Opinion
D074033
09-11-2018
THE PEOPLE, Plaintiff and Respondent, v. DARRON MARQUIS DANIELS, Defendant and Appellant.
Arthur B. Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FSB1502628) APPEAL from a judgment of the Superior Court of San Bernardino County, Ronald M. Christianson, Judge. Affirmed in part and remanded for resentencing. Arthur B. Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Darron Marquis Daniels guilty of one count of second degree murder (Pen. Code, § 187, subd. (a)), and two counts of attempted murder (§§ 664, 187, subd. (a)) and made true findings on firearm-use allegations. (§ 12022.53, subds. (b), (c), & (d).) The trial court sentenced Daniels to prison for an indeterminate term of 40 years to life, and a determinate term of 38 years.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Daniels raises three issues on appeal. First, Daniels contends the trial court prejudicially erred by not instructing the jury on the lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter under the theory that he acted in the heat of passion based on provocation from the intended victims. Second, Daniels contends that the trial court erred in denying his motion for a new trial based on jury misconduct, which was based on the jury's manipulation of the contrast ratio on the television monitor they were using to view a surveillance video that was available to them on a DVD as an exhibit during deliberations. Finally, Daniels requests that we remand this matter to the trial court for a new sentencing hearing for the trial court to decide whether to exercise its discretion to strike the firearm-use enhancements pursuant to newly enacted section 12022.53, subdivision (h).
We conclude that the first two contentions lack merit, but as to the final issue, this case will be remanded for resentencing to allow the trial court to consider whether to exercise its discretion to strike the firearm-use enhancements.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of July 29, 2015, Jordan R. and Armando H. were driving around in Jordan's car and selling marijuana. As the men drove up McKinley Avenue in Highland, they spotted a sheriff's patrol car and turned into the driveway of an apartment building to avoid being pulled over. Daniels lived in the apartment building. Jordan parked his car immediately behind Daniels's car in the driveway. Armando got out of Jordan's car and walked to the trunk. Daniels was in the driver's seat of his car, another man was in the passenger seat, and one or two other men were nearby.
To protect the privacy of witnesses we refer to them by their first names and last initials, and we intend no disrespect by doing so.
Daniels exited his car and asked Jordan and Armando what they were doing. Jordan told Daniels that they were trying to avoid getting pulled over for selling marijuana. According to Jordan, Daniels replied by stating: "Get out of my neighborhood. This is my neighborhood. Leave. Get away from my vehicle," and also stating "East Side Projects." Jordan did not recall Daniels using any profanity. Jordan did not say anything else and prepared to leave. At trial, Jordan described Daniels as wearing "a white tank top with blue plaid shorts."
According to Armando, Daniels said, "What the fuck you guys doing? This is our hood. Why you gotta pull in here?" Armando testified that he replied to Daniels, "This isn't your neighborhood, fuck you, nigger." Armando then saw Daniels start to reach into his car, like he was going to grab something.
Daniels is African-American. We infer from statements made during closing argument, and from our review of the surveillance video admitted into evidence that depicts Armando getting in and out of Jordan's car, that Armando is not African-American.
Jordan and Armando backed out of the driveway and went to retrieve a gun and some more marijuana to sell. They returned to the neighborhood 16 minutes later, driving north on McKinley Avenue and passing the apartment complex where Daniels had confronted them. Jordan turned around shortly after passing the apartment building, and then proceeded south on McKinley. As Jordan drove in front of the apartment building, he heard Daniels saying, "That's him, that's him." Armando saw Daniels with a gun and yelled to Jordan, "gun, gun, gun." Jordan looked and saw Daniels with a gun, and then ducked to avoid being shot. According to Jordan, Daniels was 10-15 feet away when he started shooting.
Based on cartridge casings found at the scene, Daniels fired at least ten shots from a .45-caliber semiautomatic gun at Jordan's car as it drove by. A surveillance video from a liquor store across the street shows the shooting, depicting a man in a white shirt and dark shorts running into the street and firing several shots toward Jordan's car. According to Jordan, he returned fire with his 9 mm gun after he was past the apartment complex. Consistent with Jordan's account, three cartridge casings from a 9 mm gun were found approximately 300 feet down the street from the apartment complex.
Jordan's car was struck by several bullets, but Jordan and Armando were not shot. Tragically, however, a four-year-old boy playing in the front yard of a house across the street from the apartment complex was fatally shot in the neck by one of the bullets fired from Daniels's .45-caliber gun during the shooting.
The day after the shooting, Armando went to the sheriff's department and told authorities that Armando and Jordan's girlfriend (rather than Jordan) were in Jordan's car during the shooting. The next day, however, Armando and Jordan both told authorities that Jordan, rather than Jordan's girlfriend, was present during the shooting. Jordan and Armando each identified Daniels as the shooter in a photographic lineup.
Jordan initially did not want to identify himself as being present during the incident because he was on probation and was prohibited from possessing a firearm.
Daniels was charged with one count of first degree murder with the four-year-old boy as the victim (§ 187, subd. (a); count 1), and two counts of attempted willful, deliberate and premeditated murder with Jordan and Armando as the victims (§§ 664, 187, subd. (a); counts 2 and 3), along with firearm-use allegations attached to each count. (§ 12022.53, subds. (b), (c), & (d).) At trial, both Jordan and Armando identified Daniels as the shooter.
During jury deliberations, the jury notified the court that it could not reach a unanimous decision on first degree murder but could unanimously agree that Daniels committed murder. As a result of the communication from the jury, the People dismissed the allegations of first degree murder and the allegations that the attempted murders were willful, deliberate and premeditated. The jury was instructed accordingly. The jury then returned verdicts finding Daniels guilty of one count of second degree murder and two counts of attempted murder, and it made true findings on the firearm-use allegations.
After denying a motion for a new trial based on alleged jury misconduct, the trial court sentenced Daniels to prison for an indeterminate term of 40 years to life, and a determinate term of 38 years.
On count 1, the sentence was 15 years to life for the murder conviction, and 25 years to life for the firearm-use enhancement. On count 2, the sentence was nine years for the attempted murder conviction, and 20 years for the firearm-use enhancement. For count 3, the sentence was two years, four months on the attempted murder conviction, and six years, eight months for the firearm-use enhancement.
II.
DISCUSSION
A. The Trial Court Did Not Err in Declining to Instruct on the Lesser Included Offenses of Voluntary Manslaughter and Attempted Voluntary Manslaughter
We first consider Daniels's argument that the trial court prejudicially erred by refusing to instruct the jury on the lesser included offenses of voluntary manslaughter for count 1 and attempted voluntary manslaughter for counts 2 and 3.
During trial, defense counsel requested instructions on voluntary manslaughter and attempted voluntary manslaughter as lesser included offenses based on the theory that Daniels acted under the heat of passion when he shot at Jordan and Armando. In requesting the instruction, defense counsel argued that the racial slur "nigger" that Armando directed at Daniels 16 minutes before the shooting is "an amazingly offensive term." Defense counsel stated that although the shooting occurred 16 minutes after the initial interaction, the term was "so offensive a person could very arguably get more and more angry with time."
The court denied the instruction based primary on our Supreme Court's decision in People v. Manriquez (2005) 37 Cal.4th 547, 586 (Manriquez), which held that a voluntary manslaughter instruction was not warranted where the victim called the defendant a " 'mother fucker' " and taunted the defendant immediately before the shooting. The trial court first observed that "here we do have a delay in time." Next, the trial court explained that even assuming that Daniels was subjectively provoked, voluntary manslaughter based on heat of passion also has an objective component, and the situation here "did not rise to the level that a person of average disposition would react in such a way."
We apply a de novo standard of review in assessing Daniels's contention that the trial court erred in failing to instruct on voluntary manslaughter and attempted voluntary manslaughter as lesser included offenses. (Manriquez, supra, 37 Cal.4th at p. 584.)
" ' "Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of . . . voluntary manslaughter. (§ 192.)" ' " (People v. Moye (2009) 47 Cal.4th 537, 549.) "Where an intentional and unlawful killing occurs 'upon a sudden quarrel or heat of passion' (§ 192, subd. (a)), the malice aforethought required for murder is negated, and the offense is reduced to voluntary manslaughter—a lesser included offense of murder." (People v. Carasi (2008) 44 Cal.4th 1263, 1306.) Heat of passion is not " 'an element of voluntary manslaughter' that must be affirmatively proven." (Moye, at p. 549.) Instead, it is a " 'theor[y] of partial exculpation' that reduce[s] murder to manslaughter by negating the element of malice." (Ibid.)
" 'Although section 192, subdivision (a), refers to "sudden quarrel or heat of passion," the factor which distinguishes the "heat of passion" form of voluntary manslaughter from murder is provocation.' " (Manriquez, supra, 37 Cal.4th at p. 583, italics added.) " ' "Heat of passion arises when 'at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.' " . . . ' . . . Thus, '[t]he heat of passion requirement for manslaughter has both an objective and a subjective component. . . . The defendant must actually, subjectively, kill under the heat of passion. . . . But the circumstances giving rise to the heat of passion are also viewed objectively. . . . "[T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances," because "no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man." . . . ' "To satisfy the objective or 'reasonable person' element of this form of voluntary manslaughter, the accused's heat of passion must be due to 'sufficient provocation.' " ' " (Id. at p. 584, citations omitted.)
"The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim . . . or be conduct reasonably believed by the defendant to have been engaged in by the victim. . . . The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (Manriquez, supra, 37 Cal.4th at pp. 583-584.) "[T]he passion aroused need not be anger or rage, but can be any ' " '[v]iolent, intense, high-wrought or enthusiastic emotion' " ' . . . other than revenge." (People v. Breverman (1998) 19 Cal.4th 142, 163, citations omitted.) "The provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment." (People v. Lee (1999) 20 Cal.4th 47, 60.) The inquiry is not whether a reasonable person would be provoked to kill by the victim's conduct, but rather whether the provocation "would cause an emotion so intense that an ordinary person would simply react, without reflection." (People v. Beltran (2013) 56 Cal.4th 935, 949 (Beltran).) "[P]rovocation is not evaluated by whether the average person would act in a certain way: to kill. Instead, the question is whether the average person would react in a certain way: with his reason and judgment obscured." (Ibid.)
Although provocation by the victim is normally required, the theory under which Daniels was prosecuted in count 1 for the killing of the four-year old victim was the doctrine of transferred intent, under which " 'a defendant who shoots with the intent to kill a certain person and hits a bystander instead is subject to the same criminal liability that would have been imposed had " 'the fatal blow reached the person for whom [it was] intended.' " ' " (People v. Bland (2002) 28 Cal.4th 313, 321.) Under a transferred intent theory, defenses that negate a defendant's mental state with regard to the intentional killing or attempted killing will transfer to the unintended victim. (See People v. Mathews (1979) 91 Cal.App.3d 1018, 1023-1024 [whether self-defense justifies the killing of an unintended victim depends on whether it would have justified the killing of the intended victim]; People v. Spurlin (1984) 156 Cal.App.3d 119, 126 [for voluntary manslaughter, the " 'provocation must have been given by the person who was killed, except in those cases in which the wrong person was killed by accident or mistake' "].) Thus, the parties do not dispute that with respect to the heat of passion analysis for count 1, because liability is based on the doctrine of transferred intent, the relevant focus is on provocation caused by the intended victim, not by the actual victim.
As also relevant here, " 'if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter—"the assailant must act under the smart of that sudden quarrel or heat of passion." . . .' . . . Thus, it is insufficient that one is provoked and later kills. If sufficient time has elapsed for one's passions to 'cool off' and for judgment to be restored" the provocation "provides no mitigation for a subsequent killing." (Beltran, supra, 56 Cal.4th at p. 951, citations omitted.)
Although voluntary manslaughter is a lesser included offense of murder (Manriquez, supra, 37 Cal.4th at p. 583), a court is required to instruct on a lesser included offense "only when the record contains substantial evidence of the lesser offense, that is, evidence from which the jury could reasonably doubt whether one or more of the charged offense's elements was proven, but find all the elements of the included offense proven beyond a reasonable doubt." (People v. Moore (2011) 51 Cal.4th 386, 408-409.) For the purpose of our analysis, "[s]ubstantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) " 'Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused.' " (People v. Tufunga (1999) 21 Cal.4th 935, 944.)
Applying these standards here, the trial court was required to instruct on voluntary manslaughter and attempted voluntary manslaughter only if a reasonable jury could have found both that (1) Daniels was in fact subjectively provoked by the words and acts of Armando and Jordan to act rashly, without due deliberation and reflection, and (2) as an objective matter, an ordinary person, confronted with the same provocation, "would simply react, without reflection." (Beltran, supra, 56 Cal.4th at p. 949.)
Turning to whether the instruction was required in this case, we assume for the sake of our analysis that a reasonable jury could find, based on Daniels's conduct of shooting at Jordan and Armando that he was subjectively provoked to act rashly and without due deliberation and reflection. (Cf. Manriquez, supra, 37 Cal.4th at p. 585 [assuming for the sake of discussion that the evidence satisfied the subjective requirement that defendant actually killed in the heat of passion].) We focus our analysis on the issue of whether a reasonable jury could find that, as an objective matter, an ordinary person under the same circumstances "would be so inflamed that he or she would lose reason and judgment." (Id. at p. 586.) "[A] court may decide the issue of adequate provocation if 'the provocation is so slight . . . that reasonable jurors could not differ on the issue of adequacy.' " (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1140-1141.)
Here, Daniels argues that a reasonable jury could find the objective requirement to be satisfied based on the fact that Armando, accompanied by Jordan, trespassed into the driveway of his apartment complex and, when told to leave, disrespected him by using a highly offensive racial slur. Further, Daniels points out that instead of staying out of the neighborhood as he demanded, Jordan and Armando drove back and forth on the public street in front of the apartment complex 16 minutes after leaving, showing further disrespect.
The main provocation here consists of a verbal insult. As our Supreme Court has explained, to warrant a voluntary manslaughter instruction, " 'there is no specific type of provocation required . . . and . . . verbal provocation may be sufficient.' " (People v. Wickersham (1982) 32 Cal.3d 307, 326.) However, "a voluntary manslaughter instruction is not warranted where the act that allegedly provoked the killing was no more than taunting words." (People v. Gutierrez (2009) 45 Cal.4th 789, 826-827 [insufficient provocation for voluntary manslaughter existed when the defendant and the victim engaged in a verbal argument shortly before the killing, during which defendant testified that he told the victim " '[g]et off me, you f...ing bitch,' and . . . she 'cuss[ed] back at' him"].) Thus, in Manriquez, a voluntary manslaughter instruction was not warranted when the victim "called defendant a 'mother fucker' and . . . also taunted defendant, repeatedly asserting that if defendant had a weapon, he should take it out and use it." (Manriquez, supra, 37 Cal.4th at p. 586.) As our Supreme Court explained, "[s]uch declarations . . . plainly were insufficient to cause an average person to become so inflamed as to lose reason and judgment." (Ibid.)
Other case law is in accord, establishing that provocative and insulting words are not objectively sufficient to provoke a reasonable person to lose reason and judgment. (People v. Najera (2006) 138 Cal.App.4th 212, 226 [the victim's act of calling the defendant a " 'faggot' " was "insufficient to cause an ordinary person to lose reason and judgment under an objective standard"]; People v. Lucas (1997) 55 Cal.App.4th 721, 739-740 [voluntary manslaughter instruction was not warranted when the defendant shot at an adjacent car and killed the driver after the occupants of the car yelled "provocative 'names' " at defendant, " 'smirked' " at defendant, and "looked at him 'real dirty,' " as if wanting to fight].) As Witkin accurately summarizes the case law, "the use of words commonly employed to taunt another, however grievous, does not ordinarily drive a reasonable person to such passion as would reduce an unlawful killing to manslaughter." (1 Witkin, Cal. Crim. Law (4th ed. 2012) Crimes Against the Person, § 236, p. 1059.)
We acknowledge that the racial slur that Armando directed toward Daniels is a grievous insult that Daniels justifiably could have understood as demonstrating great disrespect and an intent to offend. Although the insult was grievous, however, it was nevertheless only verbal taunting. As we have explained, case law concludes that verbal taunting, even when showing great disrespect and clearly intending to offend someone, is insufficient to warrant a voluntary manslaughter instruction because an ordinary person would not lose reason or judgment in such a circumstance. Further, as the trial court accurately observed, Daniels had 16 minutes to cool off and regain his reason before the shooting occurred. Although Jordan and Armando drove by the apartment complex after being told by Daniels to get out of his neighborhood, an ordinary person would not become so enraged in that situation as to lose reason and judgment. The conduct consisted of nothing more than driving a car on a public street, which every person is entitled to do, and did not involve a return into the driveway of Daniels's apartment complex.
We note the evidence could also support an inference that Daniels was making a gang-related comment by stating "East Side Projects" and telling Armando and Jordan that it was his neighborhood. Further, Daniels could have interpreted Jordan's act of driving by the apartment complex 16 minutes later as a challenge to his gang-related claim to the neighborhood. However, a gang-related challenge would not be sufficient to warrant a voluntary manslaughter instruction because our Supreme Court has "rejected arguments that insults or gang-related challenges would induce sufficient provocation in an ordinary person to merit an instruction on voluntary manslaughter." (People v. Enraca (2012) 53 Cal.4th 735, 759; see also People v. Avila (2009) 46 Cal.4th 680, 706, citations omitted ["Even assuming it was reference to a gang, and that a gang member might have perceived the statement as some sort of a challenge, the requisite provocation must be one that would provoke an ordinarily reasonable person. . . . Reasonable people do not become homicidally enraged when hearing the term 'Carmelos,' even if it is understood as a fleeting gang reference or challenge."].)
Accordingly, because the evidence was insufficient to support a finding that Daniels was acting under an objectively reasonable heat of passion when shooting at Jordan's car, the trial court did not err in refusing defense counsel's request to instruct the jury on the lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter. B. The Trial Court Properly Denied the Motion for a New Trial Based on Juror Misconduct
Daniels next argues that the trial court erred in denying his motion for a new trial, which was based on alleged juror misconduct.
During deliberations, the jury was provided a DVD containing the surveillance video from the liquor store across the street from the scene of the shooting. The surveillance video shows the entire time period before Jordan's car initially entered the apartment complex driveway until after law enforcement arrived on the scene after the shooting. During the portion of the video depicting the shooting, it is nighttime and difficult to make out the detail of the shooter's face or clothing.
The content of the video was relevant to several issues at trial, including the identity of the shooter. Specifically, the prosecutor argued that the clothing worn by the shooter in the video was consistent with Jordan's description of what Daniels was wearing on the night of the shooting. Countering this argument, defense counsel urged the jury to view the surveillance video, arguing that although the surveillance video shows the shooter to be wearing "dark" shorts, Jordan testified that Daniels was wearing blue plaid shorts during the confrontation in the driveway.
According to the trial court's description during its ruling on the new trial motion, the surveillance video was shown to the jury during trial by use of an ELMO device that projected the video onto a large screen. The DVD containing the surveillance video was entered into evidence as Exhibit 64 and provided to the jury. The jury was initially provided with a small laptop device to view the DVD but requested a larger screen. The jury was then provided with a television monitor measuring 36 inches by 17 inches, which it ultimately used to view the DVD.
While speaking with six of the jurors after the verdicts, defense counsel learned that the jurors had adjusted the contrast ratio on the television monitor that they used to view Exhibit 64. As stated by defense counsel in the motion for a new trial, "I believe it was Juror in seat no. 5 who spoke up as to how the quality of the critical video from the liquor store that had been played to the jury numerous times during the trial, had been tremendously enhanced by the foreperson 'experimenting' with the 'contrast' control on the television that had been provided to the jury by the Court, for review of that video." Defense counsel explained that after the jury received the television monitor, the foreperson "manipulate[d] the 'contrast' control to the point that the six jurors 'raved' about how much better the quality of the video was with the different contrast, even to the extent that the jurors claimed they could see a person in a car they had never seen on the original version played in the Courtroom. To my question regarding the Courtroom version played during the trial showing the 'shooter' wearing a pair of black shorts, Juror in seat no. 5 responded to the effect that, 'The different "contrast" application made the shorts on the shooter look more white.' "
In the motion for a new trial, Daniels argued that the jury engaged in misconduct by adjusting the contrast ratio on the television monitor because "the Jury did not view the same evidence in the deliberation room as had been presented in the Courtroom. The 'evidence' was absolutely, without question, different evidence and not the evidence that the Jury saw in the Courtroom."
The trial court denied the motion for a new trial. The trial court explained, "Exhibit 64 itself was the actual evidence in this case. . . . The jury in this case did no more than carefully examine the evidence that was submitted to it." Relying on several cases, the court concluded "the jury may scrutinize the evidence carefully. And may subject an exhibit to a more critical examination of it than was made in court as long as it does not go beyond the scope and purview of the evidence admitted. When the jury merely gave closer scrutiny to Exhibit 64 than was done during the trial, the jury did not engage in any type of prohibited experimentation or misconduct."
In considering the trial court's ruling denying the motion for a new trial, we apply a deferential standard of review. "On appeal, a trial court's ruling on a motion for new trial is reviewed for abuse of discretion. . . . Its ruling will not be disturbed on appeal ' "unless a manifest and unmistakable abuse of discretion clearly appears." ' " (People v. Guerra (2006) 37 Cal.4th 1067, 1159-1160, citations omitted.)
The motion for a new trial was premised on section 1181, which provides that a trial court may grant a new trial when "the jury has received any evidence out of court, other than that resulting from a view of the premises, or of personal property" (§ 1181, subd. 2), or the jury "has been guilty of any misconduct by which a fair and due consideration of the case has been prevented." (§ 1181, subd. 3).
In People v. Collins (2010) 49 Cal.4th 175, 242 (Collins) our Supreme Court set forth the long-settled standards governing claims of jury misconduct based on experimentation with evidence. "This court established the framework for analysis of a jury misconduct claim based on experimentation nearly a century ago in Higgins v. L.A. Gas & Electric Co. (1911) 159 Cal. 651 (Higgins). Justice Hinshaw explained: 'It is a fundamental rule that all evidence shall be taken in open court and that each party to a controversy shall have knowledge of, and thus be enabled to meet and answer, any evidence brought against him. It is this fundamental rule which is to govern the use of exhibits by the jury. They may use the exhibit according to its nature to aid them in weighing the evidence which has been given and in reaching a conclusion upon a controverted matter. They may carry out experiments within the lines of offered evidence, but if their experiments shall invade new fields and they shall be influenced in their verdict by discoveries from such evidence which will not fall fairly within the scope and purview of the evidence, then, manifestly, the jury has been itself taking evidence without the knowledge of either party, evidence which it is not possible for the party injured to meet, answer, or explain.' (Id. at pp. 656-657, italics added.)" (Collins, at p. 243.) Collins explained that "[i]n the century since Higgins, numerous cases have reiterated the distinction between an experiment that results in the acquisition of new evidence, and conduct that is simply a 'more critical examination' of the evidence admitted. The former is misconduct; the latter is not." (Collins, at p. 244.)
Collins set forth the following summary based on its review of the case law: "From the venerable authority of Higgins and its progeny, several principles emerge. Not every jury experiment constitutes misconduct. Improper experiments are those that allow the jury to discover new evidence by delving into areas not examined during trial. The distinction between proper and improper jury conduct turns on this difference. The jury may weigh and evaluate the evidence it has received. It is entitled to scrutinize that evidence, subjecting it to careful consideration by testing all reasonable inferences. It may reexamine the evidence in a slightly different context as long as that evaluation is within the ' "scope and purview of the evidence." ' [Citation.] What the jury cannot do is conduct a new investigation going beyond the evidence admitted." (Collins, supra, 49 Cal.4th at p. 249.)
Although we are not aware of any case law concerning the jury's adjustment of a monitor to view evidence, the most analogous case relied upon by the trial court is People v. Turner (1971) 22 Cal.App.3d 174. In Turner, the defendant was charged with cashing a stolen check at a supermarket. As an exhibit, the jury was provided with a photograph showing a person cashing the check, but the person's identity was obscured by a scarf and sunglasses. (Id. at p. 178.) During deliberations, the jury used a magnifying glass to look more closely at the lines on the hands of the person in the photograph to compare them to the lines on the defendant's hands. (Id. at p. 179.) Turner concluded that the use of the magnifying glass was not jury misconduct because it did not constitute "new evidence" or an impermissible "experiment." As Turner explained, " 'the mere making of a more critical examination of an exhibit than was made during the trial is not objectionable.' " (Id. at pp. 182-183.)
Applying this case law, we agree with the trial court's conclusion that the jury did not engage in misconduct. In adjusting the contrast ratio of the television monitor, the jury did not introduce any new evidence into its deliberations. Although Daniels argued in his motion for a new trial that the jury acted impermissibly by viewing the surveillance video with a contrast ratio different from how the video was displayed using the ELMO in the courtroom, that argument lacks merit because it is the DVD itself that was the exhibit introduced into evidence. The jury was permitted to use any tool at its disposal to "scrutinize that evidence," "subject[] it to careful consideration," and "reexamine [it] in a slightly different context." (Collins, supra, 49 Cal.4th at p. 249.) The inherent nature of a DVD is that it can be accessed only by viewing it on a monitor of some sort, and many monitors come with adjustable contrast ratios, with no presumptively accurate setting. Indeed, it is possible that as provided to the jury, the television monitor was set to a contrast ratio that was not ideal for viewing the content of the DVD, which depicted a poorly lighted scene recorded at night. By adjusting the contrast control on the monitor to enable them to see more detail in the surveillance video, the jurors did no more than " 'use the exhibit according to its nature to aid them in weighing the evidence which has been given.' " (Id. at p. 243, second italics added.)
Accordingly, we conclude that the trial court did not abuse its discretion in denying the motion for a new trial. C. A Remand Is Required to Allow the Trial Court to Exercise Its Discretion on Whether to Strike the Firearm-Use Enhancements
Daniels was sentenced to significant prison terms based on the firearm-use enhancements attached to counts 1, 2 and 3, which were imposed under section 12022.53, subdivisions (c) and (d). After Daniels was sentenced, the Legislature enacted section 12022.53, subdivision (h), which gives the trial court discretion, in the interest of justice, to strike an enhancement for firearm use alleged and found true under section 12022.53.
For the firearm-use enhancements, Daniels was sentenced in count 1 to a term of 25 years to life, and in counts 2 and 3, collectively, to a term of 26 years, eight months.
The newly enacted section 12022.53, subdivision (h), states that "[t]he court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h).) Prior to the amendment, the imposition of the enhancement was mandatory. In this case, because the statutory amendment went into effect after the trial court sentenced Daniels, the trial court did not have an opportunity to consider whether to exercise its discretion to strike Daniels's firearm-use enhancements. Daniels contends that because his case is not yet final he should be given the opportunity to have the trial court consider whether to strike the enhancements.
The People do not dispute that the amendment to section 12022.53 allowing the trial court to strike a firearm-use enhancement applies retroactively to cases, such as this, that are not yet final. (See In re Estrada (1965) 63 Cal.2d 740; People v. Francis (1969) 71 Cal.2d 66; People v. Superior Court (Lara) (2018) 4 Cal.5th 299.) The People also do not dispute that this case should be remanded for the trial court to decide whether to exercise its discretion under section 12022.53, subdivision (h) to strike the enhancements.
We accordingly remand this case to allow the trial court to exercise its discretion as to whether to strike the firearm-use enhancements in counts 1, 2 and 3. We express no opinion as to how the trial court should exercise that discretion on remand.
DISPOSITION
This matter is remanded for resentencing for the limited purpose of allowing the trial court to decide whether to exercise its discretion to strike the firearm-use enhancements pursuant to section 12022.53, subdivision (h). In all other respects, the judgment is affirmed.
IRION, J. WE CONCUR: NARES, Acting P. J. O'ROURKE, J.