Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. FBA800198, Steven A. Mapes, Judge.
Marilee Marshall, 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, Assistant Attorney General, Andrew Mestman and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
All statutory references are to the Penal Code unless stated otherwise.
A jury convicted defendant Benny Trevell Couser of one count of perjury (§ 118) after he testified at a trial, contradicting the statements he made in support of a plea bargain. The court declared a mistrial on the special allegation concerning a criminal street gang enhancement. (§ 186.22, subd. (b)(1)(A).) The court found true the allegation that defendant had suffered a prior conviction for violating section 245, subdivision (a)(2). (§§ 667, subds. (b)-(i) and 1170.12, subds. (a)-(d).) The court sentenced defendant to six years in prison.
On appeal, defendant contends the court erred by denying a motion for mistrial based on juror misconduct and misapplied section 1192.7. We reject these contentions and affirm the judgment.
2. Factual and Procedural Background
a. The Brown Case
In July 2005, Charles Burns was shot to death at a Barstow location known as The Ville. Defendant admitted to a detective that he was present at the shooting. He had supplied Terrance Brown with a semiautomatic weapon to perform the shooting. Brown returned the gun to defendant who hid it in his girlfriend’s apartment. Defendant did not want the detective to videotape him viewing a photo lineup because he was afraid of retaliation by Brown or Brown’s friends. The jury in Brown’s trial found him guilty of shooting Burns and personally discharging a firearm.
b. Defendant’s Plea Bargain
In February 2006, pursuant to a plea bargain, defendant pleaded guilty to felony assault with a firearm based on aiding and abetting. Defendant testified at an allocution hearing that he had possessed a firearm which he gave to another person. Shots were fired but he did not fire them personally. Afterwards, he concealed the gun in a shoe by his girlfriend’s bed. The court accepted his plea and the plea bargain.
“California law requires that in a criminal case a trial court must, before imposing sentence, ask the defendant whether there is ‘any legal cause to show why judgment should not be pronounced against him.’ (Pen. Code, § 1200.) [Fn. omitted.] This inquiry is called the ‘allocution.’” (People v. Evans (2008), 44 Cal.4th 590, 592.)
c. The Perjury Trial
At Brown’s trial in 2007, defendant had testified that he was the shooter. He denied giving the gun to anyone else or telling the detective that he had done so. Defendant denied ever discussing his testimony with Brown. He claimed he testified differently at the allocution hearing because he wanted a good deal on the plea bargain and his lawyer advised him to “go along” with whatever the prosecution asked him. He did not understand that he gave an oath to tell the truth at the allocution hearing.
When the detectives searched defendant’s residence, they found a letter from Brown discussing defendant’s upcoming testimony.
Defendant blamed his attorney, David Leicht, for misleading him about the plea agreement. Defendant claimed he did not know he was being questioned under oath. He accepted the plea agreement to receive a two-year prison term. He denied contradicting his allocution testimony at Brown’s trial.
In rebuttal, Leicht testified that he had explained the purpose of the allocution hearing to defendant and he told defendant he would have to testify truthfully.
3. Juror Misconduct
a. The Hearing on Juror Misconduct
The jury began deliberating on Thursday, June 5, 2008, at 10:06 a.m. Juror No. 1 was the foreperson. The jury took one hour for lunch. At 2:20 p.m., the court received a note from Juror No. 9, complaining that the other jurors were not agreeing and rushing to judgment and the “facilitator” was opinionated and impatient and “trying to persuade[sic] us to agree with her.” Juror No. 9 also claimed the foreperson said she would ask the judge to dismiss Juror No. 9 and “we are going to have fun with you!!!”
During a colloquy with counsel, the court proposed to reread the predeliberation instructions (CALCRIM No. 3550) and to advise the jury that personal attacks were not appropriate. In the meantime, Juror No. 1 delivered a note asking that Juror No. 9 be replaced. At that point, the court decided to pool the jurors separately.
The court first interviewed Juror No. 1 who said Juror No. 9 was trying to force her religious beliefs on the other jurors. Juror No. 9 was stalling and interfering with deliberations, which were becoming very heated. Juror No. 9 had exhorted the jury not to judge but to be forgiving.
Jurors No. 2, 6, 7, and 8 agreed that Juror No. 9 was argumentative, disruptive, and not willing to deliberate.
Jurors No. 3, 4, 5, 11, and 12 said there were personality conflicts but that deliberations could continue.
Juror No. 10 had voted to remove Juror No. 9 but expressed tolerance for her difficult personality.
The judge explained to Juror No. 9 that he thought there was a personality conflict but that he was going to instruct the jury again. Juror No. 9 assured the court that she would follow the law. Juror No. 9 expressed her concerns about people being disrespectful and trying to rush the process.
The court called the jurors back in and cautioned them to respect their differences and act civilly toward one another. The court ordered them to return the next week on Monday morning.
Defense counsel made a motion for mistrial. After considerable discussion, the court denied the motion. When the court announced to the jury it would not dismiss anyone, Juror No.1 apparently made an obvious expression of disapproval.
On Monday, June 9, the jury began deliberating again. At about 3:30 in the afternoon the jury reached a verdict but deadlocked on the gang enhancement. The court declared a mistrial on the enhancement and the jury announced its guilty verdict on the perjury count.
Judge John P. Vanderfeer replaced Judge Steven Mapes.
b. Juror Removal
We conduct a deferential review of the trial court’s decision about whether to dismiss a juror under section 1089: “[W]e review a trial court’s determination to discharge a juror by applying an abuse of discretion standard and will uphold that decision if there is substantial evidence supporting it. We also require a juror’s inability to perform as a juror to appear in the record as a ‘“‘ demonstrable reality.’”’ [Citations.]” (People v. Boyette (2002), 29 Cal.4th 381, 462.) The trial court should exercise its broad discretion with great care. (Ibid. at fn. 19; People v. Barnwell (2007), 41 Cal.4th 1038, 1052.)
The trial court decided not to remove any jurors. Defendant argues the court should have removed Juror No. 1 or declared a mistrial. We hold there was no abuse of discretion.
The court expressed sufficient reasons for not dismissing any juror. After conducting interviews of all the jurors, the court concluded there was a personality conflict between Juror No. 9 and some of the other jurors. Nevertheless, the court was persuaded the jury could continue to deliberate after being admonished. (People v. Bradford (1997), 15 Cal.4th 1229, 1352.) The court recognized that Juror No. 1 was displeased with the decision to retain Juror No. 9 but the court decided Juror No. 1 would be able to return and recommence deliberations after the weekend break. Substantial evidence supported the trial court’s decision not to dismiss a juror. (People v. Watson (2008), 43 Cal.4th 652, 696; People v. Schmeck (2005), 37 Cal.4th 240, 294.) Indeed, what finally occurred was the jury continued deliberating for several more hours before reaching a verdict on the perjury conviction and deadlocking on the gang enhancement. Substantial evidence also supported the trial court’s denial of the defense motion for mistrial. (People v. Bell (2007), 40 Cal.4th 582, 616-617.)
Defendant contends personal use of a firearm or a dangerous or deadly weapon is required to constitute a serious felony strike, relying on section 1192.7, subdivision (c)(8) or (c)(23). Defendant’s claim is untenable after the voters adopted Proposition 21 in the March 7, 2000, Primary Election. (People v. Luna (2003), 113 Cal.App.4th 395, 398.) The proposition deleted for serious felony purposes the personal use requirement whether or not the defendant was convicted as a direct perpetrator or as an aider and abettor. The definition of “serious felony” now includes any “assault with a deadly weapon [or] firearm... in violation of Section 245,” without reference to personal use. (§ 1192.7, subd. (c)(31).) Thus, the court could properly determine the prior conviction constituted a serious felony strike. (People v. Myers (2007), 148 Cal.App.4th 546, 554.)
Defendant’s reliance on People v. Golde (2008), 163 Cal.App.4th 101, 110-113, involving negligent discharge of a firearm (§ 246.3), is not relevant here.
5. Disposition
We affirm the judgment.
We concur: Richli, Acting P. J., King, J.