were simply offered by the prosecutor for purposes of completing the record. Moreover, even though the court asked the prosecutor if he had comments in response to defendants first Wheeler-Batson motion, the court appeared to have found that no prima facie case of discrimination was made by expressly rejecting the grounds that defense counsel offered to establish a prima facie case; i.e., that the first two peremptory challenges were exercised to excuse Hispanic jurors indicated "systematic exclusion of minorities."
Although the court did not follow the proper procedure by making an explicit determination as to whether or not defendant had established a prima facie case of purposeful discrimination, we nonetheless construe the courts actions as an implied finding that the defense failed to make a prima facie case of discrimination with regard to each of the challenged jurors. The record does not disclose what legal standard the court applied to make this finding. We note that since the decision of Johnson v. California, supra, 545 U.S. 162, our Supreme Court has decided Wheeler-Batson issues under circumstances where the trial court "did not articulate the standard it used in ruling that no prima facie case of group bias had been shown as to the excusal" of a particular juror. (People v. Avila (2006) 38 Cal.4th 491, 553; see also People v. Cornwell, supra, 37 Cal.4th at pp. 72-73; People v. Gray (2005) 37 Cal.4th 168, 187.) Thus, in Avila, the court conducted its own review of the record under the assumption the trial courts decision was not entitled to deference, applied the Johnson standard for establishing a prima facie case, and resolved "`the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race." (People v. Avila, supra, 38 Cal.4th at p. 554; see also People v. Cornwell, supra, 37 Cal.4th at p. 73; People v. Gray, supra, 37 Cal.4th at p. 187.) Accordingly, we apply that same standard of review in this case. (People v. Buchanan (2006) 143 Cal.App.4th 139, 146 [adopting the same approach].)
Johnson v. California, supra, 545 U.S. 162, was decided on June 13, 2005, just over a week before jury selection began in this case on June 22, 2005, and reversed People v. Johnson (2003) 30 Cal.4th 1302, 1306, in which the California Supreme Court had held that, to make a prima facie case of discrimination a defendant is required to establish a strong likelihood or reasonable inference of discrimination, stating "the objector must show that it is more likely than not the other partys peremptory challenges, if unexplained, were based on impermissible group bias." In Johnson v. California, supra, 545 U.S. 162, the Supreme Court held that Californias "more likely than not" standard was inconsistent with Batson.
The record as a whole fails to support a reasonable inference that the prosecutors peremptory challenges reflected the discriminatory purpose of eliminating African-Americans and Hispanics from the jury. One basis for drawing such an inference stated in the court below was that the prosecutor challenged one prospective juror who was African American (Juror No. 567531) after he had previously excused two jurors who appeared to be Hispanic (Juror Nos. 650411 and 580048). Another basis stated in the trial court, and asserted by defendant on appeal, was that the majority of the peremptory challenges exercised by the prosecutor were exercised against jurors who appeared to be African-American or Hispanic. However, the sole fact that challenges were used to excuse prospective jurors of a particular race is not necessarily sufficient to state a prima facie case. Although decided before the United States Supreme Court decision in Johnson v. California, supra, 545 U.S. 162 decisions of the California Supreme Court holding that "the removal of all members of a cognizable group, standing alone, is [not] dispositive on the question of whether defendant has established a prima facie case of discrimination" remain instructive. (People v. Young (2005) 34 Cal.4th 1149, 1173, fn. 7; see also People v. Box (2000) 23 Cal.4th 1153, 1188-1189.)
While in some contexts the use of peremptory challenges against mainly African-American or Hispanic jurors might provide an inference of purposeful discrimination, we must evaluate the "totality of the relevant facts" surrounding the use of the challenges. (See Johnson v. California, supra, 545 U.S. at p. 168.) Defendant does not cite us to anything in the record which reflects the ethnicity of the jurors remaining in the panel, or the ethnicity of the jurors ultimately selected. However, the court did point out, after hearing counsels views regarding the series of six Wheeler-Batson motions, that the panel still included "a number of ... prospective jurors ... of Hispanic background," after which point, the prosecutor only exercised one additional peremptory challenge. Also, as seen above, the prosecutor attempted to make a record that the jury included three Hispanic jurors. More importantly, however, the voir dire examination had brought out compelling reasons for striking each of the jurors in question.
1. Juror No. 567531
Defendants first Wheeler-Batson motion concerned Juror No. 567531, whose responses during voir dire indicated he was an African American. Juror No 567531 indicated that he had a negative experience with law enforcement, and went on to describe, at length, an incident that occurred in the 1970s, in which he was arrested and prosecuted after he encouraged his cousin to sneak alcohol into a concert. When his cousin was searched, Juror No. 567531 tried to claim responsibility for the alcohol found, but the police officers threatened to arrest him if he did not stay quiet. When he insisted on standing up for his cousin, officers grabbed him by the arm, choked him, and hauled him to jail. He subsequently entered a plea and received a probationary term. Juror No. 567531 went on to state that he felt minorities, particularly African Americans and Mexican Americans, were not treated fairly. The prosecutor tried to ascertain how his personal experiences would affect him as a juror. The following exchange took place:
On appeal, defendant appears to include in his assignment of Wheeler-Batson error, the prosecutors use of his first two peremptory challenges to excuse Juror Nos. 650411 and 580048. However, the record reflects that defendant did not make specific Wheeler-Batson objections to the excusal of these jurors. Accordingly, he failed to preserve any claim regarding these jurors for appeal. (People v. Avila, supra, 38 Cal.App.4th 491, 557.) We therefore address only the eight jurors regarding whom Wheeler-Batson motions were specifically made and denied.
"[JUROR NO. 567531]: Well, you know, actually, I thought about that over the weekend. I thought about things. Ive got several projects that are going on right now, and Im the project manager over several of them, and, uh, you know, I mean — and, of course, just like the other gentleman, theyll be passed on. And I thought about, well, my career versus his life is what I thought about.
"[THE PROSECUTOR]: And youre pointing at the defendant, Mr. Lopez?
"[A]: Yes, I am. Yes, I am.
"[Q]: Okay. What do you mean by that? Im trying to understand you.
"[A]: Well, I thought about my being selfish and thinking about myself is what I was thinking about or even should I be here on this jury and maybe bring some kind of fairness to it is what I thought.
"[Q]: A special kind of fairness, something
"[A]: Well, yeah. Another perspective, yeah.
"[Q]: Okay. What perspective would that be?
"[A]: Well, I mean, understanding that, uh — I know how prejudiced some things could be, you know. His life and how, you know — how profiling and everything else is done. You know, I know for — if you want me to talk about it.
"[Q]: I want you to be honest, Mr. 567531.
"[A]: Ill be honest. Uh, I believe that people can be judged. As far as he may know someone — this is my opinion. He may know someone that maybe could be in a gang, and that association with that person could, you know, now incriminate him as being part of a gang. Those kind of things. Those are my opinions."
Finally, the prosecutor asked Juror No. 567531 if it was fair to say he was "coming into this trial at least more oriented towards the Defense than my side of the table, at least from the start." Juror No. 567531 responded: "That is fair. Yes, it is." When the prosecutor asked what he could do to win over the jurors mind, Juror No. 567531 expressed that he believed defendant would remain at a disadvantage because it appeared defendant could not afford to "bail out of jail" and was represented by a public defender. Juror No. 567531 observed: "And, of course, if you have finances and hes able to, you know — you know, to finance his defense, things would probably be a lot better for him."
As can be seen, Juror No. 567531 candidly admitted he was leaning towards the defense, and expressed strong doubts, based on his personal experiences, that defendant would be able to receive a fair trial. Moreover, contrary to defense counsels suggestion below, Juror No. 567531 made clear that his negative experience of being arrested and prosecuted, although it happened in the 1970s, informed his current negative perception of the legal system and would affect his ability to be fair. In short, the prospective jurors professed partiality for the defense and mistrust of the legal system disclosed a strong personal bias, as opposed to a group bias, upon which the prosecutor could legitimately and understandably excuse him from the jury. His peremptory removal, standing alone, does not support an inference that the challenges were made for an improper purpose.
2. Juror No. 466692
There likewise existed obvious and persuasive reasons for challenging the other jurors defendant identifies as having been improperly excused. When defense counsel asked the prospective jurors whether there was anything "you feel we should know about any information that might affect your qualifications as a juror," Juror No. 466692 volunteered that, eight years ago, his brother was accidentally shot and killed as a bystander in a bar fight. The people involved were prosecuted in Kern County. When asked if he was happy with how law enforcement handled the case, he responded: "Like I said, I wasnt — Im not too sure about the procedure, but they did get the people that did it." When asked whether the experience might cause him to have any concern about sitting on a homicide case, he responded: "[I]t shouldnt." When the prosecutor tried to elicit more details about the shooting death of the jurors brother, the juror was taciturn in his responses. He stated he did not to know "the full details" and denied speaking to any police officers or sheriffs deputies or attending any of the proceedings in connection with the case. The juror also stated he did not "hear anything about that" when the prosecutor asked if the shooting of his brother was gang-related. The fact Juror No. 466692s brother was the victim of a shooting and his uncommunicative responses regarding his feelings about the legal handling of the case provided reasonable grounds, other than race, for the prosecutor to challenge him, especially in light of the fact that the juror volunteered the information when specifically asked about experiences that might affect his qualifications as a juror. His responses did not explain why or how this experience would affect him.
The next five jurors against whom the prosecutor exercised peremptory challenges — Juror Nos. 564595, 456708, 429774, 559418, and 571866 — all gave responses during voir dire indicating either that they held sympathetic views of gang life or had personal relationships with gang-members, including the very gangs at issue in this case, which might dispose them to be sympathetic towards defendant or unable to be impartial.
3. Juror No. 564595
Juror No. 564595 stated that when he was growing up, he became familiar with the Loma Bakers and had friends in the gang and that they used to come over to his house. He was also familiar with different sets of the gang, including "the Primos" and "Los Crazy Lazies." When he was asked if anybody in his family associated with the Loma Bakers, Juror No. 564595 responded: "I dont know." He became defensive when the prosecutor asked him who some of his friends were who used to come over:
"[JUROR NO. 564595]: Just — you want me to name them.
"[THE PROSECUTOR]: Sure.
"[A]: I dont know. Just people that — its — they dont have to be part of the Loma Bakers. Its just that they know them.
"[Q]: That they what?
"[A]: Theyre known to be over there in that neighborhood. Just like right now youre accusing me of knowing everybody in the Loma Bakers because I lived in that area. You know what I mean?
"[Q]: Im not accusing you of anything. Im just trying to find out things, just trying to ask questions and get information.
"Can you tell us any of the names of any of the people that ran with Loma Bakers that would come over to your house?
"[A]: No."
4. Juror No. 456708
Juror No. 456708 stated she grew up in Wasco and described her work as providing living assistance to mentally disabled people. She responded affirmatively when asked if the lives of people close to her had been touched by gangs. She stated that although her four brothers were not in gangs, they were in "little cliques" and had acquaintances who were gang members. In responding to questions about her views on gangs, she stated that she believed people who joined gangs were people who needed guidance from adults and did not receive it often due to the absence of a parent. When the prosecutor asked her if she thought "gangs have positive attributes," she answered "[y]es," but then was unable to identify specifically what they were. She indicated she had met people who were former gang members who were trying to change their lives and that she thought this was a positive thing when they tried to leave the gang.
5. Juror No. 429774
Juror No. 429774 specifically asked to speak to the attorneys privately without the other jurors present. She then disclosed that she was having problems with her 16-year-old son, who recently had been arrested after taking her car and being pursued by police into an orchard. She stated her son was presently being prosecuted by the district attorneys office and had been in juvenile hall three times. She thought gangs were what caused him to get in trouble and that he was associated with a gang called "Group 13." Juror No. 429774s responses clearly provided reasonable grounds for excluding her as a juror in this case. (See, e.g., People v. Farnam (2002) 28 Cal.4th 107, 138 ["close relatives adversary contact with the criminal justice system" is one ground upon which the prosecutor might reasonably have challenged prospective jurors].)
6. Juror No. 559418
Similar grounds existed for excusing Juror No. 559418, whose brother also had gang connections and adversary contact with the criminal justice system. Juror No. 559418, who defendant identifies as African American, stated that, in the late 1970s and early 1980s, his older brother "was an active member in one of the first gangs in Bakersfield" which he identified as the "Mid City Crips." His brother was arrested a lot by the police department, and has gone to state prison. He still had contact with his brother occasionally.
7. Juror No. 571866
During questioning by the prosecutor, Juror No. 571866 stated he worked as a "moving mortician," picking up people who had died from "the nursing homes theyre at, at the hospital, or ... [the] coroners office ...." Prior to that, he was in the Army for eight years. He was born and raised in Delano. He had experience with the Delano 14 gang when he was growing up. When asked to what extent, he responded, "Um, I have a lot of friends and a couple family members that are all in the gang." He confirmed some were still in the gang, and named one that had been shot and killed the previous week in a gang-related shooting. He also stated that a couple weeks earlier, he had to pick up the bodies of friends who had been killed. In addition, a couple of his cousins had been locked up for gang-related violence. When asked if he thought gangs had good qualities about them, Juror No. 571866 responded: "Yes, I think they have some good qualities in them." When asked what those were, he answered, "Um, they, um — theyre, I guess — some of the parents arent around, so they use each other as a place to, you know, sleep or somewhere to stay because they — they dont want to stay out on the streets all day long. So some of them wont do anything illegal but still have a place to stay."
8. Juror No. 546645
The eighth and final objection was made after the prosecutor excused Juror No. 546645. When the objection was made, the court simply stated that it was noted for the record and defense counsel did not pursue the objection further. Our independent review of the record does not support an inference that Juror No. 546645s exclusion was discriminatory. First, the record does not disclose what her ethnicity was. Second, her responses during voir dire indicated she had difficulty grasping the concept that, as a juror, she would be making factual determinations, and appeared to express a consistent desire to hear and decide the case based on how both attorneys represented their "sides of the story," despite the prosecutors attempt to explain that arguments by the attorneys were not evidence.
In sum, the prospective jurors responses during voir dire disclosed a number of "reasons other than racial bias for any prosecutor to challenge [them]." (People v. Cornwell, supra, 37 Cal.4th at p. 70.) Even assuming the courts implied finding of no prima facie showing is not entitled to deference, our independent review of the record under the standard set forth in Johnson v. California, supra, 545 U.S. 162, yields the unavoidable conclusion that the totality of the circumstances in this case does not support an inference of discriminatory purpose in the prosecutors exercise of peremptory challenges.
II. Juror misconduct
Defendant contends two types of juror misconduct occurred in this case, both involving Juror No. 8. His first claim relates to an allegation that Juror No. 8 was sleeping during trial testimony, which was made in a motion for mistrial filed and heard on July 12, 2005. During the hearing, defense counsel asserted that Juror No. 8 had been sleeping "on a daily basis." Neither the prosecutor nor the court had observed this and the prosecutor complained that, if this were true, he did not understand why defense counsel had waited until "almost the end of my case-in-chief to bring this issue up to the Court." The trial judge acknowledged that he had seen Juror No. 8 with his eyes closed on an occasion noted by defense counsel but observed: "Some people listen with their eyes closed. Some people dont — arent necessarily asleep when their eyes are closed." The court denied the motion for mistrial, explaining: "This juror, who has appeared to be of interest in the case and has been watching and making notes and so forth during the proceedings, has been attentive in the process, and I dont think that the request is appropriate ...." On appeal, defendant contends the court abused its discretion by failing to make further inquiry into the allegation Juror No. 8 was sleeping during trial testimony.
Defendants second claim relates to Juror No. 8 discussing the case with a nonjuror. This issue was raised on July 14, 2005, when the prosecutor disclosed that the deputy sheriff who worked the metal detector told him that Juror No. 8 had made a comment to him about the case. Based on this and the previous allegation of sleeping, defense counsel moved the court to excuse Juror No. 8. The court held an inquiry into the matter, and the sheriff deputy in question testified under oath that his encounter with Juror No. 8 entailed the following:
"This morning I was approached by a gentleman, um, that I recognized from working at my station being one of Department 9s jurors. Um, he approached me and informed me that yesterday at some point, um, a Southside Baker gang member with Southside Baker on his clothes and his — I think a tattoo on him, some part of his body, uh, walked out or walked by where he and, I assume, other jurors were.
"Um, and he said he was — I felt he was concerned by the way he was speaking, and he just wanted me to watch out for — in his words, to watch out for other Southside Bakers because thats, uh, the case that he was sitting on, thats what gang member was shot and killed."
The court then interviewed Juror No. 8 as follows:
"THE COURT: Its been brought to my attention that you have had some concern expressed potentially of your participation in this proceeding as a juror. That conversation led to some reference that was made to the — this officer who was seated at the witness stand at the entry of the courthouse here, and I — I guess what I want to find out is, is there some concern that you have of your being a juror in this case being — are you able to be fair and impartial in doing so and, uh, was that the basis of your expressing some comment to the officer at the magnetometer?
"JUROR NUMBER 8: No, that wasnt the case. Uh, I just didnt think it was appropriate for somebody to be in a courthouse with that on his shirt. He was seen leaving by three or four of the jurors.
"THE COURT: He seemed to what?
"JUROR NUMBER 8: We seen somebody leaving yesterday with a — a gang name on the back of his shirt, and that was what I told the officer. I didnt think it was appropriate for him to be here, to this courthouse in particular. [¶] ... [¶]
"THE COURT: The — I guess the concern is that the Court has is twofold. Number one, its been brought to my attention this morning that there was some conversation with the officer whos at the magnetometer station that may have, in fact, some relationship to the case thats here before the Court. Number one, it seemed to be conversation that this Court has asked the jurors not to discuss any aspect of this matter with others; and secondly, the fact that the circumstance that was expressed to the — to the officer, uh, may have indicated that there may be some concern on your part individually in serving on this jury because of this condition that was discussed.
"JUROR NUMBER 8: I dont think it was concern for me as an individual, more as a member of the jury. Some of the other jurors saw the guy too, and I think that was brought to — I thought it would be more appropriate to bring it to somebodys attention than just ignore it.
"THE COURT: Okay. And how are you aware that this was brought to the attention of other jurors?
"JUROR NUMBER 8: They told me they saw it.
"THE COURT: So in that regard, I guess technically theres been conversation between you and other jurors regarding this situation; is that correct?
"JUROR NUMBER 8: Regarding the individual that left yesterday.
"THE COURT: Okay. Thank you for coming in."
After listening to argument from both sides, the court denied defendants motion to excuse the juror, explaining
"...I think he was very candid in his response about what had occurred and that it had no impact on his ability to be fair and impartial in this case. That was a natural observation of one whos on jury duty once or twice in their lifetime to come in here and when they see a situation like that and bring it to the attention of an officer. I dont — I dont see any problem with that, and I dont think theres any ... reason to excuse this juror.
"This — these comments by [defense counsel] about this juror having been observed sleeping weve already dealt with, and the Court has considered and evaluated and denied any request that he has in that regard. And he, again, is just coming up with something from the past. Thats — that situation has previously been discussed; so — and the Court has ruled; so [defense counsel] wants a second bite at that apple. And Im sorry. Im not going to allow it. So your motion is denied."
On appeal, defendant contends Juror No. 8s comments revealed "an obvious prejudice which he clearly discussed with his fellow jurors, likely improperly influencing them." Defendant also appears to be arguing that the court should have made further inquiry into the incident by questioning other jurors about the incident described by Juror No. 8 and the extent of their conversations about it.
For reasons discussed below, we reject defendants claims and conclude that no abuse of discretion or prejudicial juror misconduct has been demonstrated.
A. Applicable legal principles
"An accused has a constitutional right to a trial by an impartial jury. [Citations.] An impartial jury is one in which no member has been improperly influenced [citations] and every member is `"capable and willing to decide the case solely on the evidence before it" [citations]." (In re Hamilton (1999) 20 Cal.4th 273, 293-294.) The right to an impartial jury means the "defendant is `entitled to be tried by 12, not 11, impartial and unprejudiced jurors. "Because a defendant charged with a crime has a right to the unanimous verdict of 12 impartial jurors [citation], it is settled that a conviction cannot stand if even a single juror has been improperly influenced." [Citations.] [Citations.]" (People v. Nesler (1997) 16 Cal.4th 561, 578.)
Juror misconduct occurs when an event suggests that one or more of the jurors were influenced by improper bias. "When the overt event is a direct violation of the oaths, duties, and admonitions imposed on actual or prospective jurors, such as when a juror conceals bias on voir dire, consciously receives outside information, discusses the case with nonjurors, or shares improper information with other jurors, the event is called juror misconduct." (In re Hamilton, supra, 20 Cal.4th at p. 294.)
Section 1089 provides in part: "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, ... the court may order the juror to be discharged ...." "[A] jurors serious and wilful misconduct is good cause to believe that the juror will not be able to perform his or her duty." (People v. Daniels (1991) 52 Cal.3d 815, 864.)
"The trial courts decision whether or not to discharge a juror under section 1089 is reviewed for abuse of discretion and will be upheld if supported by substantial evidence; to warrant discharge, the jurors bias or other disability must appear in the record as a demonstrable reality. [Citations.] A jurors misconduct creates a rebuttable presumption of prejudice, but reversal is required only if there is a substantial likelihood one or more jurors were improperly influenced by bias. [Citations.]" (People v. Holloway (2004) 33 Cal.4th 96, 124-125; accord People v. Jablonski (2006) 37 Cal.4th 774, 807.) In reviewing the trial courts decision, an appellate court will consider the fact that the trial court is in the best position to observe the jurors demeanor. (See People v. Beeler (1995) 9 Cal.4th 953, 989.)
A trial judge "must conduct a sufficient inquiry to determine facts alleged as juror misconduct `whenever the court is put on notice that good cause to discharge a juror may exist." (People v. Davis (1995) 10 Cal.4th 463, 547; People v. Bradford (1997) 15 Cal.4th 1229, 1348; People v. Williams (1997) 16 Cal.4th 153, 230.) In order to justify investigation, there must be more than mere speculation of juror misconduct. The jurors inability to perform must appear as a "`"demonstrable reality."" (People v. Williams, supra, 16 Cal.4th at p. 231.) Both the decision to investigate and the decision as to whether there was misconduct justifying discharge rest in the trial courts sound discretion. (People v. Bradford, supra, 15 Cal.4th at p. 1347.)
B. Analysis
1. Sleeping juror
We reject defendants first contention that the court abused its discretion by failing to hold a hearing to inquire further into the allegation that Juror No. 8 was sleeping during trial testimony.
The issue of a dozing juror was specifically addressed in People v. Bradford, supra, 15 Cal.4th 1229. In Bradford, the California Supreme Court found that the trial court did not abuse its discretion by failing to conduct an inquiry into a jurors fitness despite the fact that the trial court had observed the juror sleeping at one point during the trial, and was aware that the same juror had slept all day on the previous day. (Id. at pp. 1347-1348.) Bradford sets a high threshold for overturning a verdict based on the failure to adequately investigate a jurors asserted inattentiveness:
"We have observed that `[a]lthough implicitly recognizing that juror inattentiveness may constitute misconduct, courts have exhibited an understandable reluctance to overturn jury verdicts on the ground of inattentiveness during trial. In fact, not a single case has been brought to our attention which granted a new trial on that ground. Many of the reported cases involve contradicted allegations that one or more jurors slept through part of a trial. Perhaps recognizing the soporific effect of many trials when viewed from a laymans perspective, these cases uniformly decline to order a new trial in the absence of convincing proof that the jurors were actually asleep during material portions of the trial. [Citations.] [Citation.] [¶] Although the duty to inquire as to juror misconduct is activated by a lower threshold of proof, in the present case the absence of any reference in the record to the jurors inattentiveness over a more substantial period indicates that the trial court did not abuse its discretion in failing to conduct an inquiry." (Id. at p. 1349, italics omitted.)
The circumstances here clearly fail to meet the high threshold set in Bradford. There, the Supreme Court found no abuse of discretion where the trial court failed to conduct any inquiry, despite evidence that a challenged juror had slept for a substantial portion of at least two trial days. In this case, the only evidence that Juror No. 8 had been sleeping was defense counsels assertion that the juror had been sleeping "on a daily basis," which was contradicted by both the judge and prosecutor who were also in a position to observe the juror. Although the court acknowledged that the juror had his eyes closed on an occasion pointed out by defense counsel, there is no record indication of the juror having his eyes closed or being inattentive for any substantial period. Rather, the judge saw the juror taking notes and otherwise showing an interest during the proceedings. The observation that the juror had his eyes closed on one or two occasions for an unspecified amount of time does not give rise to a demonstrable reality of the jurors inability to perform. On this record, the court acted well within its discretion to conduct no further inquiry into the allegation of Juror No. 8 sleeping and denying the motion for mistrial on this ground.
2. Discussing case with nonjuror
Penal Code section 1122 provides that "jurors shall not converse among themselves, or with anyone else, on any subject connected with the trial ...." Violation of this rule constitutes serious misconduct which then raises the presumption of prejudice. (In re Hitchings (1993) 6 Cal.4th 97, 118-119; People v. Pierce (1979) 24 Cal.3d 199, 207.) Even a single out-of-court conversation by a juror can affect his or her ability or impartiality. (In re Hitchings, supra, 6 Cal.4th at p. 117.)
Here, the trial court met its duty of inquiry into the possible misconduct by taking testimony from the sheriffs deputy and interviewing Juror No. 8 regarding their conversation that morning. Their responses during the hearing constitute substantial evidence supporting the courts express determination that Juror No. 8 was still able to serve fairly and impartially as a juror, and no inability appears as a demonstrable reality in the record. Therefore, the courts failure to discharge him was not an abuse of discretion. The conversation between the deputy and Juror No. 8 was short in duration and was focused on the jurors concern regarding the presence of someone openly wearing clothing and tattoos bearing a gangs name in the courthouse. Although the juror mentioned the victim was a member of the same gang, he did not discuss any other aspect of the case, mention defendant, or express any opinion as to his guilt. It appears the juror was simply trying to report what he had seen and provide some context to the deputy for his concern. He did not try to engage the deputy in a discussion about the case. In responding to the courts careful questioning, the juror made clear his concern did not relate to the case itself or his ability to perform as a juror but was a more generalized concern about an apparent gang member being present in the courthouse. On this record, the court did not abuse its discretion in determining that the jurors concern was understandable and did not reflect negatively on his ability to be impartial.
As to reversal for juror misconduct, the record does not reflect a substantial likelihood the juror was influenced by bias against defendant. We disagree with defendants assertion that Juror No. 8s comments to the deputy "essentially boiled down to `dont let any Southside Baker members in here because [defendant] will murder them, or `dont let any Southside Baker members in here because they will murder [defendant] in retaliation for his murder of one of their members." Defendants interpretation is a strained one, especially considering that Juror No. 8 did not specifically mention defendant or express any opinions about the case in speaking with the deputy. We also find no indication that other jurors were improperly influenced by Juror No. 8s alleged bias against defendant, requiring further investigation by the trial court. Defendants argument in this regard is pure speculation based on Juror No. 8s statements that other jurors told him they too had seen the individual he reported to the deputy. Nothing in Juror No. 8s responses to the courts questions indicated that they discussed anything beyond seeing that individual.
The case law defendant relies on to demonstrate he was prejudiced involved far more serious misconduct. In In re Hitchings, supra, 6 Cal.4th 97, a juror not only discussed the case with a nonjuror while the trial was in progress, saying she thought the defendant deserved to be castrated for his crimes, but also intentionally concealed her pretrial knowledge of the case and then lied at an evidentiary hearing to investigate these matters. (Id. at pp. 110-118.) In People v. Pierce, supra, 24 Cal.3d 199, a juror had promised the trial court he would not, during trial, speak to a police officer who was going to be a witness and who also happened to be the jurors friend. Not only did the juror break this promise, but he specifically contacted the officer because he had questions about the strength of the prosecutions case, and the officer gave him information which relieved his concerns. This occurred after the People had rested and while Pierce was still putting on his defense case. (Id. at pp. 205-206.) Nothing remotely like what happened in Hitchings or Pierce happened in the case at bar.
Our Supreme Court concluded that, "[u]nder these circumstances, the referees conclusion that [the jurors] vitriolic statements were nothing more than `forming impressions about the evidence is not supported by substantial evidence. Instead, it appears `reasonably probable [the juror] had prejudged the case." (In re Hitchings, supra, 6 Cal.4th at pp. 120-121.)
In sum, substantial evidence supports the courts determination that Juror No. 8 was still able to serve impartially as a juror, and no inability appears as a demonstrable reality in the record. Therefore, the courts failure to discharge him was not an abuse of discretion. As to reversal for juror misconduct, the record does not reflect a substantial likelihood the juror was influenced by bias against defendant. Accordingly, we have no basis to conclude that defendant was denied his Sixth Amendment right to an impartial jury.
III. Prosecutorial misconduct
Under the argument heading "Tainted Identification," defendant contends that, during the examination of the victims aunt, Adelaida Moreno, the prosecutor employed "unduly suggestive" tactics to elicit an in-court identification of defendant in violation of his due process rights. Defendant also contends that the prosecutors tactics constituted prosecutorial misconduct. We reject defendants contentions.
A. Applicable legal principles
Preliminarily, we note defendants due process claim rests on inapposite case authority pertaining to extrajudicial identification procedures, namely photographic and physical lineups utilized by law enforcement agents prior to trial. (See e.g., People v. Yeoman (2003) 31 Cal.4th 93, 123; see also People v. Carpenter (1997) 15 Cal.4th 312, 366-367.) "Due process requires the exclusion of identification testimony only if the identification procedures used were unnecessarily suggestive and, if so, the resulting identification was also unreliable. [Citations.]" (People v. Yeoman, supra, 31 Cal.4th at p. 123, citing, inter alia, Manson v. Brathwaite (1977) 432 U.S. 98, 106-114.) The issue, when deciding whether an identification procedure was "unduly suggestive," is "`whether anything caused defendant to "stand out" from the others in a way that would suggest the witness should select him." (Yeoman, supra, at p. 124.)
Defendant does not contend that the witnesss in-court identification should have been excluded as the product of an unduly suggestive pretrial or extrajudicial identification procedure as was contended by the defendants in the cases he cites. Rather, he contends that the prosecutor used unduly suggestive tactics in examining Moreno which caused defendant to "stand out" and thus lead her to identify defendant as the individual who came into her house and shot the victim. The inapplicability of defendants case authority to this context is obvious and does not merit extended discussion. Instead, we review defendants claim solely as one of prosecutorial misconduct.
"The applicable federal and state standards regarding prosecutorial misconduct are well established. `"A prosecutors ... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct `so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves `"`the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." [Citation.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion — and on the same ground — the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]" (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
Defendants misconduct claim focuses on two areas of the prosecutors examination of Moreno: (1) the prosecutors questioning regarding a six-person photographic lineup she was shown four days after the shooting; and (2) Morenos testimony identifying defendant as the person who came into her house. We see nothing in the prosecutors questioning of Moreno which involved the use of deceptive or reprehensible methods, or which infected the trial with unfairness.
B. General background
At trial, two eyewitnesses positively identified defendant as the shooter: Moreno and her daughter, Daphnie Barrera. While Moreno had difficulty recalling what defendant was wearing at the time of the shooting or other identifying features, Barrera described defendant as being tall, having a moustache, and wearing a baseball cap. Her description of defendants appearance, particularly the detail of the baseball cap, was consistent with descriptions given by other witnesses who were at or near Morenos house on May 21, 2004.
In contrast, witnesses described Valles as being bald with tattoos on his head.
Prior to trial, the witnesses did not immediately identify defendant as the shooter. On the night of the shooting, Barrera spoke with Deputy Ryan Dunbier. Deputy Dunbier testified that Barrera told him that the shooter was a Hispanic male, was wearing a baseball cap, and was approximately 5 feet 8 inches to 5 feet 10 inches tall. However, Barrera identified the shooter as the brother of her former roommate. She could only identify him as "Gato," which was Valles gang moniker. Barrera explained to the deputy that she recognized Gato from a photograph her roommate had shown her.
On June 3, 2004, Detective Danny Edgerle showed Barrera a photographic lineup which included defendants photograph in the number five position. Detective Edgerle testified that Barrera studied the photographs for several minutes and hesitated before directing his attention to defendants photograph. Barrera said she believed he was the person in the house on the day of the shooting and that he looked like the person who shot the victim. When asked how certain she was on a scale of one to 10, Barrera replied "six," and noted that the shape of his face was what stood out to her. She also commented that the shooter had been wearing a baseball cap.
On the night of the shooting, Detective Edgerle interviewed Moreno and showed her a photographic lineup which included a photograph of Valles in the number four position. A tape of the interview was played to the jury. Detective Edgerle asked Moreno to look at the photographs and tell him if she saw the person who committed the crime. She pointed to Valles photograph. The detective asked her if that picture was standing out to her. She responded, "Looks like him but I dont know." She also indicated that she thought he was too light and too fat to be the person she saw inside the house. She thought the photograph looked like Hyders brother. When asked, on a scale of one to 10, if he looked like Hyders brother and like the person who came in and shot the victim, Moreno answered "seven."
On May 25, 2004, Detective Laura Lopez showed Moreno the photographic lineup which had defendant in the number five position. Moreno pointed to defendants photograph and stated he was the man present during the shooting and indicated she was positive of her identification. Detective Lopez did not engage Moreno in a detailed discussion regarding his role in the shooting. On cross-examination, Detective Lopez confirmed that Moreno did not tell her that she saw defendant with a firearm, and that she would have documented that in her report if Moreno had done so.
C. Analysis
1. The prosecutors questions regarding the photographic lineup
During direct examination, the prosecutor displayed on a television screen the photographic lineup Deputy Lopez had shown Moreno, and asked: "Okay. Now, uh, do you see the guy in this lineup of photographs? Do you see his picture there, the guy that came in and shot?" Defense counsel interjected an objection based on prosecutorial misconduct and an unreported sidebar was held. After the sidebar concluded, the court stated for the record that the objection had been overruled, and then agreed to defense counsels request to "have a continuing objection to this line of questioning."
Later during a break, the parties made a record of what transpired during the sidebar. Defense counsel stated that he had objected on grounds of prosecutorial misconduct because the prosecutor was leading the witness and implying to the jury that Moreno had previously identified defendant as the shooter to the sheriffs deputies, which defense counsel characterized as a "blatant representation." Defense counsel also moved for a mistrial or, alternatively, to strike Morenos identification of defendant based on the prosecutors subsequent conduct, which is the second area of defendants prosecutorial misconduct claim on appeal. In that regard, defense counsel argued: "And it was also suggestive to this witness, including the identification of the defendant, saying this is the defendant in the green shirt, this is Juan Lopez, do you recognize him prior to her making the identification of Juan Lopez after she had already said she did not recognize Juan Lopez or recognize the gentleman in the green shirt and then said she remembered something about the eyes and the nose ...."
When the prosecutor resumed questioning the witness, he asked her if she recognized any of the people in the photographs from the day of the shooting. Moreno answered affirmatively and the prosecutor then asked her to identify the photograph by stating the number underneath it. Moreno replied, "Five." Next the prosecutor pointed to the photograph she selected and asked her if that was the one she was talking about. Moreno responded that it was. The following exchange then occurred:
"Q. Where do you recognize him from? What did you see him do that day?
"A. He came in — he came in the house.
"Q. And did what?
"A. Shot my nephew."
Skipping a number of steps in the prosecutors line of questioning, defendant asserts:
"The prosecutors conduct in showing Ms. Moreno a blown-up six-pack and then prompting her to identify him as the shooter by stating `do you see the guy that came in and shot and then pointing to [defendant] on the TV screen and saying `what did you see him do was blatantly designed to encourage her to just adopt the prosecutors characterization that [defendant] was the shooter.... There can be no question that the prosecutors action was designed not so much to single [defendant] out, as this had already been done because slot #5 had already been selected in the six-pack, but rather to force Ms. Moreno to identify [defendant] as the shooter by characterizing him as the shooter, then asking her to identify him, thereby adopting the characterization. [Defendant] maintains that this was not only an unduly suggestive, tainted and unreliable identification, but that the prosecutor committed gross misconduct." (Italics in original.)
When viewed in context, we disagree that the prosecutors questions were designed to or had the effect of forcing the witness to identify defendant as the shooter. Defendants above argument implies that the prosecutor jumped directly from asking Moreno if she saw "the guy who came in and shot" to pointing to defendants picture on the television screen and asking her "what did you see him do," thus prompting her to link him to the shooting. This is not what happened. While the prosecutors first question ("Do you see his picture there, the guy that came in and shot?") was arguably leading (the basis of the prosecutorial misconduct objection), any leading effect would have been lessened by the intervening sidebar. When questioning resumed, the prosecutor asked a series of nonleading questions. The prosecutor did not point to defendants picture until after Moreno testified that she recognized someone in the photographs and identified defendants picture without any improper prompting or coaching by the prosecutor. Moreover, defendant cites no authority to support his suggestion that the prosecutor somehow acted improperly by asking Moreno questions about the photograph rather than simply asking her whether she recognized the perpetrator of the crime in the courtroom. The photographic lineup Moreno viewed within days of the shooting was relevant and a proper subject of examination in this case.
2. Morenos in-court identification of defendant
Defendant next contends the prosecutor committed misconduct in his subsequent line of questioning, which ended with Moreno identifying defendant in court as the man who came into her house. This line of questioning unfolded as follows:
"[THE PROSECUTOR]: Q. Okay. I want to direct your attention over across the courtroom.
"For the record — okay? — can you see where Im standing?
"A. (Nods head.) Yes.
"Q. Okay. I want you to look at the man thats sitting down in front of me. Hes wearing a green shirt. For the record, hes wearing glasses. And hes the defendant in this case — okay? Juan Lopez. Okay? I want you to take a look at him. Okay?
"(The witness complied.)
"Q. And if you need to see him from a different angle, just tell us. If you need him to stand up, just tell us, and well do that. If you need him to take off the glasses, tell us and well do that. Okay?
"[DEFENSE COUNSEL]: Objection; leading and compound.
"THE COURT: Overruled.
"THE WITNESS: I — I dont — the glasses — he didnt have no glasses.
"[THE PROSECUTOR]: Q. Okay. Well, do you want him to take the glasses off right now?
"A. (Nods head.) Yes.
"[THE PROSECUTOR]: Your Honor, may I have an order to that effect?
"THE COURT: Yes.
"(The defendant complied.)
"[THE PROSECUTOR]: Q. I want you to be totally honest with us, Ms. Moreno. Okay? Dont tell us anything thats partially not true. Okay?
"First of all, do you recognize the defendant, the gentleman sitting right here, from the night of the shooting? And if you dont, just tell us you dont.
"A. I dont remember.
"Q. Okay. Do you want him to turn at all?
"A. Yes. Just — his eyes and his nose.
"Q. What about them?
"A. I recognize his eyes and his nose, but I dont recall his — if he had one of these.
"Q. Okay. Youre making a motion, and I have to make a record.
"Are you saying a mustache?
"A. Yeah. I dont remember if he had a mustache. I — his eyes and
"[THE PROSECUTOR]: Can I have the defendant turn so she can see him?
"THE COURT: Yeah. Why dont you stand up, Mr. Lopez, and kind of face the witness. And turn so she can take a glance at you, sir.
"(The defendant complied.)
"THE WITNESS: Yes. Thats him.
"THE COURT: Thank you.
"You may be seated.
"[THE PROSECUTOR]: Q. You just said what?
"A. Yes.
"Q. What?
"A. Thats him. Thats the man who came in my house."
Based on the forgoing, defendant now contends:
"The unduly suggestive nature of this move by the prosecutor is unquestionable. He stood behind [defendant], identified what he was wearing, where he was seated, that he was the `defendant and what his name was — a name that would have been known to all of the witnesses via their subpoenas. He had [defendant] stand up, remove his glasses and turn his position before the witness. If ever there was a procedure that caused a defendant to `stand out in a way to suggest the witness should select him, this was it. Naturally, Ms. Moreno identified him, but only as `coming in the house. It was not until further prodding by the prosecutor that she said he `shot my nephew.
This sentence is inaccurate. Moreno did not go on to testify that defendant shot her nephew in this particular line of questioning, which was followed directly by cross-examination. Defendant provides no record citation but he appears to be referring to Morenos earlier testimony regarding the photographic lineup.
"The best evidence of the unreliability of Ms. Morenos identification is the inconsistency of her identifications within minutes of each other. When shown the blown-up six-pack, she identified [him]. When asked to look at him live in the courtroom, she did not recognize him. For these reasons, [defendant] maintains that his due process right to a fair trial was violated, and as such, he respectfully requests that his convictions be reversed."
Defendants argument does not identify any actions by the prosecutor which constituted misconduct. Questioning on direct examination by a prosecutor is not analogous to an extrajudicial identification procedure and language in cases defendant cites about examining whether an identification procedure caused a defendant to "stand out" from other suspects is simply not pertinent here. There were no other suspects with whom the witness was comparing defendant, and defendant offers no authority to support his assertion that it was improper for the prosecutor to point out the defendant to the witness and refer to him by his name or to have him stand, remove his glasses, and turn towards the witness.
In any event, we find nothing inappropriate about the prosecutor asking the courts permission to have defendant move so the witness could view him better, particularly in light of the witnesss testimony that she thought she recognized defendants eyes and nose but not his mustache. According to various witness accounts, defendants appearance had changed considerably since the time of the shooting. Thus, it was not unreasonable or unusual to ask defendant to make minor alterations in his appearance to make it more consistent with how it was around the time of the incident.
In short, defendants allegations of prosecutorial misconduct, unsupported in many instances by citations to the law or to the record, are without substance. We cannot find a single example of "`"deceptive"" or "`"reprehensible"" conduct so egregious that it "`"infect[s] the trial with [such] unfairness as to make the resulting conviction a denial of due process."" (People v. Cunningham (2001) 25 Cal.4th 926, 1000.) Thus, defendant has failed to demonstrate prosecutorial misconduct under either state or federal standards.
IV. Gang expert testimony
On July 11, 2005, defendant filed a motion to exclude the testimony of the prosecutions gang expert, Deputy Adam Plugge, on the ground the prosecutor had "not laid a foundation to show that gang evidence [was] relevant in this case" and that the evidence was therefore highly prejudicial. The next day, defendant filed a motion to exclude the experts testimony on the ground his testimony would improperly reach the question of defendants subjective intent in violation of this courts decision in People v. Killebrew (2002) 103 Cal.App.4th 644, 651 (Killebrew). After hearing argument on July 12, 2005, the court denied both motions.
Based on the same grounds presented below, defendant now contends the court abused its discretion and violated his due process right to a fair trial by denying his motions to exclude the testimony of the gang expert. We reject defendants contention and conclude the court did not err in admitting the testimony of the gang expert, which did not violate Killebrew.
A. Applicable legal principles
It is well settled that gang evidence is admissible if it is logically relevant to some material issue in the case, is not more prejudicial than probative, and is not cumulative. (Evid. Code, §§ 210, 352; People v. Carter (2003) 30 Cal.4th 1166, 1194; People v. Ochoa (2001) 26 Cal.4th 398, 438-439; People v. Ruiz (1998) 62 Cal.App.4th 234, 240; People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.)
A properly qualified gang expert may, where appropriate, testify to a wide variety of matters, including but not limited to, whether and how a crime was committed to benefit or promote a gang; the motivation for a particular crime; a gangs culture, habits, and territory; and rivalries between gangs. (Killebrew, supra, 103 Cal.App.4th at pp. 656-657, and authorities cited therein; see also People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) Such testimony may address the ultimate issue in the case (Evid. Code, § 805; Killebrew, supra, 103 Cal.App.4th at p. 651) and may be based on hypothetical questions derived from the facts of the case (People v. Gardeley (1996) 14 Cal.4th 605, 618). A trial courts admission of evidence, including gang expert testimony, is reviewed for abuse of discretion. (People v. Carter (2003) 30 Cal.4th 1166, 1194; People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.)
California courts routinely admit gang evidence "when the very reason for the crime, usually murder, is gang related. [Citations.]" (People v. Sanchez, supra, 58 Cal.App.4th 1435, 1449.) "Evidence of the defendants gang affiliation — including evidence of the gangs territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like — can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime." (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) Moreover, "[i]n order to prove the elements of the criminal street gang enhancement, the prosecution may, as in this case, present expert testimony on criminal street gangs. [Citation.]" (Id. at pp. 1047-1048; Killebrew, supra, 103 Cal.App.4th at pp. 656-657; People v. Ferraez, supra, 112 Cal.App.4th at p. 930.)
B. Analysis
We reject defendants first contention which suggests that the gang experts testimony was admitted in violation of Evidence Code section 352. The gang expert testimony was clearly admissible as evidence of motive, and was thus highly probative in regard to the murder and conspiracy charges. The Peoples theory, supported by the evidence, was that defendant and Valles mutual gang affiliation, and the bond of loyalty created thereby, compelled defendant to shoot the victim in retaliation for the perceived disrespect shown by the victim and his family to Valles sister. As defendant himself acknowledges, his and Valles gang affiliation "...was highly probative to the Peoples theory of the case." The evidence was also admissible to prove the elements of the gang enhancements alleged in this case.
Defendant appears to be contending that the gang experts testimony should have been excluded as prejudicial because, prior to the experts testimony, there was no evidence suggesting the shooting was gang-related and the witnesses testimony up to that point revealed a "non-gang explanation" for the shooting. Thus, he contends in his opening brief:
"...The evidence showed there was bad blood between Pedro Valles sister, Diane Hyder, and Della Moreno and her family.... Della Morenos family waited until Diane Hyder was out one day, chucked her stuff out of the house into the front yard and changed the locks, forcibly evicting her. Diane Hyder called her brother, and he came over to retaliate. There was absolutely no need to tar these facts with a gang brush, nor was there any testimony up until this point that gangs had anything to do with this case. Neither Della Moreno nor Diane Hyder is in a gang. This was a garden-variety dispute that had reached boiling point. It was the prosecutor who manipulated this scenario into a violent gang murder in order to ensure a conviction because gang violence is such a highly prejudicial and emotional topic, especially in Bakersfield which is rife with gang activity."
Likewise, in his reply brief, he argues:
"...After the Peoples first few witnesses, there was no evidence this was a gang crime. At the point after (1) Daphn[ie] Barrera testified the shooting was not gang-related, (2) Thomas Womack quite obviously was not a `Hispanic street turf gang-banger, and (3) the victims relatives testified he was not in a gang, gang evidence was not more probative than prejudicial. There were arguably multiple explanations/`motives for this shooting. This is where Evidence Code §352 is designed to protect a defendant — the tables were not tipped towards this being a gang crime such that the gang experts testimony was more probative than prejudicial. In fact, the scales were tipped the other way." (Italics in original.)
Defendant cites no authority for his apparent position that relevant gang evidence must be excluded as more prejudicial than probative simply because it conflicts with other witness accounts. Also, as the prosecutor pointed out in arguing against the motion to exclude the evidence, a lay persons opinion that a crime is not gang-related does not demonstrate that an experts contrary opinion lacks foundation, and defendant does not challenge Deputy Plugges expert qualifications or the specific evidence upon which he relied in reaching his opinions. Defendants assertions that there was a non-gang motive for the shooting, while fertile ground for his closing argument, does not support a conclusion that the court abused its discretion in admitting the testimony of the prosecutions gang expert. Deputy Plugges testimony was clearly admissible to explain defendants motive for going to the house with Valles, for getting involved in a dispute in which he had no apparent personal stake, asking for the only person in the house who was a rival gang member (not by name, but by a moniker evidence showed was tattooed on the victims arm), and then boldly shooting the victim multiple times at close range in front of two adult women and their children. The circumstances presented by the evidence in this case amply support the conclusion that this was indeed "a violent gang murder" without any need for "manipulation" by the prosecutor as asserted above by defendant.
We also reject defendants argument that the gang experts testimony violated Killebrew. As with many of his contentions on appeal, defendants argument is based upon an inaccurate and exaggerated view of the evidence. In Killebrew, the defendant was charged with conspiracy by gang members to carry a loaded gun in violation of section 12031, subdivision (a)(2)(C). Darbee, the police officer serving as the prosecutions gang expert, testified that "when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun." (Killebrew, supra, 103 Cal.App.4th at p. 652.) We distinguished Darbees testimony regarding "the subjective knowledge and intent of each occupant in each vehicle" with expert testimony in other cases regarding "the expectations of gang members in general when confronted with a specific action." (Id. at p. 658.) The latter type of testimony generally has been found admissible. However, in the context of the gun possession conspiracy charge, Darbees testimony was "the type of opinion that did nothing more than inform the jury how Darbee believed the case should be decided. It was an improper opinion on the ultimate issue and should have been excluded." (Ibid.)
Here, Deputy Plugge did not purport to testify regarding defendants knowledge, intent, motivations or even defendants specific acts. Apart from his opinions that defendant and Valles were members of the same gang, the experts testimony addressed only general gang culture, the expected conduct of gang members under specified circumstances, and the benefit that the shooting described in the prosecutors hypothetical question would confer upon the defendants gang. The experts testimony did not inform the jury how he believed the case should be decided with respect to either the murder and conspiracy charges or the gang enhancement and gang special circumstance allegations. The jury was permitted to draw its own inferences about defendants intent, knowledge, premeditation, deliberation, and so forth. Furthermore, the jury was instructed it was not bound by an expert opinion, it could disregard any opinion it found was unreasonable, the weight to be given an opinion was for the jury to decide, and the facts of any hypothetical question were not necessarily true.
The trial court clearly did not abuse its discretion by permitting the gang expert to testify in this case.
V. Recording of jail call
Defendant next contends the court erred in admitting during the prosecutions case, and over his Evidence Code section 352 objection, a tape recording of a telephone call made by Pedro Valles from jail to an unidentified male on June 20, 2004.
The subject of the telephone call at issue appears to have been Valles interview with sheriffs detectives on June 20, 2004, in which Valles claimed that he went to the house alone and "smoked that fool" and that defendant "wasnt the trigger man."
Prior to trial, the defense sought to admit a redacted version of the recording, admitting only statements in which Valles appeared to making an admission of guilt to the shooting, and argued that the remainder of the recording was hearsay and highly prejudicial due to Valles use of profanity and his disparaging remarks against witnesses and the jury. The prosecution, on the other hand, took the position that the redacted version would mislead the jury because the rest of the call contained information that was necessary to put Valles statements in context. The court initially granted defendants request just to admit just the redacted portion of the recording, but the next day, reversed itself and found that the entire recording was admissible after the prosecutor argued it was admissible under Evidence Code sections 356 and 1202.
The defense sought to introduce Valles statements towards the beginning of the call, including the following: "... I said look Homes, its like this Homes. If you made a threat and I went by what that fool said and I smoked him. And he goes, `Are you sure you did it or Tony? I said, `Man, what the fuck. I already told you once and Im not going to tell you again. You know...."
When the prosecution sought to introduce the recording during Detective Edgerles redirect testimony, the defense moved to exclude the recording under Evidence Code section 352 because it was "extremely prejudicial," noting, "this is the one where hes saying, fuck you and fuck the jury, I dont give a fuck what the fucking jury thinks." The prosecutor countered that the tape was "totally explanatory of the lies that [Valles] told Detective Edgerle." As defendant notes on appeal, in the recording, Valles expressed his suspicion that Thomas Womack had informed on him. The unknown male then appeared to try to give Valles legal advice. He expressed the view that the charges against Valles would depend on whether witnesses identified him or defendant Valles as the shooter, and he advised defendant Valles to either admit everything or deny everything, to which Valles responded, "Thats what Im doing right now. Im trying." The prosecutor argued that Valles was essentially stating, "Im trying to take the fall for this thing ...." but that the detective knew the truth. The prosecutor referred to his earlier invocation of Evidence Code section 356 and "the 1200 series" to support the admissibility of the tape recording.
Defense counsel disagreed with the prosecutors interpretation of the recording, and stated: "To protect the record on appeal, I would like the prosecutor to specifically point out the reference in this transcript where Pedro Valles says hes taking a fall for my client so that the Court of Appeals, if they see this, will have no confusion about what the prosecutor is talking about because I dont see those words appear anywhere in this transcript."
The court then denied the motion to exclude the recording, noting, "even though its very lewd and crude in the use of the F word and so forth, I think the jurors have heard that so many times already from Mr. — Mr. Valles tape that the defense submitted I think theyve been dulled to any excitement that might come from that crude language."
A. Analysis
Defendant now contends the court erred in admitting the recording because the hearsay exceptions provided in Evidence Code sections 356 and 1202 were not applicable when the People sought to introduce the recording in its own case, pointing out that part of the recording had not already been given in evidence, and Valles did not make any statement in the jail call that was inconsistent with his statements during the recorded interview with the detectives. Thus, defendant contends that the admission of the call was not proper under any hearsay exception and its prejudice effect outweighed any potential probative value. The People fail to address directly defendants contentions, which appear to have some merit. However, even assuming the court erred, defendant has not demonstrated any prejudice under the applicable standard of review.
Evidence Code section 356 provides: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence."
Evidence Code section 1202 provides: "Evidence of a statement or other conduct by a declarant that is inconsistent with a statement by such declarant received in evidence as hearsay evidence is not inadmissible for the purpose of attacking the credibility of the declarant though he is not given and has not had an opportunity to explain or to deny such inconsistent statement or other conduct. Any other evidence offered to attack or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness at the hearing...."
The erroneous admission of hearsay evidence or evidence that is more prejudicial than probative requires reversal only if it appears probable that the outcome would have been more favorable to the defendant absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Pearch (1991) 229 Cal.App.3d 1282, 1293.) Defendant does not address the Watson standard but simply asserts the call "cannot be said to have been harmless, as it painted [defendant] in a bad light by association." Defendant does not explain or support his claim of harm with citation to the record or by identifying particular statements made during the telephone call which demonstrate a reasonable probability that the outcome would have been more favorable absent the error. According to defendants own argument, the evidence "added nothing" and was "superfluous" in that Valles never stated he was not the shooter and his statements were basically consistent with what he told the detectives. Although the call was replete with profanity and expressions of contempt towards the prosecution witnesses and even the potential jury, Valles own trial testimony, and other of his recordings admitted into evidence, reflected similar language and attitudes.
In short, defendant has not demonstrated, and we find no basis for concluding, that it is reasonable probable defendant would have obtained a more favorable result had the trial court excluded the challenged jail call. (People v. Watson, supra, 46 Cal.2d at p. 836.)
VI. CALJIC No. 17.24.3
The defense requested that the court instruct the jury with CALJIC No. 17.24.3. Over defense counsels objection, the court agreed to give a modified version of the instruction proposed by the prosecutor, which told the jury:
"Evidence has been introduced for the purpose of showing criminal street gang activities, and of criminal acts by gang members, other than the crimes for which the defendant is on trial.
"Except as you will be otherwise instructed, this evidence, if believed, may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show that the crime or crimes charged were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. The opinions by Deputy Plugge may also be considered by you in determining if aiding and abetting and/or conspiracy have been proved.
"For the limited purpose for which you may consider this evidence, you must weigh it in the same manner as you do all other evidence in the case." (Italics added.)
On appeal, defendant contends the court erred in allowing the addition of the language concerning Deputy Plugge, in place of bracketed language in CALJIC No. 17.24.3, which reads: "You are not permitted to consider such evidence for any other purpose." The prosecutors rationale below for the modification was that the instruction was misleading in that it erroneously suggested that the jury could only consider gang evidence in connection with the gang enhancement allegations despite authority that the gang evidence was also relevant to the aiding and abetting and conspiracy allegations. Defense counsel countered that the modification overemphasized the experts opinions on those issues, and that other CALJIC instructions properly covered the subject of expert opinion evidence and the use of hypotheticals.
Building on his arguments below, defendant now contends that the instruction incorrectly told the jury that it could consider the gang evidence to determine he was guilty of murder, and that it usurped the jurys factfinding function by "clearly inviting the jury to take the experts opinion as fact." Defendant contends the modified instruction essentially "... advises the jury that if the expert said [defendant] is a gang member and the murder was committed for the benefit of his gang — then the murder did happen and [defendant] is the one who did it." We disagree with defendants arguments.
CALJIC No. 17.24.3 informs the jury that gang evidence may not be considered to prove the defendant is a person of bad character or has a disposition to commit crimes, but only to show the charged offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang. As discussed above, defendants gang affiliation provided a motive for shooting the victim and therefore the gang evidence was relevant and admissible regarding not only the gang enhancements but also the charged offenses. Thus, to the extent the modification told the jury it could consider the gang evidence in determining defendants guilt of the offenses, it was not legally erroneous as defendant claims. Once gang evidence is admitted, much of it is relevant to, and can be considered regarding, the charged offenses. (People v. Hernandez, supra, 33 Cal.4th at pp. 1049, 1053.)
However, even assuming the court erred in failing to give CALJIC No. 17.24.3 unaltered, any error was harmless. People v. Hernandez, supra, 33 Cal.4th 1040 (Hernandez) is instructive. In Hernandez, our Supreme Court found no ineffective assistance in the failure to request such an instruction. (Id. at p. 1053.) As pertinent here, the court also found any ineffective assistance in not requesting an instruction was harmless. It noted that "the jury could properly consider most of the gang evidence on guilt, although not merely as showing that defendants were bad people. No one suggested that defendants should be found guilty solely because they were bad people.... Accordingly, a limiting instruction would not have significantly aided defendants under these facts or weakened the strength of the evidence of guilt the jury properly could have considered." (Hernandez, supra, 33 Cal.4th at p. 1054.)
The facts are comparable here. The gang evidence was admissible to show guilt by showing motive, and no one suggested defendant was guilty just because he was a gang member. Notwithstanding the minor modification, the limiting instruction given here explicitly told the jury that the gang evidence, "if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes." Furthermore, we find no merit in defendants claim that the added language usurped the jurys fact-finding function. Contrary to defendants assertion, nothing in the modified version of CALJIC No. 17.24.3, "invited the jury to take the experts `opinion as fact." Moreover, as mentioned above, the jury was properly instructed on the use of expert opinion evidence and specifically instructed that it was not bound by the experts opinion. For all these reasons, we reject defendants claim of instructional error.
VII. Sentencing error
Defendant contends, the People concede, and we agree that the court erred in sentencing defendant to life without the possibility of parole on count 2 because the gang special circumstance does not apply to the crime of conspiracy to commit murder (People v. Hernandez (2003) 30 Cal.4th 835, 870), and that the proper term for count 2 is 25 years to life.
DISPOSITION
The sentence on count 2 is modified to a term of 25 years to life, stayed under section 654. The judgment is affirmed in all other respects. The matter is remanded to the superior court for issuance of a new abstract of judgment.
We concur:
WISEMAN, Acting P.J.
LEVY, J.