Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. LA022428 Martin L. Herscovitz, Judge.
Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
CROSKEY, Acting P. J.
Jose Nery Lemus appeals from the judgment entered following a jury trial which resulted in his conviction of involuntary manslaughter (Pen. Code, § 192, subd. (b)) and the finding that during the offense he personally used a firearm (§ 12022.5, subd. (a)). The trial court sentenced Lemus to eight years in prison. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. The prosecution’s case.
On October 30, 1995, Wilbur Benjamin Hernandez lived in Apartment No. 201 at 8145 Langdon Avenue in Van Nuys. Hernandez had four roommates: Jose Gonzalez, Marcos Vasquez, Javier Rosales (Angel) and Jose Lemus. Hernandez arrived at the apartment at approximately 6:00 p.m. to see Rosales, Gonzalez and Lemus. Hernandez and the others were getting ready to move out of the apartment. Hernandez, Vasquez and Lemus were going to get an apartment together and the other two men, Rosales and Gonzalez, were going to move to another apartment in the same building. At some point, Hernandez heard Lemus and Rosales discussing something about the move.
At approximately 7:00 p.m., Hernandez went out onto the balcony adjacent to the living room. Rosales and Lemus were still inside in the living room, talking. Hernandez heard Lemus ask Rosales where he was going, then say to Rosales, “ ‘Don’t go. Stay with us.’ ” Hernandez saw Lemus holding what Hernandez believed was a play gun and heard the two men “in a struggle” of some sort. Although neither man sounded angry, Hernandez turned to look inside the living room and saw Lemus pointing what looked like a gun at Rosales. Rosales appeared to be reaching for the gun and “that is why what happened happened.” Hernandez had turned away from the two men when he heard a shot fired. He turned back and saw Rosales on the floor and Lemus walking around him, crying. When Hernandez saw Rosales laying on the floor, he “went into shock.” Gonzalez said he was going to call the police and Lemus, after stating that he was “ ‘sorry, ’ ” left the apartment. Hernandez, who was frightened, left the apartment just a few minutes after Lemus. He returned to the apartment at approximately 4:00 a.m the following morning to find police officers there. Hernandez did not see Lemus again until the 2009 trial.
On October 30, 1995, Gonzalez lived in the Langdon Avenue apartment with Hernandez, Vasquez, Rosales and Lemus. On that evening, all of the men who lived in the apartment were preparing to move. Gonzalez was going to move to the apartment next door with a neighbor and his cousin, Rosales. Gonzalez was in the kitchen of the next door apartment when he heard what sounded like a plate drop. He went back to his old apartment to investigate, opened the door and saw his cousin, Rosales, laying on the living room floor. Lemus, who had a gun in his hand, was grabbing Rosales by the waist and attempting to revive him by jumping up and down. As he did so, Lemus said, “ ‘I just meant to frighten you.’ ” Vasquez and another man, Benjamin, were also in the apartment. Gonzales realized Rosales was dying and he asked, “ ‘What happened?’ ” Lemus responded, “ ‘I didn’t mean to do it, but a shot got away from me[.]’ ” Gonzalez had told Lemus “not to play around, that this could happen[, ]” then went back to his new apartment and telephoned the police. In the meantime, Lemus left the apartment. Gonzalez, who testified at Lemus’s 2009 trial, had not seen Lemus since that day in 1995.
Gonzalez had seen Lemus with a gun before. Approximately seven months earlier, Gonzalez had been in his bedroom when he heard a shot fired. He went into the kitchen to find Lemus, who had a gun in his hand, and two or three other individuals. When he saw Gonzalez, Lemus stated that “he had just fired [the gun] accidentally.”
Richard Levy is a certified public accountant and reserve officer for the Los Angeles Police Department. In 1995, Levy was “in charge of due diligence on homicide warrants.” Levy was “the one in charge of looking for suspects who had murder warrants against them.” Levy worked from an office on the second floor of the Van Nuys Police Station. A homicide detective would give to Levy a package, including information on the suspect and the actual warrant, and he would work on finding the suspect. Levy would begin by reviewing the “murder book” and attempting to get as much information about the suspect as possible. In recent years, Levy has also used “Facebook, ” “Myspace” and “Classmates dot com.” Using the research tools available to him, Levy was able to find Lemus’s previous address, date of birth and social security number. In 1995, Levy would give the information he had gathered to a credit company called Trans-Union. The credit company would then attempt to find a current address for the suspect. More recently, a suspect’s information could be run through a system called “Autotrack” which is a “choice point company.” According to Levy, when you put the social security number in, it will pop up an address for anyone who ever attempted to obtain credit.
In 1995, Levy sent to Trans-Union Lemus’s name and date of birth but received no information. Levy updated whatever information he had and ran a check on Lemus every six months. Finally, in 2008, Lemus was captured in New York.
On July 15, 2008, Balkarran Mangal was working as a police officer on street patrol in Brooklyn, New York. Between 11:00 p.m. and midnight, Mangal walked by a city park which closed for public use at 9:00 p.m. Mangal saw Lemus sitting on a bench inside the park. Mangal approached Lemus, informed him that the park was closed and asked him to leave. The officer told Lemus that normally being in the park after hours required the issuance of a summons. However, if Lemus just left, the officer would “ ‘leave it at that.’ ” However, Lemus refused to leave the park. He told the officer that it was his right to be there and that he was not going to leave. Lemus became aggressive and approached the officer in a threatening manner. When Mangal asked Lemus for some form of identification, Lemus claimed he did not have any. When the officer asked him for his name, Lemus stated that his last name was “ ‘Lucas.’ ” Lemus indicated that his first name was “ ‘Fredy, ’ ” and that his date of birth was January 11, 1974. When Mangal asked Lemus his age, he indicated that he was 32 years old. In part because the age and date of birth did not match and in part because Lemus first indicated that he lived in California, then gave the officer an address in North Carolina, Lemus was taken into custody and escorted to the 90th precinct. After further investigation regarding Lemus identification, Mangal’s supervisor contacted Rob Bubb of the Los Angeles Police Department.
Los Angeles Police Detective James Nuttall has worked in the homicide division for approximately five years. Nuttall was assigned the task of extraditing Lemus from New York to Los Angeles. On August 9, 2008, Nuttall flew to New York and appeared in the New York court for the “transfer of custody from the New York City Police Department to the LAPD.” After a hearing, custody was transferred from the New York Police Department to Detective Nuttall, who escorted Lemus back to Los Angeles.
Susan Selser is a physician in the Los Angeles County Department of the Coroner. On November 1, 1995, Selser performed an autopsy on the body of Angel Rosales. Selser found that the cause of death was a gunshot wound to the chest. The bullet had gone through the aorta, causing loss of blood pressure and bleeding, punctured the lung, from which there was also bleeding, then passed through the spinal cord.
b. Defense evidence.
Lemus testified that on May 15, 1995, he was “convicted of commercial burglary in Los Angeles County” and granted probation for the offense.
In October of 1995, Lemus was living in an apartment with Gonzalez, Vasquez, Hernandez and Rosales. The apartment had been rented by Gonzalez and the five men had shared it for approximately eight months. In general, all of the men got along. In particular, Lemus had never had an argument with Rosales. In mid-October, Lemus moved out of the apartment and went to New York where his brother and several aunts and cousins live. Lemus drove to New York with a friend, in the friend’s car, and paid for his expenses with cash. In 1995, Lemus had neither a cell phone nor any credit cards. Lemus was not in the Langdon Avenue apartment on October 30, 1995 when Rosales was shot. He has never owned a gun and did not shoot Rosales.
When he moved to New York, Lemus used the name “Jose Nery Lemus.” During the years he lived in New York, Lemus had obtained credit cards, opened a bank account, worked and filed tax returns under that name.
On the night he was in the park in Brooklyn, Lemus had helped a friend move. He and the friend were resting by sitting on the park bench. He had not seen a sign indicating that the park was closed. When confronted by the officer, Lemus and his companion stood up, Lemus apologized and said, “ ‘We’re leaving right now.’ ” In response, the officer told Lemus to “ ‘sit down’ ” and not to go anywhere. When Lemus told the officer that he was carrying no identification, the officer told Lemus that he was going to take Lemus into the station.
After Lemus was taken to the station, officers went to Lemus’s car and retrieved some paperwork and his wallet. When Lemus asked to make a telephone call, an officer took down the number, called it from a phone down the hall, then returned to the area where Lemus was being held and told Lemus that no one had answered.
Claudia Ramirez is one of Lemus’s distant cousins. Ramirez met Lemus in New York in 1997 when she first came to this country. She now lives in New York and, from 2001, Lemus lived there with her.
Susan Stephans is an investigator with the Office of the Public Defender. During the week before Lemus’s trial, she was contacted by defense counsel and asked to “run a credit report for Mr. Lemus.” Stephans requested a credit report for Jose N. Lemus through Experian, a credit reporting agency. The report indicated Lemus had lived at two different addresses in New York and one in Los Angeles. The report also indicated that Lemus had six “current lines of credit[, ]” the oldest of which was from 2006.
It was stipulated that “Detective Daniel Enriquez, of the Los Angeles Police Department, be deemed to have taken the witness stand, placed under oath and testified as follows: [¶] That on the evening of October 30th, 1995, he interviewed Jose Gonzalez regarding the shooting that had taken place at 8145 Langdon Avenue, Apartment [No.] 201; and, in that statement, Mr. Gonzalez did not mention that Jose Lemus said to him that he only meant to frighten the victim. The word ‘frighten’ was not used by Mr. Gonzalez. [¶] Mr. Gonzalez, at first, mentioned that Mr. Lemus followed him out the door immediately and left; however, later in his statement, he said that he saw Jose look at the gun, then put it in his waistband. Mr. Lemus then ran into his bedroom and closed the door. Mr. Gonzalez then left to call the police and, when he went back, the defendant was gone. [¶] Otherwise, Mr. Gonzalez’s testimony in court was consistent with his statement on the night of the shooting, including Mr. Gonzalez stating that Mr. Lemus had guns before, and that he shot a.380 round into the ceiling about five months ago[.]”
Claudia Ramirez is Lemus’s distant cousin. She had known Lemus since 1997 and had been living with him in Long Island, New York since 2001. Ramirez knew Lemus as “Jose N. Lemus” and knew that at his jobs he used that name. During the entire time that Ramirez knew Lemus, he never told her that he was wanted for murder.
2. Procedural history.
Following a preliminary hearing, on April 6, 2009 Lemus was charged by information with the murder of Javier Rosales in violation of section 187, subdivision (a) (count 1), and involuntary manslaughter in violation of section 192, subdivision (b), a felony (count 2). It was further alleged, as to counts 1 and 2 that Lemus personally used a handgun within the meaning of sections 1203.06, subdivision (a)(1) and 12022.5, subdivision (a). The trial court denied Lemus’s section 995 motion to set aside the count alleging second degree murder.
During jury voir dire, one of the prospective jurors addressed the court. The following colloquy then occurred: “Prospective Juror 4: The defense said something that I’m not sure I understand. I want to ask the question to make sure I didn’t do something wrong. You told us last night we couldn’t talk to anybody on the panel, anybody in here, and couldn’t talk to anybody else about it, so I didn’t; but you didn’t say we couldn’t Google the defendant, which I did. And she asked one of the other jurors that––that if we had––if we had any foreknowledge––[¶] The Court: You know, Juror [No.] 4, I think you’re in direct violation of a court order not to go on the internet. [¶] Prospective Juror 4: I–– [¶] The Court: I think you should go outside, wait outside, and we’ll have a hearing about your conduct later in the day. Go outside. Have a seat on the bench. If you have a lawyer, I want you to call him, have him come here with you.” Later, when the trial court decided to take a 15-minute break in the proceedings, the court instructed the jurors: “I trust no one will have contact with juror number four, who will be out there for the rest of the day, at least.”
After the prosecution presented its case, Lemus made a motion pursuant to section 1118.1 for a judgment of acquittal as to the murder charge. The court determined there was sufficient evidence to submit the question to the jury. The court stated: “The issue for the jury to decide is whether there is an intentional act. I think if they were to find an intentional act, that would be supported by the evidence. If they would find not an intentional act, that would be supported by the evidence, also. And they are the finders of fact.”
During deliberations, the jury requested that the testimony of Hernandez and the stipulation between the parties be read back to them. Lemus waived his right to be present while the court reporter read the requested material to the jury.
On September 9, 2009, the jury found Lemus not guilty of the charge of murder in the second degree. The jury found Lemus guilty of the crime of involuntary manslaughter in violation of section 192, subdivision (b) as charged in count 2 of the information. The jury further found that, in the commission of the offense, Lemus personally used a firearm within the meaning of section 12022.5, subdivision (a).
At sentencing proceedings held on September 29, 2009, Lemus admitted being in violation of probation “by not reporting on [his 1995] burglary [conviction] out of San Fernando[.]” The trial court determined that, since Lemus had failed to report for 13 years, his probation was “permanently revoked.” The court, after looking at the original probation report and considering the nature of the crime, chose to impose the middle term of two years in state prison, the term to run concurrently with that imposed for his conviction of manslaughter, then granted Lemus credit for 443 days actually served and 220 days of good time/work time.
With regard to Lemus’s conviction of manslaughter, the trial court indicated that “considering the fact that on the defendant’s last grant of probation, he was at large for some 13 years, I do not consider him to be a good candidate for probation, so probation is denied.” The court continued: “In selecting the term for involuntary manslaughter, being two years, three years, or four years, the court has considered the following factors: one, he was on probation at the time he committed this offense; two, his criminal history indicates increasing seriousness, being––having been previously convicted of three misdemeanors, and then the burglary of the automobile, and now the manslaughter case. So, considering those factors, the court selects the high term of four years in state prison.” For Lemus’s use of a firearm during the offense, the trial court imposed the middle term of four years. In total, Lemus was sentenced to eight years in state prison.
The court determined Lemus was entitled to presentence custody credit for 443 days actually served and 15 percent, or 66 days, of good time/work time. With regard to fines, the trial court ordered Lemus to pay an $800 restitution fine (§ 1202.4, subd. (b)), a stayed $800 parole revocation restitution fine (§ 1202.45), a $30 court security fee (§ 1465.8, subd. (a)(1)) and a $30 criminal conviction assessment (Gov. Code, § 70373).
Lemus filed a timely notice of appeal on September 29, 2009.
This court appointed counsel to represent Lemus on appeal on December 30, 2009.
CONTENTIONS
After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record. By notice filed April 29, 2010, the clerk of this court advised Lemus to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. Lemus filed a supplemental brief on May 20, 2010, in which he asserted the prosecutor committed misconduct, the trial court erred when it allowed evidence of a prior incident involving Lemus and a gun, the trial court erred when it denied Lemus’s section 995 motion and a juror committed misconduct requiring reversal.
1. Prosecutorial misconduct.
Lemus claims the prosecutor committed misconduct during the questioning of Hernandez and closing argument. The contention is without merit. “The law governing prosecutorial misconduct is well established. ‘Conduct by a prosecutor that does not violate a court ruling is misconduct only if it amounts to “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury” [citations] or “is so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process” [citation].’ ” (People v. Kennedy (2005) 36 Cal.4th 595, 617-618, overruled in part on another ground in People v. Williams (2010) 49 Cal.4th 405, 459; People v. Silva (2001) 25 Cal.4th 345, 373.) “A finding of misconduct does not require a determination that the prosecutor acted in bad faith or with wrongful intent. [Citation.] To preserve a claim of prosecutorial misconduct for appeal, a defendant must object and seek an admonition if an objection and admonition would have cured the harm. [Citations.]” (People v. Kennedy, supra, at p. 618.) Here, nothing in either the questioning of Hernandez or the giving of closing argument amounted to deceptive or reprehensible conduct on the part of the prosecutor. Moreover, although defense counsel objected to some of the prosecutor’s questions, the objections were not based on the fact that he was committing misconduct.
2. Evidence of a prior incident involving a gun.
Lemus next asserts the trial court erred by allowing evidence of another incident involving the use of a gun. He refers to the incident when Lemus was in the kitchen and fired the gun accidentally.
Evidence Code section 352 provides that “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” In the present case, the trial court reasonably determined that the evidence indicating Lemus had previously fired the gun in the apartment was more probative than prejudicial.
3. Lemus’s section 995 motion.
After the preliminary hearing, Lemus made a motion to dismiss the count alleging second degree murder pursuant to section 995. Lemus argued there was insufficient evidence to support such a charge.
Section 995, subdivision (a), provides in relevant part: “[T]he indictment or information shall be set aside by the court in which the defendant is arraigned, upon his or her motion, in either of the following cases: [¶]... [¶] (2) If it is an information: [¶] (A) That before the filing thereof the defendant had not been legally committed by a magistrate. [¶] (B) That the defendant had been committed without reasonable or probable cause.”
“Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” (§ 187, subd. (a).) Section 188 provides: “Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. [¶] When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice.” Here, there was sufficient evidence from which a jury could have found Lemus acted with implied malice. Accordingly, it was not improper to charge him with second degree murder. More importantly, Lemus suffered no prejudice. After hearing all the evidence, the jury found him guilty, not of murder, but of involuntary manslaughter.
4. Juror misconduct.
During voir dire, a prospective juror admitted that he had “Googled” the defendant on the internet the night before. After the jury was selected and trial was to begin, defense counsel addressed the trial court and stated: “After just thinking on the matter, I do think, for purposes of making a record, that I do need to move for a mistrial based upon juror number four’s statement that he was Googling this case. [¶] I’m not so much concerned about what he said, but the inference is that––that it may draw in the jury’s mind is that there is information on the internet on this case. And it’s sort of like a bell that can’t be unrung....” The trial court responded: “I don’t know why you didn’t make that motion before jeopardy attached. Nevertheless, your motion is denied. There’s lots of cases where there’s information on the internet or T.V. or television, and jurors follow the court’s rules and orders that say, ‘don’t research the case. Decide the case based upon the evidence and the law.’ I assume that this jury will be able to follow the court’s instructions.”
Lemus asserts the trial court should have granted defense counsel’s motion for a mistrial. The contention is without merit. “A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and [appellate courts] use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.” (People v. Bolden (2002) 29 Cal.4th 515, 555.) Here, the trial court made it very clear that it was improper for a juror to use the internet to attempt to obtain information about the defendant or the trial and it does not appear that the defendant was irreparably damaged by the juror’s conduct. The trial court properly exercised its discretion when it denied Lemus’s motion for a mistrial.
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
We concur: KITCHING, J.ALDRICH, J.