Opinion
A147175 A152290
11-27-2018
THE PEOPLE, Plaintiff and Respondent, v. HENRY ALBERT SMITH, JR., Defendant and Appellant. In re HENRY ALBERT SMITH, JR., on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR 213103)
Defendant Henry A. Smith, Jr., appeals a judgment convicting him of, among other things, the first degree murder of a police officer and second degree robbery and sentencing him to life in prison without the possibility of parole. He contends (1) the court erred in admitting, under the public safety exception to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), a statement he made to the police shortly after his arrest; (2) the court erred in dismissing a holdout juror for bias; and (3) the court erred in refusing to hold a hearing on the alleged misconduct of other jurors. In his consolidated habeas petition, defendant reasserts with additional evidence his argument that the court erred in dismissing the holdout juror and not conducting a hearing on the alleged misconduct of other jurors. Defendant also challenges his sentence in several respects. We find no error in the admission of defendant's un-Mirandized statement. Likewise, we conclude that given the delicate nature of the inquiry into allegations that a deliberating juror was biased, the trial court acted reasonably and its finding of bias is supported by the record. We reject defendant's claim that further inquiry into alleged misconduct by the remaining jurors was necessary. We agree, however, that the defendant's sentence must be vacated and the matter remanded for resentencing.
Factual and Procedural History
Defendant was charged by amended information with murder (Pen. Code, § 187, subd. (a)), second degree robbery (§ 211); and being a felon in possession of a firearm (§ 12021, subd. (a)(1)). In connection with the murder count, the information further alleged that defendant personally and intentionally used and fired a handgun, killing Officer James Capoot (§§ 12022.5, subd. (a), 12022.53, subds. (b), (c), (d)), and alleged the special circumstances that defendant killed Officer Capoot knowing he was peace officer engaged in his duties, while committing robbery, and to avoid lawful arrest and escape from lawful custody (§ 190.2, subd. (a)(5), (7) & (17)). The information also alleged that defendant had suffered a prior "strike" conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The People announced their intent to seek the death penalty.
All statutory references are to the Penal Code unless otherwise noted.
The following evidence was presented at the guilt phase of defendant's trial: At approximately 1:30 p.m. on November 17, 2011, a man wearing a mask that gave him the appearance of an older Caucasian man committed a robbery at a bank in Vallejo. As the robber left the bank, the teller triggered a silent alarm.
A witness saw the robber get into the driver's side of a white SUV, which had been parked in front of the bank, and drive away at high speed. A chase ensued. Vallejo Police Officer James Capoot was in the lead police unit. Officer Peppino Messina followed behind Officer Capoot. Officer Messina testified that before joining the chase, the robber's vehicle passed him head-on. As it passed, he got "a very good look" at the driver. Officer Messina identified defendant as the driver of the SUV. He did not see anyone in the passenger seat of the car.
Eventually, Officer Capoot rammed the back of the vehicle, bringing it to a stop. Defendant exited the driver's side of the vehicle and began running. Officer Capoot followed on foot. Shortly thereafter, Officer Messina heard three gunshots. Following the sound of the gunshots, he located Officer Capoot lying face down on the ground, without a pulse. Officer Capoot died as a result of his gunshot wounds. After discovering Capoot, Messina told dispatch, "I only saw one subject get out of the car, so I'm not sure if we have another one out there."
A third officer arrived at the scene and followed Messina. He was unsure whether the rear hatchback of the SUV was open when he arrived, but remembered that it was open when he returned after finding Capoot.
Shortly after hearing the gunshots, witnesses saw defendant making his way from "yard to yard" away from the location of the shooting. Defendant was arrested and in a search of his person officers recovered a loaded semiautomatic firearm in his front pocket. After his arrest, officers set a perimeter and continued to search for a second subject.
Defendant was transported to the police station where his hands were swabbed for possible gunshot residue. At the station, Officer Messina identified defendant as the driver of the white SUV. While still in a holding cell, Officer William Badour asked defendant whether he had been alone in the SUV and defendant said, "I was alone. No one else was in it." Badour called officers who were still at the crime scene advising that defendant said he had been alone in the car. On cross-examination, Badour acknowledged that he did not include the question and answer in his initial police report, but claimed that he included it in his supplemental report written the next day.
Bullets recovered at the scene had rifling marks that were consistent with being fired from the gun recovered at the time of defendant's arrest.
The vehicle involved in the crime was registered to defendant's wife. A mask, a pair of gloves, a zippered cloth bag containing $3,579 in cash, and a pair of fake teeth were found in the car. Subsequent DNA testing of the mask revealed defendant's DNA on the inside surface. DNA testing of the fake teeth showed defendant's DNA on that item as well.
The mask found in the SUV was manufactured by a company called Composite Effects. A mask matching the description of the one used in the robbery had been purchased in July 2011 and shipped to an address in American Canyon. A friend of defendant who lived at that address testified that in the summer of 2011, defendant had the mask delivered to his address. When the mask was delivered it was given to defendant's nephew.
Defendant presented testimony by expert witnesses to challenge the prosecution's theory that he was the shooter. A criminalist for the Los Angeles County Medical Examiner's Office testified that she had analyzed the gun shot residue swab taken at the time of defendant's arrest and had not found any residue. A second expert testified that given the nature of the weapon at issue and the three shots fired, she would expect to see gunshot residue on the shooter's hands if collected within 90 minutes, even after being arrested, handcuffed, and transported by police. A third expert testified that under the circumstances described by Officer Messina, an observer would have less than one second to view the driver of the oncoming car. Defendant also presented evidence that, in a search warrant affidavit written the afternoon of the shooting, the affiant wrote that a weapon was recovered "nearby" the suspect at the time of his arrest. The following day, however, he added supplemental language to his affidavit clarifying that a weapon was found on defendant's person.
In closing argument, the prosecutor argued that defendant was the bank robber who shot Officer Capoot while fleeing. The prosecutor emphasized that "[t]he only issue in this case, the issue you're here to decide is how do we know it was the defendant that did this, what's the evidence that proves that" and then emphasized the evidence that established defendant's identity as the robber, the driver of the SUV, and the shooter.
Defense counsel agreed that the critical question was whether the robber and shooter was defendant. He argued that defendant did not commit the robbery and was not the driver of the SUV. He suggested that there were two men involved in the crime. "One of them was the person [who] shot Office Capoot and got away and went through the backyard of [the Janice street house], and the other one was [defendant] who came out four houses north [of the Janice street house] in between the houses and didn't shoot and didn't kill Officer Capoot." Defense counsel suggested that it was a reasonable interpretation of the evidence that he "got out of the back of that car" and ran a different direction. Defendant counsel's arguments focused extensively on the absence of gunshot residue on defendant's hands and the credibility of the police officer witnesses. He questioned Messina's identification of defendant as the driver of the SUV, and emphasized purported inconsistencies in the officer's statements about whether the hatchback door was open when he arrived on the scene, discrepancies in the testimony and reports about where the officers found the gun, and inconsistencies between the officers' conduct in searching for a second suspect after defendant's arrest and the officer's statement that defendant told him shortly after his arrest that he was alone in the SUV.
On July 1, 2015, the jury began to deliberate. By the time deliberations commenced, the court had already excused one of the five alternates for hardship and one of the 12 regular jurors for cause. On the first day of deliberations, the court excused another alternate because she was ill. After six days of deliberation, the trial court excused a sitting juror for medical reasons, causing deliberations to begin anew. After nine days of deliberation, concerns regarding Juror No. 554 were brought to the court's attention and the inquiry described more fully below commenced. Thereafter, the court excused Juror No. 554 on the ground that he had concealed a bias against police officers that prevented him from fairly deliberating. The jury again restarted deliberations and four days later, the jury found defendant guilty as charged.
On the same day, defendant moved to discharge Juror No. 31 because, during the previous weekend, she became a victim in a domestic violence case, and because the same district attorney's office which was representing her interest in that case was also prosecuting defendant. That motion was denied.
Before the penalty phase could be conducted, the court excused the 12th juror based on her long anticipated move from California. Because no alternate jurors remained to replace the excused juror, a mistrial was declared as to the penalty phase. After the prosecutor opted not to seek a new penalty trial, the trial court sentenced defendant. For the crime of first degree murder, the court imposed three concurrent terms of life without parole (LWOP) based on each of the section 190.2 special circumstances. The court also imposed a 25 years to life term, doubled to 50 years to life as a second strike, pursuant to section1170.12(a), with that sentence to run concurrent to the LWOP sentences, and imposed a concurrent sentence of 25 years for defendant's use of a firearm. It stayed all the other firearm enhancements. For the crime of robbery, the court imposed the upper term of five years doubled as a second strike to 10 years. For the crime of possession of a firearm by a felon, the court sentenced defendant to one-third of the midterm, eight months, doubled as a second strike to 16 months. The court stayed the determinate terms.
The parties agree that, despite some ambiguity in the court's language, the determinate terms on both counts were stayed.
Defendant timely filed a notice of appeal.
Discussion
1. Defendant's statement he was alone in the car was properly admitted.
Defendant contends the trial court erred in admitting his statement to police that he was alone in the car because it was taken before he was given his Miranda warnings. At trial, the prosecutor argued and the trial court agreed that the statement was admissible under the public safety exception to Miranda.
Our Supreme Court has described the basic rule of Miranda as follows: "Before being subjected to 'custodial interrogation,' a suspect 'must be warned that he [or she] has a right to remain silent, that any statement he [or she] does make may be used as evidence against him [or her], and that he [or she] has a right to the presence of an attorney, either retained or appointed.' [Citation.] Statements elicited in violation of this rule are generally inadmissible in a criminal trial." (People v. Mayfield (1997) 14 Cal.4th 668, 732.)
In New York v. Quarles (1984) 467 U.S. 649, 655, 657, the United States Supreme Court held there is a " 'public safety' exception to the requirement that Miranda warnings be given before a suspect's answers may be admitted into evidence" because "the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination." The court explained, "We decline to place officers . . . in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them." (Id. at pp. 657-658; see also People v. Simpson (1998) 65 Cal.App.4th 854, 861, fn. omitted ["Quarles teaches that where questions are reasonably directed to defusing a situation which threatens the safety of either police officers or members of the general public, a suspect's answers are admissible in evidence, even if the questions were not preceded by Miranda warnings, and even if they happened to elicit an incriminating response."]; People v. Elizalde (2015) 61 Cal.4th 523, 541 [Public safety exception requires an " 'objectively reasonable need to protect police or the public from any imminent danger.' "].)
Here, a police officer had been shot and killed by a fleeing bank robber. While defendant had been arrested, officers were unsure if there was more than one armed suspect and continued to search the area for additional suspects. The question was asked of defendant to obtain information to determine whether further action was necessary to pursue another violent lawbreaker. Had defendant indicated there was a second suspect, that information would have been critical to protecting the police and the public. Under these circumstances, the statement was properly admitted pursuant to the public safety exception.
2. The court did not err in excusing Juror No. 554.
Juror No. 544 was excused for cause after nine days of jury deliberations. The matter came to the court's attention when a group of five jurors reported to the bailiff that Juror No. 554 was not participating in the deliberations, that he had indicated his mind was made up, and that he only "wants to talk about Ferguson and Freddie Gray." According to the court, the bailiff had also reported that Juror No. 554 had referred to the bailiff as "a thug with a gun" and that when Juror No. 554 was required to go into the jury room, he said it felt like "he was losing his rights and felt like he was being locked up."
Over defendant's objection, the five complaining jurors were interviewed by the court. Juror No. 51 reported that Juror No. 554 said, "Cops plant things on everybody." Juror No. 503 got the impression from Juror No. 554's comments that he believes all police officers are corrupt and that he "doesn't believe anything that they say." Juror No. 216 explained, "Some of the comments he made of . . . being in St. Louis and how the police treat Black men, and I just feel everything we had did it was always things he never had an open-mind about." She continued, "he just keep bringing up . . . I guess things that happened to him in the past and always St. Louis how they beat Black men, and that's the thing Black men do, we run. You know, and that's all we've been hearing the whole time."
After the last of the complaining jurors had been questioned, defense counsel again objected to the court's injury. He argued, "I think it was inappropriate for the court to make this kind of inquiry, again, with the juror about what the deliberative process involved. I don't believe that any misconduct has been uncovered from this inquiry. Jurors are entitled to opinions about the police. We made an argument, the thrust of my argument was that the police had made misrepresentations about the case, about the facts, about the circumstances, about the recovery of the gun. All of what I said is that there was misconduct, and people are entitled to have life experiences. I mean African-American men in the United States of America, if they didn't think there were issues with the police, would be, as I think I've aid many times throughout this trial, living under a rock. [¶] So I don't think there's been any misconduct. The juror has participated, has expressed opinions. I think the court should allow them to continue to deliberate."
The court disagreed, noting that it had reviewed Juror No. 554's questionnaire and had concerns that he gave "very contradictory evidence" in his questionnaire to what he said during the deliberation process. Accordingly, the court questioned Juror No. 554, who stated that during deliberations he spoke only generally about the experiences of people with police in St. Louis. It was "stuff that's hearsay" and "nothing that I directly dealt with the police." He denied saying "all police were corrupt" and insisted that he did not "feel that way at all." He claimed that he had been regularly participating in deliberations. He later clarified that his comment about the bailiff was intended to be a joke.
Finding a conflict between the reports of the complaining jurors and of Juror No. 554 as to what was said, the court questioned five of the remaining jurors. Defense counsel again objected to the inquiry as violative of the deliberative process. All of the jurors confirmed that Juror No. 554 had repeatedly referenced his experiences with the police growing up in St. Louis. Two of the five jurors reported having heard Juror No. 554 refer to police as dishonest and corrupt. One of those opined, however, that "he was most probably joking. He does joke a lot." The other three denied hearing any such categorical statements about police corruption. Two of the three reported that Juror No. 554 said instead that "some" police officers are dishonest or that "there are many crooked cops." The last acknowledged, however, that Juror No. 554 had, on one occasion, said that "all police officers lie." Three out of the five jurors reported that at some point during deliberations Juror No. 554 said that he would not convict defendant, no matter what. Both the bailiff and the jurors who heard the comments about the bailiff uniformly reported that they believed he was joking.
Juror No. 31 was not questioned because she was temporarily excused earlier that afternoon after developing a severe headache.
Based on the above, the trial court dismissed Juror No. 554. The trial court gave a lengthy explanation for its ruling. After summarizing Juror No. 554's jury questionnaire and voir dire answers and all of the information provided by the jurors and the bailiff, the court concluded that Juror No. 554 has a disqualifying bias against police officers that prevented him from evaluating the testimony of police as he would any other witness. The court cited as direct evidence of bias the reports by various jurors that Juror No 554 said all police officers lie, police officers are corrupt and he does not believe anything they say, and all police officers are dishonest. The court found further that Juror No. 554 was "dishonest in his responses to [the] court" and was dishonest in his questionnaire and that his "intentional dishonesty" is a further indicator of his bias. Finally, the court found that the statement that the bailiff was a thug with a gun, whether joking or not, is "very consistent with an individual who has a fixed opinion about police officers in general, and it certainly does give weight to the allegation that 554 has a fixed bias against police officers likely based on his experiences that he had in St. Louis as a young man." Ultimately, the court concluded, "What it appears is from the outset this juror has refused to evaluate or judge or consider the testimony of police officers in the same way that he would consider or judge testimony of any other witness. And, . . . this is supported by . . . these off-the-wall comments to the bailiff that to say it's bad taste doesn't begin to touch on it. And perhaps by itself, it would not be grounds for dismissal; but when you consider all of this together, it leads to one inescapable conclusion; and, that is, that this juror . . . was and has been biased against the police from the outset, that he withheld this information in his questionnaire and that he has been unable to exercise his duty as a juror to fairly evaluate the testimony of all of the witnesses by the same standard. For all of these reasons, I'm going to direct that he be excused at this time." The court rejected the suggestion that Juror No. 554 had refused to deliberate. The court explained that "there's very credible evidence that he's made a number of statements that he's not going to convict the defendant no matter what, but apparently he first made that statement after two to three days of deliberation and has made it since."
The court summarized Juror No. 554's responses as follows: "Juror No. 554 said in his questionnaire with regard to what is your attitude in general towards law enforcement officials, that 'they are okay.' There was some misspellings, but his point was they uphold the law. [¶] With regard to question 38, when he was asked if he had ever had any particularly good or bad experiences with law enforcement, he said no. [¶] With regard to question 41 . . . the question was, there have been a number of high publicity cases involving police officer shooting suspects or detainees, have you followed any of them in the media, he said, no. [¶] In regard to question 52, have you been exposed to racial or ethnic prejudice, he indicated, no. [¶] And with regard to question 77, if law enforcement personnel testify, would you apply the same standard in evaluating their testimony as you would in evaluating testimony of any other witness, and he responded, yes. [¶] In voir dire, Juror 554 answered, when he was questioned about his answer to question 77, which was applying the same standard to law enforcement testimony as that of any other witness, he said that he would again. [¶] He said he was not biased." On appeal, defense counsel also points to question 75 which asked, "Would you be more inclined to believe the testimony of a law enforcement officer because he/she is a law enforcement officer?" Juror No. 554 answered no and explained, "Cops can lie also."
Section 1089 confers upon trial courts "broad discretion" to discharge a deliberating juror upon a showing of good cause that the juror is "unable to perform his or her duty . . . ." (People v. Boyette (2002) 29 Cal.4th 381, 462, fn. 19.) "A juror who is actually biased is unable to perform the duty to fairly deliberate and thus is subject to discharge. [Citations.] Specifically, a bias against law enforcement officers that renders a juror unable to fairly weigh police testimony is grounds for the juror's replacement." (People v. Barnwell (2007) 41 Cal.4th 1038, 1051 (Barnwell).)
"When a court is informed of allegations which, if proven true, would constitute good cause for a juror's removal, a hearing is required." (Barnwell, supra, 41 Cal.4th at p. 1051.) "Bias may be established by the testimony of other jurors." (Ibid.) " '[A] trial court's inquiry into possible grounds for discharge of a deliberating juror should be as limited in scope as possible, to avoid intruding unnecessarily upon the sanctity of the jury's deliberations. The inquiry should focus upon the conduct of the jurors, rather than upon the content of the deliberations. Additionally, the inquiry should cease once the court is satisfied that the juror at issue is participating in deliberations and has not expressed an intention to disregard the court's instructions or otherwise committed misconduct, and that no other proper ground for discharge exists.' " (Id. at p. 1054; see also People v. Nelson (2016) 1 Cal.5th 513, 569 ["[A] trial court may intervene in jury deliberations where it receives reports of juror misconduct or in response to an impasse, but such interventions must be limited and undertaken with the utmost respect for the sanctity of the deliberative process."].)
A trial court abuses its discretion in discharging a juror for cause when the juror's disqualification does not appear on the record as a demonstrable reality. (Barnwell, supra, 41 Cal.4th at p. 1052.) "This standard 'indicates that a stronger evidentiary showing than mere substantial evidence is required to support a trial court's decision to discharge a sitting juror.' " (Ibid.) The "demonstrable reality test . . . requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that bias was established. It is important to make clear that a reviewing court does not reweigh the evidence . . . however, the reviewing court must be confident that the trial court's conclusion is manifestly supported by evidence on which the court actually relied. [¶] In reaching that conclusion, the reviewing panel will consider not just the evidence itself, but also the record of reasons the court provides. . . . [¶] The evidence bearing on the question whether a juror has exhibited a disqualifying bias during deliberations may be in conflict. Often, the identified juror will deny it and other jurors will testify to examples of how he or she has revealed it. [Citation.] In such a case the trial court must weigh the credibility of those whose testimony it receives, taking into account the nuances attendant upon live testimony. The trial court may also draw upon the observations it has made of the jurors during voir dire and the trial itself. Naturally, in such circumstances, we afford deference to the trial court's factual determinations, based, as they are, on firsthand observations unavailable to us on appeal." (Id. at pp. 1052-1053.)
In Barnwell, supra, 41 Cal.4th at page 1048, the trial court received a note from the jury that one of the jurors "seemed to have a bias against law enforcement officers" and was refusing to deliberate. In response to this note, "the court conducted a hearing and took testimony from all 12 jurors. [The juror in question] claimed he was not biased against all law enforcement officers, but simply disbelieved the officers in this case. However, nine of the 11 other jurors testified that [he] had expressed or exhibited a general bias against law enforcement officers. The testimony of the remaining two jurors was inconclusive." (Id. at p. 1049.) One juror reported that the juror at issue " 'stated that he feels that all law enforcement will always back each other up regardless of [whether] it is right or wrong. . . . All law enforcement will back each other up. And he will not change that. He says that all witnesses that have been brought to the stand . . . that are involved in law enforcement in any way have lied.' " (Ibid.) Another reported, " 'We have one gentleman who says he has . . . an open mind towards deliberation but really does not. He's convinced that . . . a policeman has lied, and there was a conspiracy to maintain that aspect of things. He thinks that all, all policemen lie, and that's what's been said.' " (Ibid.) When the court asked whether the juror in question "had conveyed to the other members of the jury a belief that all policemen lie," the juror being questioned said, " 'That was what came out of his mouth at one point.' " (Barnwell, supra, 41 Cal.4th at p. 1053.) Other jurors questioned by the court did not quote the excused juror directly, but instead "summarized his attitude toward police officer testimony based on their observations of his behavior." (Id. at p. 1050.) They got the "impression" that he was biased from his comments. (Ibid.) After questioning the jurors, the trial court dismissed the juror about whom the complaint was made on the ground that he was not following the court's instructions on deliberation and that his lack of participation was based upon his disbelief of all police officers' testimony. (Id. at p. 1051.)
The Supreme Court affirmed, finding that "[a]pplying such different standards to the evaluation of different witnesses is, of course, contrary to the court's instructions and violative of the juror's oath of impartiality." (Barnwell, supra, 41 Cal.4th at p. 1053; see also People v. Feagin (1995) 34 Cal.App.4th 1427, 1437 [juror properly dismissed because she "had prejudged the credibility of the police officers who had testified at trial and was unable to cast aside her personal bias in weighing the evidence"]; People v. Thomas (1990) 218 Cal.App.3d 1477, 1485 [juror in question "obviously had prejudged the credibility of the police officers who testified at trial and was unable to cast aside her personal bias in weighing the evidence"].) The Supreme Court also found that the court's inquiry into the report of juror misconduct was appropriately limited. "The final note from the jury raised the concern of bias against police officer testimony. It bears repeating that the court was required to conduct a hearing to resolve that concern. [Citations.] The first juror called was C.T. The court admonished her: 'Miss [T.], we received questions from the jury panel regarding the deliberative process. Now, be very careful, and do not volunteer any information about the determination of guilt or innocence in this case. That's not why you're here. What the court is trying to find out is what is the problem as far as deliberation in this case.' Without further questions from the court, C.T. testified that R.D. had directly expressed a general bias against police officer testimony: ' "Law enforcement lies." ' Given C.T.'s testimony, the court was clearly required to examine the other jurors. As it did so, it focused narrowly on the matter at issue." (Barnwell, supra, 41 Cal.4th p. 1054, fn. omitted.)
The present case is largely indistinguishable from Barnwell. Although the evidence of bias in this case is not as overwhelming as in Barnwell, we cannot say that the court's finding that Juror No. 554 had a disqualifying bias is not manifestly supported by the record. Given the defense presented in this case, the trial court was faced with the challenge of determining whether Juror No. 554's discussion of his experiences in St. Louis reflected a disqualifying bias against all police officers or whether he was properly relying on his experiences to evaluate the credibility of the police witnesses. (See People v. Allen and Johnson (2011) 53 Cal.4th 60, 66, 78 [Juror's statement, " 'I know Hispanics, they never cheat on timecards,' " did not reflect impermissible bias in favor of all Hispanics. Juror permissibly "drew on his own personal life experience to conclude [the prosecution] witness lacked credibility because of the explanation he gave for a critical discrepancy."]; People v. Wilson (2006) 44 Cal.4th 758, 818 [The following statements by juror did not reflect bias: " ' "You don't understand because you're not black." "Black people don't admit being abused." "Black kids have a different relationship with their fathers." ' " Juror could rely on "an understanding, based on personal experience, of the effects of certain social environments and family dynamics on a young person growing up" in determining the "significance or weight" of related evidence in a particular case.].) The trial court's determination, however, that Juror No. 554's life experiences led to a fixed bias against all police officers turned in large part on his evaluation of the reports from other jurors and a weighing of credibility. Based on our review of the entire record, we find that the trial court relied on the evidence which supports its conclusion. (Barnwell, supra, 41 Cal.4th at pp. 1052-1053.)
Moreover, in finding that Juror No. 554 was biased, the court reasonably relied on conflicts with his jury questionnaire and his lack of candor in answers to the court's questions. In answering the questionnaire, Juror No. 554 said he would evaluate the testimony of police officers fairly and without bias. The reports made by some jurors and credited by the court conflict with that overall impression. Accordingly, the court did not err in excusing Juror No. 554 for bias.
The posttrial declarations of Juror Nos. 373 and 210 do not alter this conclusion. When questioned by the court, Juror No. 210 denied hearing any comments by Juror No. 554 "to the effect that he feels police or all police are corrupt" or that "all police are biased." She did, however, hear him say, on one occasion, that "all police officers lie." Juror No. 373 reported hearing Juror No. 554 indicate that "he felt all police were corrupt," but he also indicated he thought Juror No. 554 was probably joking. In his declaration Juror No. 373 clarified that he heard Juror No. 554 opine that some police officers lie and some police officers were corrupt but had not heard Juror No. 554 universally criticize police or complain about Solano County law enforcement in particular. He states that Juror No. 554 spoke of antagonistic relations between police and Black citizens in Missouri, but qualified that he had never been treated in a discriminatory manner by police. He also states that Juror No. 554 declared his intent to acquit based on his doubt that petitioner fired the fatal shot. In her declaration, Juror No. 210 repeats the statements made by Juror No. 373 but adds the following handwritten notation: "I recall [Juror No. 554] saying that people who were not Black did not understand the treatment of Blacks by police authority. It was inferred that he was very much in tune to this fact. That he had personal experiences [and] his own bias based on his treatment as a 'Black male.' Of course, no one on the jury could defend this statement because in fact none of us were [unintelligible]. In my opinion he definitely felt discriminated against."
Contrary to defendant's argument, the court's inquiry did not impermissibly invade the secrecy and sanctity of the jury deliberations. Under Barnwell, supra, 41 Cal.4th at page 1054, the court was required to—and did—conduct a limited inquiry to determine whether the juror had a disqualifying bias. The court's questions were carefully framed to root out whether, as discussed above, Juror No. 554 was biased or was merely relying on his life experiences to weigh the evidence. This inquiry necessarily required questions and answers that revealed statements made by the juror during the deliberative process. Most notable is Juror No. 184's response that by discussing his prior experiences with police in St. Louis, Juror No. 554 "was just trying to make a point that . . . a lot of Black people are afraid of police officers, so even when they're not doing anything wrong, they will run. He said that as a child before, police came on-site, and they just all ran even though they weren't doing anything wrong." The questions did not, as defendant suggests, generally ask the jurors "to report on the thoughts and conduct of their fellow jurors." (People v. Nelson, supra, 1 Cal.5th at pp. 569-570 [finding error where "[b]ased solely on the reported impasse, the court subjected the jurors to a detailed questionnaire that asked them to report on the thoughts and conduct of their fellow jurors—specifically, whether the jurors were refusing to deliberate, whether they were basing their position on anything other than the evidence and jury instructions, and whether they were expressing views about the inappropriateness of the death penalty or life without parole based on anything other than evidence and law."].) Because the court's inquiry was specifically limited to the allegations of bias of Juror No. 554 and did not seek to reveal more generally the deliberations of the jury, we find no error.
Finally, People v. Armstrong (2016) 1 Cal.5th 432, on which defendant relies heavily, is distinguishable. In that case, the court excused a juror based on her failure to deliberate. (Id. at p. 449.) Citing the testimony of the foreperson and another juror that the excused juror was taking "time outs" from deliberation to read a book and use her cell phone, the court found that although the juror had previously " 'deliberated with the other jurors, [she] is now of a fixed opinion, is not deliberating further.' " (Ibid.) Applying the demonstrable reality standard, the Supreme Court concluded that the trial court abused its discretion in discharging the juror because the trial court's determination that the juror refused to deliberate is not "manifestly supported" by the record. (Id. at p. 451.) Characterizing the evidence in support of the finding as "de minimis," the court noted that the foreperson's statement that the juror had looked at her book was equivocal, his statement about her use of her cell phone was not based on his personal observation and the other juror merely reported that the excused juror looked at a book and a cell phone "one or two times" for "a few minutes." (Id. at p. 452.) The court also explained that while other evidence might arguably demonstrate the juror's failure to deliberate, that evidence could not be considered as it was not cited by the court as justification for its finding. (Id. at p. 451.) Here, the evidence of bias cited by the court in its lengthy ruling, extending over 15 pages of the reporter's transcript, cannot be characterized as de minimis. Contrary to defense counsel's suggestion at oral argument, the court expressly applied the "demonstrable reality standard" Barnwell requires, as do we, and made a thorough review of all of the evidence before finding Juror No. 554 to have demonstrated a bias necessitating his removal from the jury.
3. The court did not err by refusing to hold a hearing on alleged misconduct by the complaining jurors.
While being questioned by the court, the purported spokesperson for the five complaining jurors explained that she and the others had discussed their concerns about Juror No. 554 while they were "coming in together." They knew that they were not supposed to discuss deliberations outside of the jury room, but one of the jurors was so upset that they decided to "let her have the conversation." Shortly thereafter, defendant requested a hearing to learn more about the conversation and moved for a mistrial on the ground that the complaining jurors had committed misconduct by discussing their opinions of Juror No. 554 in private, outside the jury room, rather than during official jury deliberations. The court denied the motion. On appeal, he contends the court erred by denying his request for a hearing on the purported misconduct by the complaining jurors. We disagree.
As discussed above, " 'When a court is informed of allegations, which, if proven true, would constitute good cause for a juror's removal, a hearing is required.' " (People v. Lomax (2010) 49 Cal.4th 530, 588, citing People v. Barnwell, supra, 41 Cal.4th at p. 1051.) Here, however, the facts regarding the alleged misconduct were not disputed. The reporting juror acknowledged the conversation was improper and explained why the court's instructions had been violated. No further inquiry was required to determine the truth of the allegations. Defendant does not contend that the court erred in denying his motion for mistrial based on this limited violation of the court's instructions. Nor could he since no prejudice was apparent.
4. The sentence must be vacated and the matter remanded for resentencing .
Defendant argues that he is entitled to resentencing under the January 2018 amendment to section 12022.53, which gave trial courts discretion to strike firearm enhancements in the interests of justice. The Attorney General agrees that defendant is eligible to have the enhancements stricken but argues that remand is unnecessary because it is apparent that the trial court would not strike or dismiss the firearm enhancements. We agree with defendant that remand is appropriate because the trial court has had no occasion to consider whether it would strike the enhancements. Given that remand is required, we need not reach the parties' arguments regarding modification of the sentence imposed on count one.
The parties agree that defendant should have been sentenced to a single term of life without the possibility of parole on count 1, but disagree as to whether the prosecution forfeited its argument that the 25 years to life enhancement imposed on count 1 should run consecutively rather than concurrently to the LWOP term.
Disposition
The judgment is reversed and remanded for resentencing and is affirmed in all other respects. The petition for a writ of habeas corpus is denied.
Pollak, J. We concur: Siggins, P.J.
Ross, J.
Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------