Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, Super. Ct. No. 1257189, Brian E. Hill, Judge.
Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Michael C. Keller, David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
Fourteen-year-old Ricardo Juarez appeals the judgment following his conviction for voluntary manslaughter. (Welf. & Inst. Code, § 707, subd. (d)(2); Pen. Code, § 192, subd. (a).) The jury also found to be true allegations of a section 186.22, subdivision (b) gang enhancement and that he personally used a deadly and dangerous weapon. (§ 12022, subd. (b)(1).) He was sentenced to an aggregate term of 17 years in state prison consisting of the middle term of six years for the manslaughter, 10 years for the gang enhancement, and one year for personal use of a weapon. He contends that two jurors engaged in prejudicial misconduct, and that the trial court erred in excluding expert testimony regarding adolescent brain development and evidence that a witness was on probation at the time of the offense. We affirm.
All further statutory references are to the Penal Code unless otherwise stated.
FACTS
On March 14, 2007, two rival gangs engaged in a prearranged gang brawl in downtown Santa Barbara, California. Juarez was a member of the larger Eastside gang whose members had gathered in a nearby park, and were seen carrying knives, bats, and sticks. Eastside's rival, the Westside gang, gathered on State Street. Its members were unarmed.
The Eastside gang walked to State Street approaching the Westside gang members who were on the other side of the street. Witnesses testified that, as the gangs approached each other, their numbers appeared to increase. Two police officers were also in the area and observed the tensions rise.
As the gangs closed, the Eastside gang charged across the street and engaged the Westside gang in a fight. Juarez was at the front of the Eastside gang and brandished a knife. Some Eastside gang members singled out Westside gang member Luis Linares as the object of their assault. Juarez stabbed Linares, and Linares fell back. Multiple witnesses identified Juarez as the person who stabbed Linares by making several thrusts with his knife. Juarez later admitted stabbing Linares twice. An autopsy revealed eight stab wounds and that a wound to the upper back was found by the coroner to have been the fatal wound.
The wounded Linares and other Westside gang members retreated, but were pursued by Juarez and other Eastside gang members. The groups moved from State Street to the parking lot of a nearby Saks Fifth Avenue store. It was here that Linares was seen on the ground being beaten by Juarez and other Eastside gang members. The brawl ended when Juarez and other gang members fled.
Juarez was convicted after a 52-day jury trial. He subsequently filed a motion for new trial on various grounds including juror misconduct, and the improper exclusion of expert testimony. The trial court denied the motion.
DISCUSSION
No Error in Denial of New Trial Motion Based on Juror Misconduct
Juarez contends the trial court's denial of his motion for new trial based on juror misconduct violated his Sixth Amendment right to an impartial jury. He argues that one juror (Juror FV) improperly concealed information concerning her knowledge of local gangs during voir dire examination, and offered opinions based on facts not in evidence during jury deliberations. He also argues that the jury foreperson (Juror JF) showed bias during deliberations by advocating a conviction for first degree murder. The claim is based on the juror's statement that "he owed it to the District Attorney to clean up Santa Barbara, " and that a lesser conviction would result in a 10-year sentence of which Juarez would serve 5 years. We conclude the trial court did not err in denying Juarez's motion and that his constitutional rights were not abridged.
A. Voir Dire Examination of Juror FV
During voir dire, Juror FV stated that she had grown up in Santa Barbara and was Latino. Based on these facts, the defense and prosecution questioned her about exposure to gangs and gang members. When asked if she had any "experience" with gangs, she answered: "Not really. No. I had a couple [of] friends that were related, and had friends of theirs that would come over to my house. But me personally hanging out with them or doing activities, no. My father wouldn't allow it. I didn't want to get in trouble." When asked if she had friends or family members who had been identified as gang members, she stated she had cousins who hung out with gangs in Modesto and Sacramento, and that family members brought "their cousins and... friends" to her house and that some of those individuals had been involved in "gang related situations." She also stated that she knew people in her high school who were affiliated with gangs. She professed "limited exposure" to gangs because she is "really picky with the people that I hang out with and talk to."
B. Juror Declarations Regarding Jury Deliberations
In support of his motion, Juarez submitted declarations from Jurors OM and SG. Juror OM declared that, during deliberations, Juror FV told the jury (1) "she had several cousins who were Eastside members, " (2) gangs had subsets that were not "discussed" during trial, (3) older gang members get younger members to commit crimes, (4) a "marker" at the crime scene represented the number of people gang members had killed, and (5) a witness was limping because he had been hurt by gang members. Juror SG declared that juror FV told the jury that a "marking" at the crime scene "had been left by the Eastside Gang bragging about murder, " and that gangs "get the younger boys to do the killing" because they will receive shorter prison sentences.
As to comments by Juror JF, Juror OM declared that Juror JF had strong feelings about the case and told the jury "he owed it to the District Attorney to clean up Santa Barbara from the gangs." Juror OM also declared that Juror JF "insisted that the defendant had to be convicted of murder so that he would be sent away for life, otherwise he would only get a sentence of 10 years and would get out after serving 5, with half-time credits." Juror SG declared that Juror JF stated, "[i]f we let this one go, what will happen next?"
The prosecutor submitted declarations from four jurors. As to Juror FV, Juror No. 1 declared that he/she did not remember Juror FV mentioning a family connection to the Eastside gang but said she had cousins in gangs. Juror No. 5 declared that Juror FV said she had relatives involved in gang activity but did not mention the Eastside gang. Juror No. 5 also remembered a jury discussion about a "marker" at the crime scene, and that Juror FV claimed the witness who limped had been attacked by a gang. Juror No. 10 remembered no discussion by juror FV about markers, the Eastside gang, and a witness who limped. Juror No. 12 declared that juror FV mentioned family ties to gangs, including the Eastside gang, and attributed "tagging" in the rear of Saks Fifth Avenue to the Eastside gang.
As to Juror JF, Juror No. 1 declared that Juror JF expressed a desire to rid Santa Barbara of gangs and had strong opinions. Juror No. 5 did not remember any comment about cleaning up Santa Barbara but declared that Juror JF was very vocal and did not want a hung jury. Juror No. 10 declared that Juror JF "vigorously represented" a position contrary to that of Juror SG, but did not make any statements about sentencing or owing the District Attorney anything. Juror No. 12 did not recall Juror JF making any statement about his duty or about sentencing.
C. No Abuse of Discretion by Trial Court
A criminal defendant has a constitutional right to a trial by an impartial and unbiased jury. (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 16.) A jury is impartial when no juror has been improperly influenced by outside factors and is capable and willing to decide the case solely on the evidence. (People v. Nesler (1997) 16 Cal.4th 561, 578.) Juror misconduct may establish juror bias. (Ibid.)
When a defendant moves for a new trial based on jury misconduct, the trial court must determine whether admissible evidence establishes misconduct, and whether the misconduct, if any, was prejudicial. (People v. Sanchez (1998) 62 Cal.App.4th 460, 475; People v. Duran (1996) 50 Cal.App.4th 103, 112-113.) "Whether prejudice arose from juror misconduct is a mixed question of law and fact. We review legal issues independently, and accept the trial court's factual findings if they are supported by substantial evidence. [Citation.]" (People v. Loker (2008) 44 Cal.4th 691, 747; People v. Danks (2004) 32 Cal.4th 269, 303.) A trial court's denial of a motion for new trial will not be disturbed on appeal unless there has been a "manifest and unmistakable abuse of discretion." (People v. Carter (2005) 36 Cal.4th 1114, 1210.) Reversal is not required unless the reviewing court concludes there is a substantial likelihood a juror was improperly influenced. (Duran, at pp. 112-113.)
"'... A juror who conceals relevant facts or gives false answers during the voir dire examination... undermines the jury selection process and commits misconduct.'" (People v. Wilson (2008) 44 Cal.4th 758, 822-823.) Intentional concealment of material information creates a presumption of prejudice which is rebutted if the trial court's examination of the entire record shows no reasonable probability of actual harm to the defendant from the misconduct. (People v. Carter, supra, 36 Cal.4th at p. 1208; People v. McPeters (1992) 2 Cal.4th 1148, 1175.)
Conversely, unintentional or inadvertent failure to disclose information does not create a presumption of prejudice. (People v. McPeters, supra, 2 Cal.4th at p. 1175.) The proper test is whether the juror had "a state of mind" that "'would prevent a person from acting impartially.'" (People v. San Nicolas (2004) 34 Cal.4th 614, 646.) The trial court is in the best position to determine whether failure to disclose was intentional or unintentional and whether the juror was able to act impartially. (Id. at p. 644.)
Here, the trial court determined that there was no evidence that Juror FV "deliberately lied about her knowledge of gangs or her relationship to gang members, " or about "her knowledge of gang activity in Santa Barbara or her relationship with people who are gang members in Santa Barbara." We conclude that the record as a whole supports the trial court's conclusion. Further, the record supports the conclusion that any failure to disclose material information did not affect Juror FV's ability to perform her duty to evaluate the evidence objectively and perform her duty impartially. (See People v. San Nicolas, supra, 34 Cal.4th at p. 646.)
The only specific instance of concealment claimed by Juarez concerned Juror FV's family ties to gangs. Juror FV disclosed that family members were affiliated with gangs in Modesto and Sacramento but did not mention the Santa Barbara Eastside gang. According to Juror OM and Juror No. 12, however, she claimed cousins were affiliated with the Eastside gang.
Based on the questions and answers during voir dire, Juror FV readily disclosed family connections to gangs in other parts of the state and her experiences with gang members in Santa Barbara. She stated that she knew people in her high school in Santa Barbara who were affiliated with gangs, and that family members brought "their cousins" with gang connections to her house. Juror FV emphasized that she avoided contact with local gang members, but expressly revealed acquaintanceships with Santa Barbara gang members. As the trial court stated, this information alerted counsel to ask more specific follow-up questions if they so chose.
Juarez also contends that there was juror misconduct by Juror FV and Juror JF during jury deliberations.
It is misconduct for a juror to consciously receive outside information about the case, or share improper information with other jurors. (People v. Tafoya (2007) 42 Cal.4th 147, 192; see also In re Hamilton (1999) 20 Cal.4th 273, 294.) A jury's verdict must be based on the evidence presented at trial, not on extrinsic matters. (People v. Nesler, supra, 16 Cal.4th at p. 578.)
As we have stated, juror misconduct raises a rebuttable presumption of prejudice but the verdict will be set aside only if there is a substantial likelihood of juror bias. (People v. Carter, supra, 36 Cal.4th at p. 1208.) "'... Such bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. [Citations.] Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. [Citation.] The judgment must be set aside if the court finds prejudice under either test.' [Citation.]" (People v. Tafoya, supra, 42 Cal.4th at p. 192.)
A substantial likelihood of juror bias occurs "'... when, but only when, the extraneous information was so prejudicial in context that its erroneous introduction in the trial itself would have warranted reversal of the judgment....'" (People v.Danks, supra, 32 Cal.4th at p. 303.) But, even if the information was not inherently prejudicial, the nature and circumstances of the misconduct and the trial record as a whole must be examined to determine whether there was a substantial likelihood of bias. (Ibid.)
It is critical, however, that the likelihood of bias be substantial to avoid rendering the courts "impotent in quest of an ever-elusive perfection." (People v.Danks, supra, 32 Cal.4th at p. 304.) "Jurors bring to their deliberations knowledge and beliefs about general matters of law and fact that find their source in everyday life and experience. That they do so is one of the strengths of the jury system. It is also one of its weaknesses: it has the potential to undermine determinations that should be made exclusively on the evidence introduced by the parties and the instructions given by the court. Such a weakness, however, must be tolerated." (People v. Marshall (1990) 50 Cal.3d 907, 950.)
Here, Juarez argues that Juror FV improperly related to other jurors information regarding gang culture that was not in evidence. Juarez further argues that comments by Juror JF about penalty, and having a duty to rid Santa Barbara of gangs were improper and prejudicial.
The trial court ruled that there was some misconduct in the introduction of extraneous matter, but that the misconduct was not prejudicial. The court stated that there was no evidence that the jury deliberations were affected by a "fleeting reference" to the Eastside gang or Juror JF's reference to penalty. The court also found that any improper comments "terminated when it was brought to their attention that [the jurors] should not discuss those matters." The record as a whole supports the trial court's ruling and we conclude that there was no abuse of discretion in denying Juarez's motion for new trial regarding misconduct during jury deliberations.
As indicated by the trial court, there is evidence that Juror FV related information regarding the existence of "subsets" within a gang, the assignment of criminal conduct to the youngest gang members, the meaning of gang graffiti, and the possible cause of an injury to a witness. Nevertheless, the record amply supports the conclusion that the extraneous material was neither inherently likely to have influenced Juror FV or any other juror, nor did the circumstances make it substantially likely that the extraneous material biased any juror against the defendant.
The entire focus of the trial was on gangs and gang activity. There was expert testimony regarding gang culture and the meaning of conduct during the riot. There was admissible evidence at trial that Juarez and the victim were 14 and 15 years old, respectively, and that other participants were juveniles. There was also admissible evidence at trial that the Eastside gang had cliques or "subsets" and that the Traviesos clique was involved in the incident.
Moreover, reliance upon personal experience is permitted and a normal part of jury deliberations. (See generally People v. Yeoman (2003) 31 Cal.4th 93, 162 [jurors' comments regarding drug use by family members and the jurors themselves were not misconduct]; People v. Fauber (1992) 2 Cal.4th 792, 838-839 [same].) Also, it is common knowledge that gangs are organized groups that engage in criminal activity. (See Yeoman, at p. 162.)
Turning to the statements attributed to Juror JF, we conclude there is no admissible evidence of prejudicial misconduct. The alleged comment by Juror JF that he "owed it to the District Attorney to clean up Santa Barbara from the gangs" is disturbing because it was not limited to the facts of this case. But, it was an isolated comment and related to a belief shared by most people, namely that gangs are damaging to society. Also, Juror JF's comment about penalty simply stated that more serious crimes are punished by longer sentences than less serious crimes, a fact known to virtually everyone. In addition, Juror JF's advocacy of a first degree murder conviction constitutes an expression of his views concerning the evidence and his mental processes in reaching a verdict in the case. (See People v. Sanchez, supra, 62 Cal.App.4th at pp. 475-476 [evidence relating to a juror's mental processes during deliberations inadmissible]; Evid. Code, § 1150.)
No Error in Exclusion of Adolescent Brain Development Evidence
Juarez contends that the trial court erred by excluding expert testimony necessary to his defense. He argues that proffered expert testimony on the physiological characteristics of adolescent brain development was relevant to his state of mind and ability to form a state of mind necessary for the offense. He claims the evidence would have shown that "a 14-year-old does not, and cannot, think like an adult" because of the incomplete development of his or her brain. We conclude that there was no error by the trial court in excluding the evidence.
Expert testimony is admissible if it relates to a subject "sufficiently beyond common experience" so that the expert's opinion "would assist the trier of fact." (Evid. Code, § 801, subd. (a); People v. Prince (2007) 40 Cal.4th 1179, 1222.) Expert testimony is not admissible regarding a subject that "'... is one of such common knowledge that men [and women] of ordinary education could reach a conclusion as intelligently as the witness....'" (People v. Harvey (1991) 233 Cal.App.3d 1206, 1226-1227.) In addition, expert testimony must be relevant to a material fact in the case to be admissible. (People v. Williams (2008) 43 Cal.4th 584, 633.) A trial court's exclusion of expert testimony will not be disturbed on appeal absent a manifest abuse of discretion. (People v. Lindberg (2008) 45 Cal.4th 1, 45; People v. Rowland (1992) 4 Cal.4th 238, 266.)
The evidence at issue in this case is proposed testimony by Dr. Elizabeth Cauffman to the effect that decision making, impulse control, and the ability to concentrate occur largely in the prefrontal cortex of the brain. That portion of the brain is typically not fully developed physiologically in adolescents. As a result, adolescents have a harder time controlling their impulses, and tend to engage in riskier behavior. The trial court excluded the testimony and denied Juarez's motion for new trial which was based on the ground that the evidence had been improperly excluded. This ruling was not an abuse of discretion.
First, out of the presence of the jury, Dr. Cauffman testified generally about the brain development of adolescents. She never examined Juarez and did not testify as to his brain development specifically. It is common knowledge that the ability of adolescents to control their impulses is not fully developed and that adolescents often engage in riskier behavior than adults. There was no need for an expert witness to testify to the differences between children and adults. Also, the implicit claim by the defense that adolescents suffer from incomplete brain development as if it were a mental disorder is unsupported by legal authority or the proposed testimony by Dr. Cauffman.
Second, although Juarez argues that it is relevant to his actual state of mind during the riot, the excluded evidence focused on the physiological capacity of an adolescent to form a state of mind required for criminal culpability. Dr. Cauffman's proposed testimony that adolescents have a limited ability to control their impulses and make reasonable decisions because their brains are not fully developed would have been evidence of diminished capacity.
Evidence of a mental condition may be admissible to show whether a defendant actually formed a mental state required for a charged offense, but evidence concerning whether a defendant had the capacity to form a mental state that is an element of a charged offense is not admissible at the guilt phase of a trial. (People v. Coddington (2000) 23 Cal.4th 529, 582, overruled on another point by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Vieira (2005) 35 Cal.4th 264, 291; see §§ 25, 28, 29.)
Also, exclusion of expert testimony on the ultimate fact of whether a defendant formed the requisite mental states does not constitute a denial of the right to present a defense. (People v. Coddington, supra, 23 Cal.4th at p. 583.)
In addition, the standard to be applied in deciding criminal culpability for a homicide or in deciding between voluntary and involuntary manslaughter turns on whether a defendant's actions were those of a reasonable person, not the actions of a reasonable juvenile. (Walker v. Superior Court (1988) 47 Cal.3d 112, 136-137; CALCRIM No. 580.) Section 26 expressly provides that all persons who have reached the age of 14 "are capable of committing crimes, " and there is no separate standard for a juvenile who is lawfully tried as an adult.
The briefs on appeal cite Roper v. Simmons (2005) 543 U.S. 551, which referred to scientific studies concerning an underdeveloped sense of responsibility in juveniles. In that case, the United States Supreme Court held that the constitutional prohibition against cruel and unusual punishment precludes imposition of the death penalty for crimes committed when the defendant is younger than 18 years of age. (Id. at pp. 568-569; see also Graham v. Florida (2010) 560 U.S. ___ [130 S.Ct. 2011, 2034] [holding that it is cruel and unusual punishment in nonhomicide cases to sentence a juvenile to life without the possibility of parole].)
Both Roper and Graham, as well as other cases, concern the level of punishment appropriate for minors who commit criminal acts, not the criminal culpability of minors. Roper emphasizes the importance of evolving standards and "national consensus" regarding imposition of capital punishment on juveniles. (Roper v. Simmons, supra, 543 U.S. at pp. 564-568.) Nothing in Roper or Graham or any other published case suggests that accountability and the determination of guilt for criminal acts depend in any manner on age or the underdevelopment of adolescent brains.
No Error in Exclusion of Probation Evidence
Juarez contends that the trial court erred in preventing the defense from eliciting testimony as to whether Eastside gang member Ricardo R. was on probation at the time of the riot. Juarez argues that the error violated his right of confrontation. We disagree.
At trial, Ricardo R. was identified as an Eastside gang member whose gang name was "Stomper." Witness Esparanza Herrera testified that another person, Jesus Hernandez, told her that he had heard that Stomper stabbed him with a knife. Another witness testified that she told police she saw something shiny in Stomper's hand during the brawl. Based on this and other evidence implicating Ricardo as a participant in the riot, the defense theory at trial was that Ricardo, not Juarez, was the person who killed Luis Linares.
Ricardo R. did not testify at trial, but testified at the preliminary hearing after being given use immunity. He testified that he was in the area of the riot but stayed in the back of the group and was not involved in the killing.
At the request of Juarez, the preliminary hearing testimony of Ricardo R. was read into the trial record. Prior to the reading of Ricardo's testimony, the defense called Detective Gary Siegel as a witness. Among other subjects, defense counsel questioned Siegel regarding his knowledge of Ricardo's involvement in the riot. Also, defense counsel asked Detective Siegel (1) whether Siegel had "looked into Ricardo [R.'s] background or criminal history, " (2) whether Siegel knew if Ricardo was on probation, and (3) whether Siegel could "explain what probation is." The trial court sustained prosecution relevance objections to all three of these questions. Juarez contends the trial court's rulings were error.
It is a violation of the confrontation clause to prohibit a defendant from "engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby 'to expose to the jury the facts from which jurors... could appropriately draw inferences relating to the reliability of the witness.'" (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680.) In Davis v. Alaska (1974) 415 U.S. 308, testimony by a juvenile witness incriminated the defendant. On cross-examination, the trial court prohibited testimony that the witness was on probation. The United States Supreme Court reversed, concluding that the evidence "was admissible to afford a basis for an inference of undue pressure" because of the witness's "vulnerable status as a probationer, ... as well as [his] possible concern that he might be a suspect in the investigation." (Id. at pp. 317-318, fn. omitted; see also People v. Adams (1983) 149 Cal.App.3d 1190, 1192-1193.)
Not every restriction on a defendant's cross-examination, however, is a constitutional violation. A defendant is guaranteed an opportunity for effective cross-examination, but the trial court retains wide discretion to restrict cross-examination that is repetitive, prejudicial, confuses the issues, or is of marginal relevance. (Delaware v. Van Arsdall, supra, 475 U.S. at pp. 678-679; People v. Cooper (1991) 53 Cal.3d 771, 817.) Moreover, the trial court's discretion extends to exclusion of impeachment evidence regarding a witness's probationary status. (People v. Chatman (2006) 38 Cal.4th 344, 374: People v. Carpenter (1999) 21 Cal.4th 1016, 1050-1051.) Unless the defendant shows that admission of evidence regarding probationary status would have caused a "significantly different impression of [the witnesses'] credibility, " there is no confrontation clause violation. (Ibid.; Van Arsdall, at p. 680.)
Here, the trial court did not abuse its discretion by excluding evidence of Ricardo's probationary status. The evidence was offered to impeach the credibility of Ricardo's preliminary hearing testimony. The questions were asked on direct examination of a defense witness and, clearly, were not intended to undermine the credibility of Detective Siegel.
Ricardo R. became a witness at trial when his preliminary hearing testimony was read to the jury and made subject to impeachment. The defense was seeking to put Ricardo "on trial" as the killer. Testimony regarding Ricardo's probationary status had no significance regarding this claim. Ricardo's credibility was challenged by evidence from other witnesses who testified that he was a member of the Eastside gang and evidence suggesting his culpability for the killing. Nothing in the challenged trial court ruling limited the defense from presenting evidence and arguing that Ricardo was an active and culpable participant in the killing. In addition, the jury was informed that Ricardo had been given use immunity at the preliminary hearing, and was aware that he did not testify at trial. Given its insignificance to the defense theory of the case, Juarez cannot show that the jury's knowledge of his probationary status would have resulted in a significantly different impression of Ricardo's credibility. (Delaware v. Van Arsdall, supra, 475 U.S. at p. 680; People v. Carpenter, supra, 21 Cal.4th at p. 1051.)
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.