Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County Super. Ct. No. LA 047078. John S. Fisher, Judge.
Peter Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Joel Martin Castaneda appeals from the judgment entered after a jury convicted him of first degree murder (Pen. Code, § 187, subd. (a)) and attempted murder. (Pen. Code, §§ 187, subd. (a), 664.) Castaneda contends that the trial court conducted an improper inquiry into a mid-deliberation claim of juror misconduct, coercing a juror to switch his vote from acquittal to conviction. We reverse.
FACTS AND PROCEDURAL HISTORY
While Carlos Guevara was driving his Volvo in the San Fernando Valley on August 11, 2004, a passenger in a Honda Civic being driven by rival gang members fired several gunshots into Guevara’s car. Guevara was killed and his front seat passenger, Jose Espinosa, received a bullet wound to his arm. Joel Martin Castaneda was charged with Guevara’s murder (Pen. Code, § 187, subd. (a)), and with the attempted murder of Espinosa. (Pen. Code, §§ 187, subd. (a), 664.) Margarita Ferman, who had been a passenger in Guevara’s Volvo, testified that she saw three men in the Civic’s back seat and that the shooter had been in the right-most rear seat. Ferman did not get a good look at the shooter and was not able to identify him. Only one independent eyewitness, David Leiva, was able to identify Castaneda as having been the passenger in the right rear seat. Others thought Castaneda had been the driver or had been in the rear passenger seat behind the driver.
All further section references are to the Penal Code.
The Civic used in the shooting belonged to the mother of Diana Hernandez. Hernandez had taken the car without permission. She testified that the Civic was being driven by her boyfriend, Johnny Santillan, and identified Castaneda as the shooter in the right rear passenger seat. Hernandez’s credibility was impeached because: (1) when she first spoke with the police two weeks after the shooting, she denied any knowledge of or involvement in the incident; (2) after the police told her she might be implicated in the shooting, she continued to lie by saying that only two men had been in the back seat and it was not until sometime in 2006 that she finally admitted that three men had been in the back seat; (3) she continued to give the police conflicting accounts of who was involved; and (4) she was testifying under a grant of immunity.
The jury convicted Castaneda of both counts, along with allegations that he personally used a firearm that caused death or great bodily injury, (§ 12022.53, subd. (d)), but only after difficult deliberations that prompted accusations that the jury foreman was committing misconduct. Although the court investigated and rejected that complaint, Castaneda contends the court’s inquiry was so intrusive and coercive that it led the lone holdout juror for acquittal to suddenly change his mind and vote to convict. Castaneda also contends there was insufficient evidence to show that his firearm use caused great bodily harm or injury in connection with the attempted murder count.
1. The Court’s Misconduct Inquiry
Jury deliberations began at 2:00 p.m. on Wednesday, March 8, 2006. Between 4:00 p.m. that day until late the next day the jury asked several questions. These included a request for a read back of Hernandez’s and Ferman’s testimony about the person they saw holding a gun and the timing of Hernandez’s first statements concerning the existence and identity of the passenger in the middle rear seat of the Civic. The court received the latter inquiry on Friday morning, along with a new inquiry that asked, “if we establish that Castaneda was in the car, but cannot agree that he was without a reasonable doubt, the shooter[,] [w]here are we?”
In response to the last two inquiries the court called the jury in and asked the foreman, juror 10, if there was a stalemate or whether further deliberations would be helpful. Juror 10 was unsure, but other jurors believed further deliberations might help. The court said it was looking for the requested portions of Hernandez’s testimony. After the jury left the courtroom, the court told the lawyers it had received a note from juror 11 asking to discuss something in private. Juror 11 was brought into chambers and said that juror 10 “came in to deliberations with prejudice. [¶] On Wednesday he made a comment that Diana Hernandez’s testimony he was not accepting because she had immunity. That was the question that the D.A. specifically asked each juror before they said that they would not be a hindrance. [¶] Then yesterday he made another comment and . . . juror number six said, ‘You should have told the judge that you believe or you have these feelings.’ [¶] And he has a 100 percent closed mind against what we are saying.” According to juror 11, three or four other jurors had told juror 10 he had come into deliberations prejudiced against Hernandez.
During voir dire, the prosecutor asked each prospective juror whether they would automatically distrust a witness because the witness had been given immunity in order to testify.
The court asked juror 11 what time of day on Wednesday had juror 10 made his statement about Hernandez’s immunity. The court asked the lawyers if they had any questions for juror 11. Defense counsel had juror 11 clarify that juror 10’s statement came after deliberations had begun, then asked, “So on the first day he felt – that because she had immunity that he did not believe her statements?” Juror 11 replied that “[i]t came out a different way that he – and up until this point he still is hung up on the person that sat in the middle of [the Civic]. Since he does not know who that individual is then he does not hold anyone else accountable for their actions in the car. . . .” The court then interjected and had juror 11 clarify that juror 10’s comments occurred halfway through Wednesday afternoon’s deliberations. The court asked juror 11 whether juror 10 “made a flat-out statement that he would not believe her because she was in this status of an immunized witness or that it was a factor to be considered?” Juror 11 replied that juror 10 said Hernandez “was full of crap. Her testimony was all lies. And one of the jurors . . . said, ‘Then you do not give credence to her because she has immunity?’ And he says, ‘Yes.’ ”
The court then allowed the prosecutor to question juror 11. The prosecutor asked whether juror 10 “[h]as been willing to at least listen to what the other jurors have to say or is he stuck with that opinion since Wednesday?” Juror 11 said, “He’s adamant. There is no room for negotiations. All of us are trying to convince him and he said that[’s] his prerogative, since we don’t know who the person in the middle is, that we can’t hold Mr. Castaneda accountable.” The prosecutor asked whether juror 10’s adamancy had reached the point where there were no deliberations. Juror 11 answered, “Right. We wasted all yesterday because of the hang-up. Today is a repeat.” Juror 11 added that juror 6 would likely ask to speak with the court because she was so frustrated that her blood pressure had risen. When juror 11 indicated that the jury had been instructed not to worry about the person sitting in the middle rear passenger seat, the prosecutor and the court clarified that there had been argument about that, not an instruction. Defense counsel started to question juror 11 on that point, but was cut off by the prosecutor’s objection that the questioning went “into the province of the jury and what the factors are that they’re discussing.” The court sustained the objection, excused juror 11, and then, at juror 11’s suggestion, called in jurors 6 and 8 for individual questioning.
The court began by asking juror 8 whether he recalled any comments by juror 10 at the start of deliberations concerning Hernandez’s grant of immunity and its effect on her credibility. According to juror 8, juror 10 said “he just don’t believe her testimony. He’s saying that she lied, she didn’t tell there was, you know, a person in the middle. [¶] And we’re saying – we’re telling him that’s irrelevant at this point and – but he’s – he’s just locked into that and he’s holding everything up.” The court asked whether juror 10’s problems with Hernandez had to do solely with her grant of immunity, or were based just on the facts and the evidence. Juror 8 said it was “overall combined.” The prosecutor asked whether juror 10 was refusing to consider the other jurors’ viewpoints. Juror 8 said he was, and so was another juror. When the prosecutor asked if another juror was refusing to deliberate, juror 8 asked to “clarify because I don’t want to get too much into what’s going on in there.” The court responded that “We don’t want to know where people are leaning.” In response to further questions by the court, the prosecutor, and defense counsel, juror 8 clarified that juror 10 had initially been willing to discuss his viewpoints and listen to those of the other jurors, but had eventually reached the point where he was no longer willing to listen. Juror 8 also confirmed that juror 10 had said Hernandez’s testimony was “a bunch of crap and . . . she’s just an outright liar.” Juror 8 concluded by saying that deliberations were becoming bitter. Juror 8 was then excused and warned not to discuss the matter with the other jurors.
Juror 6 was then brought in to chambers. Asked by the court whether juror 10 had made any comments about Hernandez, juror 6 answered that juror 10 had said he could not believe Hernandez because of her several conflicting statements about the number of passengers in the Civic’s rear seat. The prosecutor asked whether juror 10 mentioned Hernandez’s immunity as a factor. Juror 6 said he had and confirmed that juror 10 had called Hernandez’s testimony “a bunch of crap.” Questions from the prosecutor and defense counsel led juror 6 to clarify that the jurors had been deliberating on Wednesday and Thursday. When the prosecutor asked whether juror 10 had been participating in that process or whether he had simply decided to disregard Hernandez’s testimony because she had received immunity, juror 6 said, “All the time he said, ‘Why she said was two people in the back and now is three people. I don’t believe her testimony because she said this.’ [¶] And then we start to tell, ‘Don’t think about this person on the middle. We have evidence enough evidence about that will happen to this person.’ We all decided that he was in the car.” The court stopped juror 6, saying, “Wait. That’s good. Okay. Thank you very much. [¶] Just go and relax as best you can and we’ll go from there, okay? Don’t talk about what you said in here, okay? Thank you.”
After excusing juror 6, the court said, “[W]e’re at the point where we need to probably just bring in the foreperson [juror 10] and just ask him some pointed questions regarding – as I see it at this point the issue is whether or not he came in with a closed mind with respect to her status of immunity as just unbelievable without a consideration of other facts. [¶] If the scenario is that that’s a factor but it’s not the whole thing, that he’s considering the case but he has difficulties believing her because of other pieces of evidence, whether it’s the middle guy or her prior statements or whatever, then, you know, that’s his status of the situation. [¶] So I think unless you want to state to the contrary, but from my point of view the real pinpoint issue is simply is there jury misconduct because a juror, particularly this juror, is not following the jury instructions? [¶] It’s not to say that he’s just taking a different approach. That’s not the problem here. If somebody’s just taking a different approach than 11 other people then that’s the way it is. [¶] But if he’s not following the law by way of the jury instructions and, specifically, that he came in with a closed mind simply because of the immunity thing, then I got to deal with that.”
When juror 10 was brought in to chambers, the court asked, “With respect to Diana Hernandez and her status of immunity, from your perspective is that the end of the ballgame for you?” The following colloquy between the court and juror 10 then took place:
“JUROR NO. 10: My problem – and this has been my biggest problem and you brought it up.
“THE COURT: I – actually what I really want to know is if it’s – if it’s just – you can answer yes or no on that and then I’ll determine if I need to ask you other questions. [¶] In other words, if it’s more than that then you could say, ‘No. It’s not just immunity,’ but if it’s just
“JUROR NO. 10: It’s a combination of both. The fact that she stalled and she stalled and she stalled on that third person in the middle, it’s a no brainer to me if that person was not
“THE COURT: Wait. This is not having to do with immunity then, is it?
“JUROR NO. 10: She finally – the only time from what I understand – maybe I’m wrong – but it seems like the only time – and that’s the reason I was asking for the time line is when it came to trial when it was impressed upon her that she doesn’t want to now lie that she finally admitted to the third person.
“THE COURT: Okay.
“JUROR NO. 10: And that bothers me a lot because if that person in the middle is, like, a no brainer, she gave up everybody else until it was impressed upon her, ‘You got to do it now or you’re dead,’ and she finally copped. And that bothers me big time.
“THE COURT: Okay. That’s fine.
“JUROR NO. 10: I don’t know how to get around that.
“THE COURT: No problem.”
The court then invited the lawyers to question juror 10 if they wished to do so. Defense counsel asked whether, regardless of the immunity issue, juror 10 was troubled by Hernandez’s late identification of a third rear-seat passenger. When juror 10 answered yes and started to explain some of the evidentiary issues he found troubling, the court cut him off, stating, “I don’t need to hear all that.” The prosecutor asked juror 10 whether he had told the other jurors on the first day of deliberations that Hernandez was not to be believed because she had received immunity and that her testimony was “crap.” Juror 10 denied making those comments. Defense counsel asked whether juror 10 had been participating in deliberations despite the presence of opposing viewpoints and had been involved in the give and take between jurors. Juror 10 replied that he had been “very instrumental” in the deliberations. The court thanked juror 10 and sent him back to the jury room, saying “we’ll go from there. I’ve told all the others not to talk about what’s going on in here.”
After juror 10 left chambers, the court asked the lawyers how they thought the court should proceed. Defense counsel argued that the immunity issue was only one factor that troubled juror 10 about Hernandez’s testimony, with the juror troubled by other factors relating to her credibility. The prosecutor said the court should instruct the jury to base its decision on the evidence and the law and not speculate about things outside the evidence presented at trial. Asked by the court whether he agreed with defense counsel that there was insufficient evidence of misconduct by juror 10, the prosecutor argued that bringing in all the other jurors for questioning might be necessary to resolve the evidentiary conflicts between what juror 10 and the other jurors had said. The court said it agreed with defense counsel that, at the moment, it did not “feel there’s per se misconduct or at least I’m not prepared to say that,” but believed the prudent course would be to hear from the remaining jurors whether they believed all the jurors, particularly juror 10, were participating in the deliberations. At that point, the court received another testimony read-back request from the jury. Defense counsel said the jurors they had questioned did not truly indicate that juror 10 was refusing to deliberate solely because Hernandez’s grant of immunity caused him to disbelieve her “and I think what we’re doing when we keep bringing these jurors in we make them suspects of one another.” The court said, “I think it’s – we’re at that point. But I don’t think when a juror affirmatively on his own – I didn’t prompt questions regarding this issue. I got a question. I have to deal with it. I can’t just, you know, put my hands over my eyes and so on. [¶] But I would say that without prejudging at the moment I am not at the point where I feel there’s necessarily been misconduct. I mean, but it seems to me in fairness to the system and everybody that I don’t see why it’s a problem to just bring in everybody. So that’s what we’re going to do.”
Juror 1 was then called into chambers. When the court asked whether juror 1 believed all the jurors were following the court’s instructions and participating in deliberations, juror 1 answered yes. The court next asked whether juror 10 had ever said anything to the effect that Hernandez’s testimony was a bunch of “crap” and that she could not be believed because she had received immunity. Juror 1 said juror 10 had not used those words. According to juror 1, juror 10 “has doubts about [Hernandez’s] testimony. I would use those words. He’s critically doubtful about her testimony based upon what we heard in the court. I would put it that way.” The court said, “very well,” and asked the lawyers whether they had questions for the juror. Defense counsel did not have questions. The prosecutor asked whether juror 1 believed further deliberations would be helpful. Juror 1 said it was possible. The court told juror 1 not to discuss the matter, excused him, and called in juror 2. Before juror 2 entered, however, the bailiff told the court one of the jurors had made a comment about why the court was calling in some of the jurors. According to the bailiff, he “felt tension in there.”
In response to the court’s questioning, juror 2 said the jurors were following the instructions and doing their best to deliberate. Asked whether juror 10 had said Hernandez could not be believed and her testimony was “crap,” juror 2 said, “Yeah. We kept telling him that as a witness [] you have to tell the truth. You take an oath.” When juror 2 said he believed Hernandez, the court said, “I know. I’m not necessarily asking how you believe.” The court asked again whether juror 2 recalled juror 10 saying Hernandez’s testimony was “full of crap” and that she was not believable because she had received immunity. Juror 2 answered, “She was just speculation.” Defense counsel had no questions for juror 2, but the prosecutor asked again whether juror 10 had called Hernandez’s testimony “crap.” Juror 2 said he had not heard that. The court told juror 2 to relax in the jury room and not talk about what was said in chambers. The court said it did not need to talk to anybody else, sent the jury on a break, and proceeded to find the portions of testimony the juror had asked to have read back.
At 11:45 a.m. the court called for the lunch break. The requested testimony was read back to the jury starting at 1:33 p.m. and deliberations resumed at 2:02 p.m. The jury reached its guilty verdicts 13 minutes later.
DISCUSSION
1. The Court’s Misconduct Inquiry Was Coercive
Juror 10 was accused of misconduct by lying during voir dire (People v. Majors (1998) 18 Cal.4th 385, 417) and by refusing to deliberate (People v. Engelman (2002) 28 Cal.4th 436, 442 (Engelman)). When juror misconduct is alleged, the trial court has a duty to conduct a reasonable inquiry to determine whether the juror should be discharged for misconduct. The decision as to when and how to investigate rests within the trial court’s sound discretion. (Ibid.) Castaneda does not dispute that juror 11’s allegations of misconduct by juror 10 entitled the trial court to conduct an inquiry, but he contends that its inquiry went too far and therefore violated his constitutional rights to a unanimous verdict by independent and impartial jurors.
In order to protect the sanctity and secrecy of jury deliberations, a trial court’s inquiry into allegations of juror misconduct should be as limited as possible. “The inquiry should focus upon the conduct of the jurors, rather than upon the content of the deliberations. Additionally, the inquiry should cease once the court is satisfied that the juror at issue is participating in deliberations and has not expressed an intention to disregard the court’s instructions or otherwise committed misconduct, and that no other proper ground for discharge exists.” (People v. Cleveland (2001) 25 Cal.4th 466, 485 (Cleveland).) The investigation must minimize pressure on jurors who legitimately hold minority views. (Id. at p. 478.) It is “often appropriate” for the trial court to reinstruct the jurors on their duty to deliberate and let the jury continue deliberating before making further potentially intrusive inquiries. (Id. at p. 480.) Allowing the parties’ lawyers to question the jurors is “fraught with peril and generally should not be permitted.” (Id. at p. 485.) However, absolute secrecy for jury deliberations is not constitutionally required where claims of jury misconduct are raised, and secrecy may “give way to reasonable inquiry by the court when it receives an allegation that a deliberating juror has committed misconduct. [Citation.] Claims of misconduct may merit judicial inquiry even though they may implicate the content of deliberations.” (Engelman, supra, 28 Cal.4th at p. 443.)
Castaneda contends the trial court erred by: (1) asking questions that elicited responses which exposed the jurors’ deliberative processes; (2) continuing its inquiry long after it should have been satisfied that no misconduct occurred; (3) after examining juror 11, failing to reinstruct the jury on its duties to deliberate and follow the instructions; (4) failing to assure juror 10 that he had a right to his differing viewpoint on Hernandez’s credibility; and (5) allowing the lawyers to question the jurors. As proof that coercion occurred, he points to the fact that juror 10 changed his mind soon after he and the other jurors were questioned about the deliberations.
We reject respondent’s contention that Castaneda waived these constitutional claims by failing to object at trial. (People v. Barber (2002) 102 Cal.App.4th 145, 149-150 (Barber).)
We agree that the court’s inquiry went on too long, allowed jurors to reveal their deliberative processes, and improperly allowed the lawyers to take part in the questioning. We see no problem with juror 11 telling the court that juror 10 supposedly disbelieved Hernandez because she had received immunity and was not deliberating, or with the court questioning juror 11 in a limited fashion about those issues. However, juror 11’s initial complaint was ambiguous. When the court asked juror 11 whether juror 10 made a “flat-out statement” that he disbelieved Hernandez solely because of her immunity, or whether that was one of several factors weighing against her credibility, juror 11 said that juror 10 had said Hernandez was “full of crap” and that her testimony was “all lies.” According to juror 11, when another juror asked juror 10 if he did “not give credence” to Hernandez because she received immunity, juror 10 said “yes.” While that statement could be viewed as a claim that immunity alone led juror 10 to disbelieve Hernandez, it does not exclude the possibility that other factors motivated juror 10’s incredulity.
The apparent ambiguity of juror 11’s complaint was soon confirmed by jurors 8 and 6. Juror 8 said that juror 10 did not believe Hernandez because she had lied about the back seat passengers, and that juror 10’s viewpoint was based on a combination of factors that included her grant of immunity as well as the facts and the evidence. Juror 8 also clarified that juror 10 had initially been willing to engage in discussions, but eventually reached the point where his mind was made up. Juror 6 told the court that juror 10 said he did not believe Hernandez because of her many conflicting statements about the Civic’s back seat passengers and that her grant of immunity was a factor. Juror 6 did not say that juror 10 had never taken part in deliberations. In short, according to the two jurors relied on by juror 11 to corroborate his misconduct allegations, juror 10 viewed immunity as only one factor in evaluating Hernandez’s credibility, and was equally troubled by her many shifting accounts of what happened. Jurors 6 and 8 also said that juror 10 had initially deliberated, but later firmed up his viewpoint and would no longer discuss the matter. Such conduct is not a refusal to deliberate. (Cleveland, supra, 25 Cal.4th at p. 485.)
By that point at the latest the court should have stopped its inquiry. Instead, the court questioned juror 10 about his take on Hernandez’s credibility. Even though the court told juror 10 that his stated concerns were “okay,” “fine,” and “no problem,” the court did nothing to explicitly assure juror 10 or the other jurors that his stance during deliberations was not misconduct. Instead, the court questioned two more jurors, leading the bailiff to report that the jurors were concerned and tense about what was happening.
This error was compounded in two ways: First, by allowing the lawyers to question the jurors, something that rarely should be permitted (Barber, supra, 102 Cal.App.4th at pp. 150-151 [dismissal of deliberating juror was unwarranted and trial court erred by allowing lawyers to question the juror]; and second by allowing the jurors to reveal some of the inner-workings of the jury’s deliberative processes. In response to a question by the prosecutor about whether juror 10 was still willing to listen to the other jurors, juror 11 was permitted to say how he and the other jurors were trying to convince juror 10 that he was wrong to focus on his doubts about the identity of one of Civic’s rear seat passengers. Juror 8 told the court about the other jurors’ comments to juror 10 and their view that juror 10’s concerns about the back seat passengers were irrelevant. Juror 6 did the same when she described not just juror 10’s analysis of the evidence, but also told the court what she and the other jurors thought about evidence relating to the identity of the back seat passengers. Juror 10 explained in detail his analysis of Hernandez’s testimony and explained why testimony read backs had been requested. Even though some efforts were made to curb these statements, they were the inevitable result of an inquiry that went too long and too far.
Respondent contends that even if error occurred, under the Watson standard we cannot determine that a different result was reasonably probable. Castaneda contends that because federal constitutional error is involved, respondent must show the error was harmless beyond a reasonable doubt under the higher standard required by Chapman v. California (1967) 386 U.S. 18. We hold that the error was prejudicial under either standard. Respondent cites People v. Bowers (2001) 87 Cal.App.4th 722 (Bowers) for the proposition that the Watson harmless error standard applies. The Bowers court held that the trial court erred by discharging a juror for misconduct, and found the error prejudicial under Watson because the discharged juror had been the lone holdout for acquittal. Because juror 10 was the lone holdout juror here, and because he changed his mind within minutes of when the court’s inquiry ended and deliberations resumed, it is apparent that the court’s error was prejudicial under the reasoning employed in Bowers. Because we find the error prejudicial under the lower Watson standard, it necessarily follows that respondent cannot show that the error was harmless beyond a reasonable doubt under Chapman.
People v. Watson (1956) 46 Cal.2d 818, 836.
2. There Was Sufficient Evidence of Injury to Support the Firearm Use Enhancement Finding
Castaneda was convicted of the attempted murder of Espinosa, who was Guevara’s front seat passenger. In connection with that count, the jury found true the allegation that Castaneda personally used a firearm that caused Espinosa great bodily injury. (§ 12022.53, subd. (d).) According to Castaneda, there was insufficient evidence that Espinosa suffered great bodily injury because the only evidence at trial came from a police detective’s testimony that Espinosa had been taken to the hospital and treated. As respondent points out, the jury also received in evidence copies of Espinosa’s medical records which showed that he been shot in the arm. Castaneda’s reply brief does not dispute that point, and the prosecutor argued to the jury that Espinosa’s gunshot wound constituted great bodily injury for purposes of the firearm use allegation. Accordingly, we hold there was sufficient evidence to support the jury’s finding.
DISPOSITION
For the reasons set forth above, the judgment is reversed.
WE CONCUR: COOPER, P. J. FLIER, J.