Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF121526B, Michael G. Bush and Louis P. Etcheverry, Judges.
Judge Bush presided over motion for discovery; Judge Etcheverry presided over trial.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DETJEN, J.
Defendant Kenyata Levon Hutchinson stands convicted, following a jury trial, of possessing or purchasing cocaine base for sale, for the benefit of or in association with a criminal street gang (Health & Saf. Code, § 11351.5; Pen. Code, § 186.22, subd. (b)(1); count 1), actively participating in a criminal street gang (§ 186.22, subd. (a); count 2), and resisting or obstructing a peace officer (§ 148, subd. (a)(1); count 3). He admitted having suffered two prior narcotics convictions (Health & Saf. Code, § 11370.2, subd. (a)); allegations that he had served five prior prison terms (§ 667.5, subd. (b)) were dismissed. Sentenced to a total unstayed term of 13 years in prison and ordered to pay various fees, fines, and assessments, he now appeals, raising various claims of error. For the reasons that follow, we will affirm the judgment, but order correction of the abstract of judgment.
Further statutory references are to the Penal Code unless otherwise stated.
Gary Lee Clayton was jointly charged with defendant. He is not before us on this appeal.
FACTS
I. Prosecution Evidence
At around 6:00 p.m. on November 24, 2007, Officers Mara and Stratton, together with other members of the Bakersfield Police Department’s gang unit, responded to a single-family residence on Sixth Street, near Lowell Park, to investigate narcotic activity. Mara was familiar with the residence, as he had previously conducted numerous narcotic- and gang-related investigations there.
The officers, who were in an unmarked van, drove by the residence and took up a position of observation in a nearby alley. On three different occasions, they saw subjects walk up to the house and contact individuals standing in the front yard. The subjects were then led to the west side of the house, where they remained for a matter of seconds, and they then walked back out onto the street and away. From Mara’s training and experience, he knew the activity was commonly associated with narcotics transactions.
Given the distance and darkness, Mara was unable to identify any of the individuals at the time. Stratton identified Gary Clayton as one of the individuals in the front of the house. Two bindles of suspected cocaine base, weighing 2.2 grams and 1 gram, were ultimately seized from Clayton.
The officers drove to the residence. As they pulled up in front of the house, Mara heard people in the yard yell “rollers, ” a common term for the police. As the officers exited the van, the subjects in the front yard ran. Mara gave chase. He focused on one individual, whom he subsequently identified as defendant. During the entire course of events, Mara never lost visual contact with defendant.
When the chase first started, Mara and defendant were approximately 41 feet apart. Mara, who was wearing clothing identifying him as a police officer, yelled “police, stop, ” several times to defendant, but defendant continued to run. Stratton, who was dressed similarly to Mara, was in pursuit of defendant behind Mara. Stratton was also yelling at defendant to stop and identifying himself as a police officer.
There was also a man ahead of defendant who was running. The person was a Black male in his 20’s who was wearing bright red Dickie pants. Red is a color commonly associated with the Bloods, who are traditionally the enemies of Crip gangs. Mara lost track of that individual.
Defendant jumped the fence on the west edge of the property and began to run through other yards, jumping four or five more fences in the process. Finally, Mara was able to tackle defendant and, with Stratton’s help, take him into custody. Just before Mara tackled defendant, Mara saw defendant’s hand move toward his left front pocket and defendant then threw a piece of clear plastic. Stratton retrieved what appeared to be the item, which landed 10 to 15 feet from where Mara took defendant into custody. It was a piece of a clear plastic bag containing two small chunks—a usable amount—of a substance containing cocaine base.
Defendant was transported to the jail, where Mara searched him. In defendant’s right coin pocket were two additional plastic baggies containing small chunks—a usable amount—of a substance containing cocaine base. Their appearance, which was “pretty much identical” to the item Stratton retrieved, was consistent with bindles of cocaine base Mara had seen in the past. They were about the size of a dime and consisted of the corner of a plastic sandwich bag that was knotted at one end and had a small chunk of cocaine base inside. In addition, defendant had cash in his wallet and pockets totaling $1,498. In Mara’s opinion, the smaller-denomination bills were consistent with street-level narcotic sales. Although the $100 bills were inconsistent with street-level sales, they were not inconsistent with being the product of drug sales. In addition, defendant did not have on his person a pipe or other instrument that could be used to ingest cocaine base, although Mara did not search the vehicle at the Sixth Street house that was registered to defendant’s wife.
There were fourteen $100 bills, one $50 bill, one $20 bill, one $10 bill, one $5 bill, and thirteen $1 bills.
In Mara’s opinion, given the possession by an individual of three packages of cocaine base, each containing a usable amount of drugs, together with $1,498, the baggies were possessed for the purpose of sales. Mara estimated the street value of the drugs at $150. Although someone who routinely used crack cocaine could ingest that amount over a couple of days and so the drugs could have been possessed for personal use, the way they were packaged figured into Mara’s opinion that they were possessed for sale.
Bakersfield Police Officer Finney testified as an expert on gangs. He explained that there are three sets of Crips in Bakersfield: the West Side Crips, the East Side Crips, and the Country Boy Crips. All associate with blue; however, they use different shades of the color. The Bloods, a rival gang to the Crips, associate with red. The rule about not wearing a rival gang’s color has changed over time; colors are becoming less important because the gangs have become aware police use such things when determining someone’s gang affiliation, and so it is becoming more common to contact, for example, a West Side Crip who is wearing red.
Finney described the traditional territory of the West Side Crips. The house on Sixth Street involved in the present case is within the traditional boundaries of the gang, which had more than 100 members, by Finney’s estimate, in November 2007. Sixth Street, which runs along the north side of Lowell Park, is almost squarely in the middle of traditional West Side Crips territory.
Finney researched crimes related to the West Side Crips. One, which occurred on May 19, 2007, involved the Sixth Street residence. Clayton (defendant’s codefendant in the trial court) was present on the front porch with a self-admitted West Side Crip member who, upon arrival of the police to execute a search warrant, discarded a bag containing eight individual rocks of cocaine base. A closed-circuit surveillance system was located, with the camera focused on the front of the residence and the image shown on the television inside the house. Gang graffiti was found on the garage.
As defendant does not claim the West Side Crips are not a criminal street gang as defined in section 186.22, subdivision (f), we do not summarize the predicate offenses. They did not involve defendant.
Based on his research of the predicate offenses, his review of offense reports, and his work experience with the West Side Crips, Finney opined that the primary activities of the gang as of November 2007 were narcotic sales, possession of cocaine base for sale, assaults, assaults with firearms, burglaries, robberies, auto thefts, and homicides. He further opined that the West Side Crips gang was engaged in an ongoing pattern of criminal conduct at that time, and that this fact was common knowledge among active gang members.
Finney also researched defendant, whose moniker was “Yata.” Finney’s review of police reports, street checks (brief reports of contacts in which no arrests were made), and booking information showed:
Finney viewed this as a gang moniker even though it was derived from defendant’s first name.
On January 23, 2009, officers responded to an apartment on L Street, within the traditional boundaries of the West Side Crips, in an attempt to locate a member of the gang. Defendant and two West Side Crips were found at the location.
On May 22, 2008, defendant was contacted inside the Sixth Street residence when officers served a search warrant at that location. Defendant stated that he had family at the residence. Finney considered this significant, as the location was a portion of Sixth Street that was deep within the traditional boundaries of the West Side Crips and where officers commonly contacted members of the Sixth Street subset of the gang.
On November 24, 2007, while being booked into the Kern County Jail, defendant was asked whether he belonged to or associated with any gang, in or out of jail. According to the booking slip, defendant responded affirmatively, gave West Side Gangster as the gang (in Finney’s opinion, a reference to West Side Crips), and West as the clique or set. Asked if there was any person or group he should be kept away from, defendant indicated Bloods, a rival to West Side Crips. This also occurred on six other occasions dating back to February 24, 2000. Although there was no indication defendant ever asked to be kept away from the East Side Crips, who were enemies of the West Side Crips, this did not suggest to Finney that defendant was not a gang member, even though, for the most part, Finney would expect a West Side Crip member to want to be kept away from East Side Crips.
On August 5, 2007, defendant was contacted, along with several other members of the West Side Crips, at the scene of a serious incident in which a member of the West Side Crips was a victim. Defendant and another member of the gang both stated they were inside the liquor store at the time of the incident, which took place in the alley behind the store. The market was in an area frequented by West Side Crips and Country Boy Crips.
On August 12, 2006, defendant was contacted at the Sixth Street residence. Several members of the West Side Crips, some with gang-related tattoos, were in the yard. Defendant refused to open the door when officers told him to do so, so that they could conduct a search of the residence. Defendant was arrested for obstructing the investigation.
On October 1, 2004, defendant was contacted while talking to several subjects at a location within the traditional boundaries of the West Side Crips. While patrolling the area, Finney had heard individuals refer to the house as “grandma’s house, ” and he had contacted several West Side Crips at that location.
On May 16, 2004, defendant was the victim of a shooting at a location a couple of blocks west of the traditional boundaries of West Side Crips territory. During the investigation, defendant told officers that he associated with the West Side Crips.
In October 2003, defendant was contacted at Lowell Park while sitting on the same park bench as two other members of the West Side Crips, one of whom was in possession of marijuana. Although defendant denied membership in the West Side Crips, Finney did not find this strange. He explained that there has been a decline in people admitting their gang membership and wearing their gang’s colors. Some of the younger gang members do not get the tattoos that some of the older gang members have. Finney found this incident significant because of the location and the fact defendant was in the company of two members of the West Side Crips.
Finney examined defendant’s body during trial. He found no tattoos. Finney explained that although he considered whether a person has tattoos when forming an opinion as to that person’s gang membership, he relied more upon that person’s activities.
On August 18, 2001, defendant was observed in contact with several members of the West Side Crips, conducting what appeared to be hand-to-hand drug transactions. When officers searched the area, suspected cocaine base was found. Defendant admitted affiliating with the West Side Crips, but said he was not active.
Based on everything he reviewed, Finney opined that as of November 24, 2007, defendant was a gang member and an active participant in the West Side Crips.
Finney was aware that graffiti was sometimes used to publish membership in a gang. He had never seen defendant’s name on a roster of gang members posted on a wall or on graffiti, although putting up a roster was more common with Hispanic gangs. Finney acknowledged that defendant was 36 years old, and that a person could be a gang member at one point in life and then move beyond the gang. While older gang members tended to be less active, age did not necessarily mean someone was not an active gang member. Finney was aware that defendant was married and had a child and a job. Getting married, having a child, and having a job were also factors that could cause an individual to move away from a gang and gang lifestyle, but this would not always be the case.
Finney had heard that at the time of the incident, one of defendant’s family members resided at the Sixth Street address. Finney considered that fact in his assessment. Finney was unaware that Clayton was defendant’s first cousin. If true, that fact would not change Finney’s opinion, as gang members commonly have family members who are in the same gang. Finney also learned that defendant and his wife owned two pieces of real estate. This did not suggest to Finney that defendant was not a gang member, as Finney was familiar with several gang members who were married, had children, were in their mid-30’s, and owned homes.
Finney also researched Clayton. Finney learned, in part, that Clayton had “West” tattooed on his left triceps and “Side” on his right triceps. He had a “six” tattooed near his left elbow and “Street” near his right elbow. On his back, “Westside” was tattooed. In addition, on the nine occasions Clayton was booked into the jail between February 22, 2000, and December 7, 2007, he claimed West Side Crip and asked to be kept away from Bloods. Based on everything he reviewed, Finney formed the opinion that, as of November 24, 2007, Clayton was a member of the West Side Crips and an active participant in the gang.
Finney summarized several incident reports and street checks for the jury, including one that occurred after the present case and in which Clayton pled to conspiracy to possess cocaine base for sale and admitted a gang enhancement.
In response to a hypothetical question based on the evidence presented at trial, Finney opined that a West Side Crip gang member who possessed three individual bindles of cocaine base for the purpose of sale committed that crime in association with and for the benefit of the West Side Crips. Finney explained that the person was committing the crime in association with the gang based on the location being deep within the traditional boundaries of the gang, the individual being in front of the residence with another West Side Crip, and the fact the individual was committing a primary activity of the West Side Crips, namely illegal narcotic sales. Finney opined that the crime benefited the gang based on the fact that by selling illegal narcotics, there is a “trickle down effect” whereby the gang benefits in the same way a child benefits from a parent having a job and a source of income. For instance, it is common for law enforcement officers to contact members of the West Side Crips driving other members’ vehicles or in their homes. Possessing the cocaine base for sale promoted, furthered, or assisted gang members in criminal conduct by the individual’s being in the company of another West Side Crip during the commission of this crime, as well as by the income benefiting the gang by enabling the purchase of more narcotics.
II. Defense Evidence
Tiffani Hutchinson had been married to defendant for nearly seven years as of the time of trial. They had known each other since 1997. Defendant was a construction laborer and belonged to the Laborers’ Union. The couple had two children and were raising defendant’s son from a prior relationship. Ms. Hutchinson was a real estate agent and, from 1997 to 2000, was employed as a correctional officer. She held a bachelor’s degree in criminal justice. She was raised in Bakersfield, and she and defendant attended church there. Ms. Hutchinson was acquainted with Clayton, who was defendant’s first cousin. To her knowledge, Clayton was not a West Side Crip member. His tattoos were not openly displayed when she saw him.
On May 16, 2004, Ms. Hutchinson was present when defendant was shot. The home at which the incident occurred was the residence of two of defendant’s cousins. Ms. Hutchinson was present at the hospital when the police spoke to defendant. He was cooperative and offered to assist the police. The police never asked defendant if he was a member or associate of a street gang, and he never told them that he associated with the West Side Crips.
On January 23, 2009, Ms. Hutchinson went to the apartment on L Street, which was the home of one of defendant’s cousins. Police officers were there when she arrived, as were defendant and his cousin. Ms. Hutchinson did not see any other adult males or any West Side Crip gang members in the residence.
As of November 24, 2007, defendant and Ms. Hutchinson owned a home. There were no photographs in their house of gang members throwing gang signs, nor any gang graffiti. Although Ms. Hutchinson occasionally saw Clayton at family gatherings or similar events, he did not come to their home.
On November 24, 2007, Ms. Hutchinson knew defendant’s uncle resided at the Sixth Street location. That evening, defendant left the house in Ms. Hutchinson’s car, which was nearly out of gas, around 6:00 p.m. or a little after. He had been gone no more than 10 or 15 minutes when she received a telephone call. She drove to the Sixth Street residence, where he was located. It took about 15 minutes to get there from her house. When she arrived, she saw her car in the driveway. Ms. Hutchinson did not tell anyone in law enforcement that it was impossible for defendant to have been doing what he was accused of doing since he had just left their house. She did not know she could tell them and did not think they would have believed her.
From around June or July 2007 until April 2008, defendant was not working, but instead was receiving disability following a diagnosis of valley fever. When he left the house on November 24, 2007, he had $1,500 in his possession, in $100 bills, that Ms. Hutchinson had given him. Ms. Hutchinson had received the money that afternoon as part of the settlement from a lawsuit. She habitually gave her money to defendant to keep, as she tended to spend it.
Harlan Hunter, a private investigator and adjunct professor at a local college, testified as an expert on gangs, particularly the West Side Crips. Based on his evaluation and the items he reviewed, he disagreed with Finney’s opinion that defendant was a gang member. Hunter found it important to review booking slips, but would not base an opinion on them because they tended to be vague. In the present case, the question asked about gang affiliation was compound; moreover, the booking slips were not signed by the arrestee. In addition, the information generated for the booking slip is stored in the computer and can be accessed during the booking process by the custodial officer who fills out the booking slip. With respect to defendant’s booking slips, the font and wording with respect to the gang information were unchanged from one to another. Hunter also questioned the reference to being kept away from Bloods when historically, in Bakersfield, most of the threat to West Side Crips has come from other Crip gangs.
Hunter opined that the West Side Crips are a criminal street gang in Kern County.
Based on his knowledge and study of street gangs, Hunter concluded that tattoos are important to street gangs. The fact defendant had no tattoos at age 36 suggested defendant had not involved himself in the “street gang banging life.” Conversely, the fact someone had a gang tattoo did not automatically make that person a gang member; some people still have their old gang tattoos even though they have long separated themselves from the gang. Thus, the presence of a tattoo may not identify a person as currently being active in a particular gang. Hunter disagreed with Finney’s testimony that the current trend was that gang members did not get tattoos. Hunter did find, however, that there was a trend away from “flying the colors” of a particular gang. Even so, he would not expect to find West Side Crips wearing, for example, Country Boy Crip colors. Hunter found it an important consideration that Finney was unable to produce any photographs of defendant in gang attire, as it was common for street gang members to take photographs with their “homeboys, ” often flashing gang signs, and then to post those photographs or videos on the Internet. The lack of such photographs or videos of defendant suggested to Hunter that defendant was probably not involved in gang activity, although no conclusion could be drawn just from that single factor. Similarly, if defendant had been involved in street gangs for a length of time up until age 36, one would expect to find graffiti with his moniker posted somewhere in a public place.
The mere fact that someone is present in traditional gang territory, or has family members who belong to a gang, does not automatically make that person a gang member. In many communities, individuals grow up in neighborhoods and go to school together, and continue to have friendships and associate, even though one is a gang member and the other is not.
According to Hunter, one study showed that the average membership in a gang was between one and three years. The composition of the gangs constantly changes, because people realize gang life is not for them and they get out, some are sent to prison for long periods, and some are killed. Hunter’s experience and investigation led him to conclude that it was very unusual to have “gang bangers” owning houses, having families, and participating in functions that involve their children.
In Hunter’s experience, both gang members and nongang members sell drugs. The fact that someone had drugs on his person, with the suspicion that the person might be a member of a criminal street gang, would not necessarily mean the drugs were possessed and possibly sold for the benefit of the gang. Hunter’s investigations showed that low-level street dealers normally sell drugs for their own personal benefit. While some gang members actually sell drugs to raise funds for the gang, others use the proceeds for their own personal benefit. Whether a gang would allow a nongang member to sell drugs at a location within gang territory, would depend on who that person was. Some gangs would allow someone to sell drugs with the understanding the person would pay them a cut of the proceeds. In such circumstances, one could conclude that the gang was benefiting from the sale of the drugs. In the present case, Hunter had not seen anything to indicate that any of the money or drugs found on November 24, 2007, would be turned over to any gang for any purpose.
Hunter was familiar with the incidents in which defendant was involved and on which Finney relied. In Hunter’s opinion, they were insufficient upon which to base a conclusion that defendant was a member of the West Side Crips. Based on all the factors of which Hunter was aware, his conclusion was that defendant was not a West Side Crip. Although Hunter had not focused on Clayton in his research and so had reached no conclusion concerning him, he suspected Clayton was probably a member of the West Side Crips.
DISCUSSION
I. Pitchess
A. Background
Prior to trial, defendant filed a motion, pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), for discovery of information contained in the personnel records of Bakersfield Police Officers Mara, Stratton, and Ursery. The City of Bakersfield and the officers opposed the request. The trial court held an in camera hearing, following which it ordered disclosure of certain information and ordered the transcript of the in camera proceedings sealed.
Defendant now seeks this court’s review of the trial court’s procedure in conducting the Pitchess hearing, and also any records produced. The Attorney General agrees that we must review the sealed transcript and documents relevant to the hearing.
B. Analysis
A criminal defendant has a limited right to discovery of peace officer personnel records and records of citizen complaints against peace officer personnel that are maintained pursuant to section 832.5; such records are confidential and can only be discovered pursuant to Evidence Code sections 1043 and 1045. (§ 832.7; Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312, 318.) A defendant is entitled to discovery of relevant information from the confidential records upon a showing of good cause, which exists “when the defendant shows both ‘“materiality” to the subject matter of the pending litigation and a “reasonable belief” that the agency has the type of information sought.’ [Citation.]” (People v. Gaines (2009) 46 Cal.4th 172, 179.)
While cases have formulated the materiality requirement in various ways—often requiring a specific factual scenario that establishes a plausible factual foundation (see, e.g., California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1020-1023)—the California Supreme Court has made clear that, no matter how the materiality inquiry is described, “a showing of good cause requires a defendant seeking Pitchess discovery to establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer’s version of events.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021.) Addressing the question of what justification the moving party must offer to establish a plausible factual foundation for the claim of officer misconduct, the court concluded: “[A] plausible scenario of officer misconduct is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges.” (Id. at p. 1026.)
In light of the foregoing, “a defendant meets the materiality element by showing[:] (1) a logical connection between the charges and the proposed defense; (2) the requested discovery is factually specific and tailored to support the claim of officer misconduct; (3) the requested discovery supports the proposed defense or is likely to lead to information that will do so; and (4) the requested discovery is potentially admissible at trial. [Citation.]” (Giovanni B. v. Superior Court, supra, 152 Cal.App.4th at p. 319, citing Warrick v. Superior Court, supra, 35 Cal.4th at p. 1027.)
“A showing of good cause is measured by ‘relatively relaxed standards’ that serve to ‘insure the production’ for trial court review of ‘all potentially relevant documents.’ [Citation.]” (People v. Gaines, supra, 46 Cal.4th at p. 179.) A declaration by counsel on information and belief is sufficient to state facts satisfying the materiality requirement (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086); moreover, depending on the circumstances of the case, a sufficient factual allegation may consist of a denial of the facts asserted in the police report (Uybungco v. Superior Court (2008) 163 Cal.App.4th 1043, 1049). Thus, in Warrick v. Superior Court, supra, 35 Cal.4th at page 1023, the court found that “[b]y denying the factual assertions made in the police report—that he possessed and discarded the cocaine—defendant established ‘a reasonable inference that the [reporting] officer may not have been truthful.’ [Citation.]”
If a defendant establishes good cause, the custodian of records should bring to court all documents that are potentially relevant to the defendant’s motion. (People v. Mooc (2001) 26 Cal.4th 1216, 1226.) The trial court must then review the records in camera to determine what information, if any, should be disclosed. Subject to the exceptions and limitations contained in Evidence Code section 1045, subdivisions (b)-(e), the court must disclose to the defendant such information as is relevant to the subject matter involved in the litigation. (People v. Gaines, supra, 46 Cal.4th at p. 179.) A trial court is afforded wide discretion in ruling on a motion for access to law enforcement personnel records, and we will reverse only on a showing of abuse of that discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330; People v. Samayoa (1997) 15 Cal.4th 795, 827; Haggerty v. Superior Court, supra, 117 Cal.App.4th at p. 1086; see Pitchess, supra, 11 Cal.3d at p. 535.)
For our purposes, the pertinent limitations are contained in subdivision (b) of Evidence Code section 1045, which excludes from disclosure “(1) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought. [¶] (2) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code. [¶] (3) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit.”
In the present case, defense counsel submitted a declaration on information and belief, in which he requested that the custodian of records produce all records regarding the named officers’ propensity for dishonesty, lying, making false arrests, perjury, planting evidence, or filing false police reports. Counsel asserted that the records sought were in possession of the Bakersfield Police Department; that Mara, Stratton, and Ursery alleged in their respective reports that defendant tossed a baggie of cocaine, had two baggies of cocaine in his pocket, and admitted membership in the West Side Crips; that defendant said something different than the officers; and that defendant intended to challenge the officers’ credibility at trial by presenting evidence of prior acts of similar misconduct and/or dishonesty.
A portion of defense counsel’s declaration, which concerned defendant’s stating something different than the officers, was filed under seal. In accord with Garcia v. Superior Court (2007) 42 Cal.4th 63, 73, the trial court held an in camera hearing on whether to allow the affidavit to be so filed; pursuant to its ruling, defense counsel informed the city attorney that the gist of the affidavit was based on information defendant told counsel. The court determined that Ursery had not written a report or previously testified in this case, but instead was merely mentioned in another officer’s report as being a percipient witness to a statement allegedly made by defendant. The court ruled that it would conduct an in camera hearing of Mara’s records for lying, false arrests, perjury (Mara having testified at the preliminary hearing), planting evidence, and false reports; and of Stratton’s records for lying, false arrests, planting evidence, and false reports; but that it would not conduct an in camera hearing of Ursery’s records.
As defendant does not now challenge the trial court’s decision not to review Ursery’s records, we do not further address that officer. We note, however, that Ursery neither wrote a report nor testified at trial; moreover, the statement attributed to him in Mara’s supplemental report—that he heard defendant tell jail staff that he was a West Side Gangster Crip and wanted to be kept away from the Bloods—was not placed before the jury either directly or through either gang expert’s testimony. Under the circumstances, even if we were to conclude that defendant somehow demonstrated the materiality of the information that he requested with respect to Ursery, we would also conclude—without needing to have the trial court review the requested records in camera upon a conditional reversal and remand (see People v. Gaines, supra, 46 Cal.4th at p. 180)—that there is no reasonable probability of a different outcome had information concerning Ursery been disclosed. (Compare People v. Gill (1997) 60 Cal.App.4th 743, 750-751.)
The record of the trial court’s in camera examination of the officers’ records is adequate for our review, and demonstrates that the trial court followed the appropriate procedure. (See People v. Mooc, supra, 26 Cal.4th at pp. 1228-1229.) Moreover, we have independently reviewed Mara’s and Stratton’s sealed files, which have been made part of the record on appeal but which have not been disclosed to counsel for either party. Our review “reveals no materials so clearly pertinent to the issues raised by the Pitchess discovery motion that failure to disclose them was an abuse of Pitchess discretion. Accordingly, we conclude the trial court properly exercised its discretion” with respect to what it ordered disclosed to the defense. (People v. Samayoa, supra, 15 Cal.4th at p. 827; see also People v. Hughes, supra, 27 Cal.4th at p. 330.)
II. Sufficiency of the Evidence
Defendant contends the evidence presented at trial was insufficient to sustain the convictions on counts 1 and 2 (possession or purchase of cocaine base for sale and active participation in a criminal street gang, respectively) and the true finding on the gang enhancement with respect to count 1. The applicable standard of review is settled. The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is “reasonable, credible, and of solid value.” (People v. Johnson, supra, at p. 578.) An appellate court must “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). “Where the circumstances support the trier of fact’s finding of guilt, an appellate court cannot reverse merely because it believes the evidence is reasonably reconciled with the defendant’s innocence. [Citations.]” (People v. Meza (1995) 38 Cal.App.4th 1741, 1747.) This standard of review is applicable regardless of whether the prosecution relies primarily on direct or on circumstantial evidence. (People v. Lenart (2004) 32 Cal.4th 1107, 1125.) Additionally, the principles apply to claims involving enhancements as well as substantive offenses (People v. Vy (2004) 122 Cal.App.4th 1209, 1224), and specifically to prosecutions under section 186.22, subdivision (b) (In re Jose P. (2003) 106 Cal.App.4th 458, 465-466).
A. Possession for Sale
“The essential elements of unlawful possession of a controlled substance are ‘dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character.’” (People v. Martin (2001) 25 Cal.4th 1180, 1184; see also People v. Montero (2007) 155 Cal.App.4th 1170, 1175.) The crime of possession for sale further requires proof the defendant possessed the controlled substance with the specific intent to sell it. (People v. Parra (1999) 70 Cal.App.4th 222, 226.) Each of the elements may be established by circumstantial evidence. (People v. Martin, supra, 25 Cal.4th at p. 1184.)
Defendant implicitly concedes he possessed cocaine base, but argues the evidence failed to establish that he did so for sale as opposed to personal use. He argues that no evidence identified him as a seller and that, if the cocaine base he possessed was packaged for sale, it necessarily was also packaged for purchase. Defendant further argues the denominations of money he possessed were inconsistent with drugs sales, as, he says, the prosecution’s own expert testified.
The evidence adduced at trial is set forth in the statement of facts, ante, and we need not repeat it in detail here. With respect to defendant’s arguments, he was not, of course, charged with selling the drugs, but with possessing them for sale. Mara’s testimony about the activities in the front yard was such that jurors reasonably could have inferred the people in the front yard were sellers, and that defendant was one of these people. Defendant did not have to be observed making a sale for jurors to infer his intent in possessing the contraband.
As for the packaging and money, Mara testified that while it was possible for a regular crack user to ingest the amount of drugs possessed by defendant over a period of a couple of days, he had formed the opinion that the drugs were possessed for sale because of the amount and the way they were packaged. In addition, no narcotics paraphernalia was located on defendant’s person. Mara did not say the denominations possessed by defendant were inconsistent with drug sales; rather, when asked by defense counsel if he agreed that the $100 bills were inconsistent with that money having been the product of drug sales, Mara replied, “I would agree that that would be inconsistent with street level sales of narcotics, but not with the product of drug sales.” Mara conceded, however, that while the small denominations were consistent with possessing narcotics for sale, they were equally consistent with innocent conduct.
“‘In cases involving possession of marijuana or [cocaine base], experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as the quantity, packaging and normal use of an individual; on the basis of such testimony convictions of possession for purpose of sale have been upheld. [Citations.]’ [Citation.] Thereafter, it is for the jury to credit such opinion or reject it.” (People v. Harris (2000) 83 Cal.App.4th 371, 374-375.) Here, considering the totality of the circumstances rather than each individual factor alone, jurors reasonably could have credited Mara’s opinion that defendant possessed cocaine base for sale. Because a conviction will be reversed for insufficient evidence only if “no reasonable trier of fact could have found each element of the crime proved beyond a reasonable doubt” (People v. Pike (1988) 197 Cal.App.3d 732, 748), reversal of defendant’s conviction on count 1 is not warranted.
Quoting People v. Redmond (1969) 71 Cal.2d 745, 755, defendant asserts that evidence that merely raises a suspicion of guilt is not sufficient to support a conviction. This is so, but the evidence here raises more than a mere suspicion. As Redmond also teaches, “Before the judgment of the trial court can be set aside for insufficiency of the evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it. [Citation.]” (Ibid.)
Defendant also quotes People v. Redrick (1961) 55 Cal.2d 282, wherein the California Supreme Court likened circumstantial evidence to a chain binding a defendant, link by link, to a finding of guilt. While the strength of the links is for the trier of fact, if a link is missing, the conviction must be reversed. (Id. at p. 290.) Defendant conveniently omits the following portion of the opinion, which is particularly applicable to the present case: “The existence of possible exculpatory explanations, whether they are simply suggestions not excluded by the evidence or even where they could be reasonably deduced from the evidence, could not justify this court’s rejecting the determination of the trier of fact that defendant is guilty unless on appeal it ‘be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below.’ [Citation.] While on the record here it may be that the evidence of guilt is not wholly persuasive to us, under the above stated analysis of the legal sufficiency of such evidence and the foregoing principles of appellate review, we cannot say that a link in the chain of essential proof is missing; hence it is not within our province to interfere with the determination of the trier of fact.” (Ibid.)
B. Gang Enhancement
Defendant next contends the true finding on count 1’s gang enhancement must be reversed for insufficient evidence. Relying largely on Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia) and Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069 (Briceno), he says this is so because the prosecution failed to prove beyond a reasonable doubt that defendant intended to assist gang members in the commission of crimes other than the crime that was the subject of the prosecution.
Under subdivision (b) of section 186.22, “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, ” is subject to a sentence enhancement. In light of the California Supreme Court’s holding in People v. Gardeley (1996) 14 Cal.4th 605, 623-624, that California’s gang statutes comport with due process because they do not criminalize mere gang membership but rather “impose[] increased criminal penalties only when the criminal conduct is felonious and committed not only ‘for the benefit of, at the direction of, or in association with’ a group that meets the specific statutory conditions of a ‘criminal street gang, ’ but also with the ‘specific intent to promote, further, or assist in any criminal conduct by gang members, ’” a dispute has arisen with respect to whether a specific intent to promote, etc., any criminal conduct by gang members is sufficient, or whether the statute must be interpreted to require the specific intent to promote, etc., other criminal conduct by gang members apart from the crime of conviction. The Ninth Circuit Court of Appeals has taken the latter position. (Briceno, supra, 555 F.3d at pp. 1079-1083; Garcia, supra, 395 F.3d at pp. 1100-1103.) Intermediate California courts have disagreed. (People v. Vazquez (2009) 178 Cal.App.4th 347, 353-354; People v. Hill (2006) 142 Cal.App.4th 770, 774; People v. Romero (2006) 140 Cal.App.4th 15, 19; see People v. Villalobos (2006) 145 Cal.App.4th 310, 322; People v. Morales (2003) 112 Cal.App.4th 1176, 1198.)
Shortly after briefing was completed in this case, the California Supreme Court settled the question. In People v. Albillar (2010) 51 Cal.4th 47, 64-66 (Albillar), that court rejected the Ninth Circuit’s interpretation of the statute. The court held, instead, that “the scienter requirement in section 186.22(b)(1)—i.e., ‘the specific intent to promote, further, or assist in any criminal conduct by gang members’—is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be ‘apart from’ the criminal conduct underlying the offense of conviction sought to be enhanced.” (Albillar, supra, at p. 66.) The court further rejected the notion that the statute requires the specific intent to promote, etc., a gang-related crime, stating: “There is no … requirement that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members. [Citations.]” (Id. at p. 67.) Last, the court rejected as “specious” the claim that the constitutional requirement of personal guilt compels inclusion in the enhancement of a specific intent to aid the gang. The court stated: “The enhancement set forth in section 186.22(b)(1) does not risk conviction for mere nominal or passive involvement with a gang. Indeed, it does not depend on membership in a gang at all. Rather, it applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang…. [¶] In sum, if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members.” (Albillar, supra, at pp. 67-68.)
In Emery v. Clark (9th Cir. May 27, 2011, No. 08-55249) ___ F.3d ___, ___ [2011 U.S. App. LEXIS 10679 *11], the Ninth Circuit Court of Appeals recognized that in Albillar, the California Supreme Court overruled the Briceno and Garcia interpretations of section 186.22, subdivision (b).
In the present case, the prosecutor framed a hypothetical question based on the evidence adduced at trial, and asked Finney how the crime would promote, further, or assist gang members in criminal conduct. Finney responded: “By being in the company of another [West Side Crip] during the commission of this crime as well as the financial income benefiting the gang by then being able to purchase more narcotics.” Because substantial evidence established that defendant intentionally committed the charged felony with at least one known gang member (Clayton), and in light of Finney’s testimony, the jury reasonably could infer defendant acted with the specific intent to promote, further, or assist gang members in the commission of the crime. (Albillar, supra, 51 Cal.4th at p. 68; People v. Villalobos, supra, 145 Cal.App.4th at p. 322.) Therefore, the evidence was sufficient to sustain the jury’s true finding on the section 186.22, subdivision (b) enhancement with respect to count 1.
C. Active Participation in Criminal Street Gang
Defendant further contends the evidence was insufficient to sustain his conviction on count 2, active participation in a criminal street gang in violation of section 186.22, subdivision (a). He concedes there was evidence to show he was once affiliated with the West Side Crips, but says the evidence failed to prove he was an active member or associate of the gang in November 2007, when the charged offenses occurred.
The elements of a violation of section 186.22, subdivision (a) are “‘actively participat[ing] in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity’ and ‘willfully promot[ing], further[ing], or assist[ing] in any felonious criminal conduct by members of that gang.’ [Citation.]” (People v. Robles (2000) 23 Cal.4th 1106, 1115.) To be guilty of violating this statute, a person need not be a gang member or even devote all or a substantial part of his or her time and efforts to the gang; however, he or she must have had more than a passive or nominal involvement with the gang. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1331; In re Jose P., supra, 106 Cal.App.4th at p. 466.) “The gravamen of the substantive offense set forth in section 186.22(a) is active participation in a criminal street gang.… [T]he phrase ‘actively participates’ reflects the Legislature’s recognition that criminal liability attaching to membership in a criminal organization must be founded on concepts of personal guilt required by due process: ‘a person convicted for active membership in a criminal organization must entertain “guilty knowledge and intent” of the organization’s criminal purposes.’ [Citation.]” (Albillar, supra, 51 Cal.4th at pp. 55-56.) For purposes of subdivision (a) of section 186.22, “[i]t is not enough that a defendant have actively participated in a criminal street gang at any point in time.… A defendant’s active participation must be shown at or reasonably near the time of the crime.” (People v. Garcia (2007) 153 Cal.App.4th 1499, 1509.)
Finney’s testimony concerning police reports, street checks, and booking information involving defendant is set out in the statement of facts, ante. Although defendant had no gang-related tattoos and was not seen wearing gang clothing or flashing gang signs, Finney detailed information showing defendant’s presence with other gang members and involvement in the gang dating back to 2004, and extending to January 2009, well beyond the time of the charged offenses. (See People v. Garcia, supra, 153 Cal.App.4th at p. 1509.) Additionally, the charged narcotics offense involved defendant’s commission, deep within traditional West Side Crips territory and with at least one West Side Crip member, of a crime that was one of that gang’s primary activities.
From the foregoing, we conclude substantial evidence supported a finding of active participation during the relevant time period. We recognize jurors could have rejected the notion defendant was actively involved in the West Side Crips, concluding instead that he was involved with members of the gang because they were related to him rather than because he was involved with the gang, that “Yata” was not a gang moniker but rather merely a nickname based on defendant’s first name, and that the booking information was unpersuasive. Nevertheless, jurors reasonably could—and did—conclude the opposite: that the evidence showed defendant was actively participating in the West Side Crips as of November 24, 2007. “[T]he sufficiency of the evidence showing active participation is not altered by the existence of other evidence offered by defendant to show he was not an active participant in the gang. Resolution of conflicting evidence and credibility issues was for the jury to decide.” (People v. Martinez, supra, 158 Cal.App.4th at p. 1331), as was the choice among reasonable inferences (People v. Sweeney (1960) 55 Cal.2d 27, 51). “It is clear from the verdict finding defendant guilty of street terrorism that the jury believed he was actively participating in the gang. Because substantial evidence supports this determination, ‘“that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]” [Citation.]’ [Citation.]” (People v. Martinez, supra, at p. 1331.).
III. Juror Misconduct
Defendant contends the trial court committed reversible error by failing to inquire into juror misconduct after being informed that at least one juror refused to deliberate. He says the offending juror or jurors may have prejudged the case, and because of the lack of inquiry, the People cannot rebut the presumption of prejudice that arose from the jury misconduct. Alternatively, he says that if the claim was forfeited for purposes of appeal, his trial attorney rendered ineffective assistance of counsel. We conclude defendant has failed to establish cause for reversal.
A. Background
At the end of jury instructions, the trial court gave CALCRIM No. 3550, a lengthy instruction which told jurors, in part, that it was their duty to talk with one another and to deliberate in the jury room, that they should keep open minds and exchange their thoughts and ideas about the case, that they should treat each other courteously, and that they were to be impartial judges of the facts and not advocates for either side. The instruction also directed jurors to communicate with the court only by means of written notes that were signed by the foreperson or other jurors.
The jury retired to deliberate at approximately 4:28 p.m. on August 25, 2009. Although the record does not indicate when court recessed for the evening, deliberations resumed at 9:00 a.m. on August 26. During deliberations that day, the jury made several requests to have testimony reread. One, made shortly after 4:00 p.m., needed to be clarified, and the jury returned to the jury room to attempt to do so. Although none of the jurors mentioned any sort of problem to the court, after the court sent them back to the jury room, it held a discussion with counsel off the record. After the jury returned to the courtroom at 4:50 p.m. with a modified request, the court told them:
Further references to unspecified dates are to 2009.
“We will get [the requested testimony] ready for you in the morning, that should be quite a bit shorter than the other [request]. Now, here is something I want to reread to you, I think this is important, because I am going to reread to you 3550. You have a copy of it and that’s the last jury instruction that I gave you. Now, I’m not going to read it all, but I’m going to pull out a portion that I think is important for all the jurors to remember. The first sentence says: First thing you should do is elect a foreperson. You have done that. But then it says this: The foreperson should see to it that your discussions are carried on in an organized way and that everyone has a fair chance to be heard. It is your duty to talk with one another and to deliberate in the jury room. That’s important. It is your duty to talk and deliberate. You don’t have to come up with a verdict if you can’t. But your duty is to participate. I want to pound that in, it is your duty to talk with one another and to deliberate in the jury room. You should try to agree on a verdict, if you can. Each of you must decide the case for yourself, but only after you have discussed the evidence with the other jurors. Do not hesitate to change your mind if you become convinced that you are wrong. But do not change your mind just because other jurors disagree with you. Keep an open mind and openly exchange your thoughts and ideas about this case. Stating your opinions too strongly at the beginning or immediately announcing how you plan to vote may interfere with an open discussion. Please treat one another with courtesy. Your role there is very important. Your role is to be an impartial judge of the facts, not to act as an advocate for one side or the other.
“I would like all of you to sleep on that. And then we will see you tomorrow morning at nine o’clock.…
“We will see you tomorrow at nine o’clock. We can’t restart your deliberations or the readback until all of you are present, so please make special efforts to be here at 9:00. Have a nice evening. Thank you for the work and your patience.”
The evening recess was then taken.
When trial reconvened outside the jury’s presence the next morning, August 27, the court noted that it had had a chambers conference with counsel that morning, and that defense counsel wanted to put something on the record. This ensued:
“[DEFENSE COUNSEL]: Yes. Thank you, your Honor. Just want to make sure, yesterday you admonished the jury with -- I’m sorry, was a CALCRIM, judge.
“THE COURT: CALCRIM 3550, I reread it, a portion. That’s the concluding instruction that we give them just before they start their deliberations.
“[DEFENSE COUNSEL]: Okay. I just wanted to make sure that we had a record that we had a juror acknowledge that some -- at least one person in the jury
“THE COURT: My bailiff -- I noted there was conversation as they came into the courtroom yesterday afternoon. And my bailiff indicated that one of the jurors had indicated that one or some of the jurors were not deliberating. And rather than make an issue of that, I didn’t want to polarize the jury or even bring that to anybody’s attention, rather than do that, I elected to read that middle portion of 3550, which is the generic instruction that we read them, where it says that basically you should treat one another with courtesy, you should arrive at a verdict, if you can. And that you are not advocates for one side or the other. I read exactly verbatim that language. I excluded the part about revoting, about selecting a foreperson. And I also excluded that part about voting and the pleas and all that. So that’s why I did that. And I don’t even know if it is true or not, it was enough in abundance of caution to let them know that and let them go home for the evening with that in their mind.
“[DEFENSE COUNSEL]: Thank you, your Honor.”
After a discussion between the court and counsel about an unrelated potential problem with one of the jurors, the jury was returned to the courtroom, then retired to the jury room, where the requested testimony was reread. At 10:14 a.m., the foreperson sent out a note saying jurors had heard what they needed. At 11:00 a.m., the foreperson sent out a note saying jurors had reached a verdict on all counts. After the verdicts were read, the jury was polled; each juror affirmed that it was his or her true and correct verdict.
B. Analysis
A juror commits misconduct by refusing to deliberate. (People v. Leonard (2007) 40 Cal.4th 1370, 1410-1411; see also People v. Thomas (1994) 26 Cal.App.4th 1328, 1333.) A refusal to deliberate does not necessarily mean, however, that the offending juror has prejudged the case. “A refusal to deliberate consists of a juror’s unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views. Examples of refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury.” (People v. Cleveland (2001) 25 Cal.4th 466, 485.)
“The decision whether to investigate possible juror bias, incompetence, or misconduct, as well as the ultimate decision whether to retain or discharge a juror, rests within the sound discretion of the trial court. [Citation.] If any substantial evidence exists to support the trial court’s exercise of its discretion, the court’s action will be upheld on appeal.” (People v. Maury (2003) 30 Cal.4th 342, 434.) A trial court is not required to act on mere rumor or innuendo (People v. Adcox (1988) 47 Cal.3d 207, 253), and it does not abuse its discretion by not investigating “any and all” information obtained about a juror during trial (People v. Ray (1996) 13 Cal.4th 313, 343). Rather, “a hearing is required only where the court possesses information which, if proven to be true, would constitute ‘good cause’ to doubt a juror’s ability to perform his duties and would justify his removal from the case. [Citations.]” (Id. at pp. 343-344.) “Failure to conduct a hearing sufficient to determine whether good cause to discharge the juror exists is an abuse of discretion subject to appellate review. [Citations.]” (People v. Burgener (1986) 41 Cal.3d 505, 520, disapproved on another ground in People v. Reyes (1998) 19 Cal.4th 743, 756.)
In the present case, defense counsel made a record of why the trial court had reinstructed with a portion of CALCRIM No. 3550, but did not object to the court’s course of action, request the court to undertake an inquiry of the jurors, or move for a mistrial. Accordingly, we question whether defendant forfeited his claim (see People v. Lewis (2009) 46 Cal.4th 1255, 1308; People v. Stanley (2006) 39 Cal.4th 913, 950), or whether the forfeiture doctrine is inapplicable because it is a trial court’s duty to inquire in appropriate circumstances (see People v. Burgener, supra, 41 Cal.3d at pp. 519-520).
We need not decide whether to address the failure to inquire on the merits or through a claim of ineffectiveness of counsel. Under the circumstances of the present case, the result is the same either way: No cause for reversal has been shown.
The burden of proving ineffective assistance of counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425.) “To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings. [Citations.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-694.)
The California Supreme Court has recognized that “it often is appropriate for a trial court that questions whether all of the jurors are participating in deliberations to reinstruct the jurors regarding their duty to deliberate and to permit the jury to continue deliberations before making further inquiries that could intrude upon the sanctity of deliberations…. [W]hen reinstruction does not resolve the problem and the court is on notice that there may be grounds to discharge a juror during deliberations, it must conduct ‘whatever inquiry is reasonably necessary to determine’ whether such grounds exist. [Citation.]” (People v. Cleveland, supra, 25 Cal.4th at p. 480, italics added; see also People v. Burgener (2003) 29 Cal.4th 833, 876-879.)
This is a case in which initial reinstruction, without further inquiry, fell within the trial court’s discretion. Contrary to defendant’s apparent assumption, no presumption of prejudice arose for the People to rebut because no juror misconduct was established. Jurors did not complain directly to the court and, in light of the jury’s notes asking to have various portions of testimony reread, it was apparent that some discussion was being had and progress was being made. Under the circumstances, the trial court reasonably reminded jurors of their duty to cooperate and deliberate in good faith, then sent them home for the evening. As no further complaint was made, the court was not required to undertake any inquiry (see People v. Burgener, supra, 29 Cal.4th at pp. 878-879), and defense counsel was not ineffective for failing to seek a hearing on the matter or otherwise object to the manner in which the trial court proceeded (see People v. Osband (1996) 13 Cal.4th 622, 676).
Defendant suggests there was no further complaint because, “after sending a report of a juror’s refusal to deliberate, and having the trial court’s only response be re-instruction, [the] jurors knew the court would not intercede. Thus, any further report of misconduct would have been futile because jurors would have supposed it would meet with the same ineffective response.” Leaving aside the fact that jurors did not “send a report” of a juror’s refusal to deliberate, we disagree. Jurors would have recognized the rereading of CALCRIM No. 3550—especially given the trial court’s emphasis on the duty to talk and participate—as a response aimed directly at the juror or jurors who were perceived as causing the problem. There is no reason to believe jurors would have concluded the court would not intercede or that further complaint would have been futile.
IV. Cumulative Prejudice
Defendant says the cumulative effect of the trial court errors warrants reversal. Having found no valid claim of error affecting defendant’s conviction, we reject this contention. (See People v. Vieira (2005) 35 Cal.4th 264, 294.)
V. Sentencing Errors
A. Presentence Credits
At sentencing, the trial court awarded defendant presentence credits in the amount of 67 days of actual time plus 32 days of conduct credit, for a total credit of 99 days. Defendant subsequently moved for correction of credits, claiming he was entitled to 66 days of conduct credits under the amendment to section 4019 that became effective on January 25, 2010, after defendant was sentenced but before his case was final. The trial court denied the motion on the ground that the amendment was not retroactive. Defendant now claims he is entitled to the additional credits.
Section 4019 was further amended effective September 28, 2010. This amendment does not affect this case or our analysis. Further references to section 4019 are to that section as amended by Statutes 2009-2010, Third Extraordinary Session, chapter 28, section 50, effective January 25, 2010.
The issue of whether the amendment to section 4019 applies retroactively is currently before the California Supreme Court in People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, and People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963, as well as other cases. We need not address the issue, however, because even if retroactively applied, the provisions of section 4019, subdivision (b)(1), awarding increased credits, do not apply to a defendant “committed for a serious felony, as defined in Section 1192.7 ….” (§ 4019, subd. (b)(2).) Under section 1192.7, subdivision (c)(28), “any felony offense, which would also constitute a felony violation of Section 186.22, ” constitutes a serious felony. Section 1192.7, subdivision (c)(28) applies to both subdivisions (a) and (b) of section 186.22. (People v. Jones (2009) 47 Cal.4th 566, 573; People v. Briceno (2004) 34 Cal.4th 451, 456.) As defendant thus has been committed for a serious felony (a fact the prosecutor noted at sentencing), he is not entitled to additional presentence credits regardless of the correctness of the reason given by the trial court in denying defendant’s motion. (See People v. Smithey (1999) 20 Cal.4th 936, 971-972.)
B. Incorrect Abstract of Judgment
Although not raised by either party, our review of the record reveals that the abstract of judgment does not correctly reflect the fees, fines, and penalty assessments imposed by the court.
Pages 967-969 of the reporter’s transcript show that, with respect to count 1, the court imposed (1) a $50 fee pursuant to Health and Safety Code section 11372.5, plus a $130 penalty assessment for which it specified the individual assessment amounts; (2) a $100 fee pursuant to Health and Safety Code section 11372.7, plus a $260 penalty assessment consisting of double the amounts previously specified; (3) a $30 fee pursuant to Government Code section 70373; and (4) a $30 fee pursuant to section 1465.8. With respect to count 2, the court imposed (1) a $30 fee pursuant to section 1465.8; (2) a $30 fee pursuant to Government Code section 70373; (3) a $200 restitution fine pursuant to section 1202.4, subdivision (b); and (4) a $200 restitution fine pursuant to section 1202.45, with that fine suspended subject to parole revocation proceedings. As to count 3, the court imposed (1) a $30 fee pursuant to section 1465.8; and (2) a $30 fee pursuant to Government Code section 70373.
The abstract of judgment correctly lists the restitution fines, but omits all other fees, fines, and assessments except for those imposed pursuant to section 1465.8 and Government Code section 70373 and, for those, the amounts listed are incorrect. Although no modification of the judgment is needed, these clerical errors must be corrected.
DISPOSITION
The judgment is affirmed. The trial court is directed to cause to be prepared an amended abstract of judgment that conforms to its oral pronouncement of sentence on October 30, 2009, and to transmit certified copies of the same to the appropriate authorities.
WE CONCUR: HILL, P.J., WISEMAN, J.