Opinion
C038542. C038666.
10-8-2003
THE PEOPLE, Plaintiff and Respondent, v. MARLON BURRELL SLAFFEY et al., Defendants and Appellants. THE PEOPLE, Plaintiff and Respondent, v. BENNY JUNIOR RAMOS, Defendant and Appellant.
After the substitution of the lone juror favoring acquittal, a jury convicted defendants Marlon Slaffey, Anthony Irwin, and Benny Ramos of first degree murder, and sustained allegations that each of the defendants was a principal in an offense in which a principal was armed with a gun. (Pen. Code, §§ 187-189, 12022, subd. (a)(1).) The court sentenced the defendants to state prison on different dates (also sustaining a recidivist allegation in connection with defendant Ramos (Pen. Code, § 667, subd. (a)), resulting in two appeals to this court that we have consolidated solely for purposes of consideration.
In an unrelated case, the court sentenced defendant Irwin to county jail on his no-contest plea to drug possession.
The defendants raise numerous claims regarding evidentiary rulings, evidentiary sufficiency, errors in instructions and in failing to instruct, prosecutorial misconduct, the removal of the holdout juror, and the failure to remove another juror. Because defendant Ramos is correct that the evidence is insufficient to sustain the verdicts against him, we shall reverse in C038666 with directions to dismiss the charges. Because defendants Slaffey and Irwin are correct that the court erred in removing the holdout juror, we shall reverse and remand. Since the prosecutions theory of vicarious liability will be the central issue at a retrial, we will reach defendants challenge to it. We will not reach the remaining issues since upon retrial the procedures used and the facts presented may be different.
FACTS
Because we reverse for reasons unrelated to the evidence against defendants Irwin and Slaffey and are required to assess the sufficiency of the evidence against defendant Ramos, we limit our narrative to the latter. This includes all the evidence identified in the briefs of either defendant Ramos or the People.
The victim was a drug dealer operating out of his apartment in a complex in Rancho Cordova. There were no eyewitnesses to his fatal shooting on March 29, 1999, and investigators never found the murder weapon. However, there was evidence that the three defendants were present with the victim immediately before the shooting and fled the scene thereafter, though they denied to investigators that they had been present.
The witnesses credibility was compromised, to say the least. Almost all were either currently or previously imprisoned for crimes, and there were inconsistent statements.
Lisa Pittman had known defendant Ramos for years, and had babysat his child. A few weeks before the shooting, she had moved into an apartment next to the victims. She had been among his customers. Shortly thereafter, defendant Ramos came to see her new residence; he brought the other codefendants with him, whom she had not previously met. During this visit, no one used drugs or discussed drug transactions. Defendant Ramos came to visit her again about a week later by himself.
At some point after the second visit of defendant Ramos, the other codefendants came to the Pittman apartment without Ramos. Pittman bought drugs from defendant Slaffey and used them. Defendant Slaffey gave her his pager number to contact him for further purchases.
Jean Burgess, who was another customer of the victim, was at the Pittman apartment the day before the shooting. Burgess testified that she and others often congregated at the Pittman apartment to use drugs. Defendants Irwin and Slaffey were there. She bought drugs from defendant Slaffey, who said he was "back" and gave her his cell phone and pager numbers for placing future orders. She also saw all three defendants in the apartment complex on the afternoon of the shooting.
About 6:00 p.m. on the day of the shooting, John Smith was at the apartment complex. He had known defendant Slaffey since 7th or 8th grade, and was also a friend of the victim. Defendant Slaffey was there with someone he did not know, whom he thought defendant Slaffey called "Kenny." Smith later identified defendant Ramos as this person. The two were near some stairs about 15 to 18 feet away from the apartment of the victim. Defendant Slaffey told Smith that he was selling drugs. Smith warned Slaffey that this would anger the victim, because it was his territory. Defendant Slaffey did not seem concerned. Smith then spoke with defendant Ramos about the latters Mustang, which was red with a white top and chrome rims. Smith had seen the car in the apartment complex the day before. Defendant Ramos offered to sell it to Smith for $6,000.
In his initial interview with a patrol officer at the crime scene, Mr. Smith—consistent with his trial testimony—said he had asked defendant Slaffey "what he was up to"; the latter answered that he was selling drugs. A detective subsequently went to Mr. Smiths home in order to show him photo lineups for the purpose of obtaining identifications of defendants Slaffey and Ramos, not to reinterview the witness, although he did talk generally with the witness after the identifications without going over the patrol officers written report line by line with Mr. Smith. The detectives report (introduced at trial) included Mr. Smiths statement to him that he had seen them selling drugs. The detective admitted, however, that he had never sought to clarify the unclear antecedent of this pronoun with Mr. Smith.
Just after dusk, Pittman was getting out of the bathtub when defendant Ramos knocked on the door. The other codefendants were with him. Because she was not fully dressed, Pittman did not let them in.
Burgess was standing on the stairs a short distance from the door to the victims apartment. She saw Fawn Alford go into the apartment. When Alford left, Burgess followed to see if she could buy some drugs from her. As she walked with Alford to the latters car, three men passed them walking the other way, one of whom she had not seen before (whom she later identified as defendant Ramos) and the other two of whom she knew (the other codefendants). While Burgess was standing at the Alford car, the victim came up to her and castigated her for pestering his other customer. He told Alford to leave. As Alford drove off, she noticed a nice-looking red Mustang with a white top parked on the street outside the complexs parking lot.
Burgess heard defendant Irwin curse at the victim. The victim, in turn, cursed at the defendants and asked defendant Slaffey, "Wheres your mother?" The victim told them to get out of the area.
As Burgess walked away to make use of her purchase, she saw defendants Irwin and Slaffey standing at the rear of a Honda Prelude. She did not see defendant Ramos. She had seen defendants Irwin and Slaffey in the Prelude in the complexs parking lot earlier that day and on the previous day. As she climbed the stairs and lit her pipe, she no longer had a vantage point of the crime scene. Shortly afterward, she heard two cars start up, then a series of gunshots.
About a week after the shooting, defendant Irwin was involved in a traffic accident while driving a burgundy Honda Prelude.
When she was a few blocks from the apartment complex, Alford heard what she thought were fireworks. Lue Yang, a resident of a nearby apartment, was smoking a cigarette on his balcony when he heard the shots. He looked down the street at the intersection, where he saw a red Mustang with a white top and sparking rims turn on its lights and speed off, followed by a yellow four-door wagon (which he was certain was not a Prelude).
Pittman thought the shots were about a half-hour after the defendants had been at her door. She went outside and saw the victim lying on the ground. Smith, who was just coming back to the complex, saw the victim and ran to flag down a squad car passing on the street (which arrived about 11:15 p.m. in response to an anonymous call about the shooting).
Investigators were quickly able to find a red Mustang parked at an apartment complex about two miles to the west next to Goethe Park. Its engine was still warm. Brought to the location of the Mustang, both Smith and Yang were able to identify it as the one they had seen earlier that evening.
While a deputy kept watch over the Mustang, six people walked by it. The deputy asked each of them for identification. The last of them was defendant Irwin.
The investigators spoke with a neighbor, who was familiar with the Mustang and knew that its owner (whom she identified as defendant Ramos) regularly visited the residents of the apartment above her. Searching the upstairs apartment, the investigators found only the woman who lived there and a woman who was staying with her (who admitted at trial that she knew all three of the defendants). Both women denied knowing anyone who owned a red Mustang.
On the day after the shooting, defendant Ramos reported his car as stolen. He mentioned that he had the only key to the car. The investigators had already traced to him the title of the Mustang that they had seized near Goethe Park. An investigator did not find any signs of forced entry or the operation of the car without its ignition key.
When subsequently interviewed, defendant Ramos adamantly denied any knowledge of the shooting, being at the victims apartment complex on the day of the shooting, or being at the Goethe Park complex where the car was found. He claimed he had spent the evening with his girlfriend.
Jerome Glover was a friend of the victim. In an April 1999 extrajudicial statement to sheriffs detectives that he repudiated at trial, he claimed to have had two encounters with defendant Slaffey in March 1999. During the first, defendant Slaffey indicated his plan to rob a drug dealer who had a large amount of cash, and take over his territory. The second was an hour or two before the shooting, at a bar about a block away from the apartment complex; defendant Slaffey was in a red Mustang parked outside the bar. He could not identify either defendant Irwin or Ramos for the detectives.
DISCUSSION
The defendants arguments are both joint and several. We have amalgamated them, and will not identify who is making a particular argument except where it is specific to one of them.
I. The Sufficiency of Evidence Against Defendant Ramos
A
The defendants moved for a judgment of acquittal. (Pen. Code, § 1118.1.) In discussing the prosecution case against defendant Ramos, the court noted, "The best that can be said, I think from the evidence, he was very close standing by [defendant Slaffey] when Mr. Smith saw him earlier that day, and when your client offered to sell him the car for $6,000, as I recall. But I think, fairly stated, its pretty hard to pin the drug sales on your client as distinguished from [defendant Slaffey]. [& para;] However, theres plenty of evidence that your client was in or about both facilities that were talking about here . . . . [& para;] . . . [¶] And hanging out with both of the other defendants several times during the same day." In denying the motion as to defendant Ramos, the court also pointed to the failure of defendant Ramos to leave when the argument began with the victim, and evidence showing a consciousness of guilt on the part of defendant Ramos (his flight and efforts to cover up his presence).
The prosecutor abjured any effort to prove which defendant actually shot the victim (other than to suggest he believed that defendant Slaffey was the most motivated person as the actual seller of the drugs). Instead, he argued a theory of liability premised on defendants Irwin and Ramos aiding and abetting defendant Slaffeys plan to poach on the victims territory through selling drugs in the apartment complex, with the murder of a rival drug dealer as a natural and probable consequence of this illicit compact. The trial court instructed the jury on this theory of liability. During deliberations, the jury asked whether it must find all three principals guilty of the same degree of murder under this theory of vicarious liability.
Defendant Ramos renewed his attack on the evidence against him in a motion for new trial. The court again agreed that the sole basis for finding defendant Ramos guilty of the murder would be as a participant in the target offense. However, it felt there was sufficient evidence beyond the mere association of defendant Ramos with drug dealers and drug users to support his convictions.
In so doing, he conceded there was sufficient evidence to convict him of the related offense of being an accessory after the fact (Pen. Code, § 32) but not to convict him either as a perpetrator or an aider/abettor of the murder or the target offense. He suggested that the court modify the verdict if it intended to deny the motion for new trial. The court correctly declined this unilateral request. A court is not authorized under Penal Code section 1181, factor (6), to modify a judgment to apply to an offense that is merely related to the offense charged. (People v. Lagunas (1994) 8 Cal.4th 1030, 1034.)
B
Although People v. Johnson (1980) 26 Cal.3d 557 is most often cited for resolving all conflicts in the evidence or inferences in favor of the People (id. at p. 576), too often ignored is its admonition that we must determine if a reasonable trier of fact could have found a defendant guilty. (Id. at pp. 577-578.) To that end, we must discern if the evidence is "substantial," i.e., "reasonable, credible, and of solid value." (Id. at p. 578.) Although inferences may constitute substantial evidence in support of a judgment, they must be the probable outcome of logic applied to direct evidence; mere speculative possibilities or conjecture are infirm. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633; Louis & Diederich, Inc. v. Cambridge European Imports, Inc. (1987) 189 Cal.App.3d 1574, 1584-1585; People v. Berti (1960) 178 Cal.App.2d 872, 876 (Berti).) "A legal inference cannot flow from the nonexistence of a fact; it can be drawn only from a fact actually established." (Eramdjian v. Interstate Bakery Corp. (1957) 153 Cal.App.2d 590, 602; accord, People v. Stein (1979) 94 Cal.App.3d 235, 239; Evid. Code, § 600, subd. (b) [inference logically drawn from facts found or established].) A doubtful or uncertain fact must inure to the detriment of the party with the burden of proof on the issue. (Reese v. Smith (1937) 9 Cal.2d 324, 328; People v. Tatge (1963) 219 Cal.App.2d 430, 436.) Whether an inference rationally flows from the evidence is a question of law. (California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal.App.3d 1, 44-45 (California Shoppers); Berti, supra, 178 Cal.App.2d at p. 876.)
Mere presence at the scene of a crime, even if combined with knowledge of its commission and the failure to prevent it, does not amount to aiding and abetting. (People v. Nguyen (1993) 21 Cal.App.4th 518, 529-530 (Nguyen).) "[T]he weight of authority and sound law require proof that an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent . . . of . . . encouraging or facilitating commission of[] the offense." (People v. Beeman (1984) 35 Cal.3d 547, 560.)
C
The evidence shows that defendant Ramos associated with the other codefendants in his car and at the complex, was present one time when defendant Slaffey sold drugs, and was present at least at the start of the confrontation with the victim. However, entirely absent is any evidence of any affirmative act on the part of defendant Ramos, beyond his presence with probable knowledge of his codefendants purpose, to facilitate or encourage intentionally the sale of drugs in a rival dealers territory.
Although the People assert in conclusory manner that the evidence showed "Ramos was a major factor in [the] plan to take over [the victim]s" territory and "played an active role in the sales and even in the murder," the only action of defendant Ramos that the People specifically identify is bringing the other codefendants with him when he visited Pittman at her new apartment. However, Pittman testified there were no discussions or use of drugs on this occasion. In the absence of affirmative evidence from which to infer his knowledge of and intent to facilitate or encourage defendant Slaffeys purpose of selling drugs to Pittman in the future, the inference does not rationally flow from this action. Rather, it is mere conjecture. "This brings us to . . . the suggestion that the jury could have disbelieved [the witness] . . . . This suggestion provides the basis for [the] argument that such disbelief could itself have supported an inference [to the contrary]. [& para;] The law is to the contrary. If a witness testifies, for instance, that it was not raining at the time of [a] collision, and if the jury disbelieves that testimony, such disbelief does not provide evidence that it was raining at the time of the collision." (California Shoppers, supra, 175 Cal.App.3d at p. 48; accord, Estate of Kuttler (1960) 185 Cal.App.2d 189, 198 ["[r]ejection of their testimony does not create evidence to the contrary of what is thus discarded"]; 31A Cal.Jur.3d (2002) Evidence, § 785, p. 483.)
The People assert, with no support in the evidence, that "[Ramos] participated in the confrontation which led to [the] murder." According to the testimony of Burgess we related above, only defendant Irwin said anything to the victim, who otherwise only directed a comment specifically to defendant Slaffey. There is not even any direct evidence that defendant Ramos was present immediately before the shooting, because Burgess did not recall seeing him nearby as she walked away.
The People, like the trial court, attempt to use the efforts of defendant Ramos to cover up his presence at the shooting as supplying the necessary evidence of intentional facilitation or encouragement. However, "consciousness of guilt" is not some protoplasmic substitute that can flow into and fill all evidentiary voids in the Peoples case. It is merely another inference of the state of mind of a defendant, insufficient of itself to prove guilt (see CALJIC No. 2.03). This fact, in turn, can be used in resolving disputes between innocent and culpable explanations for the affirmative evidence in a case. Since the evidence showed defendant Ramos was most likely lying about his car being stolen, the jury could infer his consciousness of guilt. It could then use this inference to reject his alibi and accept the affirmative testimony placing him at the scene of the murder and fleeing thereafter. Any further inferences regarding his direct culpability for the murder itself would be attenuated enough, let alone using the inference of guilt by itself to supply affirmative evidence of his intent to facilitate or encourage the sale of drugs.
As a result, the evidence is insufficient to support a theory of vicarious liability for the murder as a consequence of participation in the target offense of selling drugs in a rivals territory. Although this does not require reversal if there is another factually adequate basis for conviction (People v. Guiton (1993) 4 Cal.4th 1116, 1122, 1129 (Guiton )), the present case comes squarely within Guitons hypothetical exception to this rule: "[R]eversal might be necessary if the record affirmatively demonstrates there was prejudice . . . . We may, for example, hypothesize a case in which the district attorney stressed only the invalid ground in the jury argument, and the jury asked the court questions during deliberations directed solely to the invalid ground." (Id . at p. 1129.) Both circumstances are present here.
Moreover, there is no adequate alternative ground. Nor do the People suggest one. The trial court recognized this in ruling on the motion for new trial. The same infirmity infects a theory of vicarious liability for the murder itself: there is no evidence of any act on the part of defendant Ramos from which one could infer an antecedent intent to facilitate or encourage the murder. As for direct liability for the murder, we only have evidence that defendant Ramos falsely denied being present at the scene of the murder. There is no evidence of a motive or evidence connecting him with the gun. This is insufficient. We shall thus reverse with directions to dismiss the case in C038666.
II. The Removal of the Holdout Juror
As sometimes happens, the course of jury deliberations was not smooth in this case. The defendants fault the trial courts efforts to deal with the deliberating jurors problems with one another and the courts decision to remove the one juror that was refusing to return a guilty verdict. We will first set out the lengthy record relevant to these issues.
A
The jurors began deliberations on Monday afternoon. Over the course of the next three days, the jury requested rereads of the testimony of several witnesses, and (as earlier noted) inquired about vicarious liability.
Friday afternoon: The presiding juror (Juror 9) sent a note asserting that "[o]ne juror has consistent[l]y demonstrated an unwillingness to follow the instructions of the court. She has an inability to make a decision on any evidence related to this case."
The court met with counsel, expressing its reluctance to intervene in deliberations at this point beyond reinstructing the jurors that not all instructions were necessarily applicable to the facts as the jury found them, and that the defendants were entitled to the individual consideration of each juror. All parties concurred in this course of action. After rereading CALJIC Nos. 17.31 and 17.40, the court also urged the jurors to treat their dissenting colleague with congeniality and respect, so that she would not be intimidated into abandoning a conscientious disagreement with the rest of the jurors. The court asked the jury to retire to discuss the tenor of the reread instructions, after which it was free to recess for the day and return on Tuesday.
After the jury retired, Juror 9 sent another note to the court. "One juror has consistently vacil[l]ated between being satisfied beyond a reasonable doubt that facts A, B, C, D, [e]tc. are true/false; yet when forced to make a decision about guilt or innocence, the juror decides that there is new reasonable doubt! The juror continually advances irrational conclusions despite an inability/unwillingness to articulate these conclusions to the other jurors. Eleven jurors are in agreement with this statement." The court excused the jury and directed counsel to appear on Tuesday morning to discuss the matter.
After counsel departed, Juror 11 appeared in the courtroom with the jury commissioner. The commissioner conferred with the court, then asked Juror 11 to go to the commissioners office and write out her concerns. The commissioners office delivered the following note to the court at 4:15 p.m. from Juror 11 in a sealed envelope: "Thank you for taking the time to read this. [¶] Throughout the deliberations on the case, I have had a difficult time coming to a conclusion beyond a reasonable doubt. The members of the jury have become increasingly upset with me. Some have yelled at me, sworn at me, openly made fun of me, and told me that I need professional psychiatric help. I know they would like to replace me with an alternate. However, I feel like I have a valid argument in this case and do not wish to be replaced. [¶] I do not expect any sympathy or resolution [sic] in this matter. My purpose in writing to you is strictly to make you aware of what has been going on in the jury deliberation room. I am devastated and appalled at what has taken place, and thought that you should know about it."
Tuesday morning: Deliberations briefly resumed. After a while, the court received a note from Juror 9 that asserted, "Our `problem juror can no longer deliberate because she has thrown her notes away. She states that she was under the impression that we were finished. Help!!"
After bringing the jury back into the courtroom, the court first admonished the jurors not to speculate as to the substance of any of the courts inquiries with a specific juror, or to reveal the substance of their deliberations during any inquiries. It then excused all jurors except Juror 11.
The court inquired whether the other jurors were any more collegial toward her that morning. Juror 11 claimed that their attitude toward her was still the same. In particular, she noted someone made a sarcastic remark about her, and someone else had called her a bitch. She claimed the other jurors would not let her finish expressing her views without interruption. She identified Juror 9 as the person who had suggested that she needed psychiatric help. As a nonconfrontational person, she found it stressful to deal with people yelling at her. She noted that she was the only juror who did not view the case in the same way as the others. She believed she could continue deliberating with the rest of the jurors after the court admonished them regarding collegiality, but noted that she did not think she was skilled at convincing others of the merits of her conclusions. Turning to the subject of the destruction of her notes, she said she had had been "distraught" on Friday because she had thought there was a hung jury. She therefore had thrown her notes into a wastebasket in the jury room before talking with the jury commissioner, because she thought the trial was over. She was contrite about her error, but asserted she could deliberate without her notes (which had consisted of approximately 15 pages). Despite the courts admonishments about revealing the nature of the split in their vote, the notes from the jurors and Juror 11s response to the courts questions made clear that the other 11 jurors were contemptuous of her desire to vote not guilty.
As defense counsel later noted in arguing for a mistrial, the court had stated in chambers, "[T]his is 11 to one. Come on guys, how are we going to call this a mistrial?" Additionally, in its initial remarks before later questioning Juror 9, the court stated, "youd have to be probably on another planet not to realize how youre split in this case . . . ."
After a brief conference with counsel in chambers, the court excused the jury for lunch. The court expressed its belief that Juror 11 seemed "adamant in her position and fairly rigid with respect to listening to others points of view." The defendants moved for a mistrial on the ground that further deliberations would not resolve the deadlock and the majority would bring improper pressure to bear on her to change her vote. Defense counsel also remarked that there was no obligation for a juror even to keep notes, thus Juror 11s destruction of hers was immaterial; the court responded, "Youre preaching to the choir there."
The prosecutor claimed the court should dismiss Juror 11 for a refusal to deliberate in good faith. He believed Juror 11s destruction of her notes indicated an unwillingness to rethink her position.
The court did not think a mistrial was warranted at this point, and believed a sterner admonition about collegiality might help further deliberations. It was disturbed about the destruction of the notes, but recognized this was a product of frustration at an emotional moment, and it would be seen whether or not Juror 11 was able to deliberate without them. It also did not find any grounds for dismissing Juror 11. The prosecutor urged the court to question the other jurors, because the court could not otherwise properly rule on his motion to dismiss Juror 11 based solely on her responses without hearing facts from other jurors that might support the motion (citing People v. Castorena (1996) 47 Cal.App.4th 1051 (Castorena)). The court said it would deal with that inquiry if its "fatherly chat" with the jury proved fruitless.
The court erroneously believed the United States Supreme Court had granted review in Castorena, and thus the case had "no value in my court, except I will note the facts are similar to this case."
Tuesday afternoon: Following the lunch recess, the court changed its mind and decided to question Juror 9 to get a better sense of what difficulties it should address in any additional instructions on collegial deliberations. When asked how Juror 11 might be frustrating the deliberative process, Juror 9 responded that he felt she was purposely disregarding factually apposite instructions. He claimed that Juror 11 told the jury that she could not continue because she no longer had her notes and did not think the notes of other jurors or exhibits would help refresh her memory. Juror 9 claimed he had not seen her notes in the wastebasket in the jury room as he straightened up before leaving. Juror 9 did not think tempers had flared, despite the frustration with Juror 11. The other jurors had provided Juror 11 with the opportunity to express her thinking without interruptions, but she was only able to describe her reasoning in the broadest terms. He asserted no one had ridiculed her or called her any derogatory names. He acknowledged that a "suggestion was made [that] she needs professional assistance," but did not admit being the source of the comment. In conclusion, Juror 9 stated the consensus of the group was "that her behavior, for whatever reason, has become sufficiently erratic that she is no longer functioning in a capacity that would allow her to make an informed decision." Juror 9 expressed his personal belief (the basis for which the court did not question) that Juror 11 was not entirely rational. The court, however, subsequently remarked that it had not seen any signs of irrationality in the 10 weeks that Juror 11 had been in the courtroom. Indeed, when a transportation officer made a disparaging remark during trial about one of the defendants in front of Juror 11 in an elevator, the court had asserted that Juror 11 "has a lot of integrity. When she says she didnt hear everything, I tend to believe her," and the prosecutor asserted that he wished to keep her on the jury despite the negative impression she might now have of law enforcement officers. During arguments on a motion for new trial, counsel for one of the defendants reminded the court and other counsel that they had never seen Juror 11 display any signs of irrationality throughout the lengthy trial.
However, the bailiff, who had been assisting in the process of cleaning up the jury room, told the court in chambers that it would have been possible for Juror 11 to have thrown away her notes without Juror 9 observing it.
Following a brief conference in chambers, the court announced it would question the entire jury about whether Juror 11 had said that she could not deliberate without her notes (the court being disturbed about the conflict between Jurors 9 and 11 in this regard), and the degree to which she was allowed to express her views. The prosecutor also asked the court to inquire about name-calling, and moved to dismiss Juror 11 in the event it appeared that she was not being honest with the court.
Jurors 1 to 4 gave substantially similar answers to the courts questions. They believed the deliberations had been generally civil, though at times tense. All of the jurors had reasonable opportunities to express their views, though Juror 11 did not communicate her reasoning well and seemed to have trouble coming to a decision. This resulted in some disparaging remarks about her abilities, but otherwise there was not any name-calling or yelling except for Juror 9s remark about Juror 11s need for psychiatric help, and several jurors had chastised him for it. As for the note destruction, Juror 9 had been trying to elicit further reasoning from Juror 11 that morning, when she told him that she had thrown away her notes. She did not explain why she took this action. She told Juror 9 it was thus hard for her to give the basis for some of her conclusions. However, this was no different than her failure all along to explain the basis for her reasoning. The jurors differed on the degree to which Juror 11 had referred to her notes during deliberations. According to Juror 3, Juror 11 had expressly asserted that she could continue to deliberate without her notes.
The individual questioning had begun at 3:00 p.m. As the process was taking 15-20 minutes per juror, the court adjourned at this point for the evening.
Wednesday morning: The prosecutor announced that he had searched for criminal records for Jurors 9 and 11 "in light of the credibility issues." He claimed he was unsuccessful with respect to Juror 9 because the name was too common and he did not have any other identifying information. He found that a person with the same name as Juror 11 had been cited and released in November 1996 for petty theft. The printout apparently indicated there were no charges filed against the person because she successfully completed diversion. (Pen. Code, § 851.6.) The prosecutor introduced a copy of the one-page printout as an exhibit.
Unfortunately, Juror 11s name appears throughout this and other exhibits on the issue. This court will obliterate the references, and requests counsel to do the same with their copies.
Taking a different tack from his previous efforts to dismiss Juror 11, the prosecutor now argued that this new information demonstrated that she had falsely answered several questions on her juror questionnaire. In particular, she had answered "no" to questions asking whether she had been arrested or charged for any crime, or whether she had any previous contacts with the District Attorneys office. The prosecutor claimed that he would have exercised a peremptory challenge to Juror 11 under his practice of excluding people with convictions for petty theft, because it is a crime of moral turpitude.
The court also pointed out later that this incident also implicated her answer of "no" to a question asking whether a law enforcement officer had ever behaved in an offensive or unfair manner toward her.
This practice did not extend to people with convictions for drunken driving, since three of them were serving as jurors.
The court believed a citation from a police officer came within the meaning of "arrest" on the questionnaire. Because an independent contractor managed the diversion program under the District Attorneys aegis, the prosecutor argued this was also a contact with his office within the meaning of the question on the juror questionnaire. Defense counsel pointed out that the program operates in such a way that an offender simply shows up in Department 3 without meeting with a prosecutor, where an intern reads the names of eligible offenders who then follow a program representative from the courtroom for processing. Defense counsel argued that a lay person could reasonably perceive this as not being a contact with the District Attorney. Moreover, a citation from a police officer would not seem like an arrest to a lay person. Thus, her responses were technically accurate and did not amount to cause to dismiss on their face.
Indeed, the jurors prosecuted for drunken driving similarly indicated that they did not have any previous contact with the District Attorneys office, and no offensive or unfair contact with a law enforcement officer.
The court put aside the issue of whether her responses were in fact perjurous, and asked the parties to address whether her responses could be inadvertent or intentional, in which case the court could infer bias and dismiss her for cause. (People v. Price (1991) 1 Cal.4th 324, 400-401 (Price); People v. Farris (1977) 66 Cal.App.3d 376, 386-387 (Farris )). However, the court indicated it would find any claim of inadvertence to be implausible, and thus was inclined to dismiss the juror. The court expressed concern that questioning her about the 1996 incident might implicate her privilege against self-incrimination because the prosecutor might bring perjury charges against her. The prosecutor said nothing about this prospect.
The court had its bailiff discreetly determine that Juror 11 had the date of birth specified in the printout. Defendant Irwins counsel asked that the bailiff obtain Juror 9s date of birth at the same time; the prosecutor ran a search, which disclosed there were no offenses other than a speeding ticket.
At this point, the court mentioned (in contradiction of its earlier remarks regarding Juror 11s rationality) that it "would have been curious as to whether she did . . . have a mental health history" because of her unexplained decision to throw away her notes. The court also now expressed doubts about her ability to deliberate without them. However, it felt it did not need to reach these issues because she failed to disclose the 1996 incident. It thus ruled that it would dismiss Juror 11.
After the lunch recess, the prosecutor obtained the police reports underlying the 1996 incident and submitted them as an exhibit. These showed that Juror 11 had been the subject of a citizens arrest by a security guard for shoplifting a 78¢ soda and $1.31 in candy from a 98¢ Clearance Center in November 1996. According to her statement, she had eaten the items while shopping, then forgot to pay for them when she left. The responding police officer noted that she had initially given false identifying information to the security guard. The officer issued her a citation for petty theft. She came back to the responding officer shortly afterward to criticize his ability to write an accurate report of the incident. At this point, to refute any criticism of the prosecutors actions, the trial court revealed that it had asked its bailiff following the questioning of Jurors 1 to 4 to determine whether Juror 11 had ever been admitted to the countys psychiatric facility. The bailiff found the same information that the prosecutor had produced.
The court formally called Juror 11 back into the courtroom, at which time it excused her from further service on the jury.
Motion for new trial: The defendants argued the court simply should have found a deadlock and granted a mistrial, rather than ever getting to the point of dismissing Juror 11. The defendants also argued that the prosecutor was not authorized to check Juror 11 for a criminal history. On the central issue, the defendants argued the court should have questioned her before dismissing her, pointing out ways that would have avoided any perjury problem. Furthermore, the defendants argued Juror 11 legally had the right to answer the questionnaire as she did, because her citation was deemed nothing more than a detention once she successfully completed the class and charges were not filed. The defendants also submitted a declaration from Juror 11. In it, she averred that she had arrived at the courtroom for her citation and went into the hallway upon hearing someone call her name; a diversion program representative told those present that upon successful completion of the program, they would not be charged with an offense. She never spoke with any prosecutor, nor received any correspondence from a prosecutor. Because the police officer did not handcuff her, she did not believe it was an arrest.
The court noted that it had informed counsel at some point (if not on the record) that there was no showing that Juror 11 could be excused for a failure to deliberate or for irrational behavior. It reaffirmed its belief, however, that a reasonable person would have disclosed the circumstances of the 1996 incident, at least as an unfair or offensive encounter with a police officer, so there would not have been any purpose in hearing Juror 11s claims to the contrary. It thus denied this aspect of the motion for new trial.
However, the jurors prosecuted for drunken driving similarly indicated that they did not have any offensive or unfair contact with a law enforcement officer.
B
The defendants briefs suggest the trial court was obligated to declare a mistrial once it learned that a holdout juror was the obstacle to a unanimous verdict for conviction. There is ample authority that a court, in investigating the possibility of a jury deadlock, may inquire only into the numerical division in the vote without asking which result is favored. (People v. Proctor (1992) 4 Cal.4th 499, 538-539; People v. Carter (1968) 68 Cal.2d 810, 815 & fn. 3 (Carter); People v. Talkington (1935) 8 Cal.App.2d 75, 84.) The inadvertent discovery of the nature of the division, however, is not grounds for mistrial of itself, but simply requires close focus on the courts subsequent conduct from the perspective of the holdout(s) in order to determine if it coerced a unanimous vote. (People v. Sheldon (1989) 48 Cal.3d 935, 959-960 (Sheldon); Carter, supra, 68 Cal.2d at p. 816; People v. Barber (2002) 102 Cal.App.4th 145, 152 (Barber); People v. Walker (1949) 93 Cal.App.2d 818, 822, 825.) Simply asking a jury to continue deliberating after finding out the nature of the division in the voting is not considered inherently coercive. (Sheldon, supra, 48 Cal.3d at pp. 959-960; People v. Neufer (1994) 30 Cal.App.4th 244, 253-254.) Thus, the trial court did not err in attempting to facilitate more collegial deliberations after learning the nature of the 11-1 vote.
C
The defendants also contend the court should have declared a deadlock and dismissed the jury. This delicate task, however, is delegated to the discretion of the trial court. (Sheldon, supra, 48 Cal.3d at p. 959.) While the court was aware that further deliberations were unlikely to change Juror 11s mind (noting the rigidity of her mindset), we cannot say its decision to ask the jury to deliberate further was an abuse of discretion in a lengthy trial with witnesses of compromised credibility and only circumstantial evidence of guilt.
D
That brings us to the claim that the trial court erroneously dismissed Juror 11 and erred in failing to grant a new trial on this basis. A trial court may dismiss sitting jurors only for illness or other good cause that makes them unable to perform their duties. (Pen. Code, § 1089, 5th par.) Evidence of bias provides good cause that the juror is unable to perform the duty to be impartial. (Farris, supra, 66 Cal.App.3d at pp. 386-387.) The deliberate concealment of material information during voir dire gives rise to an inference of bias on which a court may proceed despite protests of the juror to the contrary. (Ibid.; Price, supra, 1 Cal.4th at pp. 400-401; People v. Jackson (1985) 168 Cal.App.3d 700, 704-705; cf. Barber, supra, 102 Cal.App.4th at p. 153 [must resolve whether concealment intentional before dismissing juror].)
As the Supreme Court recently reiterated, while we review the decision to discharge a juror for evidence in support of the trial courts discretion, this evidence must show bias as a "demonstrable reality" (People v. Cleveland (2001) 25 Cal.4th 466, 474 (Cleveland)), a quantum greater than mere substantial evidence. (See id. at pp. 487-488 [conc. opn. of Werdegar, J., pointing out that substantial evidence in favor of removing the juror existed].) A finding of bias must rest on affirmative evidence; a court cannot presume its existence. (People v. Compton (1971) 6 Cal.3d 55, 60 (Compton); People v. Bowers (2001) 87 Cal.App.4th 722, 729; Farris, supra, 66 Cal.App.3d at pp. 386-387.)
As Justice Werdegar explained, the discharge of a holdout juror "raises the specter of the government coercing a guilty verdict by infringing on an accuseds constitutional right to a unanimous jury decision. In light of this constitutional dimension to the problem, it is inappropriate to commit to the trial court—subject only to the deferential abuse-of-discretion standard of review on appeal—the important question of the substitution of jurors after deliberations have begun." (Cleveland , supra, 25 Cal.4th at p. 487.)
Thus, decisions continually emphasize the need to question a juror about apparent bias before the court can properly exercise its discretion. (Price, supra, 1 Cal.4th at p. 400 [trial court may discharge the juror "if, after examination of the juror," the record discloses reasonable grounds for inferring bias]; Compton, supra, 6 Cal.3d at p. 60 [error to dismiss based on ambiguous extrajudicial remark without questioning juror]; Barber, supra, 102 Cal.App.4th at pp. 152-153 [error to dismiss juror without questioning both sides in dispute over adequacy of jurors deliberations]; People v. Delamora (1996) 48 Cal.App.4th 1850, 1854-1856 [error to dismiss jurors for hardship without speaking with them]; People v. Castorena (1996) 47 Cal.App.4th 1051, 1066 [error to dismiss juror without questioning, particularly after juror submitted written response to complaints of other jurors; "[a]bsent such inquiry, the court did not have the requisite facts upon which to decide"]; People v. Hecker (1990) 219 Cal.App.3d 1238, 1244-1245 [Compton requires juror to have opportunity to explain possible bias].)
In the present case, although Juror 9s allegations of misconduct were the initial trigger for the courts intrusion into the deliberations, the trial court expressly declined to rule on these bases (later noting during the motion for new trial that it did not believe there was adequate evidence of either). The decision to dismiss Juror 11 rested solely on her purported misconduct in failing to consider the 1996 incident to involve an arrest, a charge, a previous contact with the prosecutors office, or an unpleasant contact with law enforcement. The defendants claim the trial court erred in failing to question Juror 11 about her responses to the juror questionnaire. Under the peculiar circumstances of the prior incident, the wording of the juror questionnaire, and the manner in which the issue arose after learning Juror 11 was the sole holdout for acquittal, we agree that without questioning Juror 11, the trial court did not have an adequate basis to find, as a demonstrable reality, an implication of bias from her answers to the juror questionnaire.
In the first place, Juror 11 was legally entitled to respond as she did to the question about prior arrests or charges. "In any case in which a person is arrested and released and no accusatory pleading is filed charging him with an offense, . . . the arrest shall not be deemed an arrest, but a detention only." (Pen. Code, § 849.5.) This directive is implemented by Penal Code section 851.6 (Loder v. Municipal Court (1976) 17 Cal.3d 859, 869), which in subdivision (d) mandates the deletion of any reference to the action as an "arrest" from the records of the arresting agency and the Department of Justice and requires any such record of the action to refer to it as a detention. Under these statutes, Juror 11 was never charged, and may truthfully answer that she was never arrested, although she must answer (if asked) that she was the subject of a detention, or was accused of a crime. (McMahon v. Municipal Court (1970) 6 Cal.App.3d 194, 200; see People v. Johnson (1993) 6 Cal.4th 1, 22.) This is not, however, the way in which the juror questionnaire posed the question. Without questioning Juror 11, and given this technical defense, we cannot say that Juror 11 intentionally concealed material information in responding that she was never arrested for or charged with an offense.
In fact, as noted above, her declaration in support of the motion for new trial asserted that she did not subjectively consider the encounter an arrest because she was not handcuffed and was merely issued a citation. Therefore, if questioned, she could have provided the trial court with an additional reasonable basis for her answer.
As for her failure to disclose a previous contact with the prosecutors office, the program operated in such a manner that there was no direct contact between a participant and any member of the prosecutors office. Bearing in mind that we should not interpret these questions as jurists but from the perspective of the reasonable lay person, there would be an objective basis for a subjective belief in the accuracy of that answer. Moreover, in her declaration in support of the motion for new trial, Juror 11 gave such a reason for her belief in the accuracy of her answer. Indeed, as we noted above, the jurors actually convicted of drunken driving noted on their questionnaires that they did not believe they had had prior contacts with the prosecutors office, so there must have been some ambiguity in the phrasing of the question. The trial court therefore could not jump to the presumption that Juror 11s answer reflected intentional concealment.
This leaves her failure to include the 1996 incident as an unpleasant contact with law enforcement officials. Again, the answers of the jurors actually convicted of drunken driving indicated the question could be interpreted in such a way as to allow a "no" answer; it may be that with the passage of time and the opportunity to reflect on ones wrongdoing, one could come to the belief that the law enforcement officer was simply performing a job.
The trial courts concern about a perjury conviction was unwarranted. Juror 11s answer to one question was accurate and her answers to the others were objectively possible. It was therefore improper, on these peculiar facts, to presume intentional concealment without first obtaining from Juror 11 her subjective understanding of the questionnaire and her answers to it. Without this information, the court had an insufficient basis from which to imply intentional concealment demonstrating bias. We, in turn, do not find that this record evinces bias as a demonstrable reality and must reverse for an abuse of discretion.
This is not to say that a trial court is obligated in every instance to question the basis for an inaccurate response. We can readily posit factual circumstances that belie any reasonable belief in the accuracy of a contrary response. This is not such a situation.
As the Supreme Court has recently reaffirmed, any error in dismissing a juror does not implicate principles of double jeopardy. (People v. Hernandez (2003) 30 Cal.4th 1.) Defendants Slaffey and Irwin may therefore be retried for these offenses.
III. The Prosecutions Theory of Vicarious Liability
The defendants contend that the instruction on vicarious liability for murder as a natural and probable consequence of the target offense of selling drugs is legally flawed. Because it is central to the prosecutions case, we will address the contention for guidance on retrial.
If one intends to facilitate or encourage another person in the commission of a target offense, one is also guilty of any reasonably foreseeable offense that the other person commits. (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5.) While fault may seem attenuated under such circumstances, liability for criminal offenses attaches to anyone "concerned" in their commission no matter how slight the degree of involvement. (Pen. Code, § 31; Nguyen, supra, 21 Cal.App.4th at p. 529.) To encourage or facilitate an offense intentionally is sufficient to involve one in the target offense and whatever other reasonably foreseeable crimes ones aid or encouragement puts in motion. (Nyugen, supra, 21 Cal.App.4th at pp. 529-530.)
The People are entitled to an instruction on vicarious liability if there is substantial evidence at trial to support it. (Nyugen, supra, 21 Cal.App.4th at p. 528; accord, People v. Prettyman (1996) 14 Cal.4th 248, 269 (Prettyman).) In reviewing the record, a court must determine whether a reasonable person under all the circumstances of the incident should have foreseen the occurrence of the charged crime as a natural and probable risk of the target offense. (Nyugen, supra, 21 Cal.App.4th at p. 531.)
The defendants rely on a generalization in Prettyman to the effect that murder is not a natural and probable consequence of trivial activities. (14 Cal.4th at p. 269.) They then make the analytic error of considering the sale of drugs in the abstract in contending such an activity cannot have murder as a reasonably foreseeable consequence. They compound their error through their effort to analogize to other decisions, which ignores the fact-specific nature of the issue that makes resort to other cases unfruitful because there is different evidence. (State Compensation Ins. Fund v. Brown (1995) 32 Cal.App.4th 188, 202.) Thus, their distillation of a "principle" that only crimes of life-threatening violence can support murder as a foreseeable consequence fails. As we reasoned in Nyugen, gunplay and deaths from "turf wars" among competing drug sellers are far too common both as a matter of reported decisional authorities and "a synopsis of our experience with criminal cases which this court is regularly required to consider" for us to conclude as a matter of law that one cannot reasonably foresee murder as a consequence of assisting or encouraging drug sales in a rivals territory. (21 Cal.App.4th at p. 533.)
E.g., People v. Garceau (1993) 6 Cal.4th 140, 183-184 (issue whether other witnesses were accomplices as a matter of law; court refused to find as a matter of law that murder is the foreseeable result of a drug-selling conspiracy even where a principal has announced an intent to kill any informers), which presents the converse of the issue before us; Price, supra, 1 Cal.4th at pages 442-443 (issue again whether witness, who smuggled messages, drugs, and knives into prison to assist gang, was accomplice; murder outside prison of father of a gang defector was not foreseeable result of any in-prison crimes with which she assisted), which is a factually more attenuated situation than the case before us.
KOLKEY, J., Concurring and Dissenting:
I concur in parts II and III of the Discussion, but I disagree with the majoritys conclusion in part I, ante, that the evidence was insufficient to support the retrial of defendant Ramos on the murder charge. The majority suggests that "we only have evidence that defendant Ramos falsely denied being present at the scene of the murder." (Maj. opn., ante, at p. 14.) But innocent bystanders at the scene of a murder do not speed away with another murder suspect and with their headlights off (to avoid detection) within mere seconds of the murder and then lie the next day about the use of their car and their whereabouts. A reasonable jury could infer that no one, except a participant, reacts that quickly and deliberately following a murder at which he was present. Indeed, the sufficiency of this inference is supported by recent case law. (E.g., People v. Hodgson (2003) 111 Cal.App.4th 566.)
Accordingly, despite the need to reverse the judgment as a result of the error in removing the holdout juror, I would permit the retrial of defendant Ramos for murder.
If there is substantial evidence on retrial that the defendants encouraged or facilitated the sale of drugs in the victims territory (particularly when specifically warned that this would anger the victim), the People will be entitled to an instruction on this theory.
DISPOSITION
The judgment in C038542 is reversed and the matter remanded for retrial. The judgment in C038666 is reversed with directions to dismiss the case.
I concur:
BLEASE, Acting P.J.
A
Our role in reviewing the sufficiency of the evidence in a criminal case is a limited one. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Bolin (1998) 18 Cal.4th 297, 331; accord, People v. Hill (1998) 17 Cal.4th 800, 848-849.)
But "the relevant question on appeal is not whether we are convinced beyond a reasonable doubt, but whether any rational trier of fact could have been persuaded beyond a reasonable doubt . . . ." (People v. Perez (1992) 2 Cal.4th 1117, 1127; People v. Marshall (1997) 15 Cal.4th 1, 34.) "`"`If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." [Citations.]" (People v. Stanley (1995) 10 Cal.4th 764, 793, quoting People v. Bean (1988) 46 Cal.3d 919, 932-933.) That is precisely the case here.
B
The prosecutions chief theory at trial was that Ramos was liable for the murder as an aider and abettor.
The prosecutor also argued in closing that Ramos may have been the shooter.
"[A]n aider and abettors liability for criminal conduct is of two kinds. First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also `for any other offense that was a "natural and probable consequence" of the crime aided and abetted. [Citation.]" (People v. McCoy (2001) 25 Cal.4th 1111, 1117; People v. Prettyman (1996) 14 Cal.4th 248, 260, 267.)
In this case, the prosecutor argued that Ramos could be found liable for the murder as an aider and abettor on either of the two above-referenced theories: Ramos either (1) intentionally acted to aid and abet the murder, or (2) aided and abetted Slaffeys illegal drug sales, with the victims subsequent murder being the natural and probable consequence of Ramoss encouragement of illegal drug sales in a rivals (the victims) territory. The jury was likewise instructed on both theories.
The majority suggests that the prosecutor stressed only the natural and probable consequences theory and that "there [was] no adequate alternative ground." (Maj. opn., ante, at p. 14.) Therefore, relying on dictum from People v. Guiton (1993) 4 Cal.4th 1116 at page 1129, the majority concludes that because the evidence is insufficient to support a theory of vicarious liability based on the natural and probable consequences doctrine, reversal is required. (Maj. opn., ante, at pp. 13-14.)
However, the prosecutor did not emphasize a single theory of aiding and abetting, i.e., the natural and probable consequences doctrine. He also argued that Ramos directly aided and abetted the shooting: "[Ramos] may just as likely be the shooter, but what you know is theyre all in it together. Its a joint enterprise. And given all of the facts that you know leading into this, each one of them aided and abetted the other"; "[t]hose cars starting at the same time is an indication that [Ramos] knew what was about to go down and he was preparing for it or given the fact that the Mustang seat was pushed forward, that tells you one of these things, either he shot Peter Ogbuewu from that driveway, . . . [¶] [or] [h]e dropped the other two guys off there, originally and someone just left the seat forward . . ."; and "it boils down to the real question, which is if they were there, they lied about what they were doing and they lied to cover for themselves and [are] guilty of murdering this guy and they all did it together and planned it[,] or were telling the truth, and we werent there."
In People v. Guiton, supra, 4 Cal.4th at page 1129, the California Supreme Court ruled that "[i]f the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict did rest on inadequate ground." Here, since the prosecutor had two theories of liability, and the evidence is sufficient on the basis of the theory of intentionally aiding and abetting the murder, reversal is not required.
Applying the first theory advanced by the prosecution, there was sufficient evidence from which a jury could properly find that Ramos aided and abetted the murder.
"`A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. [Citations.]" (People v. Hill, supra, 17 Cal.4th at p. 851.)
The majority contends: "[T]here is no evidence of any act on the part of defendant Ramos from which one could infer an antecedent intent to facilitate or encourage the murder. As for direct liability for the murder, we only have evidence that defendant Ramos falsely denied being present at the scene of the murder. There is no evidence of a motive or evidence connecting him with the gun. This is insufficient." (Maj. opn., ante, at p. 14.)
It is true that the evidence does not connect Ramos with the gun because, as the majority observes, "investigators never found the murder weapon." (Maj. opn., ante, at p. 3.)
It is also true that "`mere presence alone at the scene of the crime is not sufficient to make the accused a participant." (People v. Durham (1969) 70 Cal.2d 171, 181; In re Michael T. (1978) 84 Cal.App.3d 907, 911; 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Introduction to Crimes, § 79, pp. 126-127.)
But presence can be one of several evidentiary factors that may justify a finding that the defendant aided and abetted the crime: "Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense. [Citations.] In addition, flight is one of the factors which is relevant in determining consciousness of guilt." (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094-1095; People v. Campbell (1994) 25 Cal.App.4th 402, 409; People v. Mitchell (1986) 183 Cal.App.3d 325, 330.)
In this case, there is more than Ramoss presence at the scene of the murder and more than flight and a consciousness of guilt. Instead, there is a web of circumstantial evidence based on Ramoss presence at the scene of the crime, companionship, his conduct before and after the offense, and his flight, all of which raised a reasonable inference that Ramos directly and knowingly facilitated the commission of the murder: Ramos assisted his codefendants in their illegal drug efforts in the victims territory (giving Ramos a motive to help eliminate him); Ramos was present not simply at the scene of the murder but at his codefendants confrontation with the victim immediately before his murder; Ramos sped away in his car with its headlights off (thereby deliberately avoiding detection) within seconds of the crime; there was evidence that another occupant was in Ramoss car at the time of the escape; and Ramos thereafter lied about his flight and the use of his car. Innocent bystanders at the scene of a crime rarely speed away with their headlights off within seconds of the crime and thereafter lie about their whereabouts. A jury could have reasonably concluded that Ramos assisted in the murder, including the escape of at least one of his codefendants within seconds of the murder by driving him away, based on the following salient facts, which afford the following reasonable inferences:
1. After Slaffey announced to an acquaintance his intent to rob and take over the territory of a drug dealer on the street where the victim lived, Ramos introduced his two codefendants to Lisa Pittman, who lived next door to the victim and whose apartment was a known "smoke house," where people could go to use drugs. A jury could reasonably conclude that Ramos was aiding and abetting Slaffeys efforts to move into a rivals territory because drug dealers are not unintentionally and innocently introduced to the occupant of a smoke house that lies in a rival drug dealers territory.
Unlike the majority, I attribute little significance to the fact that Ramos did not expressly broach the subject of drugs when he first introduced the other defendants to Pittman (maj. opn., ante, at p. 12). That Ramos introduced a drug dealer to a person who allowed her apartment to be used as a smoke house is enough to infer that he intended to facilitate his codefendants collective efforts to expand their drug sales into the apartment complex.
2. Around the same time that codefendant Slaffey passed his pager and cell phone number to others around the complex, letting them know he was "back," codefendant Irwin was heard bragging that he always carries a gun. A jury could reasonably conclude that Ramos was aware Irwin carried a gun in light of the fact that those who boast necessarily do not keep the subject of the boast a secret.
3. Ramos was directly engaged with defendants in the drug sales. On the day of the shooting, witness John Smith saw Ramos and Slaffey outside the victims apartment, and Smith later told police "he saw them selling drugs" and "saw customers coming up and buying drugs from them." From this, too, a jury could reasonably conclude that Ramos had a motive in assisting Slaffey in eliminating any resistance from the victim — a rival drug dealer.
4. On the evening of the shooting, a witness reported seeing Slaffey only a few blocks from the apartments, riding with one or two others in a car identical to Ramoss. From this, a jury could have reasonably inferred that Ramos was responsible for transporting Slaffey (and perhaps Irwin) to and from the complex on the night of the murder.
5. All three defendants were in the parking lot outside the victims apartment moments before the shooting. Together, the defendants approached the victim, who cursed at them, telling them to "get in [their] fucking car," and taunted Slaffey. Irwin (who always carried a gun) responded by cursing the victim and telling him "this is our turf." Jean Burgess, the only other witness to the exchange, heard two cars start their engines, and then gunshots.
6. Ramos fled the apartment complex immediately after the shooting, his red Mustang convertible speeding away within seconds of the shooting with its headlights off. The circumstances of his flight suggest that he knew a shooting was likely to happen: Witnesses heard car engines before bullets were fired, but Ramoss car was not observed fleeing the scene until after the shooting. A jury could reasonably infer Ramos started his car but waited to drive away until after the deed was done. And Ramoss flight from the scene suggests a consciousness of guilt on his part. (In re Lynette G., supra, 54 Cal.App.3d at p. 1094; People v. Mitchell, supra, 183 Cal.App.3d at p. 330.) Significantly, if the evidence is susceptible of multiple inferences, we must assume that the jury resolved all conflicting inferences in favor of the prosecution. (Jackson v. Virginia (1979) 443 U.S. 307, 326 .)
7. When Ramoss car was discovered nearby minutes later, the hood was still warm, the doors were unlocked, and the passenger seat was pushed forward, as if someone may have climbed out of the back seat when the car stopped. A jury could reasonably infer that Ramos transported at least one codefendant immediately after the murder. (After all, there were three codefendants, but Jean Burgess, the only other witness to the confrontation with the victim, heard only two cars start their engines, meaning that at least one codefendant was a passenger in a car.)
8. The next day, Ramos reported his car stolen and denied to police that he had been in the complex where the shooting occurred on the day of the murder. A jury could infer a consciousness of guilt from Ramoss denial that he was near the apartment complex on the day of the murder and from his attempt to distance himself from the getaway car by reporting it stolen.
"Evidence of false exculpatory statements has long been recognized as relevant and admissible as tending to show a consciousness of guilt" (People v. Carrillo (1995) 37 Cal.App.4th 1662, 1669) because they "`cogently evidence consciousness of guilt and suggest that there is no honest explanation for incriminating circumstances." (Id. at p. 1670, quoting People v. Osslo (1958) 50 Cal.2d 75, 93; see CALJIC No. 2.03.) Thus, a reasonable jury could conclude that Ramos had no incentive to distance himself not only from the crime scene but also from his car, unless he had been involved in the murder.
The jury in the instant case was instructed with CALJIC No. 2.03 that if it found a defendant made a willfully false or deliberately misleading statement concerning the crime, it could "consider that statement as a circumstance tending to prove a consciousness of guilt." However, it was told that "conduct is not sufficient by itself to prove guilt[,] [a]nd its weight and significance, if any, are for you, the jury, to decide."
Accordingly, considered as a whole, the evidence shows much more than Ramoss mere presence at the shooting. It shows Ramos had a motive to be there: His involvement in a common enterprise to sell drugs in a rivals territory, which would be served by eliminating the victim as a competing drug dealer. It shows that he had the opportunity to aid and abet the murder: Ramos was present at the confrontation with the victim and following the shooting. And it shows that Ramos, who had been observed transporting Slaffey and possibly another (Irwin) on the evening of the shooting, facilitated the murder by driving one or more of his codefendants away within the seconds of the murder, with the headlights off (evincing a deliberate decision to leave surreptitiously). And after the crime, Ramos lied about his whereabouts and claimed his car had been stolen, reflecting a consciousness of guilt concerning both his presence and the use of his car.
Evidence that a defendant drove his confederate to and from the place where the victim was shot (People v. Cooks (1983) 141 Cal.App.3d 224, 276, 278-279) or thereafter facilitated the shooters escape has been held sufficient to warrant a finding that he aided and abetted the murder. (People v. Hodgson, supra, 111 Cal.App.4th 566 [upholding aiding and abetting conviction for murder on evidence that the defendant was present at the scene of the crime, must have heard the gunshot that killed the victim, and held an automatic garage gate open so that his confederate could escape]; see also People v. Hammond (1986) 181 Cal.App.3d 463, 467-470 [upholding conviction of getaway car driver for attempted murder on natural and probable consequences theory of aiding and abetting].)
Moreover, several courts have held that circumstantial evidence of motive, opportunity, and consciousness of guilt — which are all present here — are sufficient to connect a defendant with the victims murder. (E.g., People v. Snow (2003) 30 Cal.4th 43, 68 [circumstantial evidence of motive and opportunity sufficient where "evidence of motive was strong, there was no innocent explanation for the presence of [the victims business] telephone number in defendants notebook, and defendants explanation of his fingerprint [on a helmet similar to that worn by the murderer] was contradicted"]; People v. Daya (1994) 29 Cal.App.4th 697, 709-711 [evidence of motive was "not . . . overwhelming," but defendants post-crime conduct was "blatantly incriminatory" and there was no "plausible explanation for the abundance of evidence pointing to the defendants postmurder consciousness of guilt"].)
In a case built solely on such circumstantial evidence, we need not consider whether any of the individual pieces of evidence is alone sufficient to convict. (People v. Daya, supra, 29 Cal.App.4th at p. 708.) "Rather, in reviewing an attack on the sufficiency of the evidence, we need only determine whether a reasonable trier of fact, considering the circumstantial evidence cumulatively, could have found the defendant guilty of [first] degree murder beyond a reasonable doubt." (Id. at p. 709; italics added.)
In this case, a reasonable jury could conclude that Ramos was not an innocent bystander, but a participant in the crime. Innocent bystanders rarely happen to be with the criminal principals both as they intrude upon a rivals territory and later, when the victim is confronted and killed. Innocent bystanders do not speed away (with their headlights off) within seconds of the crime and with at least one of the confederates. And innocent bystanders do not lie about their whereabouts and the getaway car. Some may call all of this a mere coincidence, but a jury could call it murder.