Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Bob S. Bowers, Jr., Judge. Los Angeles County Super. Ct. No. BA275162
Daniel G. Koryn, 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, Steven D. Matthews and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Jasiel Cortes appeals from the judgment entered after a jury convicted him of second degree murder. Cortes claims that error occurred because: (1) the trial court failed to instruct the jury to consider the lesser included offense of involuntary manslaughter; (2) the prosecutor committed misconduct; and (3) the trial court improperly dismissed a juror. We reject those claims and affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Shortly after midnight on November 14, 2004, Enrique Rivera was walking home from church toward his South Los Angeles home when he was beaten to death by men wielding various blunt instruments. Jasiel Cortes was later convicted of second degree murder in connection with that attack. At trial, Antonio Paredes testified that around noon the previous day, Cortes, Uriel Orta, and several other men armed with bats, golf clubs, and metal pipes had tried but failed to find and attack Lamar Marshall, who lived in that neighborhood and with whom they had some dispute. After midnight, Paredes heard people banging on trash cans in front of his house and went out to investigate. He saw Cortes, Orta and another man, who were carrying, respectively, a bat, a golf club, and a metal pipe. As the three men neared the end of the block, Paredes’s view became obstructed. However, he was able to see them hitting something with their weapons and then run off. Paredes went to where the three men had been and found Rivera on the ground, his head soaked in blood. According to a Los Angeles County medical examiner, Rivera was killed by blunt force trauma to his head that was most likely caused by two different objects that could have been a baseball bat and a golf club.
Francisco Olvera, 16, was the third man Paredes had seen. Testifying under a grant of immunity, Olvera confirmed Paredes’s account of the earlier, unsuccessful effort to find and attack Marshall. According to Olvera, he, Orta and Cortes returned to the neighborhood later that night. When Cortes and Orta spotted Rivera, Cortes tried to take a bag from Rivera’s hand. Rivera tried to hold on to the bag, prompting Cortes to hit Rivera in the back of the head with a baseball bat. Rivera fell to his knees and Cortes hit him in the back two or three times. Orta then used his golf club to hit Rivera three times in the back of the head. As Orta did so, Cortes stood nearby, holding his bat.
Orta was tried at the same time by a separate jury.
The jury also heard and saw a transcript of a police interview of Cortes. Cortes essentially confirmed Paredes’s and Olvera’s accounts, but with a few differences. According to Cortes’s statement, Orta was the first to approach Rivera and exchanged words with him. Cortes said he then hit Rivera once on the back or the neck with the bat, causing Rivera to fall. Cortes claimed he walked away after telling the others they should all leave. Olvera had a crow bar and Orta was carrying some other weapon. Cortes said he did not see whether Olvera also struck Rivera.
Dr. Silvia Caparini, a forensic pathologist, testified for Cortes. Based on her review of the autopsy report, she believed that a baseball bat swung with moderate force inflicted non-fatal injuries to Rivera’s back, while the fatal blows to his head were most likely caused by a tire iron or a golf club.
On appeal, Cortes contends: (1) the court erred by not sua sponte instructing the jury with the lesser included offense of involuntary manslaughter; (2) the prosecutor committed misconduct by referring to the quantum of punishment during her closing argument; and (3) the court erred by removing one of the jurors right before deliberations began.
DISCUSSION
1. Failure to Instruct on Involuntary Manslaughter
The jury was instructed to consider first degree murder and its lesser included offenses of second degree murder and voluntary manslaughter. The only basis for first degree murder argued by the prosecutor was felony murder, on the theory that even if Cortes and Orta lacked the intent to kill, Rivera’s death occurred while he was being robbed of his bag. The jury rejected that theory and instead found Cortes guilty of second degree murder. Even though he did not request an instruction on the lesser included offense of involuntary manslaughter, Cortes contends the trial court erred because it was obligated to give that instruction on its own initiative.
While murder requires a showing of malice, manslaughter does not. The trial court was obliged to give an involuntary manslaughter instruction only if there was substantial evidence to support such a charge. (People v. Cook (2006) 39 Cal.4th 566, 596.) Involuntary manslaughter occurs either by committing “an unlawful act, not amounting to a felony” or by committing “a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (Pen. Code, § 192, subd. (b).) Because Dr. Caparini testified that Cortes struck only two non-fatal blows, and because Cortes told the police he walked away right after doing so, he contends this evidence shows a lack of malice and the commission of only misdemeanor assault or battery, thereby requiring an involuntary manslaughter instruction.
All further section references are to the Penal Code.
We will assume for discussion’s sake that the trial court erred by failing to give an instruction on involuntary manslaughter. Even so, we will reverse only if it is reasonably probable the jury would have returned a different verdict absent that error. (People v. Rogers (2006) 39 Cal.4th 826, 867-868.) In evaluating whether the instructional error was harmless, we may consider whether the evidence supporting the judgment is so relatively strong, and the evidence supporting a different outcome is so relatively weak, that a different result was not reasonably probable. (Id. at p. 870.) As set forth below, we conclude that the strength of the prosecution’s evidence makes any error harmless.
Relying on People v. Cook, supra, 39 Cal.4th 826, respondent contends there was no evidence to warrant an involuntary manslaughter instruction because the evidence shows Cortes inflicted a severe beating that necessarily required malice. This contention does not address the conflicting evidence raised by Cortes that he hit Rivera just once with non-lethal force. Because we assume that the instruction was warranted, but that its omission was not prejudicial, we need not reach respondent’s contention.
Cortes contends that his statement to the police is evidence that he did nothing more than hit Rivera once with the bat, then walked off without taking any further part in what turned into a fatal beating by Orta. Implicit in this is the notion that Cortes did not know Orta intended to kill Rivera, that Orta acted alone when he did so, and that Cortes did nothing to help him.
We think it not reasonably probable that any jury would believe that version of events. It was uncontradicted that Orta and Cortes had been working together all day in their attempts to find and beat Marshall and that they were doing the same when they came upon Rivera. Even according to Cortes’s own statement to the police, he hit Rivera at the same time Orta confronted him. The notion that Cortes then simply walked away and told Orta and Olvera to leave with him, but that Orta stayed behind and inflicted the fatal blows, simply makes no sense. Far more likely to have been believed was Olvera’s version of events, which had Cortes and Orta working together as they attacked Rivera. According to Olvera, Orta and Cortes both approached Rivera and began saying something to him. Olvera testified that Cortes stood behind Rivera while Orta stood in front of him, and that Cortes was holding on to his bat. When Cortes failed to take the bag from the resistant Rivera, Orta spoke with Rivera again. At that moment, Cortes hit Rivera with the bat. Rivera fell to the ground, and Orta began to beat him. Cortes stood nearby, bat in hand, as Orta did so. The jury was instructed that Cortes could be guilty as an aider and abettor if he knew Orta intended to kill Rivera and, with the intent of committing or encouraging that crime he aided, promoted, encouraged, or instigated the killing. When arguing second degree murder, the prosecutor told the jury that “[w]hen he and his partner hit the victim, they intend to kill him.” (Italics added.) As per the jury instructions, the prosecutor also argued that it did not matter who struck the fatal blow as long as Cortes’s actions were a concurrent, substantial factor in causing Rivera’s death. We hold that this evidence overwhelmingly supports such a finding and that, combined with the prosecutor’s argument, a different result was not reasonably probable.
Furthermore, Cortes’s contention depends heavily on Caparini’s expert testimony, especially her assumption that a lightweight, small bat was used. A small wood bat recovered near the crime scene was introduced in evidence, but Caparini never examined that bat, while the coroner who performed Rivera’s autopsy opined that the bat could have inflicted one of the head wounds. Caparini also never saw the autopsy x-rays, admitting that they would have been helpful and that she could have provided a more informed opinion if she had seen them. Finally, Olvera, who was actually present, testified that the small bat placed in evidence was not the one used by Cortes, and that a much larger bat had been used. The combined effect of these evidentiary factors lead us to conclude that any error in failing to instruct the jury regarding involuntary manslaughter was harmless.
2. No Prosecutorial Misconduct Occurred
During her rebuttal argument, the prosecutor told the jury, “If you think it’s a manslaughter just acquit the guy. It’s ridiculous. If you think it’s manslaughter, just acquit him.” Cortes contends the prosecutor committed misconduct because that statement asked the jury to consider the matter of punishment and misstated the law because it implied the punishment for manslaughter was the same as an acquittal.
A prosecutor commits misconduct by making statements that are dishonest, reprehensible, or infect the trial with such unfairness that it violates due process. (People v. Morales (2001) 25 Cal.4th 34, 44; People v. Espinoza (1992) 3 Cal.4th 806, 820.) When examining a claim of misconduct, we view the challenged statements in context with the argument as a whole. (People v. Dennis (1998) 17 Cal.4th 468, 522.) Defense counsel concluded his argument by admitting that the facts showed a voluntary manslaughter had occurred, and asked the jury to convict Cortes of that offense. The prosecutor’s challenged remarks came early in her rebuttal. After an objection to them was overruled, the prosecutor added that “There is no heat of passion, there’s no self-defense issue, there’s nothing to rise to the level to lower this case from a murder to a manslaughter. It either is or it is not. That’s what you have to decide.” When viewed in context, we read the remarks as nothing more than a permissible, albeit heated, way of arguing that the evidence shows beyond a reasonable doubt that Cortes was guilty of the charged offense of murder, and not of some lesser offense. (People v. Visciotti (1992) 2 Cal.4th 1, 83.) We therefore hold that the statements were proper and that no misconduct occurred.
3. Dismissal of Juror No. 8 Was Proper
Section 1089 allows the court to dismiss a juror upon a showing of good cause that the juror is unable to perform his duty. The court dismissed one juror for cause after the prosecution had rested, an order that Cortes contends was not supported by the evidence and which therefore violated his constitutional right to a unanimous verdict.
After the prosecution rested, the trial court said it had learned that one juror had told a court staff member that another juror had been speaking to a member of Cortes’s family. The court questioned the jurors, three of whom said they saw Juror No. 8 talking to a heavy set Latina seated in the court’s audience section, who turned out to be Cortes’s mother. When the court asked Juror No. 8 about this, he denied speaking to anyone. Juror No. 8 initially said he had some difficulty speaking English, but also said he understood the court’s question about speaking to a family member. The court then questioned Juror No. 8 again, this time with the help of a Spanish language interpreter. When the court reminded Juror No. 8 about his previous denial of having spoken with a family member, the juror said he had not understood the question. The court reminded the juror that he said he had understood the question, then asked again whether he had spoken to any family members. The juror said he had. The court asked if he “understood that I told you at every break and preinstructions and voir dire that you are not to speak to anyone, anyone concerning any aspect of this case; did you understand that, sir?” Juror No. 8 answered that he had. The court asked why he spoke with the woman, and Juror No. 8 said he had not known until the last moment that she was a family member. The prosecutor then asked what they had discussed. Juror No. 8 answered that she “told me where I was from,” and that “she was from Guerrero.” She also told him that Cortes was her son, but said nothing else about him. According to Juror No. 8, the mother initiated the conversation.
The prosecutor asked to dismiss juror 8 because he had language problems and because his conversation with the mother went beyond a mere greeting and was therefore inappropriate. Defense counsel pointed out that nothing was said about the case and that no substantive conversation occurred, but did not state an objection to dismissing the juror. The court dismissed Juror No. 8 for cause, but not because of the language issues. Instead, the court found that Juror No. 8 sufficiently understood the court’s admonition about not talking to others about the case. The court found “troubling . . . the fact that such conversation did take place, the nature of the conversation and the participant. And the fact that initially it was denied. And I find that troubling. So this juror will be released due to the, what the court determines to be inappropriate conduct by the juror.”
Because defense counsel did not specifically object to the dismissal of Juror No. 8, we deem the issue waived. (People v. Bell (1998) 61 Cal.App.4th 282, 289.) We alternatively affirm on the merits. We review the trial court’s ruling under the abuse of discretion standard and will affirm so long as substantial evidence supports a finding of a demonstrable reality that Juror No. 8 was unable to perform his duties. (People v. Cleveland (2001) 25 Cal.4th 466, 474-475.) A juror who violates the court’s instructions is unable to perform his duties under section 1089 (People v. Williams (2001) 25 Cal.4th 441, 448), and this includes violating instructions to refrain from discussing the case or reading news accounts of the trial. (Id. at p. 449, citing People v. Daniels (1991) 52 Cal.3d 815, 865.) Here, the trial court found that Juror No. 8 understood the admonition against talking to family members, and also understood when the court first asked him whether he had violated that admonition. As part of that finding, the court also determined that Juror No. 8 had lied on two counts – when he first denied the conversation with Cortes’s mother and when he claimed he had not understood the court’s question about whether any conversation occurred. These findings are binding on us. (People v. Lopez (1993) 13 Cal.App.4th 1840, 1844.) We hold that they show a demonstrable reality that Juror No. 8 committed misconduct, thereby justifying his discharge from the jury.
DISPOSITION
For the reasons set forth above, the judgment is affirmed.
WE CONCUR: COOPER, P. J. FLIER, J.