Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. JCF15251 Imperial County, Annie M. Gutierrez and Christopher W. Yaeger, Judges. Affirmed.
BENKE, Acting P. J.
A jury convicted Edward Throop of two counts of battery by a prisoner on a non-confined person. (Pen. Code, § 4501.5.) Throop contends the trial court erred when it (1) failed to remove Juror No. 2 for cause, in violation of his right to a fair trial and due process; (2) denied his claim of ineffective assistance of counsel based on trial counsel's failure to challenge Juror No. 2 for cause; (3) failed to evaluate independently the evidence in denying his motions for new trial; and (4) refused to allow for oral argument on his second motion for new trial.
All further statutory references are to the Penal Code unless otherwise specified.
As we explain, we reject each of Throop's contentions and affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
We view the evidence in the light most favorable to the judgment of conviction. (See People v. Osband (1996) 13 Cal.4th 622, 690.) Certain portions of the factual and procedural history related to Throop's claims of error are discussed post, in connection with our analysis of those issues.
In November 2003 a fight broke out between two inmates in an exercise yard at Calipatria State Prison, a maximum-security facility (Calipatria). Calipatria has two exercise yards, "yard 1" and "yard 2," separated by a chain-link fence. Correctional officers used pepper spray to stop the fight, ordered the two inmates to lie down in a prone position and searched them for injuries and weapons. When officers discovered that one of the inmates had sustained a puncture wound, officers expanded their search to other inmates in yard 2. When officers next found a weapon in yard 2, they began to search the inmates in yard 1.
While searching inmates in yard 1, about 20 or 30 inmates began attacking Officers Murriente and Andalon in the weight training area in yard 1. Each yard has a weight training area (also known as the "weight pile"), and the only way to access the weight pile is through one of two gates at either end of the area.
At or near the time of the incident in the weight pile in yard 1, about 30 to 40 inmates in the main area of yard 1 stood, despite being ordered to "stay down," and began attacking Officers Burkhammer and Silva. Inmates in yard 2 also ignored the order to stay down, and about 20 to 30 of them rushed, and began to climb over, the chain-link fence separating yards 1 and 2. Additional officers responded to the uprising and entered the weight pile in yard 1 through the "eastern" gate, while other officers ran through the "western" gate into the main area of yard 1 to help the officers under siege.
Lieutenant Lindsay Hunt testified he saw two inmates standing outside the western gate spraying officers with pepper spray from canisters that officers had lost during the melee. Hunt testified he "actually saw" Throop, along with "Inmate Garcia," spraying officers from an MK9 canister of oleoresin capsicum, a type of pepper spray used by officers at Calipatria, as officers were running through the gate to help Burkhammer and Silva. Hunt testified the MK9 canister is barrel-shaped and about nine inches long, and is similar in appearance to a mini fire extinguisher.
Hunt testified he had "absolutely no doubt" that Throop sprayed Sergeants Morales and Johnson, and Officers Drennon, Alvarez and Leamons. Hunt also testified he saw Throop throw the MK9 canister on the ground after it stopped spraying, and run towards the center of the yard where inmates were attacking the officers.
Officer Douglas Drennon testified he was in the yard 1 weight pile helping to secure that area when he saw about 30 inmates attacking two officers in the middle of yard 1. Both officers were on the ground. Drennon testified that as he and other officers made their way through the gate between the weight pile and the main yard to help their fellow officers, they were hit with pepper spray. Drennon said he turned to the right and was able to avoid most of the spray, although he was hit on the left side of his face and in his eye.
Drennon testified there was "no doubt" that Throop sprayed him as he ran through the gate. Drennon also saw Throop throw the canister of pepper spray to the ground. Drennon testified he saw Throop spray Sergeant Morales, although he could not identify the other officer sprayed by Throop. Drennon said he realized after the riot that at some unknown point during the uprising he had lost his can of MK9 pepper spray.
Officer Randy Leamons also testified at Throop's trial. Leamons estimated that 40 inmates jumped the two officers in the middle of yard 1. As Leamons ran through the gate between the weight pile and the main yard, he saw Throop spray Morales and Drennon. Leamons was also sprayed by Throop. Leamons testified he did not try to apprehend Throop at that time because his main concern was helping the officers under attack in yard 1.
Sergeant Martin Morales testified that as he was running through the gate to help the officers in yard 1 Throop approached him and sprayed him in the face. After being hit by the pepper spray, Morales could only see out of his right eye, until he eventually lost sight in that eye as well. Nonetheless, before he was sprayed, Morales saw Throop with the canister of pepper spray, then a "split second" later Morales testified he was hit by the spray and saw Throop run away. Morales did not run after Throop because he was more concerned about the officers under attack and considered their lives to be in immediate danger.
Lieutenant (then-Sergeant) Russell Johnson testified he was in the weight pile area in yard 1 when he saw about 20 or more inmates attack Officers Burkhammer and Silva in the middle of yard 1. As Johnson was running through the gate to assist the two officers, he testified he "clearly" saw Throop spray him with pepper spray, which struck him on the right side of the face. Johnson testified his face began to burn, but that he did not stop and apprehend Throop because Johnson was concerned about the wellbeing of the two officers in what he described as the worst prison riot he had ever witnessed.
Officer David Acosta testified he was in the weight pile area of yard 2 when he heard officers yelling, "Get down, get down," and saw a large group of inmates fighting with officers. Acosta ran to the weight pile in yard 1 and pepper sprayed inmates that were not complying with the order to get down.
As that was occurring, Acosta saw two officers being attacked by a large group of inmates in the middle of yard 1. Acosta also saw inmates on yard 2 running toward, and jumping over, the center fence, and other inmates in yard 1 running toward the officers in the weight pile area. Acosta saw an MK9 canister of pepper spray outside the gate in the weight pile area. Acosta's first reaction was to secure the pepper spray. Before he could do so, however, Acosta saw Throop pick up the canister and spray Drennon. Acosta attempted to subdue Throop by spraying him with pepper spray from Acosta's MK46 canister, but was too far away and ran out of spray.
Because Acosta heard Hunt yell to an officer in the observation booth to start shooting, Acosta did not attempt to apprehend Throop. After about three shots were fired, Acosta testified the inmates began to lie on the ground in a prone position.
Officer Robin Alvarez was a security investigations officer at Calipatria on the date of the prison riot. She was in the process of investigating the stabbing in the yard 2 weight pile when she heard commotion in the weight pile of yard 1 and saw about 40 or 50 inmates attacking officers in the middle of yard 1. As Alvarez ran through the gate in the weight pile in yard 1, she was hit with pepper spray on the left side of her face. Although Alvarez did not see who sprayed her, Hunt positively identified Throop as that individual.
Officer Nell Senkel testified she was ordered to yard 1 to search for weapons after the fight between inmates in the weight pile of yard 2. Senkel testified officers searched yard 1 because inmates sometimes passed weapons to each other through the chain-link fence separating the yards.
While searching inmates, Senkel observed officers and inmates fighting in the weight pile of yard 1. Senkel helped subdue the uprising. During the confusion, Senkel saw Throop through the chain-link fence spraying officers with pepper spray near the gate area of the weight pile in yard 1. Senkel said she had "no doubt" that Throop was the inmate using the spray, and saw the mist from the canister actually hit an officer.
B. Procedural Summary
In February 2005 Throop was indicted on five counts of battery by a prisoner on a non-confined person in violation of section 4501.5 (counts 7-11). As to each count, it was alleged Throop committed the offenses while confined in a state prison within the meaning of section 1170.1, subdivision (c). It was further alleged that Throop had three prior serious or violent felony convictions that qualified as strike convictions within the meaning of section 667, subdivisions (b) through (i).
Counts 1 through 6 of the indictment involved Inmate Garcia, and are not relevant in this appeal.
Following a bifurcated jury trial, the jury found Throop guilty of two counts of battery against Johnson and Morales, and not guilty of the remaining three counts against Drennon, Alvarez and Leamons. The jury subsequently found true the allegation that Throop had two prior serious or violent felony convictions.
The court sentenced Throop to 25 years to life on one of the counts and imposed a concurrent term of 25 years to life on the other. Both sentences were ordered to run consecutive to the sentence Throop was serving on an unrelated case.
DISCUSSION
A. Removal of Juror No. 2
Following his conviction and after the trial court denied his first new trial motion (discussed post), the court on the date of sentencing granted Throop's Marsden motion, based on People v. Marsden (1970) 2 Cal.3d 118, and appointed him new counsel. Throop's new counsel brought a second motion for new trial. In that motion, Throop contended he was deprived effective assistance of counsel based on a number of grounds, including trial counsel's failure to move for a mistrial after Juror No. 2 "had a sudden epiphany in the middle of trial" and disclosed that his cousin was the district attorney of Riverside.
The trial court denied Throop's second motion for new trial. Although the court addressed several of grounds of ineffective assistance of counsel Throop had raised in that motion, it did not discuss whether Throop's trial counsel was ineffective for failing to challenge Juror No. 2 for cause. The trial court summarized the performance of Throop's trial counsel as "not perfect," but noted he was a "diligent advocate" and "reasonably competent."
Judge Annie Gutierrez presided at Throop's trial, but she retired from the bench before the argument on Throop's second motion for new trial, which was decided by Judge Christopher W. Yeager. Judge Yeager stated he read and considered Throop's second motion for new trial and portions of the voluminous trial transcripts, including the grand jury transcripts, in preparation for the argument.
The issue involving Juror No. 2 was one of the last grounds argued by Throop in his motion, and comprised less than two of the 98-pages of his new trial motion. The other grounds for ineffective assistance of counsel raised by Throop and discussed by the trial court included trial counsel's failure: (1) to file a Pitches motion, pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531; (2) to file a motion based on the prosecution's and law enforcement's alleged failure to preserve evidence (e.g., a motion under People v. Hitch (1974) 12 Cal.3d 641); and (3) to move for a mistrial after the jurors saw Throop in leg shackles. Throop's appeal does not include these other grounds ruled on by the trial court.
In describing defense's counsel performance as "reasonably competent," the trial court actually used a double negative, noting: "I don't think [defense counsel's] performance -- although, again, perhaps not perfect -- I don't think that it falls to the -- to the place where he can't be considered reasonably competent."
After briefing was completed, Throop moved to augment the record to include the transcripts of the jury voir dire. We granted that motion, and asked the parties to submit simultaneous letter briefs in connection with the augmented record, all of which we have considered in this appeal.
The record shows that during questioning by the trial court in voir dire, Juror No. 2 disclosed he had two nephews that worked at Calipatria. Juror No. 2 noted that one of his nephews was a correctional officer at the prison, and the other was a teacher. When the court asked Juror No. 2 what his nephew taught, Juror No. 2 said, "He's a P.E. instructor or -- I'm not sure what he teaches."
On further questioning by defense counsel, Juror No. 2 identified the name of his nephew who worked as a correctional officer at Calipatria, and said he had spoken to that nephew about two months earlier and typically saw him at family gatherings only about three or four times a year. Juror No. 2 also said that if he saw his nephew during the trial, he would have "no problem" following the court's instructions and telling his nephew that he could not talk to him because he was on jury duty.
Of significance to the issue at hand, Juror No. 2 volunteered he recently had been "forgetting a lot of things," and expressed concern that if the trial was lengthy he could have trouble remembering everything. In response to further questioning by defense counsel, Juror No. 2 said he had not yet seen a doctor about his memory problem, which he described as occasional.
After a day and half of trial testimony, and outside the presence of the jury, Juror No. 2 informed the court and counsel that during voir dire he had forgotten to disclose that he and Riverside District Attorney Gilbert Otero were cousins. Juror No. 2 explained:
"THE COURT: When did you see him last?
"THE COURT: When was that?
"JUROR NO. 2: About a month ago.
"JUROR NO. 2: No, not really. About two or three times, maybe, a year.
"JUROR NO. 2: No.
"JUROR NO. 2: Once in a while I ask him, 'How you like your job?' 'Oh, I love it,' but that's it. But I wasn't feeling good until I bring it up.
"JUROR NO. 2: And let you know about it.
"MR. STOREY [defense counsel]: No. [¶] Well, will it affect how you view the evidence?
"MR. STOREY: Will it affect how you view the evidence?
"THE COURT: Why -- why would it affect your view of the evidence?
"MR. STOREY: Would you be embarrassed to return a verdict of not guilty with Mr. Otero being the district attorney?
"MR. STOREY: Would you be embarrassed to return a verdict of guilty because he's the district attorney?
"MS. TRAPNELL: You've been saying you feel nervous. Does that have anything to do with Mr. Otero or just the trial?
"MS. TRAPNELL: But you feel okay?
"THE COURT: Well, do you think that the fact that you're the cousin of the district attorney is going to make a difference in the way which you view the evidenc
"JUROR NO. 2: No, I don't think so.
"JUROR NO. 2: Well
"JUROR NO. 2: Oh, yeah.
"JUROR NO. 2: Yeah.
"JUROR NO. 2: Yeah, I think I can do that.
"THE COURT: Any further questions?
"THE COURT: Thank you. You may go have a seat.
"THE COURT: Well, so far, we're going to see. We're going to talk.
Outside the presence of Juror No. 2, the court and counsel discussed Juror No. 2 and whether he should be excused:
"MR. STOREY: I'm not sure what trial he's at, but other than that, I don't notice any difference in what we had before: Uncomfortable.
"THE COURT: Well
"MR. STOREY: He says he can be fair. I don't think that's cause. It would be a preempt if I had one.
2. Governing Law
As our high court recently explained, "A criminal defendant has a constitutional right to an impartial jury, and the pretrial voir dire process is important because it enables the trial court and the parties to determine whether a prospective juror is unbiased and both can and will follow the law. But the voir dire process works only if jurors answer questions truthfully." (People v. Wilson (2008) 44 Cal.4th 758, 822.)
" 'Although intentional concealment of material information by a potential juror may constitute implied bias justifying his or her disqualification or removal [citations], mere inadvertent or unintentional failures to disclose are not accorded the same effect. "[T]he proper test to be applied to unintentional 'concealment' is whether the juror is sufficiently biased to constitute good cause for the court to find under... section[] 1089... that he is unable to perform his duty." ' [Citations.]" (People v. Wilson, supra, 44 Cal.4th at p. 823.)
Section 1089 provides in pertinent part: "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty,... the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors." (Italics added.)
" ' "Before an appellate court will find error in failing to excuse a seated juror, the juror's inability to perform a juror's functions must be shown by the record to be a 'demonstrable reality.' The court will not presume bias, and will uphold the trial court's exercise of discretion on whether a seated juror should be discharged for good cause under section 1089 if supported by substantial evidence." ' [Citations.]" (People v. Martinez (2010) 47 Cal.4th 911, 943.)
3. Analysis
Throop did not argue below that the trial court erred when it did not remove Juror No. 2 for cause, despite filing two motions for new trial. However, the failure to raise constitutional claims in the lower court does not result in forfeiture of such claims where, as here, the constitutional claims involve "application of the same facts or legal standards [the accused] asked the trial court to apply, accompanied by a new argument that the... error... had the additional legal consequence of violating the federal Constitution." (People v. Friend (2009) 47 Cal.4th 1, 29, fn. 13.) Moreover, it is well established that even when a party has forfeited a right to appellate review by failing to preserve a claim in the trial court, an appellate court may still review the claim as an exercise of its discretion. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6; People v. Johnson (2004) 119 Cal.App.4th 976, 984 [" 'The fact that a party, by failing to raise an issue below, may forfeit the right to raise the issue on appeal does not mean that an appellate court is precluded from considering the issue.' " (Italics omitted.)]) We thus take up the issue in this appeal.
Throop contends he was deprived of a fair trial and due process of law when the trial court failed to remove Juror No. 2 for "actual bias." We disagree.
Throop does not contend in this appeal that Juror No. 2 should have been excused for "implied bias." "Under California law, a juror may be excused for 'implied bias' only for the reasons listed in Code of Civil Procedure section 229, 'and for no other.' (Code Civ. Proc., § 229.) If the facts do not establish one of the grounds for implied bias listed in that statute, the juror may be excused for '[a]ctual bias' if the court finds that the juror's state of mind would prevent him or her from being impartial. (Code Civ. Proc. § 225, subd. (b)(1)(C)." (People v. Ledesma (2006) 39 Cal.4th, 641, 670.)
Assuming Juror No. 2 was required to disclose during voir dire that he and the Riverside district attorney were cousins, the record supports the (implied) finding that Juror No. 2's failure to do so was unintentional and inadvertent. (See People v. Wilson, supra, 44 Cal.4th at p. 823.) Indeed, Juror No. 2 was forthcoming in voir dire regarding information about his two nephews who worked at Calipatria. He also volunteered he recently had experienced problems with his short-term memory.
Moreover, the record shows that at the time Juror No. 2 made the disclosure about his cousin, he did so of his own accord. Juror No. 2 reiterated to the court and counsel that he sometimes "forg[o]t things," as he had volunteered during voir dire, and explained the circumstances of how he came to realize that he had forgotten to inform the court and counsel that his cousin was the Riverside district attorney. The record also shows Juror No. 2 volunteered this information outside the presence of the jury, telling the court and counsel, "I thought I better bring it up."
On this record, we conclude substantial evidence supports the finding of the trial court that Juror No. 2 did not intentionally withhold information in voir dire regarding his cousin, and that his failure to disclose that information, to the extent he was required to disclose it all, was inadvertent and unintentional. (See People v. Wilson, supra, 44 Cal.4th at p. 823.)
The next question becomes whether substantial evidence supports the finding of the trial court that Juror No. 2 was qualified to continue serving on the jury after the disclosure. Here, the record shows Juror No. 2 initially stated the fact his cousin was the Riverside district attorney "might" affect how he viewed the evidence, but then added, he was "not sure." In response to further questioning by the court and counsel, Juror No. 2 said he was feeling nervous because "that's the way I feel once in a while," but clarified that his nervousness was not due to the fact he and the Riverside district attorney were cousins. Juror No. 2 also stated he would not be embarrassed to return a verdict of guilty or not guilty. In addition, when asked by the court whether his being cousins with the district attorney would make a difference in how he viewed the evidence, Juror No. 2 said, "No, I don't think so."
However, when the court next asked Juror No. 2 whether he could be fair and impartial, he responded with some hesitation. The trial court immediately pursued the matter and asked Juror No. 2 why he had hesitated in answering that question, and repeated the question for Juror No. 2. Juror No. 2 this time responded, "Oh yeah" without any apparent hesitation. The court then explained what it meant by impartial, noting the jury was not to take one side or the other until all the evidence was heard. Juror No. 2 responded, "Yeah." The court asked Juror No. 2 whether he could be impartial, and Juror No. 2 said, "Yeah, I think I can do that."
After discussion with Juror No. 2, defense counsel observed that there likely was no good cause to excuse Juror No. 2, and that it appeared to defense counsel that Juror No. 2 was "uncomfortable." The prosecutor left it up to the defense whether to move to excuse Juror No. 2, although she added Juror No. 2 appeared to be "sleeping" or "resting his eyes" in the trial. The court agreed with defense counsel there was no good cause to excuse Juror No. 2, noting that if Juror No. 2 "didn't remember he is related to the D.A. until now, it just doesn't seem likely they're that close. So we're -- I guess we'll go on with him."
Throop did not challenge Juror No. 2 on the basis he was "sleeping" or "resting his eyes." He also did not directly raise that issue in this appeal. In any event, we note the prosecutor's statement he was "sleeping" or "resting his eyes" at the beginning of what turned out be a lengthy trial is insufficient to establish cause to remove Juror No. 2. (See People v. Bowers (2001) 87 Cal.App.4th 722, 731 [concluding a juror cannot be discharged for sleeping unless there is convincing proof the juror actually slept].) Moreover, the record shows there were no other instances in which Juror No. 2 slept or rested his eyes during the remainder of the lengthy trial.
Although Juror No. 2 was initially somewhat hesitant in response to questions by the court and counsel regarding whether his cousin's position could affect how he viewed the evidence, the record shows during follow up questioning Juror No. 2 without hesitation said he could be fair and impartial, and that his relationship with his cousin would not affect his view of the evidence. " 'On appeal, we will uphold the trial court's decision if it is fairly supported by the record, and accept as binding the trial court's determination as to the prospective juror's true state of mind when the prospective juror has given conflicting or ambiguous statements.' " (People v. Ledesma, supra, 39 Cal.4th at p. 669, quoting People v. Farnam (2002) 28 Cal.4th 107, 132.)
Moreover, it is clear the trial court and counsel believed Juror No. 2 was honest in his assessment of his ability to be fair and impartial, in light of the fact defense counsel said he did not believe good cause existed to excuse Juror No. 2, a conclusion also reached by the trial court.
In addition, both the trial court and counsel questioned Juror No. 2 during voir dire, and observed him in the trial. "The evidence bearing on the question whether a juror has exhibited a disqualifying bias... may be in conflict. Often, the identified juror will deny it and other jurors will testify to examples of how he or she has revealed it. [Citation.] In such a case the trial court must weigh the credibility of those whose testimony it receives, taking into account the nuances attendant upon live testimony. The trial may also draw upon the observations it has made of the jurors during voir dire and the trial itself. Naturally, in such circumstances, we afford deference to the trial court's factual determinations, based, as they are, on firsthand observations unavailable to us on appeal." (People v. Barnwell (2007) 41 Cal.4th 1038, 1053; see also In re Hamilton (1999) 20 Cal.4th 273, 300 [a juror's "good faith when answering voir dire questions is the most significant indicator that there was no bias."])
We conclude that the trial court did not abuse its discretion when it properly weighed the credibility of Juror No. 2 and concluded he was qualified to continue serving on the jury; that substantial evidence supports the trial court's findings Juror No. 2 did not engage in misconduct or was actually biased against Throop based on the fact his cousin was the Riverside district attorney, or his unintentional failure to disclose that fact; and that, in any event, there was no showing that Juror No. 2 was unable to perform a juror's functions by a "demonstrable reality." (People v. Martinez, supra, 47 Cal.4th at p. 943.)
Even if we presumed juror misconduct, our independent review of the record shows there was not a "substantial likelihood of juror bias," and thus Throop was not prejudiced by the (alleged) misconduct of Juror No. 2. (See People v. Nesler (1997) 16 Cal.4th 561, 578.)
b. Ineffective Assistance of Counsel
Throop also claims he received ineffective assistance of counsel because trial counsel did not move for a mistrial (as he argued in his second new trial motion), or otherwise seek to challenge or remove Juror No. 2 (as he argues on appeal), after Juror No. 2 disclosed that he and the Riverside district attorney were cousins.
To establish that he received ineffective assistance of counsel at trial, Throop must show that his " 'counsel's representation fell below an objective standard of reasonableness... under prevailing professional norms.' [Citations.]" (People v. Ledesma (1987) 43 Cal.3d 171, 216, quoting Strickland v. Washington (1984) 466 U.S. 668, 688 [104 S.Ct. 2052].) However, "A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." (People v. Carter (2003) 30 Cal.4th 1166, 1211.)
Next, Throop must show prejudice. Specifically, he must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694; see also People v. Staten (2000) 24 Cal.4th 434, 450-451.)
Based on our conclusions ante upholding the trial court's ruling that Juror No. 2 was competent to continue on the jury, that he did not engage in misconduct by his inadvertent failure to disclose that he and the Riverside district attorney were cousins and that Throop was not prejudiced even if we assumed juror misconduct, we conclude trial counsel's performance did not fall below an objective standard of reasonableness. We further conclude that Throop, in any event, cannot show a reasonable probability that, but for counsel's (alleged) unprofessional errors, the outcome of the proceeding would have been different.
We also reject Throop's claim his trial counsel was ineffective because he did not seek an additional peremptory challenge, inasmuch as Throop cannot establish on this record that "in the absence of such additional challenges[,] he is reasonably likely to receive an unfair trial before a partial jury." (People v. Bonin (1988) 46 Cal.3d 659, 679, overruled on another ground as stated in People v. Hill (1998) 17 Cal.4th 800, 822-823; see also People v. Pride (1992) 3 Cal.4th 195, 231 [additional peremptory challenge not required when the defendant did not demonstrate that the trial court erroneously denied challenges for cause].)
In addition, because the record sheds no light on why Throop's trial counsel did not seek to excuse Juror No. 2, we presume that " ' "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." [Citation.]' " (People v. Lopez (2008) 42 Cal.4th 960, 966.) For this separate and independent reason, we conclude Throop was not deprived effective assistance of counsel when trial counsel did not move to excuse Juror No. 2.
B. Sufficiency of the Evidence
1. First New Trial Motion
Throop next contends the trial court abused its discretion when it denied his first new trial motion because it failed to evaluate the evidence independently. We disagree.
"In considering a motion for a new trial made on the ground of insufficiency of the evidence to support the verdict, the trial court independently weighs the evidence, in effect acting as a '13th juror.' " (People v. Lagunas (1994) 8 Cal.4th 1030, 1038, fn. 6.) The court "must review the evidence independently, considering the proper weight to be afforded to the evidence and then deciding whether there is sufficient credible evidence to support the verdict. [Citation.]" (People v. Lewis (2001) 26 Cal.4th 334, 364.)
Although the court has "broad discretion" whether to grant a new trial, it is still "guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. [Citation.]" (People v. Davis (1995) 10 Cal.4th 463, 524.) The court's ruling on a motion for new trial " ' "will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." ' [Citation.]" (Ibid.)
At the hearing on the new trial motion, the trial court stated it initially had been surprised the jury convicted Throop of only two counts and acquitted him of the remaining three counts. However, the trial court noted that after it reviewed the trial testimony of various witnesses, including Johnson and Morales, the trial court found the "jurors could rationally find [Throop]... guilty of some charges and not guilty of others." The trial court noted it would be "unbelievable" under the circumstances if all the officers remembered everything identically, inasmuch as there had been a stabbing and guards were being attacked by between 40 and 60 inmates. The court also noted the eyewitness testimony of Johnson and Morales who each "clearly" saw Throop spray them with pepper spray. Finally, the court noted the jury could have chosen to believe some of the witnesses' testimony and disregarded others, and found some of the evidence more convincing on certain counts than on others.
Here, the trial court read and considered the trial testimony of Johnson and Morales, among other witnesses, and independently determined there was sufficient credible evidence to support the jury's verdict. (See People v. Lewis, supra, 26 Cal.4th at p. 364.) In light of the eyewitness testimony of both Johnson and Morales, which the court reviewed in connection with the motion, and the presumption in favor of the correctness of the verdict and proceedings supporting it (People v. Davis, supra, 10 Cal.4th at p. 524), we conclude there was no "manifest and unmistakable abuse of discretion" by the trial court when it denied Throop's first new trial motion.
Throop also contends the jury's verdict is inconsistent because it convicted him of two counts of battery, against Johnson and Morales, but acquitted him of the remaining three counts, in spite of what Throop describes as an "all or nothing case." Assuming, without deciding, the verdict is inconsistent, such inconsistency is not a valid basis for striking a conviction. (See People v. Lewis (2001) 25 Cal.4th 610, 655-656.) "It is well settled that, as a general rule, inherently inconsistent verdicts are allowed to stand. [Citations.]" (Id. at p. 656; see also People v. Palmer (2001) 24 Cal.4th 856, 860-861.)
The court explained in People v. Lewis, supra, 25 Cal.4th 610 that this rule exists because a defendant " 'is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts. This review should not be confused with the problems caused by inconsistent verdicts. Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt. [Citations.] This review should be independent of the jury's determination that evidence on another count was insufficient.' [Citation.]" (People v. Lewis, supra, 25 Cal.4th at p. 656, quoting United States v. Powell (1984) 469 U.S. 57, 67 [105 S.Ct. 471].)
Because of our conclusion the trial court independently reviewed the evidence and properly found there was sufficient credible evidence to support the verdict, and our own independent review of the record that shows there is ample evidence to support the jury's verdict, we conclude reversal of his conviction is not warranted even if the verdict was inconsistent. (See People v. Lewis, supra, 25 Cal.4th at pp. 655-656.)
2. Second New Trial Motion
Throop also contends the trial court erred in denying his second new trial motion because it refused to allow his new counsel to argue the motion during argument and because it did not reweigh the evidence independently. Turning first to Throop's second contention, based on our conclusion ante that the trial court independently reviewed the evidence and found there was substantial credible evidence to support the verdict in connection with his first new trial motion, we reject his contention the trial court erred when, according to him, it merely rubber stamped the court's ruling from the first motion for new trial.
In addition, although Throop properly raised the non-statutory ground of ineffective assistance of counsel in his second new trial motion (see People v. Stewart (1988) 202 Cal.App.3d759, 763), he was not entitled to have a second "bite of the apple" on the sufficiency of the evidence ground that was raised and decided (against him) in his first motion for new trial, inasmuch as he has not asserted any new law or facts in connection with his second new trial motion. (See People v. Wisely (1990) 224 Cal.App.3d939, 948-949 [recognizing the general rule that " 'once a trial court has decided a new trial motion, it may not reconsider its ruling or entertain subsequent requests for new trial' " absent a showing the second motion for new trial is "based upon new law or facts which the defendant did not know, and could not have known, at the time of the original motion," because " 'otherwise, proceedings on new trial motions might "become interminable." [Citation.]' "])
We also reject Throop's contention the trial court prejudicially erred when it refused to allow his new counsel to argue during the oral argument of the second new trial motion. Briefly, at the hearing on Throop's second new trial motion, the trial court stated it had read various portions of the voluminous trial record, including the grand jury transcript, and the points and authorities of the parties in support of and in opposition to the new trial motion. The court noted that based on its own review of the trial record, it found Throop's summary of the trial testimony of 47 witnesses in his motion "fairly accurate" and thus reliable. The court then asked defense counsel whether he had anything to add to his motion, to which counsel responded, "Nothing additional." The court next asked the People whether they had anything to add. The People made a brief argument on the Pitches issue (which, as noted ante, is not a subject of this appeal).
As the court was discussing Throop's claim he was denied effective assistance of counsel because his trial counsel did not file a Pitches motion, Throop's new counsel asked to be heard. In response, the trial court noted that counsel had "ably" set out the arguments in the new trial motion and that the court was going to take counsel at his word when he said he had "[n]othing additional" to add.
Our review of the second new trial motion shows that in addition to summarizing the trial testimony of 47 witnesses, it also included a summary of the jury instructions and counsels' closing argument to the jury; declarations submitted by Throop, his new defense counsel, a "forensic advisor" and a criminal law specialist; and an extensive discussion of the various grounds in support of his new trial motion.
Based on our own review of the record, our conclusion that the trial court independently reviewed the evidence and determined it was substantial and credible and supported the jury's verdict, and the fact Throop has not identified any additional facts or law in this appeal that was not included and considered in his 98-page motion for new trial, we conclude that even if the trial court erred in refusing to allow defense counsel to argue during the hearing on the motion, that error was not prejudicial. (See People v. Braxton (2004) 34 Cal.4th 798, 818 [noting "a judgment of conviction may not be reversed and a new trial may not be ordered... when a reviewing court has properly determined that the defendant suffered no prejudice as a result" of the trial court's failure to hear a new trial motion].)
Here, the trial court did not fail to hear Throop's new trial motion, as was the case in People v. Braxton, supra, 34 Cal.4th at page 806,but instead refused to let his new counsel argue after he responded he had "[n]othing additional" to add to Throop's second, 98-page motion.
DISPOSITION
The judgment of conviction is affirmed.
WE CONCUR: NARES, J. McINTYRE, J.