Opinion
D056544 Super. Ct. No. SCD193826
01-12-2012
THE PEOPLE, Plaintiff and Respondent, v. GEORGE BERARDI et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEALS from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed.
A jury convicted defendants Daniel May and George Berardi of one count each of conspiracy to commit murder (Pen. Code, § 182, subd. (a)(1), count 1) and one count each of first degree murder (§ 187, subd. (a), count 2) as a result of the death of the victim, Marcus Kegler. The jury found true the special allegation attached to the charges against May that he personally discharged a firearm within the meaning of section 12022.53, subdivision (d), in committing the murder. The jury also found true the special allegation attached to the murder charge against Berardi that he was armed with a firearm during the commission of the charged offenses within the meaning of section 12022, subdivision (a)(1).
All statutory references are to the Penal Code unless otherwise specified.
On appeal, both May and Berardi argue the trial court abused its discretion when it rejected their claim of jury misconduct. May, joined by Berardi, contends the court misinstructed the jury on the conspiracy charge.
I
FACTUAL BACKGROUND
A. The Kegler-Winchell-Berardi Love Triangle
The victim, Marcus Kegler, met Desiree Winchell when they were in junior high school together, and they became good friends. However, in 2000 Kegler left California and moved to Mississippi.
After Kegler left California, Winchell became romantically involved with Berardi. By 2004, Winchell and Berardi had begun living together. May, who was Berardi's best friend, lived in the same house with Winchell and Berardi.
By the end of 2004 or the beginning of 2005, the Winchell-Berardi relationship had deteriorated, and they fought frequently. In January 2005, Winchell decided to end their relationship and told Berardi of her decision. Berardi asked her to give him until July to show the relationship could work, and she agreed, but the arguing persisted.
In January 2005 Winchell received an unexpected phone call from Kegler and they resumed their friendship. Berardi was aware of their communications and these contacts became another source of conflict between Berardi and Winchell.
At the end of April 2005, Winchell moved out of the house she was sharing with Berardi. As Winchell was moving out, Berardi tried to stop her. He smashed her cell phone on the ground, physically pinned her down, and told her she was not going to leave. Winchell nevertheless moved out and began living with her mother.
Around the time she began living with her mother, Winchell also purchased an airline ticket for Kegler to visit her in San Diego. Kegler arrived in early May 2005 to visit. Although Kegler initially planned to stay for only a week, he decided to stay indefinitely in San Diego and moved into his uncle's home on Castle Glen Drive in San Diego. Winchell and Kegler began a romantic relationship, and he stayed on occasion with Winchell in her apartment.
When Winchell left Berardi, she took some possessions belonging to him and Berardi later went to Winchell's apartment to collect them. Kegler was present when Berardi arrived. Berardi became angry, said Kegler should not be there, and sped away. Berardi called a few minutes later and argued with Winchell on the telephone. Kegler took the phone from Winchell and argued with Berardi, and the two men threatened each other.
After Kegler arrived in San Diego and his relationship with Winchell deepened, Berardi threatened to kill him on more than one occasion.
At the end of May 2005, Berardi went to Los Angeles accompanied by Winchell. While in Los Angeles, Berardi tried to convince her to marry him, but she refused. After a short stay in Los Angeles, Berardi returned to San Diego in late June or early July 2005. Berardi (along with May) began staying at the apartment of Nathaniel Green (a friend of Berardi) and Anna Tong (Green's girlfriend). The apartment was approximately one block east of Castle Glen Drive.
B. The Murder
In the early evening of July 8, 2005, Kegler was shot in a cul-de-sac near his uncle's home. He later died from this injury. The shooting site was near Green's apartment. The events of the day leading up to the shooting formed a significant aspect for the prosecution's case against Berardi and May.
Kegler's Planned Meeting With Berardi
Kegler and Winchell were scheduled to go to Ms. Wiggins's home on the evening Kegler was killed. Earlier during that day, Kegler called Wiggins to tell her he was trying to buy some marijuana to bring with him to Wiggins's home. He told Wiggins he was planning to meet with Berardi around 3:00 p.m. that afternoon to acquire the marijuana. Wiggins expressed concerns to Kegler about dealing with Berardi because Berardi was unhappy about Kegler's relationship with Winchell.
In the two hours before the scheduled meeting between Berardi and Kegler, Berardi's cell phone records showed repeated calls from Berardi's cell phone to Green (the apparent source for the marijuana) but Green did not answer. The records also showed several phone calls from Kegler to Berardi during that afternoon. The planned mid-afternoon rendezvous between Berardi and Kegler did not occur because Berardi was unable to obtain the marijuana for Kegler.
Berardi had spoken to Green about getting a quantity of marijuana to sell to Kegler, but Green was reluctant to help because he had heard Kegler had threatened Berardi.
However, when Kegler left work around 4:00 p.m., a coworker (Mr. Zanina) gave him a ride to Kegler's residence on Castle Glen Drive. On the way, Kegler told Zanina he planned to buy some marijuana later that day from his girlfriend's ex-boyfriend. After Kegler got home, phone records showed several more calls were placed between Kegler and Berardi between 4:00 and 6:00 p.m.
Berardi Establishes His Alibi
Around 5:30 p.m., Winchell arrived at Kegler's apartment. Kegler told Winchell he was almost ready to leave for Wiggins's residence, and Winchell phoned Wiggins at 5:35 p.m. and left a message for Wiggins that they would be leaving soon. However, at 5:41 p.m., Berardi phoned Kegler, and at 5:51 p.m., Kegler returned Berardi's telephone call. Ms. Tong, who was with Berardi when he received the latter phone call, overheard Berardi mention a quarter pound of marijuana, a price, and the cul-de-sac, and Berardi told Kegler they would meet immediately and that Berardi would be at the meeting.
Tong and Berardi were en route to a pizza restaurant together when the 5:51 p.m. call came. Tong testified the genesis of their trip to the restaurant began when she was at her apartment with May, Berardi, Green and another man. Berardi asked Tong to accompany him to a restaurant for beer and breadsticks, and Tong thought the invitation was unusual because she and Berardi had typically gone out together with other friends. However, she accepted Berardi's invitation and they left the apartment around 5:45 p.m.
When interviewed by a defense investigator in 2008, Tong allegedly told the investigator that Berardi did not tell Kegler that he would meet Kegler to do the transaction, but instead told him that Kegler "would be met on the cul[-]de[-]sac."
Berardi did not go to the meeting with Kegler. Instead, after stopping briefly at a 7-Eleven Store, Berardi and Tong went to the restaurant. While there, Berardi told Tong that May was going to shoot Kegler because Berardi wanted Kegler dead, and that Berardi planned to keep the receipts from their visits to the 7-Eleven Store and the restaurant for his alibi, and that Tong (as well as a friend of Berardi's who worked at the restaurant) would verify his alibi. While still at the restaurant, Berardi received a call from May, and Tong overheard May report that the "pizza has been delivered." Berardi decided they could leave because the "coast was clear" and told Tong that, if anyone asked, Tong should tell them that Berardi had been with her at the 7-Eleven Store and the restaurant.
May Meets With and Shoots Kegler
Meanwhile, Kegler (apparently in response to his last phone conversation with Berardi) woke Winchell up around 6:15 p.m. and told her he was leaving the Castle Glen Drive apartment but would be right back. He did not say where he was going or what he needed to do, and Winchell fell back asleep.
At Green's apartment, after Berardi and Tong left for the restaurant, May asked Green to supply him with a quarter pound of marijuana that May was to sell to someone. Green did not know the identity of May's customer. May took the marijuana and left to meet with Kegler. He returned about 15 to 20 minutes later, and Green overheard May speaking on the phone and saying something about "the pizza." Mr. Cameron testified he was at the apartment when May left with the marijuana and that, when he returned, May was calm.
A defense investigator testified she interviewed Cameron in 2008 and that Cameron told the investigator May was distraught when he returned, and that Berardi seemed shocked when he learned Kegler had been killed. The investigator also interviewed Tong, who told her that May was fearful of Kegler and felt threatened when he shot him.
At 6:17 p.m., a local resident discovered Kegler lying on the ground and called 911. Police and paramedics arrived, and Kegler was taken to a hospital, where he later died from a gunshot wound to the head.
C. The Investigation and Subsequent Events
After police arrived and questioned Winchell, they went to Green's apartment and separately questioned Tong and Berardi. Tong did not reveal the events at that time because she did not want to get involved. Police did not arrest Berardi because he denied any knowledge of the shooting and his proffered alibi was corroborated by Tong. After police left, Tong went to her room to shower. She found May hiding in a closet, and May later told Tong that he had shot Kegler at close range in the head.
May decided to leave town because he was scared. Surveillance tapes from the Greyhound Bus depot in San Diego showed May was at the ticket counter at 12:45 a.m. on July 9 purchasing a ticket for Las Vegas and showed May in line to board the bus at 6:26 a.m. that morning.
Berardi subsequently told police May was in Las Vegas, and Las Vegas authorities arrested May at the request of San Diego police. Detective Young interviewed May on August 26, 2005, but later released him. However, on August 31, 2005, Detective Young again interviewed May by phone, and during this interview, May confessed to shooting Kegler. May claimed that he went to sell marijuana to Kegler and, after giving it to him, May "freaked out" when Kegler reached into his pocket. May claimed he thought Kegler was reaching for a gun, and reacted by shooting Kegler. When Young informed him that no gun had been found, May began to cry and ended the phone call.
In September 2005, when May was in custody in San Diego, he agreed to do a video reenactment of the shooting, and the video reenactment was played for the jury. The jury also viewed a videotape, taken by a security camera from a nearby business, which was running during the shooting.
D. Defense Evidence
The defense attacked Tong's credibility through several avenues. First, the defense relied on her admissions that she did not tell police about her conversation with Berardi at the restaurant or about May's involvement when she was initially interviewed, and did not tell police about the conversation until many months later, and that she asked for immunity from any possible charges arising from the events. Second, the defense called Lucas Irwin, Tong's former husband, who testified she lied about him in court during a prior custody dispute and that she was a vindictive person. Third, the defense showed Tong bore animosity towards Berardi and was willing to do anything, including lie, to get Berardi out of Green's life.
The defense also called Mr. Ahmu, Berardi's friend who worked at the restaurant that night. Ahmu testified neither Berardi nor Tong seemed to be under any stress and that Tong left the restaurant smiling. The time stamp on the receipt from the restaurant, which was off by about 40 minutes, indicated they paid for their food at about 6:24 p.m.
The defense also introduced the testimony of Mr. and Mrs. Burkheart, May's employers in Las Vegas, who testified he was an honest, nonviolent person. Mrs. Burkheart also testified she was present when May had the telephone interview with a San Diego detective concerning the shooting. Mrs. Burkheart testified that, after May hung up, he was distraught because the detective told May that Kegler had been unarmed and May said he thought Kegler had a gun.
II
ANALYSIS OF JURY MISCONDUCT CLAIM
Berardi and May assert the trial court abused its discretion by refusing to grant a new trial based on alleged juror misconduct. May and Berardi argue one of the jurors (Juror No. 9) displayed, by words and deeds during deliberations, that he was racially biased against the defendants. May and Berardi assert that bias constituted misconduct requiring a new trial, and denial of the motions for new trial was an abuse of discretion.
A. Legal Framework
Substantive Rights
An accused has a constitutional right to a trial by an impartial jury. (In re Hitchings (1993) 6 Cal.4th 97, 110.) "An impartial jury is one in which no member has been improperly influenced [citations] and every member is ' "capable and willing to decide the case solely on the evidence before it." ' " (In re Hamilton (1999) 20 Cal.4th 273, 294.)
Because a defendant charged with a crime is "entitled to be tried by 12, not 11, impartial and unprejudiced jurors" (People v. Holloway (1990) 50 Cal.3d 1098, 1112, disapproved on other grounds by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1), the law is "clear that even one biased juror requires overturning the verdict." (In re Carpenter (1995) 9 Cal.4th 634, 652.) However, "before a unanimous verdict is set aside, the likelihood of bias . . . must be substantial. As indicated in the high court decisions discussed above, the criminal justice system must not be rendered impotent in quest of an ever-elusive perfection. The jury system is fundamentally human, which is both a strength and a weakness. [Citation.] Jurors are not automatons. They are imbued with human frailties as well as virtues. If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias. To demand theoretical perfection from every juror during the course of a trial is unrealistic." (Id. at pp. 654-655.)
As explained by the court in People v. Nesler (1997) 16 Cal.4th 561, 580-581:
"What constitutes 'actual bias' of a juror varies according to the circumstances of the case. [Citation.] In assessing whether a juror is 'impartial' for federal constitutional purposes, the United States Supreme Court has stated: 'Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.' (United States v. Wood (1936) 299 U.S. 123, 145-146 . . . .) ' "The theory of the law is that a juror who has formed an opinion cannot be impartial." [Citation.] [¶] It is not required, however, that the jurors be totally ignorant of the facts and issues
involved. . . . It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.' [Quoting Irvin v. Dowd (1961) 366 U.S. 717, 722-723, italics added by Nesler. ] ' "[L]ight impressions, which may fairly be presumed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of the testimony, constitute no sufficient objection to a juror; but . . . those strong and deep impressions which close the mind against the testimony that may be offered in opposition to them, which will combat that testimony and resist its force, do constitute a sufficient objection to him." ' [Quoting Reynolds v. United States (1878) 98 U.S. 145, 155.] An impartial juror is someone 'capable and willing to decide the case solely on the evidence' presented at trial."
Procedural Framework
When a defendant discovers posttrial that a juror was guilty of misconduct as a result of " 'an actual [bias]' . . . [which] in this context is defined as 'the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party,' " the defendant may move for a new trial. (People v. Nesler, supra, 16 Cal.4th at p. 581.) The trial court is vested with broad discretion when ruling on a motion for new trial based on alleged jury misconduct (People v. Dykes (2009) 46 Cal.4th 731, 809) and, "[w]hen a defendant moves for a new trial based on jury misconduct, the trial court undertakes a three-part inquiry. 'First, the court must determine whether the evidence presented for its consideration is admissible. . . . [¶] Once the court finds the evidence is admissible, it must then consider whether the facts establish misconduct. . . . [¶] Finally, if misconduct is found to have occurred, the court must determine whether the misconduct was prejudicial.' (People v. Duran (1996) 50 Cal.App.4th 103, 112-113.) In making the determination as to the admissibility of the evidence presented, including declarations of jurors, '. . . the trial court must take great care not to overstep the boundaries established by Evidence Code section 1150.' (Id. at p. 112.)" (People v. Sanchez (1998) 62 Cal.App.4th 460, 475.)
Within the boundaries established by Evidence Code section 1150, evidence that the internal thought processes of one or more jurors were biased is ordinarily inadmissible to impeach a verdict. Instead, a jury's impartiality may be challenged only "by evidence of 'statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly,' but '[n]o evidence is admissible to show the [actual] effect of such statement, conduct, condition, or event upon a juror . . . or concerning the mental processes by which [the verdict] was determined.' [Citations.] Thus, where a verdict is attacked for juror taint, the focus is on whether there is any overt event or circumstance, 'open to [corroboration by] sight, hearing, and the other senses' [citation], which suggests a likelihood that one or more members of the jury were influenced by improper bias." (In re Hamilton, supra, 20 Cal.4th at p. 294, fn. omitted, italics added by Hamilton.)
When reviewing a trial court's ruling on a new trial motion based on juror misconduct, we exercise independent review of the issue of prejudice but accept the factual findings of the trial court if supported by substantial evidence. (People v. Dykes, supra, 46 Cal.4th at p. 809.)
B. The Evidence and Motions for New Trial
After the verdicts were returned, Juror No. 5 wrote a letter to the court describing an outburst by Juror No. 9 that occurred during deliberations. The court decided to investigate the outburst by inviting any juror, on a voluntary basis, to participate in answering questions about the events that Juror No. 5 had described. The court asked for, and all parties submitted, proposed questions to be posed to the jurors willing to participate, and the court noted the questions as drafted by May's counsel "were what [the court was] looking for," although many of those questions were variants of the questions proposed by the prosecution and Berardi's counsel. The court elected to use the questions drafted by May's counsel, with some modifications, and proceeded to interview the six jurors who volunteered to participate. Juror No. 9, the only black juror on the panel, did not agree to participate.
Juror No. 1:
Juror No. 1 stated all jurors participated in the deliberations "to some extent," and that Juror No. 9 was a more active participant at the beginning of the deliberations. Juror No. 1 said that Juror No. 9 was not inattentive, but did not watch the security system tapes when the rest of the jury chose to watch them because he felt he already "knew everything he needed to know." Juror No. 1 was one of the two or three jurors who voted to convict after viewing the security system tapes, which was the verdict that Juror No. 9 "thought we should have reached from the beginning."
Juror No. 9 did appear hostile, and turned his back toward other jurors. Juror No. 9 expressed the opinion the rest of the jurors were "taking too long" in their deliberations, and stated (either just after or just prior to the conclusion of jury deliberations) that "if it had been a white boy on the ground and a black boy who had done the shooting . . . it wouldn't have taken us five minutes to reach the verdict." When Juror No. 1 responded angrily by saying, "How dare you consider me a racist," Juror No. 9 repeatedly said "If the shoe fits, wear it." Juror No. 1 indicated Juror No. 9's outburst seemed "farfetched" because none of the jurors made any overt mention of the race of the victim or the defendants while deliberating.
Juror No. 3:
Juror No. 3 stated all jurors participated in the deliberations, and no juror refused to review or consider any evidence. Juror No. 3 described an outburst, which he believed occurred the day before the jury reached its common verdict, and said "there was a race card played which turned some of the jurors off," because Juror No. 9 said "if there was a white man shot by a black man . . . this would all be over very early." The outburst angered a lot of the jurors, but "[i]t died down."
Juror No. 5:
Juror No. 5 described Juror No. 9 as disrespectful, because Juror No. 9 spent some of the time with his back towards the other jurors and at times scoffed or made "noises," like he had made up his mind and anyone who disagreed with him would incite Juror No. 9 to say things like "You just don't get it" or "You don't understand." Although Juror No. 9 acted "aloof . . . with his back turned to us, he was participating . . . and he did contribute some in the arguing." There were three jurors who believed the defendants were not guilty or not guilty as charged, but two of them had changed their minds and one was "still half and half" before Juror No. 9's outburst, but the jury became unanimous after the outburst. Juror No. 3 stated "we were 99-percent done and I thought that we were doing good [and] when that tirade started, it was astonishing. It was so out of place. It was not needed." The unanimous verdict was reached within 10 or 15 minutes after the outburst.
By the time of the outburst, the arguments of the jurors in favor of acquittal had been "thinning," and several other jurors scolded Juror No. 9 for his outburst. Juror No. 5 stated the outburst did not change the verdict but may have "sped us along" in the direction the jury was already heading.
Juror No. 11:
Juror No. 11 stated all jurors participated in the deliberations, and no juror refused to review or consider any evidence, although it "might have appeared at times" that Juror No. 9 was inattentive because he had his back to the jury looking at a picture on the wall. The only time the race of the victim or the defendants was discussed was after the verdicts had been reached, and Juror No. 11 also believed it may have occurred after the verdicts had been signed, when Juror No. 9 said words to the effect of "[i]f this had been a white man, we would have done this a long time ago," which elicited groans and one stern response. Juror No. 11, who described the deliberations as "an ordeal," said there were arguments between jurors over the facts that "would get a little testy" (some of which involved Juror No. 9 and others in which Juror No. 9 was not involved), but these did not seem to have intimidated or placed undue pressure on any juror.
Juror No. 12:
Juror No. 12 stated all jurors participated in the deliberations and no juror was inattentive or refused to review or consider any evidence. Juror No. 12 stated that Juror No. 9 at times exhibited nonverbal and verbal behavior that Juror No. 12 interpreted as expressing a belief by Juror No. 9 that the other jurors were naïve or lacked the experience that Juror No. 9 had with crime, including rolling his eyes or saying, "In my neighborhood, we know what a gunshot sounds like." Juror No. 9 was listening and participating and it was "[j]ust the nature of his participation was somewhat unattractive at times." The emotional outburst came on the last day, after all of the jurors had agreed on the verdict, when Juror No. 9 said, "If [the victim] had been white, it wouldn't have taken you so long," which angered some of the other jurors. Although Juror No. 12 was one of the three jurors originally unconvinced beyond a reasonable doubt, Juror No. 12 was actually surprised there had not been more racial tension in the jury room and, when Juror No. 9 made his statement, Juror No. 12 "could see the truth in what he was saying. It wasn't real diplomatic, but that was from his frame of mind. I think that was certainly a possibility."
Juror No. 2:
Juror No. 2 stated all jurors participated in the deliberations, "[s]ome more than others," and that Juror No. 9 would often not say anything, but "every once in a while, he would contribute what he thought was important." Although he had his back to group most of the time, he was not inattentive and "you could tell that he was listening . . . [from] his body language." Juror No. 2 said the outburst came at the end of the deliberations. At that point, when the vote was 11 to 1 in favor of conviction, the last hold-out (apparently seeing the handwriting on the wall) started to cry and said, "I just wish there is some other way. It is so hard to say this. It is obvious, but I wish there was some other way." Juror No. 9 got really annoyed and said, "If this had been a white boy that had been killed by two black boys, he would have been tried and hung by now," and when the others chastised Juror No. 9 for that comment, he said, "if the shoe fits, wear it." Other than that occasion, the race of the victim and the defendants was not mentioned in the deliberations.
The Motions for New Trial
After receiving the evidence, the court provided all parties an opportunity to file written motions for and in opposition to a new trial.
Both Berardi and May argued the evidence showed Juror No. 9 was actually biased against them and that bias warranted a new trial. May also asserted Juror No. 9's inattentiveness, refusal to deliberate, and intimidation of other jurors was misconduct warranting a new trial, and Berardi appeared to echo May's claim that the jury was intimidated or rushed into its verdict by Juror No. 9. The prosecution opposed the motion, arguing the evidence did not show (1) Juror No. 9 held biases against the defendants so that as a demonstrable reality Juror No. 9 was unable to perform his duty as a juror, (2) Juror No. 9 was either inattentive or refused to deliberate, or (3) Juror No. 9 had committed misconduct by intimidating the other jurors into convicting the defendants.
Although both defendants also alleged Juror No. 9 committed misconduct because he had improper contact with the victim's family during trial, the court asked the jurors about this allegation and, in denying the new trial motions, found there was no corroborating evidence of improper communication between Juror No. 9 and anyone associated with either side. Because substantial evidence supports the finding that there was no improper contact, and neither party resurrects that particular claim on appeal, we do not further consider it.
The Ruling
The court, recognizing it was to employ the three-step analysis as outlined in People v. Sanchez, supra, 62 Cal.App.4th at page 475 to assess the defense claims of juror misconduct, acknowledged the first step was problematic because the evidence elicited by the questions the parties agreed on comprised a "mixed bag of admissible and potentially inadmissible evidence." The court concluded the evidentiary problems would not preclude the court from evaluating the second step—whether there was any actual misconduct—and ruled there was not misconduct. The court observed that:
The court acknowledged that "a lot of statements attributed to Juror Number 9 that isolated in and of themselves probably would not be admissible [as] reflecting on the thought processes of that particular juror in reaching a determination in the case." The court also recognized that some of the questions asked jurors to give opinions on "the thought processes or effects that certain statements [by Juror Number 9] would have [on the juror]."
"the way that Juror Number 9 conducted himself . . . is not the way we'd like to see it handled [and] . . . it would have been more appropriate had he been more courteous [to other jurors]. But [the jurors who testified] never said that he was inattentive, [or] somehow disregarded the law. . . . He was confrontational at times . . . but that's nothing more than we see in murder juries all the time. . . . [¶] . . . [T]here was nothing . . . to suggest to me that Juror 9's activity was anything more than . . . unpleasant . . . . [The other jurors] didn't like it, but they didn't let it affect them."
C. Analysis
We conclude the trial court did not abuse its discretion in denying the motions for new trial. May and Berardi's first set of claims—that Juror No. 9 was inattentive or refused to deliberate—was rejected by the trial court, and the jurors' answers to the questions posed by the parties provide ample evidentiary support for the trial court's factual finding. Although Juror No. 9 may have elected to seat himself in a discourteous manner, he was not physically separating himself from the other jurors to avoid participating. To the contrary, Juror No. 5 affirmed that, while Juror No. 9 as acting "aloof . . . with his back turned to us, he was participating . . . and he did contribute some in the arguing" (italics added), and Juror No. 2 stated that even when Juror No. 9 had his back to group he was not inattentive and "you could tell that he was listening . . . [from] his body language." (Italics added.) Moreover, the fact that Juror No. 9 was an early advocate for conviction, and may have been uninterested in viewing a security tape toward the end of the deliberations, does not equate with a "refusal to deliberate." In People v. Cleveland (2001) 25 Cal.4th 466, the Supreme Court (dealing with the analogous problem of whether a juror may be discharged for misconduct because he does not deliberate) defined the phrase "refusal to deliberate" to mean a juror's "unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views. Examples of refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury." (Id. at p. 485.) Importantly, the Cleveland court noted the circumstance that a juror does not deliberate well or relies on faulty logic or analysis does not constitute a refusal to deliberate and, similarly, "the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge. A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussions will not alter his or her views." (Ibid.)
Berardi, noting the evidence that Juror No. 9 declined invitations from other jurors to lunch with them during trial, suggests this was further evidence that he was trying to separate himself from other jurors. However, there are multiple reasons Juror No. 9 may have chosen to spend his lunch break on his own (e.g., running his business, meeting friends or family for lunch, shopping, etc.), all of which are much more benign than the nefarious inference Berardi urges.
The principal argument by May and Berardi is that Juror No. 9 held racially-based biases against the defendants so that he was unable to perform his duty as a juror, which amounted to misconduct. However, the courts have repeatedly held bias will not be presumed and an alleged bias that renders a juror unable to perform his or her duty as a juror must appear in the record as a "demonstrable reality." (See, e.g., People v. Beeler (1995) 9 Cal.4th 953, 975; People v. Holloway (2004) 33 Cal.4th 96, 124-125.) The only overt evidence cited by May and Berardi to support their claim that Juror No. 9's racial prejudice rendered him unable to perform his duty as a juror was the single comment by Juror No. 9 that he believed the jury would have reached a verdict much more quickly had the case involved a white man shot by a black man. However, the evidence showed this statement was the only reference ever made by Juror No. 9 to the respective races of the parties. Moreover, the evidence showed Juror No. 9's statement came after lengthy deliberations and could well be understood to reflect his bewilderment that, in what appeared to him to be a clear case (where May confessed to the shooting and Tong's testimony clearly showed Berardi orchestrated Kegler's rendezvous with May and had foreknowledge of the need for an alibi), the lone hold-out was still reluctant to convict the defendants. Indeed, because the evidence appeared to show his comment came only after these lengthy deliberations had moved the vote to 11 to 1 in favor of conviction, and was in response to the last hold-out's crying and saying, "I just wish there is some other way. . . . It is obvious, but I wish there was some other way" (italics added), it appears Juror No. 9's comment did not reflect any racial bias that rendered him unable to perform his duty as a juror, but instead was a vocalization of his perception that other jurors were unduly reluctant to perform their duties to convict the defendants.
Berardi also argues the order denying the new trial motions must be reversed because the court improperly admitted and considered evidence from the jurors reflecting on the jury's decisionmaking process, because the court asked each juror whether they were intimidated by Juror No. 9's outburst, and the court found Juror No. 9's alleged misconduct "had virtually no impact" on the jury's decisionmaking process, "did not improperly influence or sway any particular juror," and did not compel any juror "to vote one way or the other." Certainly, the courts have ordinarily limited evidence challenging a jury's impartiality to evidence of statements made, or conduct, conditions, or events occurring in the jury room of such a character as is likely to have influenced the verdict improperly, but cautioned that " '[n]o evidence is admissible to show the [actual] effect of such statement, conduct, condition, or event upon a juror . . . or concerning the mental processes by which [the verdict] was determined.' " (In re Hamilton, supra, 20 Cal.4th at p. 294, italics added by Hamilton.) However, the questions posed by the court were largely agreed on by the defense, and therefore any alleged error as to the admission of the evidence must be deemed invited. More importantly, Berardi affirmatively alleged a new trial was warranted because Juror No. 9's conduct intimidated the jury into convicting Berardi, and thus invited the court to make the findings he now criticizes on appeal. We conclude any error in the admission of the evidence or the findings made below was invited error.
Berardi's attempt to buttress his claim of racial bias by inferring that other comments and actions by Juror No. 9 were attributable to racial bias. For example, Berardi cites Juror No. 12's testimony—that Juror No. 9 said, "In my neighborhood, we know what a gunshot sounds like," and gave nonverbal indications that he thought the other jurors were naïve compared to his own experience—as showing Juror No. 9 was biased. However, such comments do not constitute misconduct. "Indeed, lay jurors are expected to bring their individual backgrounds and experiences to bear on the deliberative process. 'That they do so is one of the strengths of the jury system. It is also one of its weaknesses . . . . Such a weakness, however, must be tolerated.' " (People v. Pride (1992) 3 Cal.4th 195, 268.) May argues Juror No. 9's racial bias was buttressed by the allegation that, on the morning Berardi's counsel was scheduled to give his closing argument, Juror No. 9 was seen sitting outside the courtroom (apparently waiting for proceedings to begin) and was in the vicinity of Kegler's family and the witness "[thought] he was engaged in [Kegler's] family's conversation." However, the court questioned each juror about that allegation, and all denied any knowledge of improper contact, and the court found that allegation lacked any corroboration.
Jury deliberations began on the afternoon of January 13, 2009, and did not conclude until January 22, 2009, and involved nearly four full days of deliberations.
Because the evidence does not show, as a "demonstrable reality," that Juror No. 9 was unable to adjudge the matter impartially, we reiterate our high court's caution that "before a unanimous verdict is set aside, the likelihood of bias . . . must be substantial. . . . [T]he criminal justice system must not be rendered impotent in quest of an ever-elusive perfection. The jury system is fundamentally human, which is both a strength and a weakness. [Citation.] Jurors are not automatons. They are imbued with human frailties as well as virtues. If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias. To demand theoretical perfection from every juror during the course of a trial is unrealistic." (In re Carpenter, supra, 9 Cal.4th at pp. 654-655.) On this record, the trial court did not abuse its discretion in denying the new trial motions because the record did not show as a demonstrable reality that Juror No. 9 was actually biased or that he refused to deliberate or follow the court's instructions.
III
ANALYSIS OF CONSPIRACY CLAIMS
May and Berardi raise three claims of error in connection with the court's instructions to the jury on the conspiracy issues. They assert (1) the trial court's response to a jury inquiry was prejudicially erroneous, (2) the trial court was sua sponte obligated to modify CALCRIM No. 359 to fit the facts of this case, and (3) the trial court was sua sponte obligated to modify CALCRIM No. 418 to fit the facts of this case.
A. The Response to the Jury Question
May and Berardi argue the court's response to a jury question was erroneous because it misdirected the jury that it could not convict May and Berardi on the conspiracy count if the jury concluded May was guilty only of second degree murder.
Background
During deliberations, the jury sent a note that asked:
"1. Please clarify the definition of 2nd degree murder
"2. Can there be a conspiracy without 1st degree murder? or can we consider conspiracy w/o 1st degree murder"
The court met with counsel to frame the response. The court believed the second set of questions was of the greatest import, and was asking whether it was possible to conspire to commit second degree murder. The court stated its research, and specifically People v. Cortez (1998) 18 Cal.4th 1223, indicated a defendant could not conspire to commit second degree murder, because a conspiracy to commit murder necessarily constitutes premeditation and deliberation. Both defense counsel agreed with that proposition.
The court then asked how the parties wished to respond to the questions. As to the first question, the court noted the easiest response would be to refer them back to the instructions, but asked "do we give them anything more?" As to the second question, the court asked how to word a response that conveyed a defendant cannot be convicted of conspiracy to commit second degree murder. Berardi's counsel initially suggested "simply . . . answer . . . both parts of question 2 . . . 'No.' " The court recognized that "of course, there can be conspiracy without first degree murder, but there can't a conspiracy to commit murder in the second degree. You can only find a conspiracy to commit murder in the first degree, because that's what's charged, a conspiracy to commit murder." (Italics added.)
May's counsel understood the jury's question to imply they were struggling with a logical inconsistency, and construed the question to be: " 'If we can't find first degree murder on [the murder count], can we find conspiracy to commit murder?' [and] [m]y answer would be 'No, based on these facts.' " The court rejected May's counsel's proposal, characterizing it as a "[n]ice try," and instead proposed to (1) answer question 1 by referring the jury back to CALCRIM No. 521 and (2) answer question 2 by telling the jury "these defendants are charged in count 1 with conspiracy to commit murder. And then we have to find a way of telling them you can only conspire to commit a first degree murder. There's no conspiracy to commit second degree murder, because second degree murder has no premeditation and deliberation, which is, in essence, presumed by a conspiracy." All parties again agreed that statement accurately reflected the law applicable to the question posed. The court agreed to take a recess and generate an answer considering the parties' understanding of the law.
After a recess, the court proposed an answer to the questions as follows:
"For further explanation on the definition of second degree murder, please see instruction 521 which sets forth the distinction between first degree murder and second degree murder.
"All conspiracies to commit murder are necessarily premeditated and deliberated; thus, a defendant cannot be found guilty of a conspiracy to commit a second degree murder."
Berardi's counsel complained only that the first paragraph did not define second degree murder, and should instead have stated that "second degree murder is murder without deliberation, without premeditation and not justifiable." May's counsel agreed with Berardi's counsel, and also suggested the second paragraph should instead read "[A]ll conspiracies to commit murder are necessarily premeditated and deliberated; thus, a defendant can only be found guilty of a conspiracy to commit first degree murder." The court, characterizing May's proposal as the functional equivalent of the court's proposed answer (stating it was "six [of] one, half dozen [of] the other," decided to combine its version with May's reformulation and the response to the jury's question provided: "All conspiracies to commit murder are necessarily premeditated and deliberated. Thus, a defendant can only be found guilty of a conspiracy to commit a first degree murder. A defendant cannot be found guilty of a conspiracy to commit a second degree murder." No party objected to this proposal.
Legal Framework
"The trial court has a duty to help the jury understand the legal principles the jury is asked to apply. (People v. Beardslee (1991) 53 Cal.3d 68, 97.) In particular, under section 1138 the court must attempt 'to clear up any instructional confusion expressed by the jury.' (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212.) But '[t]his does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information.' (Beardslee, at p. 97; [citation].) In exercising that discretion, the trial court 'must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.' (Beardslee, at p. 97; [citation].)" (People v. Giardino (2000) 82 Cal.App.4th 454, 465.) Thus, when the instructions are full and complete, the court has discretion "to determine what additional explanations are sufficient to satisfy the jury's request for information." (Beardslee, at p. 97.)
Analysis
May and Berardi argue the response to the question was prejudicially misleading because it implied that, if the jury found Berardi and May conspired to murder Kegler, the jury was required to fix the degree of the resulting murder as first degree murder. However, the parties below agreed, and do not contest on appeal, that the answer actually given by the court was a correct statement of law under People v. Cortez, supra, 18 Cal.4th 1223, i.e., that a defendant cannot be convicted of conspiring to commit second degree murder.
May and Berardi instead assert the response was incomplete because the jury was not instructed that, even if it found Berardi and May conspired to murder Kegler, it could nevertheless find the actual murder was second degree murder. However, the court's response to the question provided an answer that all parties assisted in crafting, and that defense counsel understood was responsive to the question posed, and therefore any claim that it was somehow incomplete must be deemed invited error. A party whose counsel agrees at trial with the court's proposed response to a jury inquiry cannot later challenge the response on appeal as being too limited. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1193; People v. Medina (1990) 51 Cal.3d 870, 902 ["we note that defense counsel's approval of the court's limited response to the jury's inquiry should bar defendant from contending on appeal that a more elaborate response should have been made. If defendant desired such a response, he should have proposed it"].) Moreover, a defendant who does not raise the issue to the trial court "may not now 'complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete.' " (People v. Valdez (2004) 32 Cal.4th 73, 113.) We conclude the statement of law provided by the court was correct and was responsive to the question as understood by the parties, and that any alleged incompleteness or misleading implication in the answer provided was invited error.
On appeal, Berardi argues invited error should not apply because his counsel did object to the proposed instruction. However, his counsel's objection only stated that he understood the question to be that, if the jury could not find murder in the first degree, could the jury still convict the defendants of conspiracy, and he therefore proposed the court should answer the second set of questions with "No, based on these facts," which appears to be incorrect under In re E.R. (2010) 189 Cal.App.4th 466. Defense counsel never objected that the response ultimately crafted to answer the question was misleading or incomplete by foreclosing the jury from finding second degree murder if they found a conspiracy. To the contrary, May's counsel specifically stated his understanding was that the question was "about conspiracy to commit first degree murder and maybe first degree murder. [My] concern is that the answer sets forth a portion which they may or may not be thinking about, that's second degree murder. [¶] I don't think this is one of those questions where they are actually saying, 'Can we convict them of second degree murder?' I think it's a question of whether or not there can be a conspiracy without first degree murder." (Italics added.)
B. The Corpus Delicti Instruction
May and Berardi argue the trial court was sua sponte obligated to modify CALCRIM No. 359 to instruct that the jury could not consider Berardi's (or May's) extrajudicial statements as proof of the conspiracy charge unless the corpus delicti of the charge was shown by independent evidence. May and Berardi assert the failure to give this pinpoint instruction was prejudicial error, arguing the independent evidence did not provide any evidence from which the jury could have inferred the existence of a conspiracy to murder Kegler, and therefore it is likely the jury would have acquitted May and Berardi of the conspiracy count because the jury would have understood that the only evidence supporting that charge (Berardi's extrajudicial statements to Tong) could not have provided proof for the conspiracy count.
Background
The court gave CALCRIM No. 359, without modification, which instructed the jury that:
"The defendant may not be convicted of any crime based on his out-of-court statements alone. You may only rely on the defendant's out-of-court statements to convict him if you conclude that other evidence shows that the charged crime or a lesser included offense was committed. [¶] That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [¶] The identity of the person who committed the crime and the degree of the crime may be proved by the defendant's statements alone. [¶] You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt."
Neither defendant objected to the instruction or proffered any proposed modification to CALCRIM No. 359.
Legal Framework
CALCRIM No. 359 correctly expresses the corpus delicti rule. (People v. Reyes (2007) 151 Cal.App.4th 1491, 1498.) " ' "The corpus delicti of a crime consists of two elements[:] the fact of the injury or loss or harm, and the existence of a criminal agency as its cause." ' " (People v. Zapien (1993) 4 Cal.4th 929, 985-986.) "[T]he corpus delicti must be established by the prosecution independently from the extrajudicial statements, confessions or admissions of the defendant." (People v. Wright (1990) 52 Cal.3d 367, 403, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.) In other words, the corpus delicti rule requires "every conviction must be supported by some proof of the corpus delicti aside from or in addition to [the defendant's extrajudicial] statements, and that the jury must be so instructed." (People v. Alvarez (2002) 27 Cal.4th 1161, 1165.) The purpose of the corpus delicti rule is to assure that an accused does not admit to a crime that never occurred. (People v. Jennings (1991) 53 Cal.3d 334, 368.) The corpus delicti rule is satisfied by a "slight" or "'minimal" quantum of proof. (Id. at pp. 364, 367.)
A court has the sua sponte obligation to instruct on the corpus delicti rule whenever an extrajudicial statement by the accused forms part of the prosecution's evidence (People v. Alvarez, supra, 27 Cal.4th at pp. 1165, 1170), and instructions given must be given correctly. (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) However, when a court's instruction is a correct statement of the applicable law and is responsive to the evidence, a defendant may not complain on appeal that the instruction was too general or was incomplete unless the party proffered a proposed modification that clarified or amplified the allegedly incomplete instruction. (People v. Tuggles (2009) 179 Cal.App.4th 339, 364-365.)
Analysis
CALCRIM No. 359 is a correct statement of the corpus delicti rule (People v. Reyes, supra, 151 Cal.App.4th at p. 1498), and May and Berardi do not contend otherwise. May and Berardi instead argue the court was sua sponte obligated to modify CALCRIM No. 359 to instruct that the jury could not consider Berardi's extrajudicial statements to Tong as proof of the conspiracy charge until it was satisfied that independent evidence establishing the corpus delicti of the conspiracy charge was shown. However, May and Berardi did not proffer this pinpoint instruction, and therefore any claim of error is waived.
May and Berardi assert we may reach the issue, notwithstanding the waiver rule, by arguing that the sua sponte instructional obligation encompasses the obligation to instruct correctly, and the unmodified version of CALCRIM No. 359 was incorrect on the facts of this case. It appears May and Berardi's argument is premised on the claim that, because there was no independent evidence establishing the corpus delicti of conspiracy, the unmodified instruction was erroneous because it "allowed the jury to rely on Berardi's admissions to Tong to convict [May] of conspiracy without independent proof of the corpus delicti of [conspiracy to commit murder]." May and Berardi then examine each piece of the independent evidence, proffering an alternative inference for why May acted or spoke in the fashion demonstrated, consistent with criminal conduct but not necessarily with a conspiracy to murder Kegler, to explain why there was no evidence (apart from Berardi's statements to Tong) from which the jury could have inferred the existence of a conspiracy to murder Kegler. However, a closely analogous argument was rejected in People v. Culton (1992) 11 Cal.App.4th 363, when the court explained:
For example, May argues the fact he took a gun with him to the meeting with Kegler, from which the jury could infer he intended to use it to fulfill the agreed object of the conspiracy, was equally explicable as reflecting a drug dealer's typical accoutrements when engaging in drug transactions. May also argues his statement that "the pizza is delivered," from which the jury could infer he was informing Berardi the agreed object of the conspiracy had been accomplished, was equally explicable as referring to the drug transaction. May proffers similar alternative inferences for much of the independent evidence.
"Defendant contends that the trial court erred in finding the People did carry their burden of making a prima facie showing of the corpus delicti of each of the charged offenses and then admitting his inculpatory statements. We disagree. [¶] The California law regarding the corpus delicti rule as to its elements, the necessary proof thereof and the burden of proving such, was recently stated in People v. Wright[, supra,] 52 Cal.3d 367, 403-404 . . . as follows: 'In any criminal prosecution, the corpus delicti must be established by the prosecution independently from the extrajudicial statements,
confessions or admissions of the defendant. [Citations.] The elements of the corpus delicti are (1) the injury, loss or harm, and (2) the criminal agency that has caused the injury, loss or harm. [Citation.] "The independent proof may be by circumstantial evidence [citation], and it need not be beyond a reasonable doubt. A slight or prima facie showing, permitting the reasonable inference that a crime was committed, is sufficient. [Citations.]" [Citation.] . . .' [¶] The People's burden is met by evidence which creates a reasonable inference that the harm could have been caused by a criminal agency, even in the presence of an equally plausible noncriminal explanation of the incident. Circumstantial evidence and inferences that may reasonably be drawn therefrom are adequate." (People v. Culton, supra, at pp. 366-367.)
Because the unmodified version of CALCRIM No. 359 correctly stated the law, and was not made erroneous by the evidence produced at trial, May and Berardi have waived any claim of error to the instructions on corpus delicti.
C. The Unmodified CALCRIM No. 418
May asserts the unmodified version of CALCRIM No. 418 was prejudicially misleading because it permitted the jury to consider Berardi's statements to Tong as against May if the jury found a conspiracy to commit any crime existed between May and Berardi. May argues that, because there was evidence supporting a conspiracy to sell marijuana to Kegler, the court was sua sponte obligated to modify CALCRIM No. 418 to ensure the jury only considered Berardi's statements to Tong as against May if it found a conspiracy to commit murder existed between Berardi and May.
Background
The court gave CALCRIM No. 418, which, as adapted, instructed the jury:
"In deciding whether the People have proved that the defendants committed the crimes charged, you may not consider any statement made out of court by [Berardi] or [May] to Anna Tong unless the
People have proved by a preponderance of the evidence that: [¶] 1. Some evidence other than the statement itself establishes that a conspiracy to commit a crime existed when the statement was made;
[¶] 2. [May or Berardi] were members of and participating in the conspiracy when they made the statement; [¶] 3. [May or Berardi] made the statement in order to further the goal of the conspiracy; [¶] AND [¶] 4. The statement was made before or during the time that the defendants were participating in the conspiracy. [¶] A statement means an oral or written expression, or nonverbal conduct intended to be a substitute for an oral or written expression. [¶] Proof by a preponderance of the evidence is a different standard of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] You may not consider statements made by a person who was not a member of the conspiracy even if the statements helped accomplish the goal of the conspiracy. [¶] You may not consider statements made after the goal of the conspiracy had been accomplished."
Legal Framework
For the statements of an alleged coconspirator to be admissible as against the nonspeaking defendant, the prosecution need only produce prima facie evidence of the existence of the conspiracy and that the statements were made by a participant and in furtherance thereof. (People v. Herrera (2000) 83 Cal.App.4th 46, 58-64.) If the jury concludes the foundational elements were shown by a preponderance of the evidence, the statements of an alleged coconspirator are admissible as against the nonspeaking defendant. (Id. pp. 63-64.)
Analysis
May does not contend that the instruction given by the court incorrectly articulated the general principles the jury was required to apply to determine whether Berardi's statements to Tong were admissible as against May. Instead, he argues the court was sua sponte obligated to amend the instruction to state that the jury was required to determine whether there was some evidence (other than the statement itself) establishing there was a conspiracy to commit murder (rather than a conspiracy to sell marijuana) when the statement was made. However, while Berardi and May argued at trial the instruction as a whole should be omitted, neither proffered any proposed modification to the instruction specifying the refinements to the instruction that May now contends were required. As previously discussed, when a court's instruction is a correct statement of the applicable law and is responsive to the evidence, a defendant may not complain on appeal that the instruction was too general or was incomplete unless the party proffered a proposed modification that clarified or amplified the allegedly incomplete instruction.(People v. Tuggles, supra, 179 Cal.App.4th at pp. 364-365.) We therefore conclude May's appellate argument was not preserved.
The objections raised below by May and Berardi were that, to the extent the instruction required the jury to consider whether a preponderance of the evidence established the existence of the conspiracy as a predicate to considering the statements to Tong, that instruction would prejudice the defendants because "you are asking the jurors to assess by [a] preponderance of the evidence the same facts, same evidence they are going to assess supposedly later beyond a reasonable doubt, the existence of a conspiracy. My problem with that is once they have made up their mind, predetermined, 'Look, by [a] preponderance of the evidence, we think that a conspiracy existed and therefore we used these statements['], . . . it's going to be easier for them not to apply the beyond a reasonable doubt standard [to the same issue on the charged crime]."
Although May contends the instruction was misleading on the facts of this case because it implied Berardi's statement in furtherance of a conspiracy to commit a different crime would not be admissible as against May, there is no authority cited for this proposition, and we are aware of none.
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DISPOSITION
The judgments are affirmed.
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McDONALD, J.
WE CONCUR:
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BENKE, Acting P. J.
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IRION, J.