Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR236134
SIMONS, J.
Andrew Willie Ivy Walker (appellant) appeals his conviction by jury trial of first degree murder (Pen. Code, § 187, subd. (a)) and second degree robbery (§ 211). The jury found that appellant used a firearm in committing both offenses (§ 12022.53, subd. (b)). He was sentenced to 35 years to life in state prison. Appellant contends the trial court erroneously denied his motion for new counsel, failed to instruct the jury on involuntary manslaughter, and conducted an inadequate inquiry into alleged juror misconduct. We affirm.
All undesignated section references are to the Penal Code.
The jury found not true the allegation that appellant personally and intentionally discharged a firearm causing great bodily harm or death (§ 12022.53, subd. (d)).
BACKGROUND
This case involves the September 6, 2006 fatal shooting of Gabriel Medina (the victim) outside the Idaho Street home where he lived with his wife and four children. That night, at approximately 11:50 p.m., the victim and his sister, Maria Concepcion Medina Castillo (Medina), arrived home and the victim parked the car in the driveway. Medina saw a blue van stopping in the middle of the street. A person, later identified as appellant, got out of the van holding a gun. Appellant ran at the victim and Medina, aiming the gun at each of them as they stood in the driveway. Medina shouted to the victim’s wife, Dalia Mayo Mejia (Mejia). Appellant aimed the gun at Medina and said something that Medina did not understand. After that, he fired the gun at the victim, hitting him in the abdomen. Appellant then got into the van and fled. An autopsy revealed the victim died from the gunshot wound to the abdomen.
The victim’s 16-year-old stepson, Juan, was inside the victim’s house when he heard Medina screaming for Mejia and heard a man’s voice. When he looked outside, he saw appellant pointing a gun at the victim and then saw the flare when appellant fired the gun. Appellant was six or seven feet away when he fired at the victim. The victim’s 15-year-old stepson, Ulises, was also inside the victim’s house when he heard arguing outside and heard Medina yell Mejia’s name. Ulises looked outside and saw appellant pointing the gun at Medina and saying something to her. Ulises then heard a gunshot.
From inside the house, Mejia heard Medina “desperately” screaming her (Mejia’s) name, and then heard a gunshot.
Fairfield Police Officer Valdez was dispatched to the shooting scene. The victim told Valdez that a Black man had approached him and demanded the keys to the victim’s car. After the victim gave the man his keys, the man shot him.
Fairfield Police Sergeant Moody and detectives Xiong and Ferro interviewed appellant at the police department on September 17, 2006. Appellant admitted to drinking on the night of the shooting, but denied being “falling down drunk.” He denied there had been any drug use. Appellant said he dropped the victim’s keys as he was getting back into the van. He told Moody he had pointed the gun at the victim’s groin area. Appellant also told Moody he got out of the van with the intent to scare people and did not intend to rob anyone. Later that day, Fairfield Police Officer Oviatt transported appellant from the police department to jail. During the drive appellant told Oviatt, “I wish Mike would have pulled me back into the van that night before I shot that guy. I feel bad about killing him and wish someone would have stopped me.”
The Defense
Appellant testified that on the afternoon of September 6, 2006, he and Mike Hernandez hooked up a television and Xbox inside Marvin Stephney’s van. The three men then drove in the van to pick up Stephney’s girlfriend, Kiana Dora. En route, they stopped at a liquor store where they purchased tequila and gin. Someone put Ecstasy in the alcohol, which the three men consumed before arriving at Dora’s house. After picking up Dora and her two friends, they drove around Fairfield and continued drinking. Appellant was feeling the effects of the alcohol and Ecstasy. Stephney drove the van. Appellant did not know why the van stopped on Idaho Street. Someone told him to get out of the van and “go scare some people.” Appellant got out of the van carrying a gun, intending to scare the people outside, whom he did not know. Feeling “wobbly and dazed,” appellant told the victim to “Freeze” two or three times. Appellant denied demanding the victim’s keys, money or wallet. Appellant did not understand what the victim said to him. Appellant denied pointing the gun at Medina. He said he pointed the gun at the ground because he did not want to point the gun at the victim, he “just wanted to scare him.” He denied intending to shoot the victim. Appellant said the victim handed him his keys even though he did not ask for them, and he did not intend to rob the victim. He said the gun accidentally went off after he heard screaming and felt frightened and confused. He did not remember pressing the trigger.
On cross-examination, appellant admitted lying to the police on September 17, 2006, when he told them he knew nothing about the shooting and had not been at the scene.
In closing argument the prosecution urged the jury to convict appellant of first degree felony murder in the commission of a robbery. Defense counsel urged the jury to convict appellant of second degree murder and find him not guilty of robbery.
DISCUSSION
I. Appellant’s Marsden Motion Was Properly Denied
Appellant contends the court erroneously denied his Marsden motion for new counsel (People v. Marsden (1970) 2 Cal.3d 118) because the court did not inquire into the specific instances of defense counsel’s inadequate representation, and did not exclude the prosecutor from the hearing. He contends the court’s ruling requires reversal because it violated his state and federal rights to effective assistance of counsel and deprived him of his right to a hearing.
We seriously question whether appellant’s request for new counsel constituted a Marsden motion. He certainly did not argue she was providing inadequate counsel. In any event, both parties on appeal treat the request as a Marden motion, and so shall we.
On June 21, 2007, prior to trial, after stating he was rejecting the People’s plea offer, appellant said he had something to say. The following colloquy occurred with the prosecutor present:
“THE DEFENDANT: Your Honor, . . . I am a little nervous because, as we all know, this is a serious matter but, of course, over the time that [defense counsel] has been representing me, we both have grown some deep emotional feelings for each other. I can’t lie. [¶] . . . [¶] I cannot lie or hold these feelings back any longer. I am deeply in love with [defense counsel], and she has been showing signs that feelings are mutual. And I am not trying to get [defense counsel] in any type of trouble, but I’m tired of being her little secret, and I can see our feelings for each other is getting in the way of building a good defense for her -- I mean, for me, because during our recent interviews, she has worn provocative clothing . . . her shirt buttoned down real far, where I can see lots of cleavage which does not enable me to focus on my case and myself, which leaves me completely blind. So truthfully, I do not know what to do. [¶] I had to let this out, because I cannot hold this in any longer.
“THE COURT: Anything else you want to tell me, Mr. Walker?
“THE DEFENDANT: I would like to fire my attorney.
“THE COURT: All right. Anything else?
“THE DEFENDANT: That’s it.”
Thereafter, the court asked defense counsel if she wanted to respond, and the following colloquy ensued:
“[DEFENSE COUNSEL]: Well, . . . I don’t have any romantic feelings towards Mr. Walker. I apologize to him if I did something to make him think I did, but I don’t think that I did. That’s it.
“THE COURT: All right. Just for the record, [defense counsel], I’ve known you for, what fifteen years or so?
“[DEFENSE COUNSEL]: Yes.
“THE COURT: And I’ve always found you to be respectful, dignified, and always wear appropriate clothes. I also find you, of course, to be totally credible. [¶] The request for . . . new trial counsel is denied.”
Thereafter defense counsel stated her intention to proceed to trial.
“When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation—i.e., makes what is commonly called a Marsden motion [Marsden, supra, ]2 Cal.3d 118—the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. Substitution of counsel lies within the court’s discretion. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel. [Citation.]” (People v. Smith (2003) 30 Cal.4th 581, 604.)
Appellant relies on People v. Lewis (1978) 20 Cal.3d 496 in arguing that the court failed to inquire into the specific instances of counsel’s inadequate performance. In Lewis, the defendant stated, “I ‘would like to state that I am not satisfied with [defense counsel’s] services. I would also request that he be removed from handling my case and that a state appointed attorney would be appointed to represent me in this matter. He is not handling my case in the manner which I feel will vindicate my innocence. . . .’ ” (Id. at pp. 497-498.) With no further discussion, the court said it was denying the defendant’s Marsden motion after noting that it was very aware of the defense counsel’s competence and abilities. When the defendant stated that defense counsel was “ ‘not handling [his] case,’ ” the court responded, “ ‘He may not be handling it in the way you wish it to be handled, . . . but he is handling the case in the manner in which he feels the case should be handled as far as the law is concerned.’ ” (Id. at p. 498.) Twice thereafter, the court cut the defendant off when he tried to explain his motion to relieve defense counsel. The Supreme Court found the trial court’s conduct violated Marsden because the defendant was not given an opportunity to establish the incompetence of defense counsel. (Id. at pp. 498-499.)
We conclude Lewis is distinguishable. In Lewis, the court expressly cut the defendant off when he tried to explain his reasons for requesting substitute counsel. Here, the court permitted appellant to explain the basis for his Marsden motion; and he did, explaining that his and counsel’s feelings for each other were “getting in the way of building a good defense” for him; and counsel’s “provocative clothing” was making it difficult for appellant to “focus on [his] case.” Thereafter, the court twice asked defendant if there was anything else he wanted to say, and elicited counsel’s response. At no time did the court preclude the defendant from asserting the reasons for his Marsden motion. We conclude the court’s inquiry was adequate under Marsden.
We also reject appellant’s assertion that his Marsden motion was erroneously denied because the prosecutor was not excluded from the Marsden hearing. While an in camera hearing without the presence of the prosecutor is the “ ‘better practice,’ ” a Marsden hearing in open court is permissible where, as here, neither the defendant nor his defense counsel requested an in camera hearing, and “the defendant’s complaints neither disclose information that conceivably could lighten the prosecutor’s burden of proof nor involve evidence or strategy to which the prosecutor is not privy. [Citations.]” (People v. Lopez (2008) 168 Cal.App.4th 801, 815; People v. Madrid (1985) 168 Cal.App.3d 14, 18-19.)
II. Any Error in Refusing to Instruct on Involuntary Manslaughter Is Harmless
Appellant next contends the court erred in refusing to instruct the jury on involuntary manslaughter as a lesser offense of murder. He argues the instruction was required because the evidence established that, although he committed an unlawful act which caused the victim’s death, he did not intend to rob, shoot or kill the victim, only to scare him. He argues that, based on the evidence, the jury could have reasonably concluded that the killing occurred during the commission of an assault (§ 245) or the brandishing of a weapon (§ 417), either of which would have constituted involuntary manslaughter. Appellant argues that, because his intent at the time of the shooting was the only issue in the case, the court’s refusal to instruct on involuntary manslaughter was prejudicial. He asserts that absent an involuntary manslaughter instruction the jury was faced with either convicting him of first degree felony murder or acquittal.
In support of his argument, he notes the jury found not true the allegation that he personally and intentionally discharged a firearm causing great bodily harm or death (§ 12022.53, subd. (d)).
The People rejoin there was insufficient evidence of brandishing to support an involuntary manslaughter instruction, and assault with a firearm does not support an involuntary manslaughter conviction. They also argue that any error was harmless given the jury’s finding that appellant committed robbery as the basis for its felony-murder conviction.
A court has a duty to instruct the jury on principles of law that are closely and openly connected with the evidence and that are necessary to the jury’s understanding of the case. (People v. Birks (1998) 19 Cal.4th 108, 118; People v. Kimble (1988) 44 Cal.3d 480, 503.) The court must instruct on lesser included offenses when there is substantial evidence for the jury to conclude the defendant is guilty of the lesser offense but not the charged offense. (People v. Breverman (1998) 19 Cal.4th 142, 177; People v. Garcia (2008) 162 Cal.App.4th 18, 24.)
Appellant was charged with first degree murder. During the discussion regarding jury instructions between the court and counsel, the prosecution stated its theory of the case was felony murder. The court said it would provide the jury with instructions on murder (CALJIC No. 8.10), deliberate and premeditated murder (CALJIC No. 8.20), felony murder/robbery (CALJIC Nos. 8.21, 8.21.1), and second degree murder (CALJIC Nos. 8.30, 8.31). However, over defense counsel’s objection, the court stated there was no evidence to support the involuntary manslaughter instruction (CALJIC No. 8.45). Defense counsel stated, “I think that if the jury believes my client, he came out of the van, and he was brandishing a weapon, . . . the law for involuntary manslaughter contemplates that the act would be done in a way that is dangerous to human life, which is what occurred in this case.” The prosecutor argued that appellant’s conduct in holding the gun and telling the victim to “freeze” amounted to a completed felony assault with a firearm and not brandishing.
CALJIC No. 8.45 (Fall 2008 ed.) instructs as relevant that a killing is involuntary manslaughter if it occurred “[d]uring the commission of an unlawful act [not amounting to a felony] which is dangerous to human life under the circumstances of its commission.” The alternative basis for involuntary manslaughter stated in the instruction (“[i]n the commission of an act, ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection”) is not at issue here, as defendant does not contend his alleged act of brandishing was lawful.
In writing, counsel also requested the jury be instructed on brandishing pursuant to CALJIC No. 16.290. The instruction was not given.
The trial court agreed stating, “[E]ven if you ignore the prosecution evidence and just view the testimony of your client, in its best light, he confessed to a [section] 245 by saying ‘freeze.’ He’s got a gun in his hand, and whether it was pointed at him or at the ground -- he claims he only pointed it at the ground which, of course, belies the circumstantial evidence, that he had it pointed at the gentleman’s stomach, because he killed him, but that’s well beyond a brandishing . . . .” The court denied the defense request for an involuntary manslaughter instruction, finding the evidence insufficient.
“Manslaughter is the unlawful killing of a human being without malice.” (§ 192.) Manslaughter is divided into three classes: voluntary manslaughter, involuntary manslaughter, and vehicular manslaughter. (Ibid.)
Involuntary manslaughter is statutorily defined as including a killing that occurs “in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (§ 192, subd. (b).) Involuntary manslaughter based on “ ‘an unlawful act, not amounting to a felony’ ”—a killing resulting from the commission of a misdemeanor—requires proof not only that the defendant acted with general criminal intent but also that the predicate misdemeanor was dangerous to human life under the circumstances of its commission.” (Garcia, supra, 162 Cal.App.4th at p. 27.) “ ‘Generally, involuntary manslaughter is a lesser offense included within the offense of murder.’ ” (Id. at p. 24, quoting People v. Gutierrez (2002) 28 Cal.4th 1083, 1145.)
Even assuming the trial court erred in failing to instruct on involuntary manslaughter, any error was harmless because there is no reasonable probability that the instructional error complained of affected the outcome. (People v. Rogers (2006) 39 Cal.4th 826, 867-868.) The jury convicted appellant of robbery and substantial evidence supports that conviction. Pursuant to CALJIC No. 8.21 the jury was properly instructed in relevant part: “The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of the crime of robbery, is murder of the first degree when the perpetrator had the specific intent to commit that crime.”
Whether appellant was brandishing the gun or committing an assault with a firearm is of no consequence to the outcome. By finding that the victim was shot and killed during the commission of a robbery, the jury was required to convict appellant of first degree murder, even if the shooting was entirely accidental.
For these reasons, we also reject appellant’s assertion that the court’s refusal to instruct on involuntary manslaughter violated his federal constitutional rights to due process and jury trial by precluding the jury from considering his theory of the case. (See Conde v. Henry (9th Cir. 1999) 198 F.3d 734, 739.)
III. The Court’s Inquiry into Alleged Juror Misconduct Was Sufficient
Finally, appellant contends the court erred in refusing to conduct a sufficient inquiry regarding alleged juror misconduct by Juror No. 2.
On June 21, 2007, after the defense rested, defense counsel stated she had been informed during a break that as Juror No. 2 walked out of the courtroom, she gestured and may have said something to the victim’s family members. Counsel was concerned about what, if anything was said, and what the gesture meant, and said “it’s inappropriate if a juror is making gestures towards the family.” The court questioned how Juror No. 2 would know anybody was in the victim’s family since no one in the courtroom was so identified, and stated its willingness to conduct a hearing if counsel had a witness.
Counsel produced Keith Bernard Williams who testified he was in the courtroom while the jury was stepping out at the break. When Williams got up to speak with appellant’s father, he saw Juror No. 2 “gesture[] something with her head or something like that. I don’t know what she said, but I felt as though it was inappropriate for her to even -- .” Williams said Juror No. 2 gestured “toward the people on the left side, [William’s] left side,” but not to a specific person. Williams said he did not hear Juror No. 2 say anything or see her mouth move as though she were speaking.
In response to questioning by the prosecutor, Williams said Juror No. 2’s gesture was “Just something like . . . a look over at them, and . . . like maybe a (demonstrating) -- I don’t know, remorse or something. I don’t know.” Williams said the gesture was in the direction of the people presently in the courtroom. The prosecutor stated that no one presently in the courtroom was a witness in the case or had been identified as a family member of the victim.
Thereafter, counsel requested that the court inquire if Juror No. 2 had said something. The court refused since there was no evidence Juror No. 2 had said anything. Counsel then requested the court to ask Juror No. 2 what she meant by the gesture. The court responded, “Well, I think, absent more than a gesture -- as you walk out of a courtroom, the fact that you nod at somebody doesn’t mean anything. Presumably, you were still in the . . . courtroom when this occurred. I’ve got three bailiffs in the courtroom. I’ve got a prosecutor. I have police officers. I have a member of the media. One person says she made some unidentified, quote, gesture. I don’t know how I can examine a juror about that. I don’t intend to at this point. I’ve given them plenty of admonitions.”
Pursuant to section 1089, misconduct by a juror may provide grounds for dismissal of the offending juror or for the grant of a new trial. A juror commits misconduct by violating an oath, duty or admonition. (In re Hamilton (1999) 20 Cal.4th 273, 294.) Not every incident involving a juror’s conduct requires or warrants further investigation. “ ‘[A] hearing is required only where the court possesses information which, if proven to be true, would constitute “good cause” to doubt a juror’s ability to perform his duties and would justify his removal from the case. [Citation.]’ [Citation.]” (People v. Cleveland (2001) 25 Cal.4th 466, 478.) The decision whether to conduct such an investigation, and to permit the parties to call jurors to testify at such a hearing lies within the sound discretion of the trial court. (Ibid.; People v. Hedgecock (1990) 51 Cal.3d 395, 419.) “The hearing should not be used as a ‘fishing expedition’ to search for possible misconduct, but should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred.” (Ibid.)
Section 1089 provides in relevant part: “If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, . . . the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box . . . .”
The decision whether to conduct such an investigation, will not be overturned on appeal absent an abuse of discretion. (People v. Davis (1995) 10 Cal.4th 463, 547-548.) Pursuant to that standard of review, the trial court’s decision will not be overturned except on a showing its discretion was exercised in an “arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]” (People v. Jordan (1986)42 Cal.3d 308, 316.)
We conclude appellant has failed to demonstrate the court abused its discretion in failing to question Juror No. 2 regarding the alleged juror misconduct. Based on Williams’s testimony, the court could reasonably conclude that Juror No. 2 made no statement constituting juror misconduct. In addition, given Juror No. 2’s gesture toward persons who were unknown and not identified as members of the victim’s family, and Williams’s equivocation as to the meaning of the gesture, the court could reasonably conclude that further inquiry into the alleged juror misconduct was unnecessary and could interfere with the juror’s deliberative process.
DISPOSITION
The judgment is affirmed.
We concur. JONES, P.J. STEVENS, J.
Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.