Opinion
D056651
10-27-2011
THE PEOPLE, Plaintiff and Respondent, v. ALEX ROMERO WATSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. FV1700360)
APPEAL from a judgment of the Superior Court of San Bernardino County, Margaret A. Powers, Judge. Affirmed as modified.
A jury convicted Alex Watson of first degree murder (victim, Jacob Jackson, count 1; Pen. Code, § 187, subd. (a)). The jury also convicted Watson of willful, premeditated, and deliberate attempted murder (victim, Eric Buchanan; count 2; §§ 664, subd. (a); 189, subd. (a)), and of assaulting Buchanan with a firearm (count 3; § 245, subd. (a)(2)). Watson, a felon, was convicted of being in possession of a firearm (count 4; § 12021, subd. (a)(1)). Regarding the murder and attempted murder counts, the jury found firearm enhancements under sections 12022.53, subdivision (c) and 12022.5, subdivision (a) to be true. On the attempted murder and assault counts, the jury found true a great bodily injury enhancement under section 12022.7, subdivision (a).
All further statutory references are to the Penal Code.
Watson received an aggregate term of 75 years to life in state prison, including a second consecutive life term. Restitution, court security fee (CSF) and criminal convictions assessment orders were made. (§1465.8, subd. (a)(1); Gov. Code, § 70373.) On appeal, Watson first claims insufficiency of the evidence to support the first degree murder conviction, arguing there was no adequate showing of his premeditation and deliberation. He would characterize the offense instead as a rash act committed in a heat of passion. He likewise attacks as unsupported the jury's finding that he willfully, deliberately, and with premeditation committed attempted murder.
Further, Watson claims prejudicial jury misconduct occurred when jurors closely scrutinized certain admitted evidence, video surveillance recordings covering over four hours, by using a computer in the jury room (provided by the prosecution) that, unbeknownst to all counsel and the court, had a program installed in it that allowed the jurors to zoom in on or magnify portions of those video disks that had been admitted into evidence. Finally, Watson contends, and the People concede, that the amount of the CSF should be reduced, based on the version of the statute in effect at the time of the convictions. (§1465.8, subd. (a)(1).)
Our examination of the record reveals that Watson's claims of insufficiency of the evidence, to support the findings of premeditation and deliberation, have no merit. We further conclude that no jury misconduct occurred as claimed, because the jury was entitled to review all of the admitted evidence, using the tools provided to it. Even though the court and counsel were unaware of the existence of the zoom function when they sent the computer containing it into the jury room, for the appropriate purpose of allowing full viewing of the video disks, nothing in their conduct or that of the jury created or permitted any unlawful admission of extrinsic evidence or any forbidden juror experimentation. (See Higgins v. L.A. Gas & Electric Co. (1911) 159 Cal. 651, 656-657 (Higgins); People v. Collins (2010) 49 Cal.4th 175; People v. Turner (1971) 22 Cal.App.3d 174, 182 (Turner)[jury's use of magnifying glasses to more critically exam exhibit, than occurred during trial, not misconduct].)
We agree that Watson's claims regarding the amount of the "additional assessments" imposed per count, in the nature of a CSF, have merit. We affirm the judgment as modified and amended to comply in this respect with the version of statutory law in effect at the time of the convictions. (§1465.8, subd. (a)(1).)
FACTUAL AND PROCEDURAL BACKGROUND
A. Incidents
More extensive facts that are relevant to each contention on appeal will be set forth in connection with our discussion of the appellate issues, post. Here, we provide a brief outline of the incidents and proceedings. Watson, his cousin, and his friend Harold Parker arrived at the Sandbar nightclub in Victorville around 9:30 p.m. on the night of March 1, 2007. Other patrons present were Jackson and a group of his friends, and Buchanan and his friend. Watson was not previously acquainted with either Jackson or Buchanan. Upon their arrival, Watson and Parker seemed to observers to be intoxicated, and Watson had some rude encounters with other patrons, especially women, as he barged through the crowd and touched people offensively. After an hour or so, Watson and Parker argued with Sandbar employees, including the bouncers, over their behavior in using the alley out back as a urinal, which was discouraged by the club.
Parker was involved in the fighting at the club that night, and was tried alongside Watson on similar charges. He testified at trial and was convicted of assault, accessory to Watson's criminal acts, and other charges. Parker has abandoned his appeal. Watson's cousin Willie Watson was also at the scene, but apparently was only marginally involved.
After Watson returned from the alley, Jackson, sitting at a table, looked toward a woman friend at the bar and raised his hand to signify that she should bring him a drink. Watson was standing nearby the woman and apparently perceived that Jackson had slighted or challenged him. He accosted Jackson, profanely asking him if he had a problem, and Jackson answered that he did not mean any disrespect and that was his girl at the bar. When another woman friend unsuccessfully attempted to intervene and was cursed at by Watson, Jackson verbally objected. Watson punched him in the face, and the two men started to fight on the ground.
Observers saw that Jackson was getting the better of the fight, punching Watson in the head, while Watson was not fighting back, but was reaching toward his waistband. Parker rushed over and started hitting Jackson. The bouncers reached the crowd and pulled Jackson off Watson and held him, and others grabbed Watson. Watson got to his feet, pulled his gun from his waistband, pointed it and shot at Jackson, hitting him in the chest and killing him.
Watson and Parker left the bar but then started walking back toward it. Watson saw Buchanan, who ran out of the bar when he heard the shot. As Buchanan raised his hands and spoke to Watson, saying he wasn't involved and didn't know what was going on, Watson shot him in the groin and ran away. The next day, Watson and Parker turned themselves in to the sheriff's office. Investigators found an invoice for a gun and an empty lock box at Watson's place, but no gun.
B. Charges and Trial
Watson was charged with Jackson's murder, Buchanan's attempted murder and assault, and various firearms counts as described above. The matter went to jury trial, where testimony was taken from Buchanan, friends of Jackson and Buchanan, bar employees, eyewitnesses, sheriff's investigators, and Parker (to be more fully summarized in the discussion portion of this opinion). According to Parker's testimony in his own defense, when the fight broke out, he tried to get through the crowd to help Watson and to break it up, and until they fled, he was not aware that Watson had a gun or had fired it in the bar.
Two computer disks of surveillance video taken at the bar that night, and a police-made composite of portions of it, were admitted into evidence, representing about four and one half hours of surveillance from two cameras, over the evening and early morning. Still images printed from the videos were also admitted into evidence. Investigating sheriff's officers and technicians described their viewings of the video and the making of the composite. Both the prosecutor and defense counsel argued various points to the jury about their interpretations of the activities shown on the surveillance disks and images.
In Watson's defense case, an expert psychologist testified about head injuries that may typically occur during such a fight, and how such injuries can compromise a person's cognitive abilities. In the opinion of the expert, Watson had suffered brain trauma as a result of Jackson's punches to his head, as displayed in the surveillance videos, and such trauma would likely have impaired his level of consciousness. The defense therefore argued Watson could not have had the ability to form an intent to kill or injure, and he was defending himself.
C. Instructions, Deliberations, Verdict and New Trial Motion
The jurors received pre-instructions about their conduct of deliberations based on the evidence given to them, and instructions about the elements of the various offenses. They were told not to do any of their own research, or investigate independently, or conduct any experiments. (CALCRIM No. 201.) They returned a verdict convicting Watson of all charges.
After the local newspaper published articles about the verdict, various newspaper readers posted online comments about it. Two of them were trial jurors who described their experiences in the jury room, including the use of the computer provided to them for viewing the surveillance video disks. At this point, counsel and the court realized that the prosecution's computer supplied to the jury had always been equipped with a computer program allowing the user to zoom in on evidence and see it in magnification. Defense counsel brought a motion to release jury information so he could further investigate. The motion was denied.
At a pending new trial motion that was based on numerous grounds, Watson's attorney pursued the theory of jury misconduct by presenting an offer of proof that he had been able to interview the jury foreman (juror 46XX). The foreman "told me that they had found a button on the remote that allowed the jury to be able to slow down and to zoom in on the videos as it played and was able to watch the videos and see things that could not be seen during trial. 46XX said that they were able to see the videos much clearer than they could during the trial and that this helped them in the deliberation process."
Defense counsel and the prosecutor argued the applicability of case law that had upheld the use by jurors of magnifying glasses. (Turner, supra, 22 Cal.App.3d at p. 182.) They differed on whether the computer program amounted to a similar "tool" for viewing the evidence, since they were previously unaware that the jurors would be given the ability to zoom in and out on the videotape.
The trial court denied the motion for new trial. The court found that the jury had not committed any misconduct, and that using the zoom mechanism was functionally equivalent to using a magnifying glass:
"And I do believe that the state of the law is that they can zoom in, if they—if they wish it. Nobody knew they had that ability, but it would be the same thing as a magnifying glass, as far as the court is concerned. So I don't think there was any misconduct by the jury in doing that. So even though—well, based on the offer of proof of what [Foreman] would testify to, I don't believe even if he did testify that it would make a difference. I don't think there was any misconduct."
At sentencing, Watson received a term of 75 years to life, composed of 25 years for the murder count plus 25 years to life for its firearm enhancement (§ 12022.53, subd. (d)). For the attempted murder count, the court imposed a consecutive life term, plus 25 years to life for its firearm enhancement (§ 12022.53, subd. (d)). The terms for the assault and firearm possession counts were stayed. The court imposed restitution obligations and a CSF and/or criminal conviction assessment of $240, shown in the abstract of judgment to be "per count." (§1465.8, subd. (a)(1); Gov. Code, § 70373.) Watson timely appealed.
DISCUSSION
I
SUFFICIENCY OF EVIDENCE: FIRST DEGREE MURDER
A. Standards of Review
To assess Watson's contentions that he is entitled to reversal because the record does not contain sufficient evidence establishing that he had a preconceived design to kill, nor showing that the killing was a result of careful thought or reflection on his part, we apply well established rules. The appellate court reviews 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, 331-332 (Bolin).)
An appellate court's assessment of whether there is evidentiary support for an inference that a particular killing occurred as the result of preexisting reflection, not an "unconsidered or rash impulse," is guided by People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson). Normally, the three categories of evidence that are relevant to resolving this issue of premeditation and deliberation are "planning activity, motive, and manner of killing." "However . . . ' "Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. . . ." ' Thus, while premeditation and deliberation must result from " 'careful thought and weighing of considerations' " [citation], we continue to apply the principle that '[t]he process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . ." ' [Citations.]" (Bolin, supra, 18 Cal.4th at pp. 331-332, relying on People v. Mayfield (1997) 14 Cal.4th 668, 767.)
Production of evidence on each of the three Anderson factors, which are sometimes stated in the disjunctive, is not always required to support a first degree murder conviction that is based on a theory of premeditation and deliberation. (People v. Nazeri (2010) 187 Cal.App.4th 1101, 1113.) However, the evidence must show that the defendant made " 'a cold, calculated judgment, including one arrived at quickly . . . [that] is evidenced by planning activity, a motive to kill, or an exacting manner of death.' [Citation.]" (Ibid.)
In evaluating a defendant's argument, an appellate court is not enabled to reweigh the facts. (Bolin, supra, 18 Cal.4th at pp. 332-333.) The credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the [jury's] verdict," we will not reverse. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
B. Contentions and Analysis
With these standards in mind, we address Watson's challenges to the sufficiency of the evidence supporting his first degree murder conviction, on premeditation and deliberation. In his defense case, he presented psychological evidence about brain trauma he sustained in the fight that would have supported a diagnosis that he had an impaired state of consciousness at the time, complicated by his alcohol consumption that night. The defense expert stated, "The video I viewed of the fight would make it very likely the person would have some degree of impairment and unconsciousness. More than 50 percent." Defense counsel argued that such head injuries could have caused impairment to any intentional behavior, including the ability to form an intent to kill.
On appeal, Watson mainly focuses upon several additional factors to support his claim that this was a classic "heat of passion" or impulsive act offense, committed during an unanticipated fistfight, and lacking any premeditation. We examine his arguments within the Anderson framework.
1. Planning Activity and Motive
Watson contends that other than his bringing a gun to the bar that night, nothing supports inferences of his planning activity, even if he somehow considered that violence might be a possibility. Watson's codefendant, Parker, testified that he was not aware that Watson brought a gun to the nightclub that evening. Parker said he did not notice any particular tension there, did not give anyone the stink eye or glare at them, such as when Jackson's friend (Blake Lopiccolo) bumped into him, and Parker was just watching everyone have a good time.
Watson points out that he and Jackson were not previously acquainted, and this was not clearly a case of racial or gang identification of potential targets, but rather, this encounter was fortuitous. (See People v. Rand (1995) 37 Cal.App.4th 999, 1001.) Nevertheless, in addition to his gun possession, there was some evidence that Watson may have been anticipating using it in violence of some kind. (See People v. Young (2005) 34 Cal.4th 1149, 1182.) Jackson's friend, Lopiccolo, testified that when Watson and Parker walked into the crowded nightclub, people in the room became tense, because it seemed that the newcomers might be intoxicated or looking for trouble. Lopiccolo testified that when he accidentally backed into Parker or Watson, he received some "hard looks" from both men. Lopiccolo said the other patrons were commenting that Watson and Parker were making rude comments and grabbing other club visitors, especially women.
According to bar patron Daniel Contreras, he noticed that Watson arrived acting like he was looking for a fight, such as by walking around bumping into people or barging through the crowd. Lopiccolo's fiancé, Jessica Heck, noticed the same type of behavior by Watson and Parker on several occasions after they walked in that night, when they showed aggressive body language.
At the time that Watson and Parker noticed that there were not enough men's restrooms and went out into the alley to urinate, they were told not to do so by a manager-employee at the bar, Richard Travis Granada. As Parker cursed at him, Granada noticed that Watson seemed to be fidgeting with his hands near his sides. Granada told Watson that made him feel nervous, asking him to stop it, and Watson replied, "You know what? I could have already had you, homeboy." One of several bouncers on duty that night came up, asking Watson and Parker to go back inside. Watson later yelled at Granada to come over, but the bouncers warned him not to go.
Upon Watson's return to the bar, the situation escalated. The jury could reasonably have inferred that the evidence about the events in the alley, and before, shed some light upon his state of mind as it was demonstrated within the next few moments.
2. Manner of Killing
Watson argues that during the altercation with Jackson, he could not have formed the requisite state of mind, because the killing was immediately precipitated by mutual combat. Such an argument "simply asks this court to reweigh the facts." (Bolin, supra, 18 Cal.4th at pp. 332-333.) It is not persuasive for Watson to point to other, factually different cases to argue that they showed more in the nature of premeditation and deliberation. (People v. Rowland (1982) 134 Cal.App.3d 1, 8 [where a "particular and exacting" manner of killing is used, it supports a showing that the defendant intentionally killed according to a preconceived design].) For example, even though this was not an execution style shooting, the existence of planning, motive, or some considered manner of killing is not negated simply due to that distinction. (See, e.g., People v. Bloyd (1987) 43 Cal.3d 333, 348.) For the same reason, it is not persuasive for Watson to cite to various cases in which killers bound their victims, or followed them to rob them, or denied them medical assistance, or took acts to avoid detection of a feud with the victim. (See, e.g., People v. Horning (2004) 34 Cal.4th 871, 902-903.)
Instead, we examine the facts and circumstances demonstrated by the record before us, against the legal standards set forth above. Watson returned from the alley where he had threatened a club employee, and went toward the bar. At that time, Jackson, sitting at a table with one of the group of friends (Ms. Heck), raised his hand to signal to another friend, Candice King, to get him a beer from the bar, since she knew the bartender and could get it cheap. As Jackson looked toward her at the bar, Watson leaned in and said to him, "Do you have a fucking problem?" Jackson responded, "That's my girl at the bar. No disrespect." Heck spoke up, putting her hands on Watson's and Jackson's chests, saying something like, "Please, we are just here to have a good time. . . . No drama. No drama."
Watson told Heck, "Don't you fucking touch me, you fucking bitch." Jackson told Watson, "Please don't ever disrespect a woman like that in front of me." Watson answered Jackson, "What the fuck did you say?" Jackson repeated his statement and Watson punched him in the face. Watson and Jackson started wrestling and fighting their way across the room, breaking a table and falling to the ground.
Once the fist fight started, Watson was on the receiving end of blows from Jackson, who was over him, straddling and punching him. The bouncers came up to try to separate the fighters, who were in a pile of people, by grabbing them in bear hugs and pulling them off. One of the bouncers, Lawrence Kleier, saw that Watson was not throwing any blows, but instead was on his back wiggling on the ground, and his hands were not visible. Another bouncer, Junior Galindo, saw a third bouncer, Charlie Hackett, grab Jackson and pull him off Watson and hold him. Kleier then heard a shot and saw Watson stand up with a gun in his hand. From this evidence, the jury could have reasonably inferred that the shooting was the result of Watson's planning activity. He used his gun pursuant to a cold, calculated judgment that was arrived at very quickly. (People v. Nazeri, supra, 187 Cal.App.4th at p. 1113.)
Another bar patron, Ms. Camarena, saw Jackson punching Watson. Instead of fighting back, Watson was reaching in his right waistband, as though trying to move his shirt. He seemed to be reaching for something and trying to get off the floor. The jury could have concluded that at this point, Watson was engaged in some kind of rapid but purposeful planning activity to act out violently, as the circumstances were developing. Camarena then heard the gunshot and saw the victim on the ground and stopped to help him. Then she heard a second shot, after Watson walked out the door.
As Granada was trying to pull people off the pile of fighters, he heard the gun go off and looked to see who had the gun; it was Watson. Meanwhile, Parker was hitting or kicking Jackson as he lay on the ground. Granada followed Watson as he left and shut the door after him. Another man pushed Granada, disregarding his warnings that there was a gun, and started to follow Watson out the door.
Even though the killing took place within only a minute or two of the verbal altercation, during the fist fight and the bouncers' efforts to restrain the fighters, the jury's verdict regarding Watson's apparently deliberative state of mind is supported by the evidence and legitimate inferences from it, about what actually occurred within those few minutes. (Bolin, supra, 18 Cal.4th 297, 331-332.) After the bouncers pulled Jackson off Watson and dragged him away, Watson got to his feet, while pulling the gun from his waistband, and shot Jackson in the chest. Jackson was being restrained and was no longer an immediate threat to Watson, when he was shot. After shooting, Watson started sweeping the gun around, yelling, "Who wants some? Who wants some?" Then Watson and Parker started running into the parking lot.
In conjunction with some indications of Watson's planning activity, shown by his bringing the gun and seeming to be looking for a fight that night, the manner of killing fully supports a finding of premeditation and deliberation. Instead of punching Jackson back, Watson was reaching back to his waistband to grab his gun. As Jackson was being restrained, Watson got to his feet and shot Jackson. He then escaped, only to find Buchanan in his path.
Although the jury received instructions on lesser included offenses, it convicted Watson of first degree murder of Jackson. Viewing the record in its entirety, we conclude that as a rational trier of fact, the jury had enough evidence before it to support its findings of the essential elements of this crime, including premeditation and deliberation. (People v. Romero (2006) 140 Cal.App.4th 15, 18.)
II
ATTEMPTED MURDER OF BUCHANAN
A. Applicable Standards: Attempted Murder
To review Watson's contentions that no sufficient evidence supports his conviction of attempted murder of Buchanan, we apply the same standards set forth above, and add the authorities describing the criteria for the required specific intent for such a conviction. We examine the record to determine " 'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.' [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) We view the evidence at trial in a light most favorable to the judgment, including both direct or circumstantial evidence. (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
To prove an attempted murder charge, there must be evidence addressed to any specific intent to commit the crime, and also, a direct but ineffectual act carried out toward accomplishing it. (People v. Kipp (1998) 18 Cal.4th 349, 376; CALCRIM Nos. 600, 601.) Such "intent or intention is manifested by the circumstances connected with the offense." (§ 21, subd. (a).) Section 187, subdivision (a) provides that "[m]urder is the unlawful killing of a human being . . . with malice aforethought." Attempted murder thus "requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Lee (2003) 31 Cal.4th 613, 623.)
Although the intent to kill must be proven and not merely inferred from the commission of another dangerous crime (People v. Belton (1980) 105 Cal.App.3d 376, 380), whether the perpetrator harbored such an intent is a factual question, and may be inferred from the facts and the circumstances surrounding the act, including the perpetrator's actions and words. (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946 (Lashley).) Thus, the nature of an assault, the weapon chosen, the manner in which the weapon was used, and the actual consequences of the assault, including the nature of the wound, can all provide evidence of the intent to kill necessary for attempted murder. (Ibid.)For example, firing a gun toward a victim at close range "in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . ." (Id. at p. 945.) That "the victim may have escaped death because of the shooter's poor marksmanship [does not] necessarily establish a less culpable state of mind." (Ibid.)
Moreover, "even if the shooting was not premeditated, with the shooter merely perceiving the victim as 'a momentary obstacle or annoyance,' the shooter's purposeful 'use of a lethal weapon with lethal force' against the victim, if otherwise legally unexcused, will itself give rise to an inference of intent to kill. [Citation.]" (People v. Smith (2005) 37 Cal.4th 733, 742 (Smith).)
B. Contentions and Analysis
According to Watson, the sequence of events proven at trial does not demonstrate the required element of premeditation and deliberation of an attempted killing. Only two or three seconds passed between his fortuitous encounter with Buchanan and his firing of the shot, and Watson argues he did not shoot to kill, such as at the head or chest, but hit his human target in the groin.
To evaluate whether the evidence supports conclusions that Watson acted toward Buchanan with planning, or with a motive, or in a manner likely to cause death, we examine the same Anderson elements as set forth above. Additionally, we consider whether a reasonable factfinder could infer from the facts and the circumstances surrounding the act, such as actions and words, that Watson demonstrated an intent to kill Buchanan. (Lashley, supra, 1 Cal.App.4th at pp. 945-946.)
After Watson fought with and then shot Jackson, he and Parker left the bar. Hearing the gunshot, Buchanan ran out to the parking lot to try to get a license plate number or some identifying information on Watson and Parker. Buchanan testified at trial that as he came out of the bar, he saw Watson holding his gun, which looked like a hand cannon (big handgun). Watson was coming back from the parking lot toward the bar, where Buchanan was standing. Buchanan, the bouncer Brackett, and a witness, Bobby Koenig, said Watson was walking in a determined way back toward the bar. As Watson was coming toward him, Buchanan held his hands up into the air, backed away, and said, "Hey man, I got nothing to do with this. I don't even know what's going on." Watson raised his gun and fired, injuring Buchanan in the groin area (testicle and leg). Then he and Parker left.
From this evidence of Watson's acts and the circumstances in which he acted, a reasonable trier of fact could infer that he had some motive and planned to shoot Buchanan, possibly to eliminate him as a witness to the earlier shooting. (Smith, supra, 37 Cal.4th at p. 741.) When Watson fired directly at Buchanan while Buchanan's hands were up, that purposeful discharge of the firearm at close range (2-4 feet) supports the inference he was shooting with the intent to kill and to facilitate his escape. Those facts and circumstances surrounding Watson's act do not support his requested inferences that only a rash or impulsive act occurred, but rather, the jury could reasonably have concluded that he was acting methodically with an intent to destroy Buchanan. (Lashley, supra, 1 Cal.App.4th at pp. 945-946.)
Watson's previous actions in shooting Jackson also demonstrated knowledge that the act of shooting Buchanan in such a manner would " ' "to a substantial certainty," ' " result in Buchanan's death. (People v. Davenport (1985) 41 Cal.3d 247, 262.) The fact that his aim may have been poor does not negate this intent. (Lashley, supra, 1 Cal.App.4th at p. 945.) The nature of the assault and the severe nature of the wound provides evidence of the intent to kill necessary for attempted murder. (Ibid.) The jury verdict is well supported on this charge.
III
JURY USAGE OF COMPUTER DURING DELIBERATIONS
A. Issues Presented and Applicable Standards
Watson contends it was misconduct for the jury, during deliberations, to utilize a software program on a computer provided to it in the jury room, for viewing excerpts from the three surveillance video disks admitted into evidence. As shown in the new trial offer of proof, jurors apparently discovered this program on the supposedly "completely bare laptop" computer, and used it during deliberations for the purpose of zooming in on and magnifying various portions of the four-plus hours of video surveillance views provided. It is undisputed that neither the trial court nor counsel was aware that this particular laptop computer was equipped with such a computer program, when they provided it to the jury for the purpose of allowing viewing of the videos. The court denied the requests for further investigation of jurors' viewpoints and the new trial motion.
Watson's theory of jury misconduct and prejudice rests on arguments that this turn of events allowed juror experimentation that impermissibly served to introduce new, extrinsic evidence into their deliberations. He argues he and his counsel did not have the opportunity to contest that evidence at trial, in violation of his Sixth Amendment confrontation rights. In addition, Watson contends his trial counsel was ineffective, in connection with his new trial motion preparation, because he did not pursue the jury disclosure requests further to obtain juror affidavits that would have explained how the computer program was discovered and used.
To analyze the claims of jury misconduct, we examine the record of how the surveillance video evidence was treated at trial, in light of applicable standards governing
the jury's review of the evidence presented to it, and appellate challenges to it. Much of our work has been done for us by the Supreme Court in Collins, supra, 49 Cal.4th 175, at pp. 243-256, in which the Supreme Court reviewed case authorities and then rejected claims of jury misconduct that were based on a juror's use of his home computer to analyze admitted evidence, by preparing diagrams and later presenting a demonstration to the other jurors, during deliberations. This type of legal analysis requires the courts to consider and to distinguish between (1) the nature of the evidence, as admitted, excluded, or never introduced, and (2) the tools or methods used by the jury to critically examine the admitted evidence. (Id. at pp. 243-244.)
Watson did not request the transmission of exhibits pursuant to California Rules of Court, rules 8.320 (e) and 8.224.
Where jury misconduct is claimed in the context of new trial motions, and where the historical facts surrounding the subject jury deliberations are not disputed, it is appropriate for the appellate court to review the undisputed facts independently to determine if those facts constitute misconduct, as a matter of law. (Collins, supra, 49 Cal.4th at p. 242.) The courts will not reach issues of prejudice unless jury misconduct is found. (Id. at p. 249.) Pursuant to Evidence Code section 1150, the courts do not inquire into the thought processes of the jurors, but rather only examine the evidence about overt acts reflected in their accounts of what happened in the jury room. (Collins, supra, at p. 250.)
To the extent that trial court inadvertence has allowed jurors to receive and consider extrinsic evidence, jury misconduct standards will not apply. Instead, that problem is treated as ordinary error: " 'When . . . a jury innocently considers evidence it was inadvertently given, there is no misconduct.' " (People v. Cooper (1991) 53 Cal.3d 771; People v. Gamache (2010) 48 Cal.4th 347, 397-398; see 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000 & 2011 suppl.) § 24, pp. 13-14.)
B. Facts on Deliberations
Both at the outset of trial and when the case was submitted to it, the jurors were instructed in the language of CALCRIM Nos. 101 and 201: "Do not do any research regarding this case on your own or as a group. . . . Do not investigate the facts or law. Do not conduct any experiments . . . ." Also, they were told under CALCRIM No. 200, in relevant part: "You must decide what the facts are. It is up to all of you, and you alone to decide what happened, based only on the evidence that has been presented to you in this trial." The jury was also told that argument by counsel was not evidence, but that testimony and exhibits were. (CALCRIM Nos. 104, 222.)
The evidence presented at trial and provided to the jury included two computer disks of surveillance video taken at the bar that night, representing about 4 1/2 hours of surveillance from two cameras, over the evening and early morning. The third disk contained significant excerpts selected by detectives for a composite video, and still images from the disks were also provided to the jury. The court and counsel discussed using the composite to show to witnesses during trial, for expediency's sake, to obtain their explanations of what they saw. The prosecutor told the court, "if the jury wants to sit and watch two-plus hours on camera they can take that time during deliberation, but I wasn't going to waste counsel and the [c]ourt's time to watch drunk people dance around on camera." The court responded that the jury would be able to review the disks "so they can bring out what they want to and draw attention to also."
Investigating sheriff's detective Greg Myler testified at trial about his viewing of the video, which was obtained from the camera system at the scene and was later copied and enhanced by police technicians. He commented that it was not a very good video, particularly in a crowd setting. However, he was able to observe the movements of Watson and Parker during the evening, shortly before and after the confrontation.
In testimony from sheriff's detective Robert Rose, and sheriff's forensic video specialist Michael Belicki, they explained their receipt of the 12 hours of raw video footage and their processing of it to transfer the relevant portions, identified to them by investigating officers by time, to disks for viewing. Defense counsel asked the witnesses whether the images could be viewed through a zoom function, and received the answer from Sergeant Belicki that it depends on the quality and the way that the surveillance recorders are set up as to the final output of what the picture would show when zooming in. Computer programs could be and were used to enhance the quality of the pictures. However, nothing was deleted or altered on the raw video in the process of preparing the copies of them. The hard drives from the surveillance apparatus were apparently no longer available, but the copies of the selected excerpts were complete, and the composite was taken from them.
In further testimony from Detective Rose, he described how he took a copy of the video footage and using computer programs, manipulated it to add highlighting shadow boxes around certain people, to label and identify for the jury certain points of reference. Nothing was altered or added to the videos or drawn on them, but the images would be enhanced, such as adjusting the contrast or brightness. The court took note of defense counsel's continuing objection to this labeling as argumentative, and took precautions to give limiting instructions to the jury to let it know that any captions or highlights placed on the video images were not evidence, but were labels made by the attorneys. Detective Rose also explained that it was possible to manipulate the individual frames of film footage in different ways, such as zooming or rotating them, but the low resolution quality of video here indicated that zooming in on the images would not clarify them, because the image would be more pixilated and worse looking, and not necessarily easier to see.
When these video recordings were sent back to the jury room, they were accompanied by the prosecution's laptop computer, which was not separately admitted into evidence, but was regarded as a viewing tool for the use of the jury. Neither the attorneys nor the court were aware that the computer was equipped with the "InterVideo WinDVD Media Player" program that could be activated by a button on the remote control, to make it possible to slow down and zoom in and out on the images on the videos.
Considering that the jury was told by the video expert witnesses and detectives that it was possible to zoom in on the images, it is not surprising that they chose to do so. We next consider whether this amounted to misconduct, or only appropriate use of a tool provided to them.
C. New Trial Motion
After the verdict was returned, the court and counsel learned from media accounts that two jurors were reporting in postverdict newspaper comments and online that while deliberating, they had full access to the hours of video images. In connection with the new trial motion, defense counsel presented an offer of proof that the jury foreman reported that they were therefore enabled to "see things that could not be seen during trial." The jury foreman ("46XX") told the defense investigator the following:
"46XX said that they were able to see the videos much clearer than they could during the trial and that this helped them in the deliberation process. 46XX said that after going over the video several times and zooming in they were able to determine that Watson and the victim had to have had some type of confrontation outside in the parking lot or outside the bar. 46XX said they believed this because of the way they had entered the bar right after the other and that the shooting took place after that. 46XX said they were also able to see Watson leave the bar, and they assume that he went to his vehicle and retrieved a gun and brought it back to the bar after the confrontation in the parking lot. 46XX said they thought this because they were able to watch the video from the bar angle and they were able to see something they did not see during the trial, and that was while Mr. Watson and Parker were at the bar Watson told Parker that he had a gun. [46XX] said they could not hear him say that but his actions showed it."
At the new trial hearing, defense counsel argued that the authority of Turner, supra, 22 Cal.App.3d 174, allowing jury use of magnifying glasses as an extension of the senses was distinguishable, so that this jury had engaged in misconduct by experimenting with the computer. In response, the prosecutor stated that even though the court and counsel were unaware of the computer's zoom capability, the jury should not be limited in its ability to examine the physical evidence. He argued that manipulating the video recording in this manner was within the jurors' duty to review the evidence, even if such "actions or events in those videos . . . really weren't deduced at trial . . . . [¶] If they interpreted movements or gestures or events in that video and drew conclusions from it, that's what they are supposed to do. That's their job. And if it's different from what we concluded, so be it."
In its ruling, the court found it dispositive that the video disks were admitted into evidence, and ruled "the state of the law is that they can zoom in, if they—if they wish it. Nobody knew they had that ability, but it would be the same thing as a magnifying glass, as far as the court is concerned. So I don't think there was any misconduct by the jury in doing that."
D. Governing Law
In Collins, supra, 49 Cal.4th at p. 249, the Supreme Court set forth an exhaustive review of case law in this area, building upon "the venerable authority of Higgins and its progeny." In Higgins, supra, 159 Cal. at pp. 656-657, the court had rejected claims of jury misconduct that were based upon the jury's examination of and possible experimentation with an admitted exhibit, a flashlight, in the jury room. In that context, the court long ago set out these governing rules:
"It is a fundamental rule that all evidence shall be taken in open court and that each party to a controversy shall have knowledge of, and thus be enabled to meet and answer, any evidence brought against him. It is this fundamental rule which is to govern the use of such exhibits by the jury. They may use the exhibit according to its nature to aid them in weighing the evidence which has been given and in reaching a conclusion upon a controverted matter. They may carry out experiments within the lines of offered evidence, but if their experiments shall invade new fields and they shall be influenced in their verdict by discoveries from such experiments which will not fall fairly within the scope and purview of the evidence, then, manifestly, the jury has been itself taking evidence without the knowledge of either party, evidence which it is not possible for the party injured to meet, answer, or explain." (Higgins, supra, at pp. 656-657; italics added.)
From Higgins and subsequent authorities, the court in Collins distilled these principles: "Not every jury experiment constitutes misconduct. Improper experiments are those that allow the jury to discover new evidence by delving into areas not examined during trial. The distinction between proper and improper jury conduct turns on this difference. The jury may weigh and evaluate the evidence it has received. It is entitled to scrutinize that evidence, subjecting it to careful consideration by testing all reasonable inferences. It may reexamine the evidence in a slightly different context as long as that evaluation is within the ' "scope and purview of the evidence." ' [Citation.] What the jury cannot do is conduct a new investigation going beyond the evidence admitted." (Collins, supra, 49 Cal.4th 175, 249.) Rather, it can use the entire scope of the record provided, in attempting to evaluate the trial evidence, in light of the issues raised by the
circumstances of the charged offenses. (Id. at p. 244.)
In Collins, the court relied on the views in People v. Bogle (1995) 41 Cal.App.4th 770 (Bogle), to explain when a new field of inquiry has improperly been invaded by a jury. In Bogle, the court said, "[T]he term 'field,' as used in Higgins, does not mean one specific fact. A 'field,' instead, is an area of inquiry, such as the extent of the defendant's access to the contents of the [murder victims'] safe or whether the defendant was a credible witness." (Collins, supra, 49 Cal.4th at p. 247.)
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1. Improper Jury Conduct with Evidence
As examples of impermissible jury experimentation that resulted in the acquisition of new evidence, the court in Collins cited to cases such as People v. Castro (1986) 184 Cal.App.3d 849, 852, in which a juror " 'went home and used binoculars to see if a witness could have possibly seen what he . . . said he did,' " and then took the information back to jury deliberations the next day. This exceeded the record properly before the jury. (See also Collins, supra, 49 Cal.4th at p. 247, discussing People v. Conkling (1896) 111 Cal. 616, 627-628 [jury cannot conduct experiments to investigate the case outside the courtroom].)
2. Proper Jury Examinations of Evidence
As examples of "proper jury behavior" that makes a "more critical examination" of the evidence admitted, the court in Collins, supra, 49 Cal.4th at page 247, cited cases such as Turner, supra, 22 Cal.App.3d 174, 179, where the jury used magnifying glasses during deliberations to assist them in comparing two photographs. That conduct did not constitute either new evidence or an impermissible experiment. (Id. at pp. 182-183 [" '[T]he mere making of a more critical examination of an exhibit than was made during the trial is not objectionable.' "].) "At most, the use of the magnifying glass involved an extension of the jury's sense of sight [citations]." (Turner, supra, at pp. 182-183.)
In People v. Cumpian (1991) 1 Cal.App.4th 307, 316, the court appropriately stated that jurors must be given some latitude in their deliberations to permit them to use their "common experiences" and illustrations in rendering a verdict. The court in Collins relied on the statement in Cumpian: " 'To prohibit jurors from analyzing exhibits in light of proffered testimony would obviate any reason for sending physical evidence into the jury room in the first instance.' [Citation.] An evaluation of a misconduct claim 'must necessarily focus on whether the experiments were based on evidence received in court.' " (Collins, supra, 49 Cal.4th at p. 246.)
In Collins, supra, 49 Cal.4th at pages 246 through 247, the Supreme Court described and relied upon Bogle, supra, 41 Cal.App.4th 770, as an example of proper jury experimentation that did not violate the defendant's constitutional confrontation rights. There, the trial court did not disallow the jury's unexpected use of two exhibits, the defendant's set of keys and the murder victims' safe, and correctly found that it was not a prohibited jury experiment. The trial court had compared that situation "to one in which a jury is given a picture and sees something in the picture that adds insight into the case but was not pointed out during testimony." (Id. at p. 778.)
Accordingly, in Bogle, since the set of keys and the safe had been introduced into evidence, the jury could utilize them in the jury room, because there were credibility issues at stake and "the jury was entitled to determine, from the evidence it was given, the character and extent of the defendant's relationship to the safe. Trying the keys on the safe was an exercise in that pursuit, not a foray into a new field." (Bogle, supra, 41 Cal.App.4th at p. 780.) A jury can reexamine "the evidence in a slightly different context" than was presented at trial, to assist it in reaching a verdict. (Id. at p. 781.)
In Bogle, supra, 41 Cal.App.4th 770, the court also discussed the concept of diligence of counsel toward the evidence, as illustrated in an out-of-state case discussed by the Supreme Court in Higgins, supra, 159 Cal. 651. In that Virginia murder case, approvingly cited by Higgins, the prosecution's evidence had included the exhibition of a rifle as a whole (without disassembling it), and the defendant had tried to rebut the arguments that the rifle was the murder weapon by demonstrating that "the marks of the firing pin on the cartridge shells" were "different from the marks on the shells recovered from the scene." (Bogle, at p. 779.) Later, when it was learned that the jury, during deliberations, unexpectedly took the rifle apart and determined that someone (on the defense side?) had tampered with the firing mechanism, no jury misconduct was found. (Id. at pp. 779-780.)
In Higgins, the court analyzed those Virginia case facts to conclude that in handling the evidence, "the jury did not invade a new field; it used the evidence at hand to come to its own conclusion concerning the true facts." (Bogle, supra, 41 CalApp.4th at p. 780.) It did not make any difference that the underlying evidence tampering issue had not come to light in open court, because: " 'A more acute prosecuting attorney might have caused the examination to have been made in open court and thus have demonstrated the trick and fraud, but his failure to do so afforded no ground for overthrowing the verdict of an intelligent and scrutinizing jury which, making its own examination of the evidence admitted to prove or disprove the very fact, discovered that the [rifle] plunger "had been recently tampered with and fixed for the occasion of the trial.(Bogle, supra, 41 Cal.App.4th at pp. 779-780, quoting Higgins, supra, 159 Cal. at pp. 657-658.)
3. Special Jury Computer Usage Problems
In Collins, the court was careful to emphasize that a computer should not be used by jurors for independent investigation of the evidence. "If, for example, a juror conducts an investigation in which he or she relies on software that manipulates the data, subjecting it to presumptions written into the program, such use would likely constitute an improper experiment. The computer in such a circumstance is analogous to the use of the juror's binoculars in Castro, supra, 184 Cal.App.3d 849 [used to test visibility outside the courtroom], or the juror's gun in Conkling, supra, 111 Cal. 616 [used outside of the courtroom or jury room for experimentation]. As with the binoculars and the gun, the computer in these circumstances creates extraneous evidence not admitted at trial." (Collins, supra, 49 Cal.4th at p. 256.)
To argue the computer program supplied to them allowed these jurors to improperly manipulate the video surveillance disks in this case, Watson relies on U.S. v. Gonzalez (N.D. Ill., 2001) 142 F.Supp.2d 1052, 1065 (aff'd., U.S. v. Gonzalez (7th Cir. 2003) 319 F.3d 291), in which the defendant's Sixth Amendment confrontation rights were deemed violated, when the jury was sent, as an admitted exhibit, a wallet belonging to one defendant. However, it was not known to the court or counsel in that case that the wallet contained the business card of the attorney for another defendant, and the record was ambiguous as to whether the wallet and its contents, or merely the wallet, were admitted. The court was concerned that the defense did not have the opportunity to make arguments or impeachment efforts against the surprise item (contents). However, any such evidentiary error was deemed harmless and there was no deprivation of due process. (U.S. v. Gonzalez, at pp. 1061-1062.)
In Watson's case, he likewise argues misconduct and inability to argue new evidence: "Unlike a magnifying glass, the computer's zoom capability was not merely a generic tool to aid the jury in examining exhibits. Rather, the jury used the zoom function to obtain information from exhibits that was not available at trial."
E. Analysis
We first are required to distinguish between the nature and extent of the evidence admitted, and the tools or methods used by the jury to examine that evidence, as allowed within the lines of what was offered and admitted. (Higgins, supra, 159 Cal. at pp. 656-657.) We are also required to distinguish between evidence and argument of counsel.
1 . Evidence Admitted "According to its Nature"
Jurors may use an exhibit "according to its nature" to aid them in weighing all the evidence given and in reaching a conclusion upon a controverted matter, within the lines of offered evidence. (Higgins, supra, 159 Cal. at pp. 656-657.) Here, the three surveillance video disks and photographs from them were the offered evidence that was sent to the jury room for examination. Watson complains that the computer itself was not admitted as an exhibit, and that the program contained within the computer allowing zooming and magnifying was not known to exist at the time. We first agree that the computer is not an exhibit, nor is the software on it. Instead, it was reasonably treated as a tool, like a slide projector or a magnifying glass. If there was trial court inadvertence in this respect, the jury should not be held responsible. (See Gamache, supra, 48 Cal.4th at pp. 397-398.)
The major issue before the jury was the extent of premeditation and deliberation used by Watson in confronting Jackson, fighting with him, pulling his gun, and shooting him. The defense was mainly that only a rash act or heat of passion dispute occurred. In considering all the events that led up to the shooting, "the jury was entitled to determine, from the evidence it was given, the character and extent" of Watson's activities that night, and examining the surveillance video in close-up or magnification "was an exercise in that pursuit, not a foray into a new field." (Bogle, supra, 41 Cal.App.4th 770, 780.)
The "nature" of the video surveillance evidence on the disks, each over two hours long, and taken from different cameras (not including the composite disk) was that it contained numerous, continuous views over time of everything that happened within camera range. The disks were admitted in their entirety for the jury's examination. The jury had been told in testimony that sheriff's investigators had done selective computer viewing of the lengthy videos in the course of preparing the evidence. The offer of proof and Watson's motion for new trial showed that the jury slowed down and magnified the video that was introduced into evidence, but that did not amount to receiving evidence outside of the courtroom. The jury did not bring in items not already in evidence.
"To prohibit jurors from analyzing exhibits in light of proffered testimony would obviate any reason for sending physical evidence into the jury room in the first instance." (People v. Cumpian, supra, 1 Cal.App.4th at p. 316.) There is no indication in the instant case that the jury did anything other than examine the exhibits in the jury room with an implement provided by the court.
This case is distinguishable from Castro, in which the jury received evidence outside of the courtroom, created by juror experimentation, and where that defendant was deemed prejudiced, for inability to meet or answer the new evidence. In finding such juror misconduct, the court said: "The very integrity of the jury deliberative process is at stake here. A juror conducted his own experiment at home which inferentially affected his verdict thereby creating a rebuttable presumption of prejudice. Because the prosecution failed to rebut the presumption and because the record does not permit a finding of harmless error, the judgment of conviction must be reversed." (Castro, supra, 184 Cal.App.3d 849, 852-853, 857.) That is not this case, in which the jury actions to view the evidence took place within the jury room with tools provided to them.
2. Methods and Tools Used by Jury "Within the Lines of Offered Evidence"
Jurors cannot generate new evidence through experimentation or investigation, to create a new field of inquiry. (Bogle, supra, 41 Cal.App.4th at pp. 778-781.) This jury discovered there was an installed computer program that allowed them to view the surveillance video clips to zoom in and slow down those video clips.
Watson argues that the presence of the newly discovered computer program in the jury room amounted to the generation of new evidence. However, the computer itself was not evidence, but only a device to allow viewing of the evidence, and the computer program itself did not create new evidence or alter existing evidence. We are mindful of the cautions set forth in Collins, regarding computer pitfalls in the courtroom: "If, for example, a juror conducts an investigation in which he or she relies on software that manipulates the data, subjecting it to presumptions written into the program, such use would likely constitute an improper experiment." (Collins, supra, 49 Cal.4th at pp. 255-256.) A computer may not be used to create extraneous evidence not admitted at trial. (Ibid.)
In Collins, the juror's use of his home computer was characterized as permissibly promoting his own thinking about and visualization of the evidence already received. As such, it was not an experiment resulting in the acquisition of any new facts. (Collins, supra, 49 Cal.4th at pp. 252-256.) Based on the evidence provided to the jury, he created a scale diagram that did not interject any information outside the record. Rather, it was " 'the product of the juror's own thought processes and the evidence, rather than extraneous influences.' " (Id. at p. 255.) His computer did not create evidence that was not already before him, nor contain information beyond the record. (Ibid.)"The computer was simply the device that allowed [Juror G.B.] to draw his diagram with ease and accuracy in order to visualize the evidence. There was no showing that the computer or its software performed any analytical function or provided any outside information." (Ibid.)
Similarly in this case, the jury was entitled to use their own "common experience," including knowledge about the usage of computers, to discover the function of a button on the remote, that apparently allowed them to use the zoom program. (See Cumpian, supra, 1 Cal.App.4th at p. 316; Bogle, supra, 41 Cal.App.4th at p. 778.) This function was a tool or device that could be used to focus in on the evidence, much like a magnifying glass, to perform a "more critical examination" of the evidence admitted. (Higgins, supra, 159 Cal. at p. 659; Collins, supra, 49 Cal.4th at p. 256; Turner, supra, 22 Cal.App.3d at p. 183.) The exhibits themselves were unchanged by the viewing and zooming. This was not the receipt of extrinsic evidence, but amounted to an extension of the jury's sense of sight. (Turner, supra, 22 Cal.App.3d at p. 183.)
Here, as in Bogle, supra, 41 Cal.App.4th at p. 778, the jury was given "pictures" and they saw something in them "that adds insight into the case but was not pointed out during testimony." (Ibid.) The jurors "merely reexamined the evidence in a slightly different context as an aid in reaching a verdict." (Id. at p. 781.) Nothing prevented the jury from looking at the videos more carefully than was done in open court, or finding different, existing contents than were actually argued to them.
3 . Argument v. Evidence; No Ineffective Assistance of Counsel
Jurors cannot take evidence "without the knowledge of either party, evidence which it is not possible for the party injured to meet, answer, or explain." (Higgins, supra, 159 Cal. at pp. 656-657.) Watson argues this rule applies to his case, because he could not impeach, rebut, or argue to the jury the "proper characterization of the images" that were on the surveillance video disks as a whole. He therefore argues he was deprived of his confrontation rights. (U.S. v. Gonzalez, supra, 142 F.Supp.2d 1052.) However, the jury was correctly told that argument of counsel was not evidence. Both the prosecutor and defense counsel had argued various points to the jury about the actions shown on the surveillance disks and images, as they deemed appropriate to their cases.
Watson cannot legitimately claim that he had no opportunity to rebut the evidence on the video disks, or that he must be given a right to further argue his theories of self-defense or heat of passion with reference to the entirety of the video footage, instead of that actually referred to during the trial proceedings in open court. The video composite was shown to witnesses during trial, for the sake of expediency, and likewise, not all of the hours of video were required to be presented in open court. The jury already had an adequate opportunity to hear Watson's theories that his head injuries and voluntary alcohol consumption should raise reasonable doubts as to whether he could premeditate the shootings of Jackson or Buchanan, or that only imperfect self-defense was involved.
Moreover, defense counsel was not deprived of the opportunity to view and argue the entirety of the four hour-plus surveillance videos, and it is not dispositive that he did not insist on playing all of the videos for the trial court and jury, as there could have been strategic reasons for focusing on certain portions of the surveillance videos within the disks. (See Higgins, supra, 159 Cal. at pp. 657-658.) We reject Watson's arguments that his trial counsel was ineffective in connection with his new trial motion preparation, by not further pursuing jury disclosure requests to obtain juror affidavits. (See Bogle, supra, 41 Cal.App.4th at p. 783 [ineffective assistance of counsel claim requires defendant to show (1) representation by counsel fell below that expected of a reasonably competent attorney and (2) such incompetence withdrew a potentially meritorious defense].) "On review, we presume the attorney performed reasonably and avoid relying on hindsight to judge the actions of the attorney. [Citation.]" (Ibid.) Defense counsel adequately framed the issues for the trial court in the offer of proof.
Where there is no juror misconduct, there is no need for a prejudice analysis. (Collins, supra, 49 Cal.4th at p. 249; see People v. Baldine (2001) 94 Cal.App.4th 773, 777-778 [no misconduct occurred when jurors turned on defendant's police scanner admitted in evidence, thus rebutting defendant's claim it was inoperative].) As a matter of law, under the applicable authorities, we conclude the trial court did not err in denying the defense's motion for new trial, because there was no jury misconduct.
IV
SENTENCING ERROR AND CORRECTION
In the presentence report, the probation officer recommended, among other penalties, that certain fees be imposed on Watson in the amount of $240, consisting of $120 each, based on four convictions, for (1) a court facilities assessment (criminal conviction fee) pursuant to Government Code section 70373, and (2) a CSF pursuant to section 1465.8. However, at the oral pronouncement of sentence, the court merely specified such a fee of $240 in this matter. In the sentencing minute order and the abstract of judgment, this $240 "additional assessment" was imposed "per count."
Watson contends, and the People concede, that the sentencing minute order and abstract of judgment erroneously state with respect to these fees that the "additional assessment" was imposed "per count," and it must be separately stated. Case law supports this argument and concession. "It has been settled law for over 250 years that a person stands 'convicted' upon the return of a guilty verdict by the jury or by the entry of a plea admitting guilt." (People v. Davis (2010) 185 Cal.App.4th 998, 1001.)
On the date of Watson's convictions of four counts rendered February 27, 2009 and recorded March 2, 2009, the CSF fee prescribed by section 1465.8 was $20 per count. This $20 CSF fee (not $30, as in later amendments), applies to Watson, and the oral pronouncement of sentence should be read accordingly. (People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3.) This amounts to $80 for four counts.
Next, the $30 per count criminal conviction assessment based on Government Code section 70373 was appropriate ($120). We accordingly order the superior court clerk to correct the minutes and amend the abstract of judgment, to reflect that a criminal conviction fee of $120 pursuant to Government Code section 70373 was imposed, and an $80 CSF pursuant to former section 1465.8, subdivision (a)(1).
DISPOSITION
The superior court clerk is directed to correct the sentencing minute order and amend the abstract of judgment to replace the general references to "additional assessments" with the imposition of a criminal conviction fee of $120 (pursuant to Government Code section 70373), and an $80 CSF (pursuant to former section 1465.8, subdivision (a)(1)). The court clerk is directed to forward certified copies of the corrected minute order and amended abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
HUFFMAN, J. WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.