Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. MCR025594 of Madera County, Jennifer R.S. Detjen, Judge.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.
OPINION
HILL, J.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Eddie Carrillo shot his cousin Carlos Urbano several times, at close range, in the face, chest, and back. Consequently, he was convicted of attempted murder (Pen. Code, §§ 664, 187, subd. (a); count 1) and assault with a firearm (§ 245, subd. (a)(2); count 2). Numerous firearm and great bodily injury enhancements were also found to be true. But the jury was unable to reach a verdict on allegations the crimes were committed for the benefit of a criminal street gang, and the court subsequently dismissed the gang enhancements on the prosecutor’s motion. The jury also found true the allegation that defendant had a prior conviction of violating section 245, subdivision (a)(1) and the court found the conviction constituted a serious felony within the meaning of the three strikes law. The court sentenced defendant to prison for a total of 39 years to life. On appeal, defendant contends: (1) the court erred in dismissing a juror during deliberations; (2) the court failed to conduct a reasonable inquiry regarding possible juror misconduct; (3) the postsubmission substitution of jurors violated his constitutional rights; (4) his trial counsel provided ineffective assistance by failing to object to the gang expert’s testimony regarding defendant’s prior criminality; and (5) insufficient evidence supports the trial court’s finding that his prior conviction of violating section 245, subdivision (a)(1) qualified as a serious felony within the three strikes law. We affirm.
All statutory references are to the Penal Code unless otherwise noted.
FACTS
On June 19, 2006, Carlos Urbano, was residing with his aunt in Madera. Around 9:00 or 9:30 p.m., Urbano was sitting in a little shack behind the house, fixing a weed eater. The room was well lit.
As Urbano was working on the weed eater, defendant walked into the shack. It appeared defendant was handing him a soda bottle. But as Urbano looked up, he saw defendant raise up the plastic bottle, felt a blast, and realized he had been shot. Urbano felt a twitch below his right eye. He was then shot again on the right side of the face. He got up ran out of the room. He had to rush around defendant to get to the door. Defendant then shot him a third time in the chest. As Urbano was running through the door, he was shot again in the back. Urbano remembered falling in the driveway, and waking up a few minutes later and making it into the carport, between the storage shed and the house.
After regaining consciousness in the carport, Urbano walked inside the house. He went through the kitchen and then fell down in the dining area. His young cousins, who had been watching television, discovered him. At this time, Urbano felt a burning sensation in his face. His little cousin started screaming, and his aunt, who had been outside talking on the phone, came in. She asked him what happened. Urbano told her “Eddie shot me.”
Urbano remembered waking up in the hospital. He was there about a week and had surgery on his face. He had another surgery about a month later, where a plate was placed beneath his right eye because it was dropping. As a result of his injury, his right eye was currently bigger than his left eye. He also described having sleep problems, cold sweats, pain in his jaw, pain in his eye, and “heart pains.” In addition, Urbano experienced stuttering and memory problems.
Urbano testified he had known defendant all his life and had never had any problems with him before the day of the shooting. Defendant did not say anything when he shot Urbano. Urbano was very surprised that his cousin shot him.
Urbano admitted he consumed methamphetamine and marijuana the day before the shooting but stated he was not under the influence when he was shot and was able to recognize who shot him.
Urbano saw defendant earlier that day around lunchtime. Urbano testified that, besides defendant, there was one other Eddie Carrillo in his family, his dad’s sister’s son, who was about 50 years old and lives in Sacramento. This Eddie was not present the day of the shooting and Urbano had not seen him for many years. Defendant’s son is also named Eddie but he is only a child. Urbano could not recall whether defendant’s son was present the day of the shooting but confirmed he would be able to tell them apart. Urbano had no doubt defendant was the one who shot him.
When Urbano was in the shack working on the weed eater, he was not alone. Sammy, a friend of Urbano’s cousin, Andrew Rodriguez, was sitting on the couch about four to five feet from Urbano. Urbano confirmed that defendant, not Sammy, shot him. Sammy and defendant do not look alike. Urbano did not know Sammy very well and he was unaware of his current whereabouts. There was also somebody sitting by Sammy. Urbano did not know him or his name. He was about 19 years old, medium height, and thinner than defendant. He had come there with Sammy.
Urbano testified that he had once been a “northerner” or member of the Norteno gang, but he no longer participated in the gang. Urbano testified he had prior criminal convictions, including a misdemeanor petty theft in 1994 and felony petty theft with a prior in 2000. He was incarcerated at Corcoran for about two years. He was not a member of a gang prior to entering prison but joined the gang after he went into prison. He quit the gang while he was still in prison because he was “[t]ired of the whole system.”
Urbano testified it did not feel safe to say anything about the gang and that he was “very uncomfortable” with the prosecutor’s questions. When he quit the gang, he requested to be housed with other dropouts. It would be quite dangerous to stay housed with Nortenos after dropping out of the gang. When he talked to the prison authorities, he was “PCed up” which means he got “[p]rotected custody.”
Urbano had a fight with a Norteno about a week before the shooting. When asked what the fight was about, he testified: “I don’t know. Probably we just fucked up drinking. Excuse my language. Yeah, probably we were drinking.” Urbano did not think the fight was so serious that it would result in somebody coming to shoot him. The only person he told about the fight was his cousin, Andrew Rodriguez.
Madera Police Officer George Yang responded to the shooting. He entered the house with Officer Louis Reyes and observed Urbano lying in the kitchen. Urbano had been shot and his face was covered with a towel. Officer Reyes asked him what happened. Urbano said he had been shot by his cousin, Eddie Carrillo. Urbano advised the officers he had been shot in the backyard. Urbano did not appear to Officer Yang to be under the influence of drugs because of his ability to answer the officers’ questions about what happened.
Urbano’s aunt, Elizabeth Rodriguez, testified she was at the house on June 19, 2006. At 9:30 p.m., Rodriguez was in her front yard, watering the grass and talking to her sister on the phone. Her grandchild called her inside the house, saying there was something wrong with Urbano. Rodriguez went inside the living room, walked into the dining room, and found Urbano lying on the floor. Urbano had blood on his face and was moaning. He told Rodriguez that “Eddie” shot him. She had seen defendant at her house earlier in the backyard. She was unaware of any problems between defendant and Urbano. As far as she knew, they got along.
Officer Louis Reyes testified that when he was dispatched to the residence, he observed Urbano lying on his back in the dining room area. A blood-stained towel covered his face. There was blood on his clothing and on the floor beneath him. He appeared to be injured and in pain. Officer Reyes asked him what happened, and Urbano said, “he shot me.” When the officer asked who shot him, Urbano responded, “Eddie Carrillo.” Officer Reyes asked him who Eddie Carrillo was. Urbano answered, “my cousin.” Officer Reyes asked Urbano how many times he was shot. Urbano lifted up his left arm and showed him either four or five fingers, and then put his arm down. Officer Reyes asked Urbano why defendant shot him, and said he did not know. When the officer asked again, Urbano started to complain about pain. Urbano did not act like somebody under the influence of drugs but was very coherent.
Dr. John Bilello, MD, the attending trauma surgeon at University Medical Center in Fresno, treated Urbano after the shooting. Dr. Bilello testified that Urbano had gunshot wounds to the face and upper torso, a gunshot wound under the right eye, and one in the upper right chest. Before Urbano saw Dr. Bilello, he was likely given an opiate called Fentanyl for his pain. No bullets were recovered from Urbano’s body, but a CT scan showed bullet fragments in his neck, near the second cervical vertebra at the top of the neck. Dr. Bilello thought the floor of Urbano’s right eye socket had been damaged and had to be repaired at a later date.
Madera Police Detective Chuck Smith testified that he had experience with a plastic bottle being used as a silencer during his special training. His instructor demonstrated how certain objects, including “PVC pipe, two-liter and one-liter plastic bottles, common soda bottles [could be used] to fit the end of a variety of pistols, nine millimeter all the way down to .22 caliber.” Detective Smith actually shot a handgun using a plastic bottle. The result was a noticeable reduction in the report of the shot. Based on his experience and training, he opined that a plastic bottle can be an effective silencer.
Elizabeth Rodriguez’s son, Andrew Rodriguez, testified that on the night of the shooting, he had just come back from a girl’s house and was going to borrow his cousin’s truck and return to the girl’s house, when he heard his mother screaming. Andrew ran around the house and entered through the backdoor. He saw Urbano on the floor with blood all over him. Andrew grabbed a towel and put it on Urbano’s face and then called 911. Andrew asked Urbano what happened. Andrew just remembered Urbano saying, “[h]e shot me, he shot me.” Andrew could not remember what he told Officer Reyes except this and that he put a towel over Urbano’s face.
Officer Reyes was recalled as a witness. According to Officer Reyes’s testimony, when he spoke to Andrew the night of the shooting, Andrew said that when he asked Urbano what happened, Urbano responded: “Eddie shot me.” Officer Reyes testified when he was questioning witnesses that night, he always referred to “Eddie Carrillo” to make sure they knew he was talking about defendant. He never just said “Eddie.” No one ever corrected him or said he had the wrong person.
Madera Police Officer Michael Kutz testified that on the night of the shooting, defendant turned himself in to the sheriff’s department. Officer Kutz went to the sheriff’s department and custody of defendant was turned over to him. Officer Kutz handcuffed defendant, put him in the back of his patrol car, and transported him to the jail. The officer advised defendant he was being arrested for attempted murder. While they were in the process of booking defendant, defendant asked Officer Kutz, “Did you guys make a big deal of this?” Officer Kutz described defendant’s demeanor as “very nonchalant” and “kind of arrogant.”
Herminio Sauceda of the Madera County Department of Corrections was the prosecution’s gang expert. Sergeant Sauceda testified that for the past 10 years, he has been involved in the classification of inmates to be housed in their facility. Sergeant Saucedo testified to his familiarity with the Norteno and Sureno criminal street gangs, whose members must be separated from one another for their safety. Dropouts or nonaffiliated gang members are also separated from active ones.
Sergeant Sauceda opined that defendant was a member of the Norteno gang. The bases of his opinion are discussed in greater detail below. Sergeant Sauceda further opined that Urbano was a Norteno gang member until 2002. Urbano’s current status was that of a dropout. Sergeant Urbano testified he was aware that a “bad news list” was found at Corcoran State Prison. Twenty to 30 people from Madera County were on the list. Each was identified by their California Department of Corrections number (CDC number) and moniker, which is the street name they are given when they are “jumped in” to the gang. Urbano’s moniker is “Shotgun” and is tattooed to the back of his neck. Urbano was listed on the hit list by his moniker, his CDC number, and the town of Madera.
Urbano explained that the Nortenos are highly organized within the jail system. When they first enter, they are contacted by the “shot-caller” and required to memorize, within 60 to 90 days, a two-page code of conduct called “14 bonds.” When they get out of prison and a Norteno asks them to recite the bonds, they should be able to repeat them quickly. Members in and out of the prison system communicate via “micro writing” on small pieces of rolled up paper. A “bad news list” is a list that usually comes from the state prison, where an individual’s name appears because he broke one of the codes, such as ratting on a fellow Norteno, having an affair with another Norteno’s spouse, or committing a crime against another Norteno family.
Frequently, the bad news list includes individuals who no longer want to be affiliated with a gang or were given an assignment to assault someone and refused. At that point, they will go on the list, which goes up to the ranking Norteno in the facility. He puts the information on micro writing and it goes from that prison to another prison, or to people out on the street. The bad news list is essentially a “hit list” but the gang members do not refer to it as such. Instead, they call it “the green light.” “They say, man, there is a green light on me, which means it’s a go for anybody who sees this individual on the streets, then they have a green light to assault him.” Sergeant Sauceda confirmed the list is the equivalent of being an order to attack any person whose name appears on the list. A dropout will be placed on a bad news list, “[b]ecause he just disrespected the Nortenos by refusing to be affiliated any longer. It’s a blood in, blood out.”
When asked if it would benefit a gang to take a hit on a dropout, Sergeant Sauceda testified: “It would benefit a gang because if you take a dropout out, it’s only setting the example for those that are current, those that are associated at this time. They know already that if they drop out the same thing is going to happen to them. It’s kind of an intimidation, a threat factor.”
Sergeant Sauceda explained the process of dropping out of a gang in prison. The dropout must go to the classification unit, and undergo a “debriefing,” where they sit down with one of the officers and basically go through their whole criminal history, from when they first started with the gang. Thus, the dropout has to essentially identify crimes he has committed, known gang members and their rank structures, any kind of codes he knows of, and any kind of hits that may be coming. He is then placed in protective custody for his own safety.
Sergeant Sauceda testified that a gang member could elevate his standing in the gang by attacking a family member who was on the dropout list or hit list. “It just shows the loyalty to the gang. The way they see it is if you are willing to commit a crime or a violent crime against their own family member there is nothing else you wouldn’t do for that gang.”
Sergeant Sauceda opined that, assuming an active gang member attempted to murder a dropout of the same gang or somebody on a hit list of the gang, using a firearm, it would benefit the gang: “[T]he gang uses that as an intimidation for the ones that are presently with a gang so that they don’t have any thoughts about moving out of the gang because if they do then the same thing is going to happen to them.” The status of the person who attempted the hit would also be bolstered. It would have the other members thinking of him as a leader and as one who is loyal to the gang.
DISCUSSION
I. Dismissal of a Juror during Deliberations
Defendant contends the trial court erred in dismissing Juror No. 4 during deliberations. We disagree.
A. Background
The jury retired to deliberate on Thursday, November 9, 2006 at 2:55 p.m. Their deliberations concluded for that day at 4:24 p.m. The foreperson stated that the jury would return Monday morning to continue deliberations. Juror No. 8 was subsequently excused, after she explained to the court she would be unable to obtain child care the following week.
The jury returned to the court Monday, November 13, 2006. The alternate juror was sworn, and the court instructed the jurors as follows:
“One of your fellow jurors has been excused and an alternate juror has been selected to join the jury. Do not consider the substitution for any purpose. The alternate juror must participate fully in the deliberations that lead to any verdict.
“The People and the defendant have the right to a verdict reached only after full participation of the jurors whose votes determine that verdict. This right will only be assured if you begin your deliberations again from the beginning. Therefore, you must set aside and disregard all past deliberations and begin your deliberations all over again. Each of you must disregard the earlier deliberations and decide this case as if those earlier deliberations had not taken place.”
The jury retired to deliberate at 8:50 a.m. Around 11:23 a.m., the court announced that it had received two notes. One note from Jurors No. 4 and 7, marked as Court’s Exhibit 12, read:
“We feel that we are the only two jurors having to explain our decision. We feel it’s us against the other ten jurors. Our decision is not being respected. I feel like we are being harassed and intimidated, persuaded to change from verdict to the other. It is very unfair and unprofessional and disrespectful to us. We need your guidance to help us with this further.”
The other note, marked Court’s Exhibit 13 and signed by the remaining jurors, read:
“We have not discussed the evidence fully and they have stated they are already decided and one stated he or she will not change his or her mind and feels like we are putting them through the ringer when we ask them to explain their position. We have not polled the jurors yet today.”
The court called in the jury foreperson and asked her whether the ten jurors in the jury room “would be willing to talk with and deliberate with and share their views with the two jurors” who were then in the bailiff’s office. The foreperson answered: “I don’t think any of us that are in there would have a problem with that at all.”
The court then called in Juror No. 4. In language similar to its earlier charge to the jury, the court restated the juror’s duty to deliberate. The court then asked Juror No. 4 if she felt she was willing to do that. The following colloquy ensued:
Specifically, the court told Juror No 4: “It is your duty in this case to deliberate in the jury room. Of course, you must decide the case for yourself, but only after you’ve discussed the evidence with the other jurors. Your role is to be an impartial judge of the facts, not to advocate as – not to be an advocate for one side or the other. It’s very important that the other jurors hear your views on the case. [¶] And I’m not asking that you change your mind if you are not – the instruction says, do not hesitate to change your mind if you become convinced that you are wrong, but do not change your mind just because the other jurors disagree with you. It’s just that they need to hear your views and it’s important that you hear theirs. It is important that all 12 jurors get the chance to deliberate and make up their own mind about the case.”
“JUROR NO. FOUR: I can, your Honor. And I’ve been trying to. But it’s – it’s difficult when the other ten members are not willing to listen to you and, you know, it’s very unprofessional and very disrespectful the way things are being handled. And I’m very disappointed with that.
“THE COURT: Okay. If they take steps to engage in more open discussions with you and listen to you, would you be willing to then go back into the jury room with them and deliberate with them?
“JUROR NO. FOUR: No. Because we don’t seem to be getting anywhere. It seems to me that they are trying to persuade myself and the other juror.
“THE COURT: Don’t tell us what – just talk about conduct, not what –
“JUROR NO. FOUR: Conduct. It’s very, it’s very uncomfortable, very uncomfortable, very unprofessional and very hostile in there.
“THE COURT: All right. What should they – what should the foreperson be doing in your opinion in terms of controlling the conduct?
“JUROR NO. FOUR: She should be – I believe she should be telling the other juror members to respect our decision and based upon what we are talking about in there, but that’s not happening and we are being attacked basically in there. And it’s very uncalled for.
“THE COURT: All right. Are you willing to listen to the other jurors’ opinions about the evidence or ideas about what the evidence shows?
“JUROR NO. FOUR: At this point, no. Because we are not – going back to earlier from the last week, we are not getting anywhere.
“THE COURT: Has the jury started all over again with the new juror?
“JUROR NO. FOUR: Yes, we did. That’s when I had to buzz the bailiff earlier. Because it was very uncomfortable and I felt like I was the one put on trial earlier and it’s just very uncalled for and very unprofessional.
“THE COURT: All right. So if they are willing to listen to your views politely, would you be willing to go back in?
“JUROR NO. FOUR: No. Because I already tried to explain my views about the whole case. I’m not going to say anything else. But they are not willing to listen to what I tried to say and they are just very closed minded and the more I say about my decision on the case the more closed minded they are, and, I mean, there is ten in there. It’s like, you know, it’s very uncomfortable, very uncomfortable.
“THE COURT: Are you willing to listen to their views?
“JUROR NO. FOUR: No.”
Next, the court called in Juror No. 7, and asked if the juror was willing to go back into the jury room if the other jurors were willing to listen to the juror’s views. This followed:
“JUROR NO. SEVEN: At this point, your Honor, I’m not sure if it would make a difference. I honestly don’t believe it’s going to make a difference.
“THE COURT: I don’t want you to tell us about the deliberations, meaning I don’t want you to tell us what your opinion is or what someone else’s opinion is. We are just going to talk about conduct.
“Did the jury start deliberating anew this morning when Juror No. Eight joined them?
“JUROR NO. SEVEN: Yes.
“THE COURT: All right. And has a vote even been taken this morning at all?
“JUROR NO. SEVEN: No.
“THE COURT: All right. What could the other jurors do, what could they change about what they are doing that would then – that you would then be willing to go back and discuss your views and listen to theirs?
“JUROR NO. SEVEN: That’s hard to answer. I’m not sure if there is anything they can do. It’s people have a difference of opinion and there is no coming together at all. It’s a black and a white issue and that’s it. And that’s the way I feel. I don’t feel like – it just feels like myself and Juror No. Four are just being kind of attacked us feeling the way we do and so I don’t know if that will ever be reasoned out at all putting us back together. I don’t know how to answer that.
“THE COURT: Okay. It is very important that as a juror you not be an advocate for one side or the other, but you are an impartial judge of the facts. It’s important that everyone in the jury room be given the opportunity to express their views on the evidence and try to come to an agreement on a verdict if they can. It is important that they listen to each other and treat each other with respect.
“JUROR NO. SEVEN: I believe that everybody is listening in the room, but I don’t believe the respect has been given.
“THE COURT: How did the other jurors – in terms of conduct, how do they show lack of respect? Are they just refusing, are they turning their back to you when you talk?
“JUROR NO. SEVEN: They are wanting us to explain ourselves and they are not having to explain themselves.
“THE COURT: Okay. So if they agree to listen to your explanation, would you then agree to listen to theirs? And if they agree to give their explanation.
“JUROR NO. SEVEN: I would be willing to do whatever we needed to do to come to some sort of decision.
“THE COURT: All right. And my understanding, and maybe it’s wrong, just correct me if I’m wrong, is at some point in time a juror walked out – buzzed and told the bailiff that she wanted out of the jury room. Was that you or Juror No. Four or both of you?
“JUROR NO. SEVEN: Juror Four.
“THE COURT: Juror Four. And then you decided to go with her?
“JUROR NO. SEVEN: I was called to go with her.
“THE COURT: Who called you to go with her?
“JUROR NO. SEVEN: Deputy Roth. I believe per Juror No. Four wanted.
“THE COURT: All right.
“JUROR NO. SEVEN: Because our beliefs were the same. She wanted me with her just in case I felt the same as she did.”
The court next called the foreperson back in and spoke to her briefly. The foreperson informed the court that after she went back inside the jury room, some comments were made that led her to “think that maybe one or two of the jurors may have some hard feelings, some animosity and may not be able to take what the other jurors … have to say without hard feelings maybe.” The court then inquired whether the foreperson felt that if the court again instructed the jurors of their duty to deliberate and share their views and listen to the views of others, whether it would be possible to try once more to have the 12 jurors deliberate and try to reach a verdict, the foreperson responded that she thought it was possible.
The court then brought Juror No. 4 back for these final discussions:
“THE COURT: All right. Welcome back. [¶] Without talking about the deliberations, meaning don’t discuss what your opinion is, when I talked to you earlier you talked about you made a decision that you had. Don’t tell us what the decision was or what the disagreement is. But you did seem to mention that something occurred in the jury room that prior to your leaving the jury room. Can you tell us what conduct occurred that caused you to decide to leave the jury room?
“JUROR NO. FOUR: Like I said earlier, I was feeling attacked and it was very – it’s very uncomfortable when you are trying to make your point across what your decision is what you believe in or what – you know, just talking about the case in general. And I mean, you know, there is ten other people just at you and at you and, you know, wait a minute, I don’t that it’s very fair for someone to sit in there and be treated that way. It’s very disrespectful, very uncomfortable. We should be working in there together very professional and courteous. You know, this shouldn’t be happening in my opinion, my point of view.
“THE COURT: If the other jurors were instructed to be courteous, to listen to your views and to politely explain their views to each other, and which include you, would you be willing to then discuss your views with them?
“JUROR NO. FOUR: Honestly, your Honor, no. Because they’ve already made their decision and it’s like they are trying to persuade us to change our decision and at this point I’m not going to.
“THE COURT: Okay.
“JUROR NO. FOUR: It’s very uncomfortable.
“THE COURT: And don’t tell me what your – has there been a vote yet today in the jury room?
“JUROR NO. FOUR: No.
“THE COURT: Without telling me what their decision is, the decision you are referring to, does that refer to guilt or innocence or is it a decision about different pieces of evidence?
“JUROR NO. FOUR: It’s both.
“THE COURT: Okay. And just to make the record clear, what is your position on whether or not you are willing to go back into the jury room and deliberate with the other jurors?
“JUROR NO. FOUR: At this point, your Honor, I don’t feel comfortable.
“THE COURT: Okay. At any point will you feel comfortable going back in there?
“JUROR NO. FOUR: I don’t think so. Not the way I was treated in there. It’s just not right.
“THE COURT: So have you then made a decision about whether you are going back in the jury room or not?
“JUROR NO. FOUR: I would not like to go back in there and discuss it. I mean, it’s very black and white within there. It’s all or nothing and I feel very uncomfortable.
“THE COURT: If you were directed to go back into the jury room and discuss your views with the other jurors and listen to theirs, would you do that?
“JUROR NO. FOUR: No.”
After this discussion, the court excused Juror No. 4, explaining: “Juror No. Four was asked if the Court ordered, directed – if the Court directed the other nine jurors to listen to her views and to share their views with her as well as – I’m sorry, the other 11 jurors. If the Court instructed the rest of the jurors to share their views with this juror and to listen to hers would she be willing to then deliberate. I think she’s made it clear she is not. Even if they are polite to her, she is not going to do it.”
After the next alternate juror was sworn, the court reinstructed the jury that it was required to begin deliberations from the beginning. The court also reinstructed the jury on its duty to deliberate:
“Ladies and gentlemen, it is your duty to talk with one another and to deliberate in the jury room. You should try to agree upon a verdict if you can do so. Each of you must decide the case for yourself, but only after you have discussed the evidence with all of the other jurors. Do not hesitate to change your mind if you become convinced that you are wrong, but do not change your mind just because the other jurors disagree with you. Keep an open mind and openly exchange your thoughts and ideas about this case. Stating your opinions too strongly at the beginning or immediately announcing how you plan to vote might interfere with an open discussion. Please treat one another courteously. Your role is to be impartial judges of the facts, not to act as an advocate for one side or the other.”
The jury then retired to resume deliberations at 1:52 p.m. and concluded at 4:32 p.m. Deliberations resumed the following day, at 8:48 a.m. At 10:52 a.m., the foreperson stated the jury had reached a verdict.
B. Analysis
Section 1089 provides in part: “If at any time … a juror … upon … good cause shown to the court is found to be unable to perform his or her duty, … the court may order the juror … discharged and draw the name of an alternate .…” The section permits the removal of a juror who refuses to deliberate, on the theory, that such a juror is “‘unable to perform his duty.’” (People v. Cleveland (2001) 25 Cal.4th 466, 475 (Cleveland.) We review the trial court’s determination to discharge a juror for an abuse of discretion. (Id. at p. 474.) The determination will be upheld if it is supported by substantial evidence showing the juror’s refusal to deliberate is a “‘demonstrable reality.’” (Id. at p. 484.)
Here there is more than enough evidence to show that Juror No. 4’s refusal to deliberate is a demonstrable reality. Juror No. 4 repeatedly expressed her unwillingness to deliberate. She unequivocally answered “no” six separate times when asked by the court if she was willing to return to the jury room and discuss her views or listen to the views of the other jurors even if they were “willing to listen to [her] views politely.” “A refusal to deliberate consists of 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.” (Cleveland, supra, 25 Cal.4th at p. 485.)
Notwithstanding defendant’s assertions to the contrary, it does not appear Juror No. 4 was improperly discharged because she disagreed “with the majority of the jury as to what the evidence show[ed], or how the law should be applied to the facts.” (Cleveland, supra, 25 Cal.4th at p. 485.) Nor does it appear that after she “participated in deliberations for a reasonable period of time,” Juror No. 4 was discharged “simply because [she] express[ed] the belief that further discussion [would] not alter her … views. [Citation.]” (Ibid.) As the Cleveland court explained, such circumstances do not constitute a refusal to deliberate and are not grounds for discharge. However, this is not what occurred here.
The jury had not been deliberating long (approximately two hours) when Juror No. 4 and Juror No. 7 sent their note to the court and expressed their feelings they were not being treated with respect by the other jurors. It does not appear that at this point, the jury had become “hopelessly deadlocked” as defendant asserts on appeal. As Juror Nos. 4 and 7 each acknowledged, no vote had been taken. Their chief complaint was that their views were being hostilely received by the other jurors. Juror No. 7 stated that the jurors were listening to one another (albeit disrespectfully) and expressed a willingness to deliberate further if the jurors were instructed to listen to each other’s explanations. On the other hand, Juror No. 4 flatly refused to deliberate further no matter what further instructions were given by the court or whether her fellow jurors began to treat her with greater politeness. On this record, we cannot say that the trial court abused its discretion in discharging Juror No. 4.
II. Reasonableness of the Court’s Inquiry Regarding Possible Jury Misconduct
Defendant contends the court abused its discretion by failing to conduct a reasonable inquiry into possible jury misconduct after it received reports by Juror No. 4 and Juror No. 7 that the other jurors were “engaged in hostile, disrespectful, and unprofessional conduct toward the two dissenting jurors.” Defendant asserts that “at the very least, the trial court should have inquired into whether some jurors were attempting to coerce the dissenting jurors.” Defendant contends the court’s questioning of the foreperson and the two jurors was insufficient, and that the court should have made some inquiry of the other nine jurors. We disagree, and conclude that the court’s inquiry was reasonable under the circumstances.
The Supreme Court in Cleveland, supra, cautioned that “it often is appropriate for a trial court that questions whether all of the jurors are participating in deliberations to reinstruct the jurors regarding their duty to deliberate and to permit the jury to continue deliberations before making further inquiries that could intrude upon the sanctity of deliberations.” (25 Cal.4th at p. 480.) This is precisely what the court did here. The court’s limited inquiry revealed that Juror No. 4 was unwilling to deliberate further even if the problem of which she complained could be resolved by reinstruction. Rather than conduct further inquiry of other jurors and risk intruding on the sanctity of deliberations, the court properly excused Juror No. 4 and reinstructed the jurors regarding their duty to deliberate. Importantly, it appears that the court’s reinstruction resolved the problem because no further complaints of hostility or disrespectful conduct by jurors arose. Instead, the jury, including Juror No. 7, continued to deliberate for over four and half more hours before finally reaching a verdict, lending further support to the conclusion that, at the early point Juror No. 4 raised her complaints about her fellow jurors, the jury had not yet fully considered all the evidence or deliberated for a reasonable period of time.
In any event, the two jurors’ general complaints that they felt uncomfortable in the jury room because their views were being attacked by other jurors, or were being asked to explain themselves more than the other jurors, are not circumstances that warranted a more extensive inquiry by the court. “[J]urors can be expected to disagree, even vehemently, and to attempt to persuade disagreeing fellow jurors by strenuous and sometimes heated means. To probe as defendant suggests, in the absence of considerably more cogent evidence of coercion, would ‘“deprive the jury room of its inherent quality of free expression.”’ [Citations.] Consequently, the trial court was not required to make the inquiry for which defendant now argues.” (People v. Johnson (1992) 3 Cal.4th 1183, 1255 [holding the court properly declined to inquire into whether some jurors were coercing the dissenting juror]; see also Cleveland, supra, 25 Cal.4th at p. 479.)
III. Postsubmission Substitution of Jurors
Defendant contends the postsubmission substitution of jurors allowed under section 1089 violated his constitutional rights. He is mistaken.
Section 1089 authorizes substitution of an alternate juror before or after final submission of the case to the jury on a showing of good cause. Postsubmission substitution does not violate a defendant’s right to a trial by jury and its essential element of a unanimous verdict provided the trial court instructs the jury to commence deliberations anew. (People v. Collins (1976) 17 Cal.3d 687, 691-694 (Collins).) Here, as we have noted, the court instructed the jurors that with the replacement of two of the jurors it must “set aside and disregard all past deliberations and begin your deliberations all over again.” As defendant recognizes, we are bound to follow the Supreme Court’s holding in Collins. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Despite defendant’s arguments to the contrary, there is no cogent reason for us to “urge the California Supreme Court to reconsider Collins.”
IV. Ineffective Assistance of Counsel
Next, defendant contends his trial attorney provided ineffective assistance of counsel “by failing to prevent the jury from learning the highly inflammatory and prejudicial evidence of [defendant’s] prior violent criminality and incarceration.” Defendant argues that defense counsel should have objected to portions of the gang expert’s testimony describing defendant’s prior arrests, incarcerations, and acts of violence, and that the resulting prejudice was incurable, notwithstanding the court’s limiting instructions. For reasons discussed below, we reject defendant’s ineffective assistance of counsel claim.
A. Background
As noted above, Herminio Sauceda was the prosecution’s gang expert. Sergeant Sauceda opined that defendant was a member of the Norteno gang. In forming his opinion, Sergeant Sauceda relied on reports of law enforcement contacts with defendant. These contacts were comprised primarily of previous arrests, during which defendant either claimed to be affiliated with or associated with the Norteno gang.
On this subject, Sergeant Saucedo initially testified that defendant first came into contact with Madera County Corrections on two cases in 2006. On both occasions, during the classification portion of the booking process, when asked if he was gang-affiliated, defendant said yes and identified the Nortenos. He also expressed a preference to be housed with Nortenos.
Sergeant Sauceda went on to testify that defendant was booked into jail on May 23, 2006, because he had two outstanding warrants for battery and exhibiting a firearm. Sergeant Sauceda testified that defendant “went straight to max” due to “his prior history of violence against other individuals.” Defendant was booked into jail again on June 20, 2006, for attempted murder and assault with firearm, but the charges were dismissed. He was subsequently rebooked for attempted murder.
The court interrupted this testimony and an unreported sidebar was held. The parties then entered a stipulation that “the attempted murder that the officer was talking about that was dismissed is not a separate case, but is in fact this case that’s tried before the Court today.” The court then instructed the jury as follows:
“All right. Ladies and gentleman, this witness was asked to testify to certain things and I’m now going to ask you to disregard those pieces of information. Regarding May 2006, this officer was questioned about the defendant being booked into the county jail. The reason why he was booked in the county jail, you are ordered to disregard that and not consider that for any reason.
“The evidence regarding what the defendant said regarding his gang affiliation when he was booked into the county jail in May 2006 remains in evidence.
“As to the June 2006 booking, the evidence that was presented regarding why he was booked, you are ordered to disregard that evidence.
“The evidence regarding what he stated regarding his gang affiliation, however, remains in evidence.
“Let me explain a little bit more to you in the form of an instruction.
“Sergeant Sauceda has been brought here to testify to certain opinions and he will be testifying to those opinions. He has and he will list for you information upon which he has based his opinions. As to that information that comes from sources outside of this trial, in other words, information not presented by witnesses in this trial, but information that comes from sources outside of the trial, you are to consider that information only when evaluating the weight to be given to the opinion it was used to support. You may not consider that information for the truth of the matter asserted, in other words, as fact, because the source of that type of information has not testified and been cross-examined.”
After the court gave this instruction, Sergeant Saucedo testified regarding defendant’s prior law enforcement contacts with the Fresno County jail, and revealed the defendant had been booked into that jail on five occasions between July 2000 and January 2006. During the booking process, he claimed to be affiliated with or associated with the Norteno gang.
Sergeant Saucedo further testified that defendant’s background information showed that, while he was living in Fresno, defendant was involved in a confrontation with a member of the Bulldog gang, which is a rival of the Norteno gang. Defendant was charged with stabbing this individual and slashing his throat, and received a two-year sentence for the crime.
Other than the forgoing contacts with law enforcement, Sergeant Saucedo was not aware of any other contacts which showed defendant’s gang membership or gang affiliation. Defendant has never admitted to being a full-fledged (“jumped-in”) member of the Norteno gang.
At the conclusion of trial, the court instructed the jury regarding the limited purpose of evidence of gang activity:
“You may consider evidence of gang activity only for the limited purpose of deciding whether:
“The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related enhancement charged;
“OR
“The defendant had a motive to commit the crimes charged. You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion.
“You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.”
B. Analysis
Defendant asserts his trial attorney rendered ineffective assistance of counsel by failing to object to evidence of his past criminality and arrests presented by the gang expert’s testimony. To establish this claim, defendant must show “‘that counsel’s performance was deficient … [and] that, absent counsel’s error, it is reasonably probable that the verdict would have been more favorable to him.’ [Citation.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1052-1053.) If the record does not disclose why counsel failed to act, we must reject the contention unless there could be no satisfactory explanation. (Id. at p. 1053; People v. Scott (1997) 15 Cal.4th 1188, 1212.)
On this record, we cannot agree with defendant that trial counsel was ineffective. Trial counsel may well have had a rational tactical reason for not objecting to the gang expert’s testimony – namely, that he reasonably believed it to be largely admissible. As defendant recognizes in his argument on appeal, evidence of his gang affiliation was relevant to prove his motive for shooting his cousin and to prove the enhancement allegations that the crimes were committed for the benefit of a street gang (§ 186.22, subd. (b)(1)). As the prosecutor succinctly summarized in closing argument, the People’s theory was that “defendant, Eddie Carrillo, is a gang member who tried to murder Carlos Urbano because he dropped out of the gang.”
“The People are entitled to ‘introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent.’ [Citation.] ‘[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.’ [Citations.] [¶] Expert testimony repeatedly has been offered to show the ‘motivation for a particular crime, generally retaliation or intimidation’ and ‘whether and how a crime was committed to benefit or promote a gang.’ [Citation.]” (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.) “[T]he motive here was relevant and important, both to the actual crime committed … and to the requisite intent for the enhancement. Case law holds that where evidence of gang activity or membership is important to the motive, it can be introduced even if prejudicial. [Citations.]” (People v. Martin (1994) 23 Cal.App.4th 76, 81.)
Defendant complains that, though relevant, the gang expert’s testimony was cumulative. Specifically, defendant argues that, “[i]n light of the expert’s testimony that [defendant] claimed or admitted to law enforcement his membership in the [Norteno] gang” evidence of his numerous jail bookings and his incarceration for stabbing a Bulldog gang member was unnecessary and cumulative. We disagree.
Defendant’s reliance on People v. Cardenas (1982) 31 Cal.3d 897, 905 is misplaced. In Cardenas, evidence of the defendant’s gang membership was admitted to establish possible bias by defense witnesses in favor of the defendant. The prosecutor had sought to prove that the witnesses and the defendant lived in the same neighborhood and had the same circle of friends. But these facts had already been established by ample testimony before the prosecutor began inquiring into the witnesses’ gang affiliations. Thus, the evidence of gang membership was cumulative to other testimony establishing the friendship and bias of the defendant’s witnesses. Under these circumstances, the gang evidence was of limited probative value, and its admission created a substantial danger of undue prejudice that the defendant had a criminal disposition. (Id. at pp. 904- 905.)
Here, other than the gang expert’s testimony, there was no other evidence of a motive for defendant to shoot his cousin. In addition, the defense disputed the evidence that defendant was a gang member. Evidence of defendant’s prior law enforcement contacts and attack on a member of a rival gang was highly probative to the issue of whether defendant was, in fact, a member of the Norteno gang, which was the only motive offered for the shooting, and the basis of the gang enhancements. Trial counsel could reasonably determine that any objection to the testimony on the ground the evidence was unduly prejudicial or cumulative would be futile. Thus, defendant has failed to establish that his trial counsel was ineffective. As the California Supreme Court has observed, “[a] mere failure to object to evidence or argument seldom establishes counsel’s incompetence. [Citations.]” (People v. Frierson (1991) 53 Cal.3d 730, 747.)
Defense counsel argued: “Well, if he’s a hard core gang member and there is this green light list and he’s going to do the hit, that’s big news for the gang. Why turn yourself in? You got a state network gang where you can go hide out. There is no reason to do it. They’ll hide you and you can move up in the gang. But instead he finds out that they are looking for him, he goes, turns himself in and says, ‘You making a big deal about this?’ Well, yeah, they are making a big deal about it because he’s not the shooter. [¶] … [¶] Mr. Carrillo doesn’t have any gang history. He does have a prior conviction for assault. That didn’t happen until he was in his late 20s. He’s 29 now. Why isn’t there this gang history of him running with gangs and doing all this stuff? It’s because he’s not a gang member.…”
In any event, we are satisfied that even had trial counsel successfully objected to the parts of the expert’s testimony about which defendant specifically complains, there is no reasonable probability of a different result. As the People point out, the court took great pains to ensure that the jury would not convict defendant of the current offenses based on evidence of his prior criminality and arrests by giving limiting instructions regarding the nature of the evidence and the purpose for which it could be considered, which we presume the jury followed. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) The court also admonished the jury to disregard Sergeant Saucedo’s testimony regarding why defendant was booked into jail. In the charge to the jury at the close of evidence, the jury was instructed to disregard any testimony the court ordered stricken or told the jury to disregard.
Moreover, no one suggested that defendant should be convicted of the instant crimes because his previous arrests and incarcerations showed a propensity for criminality. Indeed, in the prosecutor’s closing argument, only brief mention was made of the gang expert’s testimony regarding defendant’s prior contacts with law enforcement, and no reference at all was made of the underlying conduct which defendant asserts was the most prejudicial aspect of the gang expert’s testimony. Finally, as noted above, the jurors were unable to reach a verdict on the gang enhancements, thus suggesting the gang expert’s testimony was not as compelling or inflammatory as defendant characterizes it on appeal. These circumstances, combined with the uncontroverted, eye-witness identification of defendant by the victim, compel us to conclude that trial counsel’s failure to object to the complained of portions of the gang expert’s testimony did not result in prejudicially ineffective assistance of counsel.
In this regard, the prosecutor argued: “Sergeant Sauceda, you heard him testify giving his expert opinion that the defendant is in fact a Norteno Criminal Street Gang member. And he based his opinion on numerous contacts that the defendant has had with law enforcement and showing gang affiliation and gang membership and also where the defendant has admitted to gang membership or affiliation with Nortenos on at least four different occasions when he was going through the classification process when he was incarcerated.”
V. Proof that Prior Assault Conviction Qualified as a Serious Felony
Finally, defendant contends there is insufficient evidence to show that his prior conviction of violating section 245, subdivision (a)(1) qualified as a serious felony within the meaning of section 1192.7, subdivision (c). We disagree.
Section 1192.7, subdivision (c) enumerates serious felonies. Included in that list is “assault with a deadly weapon ... in violation of Section 245.” (§ 1192.7, subd. (c)(31).) But a conviction under section 245, subdivision (a)(1) can be based either on “an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury.” (§ 245, subd. (a)(1).) Consequently a conviction for an assault under that section could qualify as a serious felony under section 1192.7, subdivision (c)(31) if committed with a deadly weapon, but would not if committed with some other means of force likely to produce great bodily harm. Here, we consider the sufficiency of the abstract of judgment to prove that defendant’s prior assault conviction in 2001 involved the use of a deadly weapon.
Defendant relies, in part, on a split of opinion between two divisions of the Second District Court of Appeal to argue that the abstract of judgment is insufficient to prove that his assault conviction included the use of a deadly weapon. He urges us to disregard Division Five’s holding in People v. Luna (2003) 113 Cal.App.4th 395 (Luna) (review denied Feb. 4, 2004, S121415) that an abstract of judgment noting a conviction under section 245, subdivision (a)(1) for “‘ASSLT GBI W/DLY WPN’” was sufficient to uphold a finding of a prior strike. Instead, defendant asks us to follow Division Six’s conclusion that an abstract of judgment bearing a similar notation, “‘ASSAULT GBI W/DEADLY WEAPON,’” was insufficient to support an enhanced sentence under the three strikes law. (People v. Banuelos (2005) 130 Cal.App.4th 601, 605 (Banuelos).)
Defendant recognizes this issue is currently before the California Supreme Court in People v. Delgado (review granted Mar. 29, 2006, S141282).
But the issue presented in Luna and Banuelos is not implicated here. That is so because the abstract of judgment in this case does not include reference to both qualifying and unqualifying types of assault under section 245. The court in Banuelos, supra, 130 Cal.App.4th at page 606 refused to follow the Luna decision because the abstracts of judgment in both cases referenced the crime “as ‘ASSAULT GBI W/DEADLY WEAPON’ .… [which] could be read to mean that the assault was committed both by means of force likely to produce great bodily injury and with a deadly weapon, it could also be construed as a shorthand description of the criminal conduct covered by section 245, subdivision (a)(1) .…” Of the description in the abstract of judgment analyzed in Luna, “‘ASSLT GBI W/DL[Y] WPN,’” the Banuelos court stated, “we cannot be confident that this abbreviated description of a statute prohibiting two types of criminal conduct was anything more than that particular court clerk’s shorthand method of referring to the statute under which appellant was convicted.” (Banuelos, supra, 130 Cal.App.4th at p. 606.)
No such ambiguity exists in the proof proffered below. The abstract of judgment stated that the conviction of section 245, subdivision (a)(1) was for an “ASSAULT WITH A DEADLY WEAPON.” It did not give rise to the possibility that the conviction might instead have been for force likely to lead to great bodily harm. Defendant’s argument requires us to presume that the court clerk incorrectly prepared the abstract of judgment. But the evidentiary presumption is to the contrary. Evidence Code section 664 provides: “It is presumed that official duty has been regularly performed.” That presumption applies to the duties of court clerks. (See In re Lopez (1970) 2 Cal.3d 141, 146 [presumption that preparing docket entry was regularly performed]; Smith v. Smith (1958) 157 Cal.App.2d 658, 662 [presumption that minutes of court are correct].) Defendant had the opportunity to rebut this presumption by providing evidence that his prior conviction under section 245, subdivision (a) was not for assault with a deadly weapon. He presented no such evidence.
The Supreme Court’s holding in People v. Rodriguez (1998) 17 Cal.4th 253 (Rodriguez) is likewise not implicated here. Like Luna and Banuelos, that case analyzed the sufficiency of an abstract of judgment with the ambiguous notation “‘ASLT GBI/DLY WPN.’” (Rodriguez, supra, 17 Cal.4th at p. 261.) The court ruled that such an annotation merely “reflected the statutory language,” proving “nothing more than the least adjudicated elements of the charged offense.” (Id. at pp. 261, 262.) But the annotation in the abstract of judgment at issue here includes only one of the two section 245, subdivision (a)(1) assaults. Thus, it serves as proof of the elements of the specifically listed offense and not of the lesser of two possible offenses, as argued by defendant. Consequently, the trial court properly found that defendant’s 2001 violation of section 245, subdivision (a)(1), assault with a deadly weapon, qualified as a serious felony.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, Acting P.J., CORNELL, J.