Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF127019E, Lloyd L. Hicks, Judge.
Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, Acting P.J.
INTRODUCTION AND FACUAL OVERVIEW
During the early morning hours of May 6, 2004, appellant Ulisces Aguilar acted as the lookout while Miguel Ontiveros Cisneros fatally shot to death Everado Marquez while Marquez was sleeping. The murder weapon was found in appellant’s home.
At the time of the murder, appellant was a member of the Surenos, a criminal street gang. Marquez was a member of the Surenos’s rival gang, the Nortenos. Cisneros had been a Norteno. But Cisneros thought Marquez stole his car and he wanted to kill Marquez. Fellow Nortenos did not help him retaliate against Marquez. So Cisneros began associating with Surenos.
The prosecution’s gang expert opined that the murder satisfied Cisneros’s desire for vengeance against Marquez and it also benefited the Surenos. The defense’s gang expert opined that the motivation for the killing was entirely personal and the murder was not gang related.
Appellant and Cisneros were jointly charged with murder; a street gang special circumstance allegation, a street gang enhancement and an allegation that a principal personally and intentionally discharged a firearm, causing great bodily injury and death, were attached to the murder count. (Pen. Code, §§ 187; 190, subd. (a)(22); 186.22, subd. (b)(1); 12022.53, subds. (d) & (e).) Both defendants were charged with shooting at an inhabited dwelling, but this count was later dismissed. (§ 246.) Cisneros was charged with the additional offenses of conspiracy to commit murder and concealing a firearm in a vehicle. (§§ 182, subd. (a)(1); 12025, subd. (a)(1).)
Unless otherwise specified all statutory references are to the Penal Code.
Trials of the codefendants were severed.
Cisneros was tried first. He was convicted after jury trial on all counts and all of the special allegations were found to be true. He was sentenced to life with parole, plus a consecutive term of 25 years to life. The judgment was affirmed on appeal.
On this court’s own motion, we hereby take judicial notice of the opinion in People v. Cisneros, F051367, opinion filed Oct. 17, 2007 [2007 WL 3025074]. (Evid. Code, § 452.)
Appellant’s jury trial began in July 2007. It ended in a mistrial after the jury hung on second degree murder. The jury returned a verdict of not guilty of first degree murder. It found all of the special allegations to be not true.
Appellant filed a motion to dismiss the enhancement allegations because retrial was barred by the federal and state constitutional prohibitions against double jeopardy and collateral estoppel. (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15.) The motion was denied.
The parties agreed that the special circumstance allegation no longer applied because appellant was found not guilty of first degree murder at the first trial.
Appellant’s second jury trial was held in 2008. He was found guilty of second degree murder. The gang and firearm enhancement allegations were found to be true.
Appellant motioned for a new trial. In relevant part, he argued juror No. 9 committed misconduct by concealing her connections with the Nortenos. The motion was denied.
Appellant was sentenced to 15 years to life, plus a consecutive term of 25 years to life.
Appellant challenges the sufficiency of the evidence supporting the gang enhancement. Also, he argues the trial court committed federal constitutional error by refusing to dismiss the enhancement allegations and by denying the new trial motion. Finally, he contends defense counsel was ineffective because he failed to move to dismiss juror No. 9 during trial and incompetently litigated the issue in the new trial motion. None of these contentions is persuasive. We will affirm.
FACTS
Appellant was a Surenos gang member.
Prior to 2004, Cisneros, Garcia and Marquez were all Norteno gang members or associates.
Henceforth, unless otherwise specified all dates refer to 2004.
On an unspecified date, Cisneros’s car was stolen. Cisneros blamed Marquez for the theft.
Cisneros told Garcia that he wanted to shoot Marquez and Garcia agreed to help him. Garcia asked Guillermo Maldonado for a gun. Maldonado initially agreed. But two weeks before the murder, Maldonado told Garcia that he could not get them a gun. Garcia did not take any further action to assist Cisneros.
Cisneros began associating with Surenos gang members and associates, including appellant.
Sometime prior to the murder, appellant and Marquez got into a fight.
On May 1, Cisneros was with some Surenos when a group of Nortenos confronted them. The two groups prepared to fight. Cisneros pulled out a handgun, aimed it at the ground, and fired it repeatedly. The Nortenos left.
During the evening of May 5 and early morning hours of May 6, appellant, Cisneros, Eliseo Sanchez and Lorenzo Perez were socializing at appellant’s residence. Appellant had a handgun tucked in his waistband; he said that he was going to “cap it.” Cisneros and appellant got up to leave. Cisneros said, “[W]e’ll be back, we’re gonna go to [Marquez’s] house.” Appellant said, “I got your back.” Appellant and Cisneros left the gathering.
Appellant has not challenged the sufficiency of the evidence supporting the murder conviction. Some of the evidence proving appellant’s involvement in the murder was obtained during police interviews with him, and with his friends and relatives. At trial, some of these people recanted or failed to recollect statements they made to the police.
After retrieving a rifle from Cisneros’s house, they walked to Marquez’s house. Appellant stayed outside while Cisneros entered Marquez’s bedroom. Cisneros fired multiple shots from the rifle at Marquez, killing him. Cisneros and appellant ran back to appellant’s house.
Shell casings and a detached bolt handle were left at the crime scene.
About a week later, detectives found a rifle in appellant’s bedroom. It was subsequently determined to be the murder weapon.
Appellant admitted in a police interview that he and Cisneros went to Marquez’s house. Cisneros was carrying a rifle. However, appellant denied knowing that Cisneros was going to shoot Marquez. Appellant said that he walked to the back gate and stayed there. Appellant heard gunshots. They ran back to appellant’s house. Appellant took the rifle from Cisneros and put it in his bedroom closet.
Deputy Sheriff Joe Aguilar testified as the prosecution’s gang expert. City of Madera Police Officer Jason Dilbeck testified as the defense’s gang expert.
Deputy Aguilar testified that the Nortenos and the Surenos are rival gangs who both claim the town of Pixley as their territory. Nortenos use the color red, the number 14 and the letter N as identifying symbols. Surenos use the color blue, the number 13 and the letter M as identifying symbols. The primary activities of Nortenos and Surenos are burglaries, drug sales, simple assaults and assaults with deadly weapons. The predicate offenses were the conspiracy to commit murder between Garcia and Cisneros and the actual murder which involved Cisneros and appellant.
Deputy Aguilar opined that appellant was a Surenos gang member because he admitted membership, wore blue clothing, had gang tattoos and associated with other Surenos. Appellant’s house was a gathering place for Surenos.
Deputy Aguilar further opined that Marquez and Garcia were affiliated with the Nortenos.
Deputy Aguilar stated that Cisneros had been a Nortenos gang member. A few months prior to the homicide, Cisneros changed his gang affiliation and started associating with Surenos gang members and associates. Deputy Aguilar based this determination on Cisneros’s contacts with gang members. Cisneros’s contacts prior to 2004 were all with Nortenos, but his recent contacts were with Surenos. Deputy Aguilar testified that changing one’s gang affiliation is rare but it does occur. In this case, Marquez’s theft of Cisneros’s car and Cisneros’s anger “that he couldn’t do nothing about it” was the catalyst for Cisneros’s change of gang affiliation from Norteno to Sureno. Deputy Aguilar testified:
“By him basically the car theft was a catalyst that -- usually when someone switches sides, there has to be some type of disgruntlement. While it is rare, it does occur. And it usually has to do with a wrong that the subject feels that his particular gang has done him and not backed him up, so he feels the need to switch sides to be able to avenge that and also have backup.”
Deputy Aguilar testified the killing would benefit the Surenos:
“Any time that your rival is eliminated, it shows power. Who commits it is really irrelevant as long as one of the southern gang members is with the subject. This enhances the gang’s reputation, shows the aggression, and shows what they’re willing to do to get rid of their rivals and to claim a turf.”
Further, the murder would “enhance a subject’s individual reputation and also show how willing they were to put in work for the gang.”
Deputy Aguilar found the prior fight between appellant and Marquez significant in forming the opinion that the homicide benefited the Surenos. He explained:
“All I would need to know is that he’s Southern and he’s a Northerner. Any time there’s a confrontation between two rival gangs, one has to do something about it. To not retaliate in some way on would show a weakness on your part…. [¶] … [¶] … It would show the subject that he himself was personally weak and that his gang was weak.”
Deputy Aguilar testified that the lapse of time between the fight and the homicide was not significant, as follows:
“A subject would have to feel that he had enough backup in case something else -- there were retaliations. If in the beginning they were too weak to actually do anything about it, they would wait until they had enough members or that subject had gathered enough of a reputation to be able to have some backup.”
Deputy Aguilar also opined that the killing would “promote or further assist criminal activity by other” Surenos. He explained:
“It would also encourage other gang members to commit similar acts. It would also be used as a recruitment tool to show the younger juveniles that they’re tough and not to be messed with and if they join they will be protected.”
Officer Dilbeck opined there was insufficient evidence indicating that Cisneros switched gang affiliation. Also, he testified that it appeared “as if the motivation [for Marquez’s murder] was personal because of the stolen car and the disrespect that went on with that.”
DISCUSSION
I. The gang enhancement has adequate evidentiary support.
A. The substantial evidence standard of review applies.
When reviewing a challenge to the sufficiency of the evidence, we assess the entire record in the light most favorable to the judgment below to determine whether it contains substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) “This standard applies to a claim of insufficiency of the evidence to support a gang enhancement.” (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.) “The standard is the same, regardless of whether the prosecution relies mainly on direct or circumstantial evidence. [Citation.]” (People v. Vazquez (2009) 178 Cal.App.4th 347, 352 (Vasquez).)
In applying the substantial evidence standard of review, the appellate court adopts all reasonable inferences and presumes in support of the judgment the existence of every fact that a jury reasonably could have deduced from the evidence. The trier of fact makes credibility determinations and resolves factual disputes. An appellate court will not substitute its evaluation of a witness’s credibility for that of the fact finder. “It is the jury, not this court, that must be convinced beyond a reasonable doubt that the gang enhancement allegation is true. [Citation.]” (Vasquez, supra, 178 Cal.App.4th at p. 352.)
B. Section 186.22, subdivision (b)(1) did not require the People to prove appellant committed the substantive offense with the specific intent to facilitate additional and separate criminal conduct by gang members.
In relevant part, section 186.22, subdivision (b)(1), provides for a sentence enhancement when a defendant commits a felony “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.…”
In Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia) and Briseno v. Scribner (9th Cir. 2009) 555 F.3d 1069 (Briseno), the Ninth Circuit held that the specific intent requirement of section 186.22, subdivision (b) requires some evidence supporting an inference that the defendant committed the crime with the specific intent to facilitate separate additional criminal conduct by gang members. The People are required to produce evidence describing “what criminal activity of the gang was … intended to be furthered” by the charged crime. (Garcia, supra, 395 F.3d at p. 1103; see also Briseno, supra, 555 F.3d at p. 1079.)
Relying on these Ninth Circuit cases, appellant argues the true finding on the gang enhancement must be reversed because the record lacks proof that he committed the substantive offense with the specific intent to facilitate separate and additional criminal conduct by gang members. We are not convinced. As will be explained, the Ninth Circuit has misinterpreted section 186.22, subdivision (b)(1).
As lower federal court decisions, Garcia and Briseno are not binding on this court. (People v. Hoag (2000) 83 Cal.App.4th 1198, 1205.) No California Court of Appeal has accepted the Ninth Circuit’s interpretation of section 186.22, subdivision (b)(1). The California appellate courts that have considered this issue unanimously agree there is no statutory requirement that the “criminal conduct by gang members” referenced in section 186.22, subdivision (b)(1) must “be distinct from the charged offense, or that the evidence establish specific crimes the defendant intended to assist his fellow gang members in committing.” (Vazquez, supra, 178 Cal.App.4th at p. 354; see also People v. Romero (2006) 140 Cal.App.4th 15, 19 (Romero); People v. Hill (2006) 142 Cal.App.4th 770, 774 (Hill).) Vasquez cogently explains:
“[¶] While our Supreme Court has not yet reached this issue, numerous California Courts of Appeal have rejected the Ninth Circuit’s reasoning. As our colleagues noted in [Romero, supra, 140 Cal.App.4th at p. 19]: ‘By its plain language, the statute requires a showing of specific intent to promote, further, or assist in “any criminal conduct by gang members, ” rather than other criminal conduct. (§ 186.22, subd. (b)(1), italics added.)’ Thus, if substantial evidence establishes that the defendant is a gang member who intended to commit the charged felony in association with other gang members, the jury may fairly infer that the defendant also intended for his crime to promote, further or assist criminal conduct by those gang members. [Citation.]
“Like the Romero court, we reject the Ninth Circuit’s attempt to write additional requirements into the statute. It provides an enhanced penalty where the defendant specifically intends to ‘promote, further, or assist in any criminal conduct by gang members.’ (§ 186.22, subd. (b)(1).) There is no statutory requirement that this ‘criminal conduct by gang members’ be distinct from the charged offense, or that the evidence establish specific crimes the defendant intended to assist his fellow gang members in committing.” (Vasquez, supra, 178 Cal.App.4th at pp. 353-354.)
For the reasons expressed in Vasquez, Romero and Hill, we reject the Ninth Circuit’s interpretation of section 186.22, subdivision (b)(1), and decline to follow Briseno and Garcia.
C. Deputy Aguilar’s opinion has sufficient foundation and there is substantial evidence proving the murder benefited the Surenos.
We now consider the sufficiency of the evidence proving that the murder was committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.…” (§ 186.22, subd. (b)(1).) Appellant argues that Deputy Aguilar’s testimony was speculative. We are not persuaded. As will be explained, there was adequate evidentiary foundation for Deputy Aguilar’s opinions. The People met their burden of proving the benefit element of the gang enhancement.
Evidence that a crime would enhance a gang’s status or reputation or that it would intimidate rival gangs or potential witnesses within the gang’s territory, is sufficient to support a finding that the crime was “for the benefit of” the gang. (See People v. Garcia (2007) 153 Cal.App.4th 1499, 1504-1506, 1511-1512 & People v. Morales, supra, 112 Cal.App.4th at p. 119.) Generally, the testimony of a single witness is sufficient to prove a disputed fact. (People v. Young (2005) 34 Cal.4th 1149, 1181.) This topic is a proper subject for expert testimony. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1207-1209.) An expert may rely on hearsay in forming his or her opinion. (People v. Catlin (2001) 26 Cal.4th 81, 137.) Yet, “‘[l]ike a house built on sand, the expert’s opinion is no better than the facts on which it is based.’ [Citation.]” (People v. Gardeley (1996) 14 Cal.4th 605, 618.)
“[¶] A gang expert’s testimony alone is insufficient to find an offense gang related. [Citation.] ‘[T]he record must provide some evidentiary support, other than merely the defendant’s record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.’ [Citation.]” (People v. Ochoa (2009) 179 Cal.App.4th 650, 657.)
It is undisputed that the Surenos is a criminal street gang and that appellant is a member of this gang. Both the People’s gang expert and the defense’s gang expert testified that appellant was a Sureno. Deputy Aguilar testified that assault with a deadly weapon was one of the Surenos’s primary criminal activities. In challenging the foundation for Deputy Aguilar’s opinion that the murder benefited the Surenos, appellant fails to recognize the significance of the fact that he, a Sureno, assisted in the murder of Marquez, a Norteno. Nortenos and Surenos are enemy gangs. Appellant previously had been involved with a fight with Marquez. Thus, irrespective of Cisneros’s desire to retaliate against Marquez because of the car theft, there was a gang-related reason for appellant to participate in Marquez’s murder. Deputy Aguilar explained, “Any time there’s a confrontation between two rival gangs, one has to do something about it. To not retaliate in some way on would show a weakness on your part…. [¶] … [¶] … It would show the subject that he himself was personally weak and that his gang was weak.” Appellant’s affiliation with the Surenos and his prior fight with Marquez are foundational facts providing evidentiary support for Deputy Aguilar’s opinion that murder benefited the Surenos, because failing to retaliate against Marquez after the fight would cause other gang members and associates to view appellant and the Surenos as weak. By participating in the murder, appellant eliminated a rival gang member who had disrespected him, thereby increasing his stature and the stature of the Surenos.
Also, there was evidence that Cisneros began associating with Surenos during the months before he killed Marquez. In fact, five days before the murder Cisneros was with a group of Surenos when they were confronted by a group of Nortenos. Cisneros fired a handgun onto the ground and the Nortenos left. Appellant fails to recognize the significance of this act -- Cisneros overtly sided against his former gang associates in a dispute between the two rival gangs.
Furthermore, in the hours before the homicide Cisneros and appellant were socializing with a group of people that included Surenos. They made verbal statements indicating that they were going to kill Marquez. Then they left the gathering. This shows that they wanted others to know that they were going to kill Marquez, who was known to be a Norteno. And they were not just going to kill any Norteno -- they targeted a Norteno who previously fought with appellant, a Surenos member, and was believed to have stolen a car belonging to Cisneros, a new Surenos associate. By killing Marquez, Cisneros demonstrated his commitment to the Surenos. Appellant proved his strength and the strength of the Surenos.
Considered in their totality, these facts adequately support Deputy Aguilar’s testimony that the murder benefited the Surenos. Accordingly, we reject appellant’s contention that Deputy Aguilar’s testimony was speculative.
Having carefully examined the record, we conclude that it contains substantial evidence from which a reasonable jury could determine beyond a reasonable doubt that the murder was committed for the benefit of, at the direction of, or in association with the Surenos, with the specific intent to promote, further, or assist in any criminal conduct by gang members. Therefore, the challenge to the sufficiency of the evidence fails.
We note that appellant’s reliance on cases such as People v. Killebrew (2002) 103 Cal.App.4th 644, People v. Ramon (2009) 175 Cal.App.4th 843 and In re Frank S. (2006) 11 Cal.App.4th 1192 is misplaced; none of the authorities cited by appellant is factually analogous to this matter.
II. The dismissal motion was properly denied.
A. Facts
Appellant’s first jury trial occurred in July 2007. The jury charge included CALCRIM Nos. 1401 and 1402, which directed the jurors to consider and decide the special allegations only if they found the defendant guilty of first or second degree murder.
The jury began deliberating on July 15, 2007.
On the next day, the foreperson sent a note to the judge stating they were unable to reach an agreement. That afternoon, the judge asked the jurors whether further deliberations would be productive. A juror replied: “We have one issue that we cannot all come to an agreement upon as far as making a decision on a verdict. And no one is swaying at any point in time on that one issue. So, therefore, as far as the people go, no one is wanting to change their opinion on that one term. So we can keep going over it and over it, and it’s not making any difference. So it’s like a stalemate.” Defense counsel and the prosecutor submitted the matter without comment. The judge ruled the jury was deadlocked and declared a mistrial.
Then the judge ascertained from the jurors that they unanimously agreed appellant was not guilty of first degree murder but were split eight to four in favor of a guilty verdict on second degree murder. A juror explained, “We had a consensus that it wasn’t first degree, but it was an issue of second degree as to one term of the stipulations [sic] as to what determined second degree. And we couldn’t come to an agreement on that particular term of the second degree.”
The judge directed the jury to examine CALCRIM No. 640, which provides instruction on completion of the verdict forms when a defendant has been charged with first degree murder and lesser included homicide offenses. CALCRIM No. 640 does not include instruction on completion of the verdict forms for any special allegations that might be attached to the murder charge. The judge sent the jurors to the jury room “to see if you can straighten it out.”
After a recess, the jurors returned to the courtroom. The judge asked, “Have you reached a verdict on one count?” The foreperson replied affirmatively. The jury returned a not guilty verdict on first degree murder as charged in count one and not true findings on the gang special circumstance, gang allegation and firearm allegation. The judge restated that mistrial had been declared as to second degree murder and discharged the jury.
Prior to the start of the second trial, appellant filed a written motion to dismiss the firearm and gang allegations. The People filed written opposition.
The court denied the motion after hearing. Citing People v. Allen (1974) 41 Cal.App.3d 821 (Allen) and our decision in People v. Davis (1988) 202 Cal.App.3d 1009 (Davis), the court reasoned that the findings on the special allegations were beyond the scope of the jury’s duties. The jury was instructed to consider the special allegations only if it found the defendant guilty. Since the jury found the defendant not guilty of first degree murder and hung on the question of second degree murder, it should not have considered any of the special allegations. Under Allen and Davis, the jury’s findings in such a situation are considered to be mere surplusage, equivalent to a lenity recommendation. The court also pointed out that the jury’s not true finding on the firearm enhancement was incomprehensible since it was proved “beyond any shadow of any doubt whatsoever that a principal” (i.e., Cisneros) discharged a firearm, killing Marquez. The court thought that, perhaps, “the jury just felt that no blank should be left unfilled on the verdict and put stuff in.”
B. The double jeopardy bar and the collateral estoppel rule are distinct legal concepts arising from the double jeopardy clauses of the state and federal Constitutions.
“The double jeopardy clauses of the Fifth Amendment to the United States Constitution and article I, section 15, of the California Constitution provide that a person may not be twice placed ‘in jeopardy’ for the ‘same offense.’ ‘The double jeopardy bar protects against a second prosecution for the same offense following an acquittal or conviction, and also protects against multiple punishment for the same offense. [Citations.]’ [Citation.]” (People v. Anderson (2009) 47 Cal.4th 92, 103-104.) “Double jeopardy precludes reprosecution for an offense of which a defendant has been acquitted or to which jeopardy has otherwise attached.” (People v. Davis (1995) 10 Cal.4th 463, 514, fn. 10.)
The collateral estoppel rule, which applies to relitigation of factual issues, is derived from the double jeopardy clause in the Fifth Amendment. (People v. Cooper (2007) 149 Cal.App.4th 500, 518.) Collateral estoppel is also known as issue preclusion. (People v. Santamaria (1994) 8 Cal.4th 903, 912, fn. 2.) It is an equitable concept based on fundamental principles of fairness and is conceptually separate and analytically distinct from double jeopardy, which applies to retrial of offenses. (Id. at p. 912, fn. 3.) Collateral estoppel may apply in criminal cases independent of double jeopardy. (See, e.g., Chamblin v. Municipal Court (1982) 130 Cal.App.3d 115, 119.)
Appellant uses the term direct estoppel in his briefing as though it is somehow different from collateral estoppel. We agree with respondent that there is no difference between collateral estoppel and direct estoppel. (See, e.g., Commonwealth v. Rodriguez (2005) 443 Mass. 707, 709-710.)
The rules governing application of the collateral estoppel rule are settled:
“… Collateral estoppel bars relitigation of an issue decided in a previous proceeding in a different cause of action if ‘(1) the issue necessarily decided at the previous proceeding is identical to the one which is sought to be relitigated; and (2) the previous proceeding resulted in a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior proceeding.’ [Citations.]” (People v. Davis, supra, 10 Cal.4th at pp. 514-515, fn. 10.)
To determine whether the collateral estoppel rule applies,
“[the court is] to ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ [Fn. omitted.] The inquiry ‘must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.’ [Citation.]” (Ashe v. Swenson (1970) 397 U.S. 436, 444.)
Where there is no dispute as to the facts, whether a defendant has been formerly in jeopardy for the same offense is a question of law for the court and not one of fact for the jury. (People v. Conson (1925) 72 Cal.App. 509, 511.)
A double jeopardy or collateral estoppel claim is forfeited on appeal unless it was first presented in the trial court. (People v. Belcher (1974) 11 Cal.3d 91, 96; People v. Neely (1999) 70 Cal.App.4th 767, 782-783; People v. Morales (2003) 112 Cal.App.4th 1176, 1186; People v. Gillard (1997) 57 Cal.App.4th 136, 160.) Appellant raised both double jeopardy and collateral estoppel claims in the points and authorities supporting the dismissal motion. Therefore, the points were preserved for appellate review.
C. The People were not collaterally estopped from retrying the gang and firearm allegations.
Appellant argues Allen and Davis are not controlling and the trial court erred by failing to apply the collateral estoppel rule to preclude retrial of the enhancements. We are not persuaded.
In Allen, supra, 41 Cal.App.3d 821, the victim was shot in the chest with a revolver. Defendant was charged with murder (count 1) and assault with a deadly weapon (count 2); a firearm enhancement was attached to each count. The jury was instructed to determine whether defendant used a firearm only if it found him guilty on either or both of the substantive crimes. The jury acquitted defendant on count 1 and deadlocked on count 2. The jury filled out the verdict form on the firearm enhancement attached to count 1, finding that it was not true.
The issue on appeal was whether the jury’s finding, in connection with the acquittal on count 1 that defendant was not using a firearm, barred retrial on count 2. The appellate court concluded the jury’s not true finding on the firearm allegation was surplusage that did not have any legal effect. It analogized the jury’s finding to a lenity recommendation. A lenity recommendation “is extraneous because punishment is not a jury function and thus beyond the scope of its duties. Likewise, when the jury made a special finding after reaching a verdict of not guilty, which it should have made only if it found defendant guilty, the finding would be discarded as beyond the scope of its duties. [Citation.]” (Davis, supra, 202 Cal.App.3d at p. 1015.) After examining the record, the court decided it was probable that the jury simply forgot that under the court’s instructions it was not to consider the firearm enhancement attached to count 1 unless it found defendant guilty of attempted murder and that it could throw away the verdict forms associated with this count once it acquitted defendant on that count. “[F]eeling that it had to do something more ceremonial with all verdict forms relating to count 1 and unable to say that defendant used a gun in committing an offense of which he was to be acquitted, the jury found -- quite logically -- that in not committing the offense he did not use a firearm.” (Allen, supra, 41 Cal.App.3d at p. 827.)
In Davis, supra, 202 Cal.App.3d 1009, this court discussed Allen in concluding that a defendant who was found guilty of second degree murder but found not guilty of involuntary manslaughter was not entitled to reversal on the theory that the conviction was inconsistent with the acquittal on a lesser included offense. We determined that defendant was not entitled to reversal simply “because of a technical error -- the jury filled in the two manslaughter verdicts rather than leaving them blank as it was instructed to do once it reached a guilty verdict on one of the murder counts. Appellant suffered no injustice because of the errors and we can think of no policy which would be served by reversing appellant’s conviction based on this clearly procedural error.” (Id. at p. 1017.)
Appellant urges this court to reject Allen because it is “rather short and superficial” and did not explicitly discuss the collateral estoppel rule. As to appellant’s contention that brevity indicates an absence of intellectual depth, it is sufficient to comment that the Gettysburg Address consists of 256 words. We are persuaded by respondent’s position that while the Allen court did not explicitly discuss the collateral estoppel rule, it essentially conducted the type of analysis our Supreme Court has determined should be undertaken when considering a collateral estoppel issue. As previously explained, the court is to conduct a practical examination of the entire record of the prior proceedings, taking account of all of the circumstances, in order to determine “‘whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’” (Ashe v. Swenson, supra, 397 U.S. at p. 444.) In Allen, the court conducted this type of examination. Therefore, we find Allen to be persuasive authority.
Having examined the entire circumstances in this matter we discern no basis to reverse the lower court’s ruling. It is apparent that the first jury did not follow their instructions to consider the special allegations only if they found appellant guilty of murder. It is evident from the jury’s colloquy with the court that they did not actually consider the merits of the special allegations. They decided appellant was not guilty of first degree murder but were irreconcilably divided on the question whether appellant was guilty of second degree murder. After declaring a mistrial, the court sent the jurors back to the jury room with directions to read CALCRIM No. 640 and complete the verdict form on the murder charge. After only a brief recess, the jurors returned with completed verdict forms not just on first degree murder but on all the special allegations attached to the murder charge. It is apparent that the jurors did not understand how to complete the verdict forms. As the trial court pointed out, if the jury had actually determined that it was not true that a principal used a firearm during the commission of the homicide, then they would have found appellant not guilty on all homicide charges since the undisputed evidence at trial proved Marquez died as a result of multiple gunshot wounds. The People did not present any alternative theory for the murder other than Cisneros shot Marquez while appellant acted as the lookout. Logically, the jury could not have been deadlocked on the question of second degree murder if it had unanimously decided that a principal did not fire a weapon during the commission of the homicide.
Since the jury did not have any authority to consider the special allegations in the absence of a guilty verdict on the murder charge and it is apparent from the record that the jury did not necessarily consider and decide the factual questions posed by the special allegations, we hold that the prosecution was not bound by the unauthorized findings. Appellant had no legitimate expectation that the unauthorized not true findings on the special allegations would preclude retrial of these allegations during the second trial. (Allen, supra, 41 Cal.App.3d at p. 827; Davis, supra, 202 Cal.App.3d at p. 1017.)
Were we to conclude otherwise, the People actually would have been precluded from retrying appellant for second degree murder because the sole theory of the case was that a principal, i.e., Cisneros, shot and killed Marquez. If the People were collaterally estopped from presenting evidence about Cisneros’s firearm use because of the unauthorized not true finding on the firearm allegation, then the People would not have had any factual theory upon which they could have retried appellant.
Accordingly, we conclude the special allegations were not actually and necessarily decided in the first trial. Fundamental principles of fairness do not require us to give any weight to the first jury’s unauthorized findings on the special allegations. Therefore, we find the People were not collaterally stopped from retrying the special allegations and uphold the denial of the dismissal motion.
III. The new trial motion was properly denied.
A. Facts
i. Voir Dire
During voir dire the judge informed the prospective jurors that there was a gang allegation in this case. He asked, “Is there anybody here, either yourself or close friends or relatives have been or are in a street gang?” Juror No. 9 responded, “I have a family member that’s involved in it, but I don’t -- I stay away. It doesn’t bother my mind at all. I’m not involved, and I don’t care to be. So I just wanted to let you know that I do have family members.” The judge asked juror No. 9 if he/she could decide this case on the evidence presented and he/she answered: “Yes. It doesn’t bother me.”
Juror No. 9 also disclosed that one of his/her cousins had been accused of murder about a year ago. This juror answered affirmatively when the court asked if he/she could set this aside and decide the case based on the evidence.
Defense counsel and the prosecutor both questioned juror No. 9. Neither the prosecutor nor defense counsel asked juror No. 9 about the gang connections of his/her family or asked if this juror was personally allied with a gang.
Juror No. 9 answered basic biographical questions during which it was ascertained that he/she was employed as a food server. He/she was married and had three children.
Neither the prosecutor nor defense counsel exercised a peremptory challenge on juror No. 9 or asked the court to excuse him/her for cause.
ii. Proceedings during trial
The prosecutor asked witness Eliseo Sanchez (Eliseo) if he knew a person named Alex Sanchez (Alex). Eliseo responded in the negative. After being shown a document, Eliseo testified that Alex was a Norteno.
Juror No. 9 passed a note to the judge which stated, “I [know] Alex Sanchez. [Lived] in the same house when he died. Don’t know if that is ok!”
Outside the presence of the other jurors, the court questioned juror No. 9 about this note. Juror No. 9 stated:
“If it’s the same Alex Sanchez from Tulare that shot himself, that’s the Alex I’m talking about. I don’t know if it’s Alex from Pixley, but I only know one Alex Sanchez, and I know he passed away around that time. So that’s why I thought I should let you know that. I lived with him at the time. I was dating his [sibling]. He was like my little brother.”
It was ascertained that juror No. 9 and the prosecutor were both referring to the same Alex Sanchez.
The court said that a poster on which “In Memory of Alex, ” was written was going to be used in as part of the basis for the gang expert’s testimony.
Defense counsel asked the court, “Can I ask [him/her]?”
Instead of replying to defense counsel, the judge asked juror No. 9, “Is that going to affect your ability to sit fairly in this case in any way?” He/she replied, “If it doesn’t have nothing to do with him, no.” The court said, “It doesn’t.” He/she responded, “If it doesn’t, then no.”
Defense counsel asked the court if he could ask juror No. 9 some questions. The court directed counsel to approach the bench; an off-the-record discussion occurred.
Then the judge asked juror No. 9, “The fact that he was Norteno-associated and defendant here may be Sureno-associated, is that going to affect your ability to be fair in this?”
Juror No. 9 replied, “Maybe a little bit.” Then he/she continued, “I’m not saying that -- I still have to see everything, so I can’t say --” The judge said, “That’s what we’re asking.” He/she said, “No.”
The court asked, “You could see the evidence and decide this based on the evidence?”
Juror No. 9 replied: “Like, okay, put it this way. Right now I can’t say he’s guilty or not guilty. Just because he’s a Sureno, that doesn’t have nothing to do with me. I don’t claim. My family does, but that has nothing to do with me.”
The court asked juror No. 9 if he/she would be influenced because the defendant is a Sureno.
Juror No. 9 replied, “I don’t claim, so I don’t care about that.”
The court thanked juror No. 9 and concluded the discussion.
Neither defense counsel nor the prosecutor asked the court to excuse juror No. 9.
On the next court day, a discussion was conducted in chambers. In relevant part, defense counsel said:
“I’m not complaining about anybody. Luis Aguilar, who is [appellant’s] brother, advised me that the … juror who knew the Norteno in the Memorial thing has like a gang tattoo and was in the hallway playing … phone rap music that was Norteno rap music, making derogatory terms to Surenos calling them Sur rattas or whatever.”
The judge asked, “The rap music was or [he/she] was?”
Defense counsel replied:
“The music [he/she] was listening to. And I heard [him/her] playing music, but I wasn’t paying attention to it. And I myself did see that [he/she] has a big red star tattooed on [his/her] neck. And I just wanted to bring it to [the] Court’s attention so that the Court could deal with it how he sees proper.”
The judge asked, “Well, what do you suggest? We’ve already talked to [him/her].”
Defense counsel said,
“Yeah. And I remember what [he/she] said. I just -- I wanted to just maybe follow-up. I don’t know if it’s too late in the game to just ask [him/her] if, you know, if [he/she] sides one side or anything like that. [He/she] had mentioned that [he/she] has family that were gangs, and that [he/she] knew that person. But it was never really brought up that if [him/her] family’s, you know -- if [he/she] would tend to side with a gang or be biased against my client because he’s in a rival gang.”
The judge said, “I think I asked [him/her] that directly.” Defense counsel said, “Okay.” The court stated that it would ask the court report to verify its recollection. Defense counsel said, “However you see proper. I’m not trying to --” The judge said, “No. That’s appropriate.”
Then the judge asked, “What’s a red star? That’s a new one on me.”
Defense counsel replied, “It’s a North Star. It’s called like the North Star, and it’s in red.”
The prosecutor said, “Dilbeck talked about it at the last trial when he was looking at some of those things about the stars. It’s in the transcript of the last trial. That north, North Star, I don’t know … [¶] … [¶] … [t]he constellation they’re referring to.”
When Officer Dilbeck was called as a defense expert witness later in the trial he testified, in relevant part: “… Nortenos identify with being Northerners. The star being the North Star.” One of the words Surenos call Nortenos is estrellas, which is the Spanish word for stars. After defense counsel elicited this testimony from Officer Dilbeck, he did not ask the court to dismiss juror No. 9.
Defense counsel said, “Something like that. But basically North Star, and it’s in red. Apparently his witness Ramon Pulido had seen that underneath it. It had some writing with a big N on it, something like that.”
The prosecutor asked, “On [him/her]?” Defense counsel replied, “Yeah.”
The judge asked, “When are these guys seeing this stuff?”
Defense counsel said, “Apparently in the hallway. Because I saw [him/her] when I was I distanced myself.”
The judge asked, “I got one question. What are they doing close enough to the jurors to be able to see that?”
Defense counsel replied, “I think if they were -- I don’t know -- I didn’t talk to Mr. Pulido who noticed that. I saw the star on the neck. But earlier I distanced myself way on the far end, and [he/she] was blasting the music on [his/her] phone, rap music. And I wasn’t paying attention. I was reading.”
The judge directed defense counsel, as follows: “Well, maybe you can check after we adjourn. It shouldn’t be that hard to find…. I think I asked [him/her] a direct question about would one -- north versus south cause you to --” Defense counsel interrupted, saying, “Okay.” The judge continued, “I think we got a direct answer to the question. So let’s check that out and then we’ll take it up after that.” Defense counsel said, “Okay. Thank you.”
Later that day, outside the presence of the jury, the judge stated that the reporter’s transcript reflected that juror No. 9 “was directly asked, ‘Just because he was Sureno that doesn’t have nothing to do with me. I don’t claim.’” Defense counsel replied, “Okay.” The judge continued:
“‘The family does.’ And I asked specifically, ‘The fact that he’s a Norteno, is that going to affect your ability?’ At first [he/she] said, ‘Maybe a little bit.’ Then [he/she] backs off and says, ‘I’m not saying that. I still have to see everything.’ ‘That’s what we’re asking. You could see the evidence, decide it based on the evidence?’ ‘I don’t claim.’ Then [he/she] says later, ‘Because he’s a Sureno, therefore’ -- ‘I don’t claim so I don’t care about that.’”
Defense counsel said, “Okay.” The judge said, “So I think that’s covered.”
Defense counsel did not ask the court to dismiss juror No. 9 at any point during the trial or assert that he/she had concealed material information during voir dire.
iii. Posttrial proceedings -- new trial motion
Appellant filed a written motion for new trial. In relevant part, he argued juror No. 9 committed misconduct by concealing his/her bias against appellant because of his Sureno gang affiliation.
Defense counsel filed a supporting declaration in which he alleged juror No. 9 “played Norteno rap in front of fellow jurors and the defendant’s family in the courthouse hallway.” Also, juror No. 9 “had a red star tattoo and wore stars throughout trial indicative of Norteno gang affiliation.” Further, juror No. 9 “lived [in the same house] with a deceased Norteno gang member Alex Sanchez.”
Appellant filed a declaration in which appellant alleged that a fellow prisoner, Abel Vasquez, told appellant that he knew juror No. 9 and he/she voted in favor of guilt because he/she was scared of appellant.
The motion was denied after hearing. In relevant part, the court reasoned:
“[¶] And here there were three allegations of misconduct. The first was as to juror number nine, allegations relating to playing Norteno rap music in the hallway. And as to that, there really was no admissible evidence that, in fact, it was Norteno rap music. There’s no foundation to prove that it was.
“But even if it were, it didn’t establish misconduct, because juror number nine was the one who very frankly revealed [his/her] family gang connections. [He/she] disclosed a connection with a person in a photo. [He/she] was questioned about that and stated that [he/she] felt [he/she] could be fair.”
The court also stated:
“[¶] … [T]he cases, in fact, require as part of a declaration and as part of the defendant’s showing evidence that neither the defendant nor the defendant’s counsel were aware of the misconduct.
“And this would apply certainly to the hallway rap music allegation where I’m denying …. And as I did state before, a person can’t use as the basis for a motion for new trial conduct which might have been cured if timely reported.
“You’re not allowed to gamble on the outcome while secretly preserving the error in the event of an unfavorable verdict.”
B. Appellant did not prove that juror No. 9 concealed a Norteno affiliation, a bias against Surenos or otherwise committed misconduct.
A juror’s concealment of bias constitutes misconduct and is ground for a new trial. (People v. Nesler (1997) 16 Cal.4th 561, 581-582 (Nesler).) “A juror who conceals relevant facts or gives false answers during the voir dire examination thus undermines the jury selection process and commits misconduct. [Citations.]” (In re Hitchings (1993) 6 Cal.4th 97, 111.)
Where a party seeks a new trial based upon jury misconduct, the court must undertake a three-step inquiry. First, it must determine whether the evidence presented for its consideration is admissible. If it finds the evidence is admissible, it must then consider whether the facts constitute misconduct. If misconduct is found to have occurred, the court must determine whether the misconduct was prejudicial. Reversal is required unless the reviewing court finds there is no substantial likelihood that a juror was improperly influenced against the defendant. A reviewing court will uphold the trial court’s ruling on a new trial motion unless it clearly appears that a manifest and unmistakable abuse of discretion occurred. (People v. Duran (1996) 50 Cal.App.4th 103, 112-113.)
We agree with respondent that appellant did not present admissible evidence proving juror misconduct. Appellant mistakenly treats the hearsay assertions in defense counsel’s declarations as established facts. During trial, defense counsel told the court that he was not paying attention to the music he heard juror No. 9 playing. Defense counsel did not have any personal knowledge whether the music was Norteno rap. Also, defense counsel did not report to the court that he saw the letter N inside the star that was tattooed on juror No. 9’s neck. Ramon Pulido, who allegedly saw the letter N inside the tattooed star, did not testify to this fact at trial or submit a declaration supporting the new trial motion.
In the absence of evidence proving that juror No. 9 was listening to Norteno rap or that the tattoo on his/her neck definitely signified a personal Norteno affiliation, there was no admissible evidence supporting appellant’s assertion that juror No. 9 concealed facts indicating a bias against Surenos.
Juror No. 9 disclosed during voir dire that some of his/her family members were affiliated with the Nortenos and during trial disclosed that he/she lived with the family of a Norteno member. Acquaintance alone does not imply bias. (See, e.g., People v. Cochran (1998) 62 Cal.App.4th 826, 831.) When questioned by the court during trial after he/she disclosed that he/she had resided with Alex Sanchez and his family, he/she affirmed that he/she could be fair and was not biased against defendant because of his Surenos affiliation.
Therefore, we conclude the record does not contain admissible evidence supporting appellant’s claim that juror No. 9 concealed a bias against Surenos or that he/she failed to disclose material information during voir dire. Therefore, we uphold the denial of the new trial motion on this basis.
C. The related ineffective assistance claim must be presented in a petition for habeas corpus.
Appellant also argues defense counsel was ineffective because he failed to move to discharge juror No. 9 during trial and did not obtain declarations supporting his allegations in the new trial motion that juror No. 9 was listening to Norteno rap music during trial and that the tattoo on this juror’s neck had the letter N inside it. As will be explained, we agree with respondent that this ineffective assistance claim is properly presented in a petition for habeas corpus.
The applicable legal principles are well-established:
“To prevail [on an ineffective assistance claim], defendant must first show that ‘“counsel’s representation fell below an objective standard of reasonableness... under prevailing professional norms.”’ [Citations.] Second, defendant must show that the inadequacy was prejudicial, that is, ‘“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.”’ [Citations.]
“If ‘counsel’s omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.’ [Citation.] When, however, the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsel’s reasons. To engage in such speculations would involve the reviewing court ‘“in the perilous process of second-guessing.”’ [Citation.] Because the appellate record ordinarily does not show the reasons for defense counsel’s actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, rather than on appeal. [Citation.]” (People v. Diaz (1992) 3 Cal.4th 495, 557-558.)
In this case, there is no indication in the record why defense counsel did not move to dismiss juror No. 9 during trial. Also, there is no indication in the record why he did not present declarations to support the factual assertions contained in his new trial motion. However, we can posit several reasonable tactical reasons for both of these decisions.
Defense counsel may have wanted to retain juror No. 9 as a juror, while still making a record for a new trial motion or appeal if his client was found guilty. Thus, he raised the point to the judge during trial but did not move to dismiss the juror or ask to have Pulido or appellant’s brother testify about the type of music juror No. 9 was listening to or whether there was an “N” inside the star tattoo.
Defense counsel reasonably could have made a tactical decision that juror No. 9 might have been sympathetic toward his client. He could have thought that this juror’s familial gang connections might have made him/her sympathetic toward all gang members, regardless of their particular gang affiliation. Also, defense counsel reasonably could have thought that this juror might have an unfavorable view toward law enforcement. This could benefit his client because some of the incriminating evidence was elicited during interviews with police officers. Further, defense counsel reasonably could have decided that he wanted to retain juror No. 9 because he/she might be receptive to his theory that appellant did not change gang affiliations and the murder occurred for purely personal reasons. He might have thought that this juror would be responsive to his argument that gang members commit crimes that are not gang related and the murder was such a crime. Finally, defense counsel might not have exercised a peremptory challenge or asked for juror No. 9 to be removed because he believed this juror’s assurances that he/she could decide the case fairly.
With respect to the new trial motion, it is entirely possible that defense counsel failed to obtain declarations from Pulido and appellant’s brother because they were not available or they did not recollect the relevant facts. There is nothing in the appellate record indicating that these individuals were available and remembered the key facts. Defense counsel may have submitted the personal declaration containing hearsay because he could not obtain declarations from appellant’s brother or Pulido.
Since the appellate record does not shed any light on the reasons why counsel acted or failed to act in the manner challenged on appeal, and it does not necessarily appear that defense counsel’s course of conduct could not have been the result of reasonable tactical decisions, this claim is properly decided in a habeas proceeding rather than on direct appeal. (People v. Diaz, supra, 3 Cal.4th at pp. 557-558.) Accordingly, we reject the ineffective assistance claim on this basis.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Gomes, J., Dawson, J.