Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB036169, J. Michael Welch, Judge.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Ronald A. Jakob, David Delgado-Rucci, and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant Johnnie “Krazie” Chagolla and Daniel “Danny Boy” Martinez — both members of the West Side Verdugo gang — held up a drug dealer. Even though the drug dealer gave up his drugs without a fight, defendant shot and killed him.
Based in part on the testimony of Martinez, defendant was convicted of first degree murder (Pen. Code, §§ 187, subd. (a), 189) and second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)); on each count, a gang enhancement (Pen. Code, § 186.22, subd. (b)(1)) and an enhancement for causing death by personally and intentionally discharging a firearm (Pen. Code, § 12022.53, subd. (d)) were found true. Defendant was sentenced to a total of 90 years to life in prison.
Defendant now contends:
1. There was insufficient evidence to corroborate the testimony of the witnesses who were accomplices.
2. There was insufficient evidence of the specific intent necessary to support the gang enhancements.
3. The trial court erred by denying defendant’s motion for new trial, to the extent that it was based on the fact that his accomplices had received reduced sentences.
4. The trial court erred by denying defendant’s motion for new trial, to the extent that it was based on a juror’s failure to disclose information during voir dire.
5. The trial court erred by imposing upper-term and consecutive sentences based on facts not found by a jury beyond a reasonable doubt.
We find no error. Hence, we will affirm.
I
FACTUAL BACKGROUND
A. The Shooting Death of the Victim.
On September 13, 2002, around 4:30 a.m., police officers in responding to a “shots fired” call arrived at a fourplex on East 20th Street in San Bernardino. There they found the victim, Jonathan Main, lying on a concrete walkway next to the building. He had been hit by five bullets. He died at the scene.
Near the body, the police found nine shell casings, along with several fired bullets and bullet fragments. The shell casings were all nine millimeter, and they had all been fired from the same gun.
The People, defendant and the court reporter all seem to be share the misconception that there is such a caliber as “.09 millimeter.” There is not.
B. Statements and Testimony of Gabriel Chavez.
Apartment C of the fourplex belonged to Jennifer Lozano. The police questioned several people in Apartment C, including Lozano’s brother, 19-year-old Gabriel Chavez. He said that he had been asleep and had not heard anything.
The next day, however, the police reinterviewed Chavez. This time, he said that the victim and one Michelle Woertink had been at the apartment, playing cards with him in the back bedroom. Sometime after 1:00 a.m., a person he knew as only “Danny Boy” came into the bedroom. Danny Boy talked to the victim for a few minutes; they both then left the apartment together. A couple of seconds later, Chavez heard shots.
Chavez identified Danny Boy as the boyfriend of Salina Carabajal. He agreed to take the police to where Danny Boy lived. He showed them the home of Daniel Martinez, whom the police also knew as “Danny Boy.” He also showed them Carabajal’s home, on the same block.
The police therefore contacted Martinez. As discussed further, post, he admitted being involved in the shooting but said that a second person was also involved.
Accordingly, on September 25, the police contacted Chavez again; this time, they specifically asked him whether another person had been involved. He replied that when Martinez and the victim were in the bedroom, a Hispanic man was standing in the hallway outside the bedroom door. When Martinez and the victim left, the Hispanic man followed them. In a photo lineup, Chavez identified defendant as the Hispanic man. He circled and initialed the photo.
At trial, Chavez denied remembering almost anything about the shooting. He denied knowing Martinez or Carabajal. He denied ever having seen defendant before. He denied or claimed not to remember making any of the statements attributed to him by the police.
C. Statements and Testimony of Daniel Martinez.
On September 17, 2002, Martinez agreed to be interviewed at the police station. He admitted that he had been involved in the shooting but said that the actual shooter was a person he knew only as “Crazy.” He gave them a description of Crazy. It matched defendant, whose moniker was “Crazy” (or “Krazie”). The police therefore showed Martinez a booking photo of defendant. Martinez identified him as Crazy.
At trial, Martinez admitted being a member of the Little Counts gang. The Little Counts were a clique within the West Side Verdugo gang.
About a month and a half before the shooting, Martinez began having a sexual relationship with Salina Carabajal. Carabajal introduced him to Lozano. He started hanging out at Lozano’s apartment, partying and getting high.
About a month before the shooting, Martinez met defendant for the first time, at Lozano’s apartment. He knew defendant was a member of the Seventh Street gang because defendant had a Seventh Street tattoo on the back of his head. According to Martinez, sometimes the Little Counts and Seventh Street “get along,” and “[s]ometimes [they] don’t.”
A few weeks later, Martinez and Carabajal broke up because he went back to his wife. Defendant then became Carabajal’s new boyfriend.
The day before the shooting, Martinez met the victim for the first time, also at Lozano’s apartment. The victim agreed to sell Martinez an eight-ball of methamphetamine.
On September 13, 2002, after 1:00 a.m., defendant phoned Martinez and asked him to come over to his apartment. When Martinez arrived, Carabajal was already there. They all discussed the victim and the fact that he had methamphetamine. Defendant suggested robbing him. They agreed on a plan in which Martinez would get the victim to come outside, where they would rob him of his drugs. There was no discussion of shooting or killing him. However, Martinez knew that defendant always carried a gun.
Carabajal drove Martinez and defendant to the apartment. When they arrived, Carabajal’s cousin, Richard Ramos, was just leaving. They asked him who was inside. Ramos then got in the car. Defendant told Carabajal to meet them in a nearby alley. She drove off with Ramos.
Martinez then entered the apartment, followed by defendant. Martinez went into the bedroom, where he found the victim with Chavez and Woertink. Martinez asked the victim to step outside, explaining, “ . . . I don’t like to do business in front of people.”
The victim therefore left the apartment with Martinez. Defendant followed them. Defendant pointed a gun at the victim and demanded his drugs. The gun was a black semiautomatic nine-millimeter. The victim pulled something out of his shirt pocket and threw it on the ground. Defendant started shooting. Martinez turned and ran. He heard a total of seven or eight shots.
As Martinez was running, defendant caught up with him. They both ran to the alley and got into the car. Martinez asked defendant twice, “Why did you shoot him?,” but defendant did not respond.
Martinez told police that he was walking to the apartment when defendant and Carabajal just happened to drive up. Defendant suggested robbing the victim, and he agreed. After the shooting, he asked defendant why he shot the victim. Defendant said, “He tried to rush me.” Otherwise, Martinez’s statements to police were essentially consistent with his testimony at trial.
By the time of trial, pursuant to a plea bargain, Martinez had pleaded guilty to one count of robbery and had admitted gang and firearm enhancements; he was to be sentenced to 25 years in prison. The plea bargain was conditional on his truthful testimony.
D. Statements and Testimony of Salina Carabajal.
On October 11, 2002, the police interviewed Salina Carabajal. At first, she denied any involvement in the shooting. Eventually, however, she admitted acting as the getaway driver.
Carabajal had dated defendant in junior high school. She testified that he had been a member of Seventh Street for as long as she had known him. About six months before the shooting, she met Martinez, and they soon started having a sexual relationship. About two weeks before the shooting, however, they broke up because he went back to his wife. About a week before the shooting, she started hanging out with defendant, having sex and using methamphetamine.
On September 13, 2002, Carabajal testified, she and defendant were at a friend’s apartment when Martinez came over. Martinez told defendant about a White guy at Lozano’s apartment who had drugs. Defendant and Martinez discussed stealing his drugs. They then asked Carabajal to drive them to the apartment. She agreed, because she wanted more drugs. Nobody told her that they were going to shoot anyone.
When they got there, her cousin Richard Ramos came out of the apartment. Defendant and Martinez asked him who was inside. Ramos asked Carabajal for a ride, then got in her car. Defendant told Carabajal to wait in the alley.
Carabajal started driving, but when she heard shots, she panicked and made a U-turn. Seconds later, Martinez ran up to her car and got in. He was “real shook up, . . . almost crying.” About a minute later, defendant, too, ran up to the car and got in. Martinez kept asking defendant, “Why did you do it?” Defendant said, “[I] had to do it because that guy was going after [you].”
About two weeks after the shooting, defendant bragged to Carabajal that “he unloaded the gun on the guy and that every bullet hit him in a deadly area.”
By the time of trial, Carabajal had pleaded guilty to one count of robbery and had admitted gang and firearm enhancements arising out of the shooting; if she testified truthfully, she was to be sentenced to a maximum of 25 years in prison.
E. Statements and Testimony of Richard Ramos.
On January 14, 2003, the police interviewed Richard Ramos. He told them that he had been at the apartment on the night of the shooting. He saw Carabajal arrive, with defendant and Martinez. He asked Carabajal for a ride. He got into her car; they drove to the alley. While they were there, he heard shots. Defendant and Martinez came up to the car, and all four of them drove away. In a photo lineup, Ramos identified defendant as the person who had been with Martinez. However, he refused to circle or initial the photo.
At trial, Ramos testified that in June 2004, he had been shot in the head, and as a result he had a very bad memory. He claimed that he did not remember the night of the shooting. He denied knowing Martinez. He either denied or claimed not to remember making the statements that the police attributed to him. He did admit being a former member of West Side Verdugo.
F. Testimony of Michelle Woertink.
Michelle Woertink was a friend of the victim; they had arrived at the apartment together. However, she was also a friend of defendant.
Woertink testified that she and the victim were in the back bedroom with Gabriel Chavez, playing cards and using methamphetamine, when a Mexican man came in. The victim appeared to know him; Chavez greeted him as “Danny Boy.” He talked to the victim about buying drugs.
The Mexican man and the victim then walked outside the apartment together. Within minutes or seconds, Woertink heard shots. She did not see defendant at the apartment at all that night. However, her back was to the bedroom door; Chavez was facing it.
G. Defendant’s Arrest.
On October 23, 2002, an officer staking out defendant’s apartment saw defendant drive by. He called in a team of officers in marked cars to arrest defendant. When they tried to stop defendant’s car, defendant fled, speeding and running stop signs; eventually, he crashed into a guardrail. He got out and ran, ignoring the officers’ orders to stop, until one of them pointed a rifle at him.
Next to defendant’s car, the police found a black nine-millimeter semiautomatic handgun, but it was not the one used in the shooting.
A search of defendant’s bedroom produced a newspaper containing the victim’s obituary, folded so that the obituary was showing.
H. Gang Evidence.
When defendant was in jail, he admitted during classification interviews that he was an active member of Seventh Street; he said that his moniker was “Johnnie Boy.” He had a number of Seventh Street and West Side Verdugo tattoos. He also had a tattoo on his left cheek of three dots over two lines, which meant that he was a “soldier” for the Mexican Mafia.
A prosecution gang expert testified that West Side Verdugo is the largest gang in San Bernardino. It has four cliques, including Seventh Street and the Little Counts, all of which associate with each other. According to the expert, defendant’s monikers included “Krazie” as well as “Johnnie Boy.”
I. Defense Evidence.
Marlene Santellan testified that, at the time of the shooting, she was defendant’s girlfriend. They were living together, in a room at the home of defendant’s sister.
On September 12, 2002, according to Santellan, she and defendant attended a family birthday party and barbecue at defendant’s sister’s house. Afterwards, they went to sleep in their room there. They did not get up until 10:00 or 11:00 a.m. the next day.
Dominick Carabajal, Salina Carabajal’s brother, testified that in October 2002, Salina told him that she had gotten a letter from Martinez “[t]elling her . . . what to say if she got arrested.” She said she would do whatever Martinez told her, “because I love him.” Dominick told her she should tell the truth. (Salina denied that this ever happened.)
Dominick admitted being a former member of the Crazy Ones; he also admitted that the Crazy Ones were a West Side Verdugo clique, but he claimed that they did not get along with Seventh Street.
At trial, Dominick was shown a number of letters addressed to Salina and purportedly signed by him. They had been sent from prison, and they bore his prisoner number and cell number. However, he denied writing them.
J. Rebuttal Evidence.
According to the gang expert, Dominick Carabajal was a member of Seventh Street.
A prosecution investigator testified that she had obtained Dominick’s letters from Salina. In them, he wrote the letter “F” backwards, so that it looked like a “7.” According to the investigator, this meant that he was a member of Seventh Street.
II
DISCUSSION
A. Corroboration of the Accomplice Testimony.
Defendant contends that there was insufficient evidence to corroborate the testimony of Martinez and Carabajal, who were both accomplice-witnesses.
“A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” (Pen. Code, § 1111.) There are at least three reasons for this corroboration requirement. First, “an accomplice is inherently untrustworthy because he or she ‘usually testif[ies] in the hope of favor or the expectation of immunity.’ [Citation.] In addition, an accomplice may try to shift blame to the defendant in an effort to minimize his or her own culpability. [Citation.]” (People v. Tobias (2001) 25 Cal.4th 327, 331, quoting People v. Coffey (1911) 161 Cal. 433, 438.) Finally, “accomplice testimony is frequently cloaked with a plausibility which may interfere with the jury’s ability to evaluate its credibility. ‘“[A]n accomplice is not merely a witness with a possible motive to tell lies about an innocent accused but is such a witness peculiarly equipped, by reason of his inside knowledge of the crime, to convince the unwary that his lies are the truth.”’ [Citations.]” (People v. Tewksbury (1976) 15 Cal.3d 953, 967, quoting Heydon, The Corroboration of Accomplices (Eng. ed. 1973) Crim.L.Rev. 264, 266.)
Justice Kennard has argued that there is also a fourth reason: “An accomplice’s participation in the charged crime is itself evidence of bad moral character and, depending on the crime, may indicate a penchant for dishonesty that should undermine confidence in the truthfulness of the accomplice’s testimony . . . . [Citation.]” (People v. Guiuan (1998) 18 Cal.4th 558, 574-575 [conc. opn. of Kennard, J.].)
“The requisite corroboration of the testimony of an accomplice ‘“may be established entirely by circumstantial evidence. [Citations.] Such evidence ‘may be slight and entitled to little consideration when standing alone. [Citations.]’” [Citation.] “Corroborating evidence ‘must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged.’ [Citation.]”’ [Citation.]” (People v. Slaughter (2002) 27 Cal.4th 1187, 1204, quoting People v. Zapien (1993) 4 Cal.4th 929, 982.)
“[T]he testimony of one accomplice cannot corroborate that of another. [Citations.]” (In re R.C. (1974) 39 Cal.App.3d 887, 892.) “The required corroboration must come from a source other than another accomplice. [Citation.]” (People v. Price (1991) 1 Cal.4th 324, 444.)
Here, Gabriel Chavez told police that defendant and Martinez left the apartment with the victim; he then heard gunshots. He picked defendant’s photo out of a lineup.
Similarly, Richard Ramos told police that he saw defendant, Martinez, and Carabajal arrive at the apartment. He heard gunshots; he then saw defendant and Martinez come up to Carabajal’s car and get in. He, too, picked defendant’s photo out of a lineup.
In addition, when the police searched defendant’s apartment, they found a newspaper folded so that the victim’s obituary was showing. There was expert testimony that this was a “trophy” of the sort that a gang member would keep to enhance his status.
Taken together, this evidence was sufficient to corroborate the accomplices’ testimony that defendant was a participant in the crime. There did not have to be independent evidence that defendant was, in fact the shooter; the jury was instructed that defendant could be guilty as either the perpetrator or as an aider and abettor. (CALJIC Nos. 3.00, 3.01, 3.02.)
Admittedly, the jury also found personal firearm discharge enhancements true. (Pen. Code, § 12022.53, subd. (d).) In People v. Maldonado (1999) 72 Cal.App.4th 588, however, we held that the accomplice corroboration requirement of Penal Code section 1111 does not apply to enhancements. (Maldonado, at pp. 597-598.) In any event, even assuming that there had to be some corroboration of Martinez’s testimony that defendant was the shooter, the newspaper article was sufficient corroboration.
Defendant argues that the identifications by Chavez and Ramos were not credible. Both witnesses had made conflicting statements to police; at trial, they both denied remembering anything about the shooting. The jury, however, could reasonably regard their identifications of defendant as the truth and ascribe their conflicting statements to their fear of gang retaliation. In any event, “the trier of fact may believe and accept as true only part of a witness’s testimony and disregard the rest. On appeal, we must accept that part of the testimony which supports the judgment. [Citation.]” (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.) “The fact that a witness repudiates an earlier statement makes one or the other statement unworthy of belief, but the jury determines which one.” (People v. Earnest (1975) 53 Cal.App.3d 734, 742.)
Defendant also argues that his possession of the obituary is “speculative” and “raises but a mere suspicion that [he] was implicated.” Quite the contrary, on this record, there is no plausible explanation except that he was involved in the shooting and, indeed, was the shooter. Moreover, the obituary did not stand alone; in addition, there was expert testimony that defendant kept it as a “trophy.”
We therefore conclude that there was sufficient corroboration of the accomplice testimony to support the verdicts.
B. The Sufficiency of the Evidence of the Specific Intent Necessary to Support the Gang Enhancements.
Defendant contends that there was insufficient evidence of the specific intent necessary to support the gang enhancements.
Martinez admitted that the planned robbery “wasn’t for the benefit of the gang”; rather, it was “something [he] w[as] doing for [him]self, personally . . . .” He testified that all of the participants wanted to get drugs solely for their own consumption. There was no evidence that the victim was a gang member. Defendant argues that he and Martinez did not even belong to the same gang.
A gang enhancement requires, among other things, “the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (Pen. Code, § 186.22, subd. (b)(1).) “[S]pecific intent to benefit the gang is not required.” (People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [Fourth Dist., Div. Two].) Neither is the intent to further any criminal conduct other than the charged crime itself. (People v. Hill (2006) 142 Cal.App.4th 770, 774; People v. Romero (2006) 140 Cal.App.4th 15, 19-20.) Thus, evidence that the defendant (1) intended to commit the charged crime, (2) intended to commit it in association with accomplices, and (3) knew that those accomplices were gang members constitutes sufficient evidence of the necessary specific intent. (Morales, at p. 1198; see also People v. Villalobos (2006) 145 Cal.App.4th 310, 322 [Fourth Dist., Div. Two] [the “[c]ommission of [the] crime in concert with known gang members is substantial evidence” of the requisite specific intent].)
Here, there was ample evidence that defendant intended to commit both robbery and murder and, moreover, that he intended to commit both crimes in association with Martinez.
We may assume, without deciding, that the defendant must intend to promote criminal conduct, not just by members of any gang, but specifically by members of his or her own gang. The evidence, however, established that West Side Verdugo was a gang, of which both Seventh Street and the Little Counts were cliques. Defendant and Martinez both claimed West Side Verdugo. Martinez had “WSV” tattooed on his arm. Defendant had “West” tattooed on one arm, “Side” on the other arm, and “Verdugo” on his back and on his face. Accordingly, there was substantial evidence that they were members of the same gang.
Defendant relies on In re Frank S. (2006) 141 Cal.App.4th 1192. There, however, the minor was found to be carrying a concealed dirk or dagger (Pen. Code, § 12020, subd. (a)(4)). (Frank S., at pp. 1194-1195.) He did not have (or need) any accomplices in the commission of the crime. (See ibid.)
Defendant challenges only the sufficiency of the evidence to support the specific intent element of the gang enhancement. He does not address the distinct requirement that the underlying felony also must be “committed for the benefit of, at the direction of, or in association with [a] criminal street gang . . . .” (Pen. Code, § 186.22, subd. (b)(1).) Accordingly, we need not discuss the gang expert’s testimony in detail, nor need we consider whether it was sufficient to support this element.
Defendant, however, does seem to complain about the gang expert’s testimony. He cites cases holding that gang evidence was irrelevant or prejudicial. He then argues that the gang expert’s testimony was detailed, extensive, and inflammatory, yet at the same time failed to prove the necessary specific intent. The point of this is unclear. If it is intended to show that defendant was prejudiced by the asserted error, it is unnecessary; if, in fact, there was insufficient evidence to support the gang enhancements, defendant would not have to show any prejudice (except, of course, for the fact that the gang enhancements were found true). If it is intended to be a separate assignment of error, defendant forfeited it by failing to raise it under a separate heading, as required. (Cal. Rules of Court, rule 8.204(a)(1)(B).) If only out of an excess of caution, however, we note that defendant additionally forfeited any contention that the gang expert’s testimony was irrelevant or prejudicial by failing to raise any such objection at trial.
We therefore conclude that there was sufficient evidence of the specific intent necessary to support the gang enhancements.
C. Defendant’s Accomplices’ Reduced Sentences.
Defendant contends that the trial court erred by denying his motion for new trial, to the extent that it was based on the fact that his accomplices had received reduced sentences.
1. Additional factual and procedural background.
a. The accomplices’ plea bargains.
Before defendant’s trial, pursuant to separate plea bargains, Martinez and Carabajal had each pleaded guilty to one count of robbery (Pen. Code, § 211), with a gang enhancement (Pen. Code, § 186.22, subd. (b)(1)) and a vicarious intentional firearm discharge enhancement (Pen. Code, § 12022.53, subds. (c), (e)(1)). It was agreed that Martinez would be sentenced to 25 years in prison and that Carabajal would be sentenced to a maximum of 25 years in prison. These plea agreements were conditioned on them testifying truthfully at defendant’s trial.
b. The accomplices’ testimony.
Accordingly, during trial, Martinez testified that he had entered a guilty plea. He further testified:
“Q And the terms of that agreement was [sic] that you would receive how many years in [s]tate [p]rison?
“A 25.
“Q No more, no less?
“A If I tell a lie, it’s more, but if I . . . tell the truth, it is 25.
“Q So long as you testify truthfully, it’s 25 years; is that correct?
“A Yes, sir.”
Similarly, Carabajal testified that she had entered a guilty plea. She further testified:
“Q What’s your maximum sentence you could receive when you are sentenced?
“A 25 to life.
“Q Okay. It’s actually just 25 years; is that correct?
“A Okay. 25. [¶] . . . [¶]
“Q . . . [A]nd that was something that your lawyer talked to you about, was that your sentence would be maximum 25 years?
“A Yes.
“Q And she explained to you that was up to the judge; is that correct?
“A Yes. [¶] . . . [¶]
“Q . . . And . . . did she read to you . . . that the prosecution has not promised, inferred, indicated, or intimated that you will . . . receive a lighter sentence than 25 years other than described in th[e prosecutor’s] letter?
“A She went over that with me.”
c. The prosecutor’s closing argument.
In closing argument, the prosecutor stated, “[Martinez is] in custody for the next 25 years of his life. It’s a done deal. He’s in prison for 25 years.”
“He told you the truth when he said what he did. . . . Yeah, what a bargain they pled for. [Martinez] is going to serve 25 years in prison, not half of that. He is serving 25 years in prison for his role.”
He also noted that Carabajal would be sentenced to 25 years.
On February 17, 2005, the jury found defendant guilty.
d. The accomplices’ actual sentences.
1. Martinez: 15 years.
On July 6, 2005, Martinez was sentenced. The prosecutor told the trial court that he had agreed to modify the plea agreement so that Martinez could be sentenced to less than 25 years. Instead of admitting a vicarious intentional firearm discharge enhancement (Pen. Code, § 12022.53, subds. (c), (e)(1)), Martinez would admit a personal firearm use enhancement (Pen. Code, § 12022.5, subd. (a)).
The prosecutor explained that Martinez had “risked his life by testifying truthfully about the crime. He also placed his family’s life at risk.” Martinez had consistently maintained that he did not know that defendant was going to shoot the victim, and the prosecutor believed him. Finally, Martinez’s testimony had been crucial in obtaining defendant’s conviction; the prosecutor had not known until during the trial that defendant was a “hardcore” gang member and a “soldier” with the Mexican Mafia.
The prosecutor represented to the court that he had first gotten the idea of modifying the plea agreement on February 22, 2005, as a result of an email he had received (apparently involving an unrelated case). On February 23, 2005, he had discussed it with his supervisor. Martinez’s defense counsel represented that the prosecutor had discussed it with him for the first time on February 24, 2005.
The trial court accepted the modified plea and sentenced Martinez to a total of 15 years in prison.
2. Carabajal: probation.
Earlier, on May 11, 2005, Carabajal’s case had been called for sentencing. The trial court noted for the record that Carabajal’s plea agreement had been modified, so that she would be eligible for probation. Instead of admitting a vicarious intentional firearm discharge enhancement (Pen. Code, § 12022.53, subds. (c), (e)(1)), she would admit a personal firearm use enhancement (Pen. Code, § 12022.5, subd. (a)).
The prosecutor also noted that the first time the possibility of modifying the plea agreement had been discussed with Carabajal had been on April 18, 2005.
The trial court indicated that it intended to place Carabajal on probation. However, it continued the matter so that the probation officer could prepare recommended terms and conditions of probation.
On July 12, 2005, the trial court placed Carabajal on probation for four years, on terms and conditions including completion of a drug-treatment program.
e. Defendant’s motion for new trial.
On December 27, 2005, defendant filed a motion for new trial. In it, he argued, among other things, that the modifications to Martinez’s and Carabajal’s plea agreements constituted newly discovered impeachment evidence. The trial court denied the motion.
2. Analysis.
To be entitled to a new trial based on newly discovered evidence, the defendant must show, among other things, that the evidence is “‘“‘such as to render a different result probable on a retrial of the cause . . . .’”’ [Citation.]” (People v. Beeler (1995) 9 Cal.4th 953, 1004, quoting People v. Delgado (1993) 5 Cal.4th 312, 328.) “‘“The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.”’ [Citation.]” (People v. Carter (2005) 36 Cal.4th 1114, 1210, quoting People v. Williams (1988) 45 Cal.3d 1268, 1318.)
“[T]he defense is entitled to elicit evidence that a witness is motivated by an expectation of leniency or immunity [citations]. Such evidence is obviously probative of bias or motive.” (People v. Dyer (1988) 45 Cal.3d 26, 49-50.) Here, however, the fact that the accomplices received significantly reduced sentences later was irrelevant to show that they had any bias or motive to lie during trial.
It was undisputed that it was not until after defendant had already been convicted that the prosecutor first got the idea of modifying the plea agreements. A fortiori, it was even later that he first suggested the idea to Martinez and Carabajal. Thus, the accomplices had no reason to expect, or even to hope for, leniency when they testified. When Martinez testified that he expected to be sentenced to 25 years, “[n]o more, no less,” he was telling the truth. When Carabajal confirmed that the prosecution had not “promised, inferred, indicated, or intimated” that she would receive less than 25 years, she was telling the truth. And when the prosecutor called it “a done deal” that Martinez would be in prison for 25 years, he was not being deceptive in any way. The trial court could therefore reasonably find that the newly discovered evidence was not likely to bring about a different result.
Defendant relies on People v. Kasim (1997) 56 Cal.App.4th 1360. There, however, the prosecution had extended significant benefits to two accomplice-witnesses before trial; moreover, the prosecution had failed to disclose those benefits in pretrial discovery, had misrepresented the facts to the trial court, and had allowed the witnesses to testify falsely that they had not received any benefits. (Id. at pp. 1373-1377.)
We conclude that the trial court did not err by denying defendant’s motion for new trial, to the extent that it was based on newly discovered evidence.
D. Juror Misconduct.
Defendant contends that the trial court erred by denying his motion for new trial, to the extent that it was based on juror misconduct during voir dire.
1. Additional factual and procedural background.
A court reporter was present during voir dire, but defendant has not requested a reporter’s transcript of the proceedings. (See Cal. Rules of Court, rule 8.324(b)(2)(A).)
On the second day of trial, apparently during the lunch break, Juror No. 6 approached the bailiff and said there was something that she wanted to tell the court and counsel. The trial court had her brought into court, but she asked to discuss the matter “in private,” explaining that she meant with nobody present other than the trial judge and both counsel. The trial court therefore held the following conference in chambers:
“JUROR NUMBER 6: . . . I was concerned because I have lived in San Bernardino all my life. I don’t live on the west side, but I did go to school on the west side. I did — my grandparents lived around the corner on Eighth Street. I’m familiar — very familiar with the areas you are talking about.
“Also, I didn’t realize until yesterday whom [sic] the gang was. The gang, I know, is around in the area where I grew up. Plus, I believe I did have some students when I was teaching medical assistance that were — in the — from the gang[,] they were trying to rehab.
“Also, when I talked about my niece’s boyfriend being killed, there was some possibility that it could have been this gang that we are talking about . . . .
“THE COURT: Okay.
“JUROR NUMBER 6: The Seventh Street gang. So I just felt like I needed to say this.
“THE COURT: Well, . . . the real true bottom line is this: Knowing what you’ve known and knowing what you’ve disclosed here, do you think that — that [it] would prevent you from fairly examining, fairly evaluating, fairly judging this case?
“JUROR NUMBER 6: No, because . . . I’ve seen both sides. One, where I had [a] possibility that the students were from this gang. I kind of assume that, but I never asked them. I seen them trying to rehab themselves.
“THE COURT: You’ve seen positive things and negative things?
“JUROR NUMBER 6: Positive and negative things. But I just felt like I needed to let you know. This was something that was bothering me, and I felt that I needed to verbalize it.
“THE COURT: But — again, though, the bottom line is, that knowing what you’ve known, knowing what you’ve now disclosed to us here this afternoon, do you still feel that you are the kind of person that can keep an open mind and fairly judge the case?
“JUROR NUMBER 6: Yes.
“THE COURT: Okay. Counsel, did you wish to ask any questions regarding this?
“[PROSECUTOR]: I don’t.
“[DEFENSE COUNSEL]: I think he’s covered the material.”
The trial court then thanked the juror and indicated that she could remain on the jury.
In defendant’s new trial motion (see part II.C, ante), he argued that Juror No. 6 had committed misconduct by concealing during voir dire the information that she had eventually disclosed. He also argued that that information indicated that the juror was actually biased against him.
The trial court denied the new trial motion. On this issue, it stated: “[A]t the time of the initial voir dire — that is, when we’ve got all the persons here in the jury room and we’re asking all of them certain questions . . ., the questions come up in general forms as to [the] gang’s involvement [in] crimes of violence, things of that nature, which I spend a great deal of time talking to the jurors about, then the jurors are then called upon in front of everyone . . . to talk about their individual circumstances and whether or not they had any strong feelings or personal experiences with respect to gangs, apparently, juror number six . . . did not at that time initiate any kind of a response, but . . . at a later time was when she made the notation to the bailiff and we conducted the examination . . . and I can’t help but think that had she done that initially while — what my response would have been, it would probably have taken the same tactic I did at the time we did it later, which is to get to the bottom of the issue — we had these experiences with gangs and working with them and trying to rehab them, and then also the niece’s boyfriend — would those factors affect her ability to be a fair and impartial juror and I’m sure the response would have been the same as it was at that time and I would have made the similar ruling, and I think that is what went through counsel’s minds after I had conducted my voir dire examination there in chambers with the juror number six . . . . She told us what brought her at that time to talk about those issues, the effect of those issues on her, and then my inquiry as to whether or not she could be a fair and impartial juror led the attorneys not to even ask any questions on it. . . . I think I did the right thing. I would have done the same thing in all likelihood . . . had it been an additional voir dire issue and more importantly there was no objection to my examination.”
2. Analysis.
Preliminarily, defendant’s trial counsel forfeited his present contention by failing to ask that Juror No. 6 be discharged. (People v. Stanley (2006) 39 Cal.4th 913, 950; People v. Holloway (2004) 33 Cal.4th 96, 124.) “It is well established that if at any time during trial a party or his counsel becomes aware of facts constituting misconduct or irregularity in the proceedings of the jury he must promptly bring such matters to the attention of the court, if he desires to make an objection or he will be deemed to have waived the point as a ground for a new trial. [Citation.]” (People v. Adame (1973) 36 Cal.App.3d 402, 409-410.)
Defendant therefore argues that his trial counsel’s failure to object constituted ineffective assistance. We disagree. “‘If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.]’ [Citation.]” (People v. Abilez (2007) 41 Cal.4th 472, 493, fn. 3, quoting People v. Gray (2005) 37 Cal.4th 168, 207.) Defense counsel could have decided not to object to Juror No. 6 simply because he felt, from interacting with her during and after voir dire, that she was likely to be pro-defense.
Separately and alternatively, however, we also reject this contention on the merits.
“‘[J]uror misconduct involving the concealment of material information on voir dire raises the presumption of prejudice,’ and . . . ‘[t]his presumption of prejudice “‘may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court’s examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party [resulting from the misconduct] . . . .’” [Citations.]’ [Citations.]” (People v. Carter, supra, 36 Cal.4th at p. 1208, quoting In re Hitchings (1993) 6 Cal.4th 97, 119.) “To the degree that the trial judge concludes that juror concealment, even when not intentional, reflects a state of mind that ‘would prevent a person from acting impartially,’ then . . . a new trial must be granted. [Citations.]” (People v. San Nicolas (2004) 34 Cal.4th 614, 646, quoting People v. Diaz (1984) 152 Cal.App.3d 926, 934.)
Ordinarily, the very fact that a juror concealed information during voir dire supports an inference that he or she is biased. (In re Hitchings, supra, 6 Cal.4th at p. 120.) Here, however, Juror No. 6 came forward on her own, albeit belatedly, and volunteered the previously omitted information. This tends to rebut the ordinary inference of bias.
In addition, the trial court appears to have found that Juror No. 6 failed to disclose the information earlier because she did not feel comfortable doing so publicly, in open court. This finding is amply supported by the fact that, even after she did come forward, she refused to discuss the matter except in private. This means that she had a motivation other than bias.
Juror No. 6 explained that she had not realized during voir dire that the gang involved in this case was the same as the gang with which she was familiar. The testimony at trial indicated that there were approximately 30 gangs in San Bernardino, and several gangs in the area of the shooting. Moreover, under the umbrella title of West Side Verdugo, there were several cliques, including Seventh Street and the Little Counts. Seventh Street was also known as the Locos and Calle Siete. Defendant has not provided us with a transcript of voir dire; hence, we cannot say that the identity of the gang was so unmistakable that Juror No. 6’s explanation was unreasonable.
Finally, the information that Juror No 6 did disclose affirmatively indicated that her ability to be impartial would not be affected. She had had some positive experiences with former gang members. She had evidently already disclosed, in voir dire, that her niece’s boyfriend had been killed; she may even have already disclosed that he had been killed by a gang. What she belatedly added was that “there was some possibility that it could have been this gang . . . .” (Italics added.) She assured the trial court that she could still be fair. This additional information was so uncertain, and it added so little to what she had already disclosed, that the trial court reasonably could believe her. Hence, it could reasonably find that the presumption of bias had been rebutted.
We therefore conclude that the trial court did not err by rejecting the juror misconduct contention that defendant raised for the first time in his motion for new trial.
E. Apprendi/Blakely/Cunningham.
Defendant contends that the trial court erred by imposing upper-term and consecutive sentences based on facts not found by a jury beyond a reasonable doubt.
1. Additional factual and procedural background.
The trial court imposed an upper-term sentence on count 2 (robbery). It also ordered the sentence on count 1 (murder) served consecutively to count 2.
2. Analysis.
“Other than a prior conviction, [citation] . . . ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ [Citations.]” (Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 864, 166 L.Ed.2d 856], quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].) “‘The relevant “statutory maximum”’ . . . ‘is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.’ [Citation.]” (Cunningham, at p. 860, quoting Blakely v. Washington (2004) 542 U.S. 296, 303-304 [124 S.Ct. 2531, 159 L.Ed.2d 403].) Thus, ordinarily, “the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum. [Citation.]” (Cunningham, at p. 868.)
However, “if one aggravating circumstance has been established in accordance with the[se] constitutional requirements . . ., the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (People v. Black (2007) 41 Cal.4th 799, 813, fn. omitted.) “[S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances . . ., regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Ibid.)
According to defendant, the trial court did not state any reasons for selecting the upper term for robbery. We disagree. It characterized defendant’s conduct as “vicious and cowardly . . . .” It noted that defendant shot the victim after the robbery had already been accomplished — or, as the court put it, for “target practice . . . .” It therefore concluded, “[Y]ou should be punished as severely as you could and can be . . . .” It then stated: “I will address my attention to the . . . robbery. The court has related some of the facts and circumstances in aggravation. I will adopt the aggravated sentence of five years in state prison.” (Italics added.) These remarks demonstrate that the trial court imposed the upper term because “[t]he crime involved . . . acts disclosing a high degree of cruelty, viciousness, or callousness . . . .” (Cal. Rules of Court, rule 4.421(a)(1).)
The People argue that the trial court’s imposition of the upper term merely “reflected” the jury’s true finding on the enhancement for causing death by personally and intentionally discharging a firearm. (Pen. Code, § 12022.53, subd. (d).) We disagree. Admittedly, one of the aggravating factors defined by court rule is that “[t]he defendant was armed with or used a weapon at the time of the commission of the crime . . . .” (Cal. Rules of Court, rule 4.421(a)(2).) However, “the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” (Pen. Code, § 1170, subd. (b); see also Cal. Rules of Court, rule 4.420(c).) This would have been a prohibited dual use. Thus, as a matter of state law, the jury’s finding on the enhancement did not make defendant eligible for the upper term.
The probation report, however, revealed that defendant had served two prior prison terms for unlawful taking or driving of a vehicle. (Veh. Code, § 10851, subd. (a).) The trial court could have relied on this as an aggravating factor. (See Cal. Rules of Court, rule 4.421(b)(3).) Even though it ultimately it did not, the existence of this aggravating factor was undisputed. We believe that this meant that it was “established” within the meaning of Black. As a result, defendant was not “legally entitled” to a midterm sentence; rather, he was “eligible” for the upper term. The trial court could therefore impose the upper term based on other aggravating factors — including cruelty, viciousness, or callousness — even though these factors had not been found by the jury.
Even assuming we are mistaken — even assuming defendant was not “eligible” for the upper term, unless and until the trial court made a finding that he had actually served the prior prison terms — the undisputed fact of those prior prison terms demonstrates that reversal would be an idle act. On remand, the trial court would undoubtedly make the requisite finding; at that point, it would be authorized to impose the identical sentence. We conclude that the asserted error was harmless beyond a reasonable doubt. (See Washington v. Recuenco (2006) ___ U.S. ___, ___ [126 S.Ct. 2546, 2552-2553; 165 L.Ed.2d 466]; People v. Sengpadychith (2001) 26 Cal.4th 316, 326.)
Finally, we also reject defendant’s challenge to consecutive sentencing. “[I]mposition of consecutive terms . . . does not implicate a defendant’s Sixth Amendment rights.” (People v. Black, supra, 41 Cal.4th at p. 821.)
III
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P.J. MILLER, J.