Opinion
D074601
10-22-2019
THE PEOPLE, Plaintiff and Respondent, v. GEOFFREY MICHAEL LOVE, Defendant and Appellant.
Laura R. Sheppard, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Alana Cohen Butler, Marilyn L. George, and Michael Cosgrove, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD275389) APPEAL from a judgment of the Superior Court of San Diego County, Joseph P. Brannigan, Judge. Affirmed. Laura R. Sheppard, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Alana Cohen Butler, Marilyn L. George, and Michael Cosgrove, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Geoffrey Michael Love of shooting a firearm in a grossly negligent manner (Pen. Code, § 246.3, subd. (a)) and found true the allegation that he personally used a dangerous and deadly weapon in the commission of the offense (§ 1192.7, subd. (c)(23)). The court suspended imposition of sentence for three years and granted formal probation, on the condition (among other things) that Love serve 365 days in jail.
Further statutory references are to the Penal Code.
Love appeals. He contends (1) the court abused its discretion by declining to excuse a juror whose wife worked near the scene of the crime and (2) the prosecutor committed prejudicial error by misstating the law during his closing arguments. We disagree and affirm.
FACTS
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts will be discussed where relevant in the following section.
Love lived in a house in the Clairemont neighborhood of San Diego. His backyard was bounded by a wooden fence. Beyond the fence was a busy four-lane street. Love, a veteran of the U.S. Navy, owned several firearms. He struggled with depression and post-traumatic stress disorder.
On January 25, 2018, Love was distraught and called his ex-girlfriend, who was still a close friend. When she failed to answer, Love texted her, " 'I threatened to kill my dad, come over now.' " Love's ex-girlfriend called him back. He told her he had a gun pointed at his head and he wanted to kill himself. He was crying, yelling, and hysterical. Love's ex-girlfriend told him to put down the gun, and she started driving toward Love's home. On the way, she called Love's father, who called police.
When Love's ex-girlfriend arrived at his house, there were already several police cars nearby. The police allowed her to text Love, and she told him that she was still on her way. He responded, " 'I hope you believe I was telling the truth earlier. Mocha [Love's dog] and I are probably going to die soon, I hope it was worth it.' " Love called again, and his ex-girlfriend put him on speakerphone. He was still hysterical, yelling, and crying. He eventually said, " 'How long until you get here? Why aren't you here? You're not coming.' " He started counting down from three.
Meanwhile, police officers approached the fence enclosing Love's backyard. One officer looked through a gap in the fence and saw Love. Love had a cell phone in his left hand, and a handgun in his right. Love was pointing the handgun toward the ground, approximately 30 to 40 degrees up from vertical.
After his countdown, Love fired a single shot. The bullet hit a concrete slab, and a fragment ricocheted toward the wooden fence. It punctured a hole in the fence, and at trial a prosecution expert testified that the fragment likely passed through the fence. The officers near the backyard fence withdrew; they were not injured.
Love's ex-girlfriend and the police officers with her heard the gunshot. She thought Love had killed himself. But several seconds later, Love started yelling again through the phone. Police approached the house and demanded that Love come outside. Love complied and was taken into custody. No one was injured during the incident.
At trial, a defense expert testified it was unlikely that a bullet fragment passed through the fence. Love testified in his own defense. He had extensive firearms training. He kept the handgun for protection at home, and he chose low-grain hollow-point ammunition to minimize the risk of unintentional harm if he were to use it. On the date of the incident, Love was feeling depressed and had been drinking. He was suicidal. He remembered calling his ex-girlfriend and becoming more upset when she did not arrive promptly. He put the gun to his head, walked outside into his backyard, and then let his hand fall downward. He did not know there were police officers behind the fence. Love said he did not remember the shot itself.
DISCUSSION
I
Request to Excuse Juror
During testimony, a juror notified the trial court that his wife worked in the area near Love's house. The juror said "he kind of had an adverse reaction" when he learned the location. The court questioned the juror with counsel, outside the presence of the remaining jurors. The juror explained that his wife worked at an elementary school near Love's house and she parked in a lot generally in the same direction as the gunshot. He said, when he realized that, "it became personal, my wife became involved with it." The court asked whether the juror could still be fair and impartial, and he responded, "I still believe I can be fair and impartial at this point. I won't—I mean, it's something I see more information that might, could change it, but I made sure I bring it to your attention [sic]."
Under questioning by Love's counsel, the juror explained that the location of the incident "hit home" for him. But the juror said that his wife did not mention that anything had occurred, and she was not involved in the incident. The juror agreed that he would be able to set aside his connection to the location and evaluate the case solely on the evidence. He reaffirmed his belief that he could be fair and impartial.
Love's counsel requested that the juror be excused based on his connection to the location of the crime. The trial court declined. It explained that the juror's wife had no actual connection to the incident. It stated, "It's personal to him because she parks nearby, but that's the only involvement, she parks nearby. She may not have even been there at the time of the incident." The court concluded, "I'm satisfied that the juror said he could be fair and impartial and I believe him. The reason he brought this forward is because he takes it very seriously." In testimony soon after this discussion, a police officer referenced the location of the school a few blocks away from Love's house.
Love contends the court erred by denying his request to excuse the juror. "[S]ection 1089 sets forth the procedure for removing a sitting juror." (People v. Boyette (2002) 29 Cal.4th 381, 462.) It provides, in relevant part, as follows: "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, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged . . . ." (§ 1089.) Good cause exists to discharge a juror when the juror loses his or her ability to render a fair and impartial verdict based on the evidence presented at trial. (People v. Warren (1986) 176 Cal.App.3d 324, 327.)
"The decision whether to investigate possible juror bias, incompetence, or misconduct, as well as the ultimate decision whether to retain or discharge a juror, rests within the sound discretion of the trial court." (People v. Maury (2003) 30 Cal.4th 342, 434.) "Before an appellate court will find error in failing to excuse a seated juror, the juror's inability to perform a juror's functions must be shown by the record to be a 'demonstrable reality.' The court will not presume bias, and will uphold the trial court's exercise of discretion on whether a seated juror should be discharged for good cause under section 1089 if supported by substantial evidence." (People v. Holt (1997) 15 Cal.4th 619, 659.) "Moreover, 'a trial judge who observes and speaks with a . . . juror and hears that person's responses (noting, among other things, the person's tone of voice, apparent level of confidence, and demeanor), gleans valuable information that simply does not appear on the record.' " (People v. Romero (2017) 14 Cal.App.5th 774, 781 (Romero); accord, People v. Harris (2008) 43 Cal.4th 1269, 1305.)
Love has not shown the trial court abused its discretion by declining to excuse the juror for cause. Although the juror noted his wife's connection to the location of the incident, the juror repeatedly affirmed that he could remain fair and impartial. The court was entitled to credit the juror's responses and find that the juror could continue to perform his functions and reach a fair and impartial verdict based solely on the evidence presented at trial. The connection between the juror's wife and the location of the incident was not the kind of connection that would necessarily result in bias. The juror's wife did not mention the incident and was therefore presumably unaware it had occurred. While the juror's wife parked in the vicinity of Love's house, there was no evidence that the juror's wife was in actual danger. Under these circumstances, the evidence supports the court's decision that good cause did not exist to excuse the juror, and the court did not abuse its discretion in declining to excuse him.
Love relies heavily on Romero, supra, 14 Cal.App.5th 774, but the juror in that case had a far more significant connection to the circumstances of the crime. In Romero, the defendant was charged with various offenses arising from two sexual assaults against two victims. (Id. at p. 776.) A juror disclosed during trial that "she was a high school teacher and that she was 'very sure' [one of the victims] had been a student of hers about three years earlier." (Id. at p. 779.) The trial court asked whether anything about her contact with the victim would affect her ability to be fair and impartial to both sides. (Ibid.) The juror responded, " 'Not really. She was a good student. I remember positives. But I still think I can be fair.' " (Ibid.) The court declined to excuse the juror, and the defendant was found guilty. (Id. at pp. 779-780.) The charges involving that victim were assault with intent to commit rape (§ 220, subd. (a)(1)) and false imprisonment by violence (§ 236). (Romero, at p. 777, fn. 2.)
The reviewing court held that the trial court's refusal to excuse the juror was error. (Romero, supra, 14 Cal.App.5th at p. 781.) The reviewing court explained that it was "axiomatic" that a juror should be excused "where the juror clearly knew the victim, apparently had frequent personal interaction with the victim in an academic environment . . . and admitted a favorable impression of the victim[.]" (Id. at p. 782.) The court noted that the juror's connection to the victim had a direct bearing on her assessment of the evidence: "That, years later, [the juror] remembered this particular student and could recall both her performance and disposition speaks to the level and depth of the relationship. [The juror's] favorable impression of her former student was especially critical given that the counts involving [that victim] relied on [the victim's] credibility and ability to recall the details of the crime." (Id. at p. 783.)
Here, the juror's connection to the facts of the case was much more tenuous. It was based on the proximity of his wife's workplace to the scene of the crime. Love speculates that the juror "could have felt a credible fear that if Love were not convicted, he might continue to pose the same type of danger . . . to [the juror's] own wife." We disagree. The juror believed there may be a "small remote chance" that his wife could have been affected by the incident, but based on the totality of the evidence the trial court could reasonably have found that any emotional response felt by the juror based on this "small remote chance" was insignificant. It does not appear in the record as a demonstrable reality that the juror would be biased against Love based on the location of his wife's workplace parking lot. Unlike in Romero, where a reasonable person would have great difficulty setting aside his or her positive feelings about a former student who was the victim of a sexual assault, the trial court here could reasonably have credited the juror's assurances that he could remain fair and impartial notwithstanding the "small remote chance" that he referenced. "Bias in a juror may not be presumed . . . ." (People v. Williams (1997) 16 Cal.4th 153, 232.) The court did not abuse its discretion by declining Love's request to excuse the juror.
II
Prosecutorial Error
Love next contends the prosecutor committed prejudicial error by misstating the elements of the crime of shooting a firearm in a grossly negligent manner. The trial court instructed the jury using CALCRIM No. 970 as follows: "To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant intentionally shot a firearm. [¶] Two, the defendant did the shooting with gross negligence. [¶] And three, the shooting could have resulted in the injury or death of a person. [¶] Gross negligence involves more than ordinary carelessness, inattention or mistake[] in judgment. A person acts with gross negligence when: [¶] One, he or she acts in a reckless way that creates a high risk of death or great bodily injury. [¶] And two, a reasonable person would have known that acting in that way would create such a risk. [¶] In other words, a person acts with gross negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act."
In his closing argument, the prosecutor distinguished the element of gross negligence from the requirement that the shooting "could have" resulted in the injury or death of a person. After reading the definition of gross negligence from the jury instruction, he said, "This is so confusing because we literally just had an element that said could—could result in injury or death. Well, that's obviously very different than high probability. Why did they word it this way? I have no idea. It doesn't make any sense. What I can tell you is this. The element, what must be proven, is only a could result in injury." Love's counsel objected that the prosecutor had misstated the law, but the court overruled her objection.
The prosecutor went on, "Element three is could have resulted in injury or death; okay? High probability is trying to help you understand what gross negligence is. It's high probability relative to what? You're not going to get a mathematical equation. You're not going [to] get 80 percent, 90 percent. Pick whatever percentage you want. It's high probability relative to what are we willing to accept; okay?" Later, the prosecutor stated, "And so I wish they didn't use the word 'high probability' because it directly contradicts some risk of injury or—I want to get the quote right. [¶] Could result—could have resulted in injury; okay? It directly contradicts that. But they're trying to explain the term gross negligence. . . . [¶] And they know it's confusing because they go on to explain it further. They literally say, 'In other words, a person acts with gross negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation.' " The prosecutor explained the rest of the definition of gross negligence: "If someone behaves in a way that their actions are a disregard for human life or the indifference to the consequences of that act, if you've done that, you have acted with gross negligence."
In her closing argument, Love's counsel stated, "I disagree with the district attorney. He's trying to lower his burden by telling you that there doesn't have to be such a high risk of injury, only the possibility that this bullet could have caused injury. [¶] But I disagree. Gross negligence is a completely separate element from the third element stating that the shooting could have resulted in the injury or death of a person. That is a completely separate element that the district attorney has to prove. Gross negligence is separate from that."
In his rebuttal argument, the prosecutor returned to the element of gross negligence. He stated, "[W]hen we're talking about gross negligence, we're asking would an ordinarily careful person behave that way; okay? It's not what he thought or what was his mistaken belief. It's would an ordinary, careful person behave that way. Or instead, is this action so different from an ordinary careful person that it amounts to disregard for human life or indifference to the consequences of that act."
"Advocates are given significant leeway in discussing the legal and factual merits of a case during argument. [Citation.] However, 'it is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its . . . obligation to overcome reasonable doubt on all elements [citation].' [Citations.] To establish such error, bad faith on the prosecutor's part is not required. [Citation.] '[T]he term prosecutorial "misconduct" is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.' " (People v. Centeno (2014) 60 Cal.4th 659, 666-667 (Centeno).)
"When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' " (Centeno, supra, 60 Cal.4th at p. 667.) "If the challenged comments, viewed in context, 'would have been taken by a juror to state or imply nothing harmful, [then] they obviously cannot be deemed objectionable.' " (People v. Cortez (2016) 63 Cal.4th 101, 130.)
Love argues that the prosecutor misstated the law by asserting that he did not have to prove gross negligence, only that the shooting "could have" resulted in injury or death. We disagree. Although the prosecutor's repeated use of the word "contradict[]" was misguided, a reasonable juror would have understood the prosecutor to mean that he had to prove both gross negligence and that the shooting "could have" resulted in injury or death. A reasonable juror would have understood the alleged "contradict[ion]" to mean that the two elements had different meanings, not that one cancelled out the other. (See People v. Clem (2000) 78 Cal.App.4th 346, 351-352 [distinguishing the two elements].) Indeed, the prosecutor quoted the definition of gross negligence as stated in the jury instructions and explained why Love's actions met that definition. A reasonable juror would not have understood that the prosecutor was arguing that he did not need to prove the element of gross negligence. Because there is no reasonable likelihood the jury interpreted the prosecutor's argument in an improper manner, Love has not shown prosecutorial error or misconduct.
Love also argues that the prosecutor misstated the law by conflating gross negligence with simple negligence. He focuses on the prosecutor's statement, in his rebuttal argument, that "when we're talking about gross negligence, we're asking would an ordinarily careful person behave that way; okay?" The context of this statement shows it cannot reasonably be understood as a misstatement of the law. The next sentence clarifies that the prosecutor is trying to distinguish an objective standard from Love's subjective belief ("It's not what he thought or what was his mistaken belief"). And the prosecutor immediately went on to explain the heightened standard of gross negligence: "It's would an ordinary, careful person behave that way. Or instead, is this action so different from an ordinary careful person that it amounts to disregard for human life or indifference to the consequences of that act." Given this context, and the prosecutor's other statements discussing gross negligence, there is no reasonable likelihood that the jury understood the prosecutor to be asserting that the standard was simple negligence. Love has not shown prosecutorial error or misconduct. In light of our conclusion, we need not consider whether Love forfeited any claim of error based on the prosecutor's rebuttal argument by failing to object.
DISPOSITION
The judgment is affirmed.
GUERRERO, J. WE CONCUR: HALLER, Acting P. J. AARON, J.