Opinion
G053033
07-12-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES L. SPENCER III, Defendant and Appellant.
Appellate Defenders, Inc., Thea Greenhalgh and Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION; NO CHANGE IN JUDGMENT
This court hereby orders that the opinion filed on July 12, 2017, be modified as follows:
1. On page 1, the superior court No. "14NF0706" is deleted and replaced with superior court No. "15NF0706."
This modification does not change the judgment.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. IKOLA, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14NF0706) OPINION Appeal from a judgment of the Superior Court of Orange County, Nicholas S. Thompson, Judge. Affirmed. Appellate Defenders, Inc., Thea Greenhalgh and Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant James L. Spencer III of one count of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) The court sentenced him to the low term of two years plus an additional five years for a serious prior felony under section 667, subdivision (a), for a total of seven years.
All further statutory references are to the Penal Code.
Defendant contends the trial court erred in answering the jury's questions and providing further instruction regarding deliberations when it indicated it was divided. Additionally, defendant argues there was insufficient evidence to support the verdict because the victim's testimony was inherently improbable. We disagree and affirm the judgment.
I
FACTS
Around 7:30 p.m. one evening, Martha Gallegos sat at a bus stop waiting for her husband to pick her up. Defendant, who was about 19 feet away from her, was making insulting comments about Mexicans. Gallegos stood up and turned her back to him. As she did so, someone yelled, "Run, he has a knife." Gallegos turned and saw a knife in defendant's raised fist. Gallegos and two others began to run away as defendant started moving towards them. Defendant ran after them, saying dirty words and swinging the knife. Gallegos was very scared that defendant would kill her.
At some point, Gallegos looked back and saw defendant had slowed to a walk. The closest he got to her before he stopped running was about eight to 10 feet. She stopped running upon reaching a group of people. Someone called the police. By then defendant had turned away and was walking back towards the bus stop. He made movements as "if he closed [the knife] and then . . . put it away."
A police officer arrived and approached defendant, who was sitting on the bus stop bench eating. Defendant appeared to have been drinking, as he had bloodshot, watery eyes and slurred speech. He denied having a knife and said the object in his right front pants pocket was a cell phone, which he used for protection. When defendant attempted to pull away, the officer placed handcuffs on him and discovered the object in that pocket was a folding knife with a locking device.
II
DISCUSSION
A. Trial Court's Response to Jury Question
Although defendant was charged with a single count of aggravated assault with a deadly weapon, the trial court granted defendant's request for a jury instruction on the lesser included offense of simple assault. A few hours after deliberations began, the jury sent the court a note stating: "The jury is divided as to count one. Before we consider a second count [(referring to the lesser included offense)], does the jury have to be unanimous as to 'not guilty'? Or, can the jury unanimously agree to disagree to proceed to the lesser charge without reaching a verdict on[] count one?" The court responded, "No." Defendant contends this response misstates the law, requiring reversal.
We first address the Attorney General's argument defendant forfeited the issue because the court's minute order reflects no objection or request for clarification by defendant even though it shows "[c]ounsel were notified." Defendant contends the forfeiture rule should not apply because the record "does not indicate what that notification was" and "it is likely the only notification was that the jury could not reach a verdict." He analogizes this case to People v. Ross (2007) 155 Cal.App.4th 1033, 1049 (Ross), in which the appellate court declined to apply the forfeiture rule where "[t]he record fails to show that counsel knew how the court intended to respond to the question, let alone that counsel assented to that response, tacitly or otherwise."
The Attorney General responds these claims should be rejected because "[t]he minute entry explicitly states that the jury submitted a question, the text of that question is set forth in the minutes, and the minutes immediately thereafter state that counsel was notified." We agree. Although neither the reporter's transcript nor the minute order reflects any discussion of the jury's question, we presume the court performed its duty under section 1138 and gave its response "in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called." (People v. Sangani (1994) 22 Cal.App.4th 1120, 1138; see Evid. Code, § 664.)
Defendant has offered no reason why this presumption should not apply. At the time of the question, counsel were "on five minute call." We infer that to mean the court required counsel to appear or respond within five minutes of notification by the clerk. The minutes show a lapse of 11 minutes between the time the jury submitted its questions to the time the court responded, which allows sufficient time for both notifying counsel and for counsel to confer with the court.
Nor has defendant cited any evidence to overcome the presumption. Unlike one of the additional cases cited by defendant, People v. Lozano (1987) 192 Cal.App.3d 618, 623-624, where defense counsel objected both upon being notified of the court's intended response to the jury's question and on the record after the jury returned its verdict and was dismissed, the record here contains no indication defense counsel objected when he was notified, or that he subsequently placed any objection on the record. He also did not move for a mistrial. "'The failure of defendant's counsel to object or move for a mistrial upon the court frankly informing him of the court's action might also be construed to be a tacit approval. Approval of the court's action, even though it might have been a technical violation of section 1138 . . . , cures any possible error.' [Citations.]" (People v. Roldan (2005) 35 Cal.4th 646, 729, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
By contrast, in Ross, supra, 155 Cal.App.4th at page 1048, cited by defendant, the record contained evidence that, although the clerk read the jury's question to both counsel over the phone, they were not told of the jury's clarification of its question or of the court's intended response.
The remaining additional cases cited by defendant are inapposite. In People v. Hogan (1982) 31 Cal.3d 815, 848, disapproved on another ground in People v. Cooper (1991) 53 Cal.3d 771, 836, the trial court sent into the jury room all of the exhibits requested by the jury without notifying defense counsel. In this case, the minutes show defense counsel received notice. And in Musladin v. Lamarque (9th Cir. 2009) 555 F.3d 830, 835-842, the trial court notified defense counsel of the jury's question, but before defense counsel arrived, told the jury to "'refer to the instructions.'" (Original capitalization omitted.) On defendant's habeas corpus petition, his "trial counsel averred that, had he been present when the response was formulated, he would have urged the trial court to respond substantively." (Id. at p. 842.) This case does not involve a habeas petition, and no such declaration was presented in the proceedings below.
Even if not forfeited, defendant's contention lacks merit. Defendant argues the court's answer contravenes California law. He relies primarily on Stone v. Superior Court (1982) 31 Cal.3d 503 (Stone) and People v. Kurtzman (1988) 46 Cal.3d 322 (Kurtzman). According to the California Supreme Court in Kurtzman, its decision in Stone, "properly interpreted, simply restricts a jury from returning a verdict on a lesser included offense before acquitting on a greater offense and does not preclude a jury from considering lesser offenses during its deliberations." (Kurtzman, at pp. 324-325.)
Under Stone and Kurtzman, the court correctly answered "no" to both questions: No, the jury did not "have to be unanimous as to 'not guilty'" on the first count, i.e., the charged count, before it considered the "second count," i.e., the lesser included offense. And no, the jury could not "agree to disagree to proceed to the lesser charge [to return a verdict on a lesser included offense] without reaching a verdict on[] count one." The court's response informed the jury it (1) was not precluded from considering the offenses in any particular order but (2) could not return a verdict of not guilty on the lesser charge, by agreeing to disagree, before it reached a verdict on count one. No misstatement of law occurred. B. Instructing Jury on Further Deliberation (CALCRIM No. 3551)
Shortly after the court gave its above response, it called the jury back into the courtroom because it "was concerned about the last note." It then gave the jury supplemental instructions about further deliberations under CALCRIM No. 3551. Defendant asserts this was error because the court did not "first ascertain[] from the jurors that there is a reasonable probability that the jury can agree." But he did not object when the trial court gave the instruction, thereby forfeiting any error. (People v. Neufer (1994) 30 Cal.App.4th 244, 254.) The claim also fails on its merits.
Defendant acknowledges this was not an "Allen-type instruction," referring to Allen v. United States (1896) 164 U.S. 492, where the United States Supreme Court approved the use of a so-called "dynamite charge" because it was designed as a means of "'blasting' a verdict out of a deadlocked jury" and was disapproved for use in California. (People v. Gainer (1997) 19 Cal.3d 835, 844, 848 (Gainer), disapproved on other grounds in People v. Valdez (2012) 55 Cal.4th 82, 163.) --------
A trial court derives its authority to instruct a potentially deadlocked jury from section 1140, which provides, "Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree."
"The trial court is therefore required to determine in its 'sound discretion' whether there is a reasonable probability of agreement by the jury. [Citation.] However, '[t]he court must exercise its power . . . without coercion of the jury, so as to avoid displacing the jury's independent judgment "in favor of considerations of compromise and expediency." [Citations]' [Citations.] [¶] Directing further deliberations is proper where the trial court reasonably concludes that 'such direction would be perceived "'as a means of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered.' [Citation.]" [Citation.]' [Citation.]" (People v. Whaley (2007) 152 Cal.App.4th 968, 980.)
"We review a trial court's 'determination whether there is a reasonable probability of agreement' for an abuse of discretion." (People v. Peoples (2016) 62 Cal.4th 718, 782 (Peoples).) Defendant contends the trial court abused its discretion in determining there was such a probability because it "did not ascertain from the jury any information before reading the supplemental charge and directing them to continue deliberating."
People v. Moore (2002) 96 Cal.App.4th 1105, 1121-1122 (Moore), rejected a similar claim: "Defendant criticizes the trial court for not ascertaining whether there was a reasonable probability the jurors could agree on a verdict before giving them additional instructions. However, section 1140 vests the trial court with discretion to determine whether there is a reasonable probability of agreement among jurors who have reported an impasse. [Citations.] In this case, and presumably because of the relatively brief duration of deliberations conducted by the jurors before they announced they could not reach a verdict on count one, the trial court concluded further deliberations might be beneficial without questioning the jury regarding the impasse. The fact the jury was able to reach a verdict relatively quickly after being further instructed reflects the court properly exercised its discretion."
Here, in like manner, the record shows the jury began deliberating at 11:00 a.m. and broke for lunch at 12:00 p.m., resuming deliberations at 1:30 p.m. Around 3:00 p.m., the court answered "no" to the jury's questions discussed above. Sometime between then and before 4:00 p.m., when the court declared at a recess for the day, the court gave the supplemental instruction. The jury returned a verdict an hour after resuming deliberations the next day. Given the short amount of time of the jury's deliberations, it was not unreasonable for the court to believe further deliberations would be helpful without first asking about the issue. Plus, it already had a sense of the problem given the questions asked when the jury indicated it was divided. As in Moore, the fact the jury returned a verdict within two hours after being further instructed shows the court did not abuse its discretion.
Defendant further argues the court should have questioned "individual jurors as to their belief as to whether further deliberations would be productive." He provides no authority requiring the court to do so. In the cases he cites, the appellate courts suggest the individual polling of jurors about the probability of agreement before the trial court orders a mistrial. (People v. Carter (1968) 68 Cal.2d 810, 815, abrogated on another ground in Gainer, supra, 19 Cal.3d at p. 852; Paulson v. Superior Court of El Dorado County (1962) 58 Cal.2d 1, 7; People v. Disperati (1909) 11 Cal.App. 469, 474.) He argues "there is no reason in logic why . . . the same procedure [should not be used] in determining if a supplemental instruction is necessary because the jury is at an impasse." But "cases are not authority for propositions not considered" (People v. Alvarez (2002) 27 Cal.4th 1161, 1176) and the cases cited by defendant did not consider the issue.
In any event, defendant never asked the trial court to individually poll each juror before giving further instruction and has forfeited any claim the court erred by not doing so. (Bossi v. State of California (1981) 119 Cal.App.3d 313, 319; People v. Dean (1958) 158 Cal.App.2d 572, 578.) Even if he made the request, "a trial court does not abuse its discretion merely by declining to poll the jury as to the likelihood of reaching a unanimous verdict." (Peoples, supra, 62 Cal.4th at p. 782.) The question is whether "the trial court's inquiry was reasonable under the circumstances." (Ibid.)
In Peoples, supra, 62 Cal.4th at page 783, "each successive ballot showed changes in the jurors' individual determinations, suggesting that the jury had not reached an insurmountable impasse." The court held, "Under these circumstances, the trial court conducted a reasonable inquiry into whether it was reasonably probable that further deliberations would be productive. Thus, the trial court did not abuse its discretion in declining to poll the jury as to the probability of reaching a verdict." (Ibid.)
The same applies to this case. The trial court asked the foreperson the number of votes that had been taken thus far and also what the numerical break down was. The foreperson responded that three votes had been taken and that the votes had been eight to four, seven to five, and then back to eight to four. As in Peoples, the changes in the votes suggested the jurors "had not reached an insurmountable impasse." (Peoples, supra, 62 Cal.4th at p. 783.) The inquiries here were reasonable. We conclude no abuse of discretion occurred.
Defendant maintains the abuse of discretion standard does not apply because the trial court erroneously replied "no" to the jury's question and failed to poll the jury. These claims fail for reasons already explained. C. Sufficiency of the Evidence
Defendant's final contention is the evidence was insufficient to support his conviction because Gallegos's testimony was "inherently improbable" and "a physical impossibility." We are not persuaded.
"'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.]" (People v. Maciel (2013) 57 Cal.4th 482, 514-515.)
"[U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.) Moreover, a judgment may be upheld upon one witness's testimony "'even if it is contradicted by other evidence, inconsistent or false as to other portions. [Citations.]'" (People v. White (2014) 230 Cal.App.4th 305, 319, fn. 14.) In sum, we must uphold the judgment "'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]."' [Citation.]" (People v. Cravens (2012) 53 Cal.4th 500, 508.)
Here, Gallegos testified defendant ran after her and then slowed to a walk before turning back to the bus stop bench. Defendant contends her testimony about him running and walking was inherently improbable and physically impossible because the responding officer testified defendant appeared intoxicated with bloodshot, watery eyes, slurred speech, unsteady gate, and unstable stance.
At its core, defendant's argument is nothing more than an assertion that Gallegos lacked credibility due to what he believes are "contradictory" descriptions; it is nothing more than a request that this court reweigh the evidence. That is not the function of an appellate court. (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.) "The inherently improbable standard addresses the basic content of the testimony itself—i.e., could that have happened?—rather than the apparent credibility of the person testifying. . . . In other words, . . . [t]he only question is: Does it seem possible that what the witness claimed to have happened actually happened?" (People v. Ennis (2010) 190 Cal.App.4th 721, 729.)
Defendant presented no evidence a person in the condition described by the officer could not run or walk. Any evidentiary inconsistencies were issues for the jury to resolve, since evaluating conflicts, ambiguities, and weaknesses in testimony is the function of the trier of fact. (People v. Elwood (1988) 199 Cal.App.3d 1365, 1372-1373.) The jury heard testimony from Gallegos and the responding officer and inferably concluded it was possible for defendant to run after her and then walk back to the bus stop bench despite being drunk. Gallegos's testimony was corroborated by her account of seeing defendant put away a folding knife and the officer's recovery of such a knife on defendant's person. There is nothing inherently incredible about the facts described by Gallegos.
III
DISPOSITION
The judgment is affirmed.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. IKOLA, J.