Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County No. JCF19380, Joseph E. Zimmerman, Judge.
McINTYRE, Acting P. J.
A jury found Fabian Cardiel guilty of a felony, carrying a dirk or dagger, and two misdemeanors, possessing a syringe and falsely representing himself to a police officer. He appeals, contending the judgment should be reversed because the trial court erroneously denied his motion to suppress evidence. Alternatively, he contends the judgment should be reversed because the trial court erred by failing to (1) question the jury as to bias, (2) declare a mistrial based on juror bias, and (3) grant a new trial based on jury misconduct. Finally, he contends the trial court abused its discretion when it refused to reduce the carrying of a dirk or dagger count to a misdemeanor. We reject his contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 30, 2007, at about 11:39 p.m., Brawley Police Officer Miguel Correa was on patrol in his marked police car on North Imperial Avenue when he noticed Cardiel and a female companion walking on the sidewalk. He parked his patrol car at the curb about 30 to 40 feet behind the couple and illuminated them with a high-powered spotlight because the lighting conditions were very poor. He stepped out of the vehicle and asked, "Can I talk to you?" In response, the couple turned around and walked back towards Officer Correa. Cardiel identified himself as "David Francisco" and told Officer Correa that he was walking his female companion home.
Officer Correa noticed that Cardiel was wearing an excessively baggy jacket and baggy pants and asked if he could pat Cardiel down for weapons. Cardiel consented to a search and said that he had a "rig" or syringe in his pocket. After Cardiel again consented to a weapons patdown, Officer Carrea found the syringe and also a metal ice pick in another pocket. Cardiel thought the metal ice pick was his screwdriver and claimed he used it to fix his bike. During the encounter Cardiel never asked to end the conversation or whether he could leave, and submitted to arrest without incident. After Officer Correa arrested Cardiel, he attempted to confirm Cardiel's identity as "David Francisco," but dispatch advised that there was no match in the system for such a person. Officer Correa learned of Cardiel's real identity after he advised dispatch that the individual had a tattoo above his right eye in green ink that said "Brole."
Cardiel was charged with carrying a dirk or dagger, possessing a syringe and falsely representing himself to a police officer, plus various enhancements based on a prior felony and prior prison terms. The trial court denied Cardiel's motion to suppress and conducted a jury trial on the allegations. The jury found Cardiel guilty of all charges and found true all enhancements. The trial court denied Cardiel's motions for a mistrial, new trial, to dismiss a prior conviction and reduce a felony count to a misdemeanor, and sentenced Cardiel to a total of four years, eight months in prison. Cardiel timely appealed.
DISCUSSION
I. Motion to Suppress Evidence
A. Legal Principles and Standard of Review
Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individual's liberty. (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784.) An encounter is consensual as long as a reasonable person would feel free to disregard the police and go about his or her business. (Florida v. Bostick (1991) 501 U.S. 429, 434.) Even in a consensual encounter, "police may inquire into the contents of pockets [citation]; ask for identification [citation]; or request the citizen to submit to a search [citation]. It is not the nature of the question or request made by the authorities, but rather the manner or mode in which it is put to the citizen that guides us in deciding whether compliance was voluntary or not." (People v. Franklin (1987) 192 Cal.App.3d 935, 941.) A consensual encounter becomes a detention when the officer, by means of physical force or show of authority, in some manner restrains the individual's liberty. (Florida v. Bostick, supra, 501 U.S. at p. 434.)
The line between consensual encounters and detentions is fact-specific; however, certain factors are probative of whether a reasonable person would have felt free to terminate the encounter with the police. "Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." (United States v. Mendenhall (1980) 446 U.S. 544, 554.) "In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person." (Id. at p. 555.)
On appeal from a motion to suppress evidence, we defer to the trial court's factual findings, express or implied, where supported by substantial evidence. (People v. Weaver (2001) 26 Cal.4th 876, 924.) We cannot reverse merely because the circumstances also might support a contrary finding. (In re Manuel G. (1997) 16 Cal.4th 805, 823.) Once we have determined the relevant facts, "we independently assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness. [Citation.]" (People v. Hughes (2002) 27 Cal.4th 287, 327.)
B. Analysis
Cardiel contends the court erred in finding a consensual encounter and search. He argues that Officer Correa unlawfully detained him and that his consent to search was the fruit of that unlawful detention. We disagree.
In contending that a reasonable person would not have felt free to ignore the police and proceed about his or her business, Cardiel focuses on the facts that Officer Correa turned on his spotlight and "commanded" that Cardiel speak to him. While Cardiel may have felt that he was subject of police scrutiny when Officer Correa spotlighted him, this act is an insufficient show of authority to convert the encounter into a detention. (People v. Perez (1989) 211 Cal.App.3d 1492, 1496; see also, People v. Franklin, supra, 192 Cal.App.3d at p. 940; People v. Rico (1979) 97 Cal.App.3d 124, 130.) Additionally, the record does not support Cardiel's assertion that Officer Correa issued a command. As the trial court noted it its ruling, Officer Correa inquired, "Can I talk to you?" While Officer Correa may have used a tone of voice louder than normal because Cardiel was about 20 feet away, he did not yell.
Cardiel relies on People v. Roth (1990) 219 Cal.App.3d 211 (Roth), to support his contention that the trial court erroneously denied his suppression motion. In Roth, the court found that a detention had occurred where the officers shined a spotlight on the defendant and asked either "I would like to talk to you" or "Come over here. I want to talk to you," and reversed the denial of a suppression motion because the circumstances were insufficient to show defendant's involvement in any criminal activity. (Id. at pp. 213, 215.) Although one justice in Roth expressed doubt about whether the officer's statement was a request or a command, the trial court had found it was a command, and two justices expressly stated they were bound by that finding. (Id. at pp. 215, fn. 3, 216 (conc. opn. of Todd, J.).) Here, however, there was no indication in Officer Correa's testimony that he commanded Cardiel to do anything or otherwise acted in an intimidating fashion. (Compare People v. Garry (2007) 156 Cal.App.4th 1100, 1111-1112 [detention occurred when officer spotlighted and rushed directly at defendant asking about his legal status, ignoring defendant's statement that he was merely standing outside his home].)
The trial court's implied finding that the encounter was consensual is supported by substantial evidence. Accordingly, Officer Correa did not need a reasonable suspicion that Cardiel was involved in criminal activity to question him. Once Cardiel stated that he had a syringe in his pocket, Officer Correa had probable cause to arrest and search him incident to the lawful arrest. (People v. Avila (1997) 58 Cal.App.4th 1069, 1075.) Thus, the trial court did not err in declining to suppress the fruits of the search.
II. Alleged Juror Bias or Misconduct
A. Facts
Shortly after the jury commenced deliberations, it sent out a note stating it could not select a foreperson because it feared retaliation. After discussing the matter with counsel, the trial court instructed the jury that it could pick a foreperson by lottery or that all 12 jurors could sign the verdict forms. Defense counsel objected to the response and the trial court's failure to bring the jury into the courtroom for questioning, and moved for a mistrial on the ground the jury could not be fair and unbiased. Defense counsel argued that the jurors needed to be asked whether they had been threatened "or something like that." The trial court, however, wanted to wait and see what developed after the jury received the response to its note.
Later in the day, the jury found Cardiel guilty of all charges, with each juror signing the verdict forms. When the court asked each juror if he or she had signed the verdict forms, each juror answered "yes," except for juror number three who nodded. The clerk then polled the jury as to each count. As to count one, each juror responded that the guilty finding was his or her true and correct verdict, except juror number three, who stated "I reserve my right." When the court asked juror number three for a "yes" or "no" answer, juror number three responded, "You have your answer[.]" The court denied juror number three's request to speak to the court in chambers and defense counsel again moved for a mistrial. The trial court again asked juror number three whether the verdict as to count one was true and correct and the juror said, "Yes." The trial court then denied the request for a mistrial because there was no evidence of misconduct and that "[p]eople acting and feeling like human beings is not grounds for a mistrial."
Juror number three nodded his head when asked about the verdict for count two and stated "Yes" when asked about the verdict for count three. The following day, after denying a written defense motion for a mistrial, the trial court again asked juror number three whether the guilty verdicts for counts two and three reflected his or her true verdict and received a "yes" response to both questions. The trial court told the jury it would now decide the prior convictions allegations, but before proceeding it asked the jurors to raise a hand if he or she felt threatened during the course of the trial over what decision he or she might make. No juror raised a hand.
Cardiel later moved for a new trial based on jury misconduct and asked for a formal evidentiary hearing. Defense counsel filed a declaration in support of the motion stating, on information and belief, that juror number seven had spoken to a defense investigator and stated: "I mean come on anyone that has [a] tattoo[] like that on [their] head of all places. It was a little scary, ya know? We all knew he was a gang member and that's why they couldn't pick a foreperson because we were afraid of retaliation." Again, based on information and belief, defense counsel stated that the jury received no evidence regarding Cardiel's gang affiliation or any tattoos.
The trial court denied the new trial motion, stating that Cardiel cannot now complain if the jury feared possible retaliation because he chose to tattoo the name of a Brawley street gang on his forehead and defense counsel never asked for a jury admonishment regarding the tattoo. The trial court also noted that the evidence against Cardiel was "overwhelming."
B. Analysis
We review Cardiel's challenges to the trial court's rulings under the abuse of discretion standard. (People v. Cleveland (2001) 25 Cal.4th 466, 478 [trial court has discretion on whether to investigate the possibility of juror bias or misconduct]; People v. Mayfield (1997) 14 Cal.4th 668, 756 [motion for mistrial]; People v. Turner (1994) 8 Cal.4th 137, 212 [motion for new trial] overruled on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) In determining whether jury misconduct occurred, we accept the trial court's credibility determinations and findings of fact if supported by substantial evidence, but determine whether any prejudice resulted by independent review. (People v. Majors (1998) 18 Cal.4th 385, 417.)
Cardiel contends the trial court erred when it failed to question the jury about possible misconduct or grant a mistrial after (1) the jury submitted its note and (2) juror number three hesitated to affirm his or her verdict in open court. He also contends the trial court erred in denying his motion for a new trial because the jury committed misconduct by considering evidence not presented at trial, i.e., that he was a gang member. We conclude the record supports the trial court's finding that there was no juror misconduct and that the court did not abuse its discretion in denying Cardiel's request to question the jury or his motions for a mistrial and for a new trial.
It is misconduct for jurors to obtain evidence from sources other than in court and this constitutes grounds for a new trial if the defendant has been prejudiced thereby. (Pen. Code, § 1181, subd. 2.) Whether this rule applies to jurors' perceptions of a defendant is unclear; however, as a matter of policy, a defendant is not permitted to profit from his own misconduct. (People v. Williams (1988) 44 Cal.3d 1127, 1154 [new trial denied where defendant threatened jurors after guilty phase, but before penalty phase]; also, People v. Pride (1992) 3 Cal.4th 195, 253-254 [defendant cannot claim prejudice when he chose to appear at the penalty phase in jail clothes and shackles].) "Misconduct creates a presumption of prejudice that may be rebutted by a showing that no prejudice actually occurred." (People v. Williams, supra, 44 Cal.3d at p. 1156.)
Cardiel claims the jury saw his tattoo and felt intimidated by the belief he was an active gang member, although there was no evidence presented on this subject at trial. As a threshold matter, Cardiel may not complain of prejudice he caused by his own voluntary act. (People v. Pride, supra, 3 Cal.4th at pp. 253-254.) Cardiel could have covered his tattoo; rather, he chose to display it, did not object to evidence regarding it, and never asked the court to admonish the jury to not consider it or speculate regarding its meaning.
Assuming, without deciding, that the jury felt intimidated by Cardiel based on knowledge that his tattoo represented a Brawley street gang, he has failed to explain how feelings of intimidation translated into a showing of jury misconduct or bias. The trial court commented it could "almost take judicial notice" that Cardiel had the name of a Brawley street gang tattooed on his forehead. Likewise, jurors "cannot be expected to shed their backgrounds and experiences at the door of the deliberation room." (People v. Fauber (1992) 2 Cal.4th 792, 839.) As our high court explained in a case involving spectators intimidating a jury, "understandable concern does not amount to misconduct" where there is no evidence to support the defendant's claim that the jury was biased against him. (People v. Panah (2005) 35 Cal.4th 395, 480.) Similarly here, the trial court expressly found no evidence of misconduct and correctly noted that "[p]eople acting and feeling like human beings is not grounds for a mistrial." Accordingly, the trial court did not abuse its discretion by refusing to declare a mistrial.
Nor can we conclude that the trial court's refusal to question the jury after it received the note and juror number three hesitated to affirm his or her verdict, amounted to an abuse of discretion. The note and juror number three's hesitancy, standing alone, did not call into doubt the jury's ability to perform its duties and defense counsel's concern regarding possible juror misconduct or bias was based on pure speculation. (People v. Davis (1995) 10 Cal.4th 463, 548 [court has no duty to investigate juror misconduct or bias that is based on mere speculation].) Under these circumstances, the trial court did not abuse its discretion when it failed to question the jury.
The trial court also correctly determined that the evidence presented in connection with the new trial motion did not establish prejudicial juror misconduct or bias. Evidence presented in a declaration on a new trial motion must be based on the declarant's personal knowledge; a verdict cannot be impeached by hearsay. (People v. Cox (1991) 53 Cal.3d 618, 697.) Defense counsel's declaration, the only evidence supporting the new trial motion, contained inadmissible hearsay and was based entirely on information and belief, rendering it of no evidentiary value. (Humphrey v. Appellate Division (2002) 29 Cal.4th 569, 574 [a declaration based on information and belief is of no evidentiary value].)
Even if we ignored these defects, the declaration did not show that the jurors considered outside information, rather than simply relying on common knowledge in the community that "Brole" referred to a street gang and that street gangs, and individuals associated with them, were scary. (People v. Steele (2002) 27 Cal.4th 1230, 1265-1266 ["We cannot demand that jurors, especially lay jurors not versed in the subtle distinctions that attorneys draw, never refer to their background during deliberations"].) Additionally, a defendant's intimidation of jurors, standing alone, is insufficient to show juror bias. (People v. Panah, supra, 35 Cal.4th at p. 480.) Furthermore, the trial court instructed the jury to decide the case based only on the evidence presented and not let bias or prejudice influence their decision (CALCRIM No. 200). Absent evidence to the contrary, we must presume that the jury followed these instructions. (People v. Houston (2005) 130 Cal.App.4th 279, 312.)
In summary, the record does not support Cardiel's claim that he was denied an impartial jury and the trial court did not abuse its discretion in denying his motions.
III. Failure to Reduce Current Offense to a Misdemeanor
Cardiel contends the trial court abused its discretion when it refused to reduce his wobbler offense of carrying a dirk or dagger to a misdemeanor. Specifically, he contends the trial court failed to consider all relevant factors before deciding this issue, particularly mitigating facts surrounding the offense. We disagree.
The decision whether to reduce a "wobbler" to a misdemeanor is one of the sentencing choices within the trial court's broad discretion. (Pen. Code, § 17, subd. (b).) The party attacking the sentence must show that the decision was irrational or arbitrary; in the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) A sentence will not be reversed because reasonable people might disagree with the trial court's decision. (Ibid.) In deciding whether to exercise its discretion, the trial court should consider several factors, including the nature and circumstance of the current offense, and the defendant's attitude, traits or character and history. (Id. at pp. 981-982, 978.)
As a threshold matter, Cardiel waived his right to challenge the denial of his motion based on the trial court's alleged failure to consider all relevant factors by not raising this issue below. Routine defects in the trial court's statement of reasons are easily prevented and corrected if called to the trial court's attention. (People v. Scott (1994) 9 Cal.4th 331, 353 [waiver applies to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices].) Had defense counsel told the trial court that it failed to discuss various mitigating factors, the trial court could have commented upon such factors or observed that it had already taken them into account in deciding the motion.
In any event, we presume the trial court considered all relevant sentencing criteria in denying the motion unless the record affirmatively demonstrates otherwise. (Alvarez, supra, 14 Cal.4th at p. 977.) Here, the trial court ruled on Cardiel's motion after hearing defense counsel's arguments (including that Cardiel was cooperative, there was no victim, damage or financial losses and the instrument was small) and the prosecutor's rebuttal. The trial court discussed the circumstances surrounding the crime and noted Cardiel's prior felony convictions, indicating that it had considered Cardiel's probation report. Accordingly, the record reflects that the trial court did not base its decision on inappropriate considerations and that it had all relevant factors before it. Cardiel has failed to rebut the presumption and has not shown that the trial court clearly abused its discretion in declining to reduce his offense to a misdemeanor.
DISPOSITION
The judgment is affirmed.
WE CONCUR, O'ROURKE, J., IRION, J.