Opinion
C085115
11-19-2018
THE PEOPLE, Plaintiff and Respondent, v. KANE MICHAEL THOMPSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE009089)
A jury convicted defendant Kane Michael Thompson of first degree murder (count one) and second degree robbery (count two). The jury found true the special circumstance that the murder was committed during the commission of a robbery. (Pen. Code, § 190.2, subd. (a)(17)(A).) The jury found not true the allegations, with respect to both counts, that defendant personally and intentionally discharged a firearm causing great bodily injury or death. (§ 12022.53, subd. (d).) Based on his conviction for count one, the trial court sentenced defendant to the mandatory lesser sentence for special circumstance murder, life imprisonment without parole. (§ 190.2, subd. (a).)
Undesignated statutory references are to the Penal Code.
On appeal, defendant argues: (1) the trial court's supplemental instruction to the deadlocked jury violated his rights under the state and federal Constitutions to trial by jury and due process of law; (2) the trial court violated the same constitutional rights by permitting alternate jurors in the jury room during deliberations; (3) his sentence amounts to cruel and unusual punishment; and (4) sentencing error. We shall remand for modification of defendant's sentence; in all other respects, we shall affirm the judgment.
I. BACKGROUND
A. Robbery and Shooting
Nicholas Jaffray regularly sold marijuana to medical marijuana dispensaries. On May 7, 2016, he had two pounds of marijuana packaged in separate bags inside a book bag or satchel that he was looking to sell. He was financially in bad shape and needed cash. Nicholas told his friend, Robert, that the dispensary he visited did not purchase the marijuana, but he met a man there with a delivery service who was interested in buying. The man gave Nicholas a business card and Nicholas waited at Robert's house for a phone call. Nicholas and the man exchanged both calls and text messages. The man texted Nicholas the address for where they would meet. Nicholas told Robert they were going to a gated community.
Nicholas drove. The address was actually for an apartment complex, and the complex had only one way in and one way out. It was getting dark. Robert told Nicholas it did not feel right. Robert looked at the business card and noticed that, while the card was for a delivery service Robert thought he had heard of, there was a handwritten phone number on the card. The man told Nicholas where to go inside the apartment complex. Nicholas drove through the complex to the parking lot in the back where it dead ended. The area was not well lit.
After about five minutes passed, defendant approached the vehicle and spoke with Nicholas. Defendant got into the back seat, and Nicholas handed him one of the bags of marijuana. Defendant did not close the door. This gave Robert the impression defendant might take the marijuana and run. Defendant asked what else Nicholas had. When Nicholas moved for the other bag, a second man approached with a long, black gun. Robert yelled at Nicholas that they should leave because they were about to be robbed. Nicholas put the car in reverse and crashed into something. Then, Nicholas put the car in drive and tried to pull out of the apartment complex. Robert looked back and defendant had pulled out a semiautomatic handgun. Defendant cocked the gun. Robert yelled at Nicholas to "give him what he want." Neither Robert nor Nicholas were armed. The second man with the gun was screaming, "shoot him." Robert described defendant as brandishing the gun between Robert and Nicholas. Defendant said, "don't get killed over a pound of weed," and then a shot went off. Defendant jumped out of the moving car.
Nicholas was unresponsive. Robert moved Nicholas's body into the passenger seat and climbed into the driver's seat. When Robert could not get the car in drive, he jumped out and ran to a nearby convenience store. When he looked back, he saw what appeared to be someone going inside the vehicle.
A witness testified that less than a minute after Robert took off running, a black car pulled up. A passenger got out of the car holding a handgun and said, "you're lucky I don't shoot you motherfucker." He looked in the driver's side of the abandoned vehicle, and then opened the back door and pulled out a backpack that he took with him back to the black car. The witness recognized the car because it had been coming and going from the apartment complex recently, usually with two men inside it: One of the men was defendant. The witness had not seen the men going to or from any particular apartment. The witness could not say whether defendant was in the car the night of the shooting.
A forensic pathologist opined that Nicholas died as the result of a gunshot wound. Law enforcement found an expended .45-caliber Winchester auto shell casing on the rear floorboard of the vehicle Nicholas was in, partially under the driver's seat.
Defendant was arrested the day after the shooting. The front of the left forearm of his shirt tested positive for gunshot residue.
Defendant's cell phone records indicate that after Nicholas texted him, "I'm here," defendant's phone was powered off.
Defendant testified at trial and denied committing a robbery or intentionally killing Nicholas. Defendant said that after he purchased the first pound of marijuana and asked for a second, he saw a man with a camouflage jacket coming at the vehicle and pointing a shotgun. As Nicholas threw the vehicle in reverse, defendant pulled out his gun. Defendant said he was not going to get killed over a pound of weed. Defendant demanded to get out of the car and cocked his gun. Nicholas said, "fuck you," and appeared to be reaching underneath his seat. Defendant assumed Nicholas was reaching for a gun. Defendant decided to jump out of the car. As he went to jump, the car hit a speed bump and his gun went off. He did not mean to pull the trigger and did not know if the bullet hit anything. B. Jury Deliberations
The clerk's minutes for May 25, 2017, reflect that "[t]he jury retired to the jury deliberation room to commence deliberations at 3:00 p.m." The court said the following to the alternate jurors after the jury left:
"The jury is now beginning its deliberations, but you are still alternate jurors and are bound by my earlier instructions about your conduct. [¶] Do not talk about the case or about any of the people or any subject involved in it with anyone, not even your family or friends and not even with each other. Do not have any contact with the deliberating jurors. Do not decide how you would vote if you were deliberating. Do not form or express any opinion about the issues in this case, unless you are substituted for one of the deliberating jurors. [¶] And, ladies, it is my procedure in this department that should the jury request[] any readback of testimony, the four of you would be brought into the jury deliberation room at the same time so that you can also hear the readback of the testimony. [¶] So to the extent that you can be within 15 or 20 minutes of the courthouse, that's fine and you can leave. But if you can't, then you are going to need to stick around and let us know how to get a hold of you. So if you wouldn't mind just placing your notepads on your chairs, if you would just please step out in the hallway momentarily, [the court clerk] will be with you and we'll get your contact information. Thank you."
No party objected to the court's practice. Counsel stipulated that if the jury was unable to reach a verdict at the close of any regular court session and further deliberations were desirable, the court would permit the jury to separate and return after the lunch hour at 1:30 p.m., or after the evening recess at 9:00 a.m. on the following business day without the presence of counsel or the defendant. The court asked counsel to "stipulate that in the event that the jury requests a rereading of testimony, the Court may order the court reporter to enter the jury deliberation room for the reading of the testimony out of the presence of the attorneys, the parties and the Court provided that the reporter ensures that there is no discussion in the jury deliberation room during the rereading of the testimony, and that this procedure will not be used unless and until each of the attorneys is advised of the requests and has an opportunity to comment on the request, and that if there is a disagreement as to the response of the request, such matter will be placed on the record." Counsel agreed.
The clerk's minutes state that, the following morning "[a]t 9:00 a.m.[,] the jury was assembled outside of the courtroom and was escorted into the deliberation room by [the bailiff], to resume their deliberations." At 3:00 p.m., the court received a communication from the jury stating that they were unable to reach a verdict. At 3:40 p.m., the jurors and alternate jurors were summoned into the court room. Juror No. 10 was excused from the jury based on vacation plans that the court was previously aware of. Alternate No. 2 was substituted in for Juror No. 10, and the jury was instructed to disregard all past deliberations and begin deliberations again as though the earlier deliberations had not taken place. The jurors were then excused for the weekend.
The clerk's minutes for the next day of deliberations, May 30, 2017, begin, "The above entitled matter came before this Court for jury trial with the plaintiff, the defendant, and the above named counsel present. [¶] The jurors and alternate jurors were present and and [sic] escorted into the jury deliberation room to resume their deliberations." At 10:55 a.m., the jury requested a read back. At 11:22 a.m., a court reporter entered the deliberation room and began the read back. The read back concluded at 11:49 a.m. At noon, the jury was released for lunch. "At 1:30 p.m.[,] the jury was escorted back into the deliberation room to resume their deliberations." At 3 p.m., the jury sent a note explaining that "after further deliberation and multiple votes we are unable to reach a unanimous verdict."
At 3:10 p.m., the jurors were brought into the courtroom and the court questioned the foreperson in the presence of counsel. The foreperson reported that the jury had taken three votes, all of which were 11-1 on both counts. The court explained to the jury that because they had not yet deliberated for an entire day, the court would give them additional instructions to consider. The trial court then gave a supplemental instruction taken from our decision in People v. Moore (2002) 96 Cal.App.4th 1105 (Moore):
"Ladies and gentlemen, what I'm going to do now because you have not deliberated an entire day, I'm going to be giving you some additional instructions that I want you to consider. What I'm going to do right now, ladies and gentlemen, is I have further instructions and directions to give you as to Count 1 and Count 2.
"It has been my experience on more than one occasion that a jury which initially reported it was unable to reach a verdict was ultimately able to arrive at verdicts on one or more of the counts before it. To assist you in your further deliberations, I'm going to further instruct you as follows:
"Your goal as jurors should be to reach a fair and impartial verdict if you are able to do so based solely on the evidence presented and without regard for the consequences of your verdict regardless of how long it takes you to do so. It is your duty as jurors to carefully consider, weigh, and evaluate all of the evidence presented at the trial, to discuss your views regarding the evidence[,] and to listen to and consider the views of your fellow jurors.
"In the course of your further deliberations[,] you should not hesitate to reexamine your own views or to request your fellow jurors to reexamine theirs. You should not hesitate to change a view you once held if you are convinced it is wrong or to suggest other jurors change their views if you are convinced they are wrong.
"Fair and effective jury deliberations require a frank and forthright exchange of views. As I previously instructed you, each of you must decide the case for yourself and you should do so only after a full and complete consideration of all of the evidence with your fellow jurors. It is your duty as jurors to deliberate with the goal of arriving at a verdict on the charges if you can do so without violence to your individual judgment.
"Both the People and the defendant are entitled to the individual judgment of each juror. As I previously instructed you, you have the absolute discretion to conduct your deliberations in any way you deem appropriate. May I suggest that since you have not been able to arrive at a verdict using the methods that you have chosen, that you consider to change the methods you have been following[,] at least temporarily[,] and try new methods.
"For example, you may wish to consider having different jurors lead the discussion for a period of time or you may wish to experiment with reverse role playing by having those on one side of an issue present and argue the other side's position and vice versa. This might enable you to better understand the others' positions.
"By suggesting you should consider changes in your methods of deliberations, I want to stress I am not dictating or instructing you as to how to conduct your deliberations. I merely find that you may find it productive to do whatever is necessary to ensure each juror has a full and fair opportunity to express his or her views and consider and understand the views of the other jurors.
"I also suggest that you reread instructions 200 and 3550. These instructions pertain to your duties as jurors and make recommendations on how you should deliberate. The integrity of a trial require[s] that jurors at all times during their deliberations conduct themselves as required by the instructions. Instructions 200 and 3550 define the duties of a juror. The decision the jury renders must be based on the facts and the law. You must determine what facts have been proved from the evidence received in the trial and not from any other source. [¶] A fact is something proved by the evidence or by stipulation. Second, you must apply the law I state to you to the facts as you determine them and in this way arrive at your verdict. You must accept and follow the law as I state it to you regardless of whether you agree with the law. If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions.
"Instruction 3550 defines the jury's duty to deliberate. The decisions you make in this case must be based on the evidence received in the trial and the instructions given by the Court. These are the matters this instruction requires you to discuss for the purpose of reaching a verdict.
"Instruction 3550 also recommends how jurors should approach their task. You should keep in mind the recommendations this instruction suggests when considering the additional instructions, comments, and suggestions I have made in the instructions now presented to you.
"I hope my comments and suggestions may have some assistance to you. I'm going to order that you continue your deliberations at this time. If you have any other questions, concerns, requests, or any communications you desire to report to me, please put those in writing on the form my bailiff will provide to you. Have them signed and dated by your foreperson or any other juror and then please notify the bailiff."
The minutes for the following day, May 31, 2017, begin, "The above entitled matter came before this Court for further jury deliberations. [¶] At 9:05 a.m.[,] the jurors and alternate jurors were assembled outside of the deliberation room and escorted in by [the bailiff ]and deliberations resumed." At 9:25 a.m., the court received a request for read back of testimony. The read back lasted from 9:50 a.m. until 10:40 a.m. At 11:30 p.m., the jury indicated they had reached verdicts. At noon, "the Court, counsel and the defendant were reassembled in the courtroom. The jury was called into the courtroom. The alternate jurors were present."
II. DISCUSSION
A. Supplemental Instruction to Continue Deliberation
Defendant contends the trial court's instruction to the deadlocked jury violated his rights under the state and federal Constitutions to trial by jury and due process of law. He essentially invites this court to revisit its decision in Moore, supra, 96 Cal.App.4th 1105, that approved the instruction given here to the deadlocked jury. He also "asks this Court to consider publishing an opinion that repudiates the firecracker instruction and admonishes trial courts to instead use CALCRIM No. 3551, which is 'strongly encouraged' by Rules of Court, rule 2.1050(e)." We decline these invitations.
"In Allen v. United States (1896) 164 U.S. 492, 501-502 [17 S.Ct. 154, 157, 41 L.Ed. 528, 531], the Supreme Court approved a charge (the Allen charge) which encouraged the minority jurors to reexamine their views in light of the views expressed by the majority, noting that a jury should consider that the case must at some time be decided. In People v. Gainer (1977) 19 Cal.3d 835 [(Gainer)], however, our state high court disapproved of Allen in two respects. The Gainer court found 'the discriminatory admonition directed to minority jurors to rethink their position in light of the majority's views' was improper, inasmuch as, by counseling minority jurors to consider the majority view, whatever it might be, the instruction encouraged jurors to abandon a focus on the evidence as the basis of their verdict. [Citation.] The second issue with which the Gainer court took issue was the direction the jury ' "should consider that the case must at some time be decided," ' noting such a statement was inaccurate because of the possibility the case might not be retried. [Citation.] In other words, it is improper to instruct the jury in language that suggests that if the jury fails to reach a verdict the case necessarily will be retried." (Moore, supra, 96 Cal.App.4th at pp. 1120-1121.)
Defendant argues the supplemental jury instruction was coercive. He asserts the timing of the instruction "carried a strong implicit message that the jury should reach a verdict." While "[t]here is always a potential for coercion once the trial judge has learned that a unanimous judgment of conviction is being hampered by a single holdout juror," the mere giving of supplemental instructions at this time is insufficient. (People v. Sheldon (1989) 48 Cal.3d 935, 959, 960.) We must look to the specifics of what the court actually said. (See id. at p. 960 ["[T]he potential for coercion was not realized by anything said or done by the court in this case"].)
To that end, defendant challenges the language of the court's supplemental instruction. He asserts the phrase "[y]our goal as jurors should be to reach a fair and impartial verdict" suggested a verdict was necessary. Defendant also contends the suggestion that the jury try other methods of deliberations implied that failure to reach a verdict was unacceptable. Similarly, he asserts the supplemental instruction implied that the jury was expected to reach a verdict because other juries had done so in similar situations. Defendant also challenges the fact that the court "ordered" the jury to continue deliberations. We disagree with defendant's view of the instruction.
In Moore, we concluded the same instruction as given here did not violate Gainer. Our discussion there is equally applicable to defendant's claims here. We explained the instruction did not exert a coercive effect on jurors; rather, "the court instructed that the 'goal as jurors should be to reach a fair and impartial verdict if you are able to do so based solely on the evidence presented and without regard to the consequences of your verdict [or] regardless of how long it takes to do so.' " (Moore, supra, 96 Cal.App.4th at p. 1121.) The instruction "directed the jurors to consider carefully, weigh and evaluate all of the evidence presented at trial, to discuss their views, and to consider the views of their fellow jurors." (Ibid.) We noted the instruction told the jurors it was their duty to deliberate with the goal of arriving at a verdict " 'if you can do so without violence to your individual judgment.' " (Ibid.) "[T]he jury was never directed that it was required to reach a verdict, nor were any constraints placed on any individual juror's responsibility to weigh and consider all the evidence presented at trial." (Ibid.)
Nor do we think it significant that the instruction concluded with an "order" to continue deliberations "at this time." Such order did not suggest to the jury that it had to reach a verdict, only that at this point it should resume trying to do so.
As to defendant's assertion that the jury should have been specifically instructed that minority jurors need not abandon their viewpoints to accede to the majority view, we disagree. The jury was told that "each of you must decide the case for yourself" and that they should "deliberate with the goal of arriving at a verdict on the charges" only if they could do so "without violence to your individual judgment." In addition, the trial court referred the jury to the previous instructions regarding the jury's duties, which included CALCRIM No. 3550's instruction to "decide the case for yourself" and not to "change your mind just because other jurors disagree with you." This was sufficient.
We reject defendant's claims and continue to approve the Moore supplemental instruction. The trial court did not err in giving this instruction. B. Presence of Alternate Jurors
Defendant argues his conviction must be reversed because the trial court violated his state and federal rights to trial by jury and to due process by permitting alternate jurors in the jury room during deliberations on May 30 and May 31, 2017. As a threshold matter, the parties dispute whether the alternate jurors were actually permitted into the deliberation room at these times. We note the minute orders for these days are not a model of clarity. The May 30 order contains a typographical error at a critical juncture: "The jurors and alternate jurors were present and and [sic] escorted into the jury deliberation room to resume their deliberations." Because the second "and" could have been the result of two clauses that were put together too hastily, it undermines our confidence in the accuracy of the overall message. The minutes for May 31 begin with the assertion that "the jurors and alternate jurors were assembled outside of the deliberation room and escorted in by [the bailiff ]and deliberations resumed." Yet, after the jury indicated it had reached its verdict, "[t]he jury was called into the courtroom. The alternate jurors were present." This sentence indicates that the jury and the alternate jurors had actually been apart. The fact that defense counsel did not object at any point suggests nothing appeared amiss. The People contend the minute entries were typographical errors. The People posit that the court would not have instructed the alternate jurors they could leave the court room and not to have contact with the deliberating jurors if it was going to allow them into the deliberation room during deliberations. Additionally, the foreperson reported that all votes were 11-1, indicating 12 jurors were deliberating and voting apart from the alternates. The People also assert "that the alternate jurors were sent back with the seated jurors does not mean that they entered the jury room itself and stayed there." The People contend the record supports a finding that the alternate jurors were only in the deliberation room during read backs. Defendant counters that the clerk's minutes speak for themselves: "It may be that errors by the court's staff resulted in alternates entering the deliberation room in violation of the court's desire that not occur." Defendant also notes the alleged typographical errors happened on two separate occasions, and the clerk used different language on each occasion. Defendant has the better argument. It appears from the clerk's minutes that twice the alternate jurors were permitted entry into the deliberation room for an unknown length of time outside of read backs.
The reporter's transcript contains no record of the relevant portion of either day.
We turn now to defendant's assertion that the presence of alternate jurors in the deliberation room necessitates reversal of his conviction.
Formerly, California law on this point clearly supported defendant's position. In People v. Britton (1935) 4 Cal.2d 622 (Britton), our Supreme Court held that the presence of an alternate juror in the jury room during deliberations was reversible error, even though the court instructed the alternate not to express any opinion or participate in the deliberations. (Id. at p. 623.)
The court based its holding on People v. Bruneman (1935) 4 Cal.App.2d 75, which, it said, decided "this identical question" and "determines the question." (Britton, supra, 4 Cal.2d at pp. 622-623.) That decision had held that the presence of alternate jurors during jury deliberations was reversible error per se even though defense counsel stipulated to the arrangement. In Bruneman, the court said, "the presence in the jury room of the 'alternate jurors', to whom the case had not been submitted for decision, was an invasion of the defendant's right of trial by jury. . . . [T]his was an error so far destructive to the invaded right, that the error could not by mere consent be rendered harmless." (Bruneman, supra, at p. 81.) In Bruneman, counsel had stipulated to the presence of the alternate jurors in the jury room during their deliberations. (Id. at p. 77.) In Britton, counsel had not stipulated. The law mandated reversal in either case. These decisions were followed in People v. Adame (1973) 36 Cal.App.3d 402.
The landscape changed with our Supreme Court's decision in People v. Valles (1979) 24 Cal.3d 121 (Valles). There, the court considered as a matter of first impression whether the presence of alternate jurors in the jury room was an invasion of the right to trial by jury in such a vital way that the error could not be cured by the consent of the defendant's counsel. (Id. at pp. 124-125.) The court concluded that "the presence of alternates in the jury room during deliberations is not necessarily detrimental to a defendant's right of trial by jury and that defense counsel may stipulate to such procedure." (Id. at p. 124.) The court explained that there was no showing of any participation by the alternate jurors, that their presence had any effect on the other jurors, or that there was any prejudice. (Id. at p. 127.) Thus, the court held that "a defendant may not complain on appeal of the presence of an alternate juror in the jury room during deliberations when his counsel stipulates to the procedure." (Ibid.)
Here, to the extent the alternates were present in the jury room for the read back, it was pursuant to what was in effect a stipulation by the parties. But defendant "argues the trial court did more than simply permit alternate jurors to accompany the deliberating jury during read back of testimony." As to this, counsel did not stipulate. The People contend defendant forfeited his claim by failing to object. " 'No procedural principle is more familiar to this Court than that a constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' " (U.S. v. Olano (1993) 507 U.S. 725, 731 (Olano).) Defendant asserts nothing in the record indicates his counsel was aware that the alternate's entrance into the jury deliberation room occurred. But the clerk's minutes for May 30, 2017, indicate counsel was present when the alternate jurors were apparently escorted into the deliberation room. Thus, it appears defendant has forfeited his claim.
But assuming there was no forfeiture, the end result would be the same. Defendant posits that "in the absence of . . . a stipulation, Britton continues to hold it is error to permit alternates in the deliberation room with deliberating jurors." While we agree that would be error, Valles was also significant because it held that "the presence of alternates in the jury room during deliberations is not necessarily detrimental to a defendant's right of trial by jury." (Valles, supra, 24 Cal.3d at p. 125.) The dissent also recognized that a per se rule of reversal is no longer valid. (Id. at pp. 131-132 (dis. opn. of Mosk, J.).) Even when alternates are unintentionally permitted into a jury deliberation room, "it is clear that the modern view after Valles is that this type of error is 'not necessarily' prejudicial." (Brassfield v. Moreland School Dist. (2006) 141 Cal.App.4th 67, 72 (Brassfield).)
The court's conclusion in Valles, supra, 24 Cal.3d at p. 125, that "the presence of alternates in the jury room during deliberations is not necessarily detrimental to a defendant's right to trial by jury" is consistent with the United States Supreme Court's later opinion in Olano, in which the Supreme Court assumed without deciding that Federal Rule of Criminal Procedure 24(c) (18 U.S.C.) (rule 24(c)), which, at that time, required alternate jurors to be dismissed at the commencement of deliberation, was nonwaivable. (Olano, supra, 507 U.S. at pp. 730, 737.) The Supreme Court reversed a finding that the presence of alternate jurors during jury deliberations violated rule 24(c) and was reversible per se under the "plain error" standard of rule 52(b) of the Federal Rule of Criminal Procedure (18 U.S.C.). The Supreme Court held that the presence of alternate jurors during jury deliberations did not affect a defendant's substantial rights independent of its prejudicial impact, the respondents had not made a showing of prejudice, and there was no reason to presume prejudice. (Olano, supra, at p. 737.) The court stated, "Although the presence of alternate jurors does contravene ' "the cardinal principle that the deliberations of the jury shall remain private and secret," ' [citation], the primary if not exclusive purpose of jury privacy and secrecy is to protect the jury's deliberations from improper influence. 'If no harm resulted from this intrusion [of an alternate juror into the jury room,] reversal would be pointless.' [Citation.] We generally have analyzed outside intrusions upon the jury for prejudicial impact." (Id. at pp. 737- 738.) As in Olano, defendant has "made no specific showing that the alternate jurors in this case either participated in the jury's deliberations or 'chilled' deliberation by the regular jurors." (Id. at p. 739.)
"A plain error that affects substantial rights may be considered even though it was not brought to the court's attention." (Fed. Rules Crim.Proc., rule 52(b), 18 U.S.C.)
Defendant attempts to distinguish Olano on the basis of the instruction the alternates received at his trial. In Olano, the district court instructed the jurors that " 'according to the law, the alternates must not participate in the deliberations' " and " 'we are going to ask that you not participate.' " (Olano, supra, 507 U.S. at p. 740.) Here, the alternate jurors were told they could be brought into the deliberation room, and still instructed at the same time not to "form or express any opinion about the issues in this case, unless you are substituted for one of the deliberating jurors." Hence, the alternates were told not to participate in deliberations. We presume the jury followed these instructions (ibid.), and conclude Olano is not distinguishable.
Likewise, Valles explained that "[t]he alternate should, of course, be instructed that he is not to participate in the jury's deliberations in any manner except by silent attention unless he is required by the court to take the place of an original juror." (Valles, supra, 24 Cal.3d at p. 128.) Again, a substantially similar instruction was given to the jurors in this proceeding. The Valles opinion continued, "If this instruction is disobeyed, the standard rule concerning juror misconduct applies, namely, that it is presumed prejudicial to the defendant unless the contrary appears." (Ibid., italics added.) The record does not indicate the instruction was disobeyed. In Brassfield, an alternate juror was present in the jury room for 15 minutes at the beginning of jury deliberations before her presence was discovered and she was removed. (Brassfield, supra, 141 Cal.App.4th at p. 68.) Relying on Valles, the Sixth District Court of Appeal held that "this type of error is properly analyzed as a species of jury misconduct to which a presumption of prejudice applies and which does not merit reversal if the error is shown to have caused no prejudice." (Brassfield, supra, at p. 72.) It concluded the presumption had been rebutted in that case. (Id. at p. 73.) We do not read Valles to apply a presumption of prejudice in the present circumstance, and we note Brassfield made no mention of Olano. Even if we did apply a presumption of prejudice, we conclude that, given what occurred here, the presumption is sufficiently rebutted. Again, the jurors were properly instructed not to express their opinions. The foreperson's discussion of the deliberation process made clear that no alternate jurors were part of the voting process, and there was otherwise no suggestion that any of them participated in deliberations. The mere presence of alternate jurors in the deliberation room is not sufficient to necessitate the reversal of defendant's convictions. C. Cruel or Unusual Punishment
Defendant contends his sentence to life without the possibility of parole violates the proscription against cruel or unusual punishment in the California Constitution. (Cal Const., art I, § 17.)
A punishment may violate the California Constitution, "although not cruel or unusual in its method," if "it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424; accord People v. Dillon (1983) 34 Cal.3d 441, 478 (Dillon).) "The main technique of analysis under California law is to consider the nature both of the offense and of the offender." (People v. Martinez (1999) 76 Cal.App.4th 489, 494 (Martinez).)
"With respect to 'the nature of the offense,' we recognize that when it is viewed in the abstract robbery-murder presents a very high level of such danger, second only to deliberate and premeditated murder with malice aforethought. In conducting this inquiry, however, the courts are to consider not only the offense in the abstract—i.e., as defined by the Legislature—but also 'the facts of the crime in question' [citation]—i.e., the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts." (Dillon, supra, 34 Cal.3d at p. 479.)
With respect to the "nature of the offender," "[t]his branch of the inquiry . . . focuses on the particular person before the court, and asks whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Dillon, supra, 34 Cal.3d at p. 479.)
Because these inquires are "fact specific, the issue must be raised in the trial court." (People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) Apparently anticipating forfeiture, defendant asserts that his trial counsel provided ineffective assistance when he failed to raise this argument at the sentencing hearing. A claim of ineffective assistance of counsel has two elements: The defendant must show counsel's actions (or omissions) fell below professional norms, and also must show resulting prejudice. (See People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) To show prejudice, the defendant must demonstrate it is reasonably probable that he would have obtained a more favorable result absent counsel's failing. (Id. at pp. 217-218.) If it were true the sentence imposed amounted to cruel and/or unusual punishment, failing to raise the issue before the trial court would fall below the standard of reasonable competence and defendant would thereby be prejudiced by having to serve an unconstitutional sentence. (See, e.g., People v. DeJesus, supra, at p. 27 [addressing merits despite forfeiture to forestall a claim of ineffective assistance of counsel].) So we address the merits of the claim, determine there are none, and conclude defendant's trial counsel did not render ineffective assistance. (See People v. McPeters (1992) 2 Cal.4th 1148, 1173, superseded by statute on another ground as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106 ["Defense counsel is not required to advance unmeritorious arguments on the defendant's behalf"].)
Defendant compares himself favorably to the young defendant in Dillon, supra, 34 Cal.3d 441, a case in which our Supreme Court determined that a life sentence for first degree felony murder was excessive under the facts of the case, and reduced the crime to second degree murder. (Id. at p. 489.) The analogy is inapt.
In Dillon, a 17-year-old boy entered a marijuana farm with some of his friends, intending to steal some of the crop. (Dillon, supra, 34 Cal.3d at p. 451.) Hearing what were accidental shots from one of his companions, the defendant believed that one of his friends might have been shot. (Id. at pp. 452, 482.) Then, when he was approached by an armed man who was guarding the marijuana, the boy believed he was about to be shot, panicked, and fatally shot the man. (Id. at pp. 452, 482-483.) The evidence showed the boy was unusually immature and, because of this immaturity, he neither foresaw the risk he was creating nor was he able to extricate himself without panicking. (Id. at p. 488.) In addition, he had no prior criminal record. (Ibid.) Both the jury and the trial court expressed concern that the sentence was excessive in relation to the defendant's culpability. (Id. at p. 487.) Moreover, none of the boy's companions received a prison term. (Id. at p. 488.)
Defendant notes he had no codefendants and there is no indication the second armed man was ever apprehended. --------
Defendant contends the fact the jury found not true the allegations, with respect to both counts, that defendant personally and intentionally discharged a firearm causing great bodily injury or death, indicates that it believed his testimony that he accidentally discharged his firearm as he fell out of the victim's car. Nonetheless, in determining whether a punishment is cruel or unusual, we must view the underlying disputed facts in the light most favorable to the judgment. (Martinez, supra, 76 Cal.App.4th at p. 496.) Defendant lured his victim into an area he would have trouble escaping so that he and another man could rob the victim at gunpoint. It was in the process of doing so that defendant apparently fired his weapon unintentionally.
Defendant had no history of violent convictions, but, as an adult, he was convicted of driving on a suspended license. As a juvenile, he was convicted of receiving stolen property twice and also violated his probation once. Even if his criminal record were insignificant, this factor is not determinative. (Martinez, supra, 76 Cal.App.4th at p. 497.) Defendant was 24 years old when he committed the charged offenses. While he was youthful, he "was not a minor, and there was no evidence he was unusually immature emotionally or intellectually as the defendant in People v. Dillon." (Martinez, supra, at p. 497.) In fact, defendant had attended college to study horticulture and business. A successful claim under Dillon is an "exquisite rarity," and "defendant must overcome a 'considerable burden' in convincing us his sentence was disproportionate to his level of culpability." (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197.) He has not done so. Defendant's sentence for this murder does not present the kind of exquisite rarity and gross disproportionality with which Dillon was concerned. D. Sentencing
Defendant alleges the trial court committed two errors at sentencing that require our correction.
As we have discussed, the trial court sentenced defendant to the mandatory lesser sentence for count one, life imprisonment without parole. (§ 190.2, subd. (a).) The court's oral pronouncement of judgment failed to impose any sentence for defendant's robbery conviction (count two). The abstract of judgment indicates the court stayed imposition of a sentence on count two pursuant to section 654. The minute order is silent as to count two, though it notes pages one through nine of the probation report are imposed as modified. The probation report recommended that any time imposed for count two be stayed pursuant to section 654. The oral pronouncement of judgment controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Defendant argues the sentence on count two must be stayed pursuant to section 654. The People do not contend otherwise, but request that we remand the matter to the trial court so that it may exercise its discretion and correct the discrepancy between its oral pronouncement of sentence, minute order and abstract of judgment. We agree with defendant that the sentence on count two had to be stayed because section 654 bars separate punishment for the robbery where it necessarily formed the basis for his first-degree felony-murder conviction and the finding on the robbery-murder special-circumstance allegations. (People v. Hensley (2014) 59 Cal.4th 788, 828.) We shall direct the court to impose and stay sentence on the robbery conviction.
The court also imposed two $10,000 restitution fines. The probation report and the abstract of judgment indicate this second fine was imposed pursuant to section 1202.45. Defendant argues, and the People concede, that this second restitution fine must be stricken because defendant's sentence is life without the possibility of parole. We accept the People's concession. (People v. Battle (2011) 198 Cal.App.4th 50, 63.)
III. DISPOSITION
The case is remanded to the trial court to modify the judgment to strike the parole revocation fine imposed pursuant to section 1202.45, to impose a sentence on count two, and to stay the sentence on count two pursuant to section 654. The court is further directed to prepare an amended abstract of judgment and to forward a certified copy thereof to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
MAURO, J.