Opinion
D074580
12-18-2018
THE PEOPLE, Plaintiff and Respondent, v. SHAWN ANTHONY WYNN, JR., Defendant and Appellant.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Tami Hennick and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. INF1401863) APPEAL from a judgment of the Superior Court of Riverside County, John G. Evans, Judge. Reversed and remanded for resentencing, and otherwise affirmed. Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Tami Hennick and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Shawn Anthony Wynn, Jr. guilty of one count of first degree murder (Pen. Code, § 187, subd. (a)), one count of active participation in a criminal street gang (§ 186.22, subd. (a)), and one count of unlawful possession of a firearm by a felon (§ 29800, subd. (a)(1).) With respect to the murder count, the jury also made true findings that (1) the murder occurred while Wynn was an active participant in a criminal street gang and was committed to further the activities of the criminal street gang (§ 190.2, subd. (a)(22)); (2) the murder was committed for the benefit of, or at the direction of, or in association with a criminal street gang with specific intent to promote, or further or assist in any criminal conduct by gang members (§ 186.22, subd. (b)); and (3) a principal in the murder personally and intentionally discharged a firearm, causing great bodily injury or death (§ 12022.53, subd. (d)). The trial court found that Wynn incurred a prior strike (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)) and a prior serious felony (§ 667, subd. (a)). Wynn was sentenced to a determinate term of nine years and an indeterminate term of life in prison without the possibility of parole for the murder count, along with an indeterminate term of 25 years to life for the firearm use enhancement for that count.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Wynn presents several arguments on appeal. First, he contends that insufficient evidence supports two of the gang-related findings made by the jury, namely (1) the true finding with respect to the murder count that the killing took place while Wynn was an active participant in a criminal street gang and was carried out to further the activities of the gang (§ 190.2, subd. (a)(22)), and (2) the finding in count 2 that Wynn committed the crime of active participation in a criminal street gang (§ 186.22, subd. (a)). Specifically, Wynn contends that as to both findings, insufficient evidence supports a necessary factual predicate, namely that he knew that the gang's members engage in or have engaged in a pattern of criminal gang activity. Second, Wynn contends that the trial court erred by instructing with CALCRIM No. 361 on a defendant's failure to explain or deny evidence against him because there was no evidentiary basis for the instruction. Third, Wynn contends the trial court abused its discretion by denying a motion for a mistrial based on the jury's discussion during deliberations regarding the possible meaning of the tattoo under Wynn's right eye. Fourth, Wynn argues that the sentence on the conviction for being a felon in possession of a firearm should have been stayed pursuant to section 654. Finally, Wynn requests that we remand this matter for a new sentencing hearing so that the trial court can decide whether to exercise its discretion to (1) strike the firearm use enhancement pursuant to newly enacted section 12022.53, subdivision (h); and (2) strike the five-year enhancement for his prior serious felony conviction (§ 667, subd. (a)) pursuant to the discretion newly afforded to the trial court by Senate Bill 1393, which takes effect on January 1, 2019.
Except for the final two contentions, which the People concede have merit, we reject Wynn's remaining arguments. Accordingly, we remand this matter with directions for the trial court to (1) stay the sentence on the conviction for being a felon in possession of firearm; and (2) consider whether to exercise its discretion to strike (a) the firearm use enhancement based on section 12022.53, subdivision (h); and (b) the five-year enhancement for Wynn's prior serious felony conviction based on Senate Bill 1393. In all other respects, the judgment is affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On the night of June 16, 2014, Juan H., Omar G., and Raul G. were parked on a residential street when a shot was fired through their car's rear window, hitting Juan H. in the back of the head and killing him. According to Omar and Raul's testimony, after the fatal shot was fired, an additional one or two shots were fired but those shots did not hit the car. A vehicle then started up and sped past them, out of the neighborhood. Immediately before the shots, Raul heard a voice from behind the car saying, "What are you guys doing here?" Police officers later found two shell casings on the street in the vicinity of the shooting.
Based on a recording from a home security camera in the neighborhood, police eventually identified Wynn's vehicle as being involved in the shooting. After being shown the security camera video by police, Wynn claimed that he had allowed other people to use his vehicle, and that he was not present during the shooting. Wynn provided accurate information to police about the residences of the people he claimed were involved in the shooting and led them to the firearm used during the shooting, which he claimed he knew about because of text messages that he had reviewed on someone else's phone. Wynn told police that although he believed at least one person involved in the shooting was a member of the South Side Indio gang, he "didn't really know anything about the street gangs in Indio."
Subsequently, other evidence, which was presented at trial, connected Wynn more closely to the shooting and to the South Side Indio gang and led to his conviction in this case.
First, police obtained two photographs taken on June 17, 2014, the day after the shooting, which depicted Wynn with known South Side Indio gang members and showed Wynn wearing clothing and making hand signs that connected him to the South Side Indio gang. In one photo, Wynn (1) is wearing a St. Louis Cardinals hat, which is associated with the South Side Indio gang; (2) is wearing a custom-made T-shirt stating "Sur Town Locos," which is another name for the South Side Indio gang; (3) has a blue bandana in his pocket, which is commonly displayed by Southern California Hispanic gangs; (4) is making an "I" sign with his hands while another person in the photo is making an "S" sign, to represent "South Indio;" and (5) is posing with two known South Side Indio gang members, known by the monikers "Slugger" and "Monster," both of whom are wearing clothing associated with the South Side Indio gang, and one of whom is displaying a gun in his waistband. The second photo depicts Wynn, Slugger and an unknown person. In the photo, Slugger is wearing a St. Louis Cardinals hat. Wynn is wearing a hat that may be a St. Louis Cardinals hat as in the other photo, but the hat is partly obscured and thus not identifiable. Finally, Wynn is making an "S" sign with his hands, in a manner unique to the South Side Indio gang.
The jury was informed that the parties stipulated as follows: "South Side Indio . . . criminal street gang was an active criminal street gang as defined in . . . section 186.22[, subdivision] (f). Specifically, it was an ongoing group consisting of three or more persons. It had a common name and/or common identifying sign or symbol. One or more of its primary activities involved the commission of prohibited possession of a firearm as covered by . . . section . . . 29800, [subdivision] (a), and robbery . . . , and members, whether acting alone or together, engage in or have in engaged in a pattern of criminal gang activity."
As the gang expert testified, the South Side Indio gang is also known as Sur Town Locos, and accordingly gang members will wear St. Louis Cardinals clothing bearing the letters "STL." Consistent with the photograph, in searching Wynn's bedroom, police located a St. Louis Cardinals hat.
For the sake of clarity, we will refer to Slugger and Monster by their gang monikers rather than by their given names.
Second, Wynn's grandmother spoke to police about statements that Wynn made to her about the shooting. A recording of her interview with police was played for the jury, and she also testified at trial. According to the grandmother, on the night of the shooting, Wynn was acting strange and asked her, " 'What would you do if you seen somebody be killed.' " During the conversation, Wynn told her that he saw someone get shot but did not provide other information. Days later, according to the grandmother, Wynn gave her more details about the shooting. Wynn told her that he was in his vehicle with four other men, including Slugger and Monster. When Wynn parked at a house where they planned to get drugs, Slugger put Monster's gun in Wynn's hand and wanted him to shoot someone. Wynn told the grandmother that Slugger was yelling something about the victim having a "P" on his hat. The grandmother told police that Wynn said he fired the first shot, but it was only "a warning shot." Specifically, Wynn told her "that he got out of the truck—I guess they wanted him to shoot the guy or (unintelligible). He said he got out of the truck with the gun, shot one shot in the air and then Slugger grabbed the gun from him and went over there and shot."
According to the gang expert's testimony, a rival gang to the South Side Indio gang commonly wears Pittsburgh Pirates clothing bearing a "P." The shooting occurred in South Side Indio territory. If a gang member is in a rival gang member's territory, it can be viewed as a sign of disrespect. As the gang expert explained, "As a gang you can't have other gang members coming into your neighborhood." The gang expert opined that a shooting occurring under the facts presented here could have been motivated by the belief that a perceived rival gang member was in South Side Indio territory.
Finally, a woman who knew Wynn and was at Wynn's residence on the night of the shooting testified that Wynn arrived home that night and appeared to be upset, scared and paranoid. Wynn stated something such as, "We just messed up and shot somebody." The woman also testified that during her various interactions with Wynn, he indicated that he was involved with the Sur Town Locos gang, and that his gang moniker was "Troubles."
An amended information charged Wynn with three counts. First, Wynn was charged with first degree murder, including allegations that (1) the murder occurred while Wynn was an active participant in a criminal street gang, with the murder carried out to further the activities of the criminal street gang (§ 190.2, subd. (a)(22)); (2) the murder was committed for the benefit of, or at the direction of, or in association with a criminal street gang with specific intent to promote, or further or assist in any criminal conduct by gang members (§ 186.22, subd. (b)); and (3) a principal in the murder personally and intentionally discharged a firearm, causing great bodily injury or death (§ 12022.53, subd. (d)). Second, Wynn was charged with being an active participant in a criminal street gang (§ 186.22, subd. (a)). Third, based on a prior felony conviction, Wynn was charged with being a felon in possession of a firearm. (§ 29800, subd. (a)(1).)
Wynn testified at trial and admitted that he was present during the shooting, but he did not admit to firing any shots. According to Wynn's testimony, he started spending time with Slugger and Monster approximately two weeks before the shooting, although he briefly knew Monster several years earlier in juvenile hall. Because Wynn was the only person in the group with a vehicle, he would often drive the others around. On the night of the shooting, Slugger, Monster and Slugger's younger brother were passengers in his vehicle, and he drove them to meet a friend of Slugger with whom they planned to smoke methamphetamine. According to Wynn, when Slugger told him to turn around and park the vehicle, he assumed they were at their destination. Without any discussion of what was to occur, Slugger got out of the vehicle, pulled a gun out of his waistband, ran up the street, and started shooting at another vehicle. According to Wynn, he heard three shots. Slugger got back into the vehicle and instructed Wynn to drive away.
Wynn testified that his grandmother misunderstood what he told her about the details of the shooting. According to Wynn, he told his grandmother that if he could have done so he would have exited the vehicle and would have fired a warning shot to allow the victims to escape. When asked about the photographs showing him in gang-related clothing and displaying gang-related hand signs, Wynn testified that on the morning after the shooting, Slugger asked Wynn to drive him and Monster to a store, where Slugger purchased for Wynn the shirt with the custom-applied Sur Town Locos insignia. According to Wynn, he posed in the photograph wearing the shirt, the St. Louis Cardinals hat, and the blue bandana because it was Slugger's idea to take the photograph, and he was too scared of Slugger and Monster to refuse. He owned and wore the St. Louis Cardinals hat before the shooting because he and Slugger had earlier acquired matching hats. Wynn stated that he made an "I" sign with his hands in one of the photographs because Slugger told him to do so. However, when asked if he made the "S" sign with his hands in the other photograph because someone told him to do so, Wynn stated that he did not recall. He also did not recall whether the partially visible hat in the second picture was a St. Louis Cardinals hat. Wynn admitted to knowing that Slugger and Monster were both members of the South Side Indio gang. However, when asked if he was "a member of South Side Indio" when the photographs were taken, Wynn did not give a meaningful response. Wynn stated, "I don't know. I don't know how to answer that, the question."
The jury convicted Wynn on all counts and made true findings on the gang and firearm use allegations. The trial court found that Wynn incurred a prior strike (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)) and a prior serious felony conviction (§ 667, subd. (a)). The trial court imposed a determinate term of nine years (which included a five-year term for the prior serious felony conviction), an indeterminate term of life in prison without the possibility of parole for the murder count, and an indeterminate term of 25 years to life for the firearm use enhancement for that count.
II.
DISCUSSION
A. Substantial Evidence Supports a Finding That Wynn Knew That Members of the South Side Indio Gang Engage in or Have Engaged in a Pattern of Criminal Gang Activity
We first consider Wynn's contention that insufficient evidence supports a finding that he knew that members of the South Side Indio gang engage in or have engaged in a pattern of criminal gang activity. That finding was relevant in two different respects in this case. Specifically, the finding was necessary for (1) the verdict in count 2 for active participation in a criminal street gang (§ 186.22, subd. (a)); and (2) for the gang-related special circumstance alleged in the murder count (§ 190.2, subd. (a)(22)).
A true finding on the gang-related special circumstance set forth in section 190.2, subdivision (a)(22) requires the imposition of a sentence of death or life without parole for a first-degree murder conviction. (§ 190.2, subd. (a)(22).)
As the jury was instructed in CALCRIM No. 1400, the crime of active participation in a criminal street gang charged in count 2 required that the jury find all of the following elements: "1. The defendant actively participated in a criminal street gang; [¶] 2. When the defendant participated in the gang, he knew that members of the gang engage in or have engaged in a pattern of criminal gang activity; [¶] AND [¶] 3. The defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang . . . ." (Italics added.) Similarly, as set forth in CALCRIM No. 736, the gang-related special circumstance in section 190.2, subdivision (a)(22) required the jury to make all of the following predicate findings: "1. The defendant intentionally killed Juan [H.]; [¶] 2. At the time of the killing, the defendant was an active participant in a criminal street gang; [¶] 3. The defendant knew that members of the gang engage in or have engaged in a pattern of criminal gang activity; [¶] AND [¶] 4. The murder was carried out to further the activities of the criminal street gang." (Italics added.) Wynn contends that insufficient evidence supports the findings on the italicized elements set forth above, but he does not challenge the sufficiency of the evidence for the remaining non-italicized elements.
The jury instruction is based on the statutory language of section 186.22, subdivision (a), which states that "[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished . . . ." (§ 186.22, subd. (a).)
According to the statutory language, the special circumstance set forth in section 190.2, subdivision (a)(22), requires a finding that "[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang." (§ 190.2, subd. (a)(22).) Although this statutory language does not contain an express requirement that the defendant knew of his fellow gang members' criminal activities, "there is a constitutional requirement that, before a defendant can be penalized for being an active participant in a criminal organization—as section 190.22, subdivision (a)(22), undoubtedly does—the defendant must be shown to have had knowledge of the gang's criminal purposes." (People v. Carr (2010) 190 Cal.App.4th 475, 487 (Carr).) "Thus, CALCRIM No. 736's inclusion of a knowledge element is not legally incorrect even if the statute itself does not expressly require its inclusion." (Id. at p. 488.) The special circumstance in section 190.22, subdivision (a)(22), "does not require a defendant's subjective knowledge of particular crimes committed by gang members" but only " ' "guilty knowledge and intent" of the [gang's] criminal purposes.' " (Carr, at p. 488, fn. 13, italics added.)
In considering a challenge to the sufficiency of the evidence, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. . . . We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. . . . If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. . . . 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 60, citations omitted.)
Wynn argues that substantial evidence does not support a finding that he "knew of the criminal activities of [South Side Indio] in advance of the shooting." According to Wynn, his "prior connection to [South Side Indio] was not substantial enough from which it could reasonably be inferred that he knew of [South Side Indio's] criminal activities," and "[a]t most, the evidence showed [he] was associating with [South Side Indio] members before the shooting, not that he knew of the criminal activities of this gang." Wynn contends that "[a]lthough it may be reasonable to infer that a person heavily connected to a gang knows of that gang's criminal activities, the evidence did not show [Wynn] was heavily connected to [South Side Indio]." Wynn points out that he claimed to have started spending time with Slugger and Monster only two weeks before the shooting; he did not have any gang tattoos; and the gang expert had not previously heard of Wynn being involved with South Side Indio. Wynn states that "[b]eing a new participant in a gang . . . does not equate to knowledge of the gang's criminal activities."
As we will explain, we reject Wynn's argument because the jury could reasonably infer Wynn's knowledge of the gang's criminal purpose based on evidence showing that (1) Wynn intentionally killed Juan H. to further the activities of South Side Indio by retaliating against a perceived rival gang member in South Side Indio territory; and (2) Wynn was a member of the South Side Indio gang at the time of the shooting, and knew that another gang member illegally possessed firearms.
First, as one court has noted, the required finding under section 190.2, subdivision (a)(22) that the defendant had knowledge of the gang's criminal purposes when committing a murder is "probably superfluous" because section 190.2, subdivision (a)(22) also requires that "the People prove 'the murder was carried out to further the activities of the criminal street gang.' " (Carr, supra, 190 Cal.App.4th at p. 488.) Put another way, when the evidence presented at trial supports a finding that a defendant "intentionally killed" someone "to further the activities of the criminal street gang" (CALCRIM No. 736, italics added) as required under section 190.2, subdivision (a)(22), the evidence could also support a finding that the defendant was aware that the gang for which he has committed an intentional murder existed for a criminal purpose. Here, Wynn does not contest that the evidence supports a finding that he intentionally killed Juan H., and that he committed the murder to "further the activities" of South Side Indio. As the People's gang expert explained, a hypothetical murder under the circumstances presented in this case would further the gang's activities because it would enforce the rule that rival gang members should not be present in South Side Indio territory, and it would elevate the gang's stature. Based on the jury's finding that Wynn murdered Juan H. to further the activities of the gang, which is supported by substantial evidence, the jury could also reasonably infer Wynn knew that the gang on behalf of whom he was committing murder was an organization that existed for a criminal purpose and whose members engaged in a pattern of criminal gang activity.
Second, apart from the fact that Wynn participated in an intentional gang-related killing, his knowledge of the gang's criminal purpose may be inferred from a finding that he was a member of a gang that existed for the purpose of committing crimes. "[J]ust as a jury may rely on evidence about a defendant's personal conduct, as well as expert testimony about gang culture and habits, to make findings concerning a defendant's active participation in a gang or a pattern of gang activity, it may also rely on the same evidence to infer a defendant's knowledge of those activities." (Carr, supra, 190 Cal.App.4th at p. 489, italics added.) Here, the jury was presented with evidence showing that Wynn participated as a member in the South Side Indio gang. For one thing, photographs showed Wynn wearing gang-related clothing and making gang-related signs with his hands, and he admitted to owning and wearing a St. Louis Cardinals hat before the shooting. Next, Wynn indisputably associated with Slugger and Monster, both of whom he admitted to knowing were South Side Indio gang members. Also, a woman who knew Wynn testified that Wynn stated that he was involved with the South Side Indio gang and that his gang moniker was Troubles. Further, the People's gang expert opined that Wynn was an active participant in the South Side Indio gang at the time of the shooting. Finally, instead of denying he was a gang member, when asked at trial about whether he was a member of the South Side Indio gang, Wynn evaded the subject by stating that he did not know how to answer the question. Based on all of this evidence the jury could reasonably infer that Wynn was, in fact, a member of the South Side Indio gang at the time of the shooting.
A reasonable jury could also infer, based on a conclusion that Wynn was a gang member, that Wynn understood that the gang existed for a criminal purpose and that its members had committed criminal activities. It was undisputed at trial that the primary activities of the South Side Indio gang are the crime of prohibited possession of firearms (§ 29800, subd. (a)), and robbery. Moreover, the evidence at trial showed that Wynn likely understood that at least one South Side Indio member had committed the crime of being a felon in possession of a firearm. Specifically, Wynn told police that he knew where Slugger kept a firearm and helped police to locate it. Wynn also admitted to knowing that Slugger had recently gotten out of prison.
In sum, based on evidence that Wynn (1) claimed to be involved with the South Side Indio gang, which the parties stipulated existed for the primary purpose to carry out certain crimes; (2) posed for photos as a gang member; (3) associated with gang members, whom he knew had firearms; and (4) intentionally killed a perceived rival gang member on behalf of the gang, substantial evidence supports a finding that, at the time of the shooting, Wynn "knew that members of the gang engage in or have engaged in a pattern of criminal gang activity." As the People persuasively summarize, "The evidence that [Wynn] knew about the nature of the gang, . . . comes from his knowledge of [its] members, symbols, and location of weapons, and most compelling, his willingness to shoot at a perceived rival gang member . . . ." The evidence was accordingly sufficient to support the gang-related special circumstance for the murder count (§ 190.2, subd. (a)(22)) and the verdict in count 2 that Wynn committed the crime of being an active participant in a criminal street gang (§ 186.22, subd. (a)). B. The Trial Court Did Not Err by Instructing with CALCRIM No. 361 on Defendant's Failure to Explain or Deny Evidence Against Him
We next consider Wynn's contention that the trial court erred in instructing the jury with CALCRIM No. 361, as follows:
"If the defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove the defendant guilty beyond a reasonable doubt.
"If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure."
Wynn contends that the trial court should not have given this instruction because he did not fail to explain or deny evidence against him during his testimony. Wynn relies on the principle that "[i]t is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case." (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) As also relevant here, " '[i]t is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference.' " (People v. Saddler (1979) 24 Cal.3d 671, 681 (Saddler).) We apply a de novo standard of review in evaluating Wynn's claim of instructional error. (People v. Waidla (2000) 22 Cal.4th 690, 733 ["Whether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact," and "[a]s such, it should be examined without deference"].)
It is undisputed that defense counsel did not object to CALCRIM No. 361 in the trial court. Based on defense counsel's failure to object, the People contend that Wynn has forfeited his ability to seek reversal based on the instruction. We will, for the sake of judicial efficiency, exercise our discretion to decide this appeal based on the merits despite the absence of an objection. Because a defendant does not forfeit the right to obtain a reversal based on an instructional error when the defendant establishes that his substantial rights have been affected by the error (§ 1259; People v. Battle (2011) 198 Cal.App.4th 50, 64; People v. Franco (2009) 180 Cal.App.4th 713, 719), we are required, at a minimum, to consider the merits of the instructional issue to decide whether Wynn's substantial rights were affected. Further, because we address the merits, we need not and do not consider Wynn's contention that defense counsel was ineffective for failing to object to the instruction.
Our Supreme Court recently explained the circumstances in which CALCRIM No. 361 is intended to apply. (People v. Cortez (2016) 63 Cal.4th 101, 117 (Cortez).) "[T]he instruction applies only when a defendant completely fails to explain or deny incriminating evidence, or claims to lack knowledge and it appears from the evidence that the defendant could reasonably be expected to have that knowledge." (Ibid.) "Even if the defendant's testimony conflicts with other evidence or may be characterized as improbable, incredible, unbelievable, or bizarre, it is not, . . . 'the functional equivalent of no explanation at all.' " (Ibid.) "[T]he focus of CALCRIM No. 361, as its language indicates, is not on the defendant's credibility as a witness, but on the role of a testifying defendant's failure to explain or deny incriminating evidence in how jurors 'evaluat[e] that evidence,' i.e., the evidence the defendant has failed to explain or deny." (Id. at p. 118.)
Here, the trial court properly instructed with CALCRIM No. 361 because in three separate instances Wynn "claim[ed] to lack knowledge and it appear[ed] from the evidence that [Wynn] could reasonably be expected to have that knowledge." (Cortez, supra, 63 Cal.4th at p. 117.) In each instance, Wynn claimed to lack knowledge about things that would have connected him more closely to South Side Indio as a member of the gang if he answered in a certain way rather than claiming not to know the answer.
First, after the prosecutor reviewed with Wynn the photograph showing him wearing gang attire and posing with Slugger and Monster while making a gang-related hand sign, the prosecutor asked Wynn, "Were you a member of South Side Indio when this photograph was taken?" After a discussion outside the presence of the jury, during which the trial court overruled an objection, the prosecutor reiterated the question, stating "Mr. Wynn, [when] we left off, I was asking as to whether when this photograph was taken if you were a member of South Side Indio." Although Wynn could reasonably be expected to know if he was a member of the gang, he claimed to lack knowledge and evaded the question, stating "I don't—I don't know. I don't know how to answer that, the question."
Second, Wynn claimed during his testimony that he posed in the first photograph, wore gang-related clothing, and made the "I" sign with his hand only because Slugger wanted him to do so and he was afraid to refuse. However, when the prosecutor asked about the second photo taken the same day, Wynn contended that he did not know if he was making an "S" sign with his hand in that photo because someone told him to do so. The prosecutor asked, "Did someone tell you to make a letter S with your hand?" Wynn answered, "I don't recall."
Finally, regarding the second photograph, Wynn minimized the gang-related nature of that photo by stating that, although he was wearing a gang-related shirt and making a "S" sign with his hand, he did not remember if the partially-visible hat in the photo was a St. Louis Cardinals hat as in the first photo.
In sum, based on these three instances of Wynn claiming not to know certain things that would have connected him more closely to the South Side Indio gang at the time of the shooting, the trial court properly instructed with CALCRIM No. 361 because Wynn "claim[ed] to lack knowledge and it appear[ed] from the evidence that [Wynn] could reasonably be expected to have that knowledge." (Cortez, supra, 63 Cal.4th at p. 117.) C. The Trial Court Did Not Abuse Its Discretion by Denying Wynn's Motion for a Mistrial Based on Juror Misconduct
Wynn also contends that if an error occurred in instructing with CALCRIM No. 361, it was federal constitutional error, requiring reversal unless the error was not prejudicial beyond reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24.) In support of his constitutional argument, Wynn contends that CALCRIM No. 361 violates a defendant's right to due process because it singles out a defendant's testimony for special credibility consideration and creates an inference of guilt. However, Wynn also acknowledges that in the context of the substantially similar CALJIC No. 2.62, our Supreme Court rejected such a constitutional challenge (Saddler, supra, 24 Cal.3d at pp. 679-681) and that other case law applied Saddler to reject due process challenges to CALCRIM No. 361. (People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1066-1068; People v. Vega (2015) 236 Cal.App.4th 484, 495-500.) Although Wynn contends that all of these cases "are incorrectly decided," we find no merit to that contention.
Wynn's next argument is that the trial court abused its discretion in denying his motion for mistrial based on jury misconduct that occurred during deliberations.
On the second day of jury deliberations, a juror sent a note to the court indicating that a fellow juror had used the internet to research part of the case. After conferring with counsel, the trial court addressed the issue by suspending deliberations and questioning each juror in private about what had occurred. In the course of questioning each juror, it became evident to the trial court that on the first day of deliberations, the jury had discussed the fact that Wynn had a tattoo under his right eye, which several jurors described as a "teardrop" tattoo. During the first day of deliberations, more than one juror stated to the group that the common meaning of a teardrop tattoo is that the person has killed someone. However, as several jurors told the trial court, it was also generally agreed upon during the first day of deliberations that the jury should not consider the meaning of the tattoo because it was not part of the evidence.
Based on several statements in the record, it appears that Wynn acquired the tattoo after he was arrested in this case. Wynn's booking photograph taken shortly after the murder, which was displayed to the jury, did not show any tattoo under Wynn's right eye.
During trial, the prosecutor attempted to ask Wynn about the tattoo, but the trial court sustained an objection.
During discussions with the jurors, the trial court also learned that Juror No. 8 had subsequently conducted research on the internet regarding the meaning of a teardrop tattoo because he wanted to know if it had other meanings as well. During the second day of deliberations, Juror No. 8 presented the result of his research to his fellow jurors, informing them that the tattoo had several meanings, only one of which was that the person killed someone.
When questioned by the trial court, each of the jurors stated that, if instructed, he or she would be able to disregard the discussion about Wynn's tattoo in further deliberations.
After speaking with each juror, the trial court excused Juror No. 8 based on misconduct as he had conducted independent research. Defense counsel made a motion for a mistrial based on the fact that the jurors had all learned information about Wynn's tattoo, which indicated that he may have committed a murder. As defense counsel explained, information that Wynn may have committed a murder was not the type of information that jurors could be expected to disregard if so instructed. Defense counsel argued that "knowing there are several people on this panel that believe there's an indicator on [Wynn's] body that he's taken another life, there's simply no way at this point he's going to receive a fair trial . . . . I don't see how somebody can be fair in a murder trial speculating that someone may have killed somebody in the past." The trial court denied the motion for a mistrial.
After the trial court replaced Juror No. 8 with one of the alternate jurors, it instructed the jury to start over its deliberations from the beginning. At the request of defense counsel, and without objection from the People, the trial court also reopened the evidence to inform the jury of a stipulation that the tattoo under Wynn's right eye was not a teardrop tattoo. Specifically, the trial court told the jury "the stipulation by both counsel is as follows: that the tattoo under the defendant's right eye is not a teardrop tattoo." The trial court also specifically instructed the jury, "you are not to speculate on the significance or meaning of that tattoo; it should not be brought up at all during your deliberations."
The appellate record does not reflect the exact nature of the tattoo, but defense counsel and the prosecutor agreed that it was not a teardrop tattoo. The prosecutor commented outside the presence of the jury that it "is of a gang-related nature."
In arguing that the trial court erred in denying the motion for a mistrial, Wynn contends that "Juror No. 8 and one or more other jurors who conveyed their understanding of the meaning of [Wynn's] tattoo engaged in misconduct, which resulted in a rebuttable presumption of prejudice, and that presumption was not rebutted. The misconduct was both serious and personal to appellant, and not cured by the court's remedial steps." Wynn argues, "[a]lthough each juror said he or she could disregard the tattoo and the jury's discussions about the tattoo, and the jury was instructed to do so, this was a practical impossibility, as the information was far too prejudicial." According to Wynn, "the issue is . . . whether the jury's discussion on the previous day that the tattoo meant [Wynn] had killed or murdered someone, along with Juror No. 8's revelations, created a presumption of prejudice, which was not rebutted."
"A trial court should grant a motion for mistrial 'only when " 'a party's chances of receiving a fair trial have been irreparably damaged' " ' . . . , that is, if it is 'apprised of prejudice that it judges incurable by admonition or instruction'. . . . 'Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' . . . Accordingly, we review a trial court's ruling on a motion for mistrial for abuse of discretion." (People v. Avila (2006) 38 Cal.4th 491, 573, citations omitted.)
Here, Wynn's mistrial motion was based on his contention that due to the jury's consideration of extra-record information about the possible meaning of his tattoo, some of the jurors could be incurably biased against him because they believed that his tattoo was an admission that he had committed murder. "The federal and state Constitutions guarantee a criminal defendant the right to a trial by an impartial and unbiased jury. . . . A deprivation of that right can occur even if only one juror is biased." (People v. Brooks (2017) 3 Cal.5th 1, 98, citations omitted.) "Juror misconduct involving the receipt of extraneous information about a party or the case that was not part of the evidence received at trial, creates a presumption that the defendant was prejudiced by the evidence and may establish juror bias. . . . Defendant may establish bias if (1) the extraneous material, judged objectively, 'is so prejudicial in and of itself that it is inherently and substantially likely to have influenced a juror' . . . or (2) from the nature of the misconduct and surrounding circumstances, it is substantially likely a juror 'was actually biased' against the defendant." (People v. Ramos (2004) 34 Cal.4th 494, 519, citations omitted.) "[A]ny presumption of prejudice is rebutted . . . if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant." (People v. Stewart (2004) 33 Cal.4th 425, 510.)
In support of his contention that the jury's receipt of extra-record information about the possible meaning of his tattoo was incurably prejudicial, Wynn relies on several cases for the proposition that "[i]t is well-recognized that jury admonitions to disregard certain matters are not always effective and realistic." Specifically, Wynn cites case law stating that jurors may not be able to disregard information that a defendant committed a previous crime or confessed to the instant crime even if instructed to do so. (People v. Navarrete (2010) 181 Cal.App.4th 828, 836 ["even a single reference to an inadmissible confession can be the sort of 'exceptional circumstance' that supports granting a mistrial because a curative instruction cannot undo the prejudice to the defendant"]; People v. Gibson (1976) 56 Cal.App.3d 119, 130 [jury could not be expected to disregard other-crimes evidence admitted against the defendant].)
The case law cited by Wynn is inapposite here because the trial court cured the possible prejudice stemming from the jury's discussion of the meaning of the tattoo by doing more than simply instructing the jury to disregard the information. The jury's speculation that Wynn's tattoo could mean that he killed someone was based on the assumption that the tattoo was a teardrop tattoo. When the trial court reopened the evidence and informed the jury that the parties stipulated the tattoo was not a teardrop tattoo, the trial court removed risk of prejudice to Wynn based on the jury's discussion about the fact that a teardrop tattoo can mean that the person killed someone. Here, unlike the cases upon which Wynn relies in which the trial court merely admonished the jury to disregard certain evidence, the trial court here delivered new evidence to the jury about the nature of Wynn's tattoo that had the effect of alleviating any possible prejudice caused by the jurors' discussion about the meaning of a teardrop tattoo.
Wynn contends that the stipulation regarding the tattoo did not mitigate the possible prejudice stemming from the jury's discussion of the meaning of a teardrop tattoo because "most jurors would think that the court was just doing whatever it could to convince the juror to ignore the tattoo and its negative implications to [Wynn]." We disagree. There is no basis to conclude that the jury would disregard the parties' stipulation that the tattoo was not a teardrop tattoo. Similarly, there is no reason to believe that even after being informed the tattoo was not a teardrop tattoo, any juror would still believe that the tattoo might signify that Wynn killed someone.
Accordingly, under the unique circumstances of this case, the presumption of prejudice stemming from the jury's receipt of knowledge from outside the record about the possible meaning of a teardrop tattoo was effectively rebutted. Not only was the jury told to disregard the information when it started over its deliberations, the jury was given additional information that made the information about the meaning of a teardrop tattoo irrelevant to this case. Specifically, the jury was conclusively informed that the parties had stipulated that Wynn's tattoo was not a teardrop tattoo. We therefore conclude that the trial court was within its discretion to deny Wynn's motion for a mistrial. D. The Sentence on the Conviction for Being a Felon in Possession of a Firearm Must Be Stayed Pursuant to Section 654
At sentencing, the trial court imposed a sentence of four years in prison for Wynn's conviction in count 3 for the crime of being a felon in possession of a firearm (§ 29800, subd. (a)(1)). Wynn argues that the sentence for count 3 should have been stayed pursuant section 654 because his possession of the firearm was coextensive with his commission of the crime of murder for which he was convicted and sentenced in count 1.
As set forth in section 654, "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) Under section 654, "the relevant question is typically whether a defendant's ' "course of conduct . . . comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654." ' " (People v. Correa (2012) 54 Cal.4th 331, 335.) " 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " (Id. at p. 336.) Where section 654 applies, "the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited." (People v. Reed (2006) 38 Cal.4th 1224, 1227.)
We apply a substantial evidence standard of review when determining whether section 654 applies. "The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial." (People v. Saffle (1992) 4 Cal.App.4th 434, 438; see also People v. Osband (1996) 13 Cal.4th 622, 730 [approving substantial evidence standard of review as stated in Saffle].)
As relevant here, " '[w]hether a violation of [a statute] forbidding persons convicted of felonies from possessing firearms . . . , constitutes a divisible transaction from the offense in which he employs the weapon depends upon the facts and evidence of each individual case. Thus, where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense.' " (People v. Bradford (1976) 17 Cal.3d 8, 22.) "It is clear that multiple punishment is improper where the evidence 'demonstrates at most that fortuitous circumstances put the firearm in the defendant's hand only at the instant of committing another offense . . . .' " (People v. Jones (2002) 103 Cal.App.4th 1139, 1144.) Thus, for instance, in Bradford, after the defendant was stopped by a Highway Patrol Officer, he wrested the officer's revolver from him and used the revolver to shoot at the officer. (Bradford, at p. 13.) Because the defendant's "possession of [the officer's] revolver was not 'antecedent and separate' from his use of the revolver in assaulting the officer," section 654 required a stay of the sentence for the crime of being a felon in possession of a firearm. (Bradford, at p. 22.)
Wynn argues that the evidence presented at trial does not establish that he possessed a firearm at any other time than immediately during the murder. The People agree with Wynn's position and concede that the sentence for count 3 should be stayed pursuant to section 654. As the People summarize the evidence presented at trial, "Here, [Monster] handed [Wynn] a handgun just before [Wynn] got out of the car for the purpose of shooting at the victim. [Wynn] fired one shot, and then [Slugger] 'grabbed the gun from him' and fired a second shot, then retained possession of the gun. The gun was later found hidden in [Monster's] bedroom." Based on this summary of the evidence presented at trial, substantial evidence does not support a finding that Wynn's possession of the firearm as charged in count 3 was antecedent and separate from his use of the firearm in committing the murder as charged in count 1. Accordingly, the sentence in count 3 must be stayed pursuant to section 654. E. Remand Is Required to Allow the Trial Court to Decide Whether to Exercise Its Discretion to Strike the Firearm Use Enhancement
In addition to the sentence of life in prison without the possibility of parole imposed for the first-degree murder conviction, Wynn was further sentenced to an indeterminate term of 25-years-to-life based on the finding that a principal in the murder personally and intentionally discharged a firearm, causing great bodily injury or death. (§ 12022.53, subd. (d).) After Wynn was sentenced, the Legislature enacted section 12022.53, subdivision (h), which gives the trial court discretion, in the interest of justice, to strike an enhancement for firearm use alleged and found true under section 12022.53.
The newly enacted section 12022.53, subdivision (h), states that "[t]he court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h).) Prior to the amendment, the imposition of the enhancement was mandatory. In this case, because the statutory amendment went into effect after the trial court sentenced Wynn, the trial court did not have an opportunity to consider whether to exercise its discretion to strike Wynn's firearm use enhancement. Wynn contends that because his case is not yet final he should be given the opportunity to have the trial court consider whether to strike the enhancement.
The People do not dispute that the amendment to section 12022.53 allowing the trial court to strike a firearm use enhancement applies retroactively to cases, such as this, that are not yet final. (See In re Estrada (1965) 63 Cal.2d 740 (Estrada); People v. Francis (1969) 71 Cal.2d 66 (Francis); People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara).) The People also do not dispute that this case should be remanded for the trial court to decide whether to exercise its discretion under section 12022.53, subdivision (h) to strike the enhancement.
We accordingly remand this case to allow the trial court to exercise its discretion as to whether to strike the firearm use enhancement attached to the murder count. We express no opinion as to how the trial court should exercise that discretion on remand. F. Remand Is Required to Allow the Trial Court to Decide Whether to Exercise Its Discretion to Strike the Five-Year Enhancement for Wynn's Prior Serious Felony Conviction
Wynn was also sentenced to a term of five years in prison under section 667, subdivision (a) based on the finding that he incurred a prior serious felony conviction. On September 30, 2018, after Wynn was sentenced, the Legislature enacted Senate Bill 1393 (Stats. 2018, ch. 1013, §§ 1-2), which amends section 1385 to give the trial court discretion to strike five-year enhancements for prior serious felony convictions under section 667, subdivision (a). When the new law takes effect on January 1, 2019, Wynn's conviction will not yet be final. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [" 'for the purpose of determining the retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed' "].) Wynn has filed a supplemental opening brief requesting that we remand this matter to allow the trial court to decide whether to exercise its discretion to strike the five-year enhancement imposed under section 667, subdivision (a).
Effective January 1, 2019, Senate Bill 1393 amends section 1385 by deleting subdivision (b), which current states: "This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667." --------
The People agree that for the same reason the amendment to section 12022.53 applies retroactively to cases that are not yet final, the amendment to section 1385 providing the trial court with discretion to strike a five-year enhancement for a prior serious felony conviction under section 667, subdivision (a) also applies retroactively to non-final cases. (People v. Garcia (2018) 28 Cal.App.5th 961, 971-972 [Senate Bill 1393 "applies retroactively to all cases or judgments of conviction in which a five-year term was imposed at sentencing, based on a prior serious felony conviction, provided the judgment of conviction is not final when [it] becomes effective on January 1, 2019"].) As the People agree, "under the Estrada rule, as applied in Lara and Francis, it is appropriate to infer, as a matter of statutory construction, that the Legislature intended [Senate Bill] 1393 to apply to all cases to which it could constitutionally be applied, that is, to all cases not yet final when [Senate Bill] 1393 becomes effective on January 1, 2019." (Garcia, at p. 973.)
We therefore remand for the trial court to decide whether to exercise its discretion to strike the five-year enhancement for Wynn's prior serious felony conviction. (§ 667, subd. (a).) We express no opinion as to how the trial court should exercise its discretion.
DISPOSITION
The judgment is reversed for the purpose of remanding to the trial court with directions that it (1) stay the sentence imposed in count 3 for being a felon in possession of a firearm (§ 29800, subd. (a)(1)); and (2) decide whether to exercise its discretion to strike (a) the firearm use enhancement attached to the murder count; and (b) the five-year enhancement for Wynn's prior serious felony conviction. If the trial court decides to exercise its discretion to strike either or both enhancements, it shall resentence Wynn. If the trial court does not strike any enhancement, it shall reinstate the sentence but stay the sentence on count 3. In all other respects, the judgment is affirmed.
IRION, J. WE CONCUR: McCONNELL, P. J. BENKE, J.