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People v. Carbonell

California Court of Appeals, Fourth District, First Division
Feb 2, 2011
No. D0056977 (Cal. Ct. App. Feb. 2, 2011)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. ORLANDO CARBONELL, Defendant and Appellant. D0056977 California Court of Appeal, Fourth District, First Division February 2, 2011

NOT TO BE PUBLISHED

APPEAL from an order and judgment of the Superior Court of San Bernardino County No. FSB045319, Annemarie G. Pace, Judge.

NARES, J.

In the first trial in this matter, a jury convicted Orlando Carbonell of first degree murder (count 1: Pen. Code, § 187, subdivision (a)). The jury also found he used a deadly weapon within the meaning of section 12022, subdivision (b)(1). The trial court granted his motion for new trial.

All statutory references are to the Penal Code unless otherwise specified.

In the second trial, a jury convicted him of the same offense and also found he used a deadly weapon in the commission of the offense. The court sentenced Carbonell to a prison term of 25 years to life, plus a one-year consecutive term for the deadly weapon enhancement.

Carbonell appeals, contending the court's admission of his testimony from the first trial during the People's case-in-chief constituted an abuse of discretion that resulted in the denial of his constitutional right to due process of law, thereby requiring reversal. We conclude Carbonell has failed to meet his burden of demonstrating either an abuse of the court's discretion under California's rules of evidence or a denial of his federal constitutional right to due process. Accordingly, we affirm the judgment.

FACTUAL BACKGROUND

A. The People's Case

In July 2004 Edmund Marrujo worked as an anesthesia technician at the Veteran's Administration (V.A.) hospital in Westwood. Ubaldo Torres, who worked night shifts as a housekeeper in the operating rooms at the same hospital, was Marrujo's coworker and friend. Torres was acquainted with Carbonell as a coworker at the V.A. hospital. Archie Salas owned a business that bought, sold, and rented medical equipment, and also serviced anesthesia equipment for hospitals and surgery centers.

On the morning of July 19, 2004, two employees working at Crestline Lake Arrowhead Water Agency found Marrujo's body on an access road near a water treatment plant located at Lake Silverwood in the San Bernardino Mountains. Marrujo was found hacked to death with a machete or sword. Officers were able to identify Marrujo's body and linked him to a missing person's report filed out of Palmdale, in Los Angeles County.

Bloody shoe prints from a single pair of Crocs brand shoes were found leading away from Marrujo's body. The shoe prints were consistent with a men's size 10-13.

Detective Michael Gilliam, working at the time for the homicide division of the San Bernardino County Sheriff's Department, discovered Marrujo was to have met with Carbonell the night before at Sharkey's bar in Lancaster. Detective Gilliam obtained Carbonell's mobile phone records from the evening of July 18, 2004, which showed that he had placed several calls that evening, including calls to Marrujo's home and cell phone. Two of the calls were picked up at cellular sites in the Lake Silverwood area. Carbonell placed a call from his home phone to Marrujo's home phone and left a message saying, "Ed [Marrujo], Orlando here man, it's almost [11:00] o'clock, we are [a little] concerned about your butt. Anyway, I guess I'll talk to you tomorrow. Alright. Bye."

Upon being confronted by Detective Gilliam about the mobile phone records, Carbonell initially said he went to Sharkey's and could not find Marrujo, so he met up with a hooker named Sally and drove her to Ontario Mills, claiming that was the reason for the call being picked up near the Lake Silverwood area of San Bernardino.

Carbonell's Ford Expedition was impounded by sheriff's investigators. Blood stains were found on the right front passenger door, door jamb, and rear cargo area. Marrujo was excluded as a contributor to the blood found in Carbonell's vehicle. A receipt for car wash detailing on July 20, 2004, noting "Orlando" as the recipient of the car wash, as well as a receipt for A-American Storage (A-American) were found in Carbonell's vehicle. Carbonell admitted he had the interior of his car detailed.

While in jail, Carbonell made a phone call to his wife, who asked him about the hooker in his story to Detective Gilliam. Carbonell told his wife there had never been a hooker, that he "had to come up with something" and he "never actually told [her] the whole story, because [he had] been locked up." Carbonell changed his story multiple times with detectives, but eventually settled on the following: He and Marrujo were both anesthesia technicians at the West Los Angeles V.A. hospital who had been involved in stealing medical equipment from the hospital and selling it for profit.

Salas testified that Carbonell had an agreement to sell eight stolen medical machines to him for a total of $95,000. Salas gave Carbonell an $18,000 cash deposit for the equipment on July 14, 2004. While Salas knew that Marrujo was Carbonell's partner in the deal, he never met Marrujo. Salas and Carbonell were to meet on July 19, 2004, at A-American in the Lancaster-Palmdale area to finalize the deal. That meeting however, never took place.

Dr. Kevin Win was an anesthesiologist at the V.A. and the supervising doctor for three anesthesia technicians, including Carbonell and Marrujo. On July 16, 2004, Marrujo had told Dr. Win about a missing fiber optic scope valued at about $8,000.

Detectives visited the storage unit at A-American corresponding with the receipt found in Carbonell's vehicle. A total of 14 items of medical equipment were found in the storage unit. Dr. Win identified eight of the 14 pieces of equipment as having originated from the V.A. A piece of paper taped to one piece of equipment stated, "Any questions regarding this equipment, please call Orlando...." During a search of Carbonell's home, deputies found photos of medical equipment and an envelope containing $4,000.

Carbonell's testimony during the first trial

The transcript of the testimony Carbonell gave during his first trial was read to the jury during the People's case-in-chief at his second trial. The transcript of the reading of that testimony consists of about 89 pages (pp. 614-663 & 669-709) in volume 3 of the reporter's transcript of the proceedings during the second trial. Due to the voluminous nature of Carbonell's prior testimony and the narrowness of the issues he raises in this appeal, we briefly summarize that testimony here. Certain admissions the prosecutor argued Carbonell made during his prior testimony shall be referenced in the discussion (post) of his claim on appeal that the trial court abused its discretion in allowing the transcript of his prior testimony to be read to the second jury.

The week before Marrujo's death, Carbonell and Marrujo visited a hospital in Tijuana, Mexico, and spoke to the chief of anesthesia. The purpose of the meeting was to strike a deal where Marrujo would give anesthesia equipment to the Mexican hospital in exchange for the ability to practice anesthesiology a few times a month although he did not have the requisite certification.

Torres and his friend, Jimmy, were hired to help move the stolen V.A. equipment. Torres had learned of the amount of money being paid for the equipment by Salas and had grown disgruntled. Torres wanted a bigger piece of the pie. Thus, a meeting had been set to discuss the "financial disagreements."

Carbonell met Marrujo at Sharkey's bar on the evening of July 18, 2004, and offered to drive him to a spot about 70 miles away at the intersection of Interstate 15 and Highway135. Once they arrived, Torres and Jimmy were waiting and, along with Marrujo, they all entered Carbonell's vehicle. While Carbonell drove, Torres and Marrujo began to argue about the apportionment of the $95,000 and the fact that some of the equipment was to be donated to a Mexican hospital. As things became more heated between Marrujo and Torres, Carbonell stopped the vehicle. Marrujo and Torres exited the vehicle and the intense arguing continued until Marrujo said "he needed to take a leak" and headed off towards a closed road. Torres followed behind him.

Meanwhile, Carbonell remained in the vehicle with Jimmy. Carbonell heard an odd thumping noise, exited the vehicle, and started running towards where Torres and Marrujo were. Jimmy, however, pulled him down and pulled out a pocketknife preventing him from proceeding. Carbonell heard Ed's voice saying, "You don't have to do this. Stop it. Let's talk about it."

Torres returned to the vehicle seconds later with a bloody machete. Torres threatened Carbonell and his family and told him that the $95,000 transaction had to go through as planned. Out of fear, Carbonell did not call the police or take any other actions. Carbonell was arrested 10 days after the incident.

Carbonell stated he had his vehicle cleaned to cover up Torres's presence. Carbonell admitted he lied to police to buy time, and he "was waiting for the right time" to tell the truth.

B. The Defense

Carbonell's wife, Cara, testified she had never known Carbonell to buy Crocs shoes, had never seen him in possession of such shoes, and had never seen any in their closet. She acknowledged that she testified at the first trial that Carbonell's shoe size was 10 or 10 and a half, but changed her testimony and indicated his shoe size was nine and a half or 10 depending on the size of the shoe. When Carbonell returned home on July 18, 2004, he went to sleep.

Carbonell testified in his own defense. He stated he never owned a pair of Crocs shoes. His shoe size was 12 at the time of his arrest. He had a close relationship with Marrujo, who was having financial problems, and they talked about selling V.A. equipment.

Salas once serviced anesthesia machines for Kaiser and Century City Hospital. He contacted Carbonell to see whether Marrujo had some anesthesia machines for sale. Salas was going to pay around $95,000 for eight or nine stolen V.A. anesthesia machines, and he paid Marrujo a down payment in the amount of $18,000.

Carbonell acknowledged that having the money from the equipment sales was important to his budget. Torres and his friend Jimmy had been paid by both Carbonell and Marrujo on many occasions to help load heavier medical equipment. They were typically paid $300 to $400 for their assistance in moving the equipment and were aware that the equipment was being stolen from the V.A.

In the evening on July 18, 2004, Carbonell and Marrujo left Sharky's bar in Lancaster; met Torres and Jimmy, who were in another car, at the Highway 138 and Interstate 15 junction; and then drove to a junction in the Silverwood Lake area, where all four men got into the Expedition Carbonell was driving. Marrujo told Carbonell to stop, and they stopped at a turnout on Highway 138. An argument ensued, and Torres thought it was unfair that he was only getting a few hundred dollars to move the equipment. Marrujo got out to urinate, Torres got out and followed Marrujo, still arguing.

Carbonell testified that, after a few minutes, he heard a noise, and both he and Jimmy got out of the car. A few seconds later, Torres walked back to the car. He was holding a machete, and his face and clothes were covered with blood. Carbonell tried to leave, but Jimmy pulled out a knife and told him to stay.

Carbonell testified he did not kill Marrujo, and he did not drive Marrujo to the Silverwood Lake area to have him killed. He lied to the police the first time they interviewed him because Torres was "in control, " and Carbonell was trying to mislead "these people" as long as he could to see if he could "get [Torres] some of his money." Carbonell cleaned his car because Torres had been in it "wiping his machete" and Marrujo's blood was in the car.

C. Prosecution's Rebuttal

Torres's wife, Agnes, also worked at the V.A. She testified at the second trial that Torres never wore Crocs shoes and that she had seen Carbonell wearing Crocs at the hospital. She also testified that Torres was home the entire weekend from July 16 through July 18, 2004, and he did not leave the house on July 18.

DISCUSSION

Carbonell contends the court's admission of his prior testimony from the first trial during the People's case-in-chief constituted an abuse of discretion that resulted in the denial of his constitutional right to due process of law requiring reversal. This contention consists of two different claims. First, Carbonell claims the court abused its discretion under California's rules of evidence. Second, he claims the court's ruling resulted in a denial of his federal constitutional right to due process. We shall address these claims in this order.

I. ABUSE OF DISCRETION

We reject Carbonell's claim that the court abused its discretion under California's rules of evidence when it admitted during the People's case-in-chief the testimony he gave in his own defense during the first trial. As a preliminary matter, we note that, although (as we shall discuss, post) the People claim Carbonell forfeited his denial of due process claim, they do not contend he forfeited his abuse of discretion claim. Accordingly, we need not reach the merits of Carbonell's arguments that (1) "[t]rial counsel stated a sufficient objection to the trial court's exercise of discretion in admitting the evidence, " and thus "[t]he issue has been preserved for appellate review"; and (2) "[i]f this court should find that trial counsel failed to state an adequate objection to the admission of [his] former testimony, ... counsel's omission constituted ineffective assistance of counsel."

A. Background

1. The defense's in limine objection and Carbonell's prior testimonial admissions

Defense counsel first objected during in limine hearings to the reading during the Peoples' case-in-chief of Carbonell's prior testimony. Stating that Carbonell would "probably be taking the stand, " counsel objected that it "would be inappropriate" to bring in his prior testimony during the prosecution's case-in-chief because Carbonell would not be an unavailable witness unless he decided not to testify. Counsel also argued that "if [the prior testimony is] going to be used, it should be used as impeachment against [Carbonell] if his stories change[] in any way."

The court overruled the defense objection, finding Carbonell's prior testimony to be statements of a party opponent and indicating it would allow the prosecution to read the testimony to the jury.

Stating, "[i]t's a statement of [a] party opponent, " defense counsel then objected that he did not want only portions of the testimony read and suggested that if any of it was read, all of it should be read for purposes of completeness under Evidence Code section 356. Counsel stated that if the prosecutor "wants to bring [Carbonell's prior testimony] in, she brings in the whole thing, because otherwise it's taken out of context."

Evidence Code section 356 provides: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence."

The court indicated that a ruling on the matter was "in some ways premature" because it did not have the transcript, and it did not know what the prosecutor was "going to take from the transcript." In reply, the prosecutor referred to Carbonell's "fourth story" and stated that "some of [his] statements are direct admissions, especially of what the murder weapon was, " a machete.

Without objection from the defense, the prosecutor then listed various admissions Carbonell made in his prior testimony:

"[He] admitted lying to the police regarding his first and second story. He also admitted to meeting the victim, which is consistent with his third story. He admitted to driving his vehicle [and] volunteering to take the victim out to Lake Silverwood. That was consistent, also. He admitted to using his cell phone while he was driving. He admitted to being at the murder scene, which is out in Silverwood Lake. He also made a statement that was very consistent with the physical evidence... at the last trial about what the victim did or went to go do, which was shown by a photograph. [H]e admitted to the murder weapon being a machete. He also admitted to leaving a message, once he got back home, ... on the victim's phone as an alibi."

The court deferred ruling on the reading issue, stating, "I think any ruling on whether [defense counsel] can bring a reader in is premature, " and "I need to hear it all first and read the transcript... to be able to know whether you need it for completeness or not." The court reiterated that, absent legal authority to the contrary, the prosecutor "does have the right to bring in the statement[s] in her case in chief." Addressing the prosecutor, the court added:

"You are going to have to make a choice of whether you want to do that in your case in chief or wait and see if [Carbonell] testifies; because I can't make a ruling. I don't know yet. And I won't be able to give you... an indicated ruling before you... make your decision, because I just can't make the decision until I hear everything, because completeness requires me to hear what's come before. So you're going to have to make a trial decision, make a tactical decision about what you want to do: Whether you want to put it on in your case in chief, or see if [Carbonell] testifies."

2. The reading of Carbonell's prior testimony and the defense's renewed objection

a. Admonishment

Before Carbonell's prior testimony was read to the jurors during the People's case-in-chief, the court informed the jury that Carbonell had testified under oath at a "prior hearing, " and they were going to hear a "readback" of his testimony. The court admonished the jurors that although Carbonell was in custody, "[t]hat is not evidence that you should consider in any way."

b. Reading of Carbonell's prior testimony and the defense's renewed objection

The reading of the transcript of Carbonell's entire testimony from the first trial then commenced. About halfway through the reading of the testimony, the court ordered a short recess.

Outside the presence of the jury, defense counsel again objected, stating, "Your Honor, ... I wanted to make sure [my objection] was on the record... I did not think this should be used for impeachment purposes until we determine whether or not he is going to testify."

The court responded that Carbonell "was unavailable to [the prosecution]. Any statements made by the defendant offered by the prosecution are admissible. The fact that it was testimony doesn't have any significance." The remainder of Carbonell's prior testimony was then read to the jury.

B. Standard of Review

We review the court's ruling under the abuse of discretion standard. "The abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence." (People v. Guerra (2006) 37 Cal.4th 1067, 1113.) "Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (Ibid.)

C. Analysis

The court found that Carbonell's prior testimony was admissible under the hearsay exception for a party's admission, which is codified in Evidence Code section 1220. (See People v. Castille (2005) 129 Cal.App.4th 863, 875-876 & fns. 3 & 4 [as a general rule, if a party to a proceeding has made an out-of-court statement that is relevant and not excludable under recognized grounds for exclusion, the statement is admissible against that party declarant under Evidence Code section 1220].)

Evidence Code section 1220 provides: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity."

Carbonell contends the court abused its discretion in admitting, over his objections, his prior testimony during the People's case-in-chief because (1) "[t]he prosecutor did not seek admission of the former testimony for the truth of the matter asserted in the former testimony[, i.e., ] that [Carbonell] did not kill Marrujo"; and thus (2) his prior testimony did not come within the hearsay exception for a party's admission.

In support of this contention, Carbonell quotes People v. Morgan (1978) 87 Cal.App.3d 59, 68 (Morgan), overruled on another ground in People v. Kimble (1988) 44 Cal.3d 480, 496-498, for the proposition that, to qualify for admissibility against a party under the hearsay exception for a party's admission (Evid. Code, § 1220), " '[t]he statement must be offered to prove the truth of the matter stated, either expressly or impliedly. If evidence of a party's statement is not offered against the party to prove the truth of the statement, its admissibility must be based on the circumstantial-evidence-reasoning process. In such a case, the test of relevancy must be satisfied.' " (Italics added.)

Relying on Morgan, Carbonell then claims that, "[h]ere, the prosecutor could not possibly satisfy the relevancy test because [Carbonell's] prior testimony presented a complete repudiation of the charge of murder."

These contentions are unavailing for several reasons. First, Carbonell's implied argument that all of his voluminous prior testimony consists of statements to the effect that he "did not kill Marrujo" is conclusory and ignores the list of incriminating admissions (discussed, ante) contained in his prior testimony that the prosecutor recited for the court without objection from the defense.

Second, he fails to support this argument with citations to the record. Under the California Rules of Court, the parties are required to support their points by argument and, "if possible, by citation of authority" (Cal. Rules of Court, rule 8.204(a)(1)(B)) and also "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." (Cal. Rules of Court, rule 8.204(a)(1)(C), italics added.) If a party fails to support an argument with the necessary citations to the record, we may deem the argument waived. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)

Here, Carbonell has failed to support with citations to the record his conclusory assertions that his prior testimony "presented a complete repudiation of the charge of murder, " and thus "the prosecutor could not possibly satisfy th[e] relevancy test." We are not bound to develop or support Carbonell's arguments for him. (See In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 830.)

Third, Carbonell has failed to meet his burden on appeal of demonstrating his prior testimony was not relevant. Even if we were to assume Carbonell's prior testimony was inadmissible under the hearsay exception for a party's admission on the ground the prosecution did not offer the testimony for the truth of the matters asserted therein, under Carbonell's own case authority─Morgan, supra, 87 Cal.App.3d at page 68─his prior testimony would be admissible if it satisfied the test of relevance.

It is well-established that " '[a] prior statement, although exculpating in form, may prove highly incriminating at the trial because, upon a showing of its falsity, it can constitute evidence of consciousness of guilt.' " (Morgan, supra, 87 Cal.App.3d at pp. 68-69, quoting People v. Underwood (1964) 61 Cal.2d 113, 121.) The California Supreme Court has also explained that, "as a general rule, false statements made by a defendant at the time of arrest are admissible─not for the truth of the statements─but to show consciousness of guilt." (People v. Kimble, supra, 44 Cal.3d at p. 496.)

Here, a review of Carbonell's prior testimony shows that, although he gave exculpatory statements to the police, he admitted in his testimony that he had repeatedly lied to the police and others. The following exchange is illustrative:

"[Question]: When Detective Gilliam confronted you about your cell phone records during the first interview, you were shocked and surprised, weren't you?

"[Carbonell]: I was surprised.

"[Question]: You were surprised that they got your records and tracked you that eas[il]y; is that correct?

"[Carbonell]: Yes.

"[Question]: And at that time[, ] instead of telling the truth, you told [a] lie; is that right?

"[Carbonell]: That's right."

Carbonell's prior testimony admitting he had lied to the police and others was relevant to show consciousness of guilt. Thus, it was admissible for that purpose. (People v. Kimble, supra, 44 Cal.3d at p. 496; Morgan, supra, 87 Cal.App.3d at pp. 68-69.) We conclude Carbonell has failed to meet his burden of demonstrating his prior testimony was not relevant, and thus he has failed to meet his burden of showing the court's admission of that testimony was an abuse of discretion.

II. DUE PROCESS

We also reject Carbonell's claim that the court's admission of his prior testimony resulted in a denial of his federal constitutional right to due process.

A. Forfeiture

As a preliminary matter, we reject the People's assertion that "[Carbonell's] failure to object at trial to admission of the prior testimony on constitutional grounds precludes him from doing so on this appeal." We conclude Carbonell did not forfeit his denial of due process claim.

The record shows Carbonell did not make a specific federal constitutional due process objection to admission of his prior testimony in addition to his objection under California's rules of evidence. However, as our Supreme Court held in People v. Partida (2005) 37 Cal.4th 428 (Partida), a defendant's failure to make a specific objection on constitutional grounds does not preclude the defendant from arguing on appeal the additional legal consequence of the asserted error in overruling his evidentiary objection "was so serious as to violate due process." (Id. at p. 438 & fn. 3.)

Here, Carbonell essentially claims the court's admission of his prior testimony was such a serious error that it had the legal consequence of violating his due process rights. This he may do notwithstanding his failure at trial to specifically object on constitutional grounds. (Partida, supra, 37 Cal.4th at pp. 438-439.) We thus also consider whether the court's decision violated his due process rights to a fair trial. (Ibid.) In doing so, however, we are guided by the court's reminder in Partida that "the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair." (Partida, supra, 37 Cal.4th at p. 439, some italics added.)

We thus need not reach Carbonell's alternative claim that "trial counsel's failure to state a more specific objection" to the admission of his prior testimony "constitutes ineffective assistance of counsel which requires reversal."

B. The Merits

Carbonell asserts that during the reading of his prior testimony, the terms "jury" and "trial" were mentioned, and the result was "inevitable speculation" by the jury that "another jury had heard [his] testimony and rejected it, for had [he] been acquitted he would not be here on trial again." Carbonell claims that his testimony in the second trial "provided a reasonable and believable explanation for his presence near the scene of the offense, as well as his failure to report the crime and his attempts to cover up his involvement in it"; but "the admission of [his] prior testimony during the prosecutor's case-in-chief obliterated the exculpatory force of that testimony as well as [his] subsequent live testimony, " with the result that "the jury was unlikely to give any credence to a story which another jury had already heard and rejected." These claims are unavailing.

1. Background

The court told the jury─before Carbonell's prior testimony was read to them─that Carbonell had testified under oath at a "prior hearing, " and they were going to hear a "readback" of his testimony. The court then admonished the jurors that although Carbonell was in custody, "[t]hat is not evidence that you should consider in any way."

At the very end of the reading of the prior testimony, the jury learned that at the prior "hearing, " Carbonell was asked: "[W]hy did you decide to tell this jury that you did nothing to save your friend[, Marrujo, ] on the night he was killed?" (Italics added.) The jurors also heard Carbonell's response to that question: "Well, I figure the jury has a right to hear from me. It's up to the jury to decide what's going to happen. I had the jury time─and I volunteered to be up here." (Italics added.)

Almost immediately, the prosecutor stood up and asked the court, "May I have a moment?" The court thanked her, but told her to "[r]etake [her] seat" and excused the jury for the lunch recess with the admonition that they not talk about the case.

Very soon thereafter, outside the presence of the jury, the prosecutor expressed her concern that, "I caught a word─" The court replied, "The word 'trial', " and then stated, "I think you leaped up fast enough to mask it." Defense counsel also expressed concern, stating, "There was a lot of talk of a jury at the very end, though, too."

The court offered to admonish the jury, stating: "That's right. I did not pick that up either. Where there is one or two things, we can ignore it and/or I can tell them there was another trial and there had to be another trial because of jury misconduct." However, defense counsel decided it would "draw[] more attention" and decided it was best to "leave it alone." The court agreed, stating, "We will leave it alone, " and the prosecutor replied, "Yes."

2. Analysis

Assuming the jury did perceive there had been a previous trial, it had no way of knowing the outcome of that trial or the reasons for a new trial. Carbonell has not cited anything in the record to indicate the jury ignored the court's admonitions or that any of the jurors was influenced by speculation that (in Carbonell's words) "another jury had heard [his] testimony and rejected it." The record shows that when the prosecutor, defense counsel, and the court all realized at the very end of the reading of Carbonell's prior testimony that the term "jury" appeared in both a question and Carbonell's answer to that question, the court properly offered to admonish the jury that there had been another trial and there had to be another trial because of jury misconduct, and defense counsel reasonably elected to forgo such an admonition on the grounds the admonition would draw more attention to the matter.

Carbonell relies on People v. Carmichael (1926) 198 Cal. 534 (Carmichael) for the proposition that jurors who have been exposed to the result of a former jury trial of a defendant on trial for the same crime "are not and cannot be fair and impartial jurors." (Id. at p. 543.) He suggests that, under Carmichael, the jury's exposure to the fact that he previously had been tried by another jury in this matter deprived him of his constitutional right to be tried by an impartial jury, and thus the admission of his prior testimony was reversible per se.

Carbonell's reliance on Carmichael is misplaced. In that case, the first jury trial resulted in a hung jury in which 10 out of the 12 jurors voted to convict the defendant. (Carmichael, supra, 198 Cal. at p. 543.) During jury selection for the new trial, the trial court denied defense counsel's request to question the potential jurors about the failure of the prior jury to agree upon a verdict and about whether that failure to agree upon a verdict might prejudice the potential jurors in any away against the defendant. (Id. at pp. 542-543.) The California Supreme Court in Carmichael affirmed the appellate court's decision to reverse the defendant's conviction and the denial of his new trial motion. (Id. at p. 549.) The Carmichael court reasoned that, "[i]f any of the jurors had heard the result of the former trial and that the jury therein had stood ten for conviction and two for acquittal, we do not think it unreasonable to conclude that such a juror might be influenced by such knowledge and that he might well conclude that if ten out of twelve of the former members of the jury believed the appellant guilty, that there was a strong probability of his guilt. Persons entertaining such opinions, we think it must be conceded, are not and cannot be fair and impartial jurors such as one accused of crime is entitled to have pass upon the accusations against him." (Id. at p. 543.)

The Carmichael court concluded that such a limitation on a defendant's examination of prospective jurors deprived the defendant of the fundamental right to be tried by an impartial jury and appeared to hold that an improper limitation on voir dire was reversible per se. (Carmichael, supra, 198 Cal. at p. 547; see People v. Bittaker (1989) 48 Cal.3d 1046, 1085 (Bittaker).)

However, in Bittaker, supra, 48 Cal.3d 1046, the Supreme Court overruled the per se rule of Carmichael, explaining that "[t]o categorize any erroneous restriction as the denial of the right to jury trial implies reversal for the most trivial of errors, and invites the creation of more and more exceptions to the rule. Judicial limitations on voir dire vary in scope and severity, and in their impact on the jury selection and the ultimate outcome of trial. We see no reason why the courts should not recognize those differences, and limit reversals to those cases in which the erroneous ruling affected defendant's right to a fair and impartial jury." (Bittaker, supra, 48 Cal.3d at p. 1086.)

Carbonell's reliance on Carmichael is misplaced because, unlike Carmichael, the instant case does not involve an improper limitation on the defendant's examination of prospective jurors. Also, Carmichael does not stand for the proposition that jurors (like the new jurors in this case) who hear testimony suggesting only that the defendant had previously been tried for the same offense before another jury cannot be fair and impartial. The Carmichael court stated only that a juror cannot be fair and impartial if he or she hears the results of the former trial and learns "that the jury therein had stood ten for conviction and two for acquittal." (Carmichael, supra, 198 Cal. at p. 543.) Here, Carbonell has failed to show that the jury in this matter heard the results of the former trial or the reasons why Carbonell was granted a new trial. Carbonell's claim that he was deprived of his constitutional right to be tried by an impartial jury because the second jury engaged in "inevitable speculation" that was damaging to his defense is itself based on conjecture and is not supported by any citations to the record.

We conclude Carbonell has failed to meet his burden of demonstrating the admission of his prior testimony resulted in a denial of his federal constitutional right to due process. For all of the foregoing reasons, we affirm the judgment.

DISPOSITION

The judgment is affirmed.

WE CONCUR: BENKE, Acting P. J., AARON, J.


Summaries of

People v. Carbonell

California Court of Appeals, Fourth District, First Division
Feb 2, 2011
No. D0056977 (Cal. Ct. App. Feb. 2, 2011)
Case details for

People v. Carbonell

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ORLANDO CARBONELL, Defendant and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Feb 2, 2011

Citations

No. D0056977 (Cal. Ct. App. Feb. 2, 2011)