Opinion
A140051
10-03-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERT JOE DIXON, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR277399)
A jury found defendant Robert Joe Dixon, Jr. guilty of multiple felonies committed over the course of two days, with various firearms enhancements. Defendant seeks review of his judgment of conviction, contending: that the trial court abused its discretion in denying his request to discharge a juror and in denying his motion for a new trial based on juror misconduct; there was insufficient evidence to support his convictions on the second and third counts for first degree murder and premeditated attempted murder, respectively, and also insufficient evidence to convict him of committing both counts simultaneously; the jury instruction on the "kill zone" theory of attempted murder was legally erroneous; and it was a legal error to apply a firearm enhancement on the fifth count. We modify the judgment to strike the referenced firearm enhancement and otherwise affirm the judgment.
I. BACKGROUND
We briefly summarize the facts relevant to this appeal for context, providing greater detail as necessary for discussion of specific issues in the next section.
A. Shooting on February 8 , 2010
In February 2010, defendant was dating a woman named Denitrice Thomas, who lived in the Parkway Gardens complex in Fairfield. Defendant sold marijuana, and he kept marijuana and money at Thomas's residence. One Friday evening, Thomas was the victim of a home invasion. Three men wearing hoodies broke into Thomas's residence while Thomas was there with two friends and stole various items, including a laptop computer and a video game console. Thomas had more than $1,000 in cash belonging to defendant in her apartment at the time and marijuana. She called defendant right away to tell him about the incident. Defendant responded that he would find out who did it and take care of it.
The following Monday, February 8, 2010, Samuel King was talking on a cell phone, standing with a group of acquaintances in the Parkway Gardens complex, when he saw defendant walking up to him, with another person following. When defendant got within arm's reach of him, King heard a gunshot, and turned to run, but fell instead, and realized he had been shot in the leg. Lying on the ground, King saw defendant was holding a gun. Defendant reached down and searched through King's jacket pockets. King's cousin, Keijona Jackson, was present during this incident, spoke to defendant immediately afterward, and later told police defendant was upset because someone had tried to rob him and take his drugs from Thomas's apartment the night before.
Defendant told the police he was present when the shooting occurred with one or two companions, and was armed with a BB gun, but he denied being the shooter, asserting it had been one of his companions. Apparently rejecting this claim, the jury convicted him of one count of assault with a firearm based on this incident. Defendant does not challenge this conviction on appeal.
B. Shootings on February 9 , 2010
The next evening, February 9, 2010, Jamal Williams, his cousin Kevin Domino, and Kristopher Battle were outside the Parkway Gardens complex where Williams's grandmother lived, drinking and listening to music. Thomas pulled up in a car with defendant in the passenger seat, and defendant called Williams over to talk. Defendant asked Williams whether he knew anything about the home invasion, but Williams did not offer any information and suggested defendant might have to pay for information. Defendant reportedly became upset, pulled a gun, began waving it around, and said "I got it for whoever wants it" or words to that effect. Frightened by this behavior and concerned Williams might also have a gun, Thomas drove off.
As Thomas drove, defendant made a telephone call and Thomas heard him say, "These guys know something" and "we got to take care of this." Thomas and defendant then picked up co-defendant Raymon Sellers, and defendant handed Sellers a (second) gun. Shortly afterward, defendant directed Thomas to drive back towards the Parkway Garden complex. On the way, Williams telephoned Thomas, but defendant took the phone, and began arguing with Williams. Eventually, defendant had Thomas pull into a parking lot at one end of the Parkway Garden complex. He and Sellers got out of the car, leaving their hats and other personal items, but carrying the guns, and took off running.
During this period, Williams, Domino, and Battle had remained outside Williams's grandmother's residence. Suddenly, they heard gunshots. Williams was near the door of the residence and dove inside, escaping injury, although one bullet hit a washing machine inside the dwelling. Battle was shot, but managed to run from the scene, and survived. Domino was shot and died at the scene. A firearms expert later confirmed two guns were used in this incident, and one of those guns had been used in the King shooting the previous day.
Although he initially claimed to police he had been elsewhere, defendant eventually acknowledged he had been at the Parkway Gardens complex with Thomas on February 9, and had argued with Williams, and that Williams called Thomas after Thomas and defendant drove away. Defendant denied he returned to the complex the same evening, however, and denied shooting anyone.
C. The verdict
On January 6, 2012, the jury convicted defendant on all of the following counts: assault with a firearm on Samuel King (Pen. Code, § 245, subd. (a)(2)) (count one); first-degree murder of Kevin Domino (§ 187, subd. (a)) (count two); premeditated attempted murder of Kristopher Battle and Jamal Williams (§§ 187, subd. (a), 664) (counts three and four, respectively); shooting at an inhabited dwelling (§ 246) (count 5); and various firearm enhancements. On September 9, 2013, the trial court sentenced defendant to prison for a determinate term of 24 years, four months, on counts one and five, and an indeterminate consecutive term of 110 years to life, plus four life terms with possibility of parole, on the remaining three counts. This timely appeal followed.
All undesignated statutory references below are to the Penal Code.
The jury acquitted co-defendant Raymon Sellers, who had been charged on counts 2-5.
II. DISCUSSION
A. Motion to Discharge a Juror
Defendant contends the trial court erred in denying his motion to discharge a juror, after the juror witnessed an altercation outside the courthouse between people who had been observing the trial, and that this violated his constitutional right to an impartial jury.
1. Background
a. The altercation
During a recess on the fifth day of the trial, on December 21, 2011, the courtroom bailiff heard yelling as he left the building to get coffee and then saw two factions outside—apparently defendant's relatives and relatives of murder victim Domino—engaged in a heated argument. The bailiff reported there was "a slight physical confrontation" between an unknown male relative and the victim's cousin, prosecution witness Jonathan Williams. After the bailiff displayed his weapon, everyone dispersed. A second deputy, who joined the group outside, told five or six people to go home for the day, and directed others to go back inside the courthouse. A third deputy notified dispatch of the incident and called all cover patrol units.
The trial spanned 13 days, between December 9, 2011 and January 6, 2012.
The bailiff immediately notified the trial judge of the incident, and told her one of the jurors—Juror No. 1—had been standing nearby when it happened. The judge met in chambers with all counsel, had the bailiff and the two other deputies state their observations for the record outside the jury's presence, and offered counsel the opportunity to question them, but counsel declined.
b. Initial interview with Juror No. 1
The trial judge then questioned each juror and all three alternate jurors individually, out of the presence of other jurors, allowing counsel to ask questions as well. The judge and counsel had the following exchange with Juror No. 1:
"THE COURT: [Juror No. 1], it was brought to my attention by my bailiff that there was some kind of altercation that took place outside the building during the break, and I want to know if jurors heard or saw this, and . . . what they heard and saw. Do you know what I'm referring to?
"JUROR ONE: Yeah.
"THE COURT: Did you hear or see any kind of altercation during the break?
"JUROR ONE: Yeah, I heard them, but then after they started arguing, I kind of moved away.
"THE COURT: I'm going to have the bailiff give you the microphone so I can hear you. Would you repeat what you just said?
"JUROR ONE: Yeah, I heard them when they were arguing, so when they started getting loud, I kind of moved away.
"THE COURT: And when you were — when you were hearing them, can you tell me what you heard?
"JUROR ONE: They just, um, one of the guys said that, 'What did he say to the other guy?' He just said
"THE COURT: I still can't hear you.
"JUROR ONE: One of the guys was told, I guess gave a wrong look to one of the other ones. I guess that's why they were arguing.
"THE COURT: Could you hear specifically what was being said?
"JUROR ONE: Just — for the
"THE COURT: I'm sorry?
"JUROR ONE: Because the guy, I guess, looked at him wrong or said something to him. I didn't really pay attention.
"THE COURT: What else did you see or hear?
"JUROR ONE: After that, they started getting loud and started screaming[.] [S]o I kind of backed away.
"THE COURT: Where did you go?
"JUROR ONE: I was like right outside the door, so I moved more . . . down towards the street.
"THE COURT: . . . [W]ere you able to identify any of the people or see who was doing this? Did you recognize any of them?
"JUROR ONE: I've just seen them here for the past days that we've been here.
"THE COURT: All right. Is there anything about what you saw and heard that would affect your ability to be a fair juror in this case?
"JUROR ONE: No, I don't think so.
"THE COURT: Do you have any concerns about that?
"JUROR ONE: No."
At this point, the trial judge conferred with counsel and then closed the courtroom, allowing only the parties and their counsel to remain. The judge then resumed her questioning of Juror No. 1:
"THE COURT: . . . . As you were listening to this altercation and watching what you've described to us, did you see or hear anything else more specifically than what you've already described?
"JUROR ONE: No, just . . . one of the girls tried to separate them.
"THE COURT: What do you mean by that?
"JUROR ONE: One of the girls was . . . I think that it was . . . his sister or something, trying to separate them and stop the fighting.
"THE COURT: What did she do to try to stop the fighting?
"JUROR ONE: She just said . . . to stop fighting, . . . that her brother could get life; to just stop fighting.
"THE COURT: All right. And did she say anything else?
"JUROR ONE: That was it.
"THE COURT: And was she doing anything physically when she was saying that?
"JUROR ONE: No, . . . the other girl just grabbed him, and they walked away.
"THE COURT: Did you hear anything else more specifically than what she said?
"JUROR ONE: No. That's it.
"THE COURT: And what was your thought as you were listening to all of this?
"JUROR ONE. . . . I was trying . . . not to listen. I was just trying to get as far as - I didn't want to get hurt.
"THE COURT: I'm sorry?
"JUROR ONE: I just kind of walked away. I wasn't really trying to hear.
"THE COURT: Did you say that you didn't want to get hurt?
"JUROR ONE: Yeah, if something happened[.] [S]o I just kind of moved . . . to the side.
"THE COURT: So you had some concern about your own safety?
"JUROR ONE: Yeah.
"THE COURT: And the people that were engaged in all of this . . . I think you said earlier . . . you've been seeing inside the courtroom?
"JUROR ONE: Correct.
"THE COURT: Do you still have a concern for your own safety?
"JUROR ONE: Well, kind of, because I was out there.
"THE COURT: Do you fear that because you were out there, that . . . could cause your own safety to be compromised?
"JUROR ONE: Well, yeah, because I was pretty much there from when it started.
"THE COURT: Did you talk about what you saw and heard during this altercation with any of the other jurors?
"JUROR ONE: No. They just asked me what happened; I just told them that they were arguing, and I kind of separated from them; I wasn't paying attention.
"THE COURT: I'm sorry. You said what?
"JUROR ONE: Yeah. They asked me what happened, and I just stated that they started arguing, and . . . I didn't pay attention; I scooted to the side.
"THE COURT: And were there other jurors out there while all this was going on?
"JUROR ONE: I don't think so.
"[¶] . . . . [¶]
"THE COURT: All right. And let me ask you this, and I want you to . . . be absolutely honest with me: Is there anything about what you saw and heard that would affect your ability to [give] a fair trial to everybody here today? Honest answer.
"JUROR ONE: I'm not sure, because . . . I'm afraid because I was out there, so I couldn't - I could try.
"THE COURT: All right. What . . . are you afraid might happen to you?
"JUROR ONE: Just anything could happen; . . . because I was out there. Everybody . . . seen me[.] [S]o if anything happened to me, [I'm] just afraid for my safety.
"THE COURT: And you think that . . . might have some bearing on your ability to render a fair judgment in this case.
"JUROR ONE: I don't think so.
"THE COURT: Okay. And it's a tough question, and I know you are sort of on the spot here; I'll be talking to some of the other jurors as well; you are not the only one. I just need to know whether or not you can give a fair trial to the prosecution and the defendants here, or if your decision-making in this case is now going to be colored by . . . what happened outside.
"JUROR ONE: I can give a fair trial.
"THE COURT: All right. I'm going to let the attorneys ask you a couple of questions, if they choose to, but are you assuring me that you can be fair and give a just verdict in this case?
"JUROR ONE: Yeah.
"[¶] . . . . [¶]
"[Prosecutor]: Are you able to just separate . . . what happened outside and not bring that into your mind when you are deliberating on this case, and just base it on what you heard in this case? . . . .
"A Yeah.
"Q You can set that apart from whatever happened out there, whatever you saw and heard from hearing the evidence?
"A Yeah, I could try.
"Q Okay, that's all we're asking. You feel like you could?
"A Yeah.
"[¶] . . . . [¶]
"[Co-defendant Sellers's counsel]: . . . [D]id it seem like there were two different sides, two different crowds of people that were arguing?
"A Yeah.
"Q Did it seem like one side was on one side of the courtroom, and one side was on the other?
"A Yes.
"Q Okay. . . . [A]re you afraid that if you make a verdict one way or the other, that either side may come after you?
"A Yeah.
"Q Tell me about that.
"A Well, cause they seen me.
"Q . . . [G]o ahead [and] finish the sentence.
"A When you say 'guilty' and they recognize me, they're here every day. If I say 'not guilty', they don't come after me. I'm guessing; I'm not sure.
"Q Are you afraid that if you render a not guilty verdict in favor of my client, that somebody might hurt you?
"A Could happen; I'm not sure.
"Q Sure, but, . . . what we need to know is, if your concern is going to affect your ability to go back in there and say, one way or another, guilty or not guilty, and we want to know if that's going to affect [sic] you.
"A I don't think so.
"Q You think you can do this?
"A I can try.
"Q Okay. Because is there anything that you can think would make you more comfortable about sitting on the jury, . . . you don't need anything . . . to be more comfortable to sit and to finish this case out?
"A No, I'm fine.
"Q You think you can do this?
"A I think so.
"[¶] . . . . [¶]
"[Defendant's counsel]: Yes. [Juror No. 1], you mentioned something about a sister?
"A I'm guessing that's his sister because he said, 'My brother is — his life is on the line'.
"Q And so whose sister do you think that is? Mr. Dixon's sister?
"A (Nods).
"Q Now, you said that it looked like sort of two different sides were going at it?
"A Correct.
"Q And did one side appear to you to be the aggressors?
"A . . . . It was both sides that were aggressive.
"Q Did you see one side that started it?
"A No. When they walked out there, they were already arguing.
[¶] . . . . [¶]
"Q You have a fear that no matter what verdict you render, the other side might retaliate against you?
"A I just don't want nothing to happen to me.
[¶] . . . . [¶]
"Q No, of course; nobody wants anything bad to happen to you[.] [B]ut do you feel like you're in a no-win situation because no matter which way you come down on the case
"A Yes, sort of.
"Q -- the other side is going to be mad at you?
"A Um-hum.
"Q And . . . they have identified you as a juror[.] [S]o you've been sitting in Court here[.] [S]o you know that they know you are a juror?
"A Yes. Correct.
"[¶] . . . . [¶]
"Q . . . [D]o you feel that one side or another is violence-prone, or is that what makes you more apprehensive about your safety?
"A Yeah.
"Q So you feel like these are violent people?
"A Well, yeah, because there was some cops everywhere and they didn't really care about arguing.
"Q So do you feel like there were people in [defendant's] family who are violent people who might retaliate against you?
"A No, I'm not saying they're all violent.
"[¶] . . . . [¶]
"Q And you said that you would try to not let this affect your deliberations?
"A Correct.
"Q Do you have . . . to struggle in order to do that?
"A Kind of.
"[¶] . . . . [¶]
"Q Do [you] feel that anything you saw outside would cause you to feel more negatively toward [defendant] [or cause] you to have difficulty with presuming him innocent in this case?
"A No."
c. Defendant's motion to discharge Juror No. 1
After the trial court and counsel finished questioning the jurors, the court invited counsel to state their views about the jurors' comments. The prosecutor observed that all jurors had agreed the incident would have no effect on their ability to be fair, and she asked that they all be retained. Defendant's counsel asked the court to discharge Juror No. 1. After counsel stated their opposing views, the trial court excused the jurors for the day, and requested further argument.
The prosecutor opposed discharging Juror No. 1 because the juror said he had not paid attention to the dispute, had moved away when it began, and had only gathered from the remarks he overheard that people watching the trial were divided into two factions, with one side appearing to support defendant and another group behind the prosecution. Although Juror No. 1 expressed a concern for his own safety, the prosecutor acknowledged, other jurors who had not witnessed the incident also expressed safety concerns. Fear alone did not provide a sufficient basis to discharge a juror, the prosecutor contended, and here Juror No. 1 had assured the judge, "I can give a fair trial." He also specifically told defense counsel, the prosecutor noted, that he would have no difficulty presuming defendant was innocent.
Unconvinced, defendant's counsel renewed her request that the court discharge Juror No. 1. Observing that Juror No. 1 was the only juror who witnessed the altercation, and the only one who expressed concern about possible retaliation, defense counsel maintained Juror No. 1 also "expressed the strongest fear," and she questioned his ability to deliberate fairly or impartially. The prosecutor disagreed. Pointing out that five jurors expressed safety concerns, she contended two of the alternate jurors had seemed more fearful than Juror No. 1. In deciding whether to discharge a juror, the prosecutor observed, the question was whether the juror could be fair, not whether the juror harbored any fear, and Juror No. 1 had advised the court he could be fair.
When questioned, Alternate Juror No. 2 reported she had observed 10 to 12 people, including a couple of bailiffs, running to see something that may have been happening outside, had recognized seven or eight of the individuals as people who had been observing the trial, and had felt somewhat concerned for herself, as she had "to walk up and down [the courthouse] hall every day amongst those people." Alternate Juror No. 3 had not herself observed anything, but confessed she "felt a little nervous" and "a little" concern for her own safety after other jurors said there had been some yelling and the bailiff confirmed there had been an incident. Both assured the trial court they could be fair if asked to decide the matter, however, and their responses are not cited as a basis for this appeal.
Co-defendant Sellers's counsel then noted that, when defendant Dixon's counsel had asked Juror No. 1 whether one of the factions in the altercation appeared to be the aggressor, Juror No. 1 had gestured with the microphone, pointing at defendant Dixon, as if he were identifying someone who had committed a crime. Counsel also suggested that Juror No. 1's concern must have been considerable for him, as a man, who was "trying to be brave and strong," to remark in open court that he felt afraid. Having personally witnessed a potentially volatile altercation, during which a deputy had to display his weapon, and having observed the audience dividing into two sides in the courtroom, counsel contended, Juror No. 1's fear might "spill-over" creating a prejudicial effect for defendant Sellers.
After the parties concluded their arguments, the trial judge observed that, while a number of jurors, including Juror No. 1, had expressed safety concerns, only Juror No. 1 had witnessed the incident. Advising that she would research the standard for discharging a juror for cause, the judge asked counsel to be prepared to complete their arguments the next morning, stating she would enter a ruling then.
d. Second interview with Juror No. 1
The next morning, out of the jury's presence, the trial judge advised counsel of the results of the court's research regarding the standard for discharging a juror for cause. Noting that Juror No. 1, by then, had had opportunity to rest, the judge then announced she planned to interview him a second time, to explain again the "tasks and responsibilities" of a juror, ask whether he was able to perform those duties, and then "accept whatever statement" he made in response. As neither counsel objected, Juror No. 1 was summoned and the following exchange occurred:
"THE COURT: I have just met with the Sergeant in charge of the security of the courthouse and talked with him about enhancing security, to have additional bailiffs available to meet the jurors when they arrive in the morning, to accompany them out of the building when they leave, if they would like to have someone accompany them, and to essentially enhance the security of this process.
"Yesterday, you expressed concerns regarding your safety, and now that some time has passed and you had a chance to sleep on it, I wanted to touch base with you again to see how you were feeling about all of this[.] [S]o what are your thoughts at this point?
"JUROR NUMBER ONE: Fine.
"THE COURT: When you were going through the jury selection process, I explained to the prospective jurors what the role of a juror is, and I wanted to discuss that with you to find out if you feel that you can fulfill that role. The jury must listen to the witnesses that testify, look at the exhibits and basically receive evidence in trying to decide what happened. The jury must decide what the facts of the case are, if they're able to do that. After the jury has decided what the facts of the case are, then the jury applies the law to those facts[,] . . . the law that I give you[.] [A]nd in that way, you arrive at your verdict.
"So you will have to go into the jury deliberation room once all the evidence has been received and you've heard the arguments of the attorneys and I give you the law, and you deliberate with the other jurors and try to reach a just verdict based on the evidence that's been presented[.] [S]o those are the tasks that you would have to perform as a juror, if you continue on in this trial.
"Do you feel at this time that you are able to fulfill those roles and do those tasks?
"JUROR NUMBER ONE: Yes.
"THE COURT: And do you still have concerns regarding your security and safety?
"JUROR NUMBER ONE: No. I'm fine.
"THE COURT: And so the things that happened yesterday will not impede your ability to function as a juror and to do the things that I told you you need to do?
"JUROR NUMBER ONE: No. I'm fine.
"THE COURT: All right. And you still feel that you can give all parties in this trial a fair trial?
"JUROR NUMBER ONE: Yes."
The trial judge inquired whether counsel wished to ask any further questions of Juror No. 1, and they declined.
e. The trial court's findings
When the questioning was concluded, the trial judge stated that she was satisfied Juror No. 1 could perform his duties as juror, and she excused him. The judge then allowed counsel another opportunity to present argument. Both defense counsel again requested that Juror No. 1 be discharged, and the prosecutor opposed the motion.
After hearing the parties' arguments, the judge stated her "express finding that [Juror No. 1] [was] able to perform his duties." The judge said she made this determination "taking into consideration [the juror's] comments and demeanor [the day before], as well as his comments and demeanor [that morning]." "I am satisfied," the judge stated, "that [Juror No. 1] [is] calmer today. I watched him closely; I listened to his answers, and there's no basis for this Court to find that he is unable to perform his duties. [¶] I am satisfied that he is able to do that and will deny [the] request to remove him from this jury."
2. Analysis
a. General legal principles
"A criminal defendant has a constitutional right to an impartial jury." (People v. Wilson (2008) 44 Cal.4th 758, 822 (Wilson); see U.S. Const., 6th & 14th Amends.) " 'An impartial jury is one in which no member has been improperly influenced [citations] and every member is " ' "capable and willing to decide the case solely on the evidence before it" ' " [citations].' [Citations.]" (People v. Harris (2008) 43 Cal.4th 1269, 1303 (Harris).) Consistent with this constitutional right, section 1089 authorizes a trial court to discharge a sworn juror "if, among other reasons, 'good cause' is shown that the juror is 'unable to perform [his] duty.' " (People v. Farnam (2002) 28 Cal.4th 107, 140-141, citing § 1089.) " 'The . . . ultimate decision whether to retain or discharge a juror[] rests within the sound discretion of the trial court. [Citation.]' " (People v. Sattiewhite (2014) 59 Cal.4th 446, 486; but see People v. Barnwell (2007) 41 Cal.4th 1038, 1052 [Because it is a serious matter to remove a juror, trial courts should exercise discretion to do so "with great care"].) Ordinarily, we " 'will not presume bias, and will uphold the trial court's exercise of discretion on whether a seated juror should be discharged for good cause under section 1089 if supported by substantial evidence. [Citation.]' [Citations.]" (Farnam, supra, 28 Cal.4th at p. 141; see also, People v. Earp (1999) 20 Cal.4th 826, 892 [We will uphold a trial court's decision on this issue unless it " ' "falls outside the bounds of reason" ' "].)
Section 1089 provides in pertinent part as follows: "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors." (Italics added.)
b. The Remmer presumption
Citing Remmer v. U.S. (1954) 347 U.S. 227 (Remmer I) and a number of Ninth Circuit Court of Appeals' decisions interpreting it, defendant contends a presumption of prejudice should be applied here. In considering this contention, we observe that the referenced line of decisions actually commenced with Mattox v. United States (1892) 146 U.S. 140. There the United States Supreme Court held that "[p]rivate communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear." (Id. at p. 150.) "Subsequently, in [Remmer I], the Court established that any 'private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury' [was] deemed 'presumptively prejudicial' and placed a heavy burden on the government to rebut the presumption by proving that the error was harmless" to the defendant. (U.S. v. Rutherford (9th Cir. 2004) 371 F.3d 634, 641.) In a later decision in the same case, the Court reaffirmed, "it is the law's objective to guard jealously the sanctity of the jury's right to operate as freely as possible from outside unauthorized intrusions purposefully made." (Remmer v. United States (1956) 350 U.S. 377, 382 (Remmer II).)
"Since the Remmer cases, it has been clear that jury tampering creates a presumption of prejudice and that the government carries the heavy burden of rebutting that presumption." (U.S. v. Henley (9th Cir. 2001) 238 F.3d 1111, 1115 (Henley).) The Ninth Circuit Court of Appeals has explained, "allegations of jury tampering are qualitatively more prejudicial than other kinds of extraneous influence on the jury's deliberations: 'Because jury tampering cuts to the heart of the Sixth Amendment's promise of a fair trial, we treat jury tampering cases very differently from other cases of jury misconduct.' " (Ibid.) More recently, the Ninth Circuit stated, "[w]hen there has been improper contact with a juror or any form of jury tampering—whether direct or indirect—we apply a presumption of prejudice. [Citations.]" (U.S. v. Simtob (9th Cir. 2007) 485 F.3d 1058, 1064 (Simtob).)
In Simtob, the Ninth Circuit applied a presumption of prejudice where a juror alleged the defendant had been "eye-balling" the juror on the first day of trial and the juror felt threatened. (Simtob, supra, 485 F.3d at pp. 1061, 1064) The court concluded this qualified as " 'indirect coercive contacts,' " affecting the juror's peace of mind. (Id. at p. 1064.) In U.S. v. Rutherford, supra, 371 F.3d 634, the Ninth Circuit also determined the presumption might apply where there was "unauthorized conduct or contact" with jurors, even if not intended to influence or prejudice jurors, if the conduct or contact " 'raise[d] a risk of influencing the verdict' [citation], or 'had an adverse effect on the deliberations,' [citation]." (Id. at pp. 642, 644.) There, the unauthorized conduct or contact took the form of as many as 10 federal agents regularly attending the tax evasion trial and allegedly glaring at jurors in a manner that some found intimidating. (Id. at pp. 638, 644 & fn. 8 [remanding for a further evidentiary hearing to determine whether the presumption should apply and whether the jurors were adversely influenced].)
Although defendant does not acknowledge it in his opening appellate brief, California state court decisions also generally apply a rebuttable presumption of prejudice where a nonjuror has "tampering contact or communication with a sitting juror." (In re Hamilton (1999) 20 Cal.4th 273, 295 (Hamilton).) In People v. Federico (1981) 127 Cal.App.3d 20 (Federico), the Court of Appeal reaffirmed that the Remmer presumption applied where there was "a showing of attempts by outsiders to influence jurors." (Id. at p. 38, italics added.) "[W]hen the alleged misconduct involves an unauthorized communication with or by a juror," however, Federico observed, "the presumption does not arise unless there is a showing that the content of the communication was about the matter pending before the jury, i.e., the guilt or innocence of the defendant. [Citations.]" (Ibid.) Quoting Federico with approval, in Hamilton, supra, the California Supreme Court subsequently rejected a claim of jury tampering, declining to apply a presumption of prejudice, because the incident there "included no 'communication' about the trial." (Hamilton, supra, at p. 306.) In fact, the court observed the alleged incident included no verbal communication at all. (Ibid.) Rather, a juror there briefly observed the defendant's sister and the sister's boyfriend parked in an alley outside the juror's home during the trial. (Id. at pp. 283, 304, 306.) The two reportedly did not approach the juror or attempt to speak with her, and drove away rapidly on realizing they had been seen. (Id. at p. 306.) The Supreme Court concluded the claimed conduct did not rise to the threshold required to trigger the jury tampering presumption of prejudice. (Id. at p. 305.)
Defendant here describes Juror No. 1's presence during the brief altercation outside the courthouse between two groups of relatives who had been watching the trial as "accidental," and acknowledges there is no issue here of "jury tampering or unauthorized communications with jurors." Because, however, at least initially, the incident affected Juror No. 1's peace of mind, causing him subjective concerns about his own safety, defendant contends the incident should be treated like an "indirect coercive contact" and the presumption of prejudice applied. Defendant appears essentially to be contending that any external event may suffice to require application of the Remmer I presumption of prejudice, even if there was no conduct or contact aimed at a juror—and no evidence anyone intended to influence a juror—if the external event raises a concern for a juror about his or her own personal safety. We do not read the case law so broadly.
All of the federal case law that defendant cites involved conduct that, directly or indirectly, targeted one or more jurors. (See Remmer I, supra, 347 U.S. at p. 228 [third party directly contacted a juror during trial appearing to offer a bribe]; Simtob, supra, 485 F.3d at p. 1064 [the defendant had "indirect coercive" contacts with a juror during trial by "eye-balling" the juror]; U.S. v. Rutherford, supra, 371 F.3d at pp. 638, 644 & fn. 8 [federal agents were "glaring" at jurors during trial]; Henley, supra, 238 F.3d at pp. 1112-1113 [the defendant and a former juror, acting as an intermediary, attempted to bribe a sitting juror]; U.S. v. Angulo (9th Cir. 1993) 4 F.3d 843, 846 [an anonymous telephone caller stated to juror during trial, "I know where you live"]; see also U.S. v. Blitch (7th Cir. 2010) 622 F.3d 658, 667-668 [declining to decide whether a presumption of prejudice applied where jurors expressed concerned about the defendants having access to their questionnaires in a drug trafficking case].) Here, in contrast, there is no suggestion anyone involved in the brief altercation outside the courthouse targeted their conduct at, or attempted to communicate—verbally or nonverbally, directly or indirectly—with Juror No. 1. There is no suggestion any participant attempted to speak with, approached, or stared at Juror No. 1 during or after the altercation. The incident appears more analogous to Hamilton, supra, in which the California Supreme Court concluded a juror's "brief, nonverbal observation" during trial of two people connected to the defendant outside the juror's home did not rise to the threshold required to trigger the jury tampering presumption of prejudice. (Hamilton, supra, 20 Cal.4th at p. 306.) We, therefore, conclude the presumption of prejudice did not arise.
" '[A]lthough persuasive,' " decisions of intermediate federal appellate courts " 'are not binding on state courts. [Citation.]' " (People v. Zapien (1993) 4 Cal.4th 929, 989.)
c. Prejudice
Even if this were not the case, however, "[a]ny presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant. [Citations.] [¶] The standard is a pragmatic one, mindful of the 'day-to-day realities of courtroom life' [citation] and of society's strong competing interest in the stability of criminal verdicts [citations]." (Hamilton, supra, 20 Cal.4th at p. 296; see also Harris, supra, 43 Cal.4th at p. 1303 [" 'whether an individual verdict must be overturned for jury misconduct or irregularity " ' "is resolved by reference to the substantial likelihood test, an objective standard" ' " ' "].) As our Supreme Court has affirmed, "[i]t is 'virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.' [Citations.]" (Hamilton, supra, at p. 296; accord In re Price (2011) 51 Cal.4th 547, 560 [" 'due process does not require a new trial every time a juror has been placed in a potentially compromising situation' "], quoting Smith v. Phillips (1982) 455 U.S. 209, 217.)
Citing Ninth Circuit case law, defendant contends the presumption of prejudice may only be rebutted by a showing that there was "no reasonable possibility" the incident affected Juror No. 1's "freedom of action" as a juror (see, e.g., Henley, supra, 238 F.3d at p. 1117), and that the substantial-likelihood-of-actual-bias test does not apply to a claim of federal constitutional error. To bolster this argument, defendant attempts to distinguish People v. Danks (2004) 32 Cal.4th 269, 303 (Danks), in which the California Supreme Court applied the latter test. But our Supreme Court has consistently adhered to the substantial likelihood standard in cases other than Danks, supra, often affirming the standard in conjunction with Remmer I (see, e.g., People v. Foster (2010) 50 Cal.4th 1301, 1342; People v. Lewis (2009) 46 Cal.4th 1255, 1309), and has rejected the notion that it is inconsistent with federal law (People v. Loker (2008) 44 Cal.4th 691, 747). Accordingly, we reject defendant's claim on this point. (People v. Johnson (2012) 53 Cal.4th 519, 528 [intermediate state appellate courts are bound by decisions of the California Supreme Court].) Even if this were not true, the reasoning stated below would apply equally under the standard that defendant proposes.
Here, the record does not reflect a substantial likelihood that Juror No. 1 harbored an actual bias against defendant. "[A]ctual bias [is] defined as a state of mind that would prevent that person from acting impartially and without prejudice to the substantial rights of any party. [Citation.] On review of a trial court's ruling, if the prospective juror's statements are equivocal or conflicting, that court's determination of the person's state of mind is binding." (People v. Hillhouse (2002) 27 Cal.4th 469, 488 (Hillhouse); accord People v. Seaton (2001) 26 Cal.4th 598, 637.) Deference to the trial court is appropriate because it "is in the unique position of assessing demeanor, tone, and credibility firsthand—factors of 'critical importance in assessing the attitude and qualifications of potential jurors.' (Uttecht v. Brown (2007) 551 U.S. 1, 9.)" (People v. DePriest (2007) 42 Cal.4th 1, 21; see also Hillhouse, supra, at p. 488 [The trial court "can judge the person's sincerity and actual state of mind far more reliably than an appellate court reviewing only a cold transcript"].)
Citing cases from other jurisdictions, defendant suggests a trial court must excuse jurors who provide equivocal or conflicting statements. But the cases defendant cites are inapposite. (See, e.g., U.S. v. Nelson (2d Cir. 2002) 277 F.3d 164, 202-203 [where a prospective juror admits preconceived opinions that might influence his decision, the juror must unambiguously state a willingness to decide the case based solely on the evidence]; People v. Burdo (1998) 682 N.Y.S.2d 681, 683-684 [same]; Price v. State (Fla. 1989) 538 So.2d 486, 488-489 [same]; Jerrel v. State (Alaska 1988) 756 P.2d 301, 304-305 [same].) Additionally, as noted, we are bound by the decisions of our state Supreme Court, and Juror No. 1 did unequivocally state he could be fair.
In this case, some of Juror No. 1's initial statements were equivocal and conflicting. In his first interview, Juror No. 1 repeatedly said he thought he could be fair. But he also conceded some uncertainty, noting he had observed the altercation, the participants had seen him, they seemed like violent people as they were not deterred from arguing by the presence of security personnel, and he feared either side might come after him depending on the verdict. On the other hand, Juror No. 1 volunteered that he did not assume everyone in defendant's family was violent and, at the conclusion of the first interview, he said unequivocally he would have no difficulty presuming defendant was innocent. The following day, after the trial judge explained to him there would be enhanced security for jurors, and also explained again the responsibilities of jury service, Juror No. 1 said he felt able to perform those responsibilities and had no further safety concerns. On this record, the trial court could reasonably conclude the juror was trying to be honest in admitting his initial fears, but was also sincerely willing and able to listen to the evidence and instructions, and to tender an impartial verdict. Because his statements were somewhat conflicting, we defer to the trial court's determination of his state of mind. The record in this case does not indicate a substantial likelihood that Juror No. 1 was actually biased against defendant.
d. The trial court's inquiry
Defendant contends the trial court sought to avoid using an alternate juror by waiting a day to rule on the motion to discharge Juror No. 1, and then attempting to rehabilitate Juror No. 1 using leading questions intended to elicit his agreement that he could act impartially. Citing a plethora of decisions from other jurisdictions, defendant maintains Juror No. 1 was not successfully rehabilitated and the trial court committed reversible error in applying these techniques to extract answers supporting denial of the motion to discharge him. We are unpersuaded.
Defendant cites no evidence in the record supporting his contention that the trial court had an ulterior motive in waiting until the following morning to rule on his motion, and the contention is contradicted by the record. As defendant acknowledges elsewhere in his appellate briefs, and as noted above, after completing the first interview of Juror No. 1, and hearing from counsel, the trial judge stated she intended to research the "good cause" standard for discharging a juror, would discuss her findings with counsel the next morning, and then would enter a ruling. The next morning, as promised, the trial judge shared her research results with counsel, advised that she planned to question Juror No. 1 further about his ability to act impartially, and said she would accept whatever he said in response. Offered the opportunity to present further argument, all counsel declined.
Defendant's contention that the trial judge relied exclusively on leading questions during her second interview of Juror No. 1 also is inaccurate. In fact, the trial judge began her second interview with Juror No. 1 by describing to him the enhanced juror security measures she had requested, noting the safety concerns he had expressed the day before, and then asking an open-ended question, "[S]o what are your thoughts at this point?" After Juror No. 1 said simply, "Fine," the judge explained the duties of jury service, and asked, "Do you feel at this time you are able to fulfill those roles and do those tasks?" Juror No. 1 answered unequivocally, "Yes." Following up, the judge asked "[D]o you still have concerns regarding your security and safety?" Juror No. 1 answered unequivocally again, "No. I'm fine." Viewed in context, and considering the trial judge's exhortation to Juror No. 1 the day before that she needed an "[h]onest answer" on this topic, these were not leading questions. (See, e.g., Harris, supra, 43 Cal.4th at p. 1285 ["Questions calling for a 'yes' or 'no' answer are not leading unless they are unduly suggestive under the circumstances"].) Although the judge then concluded with two final questions that may fairly be characterized as leading (see, e.g., People v. Pearson (2013) 56 Cal.4th 393, 426)—"And so the things that happened yesterday will not impede your ability to function as a juror . . . ."; "And you still feel that you can give all parties . . . a fair trial?"—those inquiries did not undercut or negate the prior exchanges.
Taken as a whole, we discern nothing inappropriate about the trial court's inquiry into Juror No. 1's ability to act impartially, and we defer to the trial court's "determination that further questioning would not be fruitful." (People v. Whalen (2013) 56 Cal.4th 1, 40, disapproved on other grounds in People v. Romero and Self (2015) 62 Cal.4th 1, 44, fn. 17.) As defense counsel did not object to the trial court's conducting a second interview with Juror No. 1, did not object to the form of the judge's questioning during the second interview, and declined the trial court's invitation to question Juror No. 1 herself after the judge completed her examination, for example, to explore whether Juror No. 1 had any remaining uncertainty about his ability to be impartial, defendant in any event forfeited his claims regarding the second interview. (See, e.g., People v. Salazar (2016) 63 Cal.4th 214, 236 [" 'a defendant may not challenge on appeal alleged shortcomings in the trial court's voir dire of the prospective jurors when the defendant, having had the opportunity to alert the trial court to the supposed problem, failed to do so' "].)
Nothing in the decisions of other jurisdictions that defendant cites convinces us to the contrary; the cited cases are distinguishable, involving clearer evidence of actual bias and suggesting a greater reliance on leading questions or an inadequate inquiry. (See, e.g., Coggins v. State (Fla. 1996) 677 So.2d 926, 928 [prospective juror candidly acknowledged his family's prior criminal victimization would affect his thought processes as a juror, and none of his responses on the second day of voir dire dispelled this concern]; Price v. State, supra, 538 So.2d at pp. 488-489 [after prospective juror disclosed personal relationship with the murder victim, her subsequent responses to the court's leading questions did not alone suffice to demonstrate she could be impartial]; Scott v. Com. (Va.App. 2011) 708 S.E.2d 440, 443-444 [prospective juror's " 'unequivocal testimony of bias' " could not be overcome by his subsequent " 'assent to persuasive suggestions' "]; State v. Braunreiter (Mont. 2008) 185 P.3d 1024, 1026-1028 [prospective juror's statements revealing a "fixed state of mind" that a defendant must prove his innocence were not overcome by the trial court's "coaxed recantations"]; Marsch v. Com. (Ky. 1987) 743 S.W.2d 830, 833-834 [where prospective jurors possessed information about the case, for example, by virtue of marriage to the deputy coroner, or had a relationship with the victim or his family, their responses to leading questions would not alone suffice to dispel doubts as to their impartiality]; Guoth v. Hamilton (Ga.App. 2005) 615 S.E.2d 239, 242-243 [prospective juror's experience working in the same hospital as the defendant, her "close identification with the employees who told her negative things" about the defendant's performance as a doctor, "and her admitted familiarity with and distrust of [the defendant]" raised inevitable concerns about bias that were not dispelled by the "repeated, leading questions" of the plaintiff's counsel and the trial court].)
e. Pre-trial voir dire of Juror No. 1
Finally, defendant contends that we must consider Juror No. 1's reaction to witnessing the midtrial altercation—and we must evaluate the trial court's ruling on his ability to serve impartially thereafter—keeping in mind responses that Juror No. 1 gave earlier during voir dire. In the earlier exchange, Juror No. 1 acknowledged feeling "kind of . . . scared" to serve as a juror in this case because he lived in the city where the events in question occurred. After responding to questions on an unrelated topic, Juror No. 1 gave the following answers to the following questions:
Although the voir dire transcript identified prospective jurors only by their assigned numbers and, once empaneled, the trial jurors were assigned different numbers, the parties agree that Juror No. 23 during voir dire became Juror No. 1 once the trial commenced, and we do not question their conclusion. For clarity, we will continue to refer to this individual as Juror No. 1.
"THE COURT: All right. And is there anything about [that unrelated topic] that would cause you to not be fair to one side or the other in this case?
"JUROR NUMBER [1]: No.
"THE COURT: Can you give both sides a fair trial?
"JUROR NUMBER [1]: Yeah.
"THE COURT: You hesitated for a nanosecond. As long as I've been doing this, I notice these little hesitations. Was there something you were thinking about that you need to tell us about?
"JUROR NUMBER [1]: No, because I live in Fairfield, and all this happened in Fairfield and I'm like, kind of, I guess, scared. I mean, I don't want them to recognize me or something if I am a juror.
"THE COURT: Okay. And that's a fair comment; so you are concerned with your own security?
"JUROR NUMBER [1]: Yeah.
"THE COURT: As you sit here now, are you reluctant to sit on this case?
"JUROR NUMBER [1]: Yeah.
"THE COURT: Is it for that reason?
"JUROR NUMBER [1]: Yeah.
"THE COURT: Have you already made up your mind that [the defendants are] guilty of this crime?
"JUROR NUMBER [1]: Sort of, because they were there. Like you said, they didn't just pull them out of a hat.
"THE COURT: Did you understand the discussion that I just had with the gentleman seated next to you?
"JUROR NUMBER [1]: Yes.
"THE COURT: Did you see the distinction between what the police need to lawfully arrest somebody, and that is probable cause, versus what a jury needs to convict somebody, and that is proof beyond a reasonable doubt; do you see the distinction between those two standards?
"JUROR NUMBER [1]: Yes.
"THE COURT: And at this time, is it your feeling that if the police found probable cause to arrest somebody, that means there's proof beyond a reasonable doubt that they're guilty?
"JUROR NUMBER [1]: Yes.
"THE COURT: You shook your head 'no,' then you said 'yes,' so what's your answer to that? Why don't you speak your answer.
"JUROR NUMBER [1]: Can you say the question again?
"THE COURT: Sure. Do you believe that if the police had believed they had probable cause to arrest these gentlemen for those crimes, that that automatically means that there's proof beyond a reasonable doubt that they're guilty of the crime? Do you believe that that — that's so?
"JUROR NUMBER [1]: No.
"THE COURT: All right. Then as you sit here now, do you think you can give them both a fair trial?
"JUROR NUMBER [1]: Yes.
"THE COURT: And let me ask you this hypothetically: At the end of all the evidence, you are in there discussing the case with the jurors, I've given you the law, and after the deliberations, you conclude that the prosecutor has not met her burden; that the case has not been proven beyond a reasonable doubt, what would you[r] vote be?
"JUROR NUMBER [1]: Not guilty.
"THE COURT: Excuse me?
"JUROR NUMBER [1]: Not guilty.
"THE COURT: I can't hear you.
"JUROR NUMBER [1]: Not guilty.
"THE COURT: Okay. And so would you be able to adjudicate the case fairly, even though you say you are concerned about your safety?
After this exchange, defendant's counsel challenged Juror No. 1 for cause. Counsel contended Juror No. 1 had indicated this was "not the kind of case where he said he could be fair." The trial judge denied the challenge, stating that she believed Juror No. 1 had indicated he could give a fair trial.
Defendant contends that Juror No. 1's statements before the trial during voir dire, and during trial after seeing the altercation, revealed that Juror No. 1 had a continuing fear of potential retaliation for his jury service, which the trial court's increased security measures could not address, and that the trial court, therefore, was obligated to discharge him. We do not agree.
Our Supreme Court repeatedly has stated that a juror's fear, even fear of a defendant, does not alone establish bias or other grounds for discharge. (People v. Manibusan (2013) 58 Cal.4th 40, 56 [the defendant's claim—"that a juror's fear of a defendant establishes bias or other grounds for discharge—is faulty"]; People v. Navarette (2003) 30 Cal.4th 458, 500 [the fact a juror had "concerns about his family's safety and the safety of his property" did not necessarily mean the juror was biased].) Here, despite his fear, during voir dire Juror No. 1 affirmed he understood the difference between the probable cause standard required for an arrest and the reasonable doubt standard required for a conviction, and he told the court he would find the defendant not guilty if he later concluded the prosecutor had not met her burden. Although Juror No. 1 expressed safety concerns again after witnessing the midtrial altercation, he also stated unequivocally that he would not have difficulty presuming defendant to be innocent and, the following day, unequivocally assured the court he had no remaining concerns regarding his own safety. Stating that she had observed Juror No. 1 closely as he answered questions during both midtrial interviews, and taking his demeanor into account, the trial judge found no basis to conclude that he was biased. Even when combined with the voir dire exchange above, the record does not indicate a substantial likelihood that Juror No. 1 was actually biased against the defendant.
In light of our conclusion, we do not address the People's argument that there was no prejudice, even if the trial court did err, because there was overwhelming evidence of defendant's guilt.
B. Juror Misconduct
Defendant also contends the trial court violated his constitutional right to an impartial jury by denying his motion for a new trial after it was discovered that a juror had posted several remarks about jury service and the case on social media.
1. Background
At the beginning of the trial, on December 9, 2011, the judge admonished the jury: "During the trial, do no talk about the case or about any of the people or any subjects involved in this case with anyone, not even your family, friends, spiritual advisers or therapists. Do not share information about the case in writing, by E-mail, by telephone, or on the Internet or any other means of communication. [¶] You must not talk about these things with other jurors either, until you begin deliberating. [¶] . . . . [¶] Do not use the Internet in any way in connection with this case either on your own or as a group." (Italics added.) After giving other preliminary instructions, the trial judge returned to this point, telling jurors it was "so important": "You must not converse among yourselves or with anyone else on any subject connected with this trial except when all of the following conditions exist: Number one, the case has been submitted to you for your decision by the Court following arguments by counsel and jury instructions; number two, you are discussing the case with a fellow juror; and finally number three, all 12 jurors and no other persons are present in the jury deliberating room." (Italics added.)
The trial concluded about a month later, on January 6, 2012, and the jury returned a verdict the same day. More than a year later, on February 8, 2013, but before defendant was sentenced, his counsel filed a motion seeking release of juror identifying information, alleging that one of the jurors had commented on the Internet, on a social media account, about jury service and the case. After the court granted the motion, ordering the release to defense counsel of the juror's name and contact information, defendant's counsel filed a supplemental brief in support of his then-pending motion for a new trial, adding a claim of prejudicial juror misconduct. As support for the motion, counsel submitted copies of the juror's social media statements under seal. The statements included two remarks about jury service, which the juror apparently posted before he was seated as a juror in this matter: (1) "Oh, great. I get to go to Vallejo; lovely place"; and (2) "I am not annoyed about serving [as a juror,] I am annoyed that the trial would be [Wednesday, Thursday, Friday,] so I would be working 6 days a week for the entire month." The statements also included the following four remarks, apparently contained in a single online thread or conversation, which the juror posted during trial (the midtrial remarks): (1) "Tomorrow we get to watch a 4 hour 'movie' in court and I cant [sic] even bring popcorn[.] FML." (2) "[ "[Y]eah its [sic] interesting[.] [T]hey told us we only had around 5 more days but things are dragging. Its [sic] been a month now." (3) "After the trial is over I can tell people about it." (4) "I think if I talk about the trial[,] that's juror misconduct[,] and its [sic] more than I just get dismissed."
The trial court was unable to locate those documents after the appeal was filed. But the parties cite other documents in the record that quoted the postings, and we rely on those sources as well.
Defendant's motion for new trial advised the trial court that an authority on Internet slang defined "FML" as " 'F*** My Life.' "
Seeking a new trial based on juror misconduct, defendant argued the above statements revealed a negative attitude about the jury service venue, the anticipated trial length, and having to view evidence in court, suggesting bias. The People disagreed, contending there had been no misconduct, as the juror's remarks on social media did not disclose the criminal charges at issue in the case, did not identify any party, witness, or victim, did not describe the evidence, and did not suggest the juror had prejudged the defendant. The People also submitted the remarks reflected an apparent assumption on the juror's part that his posted statements were not "about the case," so did not violate the trial court's admonition, i.e., there was no intentional misconduct.
At the July 30, 2013 hearing on the motion for a new trial, the trial judge asked whether the parties thought an evidentiary hearing was needed. Observing there appeared to be no factual dispute, defense counsel indicated he was "comfortable" proceeding based on the documentary evidence alone (i.e., the social media postings), and saw no need to hear the juror's testimony. The People agreed, observing that the juror had been notified of the hearing and apparently had elected not to attend. The trial judge concurred with this approach, heard argument from the parties, and then ruled that the juror had expressly violated court instructions forbidding Internet communications about the case. But, the judge found the juror's communications were not prejudicial. The juror merely had expressed frustration with the pace of the proceedings, a sentiment that was not unusual, the judge observed, and this did not suffice to show defendant had been prejudiced. Eleven other jurors had voted with the juror to convict defendant, the judge noted, and she had not observed any sign of prejudice during the trial. Accordingly, the judge denied defendant's motion for a new trial.
At oral argument on the motion, and on appeal, defendant claims that Juror No. 1 was the person who posted the remarks on social media. Defendant points out that the four midtrial remarks were posted as part of a single online thread commencing on December 29, 2012, just a day after the judge told jurors the trial would likely last about a week longer than originally anticipated, and declined Juror No. 1's subsequent request to be excused for financial hardship. Juror No. 1 had requested to be excused because, he said, with the conclusion of the Christmas season, his employer no longer had evening work to offer him and he, therefore, was no longer being paid.
Although defendant does not support this allegation with any citation to the record, the People appear to agree. Accordingly, our analysis assumes the truth of the allegation.
2. Analysis
A trial court "may . . . grant a new trial" when "the jury has . . . been guilty of any misconduct by which a fair and due consideration of the case has been prevented . . . ." (§ 1181, subd. (3).) Where, as here, a trial court denies a motion for new trial based on undisputed facts, we consider the following two questions, applying a de novo standard of review: (1) Was there juror misconduct? And, if so (2) was the misconduct prejudicial? (People v. Vigil (2011) 191 Cal.App.4th 1474, 1483; see also People v. Ault (2004) 33 Cal.4th 1250, 1261.)
The trial court here specifically instructed jurors at the outset not to "share information about the case . . . on the Internet" and not to "converse . . . with anyone else on any subject connected with [the] trial." (See § 1122 [requiring those instructions].) The People acknowledge Juror No. 1 arguably disobeyed this instruction, committing misconduct by posting remarks about the trial on the Internet using a social media account, but they contend the alleged misconduct was not prejudicial.
"Juror misconduct raises a presumption of prejudice." (People v. Calles (2012) 209 Cal.App.4th 1200, 1211.) "This presumption aids parties who are barred by statute from establishing the actual prejudicial effect of the incident under scrutiny" (see Evid. Code, § 1150) "and accommodates the fact that the external circumstances of the incident are often themselves reliable indicators of underlying bias [citation]." (Hamilton, supra, 20 Cal.4th at p. 295.) "If a review of the entire record shows no substantial likelihood of juror bias, the presumption has been rebutted. [Citations.]" (People v. Cissna (2010) 182 Cal.App.4th 1105, 1116.) "[J]uror bias exists if there is a substantial likelihood that a juror's verdict was based on an improper outside influence, rather than on the evidence and instructions presented at trial, and the nature of the influence was detrimental to the defendant. [Citations.]" (Ibid.; see, e.g., People v. Polk (2010) 190 Cal.App.4th 1183, 1201 ["The disapproval of juror conversations with nonjurors derives largely from the risk the juror will gain information about the case that was not presented at trial"].)
Insofar as defendant contends the People could only rebut the presumption of prejudice by presenting new evidence, specifically the testimony of Juror No. 1, he is mistaken. (See, e.g., People v. Jackson (2016) 1 Cal.5th 269, 332 ["The presumption ' " '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' " ' "], italics added.) It is not clear to us in any case how Juror No. 1's testimony would assist determination of defendant's misconduct claim, given that, as defendant himself acknowledges, a juror's testimony about his or her mental processes in reaching a verdict would be inadmissible to challenge the verdict (Evid. Code, § 1150), and defendant's trial counsel here agreed Juror No. 1's testimony was not needed for determination of the misconduct claim.
In analogous circumstances, "[w]hen a criminal defendant attempts to undermine the validity of [a] verdict by claiming a juror violated the court's admonition not to speak to anyone connected to the case," our Supreme Court has "held that trivial violations of this rule do not require reversal because no prejudice to the defendant resulted. For example, in [People v.] Stewart [2004] 33 Cal.4th [425], a sitting juror approached the defendant's girlfriend during a break in the trial and told her she was a very attractive woman. (Id. at p. 509.) [The Supreme Court] affirmed the trial court's conclusion that the misconduct was of a ' "trifling nature" ' and did not warrant a new trial. (Id. at p. 510.)" (Wilson, supra, 44 Cal.4th at p.839.) The court reached a similar conclusion in Wilson, determining that one juror's brief rhetorical remark to another juror during a break, which was not an "obvious attempt to persuade anyone" and which none of the other jurors reported hearing, was a "trivial" violation and not prejudicial. (Id. at pp. 839-840; see also, e.g., People v. Avila (2006) 38 Cal.4th 491, 605 [alleged juror statements disparaging defense counsel, the court, and the criminal justice system were not material because they had no bearing on the defendant's guilt or innocence, so "did not create a strong possibility of prejudicial misconduct"]; Juror Number One v. Superior Court (2012) 206 Cal.App.4th 854, 870 (conc. opn. of Mauro, J.) ["juror conversations involving peripheral matters, rather than the issues to be resolved at trial, are generally regarded as nonprejudicial"].)
" 'Among the factors to be considered when determining whether the presumption of prejudice has been rebutted are "the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued." ' ([Citation], italics added.)" (Wilson, supra, 44 Cal.4th at p. 839.) A juror who discusses the merits of the case with a nonjuror during trial engages in serious misconduct. (See, e.g., In re Hitchings (1993) 6 Cal.4th 97, 117-118 [trial court credited witness testimony that juror advocated castration as an appropriate penalty for the defendant during midtrial conversation with a coworker]; People v. Pierce (1979) 24 Cal.3d 199, 207 [during trial, a juror spoke to his neighbor, who was a police officer and prosecution witness, about the evidence and the district attorney's method of presenting his case]; People v. Cissna, supra, 182 Cal.App.4th at p. 1118 [a juror's "deliberative-type discussions" with a friend about the merits of the case "every single day of the trial" created a substantial likelihood of bias].)
As the People note, there is no allegation Juror No. 1 mentioned or discussed the merits of the case. He is not alleged to have identified the parties, disclosed or discussed the criminal charges, shared factual allegations, expressed an opinion on the evidence, stated a predisposition in deciding the case, or received or been influenced by outside material. We agree with the People that our Supreme Court's decision in People v. Linton (2013) 56 Cal.4th 1146 is instructive. There a juror admitted she made one comment using general terms, in "venting" to her husband during trial, that she did not understand the reaction a witness reportedly had to an event and would not herself have reacted similarly. (Id. at pp. 1192-1193.) The juror's husband did not respond, the juror did not disclose any case-related facts, and the two never discussed the case. (Ibid.) The trial court implicitly found the remark did not qualify as misconduct, and the Supreme Court agreed that the single instance of venting about the "unspecified reaction of an unspecified person", without any substantive "back and forth 'discussion' " did not qualify as misconduct. (Id. at p. 1195, citing Danks, supra, 32 Cal.4th at p. 304 [juror's "expression to her husband of her stress in making a decision in the case did not amount to misconduct"].) The incident did not expose the juror to "extraneous facts, information or opinion from her husband," the court reasoned, nor indicate "she prejudged the case." (People v. Linton, supra, 56 Cal.4th at p. 1195.)
Here Juror No. 1 made four short remarks as part of a single thread or online conversation during the trial. Two of the remarks shared information about the trial. In the first, Juror No. 1 wrote that he would "get to watch a 4 hour 'movie' in court" the next day, and bemoaned the fact he could not "bring popcorn." Defendant contends that by inserting the term "FML" after this remark, Juror No. 1 demonstrated "strong" "disgust." Viewed in context, however, we think the term more accurately appeared to function as punctuation, emphasizing the wry joking nature of the remark. (See, e.g., Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1162-1163 ["the Internet forum promotes a looser, more relaxed communication style"].) In the second remark, Juror No. 1 shared that the trial then had been underway for a month, was projected to last about "5 more days," and "things [were] dragging." Both comments might fairly be described as mild venting. (See, e.g., People v. Hart (1999) 20 Cal.4th 546, 597 [in lengthy trials it is not unusual for jurors to express concerns about concluding a case within the trial court's original time estimate].) In his final two remarks, Juror No. 1 explained that he could not "tell people [more] about" the trial until it ended.
Defendant contends that, by posting remarks on social media, Juror No. 1 demonstrated "contempt" for his jury service and the court's instructions. We cannot agree. The juror's first two remarks were short, neutral in tone, and restricted to peripheral matters; in his further remarks, he declined to say more about the case, advising that he was prohibited from doing so. Rather than demonstrating contempt, this suggests to us that Juror No. 1 considered his remarks innocuous, had the trial court's instructions in mind, and did not intend to say anything substantive that clearly would be a violation. Although Juror No. 1 undoubtedly should have refrained from making any comment on social media during the trial, his limited remarks do not demonstrate any substantial likelihood he improperly based his verdict on external factors, rather than on the evidence and instructions presented at trial. (See, e.g., Danks, supra, 32 Cal.4th at p. 304 [" 'before a unanimous verdict is set aside, the likelihood of bias . . . must be substantial' "].) Nor do his earlier remarks on social media, expressing displeasure about the trial venue and annoyance about the proposed trial schedule, before he was seated and admonished as a juror, alter our conclusion. These kinds of stray comments reflecting a juror's irritation concerning the scheduling and location of a trial are both peripheral and trivial.
Defendant submits the midtrial remarks nonetheless demonstrate juror bias when viewed in the greater context. He notes Juror No. 1 posted the remarks just one day after learning the trial would likely last a week longer than originally anticipated, and having his request to be excused on financial hardship grounds denied. Juror No. 1 was experiencing economic pressure, defendant submits, only eight days after having witnessed an altercation that made him fear for his personal safety. The events, defendant asserts, individually or in combination, caused Juror No. 1 to feel contempt for jury service , leaving him unable "to cope," i.e., unable to perform his duties as a juror, and his remarks on social media reflected this mindset. The record does not support this assertion.
The suggestion Juror No. 1 was strongly affected by the news his jury service would be extended one week is belied by the relatively mild nature of the remarks he subsequently posted on social media. The statement that the trial was "interesting" but "things [were] dragging" was fairly muted and, as noted, Juror No. 1 then said he would not discuss the subject further. Defendant cites cases upholding the discharge of jurors on financial hardship grounds (see, e.g., Earp, supra, 20 Cal.4th at p. 893; People v. Montes (2014) 58 Cal.4th 809, 872), or on grounds a juror was unable to "cope" with jury service (People v. Collins (1976) 17 Cal.3d 687, 691). But the trial court here specifically considered Juror No. 1's financial hardship claim, and the impact on him of witnessing the altercation, and concluded neither left him unable to perform his duty as a juror. "The trial court is in the unique position of assessing demeanor, tone, and credibility firsthand" (People v. DePriest, supra, 42 Cal.4th at p. 21) and, therefore, can judge a person's state of mind far more reliably than an appellate court (Hillhouse, supra, 27 Cal.4th at pp. 488-489). The remarks Juror No. 1 subsequently posted on social media do not indicate to us the trial court erred in its evaluation, or that Juror No. 1 suddenly became unable or unwilling to perform his duties as a juror.
Nor do we see a " ' "probability that actual prejudice may have ensued." ' " (Wilson, supra, 44 Cal.4th at p. 839.) As the court in People v. Loot (1998) 63 Cal.App.4th 694 observed, in evaluating the potential for prejudice in a case involving juror misconduct, "[a]ll 12 jurors voted defendant guilty. There is no evidence to suggest [the offending juror] would have been the lone holdout for acquittal" if not for the factors discussed above. (Id. at p. 698, quoted with approval in Wilson, supra, at p. 839.) Similarly, here, nothing in the record supports an inference that Juror No. 1 somehow played an outsized role in the jury room. (People v. Loot, supra, at p. 698.) As the trial court observed, "11 other jurors voted the same way that this juror did when it came to issues of guilt or innocence." And, we note, they did so after one day of deliberations.
Defendant cites Dimas-Martinez v. State 385 S.W.3d 238 (Ark. 2011), in which the Arkansas Supreme Court concluded that a juror's use of social media during trial was misconduct, contributing to denial of a fair trial, and reversed the verdict. (Id. at p. 249.) Defendant notes that there, as here, the juror did not mention specific evidence or the merits of the case in his remarks on social media, and was not exposed to external influences. (See id. at pp. 246-248.) But the court there concluded reversal was independently required because a second juror slept through at least five minutes of a witness's testimony. (Id. at pp. 243-246.) Additionally, the juror who posted remarks on social media persisted in doing so after the trial court questioned him, posting oblique musings during jury deliberations and announcing that deliberations had concluded before the jury returned its verdict. (Id. at p. 247.) The Arkansas Supreme Court ruled the juror's admitted and persistent misconduct, in failing to follow the trial court's instructions prohibiting usage of social media, prejudiced the defendant, because it revealed the juror could not be relied upon to follow the court's instructions on the law. (Id. at p. 248.) In contrast, here, after making two short midtrial remarks on social media about peripheral matters, Juror No. 1 declined to say anything further, specifically observing that he was prohibited from doing so. He did not persist in the conduct or admit he had violated the court's instructions and his subsequent remarks indicated he intended to comply with them. Dimas-Martinez is distinguishable, therefore, and unpersuasive.
C. Sufficiency of the Evidence (Counts Two and Three)
Defendant also contends there was insufficient evidence to support his convictions on the second and third counts of the information.
1. Standard of Review
"Our task in deciding a challenge to the sufficiency of the evidence is a well-established one. '[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]' " (People v. Solomon (2010) 49 Cal.4th 792, 811.) In applying this standard, "we do not resolve credibility issues or evidentiary conflicts. Instead, we presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] 'A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support' " the jury's verdict.' [Citations.]" (People v. Solis (2013) 217 Cal.App.4th 51, 56-57; see also People v. Vasquez (2015) 239 Cal.App.4th 1512, 1517 [An appellate court "must accept logical inferences that the jury might have drawn from the evidence although [the court] would have concluded otherwise"].)
2. Analysis
Acknowledging the existence of evidence indicating that he was the shooter, a large number of shots were fired, and he intended to kill Jamal Williams, defendant does not challenge his conviction on count four for the premeditated and deliberate attempted murder of Williams. But, as noted, he does challenge his convictions on the second and third counts, respectively, for the first degree murder of Domino and the premeditated and deliberate attempted murder of Battle, contending there was no evidence he intended to kill either man. It was dark, he points out, and there was no evidence indicating precisely where the two men were standing or whether they were visible to the shooter. We conclude the evidence amply supports the guilty verdicts.
It is correct that the crimes of first degree murder and attempted murder both require evidence of a specific intention to kill. (See, e.g., People v. Delgado (2017) 2 Cal.5th 544, 571 [first degree murder]; People v. Houston (2012) 54 Cal.4th 1186, 1217 [attempted murder].) In order for defendant to be convicted of the first degree murder of Domino or the attempted murder of Battle, therefore, the prosecution had to prove he acted with specific intent to kill those victims. "Intent to unlawfully kill and express malice are, in essence, 'one and the same.' [Citation.]" (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith).) "Express malice requires a showing that the assailant ' " 'either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the result will occur.' [Citation.]" ' [Citations.]" (Ibid.)
"[I]t is well settled that intent to kill or express malice . . . may in many cases be inferred from the defendant's acts and the circumstances of the crime. [Citation.] 'There is rarely direct evidence of a defendant's intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant's actions. [Citations.]' " (Smith, supra, 37 Cal.4th at p. 741.) "[T]he act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice." (Id. at p. 742.) Consistent with these principles, a rational trier of fact could find that defendant's act of firing a large number of shots at the group of three men—Williams, Battle, and Domino—while they were standing near one another outside Williams's grandmother's residence established that he acted with the intent to kill all three. (See, e.g., People v. Garcia (2012) 204 Cal.App.4th 542, 554 ["Shooting at a group from a distance at which a mortal wound could be inflicted supports an inference of an intent to kill"].)
Defendant contends the evidence only suggested he had a motive to kill Williams, however, and it is speculative to assume he also intended to kill Battle or Domino. We disagree. As noted, the jury heard evidence three men broke into Denitrice Thomas's residence, where defendant kept marijuana and money, stealing several items. Defendant stated he would find out who did it and take care of it. A few days later, Thomas and defendant pulled up in a car outside Williams's grandmother's residence, and defendant asked Williams for information while Battle and Domino were standing nearby, became upset when Williams suggested he might have to pay for information, and began waving a gun around, saying words to the effect "I got it for whoever wants it." As Thomas then drove the car away, she heard defendant say to someone on the telephone, "These guys know something" and "we got to take care of this." (Italics added.)
Within the hour, the evidence indicates, defendant returned to the complex with his gun and an armed cohort. A large number of shots were fired, including one that injured Battle in his left armpit and another that fatally injured Domino in his back, severing his spinal cord. Williams was standing on the concrete, "right out in front" of his grandmother's residence when the shooting began. He testified Battle was standing "right next" to him, and Domino had been trailing behind, but had "about [reached] the front door." During the shooting, Williams escaped into the residence. When the shooting stopped, he peeked back outside and saw Domino lying injured "right in front of the door." Although defendant notes that it was dark outside, the residence had a light and there was a street lamp. Defendant does not dispute that Williams was visible standing outside the residence and, if Williams was visible, the jury could infer his two companions were visible as well.
As we will discuss below, Battle's testimony about where the three men were standing when the shooting commenced did not precisely match this account.
"[M]otive is generally not an element of a crime in the first instance, including the crimes of murder and attempted murder. One may kill with or without a motive and still be found to have acted with express malice. An inference of intent to kill drawn on evidence of a purposeful shooting with lethal force under all the attendant circumstances can support a conviction of attempted murder even without evidence of motive." (Smith, supra, 37 Cal.4th at pp. 741-742.) But "evidence of motive is often probative of intent to kill" (id. at p. 741) and here there was evidence suggesting defendant had a motive to kill all three men—Williams, Battle and Domino—because he suspected they were involved in the robbery at Thomas's apartment. The conclusion that defendant precipitously decided to kill all three men is supported as well by his seemingly wild behavior, waving a gun and making threatening statements after speaking with Williams for just a few moments, and then returning with a cohort and two guns a short time later to begin shooting. The large number of shots fired , the fact the shots were fired in a relatively confined area near the front entrance of the residence—hitting a pot in an elevated plant stand by the front door, hitting the wall between the security door and the front door, penetrating the front wall to enter a closet inside the residence, and hitting a washing machine inside the residence located diagonally across from the door—and the fact that both Battle and Domino were shot in the torso also support the finding of intent to kill.
Police arriving on the scene shortly afterward found numerous bullets and bullet fragments and nine bullet holes in the walkway and front porch area and in the front wall and front door of the residence. They also found 13 bullet casings in the driveway and grass area located directly in front of the residence.
Even if the jury found that defendant's primary goal was to kill Williams, however, it could reasonably also have found that he had "a concurrent intent" to kill Domino and Battle when he and his cohort fired a flurry of bullets at the entrance of the residence and thereby "created a kill zone." (People v. Bland (2002) 28 Cal.4th 313, 330-331 (Bland).) The California Supreme Court has recognized that "a shooter may be convicted of multiple counts of attempted murder on a 'kill zone' theory where the evidence establishes that the shooter used lethal force designed and intended to kill everyone in an area around the targeted victim (i.e., the 'kill zone') as the means of accomplishing the killing of that victim. Under such circumstances, a rational jury could conclude beyond a reasonable doubt that the shooter intended to kill not only his targeted victim, but also all others he knew were in the zone of fatal harm. [Citation.]" (Smith, supra, 37 Cal.4th at pp. 745-746.)
In explaining the concurrent intent theory, the Supreme Court stated, " '[t]he intent is concurrent . . . when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim's vicinity . . . . [C]onsider a defendant who intends to kill A and, in order to ensure A's death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire . . . devastating enough to kill everyone in the group. The defendant has intentionally created a "kill zone" to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim. When the defendant escalated his mode of attack from a single bullet aimed at A's head to a hail of bullets . . . , the factfinder can infer that, whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in A's immediate vicinity to ensure A's death. . . . [A]lthough the defendant's goal was to kill A, his intent to kill B was also direct; it was concurrent with his intent to kill A. Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone. This situation is distinct from the "depraved heart" [i.e., implied malice] situation because the trier of fact may infer the actual intent to kill which is lacking in a "depraved heart" [implied malice] scenario.' [Citation.]" (Bland, supra, 28 Cal.4th at pp. 329-330.)
"A kill zone, or concurrent intent, analysis, therefore, focuses on (1) whether the fact finder can rationally infer from the type and extent of force employed in the defendant's attack on the primary target that the defendant intentionally created a zone of fatal harm, and (2) whether the nontargeted alleged attempted murder victim inhabited that zone of harm. [Citation.]" (Smith, supra, 37 Cal.4th at pp. 755-756 (dis. opn. of Werdegar, J.).) For the reasons discussed above, we answer both questions here in the affirmative. Defendant concedes there was evidence showing Williams was standing in front of the residence, visible to the shooter, and a large number of shots were fired toward the front of the residence with the intention to kill Williams. Williams testified Battle was standing "right next" to him at the time and Domino was "about at the front door." The type and extent of the force directed at Williams indicated an intent to create a zone of fatal harm around him and there is substantial evidence Battle and Domino inhabited the zone with Williams.
These facts distinguish this case from People v. Cardona (2016) 246 Cal.App.4th 608, review granted July 27, 2016, S234660, which defendant cited as new authority in a letter brief to this court. In People v. Cardona, although the defendant fired at least five shots at a crowded party, the Court of Appeal ruled the kill zone theory did not apply because there was no evidence the defendant "sprayed everyone near [the primary target] with gunfire." (Id. at p. 615.) Rather, the evidence there indicated the defendant pushed his primary target, who had just stabbed him, shot at the individual until he fell to the ground, and then continued firing at him while standing over him or fleeing the scene. (Id. at p. 611.)
Defendant submits that the mere fact a person fires multiple shots into an area containing multiple people does not alone compel the conclusion in every instance that the shooter intended to kill everyone there. He cites People v. Anzalone (2006) 141 Cal.App.4th 380, in which the Court of Appeal stated that "an attempted murder is not committed as to all persons in a group simply because a gunshot is fired indiscriminately at them." (Id. at p. 392.) In that case, however, the defendant had fired only two shots at four men, undercutting the argument that he intended to kill all four. (Id. at pp. 384, 392.) Similarly, in People v. Virgo (2013) 222 Cal.App.4th 788, another case defendant cites, while the court ruled evidence that a shooter fired four to seven shots at four peace officers sufficed to convict on four counts of attempted murder, it concluded evidence the same shooter had fired just one shot in a different direction, towards where three other officers were taking cover, could support only one conviction for attempted murder. (Id. at p. 799; see also People v. McCloud (2012) 211 Cal.App.4th 788, 799-800 [evidence that two defendants fired 10 bullets towards 46 people was insufficient to demonstrate the defendants intended to kill all 46 people].) But here, the evidence showed a large number of shots were fired, far more than three, at the front of the residence near which the three men had been standing, hitting two of the men in the torso and hitting a washing machine inside the front door of the residence through which the third man had escaped. Unlike in the cases defendant cites, here there was sufficient evidence to conclude defendant intended to kill not just Williams, but also Battle and Domino who were standing with Williams near the front of the residence when the shooting began.
As noted, the police found 13 bullet casings in front of the residence shortly after the shooting, and Williams estimated he heard as many as 20 gun shots.
We are similarly unpersuaded by defendant's citation to out of state case law, in which attempted murder convictions were reversed, without discussion of whether the kill zone theory of liability there applied, an omission defendant submits indicates the courts must have concluded the theory did not apply, as the errors there otherwise would have been harmless. "Cases are not authority for propositions not considered." (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.)
Defendant challenges this conclusion, contending the three men were not all standing near each other. Rather, he submits, the evidence indicated Williams was standing with one of his two companions, but the other (third) man was standing apart. Thus, defendant concludes, even if the evidence supported an intention to kill Williams and the one companion standing nearest to Williams, there was no evidence he saw or intended to kill the third man who was standing apart, and he could not have intended to kill both companions. Further, because the record is uncertain about which of the two men was standing next to Williams at the time of the shooting—Battle or Domino—there is insufficient evidence to support the conclusion he intended to kill either of those men.
Defendant relies for this argument on his interpretation of Williams's and Battle's testimony. Williams testified that, after Thomas and defendant drove away, Williams, Battle, and Domino went and sat for a while in Williams's vehicle. The vehicle was parked in a carport that was immediately adjacent to Williams's grandmother's residence, and separated from the residence by narrow walkway. After a short while, the three men got out of the vehicle and headed toward the residence to get ice for their drinks. Williams said that he was standing "right next" to Battle on the concrete in front of his grandmother's residence "one step" from the front door when the shooting began and that Domino had been "trailing" after them. (Italics added.) In his opening brief, defendant characterized Williams's testimony on the last point as placing Domino "near" the vehicle and, by implication, not near the entrance to the residence. In his reply brief, however, defendant acknowledged Williams's subsequent observation that Domino had "about [reached] the front door" when the shooting commenced, and he agreed this placed Domino "close to the front door." Williams's testimony, therefore, placed all three men close to the front door when the shooting commenced.
Williams also testified that, immediately after the shooting, he found Domino lying wounded "right in front of the door" to the residence.
Inexplicably, however, in his reply brief, defendant continues to dispute this point, contending, incorrectly, that neither Williams nor Battle placed the three men together near the front door. Defendant focuses particularly on Battle's account. Battle agreed the three men had been in the car listening to music and then got out again. When the shooting started, Battle testified, Williams and Domino were standing next to each other in the walkway, and he (Battle) was standing in the grass area in front of the residence. Defendant cites this testimony, contending it signified Battle was "nowhere near" Williams and Domino. But the evidence does not support this claim.
Battle was gesturing at an enlarged aerial photograph of the Parkway Gardens complex, People's Exhibit No. 110 (Exhibit 110), while he testified. The photo showed a walkway running alongside the residence. Along the other side of the walkway, opposite the residence, there was a carport and then a small grass area. After Battle pointed to the spot where Domino had been standing, the prosecutor asked, "And you're showing . . . the grass area?" Battle corrected her, clarifying that Domino was actually in the adjacent walkway, "next to" Williams. Then, he pointed to Exhibit 110 again, and said, "I was here." Asked by the prosecutor whether he was pointing to the grass area in front of the residence, Battle agreed. Although not entirely clear, the exchange suggested Battle had placed Domino and Williams together on the walkway in front of the residence next to the grass area bordering it, and placed himself on the grass. The testimony does not establish that Battle stood significantly apart from the other two men.
Even if Battle's testimony could be construed in that manner, however, the jury reasonably could have credited Williams's testimony instead that the three men were all standing near the front door of the residence. Although defendant submits one might reasonably expect Battle to have the best recall about where he had been standing, we note that Battle repeatedly expressed uncertainty about specific details surrounding the incident, at least once alluding to the stressful nature of the events. Asked whether the three men sat together in Williams's vehicle between the time of Williams's conversation with defendant while defendant sat in Thomas's car and the time of the shooting, for example, Battle responded tentatively, "I don't believe so. I believe we were outside. We might have went back to the car to drink, but we ended up outside. We - see, I don't want to say this is all fuzzy, but I don't want to say that - I don't even - this is a situation that I would never wish upon anybody and my brain right now is --" A bit later, asked about an exchange he had with Williams after defendant and Thomas drove away, Battle said he could not recall it, adding "A lot of this is very vague; um, was two years ago. Um, some of this is --" When the prosecutor then asked him to estimate the number of gun shots that were fired, he responded, "I don't - I can't count. Pow-pow pow. It's - it sounded like it lasted for a minute or for a couple of seconds; how about that?" Williams, in contrast, testified without equivocation that the three men had been sitting in the vehicle, got out to fetch some ice, and were standing near each other when Williams heard about 20 gunshots. In reviewing the sufficiency of the evidence, in any event, "[w]e resolve neither credibility issues nor evidentiary conflicts." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Here, viewing the entire record in the light most favorable to the judgment, as we must—including Williams's and Battle's testimony, the photographs and maps of the scene, and witness testimony confirming the location of bullet fragments, holes, and casings found there—we conclude there was sufficient substantial evidence from which a reasonable jury could conclude defendant saw Williams, Battle, and Domino standing together near the front of the residence and shot at them, intending to kill all three or intending to kill Williams specifically and concurrently intending to kill both people standing with him.
In light of our conclusion on this point, we need not address the parties' arguments about whether defendant's intent to kill Williams transferred to Domino, providing an additional basis for affirming defendant's conviction on the second count.
D. The "Kill Zone" Instruction (Count 3)
Defendant next contends the trial court's instruction to the jury regarding count three, the attempted murder of Battle, was erroneous in its description of the kill zone theory, because it allowed the jury to find him guilty without finding he harbored the necessary intent. We find no prejudicial error.
1. Background
On count three, the trial judge instructed the jury using CALCRIM No. 600, advising, in pertinent part, as follows: "I'm now going to talk to you about the charges in Counts 3 and 4. The defendants are charged in Counts 3 and 4 with attempted murder. Count 3 is a charge of attempted murder against Kristopher Battle. Count 4 is a charge of attempted murder against Jamal Williams. To prove that a defendant is guilty of attempted murder, the People must prove the following: Number one, the defendant took at least one direct but ineffective step toward killing another person; and number two, the defendant intended to kill that person.
"I'll give you the definition again; only two elements in this crime; number one, the defendant took at least one direct but ineffective step toward killing another person; and number two, the defendant intended to kill that person. Those are the elements that make up the crime of attempted murder. . . . [¶] A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward commission of the crime after preparations are made. . . .
"As to Count 3, the charge of attempted murder against Kristopher Battle, a person may intend to kill a specific victim or victims and at the same time, intend to kill every one in a particular zone of harm or a kill zone. In order to convict a defendant of the attempted murder of Kristopher Battle, the People must prove that the defendant not only intended to kill Jamal Williams, but also intended to kill Kristopher Battle or intended to kill everyone within the kill zone. If you have a reasonable doubt whether a defendant intended to kill Kristopher Battle, or intended to kill Jamal Williams by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Kristopher Battle."
In her closing argument, the prosecutor initially described the relevant sequence of events as follows: "This was shot after shot after shot, unloading their clips on this very small area. The front entrance-way where these three people are minding their own business . . . . " Later, specifically addressing the charge of attempted murder, the prosecutor explained, "[Y]ou [may] think, 'Well, . . . they only went over there really to kill [Williams], because [Williams] is the person who [defendant] had the beef with, because he didn't like the answer that he got from Jamal Williams . . . . [But] the law tells you that even if he went over there to kill [Williams], that [he] can still be convicted of attempted murder of Kristopher Battle if you find that he intended to kill everyone in this . . . basically, kill zone. If a defendant creates a kill zone, meaning 'I don't shoot somebody one time, but I continue to shoot and shoot and shoot at the small little group and there's three people in that group', yeah, you can assume they meant to kill everyone when they didn't stop shooting, and that's exactly what occurred here[.] [B]ecause of the number of shots in the little, small vicinity of where they were at the time that all those shots were fired, and you can infer that they intended to kill all three of them that were right there." (Italics added.)
Defendant's counsel's closing argument did not dispute that the three men had been standing in a group together at the time of the shooting. She offered no suggestion any one of them was standing apart, outside the claimed kill zone. Regarding intent, defense counsel stated simply, "The fact remains in this case that we don't know who the target was. Was it Jamal Williams? Was it Kevin Domino? Was it Kristopher Battle? This is not any kind of targeted sharp-shooting that goes on; it's spraying the front of this residence with gunshots." She added, "[T]here is an instruction on what is called the kill zone, and . . . [it] require[s] that somebody be the intended target . . . . [B]ut in this case, we simply don't know who the intended target was . . . ."
2. Standard of Review
"We review a claim of instructional error de novo. [Citation.]" (People v. Fiore (2014) 227 Cal.App.4th 1362, 1378.) "When the jury is 'misinstructed on an element of the offense . . . reversal . . . is required unless we are able to conclude that the error was harmless beyond a reasonable doubt.' [Citations.]" (People v. Wilkins (2013) 56 Cal.4th 333, 348.)
" 'When considering a claim of instructional error, we view the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.' [Citations.]" (People v. McCarrick (2016) 6 Cal.App.5th 227, 245.) " ' "[A]ny theoretical possibility of confusion [may be] diminished by the parties' closing arguments . . . ." ' [Citation.]" (People v. Lua (2017) 10 Cal.App.5th 1004, 1013.) We " ' "assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." ' [Citation.]" (Ibid.) " ' "Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation." ' [Citation.]" (Ibid.)
3. Analysis
Defendant contends the trial judge's instruction of the jury using CALCRIM No. 600 constituted error because it misinstructed the jury on the element of intent, allowing jurors to convict him without concluding he intended to kill Battle. Jurors could have concluded they had to convict, defendant submits, if they found beyond a reasonable doubt that defendant intended to kill Williams and intended to kill everyone else standing in the kill zone, even if they did not find Battle was standing in the kill zone. For example, if jurors determined that Williams and Domino were standing together in a kill zone, Battle was standing somewhere else, and defendant intended to kill Williams by killing everyone around him (i.e., Domino), but accidentally also caused Battle to be shot (e.g., by a stray bullet or ricochet), jurors might have concluded they had to convict defendant of attempting to kill Battle. We do not think it is reasonably likely the jury applied the instruction in this impermissible manner.
As given by the trial judge, CALCRIM 600 explained that defendant was charged with "attempted murder" of Battle (italics added), a phrase that itself signals intent (see, e.g., Black's Law Dict. (10th ed. 2014) p. 152, col. 1 ["attempt" means "[t]he act . . . of making an effort to accomplish something"]), and the instruction properly explained that the second element of the charged offense was "intent[] to kill that person." The trial judge underscored the point, repeating both of the two required elements, among other things advising jurors they had to find "the defendant intended to kill that person."
Defendant takes issue with the following excerpt from the instruction: "In order to convict a defendant of the attempted murder of Kristopher Battle, the People must prove that the defendant not only intended to kill Jamal Williams, but also intended to kill Kristopher Battle or intended to kill everyone within the kill zone." (Italics added.) It is true the instruction did not expressly explain that jurors also had to find Battle was among those standing within the kill zone. But, reading the instruction as a whole, particularly as given by the trial judge here, we think the requirement is clearly implied.
This is particularly true when we consider the trial record. As discussed, Williams testified he, Battle, and Domino were standing together near the front door of the residence when the shooting began. Battle did not expressly contradict him on this point, nor do we read his testimony as implying otherwise. In their closing arguments, none of the attorneys attempted to suggest Battle (or Domino) was standing apart, outside the claimed kill zone. To the contrary, the prosecutor repeatedly contended the three men had been standing together. And she advised jurors they could assume an intent to kill Battle if they found defendant created a kill zone by shooting repeatedly at "the small . . . group . . . [of] three people" who had been standing together. In her closing argument, defendant's counsel also focused on intent. Observing that the front of the residence had been sprayed with gunshots, defense counsel signaled her implicit agreement that Williams, Domino, and Battle were standing together; she argued, rather, that jurors could not be sure which of them was the intended victim.
In sum, the wording of the instruction, the trial judge's reading of the instruction, and the arguments of counsel all underscored the jury had to find an intent to kill the victim before convicting defendant of attempted murder. The instruction explained the intent to kill a specific victim could be inferred from evidence of an intent to kill everyone within the kill zone and it clearly implied jurors would have to find Battle was one of the people within the kill zone to convict defendant of his attempted murder. The prosecutor specifically told jurors they could find defendant intended to kill Battle if they found he created a kill zone by repeatedly shooting at the small space where the three men had been standing. The evidence here indicated the three men were standing together and defendant's counsel did not suggest otherwise, instead implicitly conceding the point in her closing argument. It is not reasonably likely, therefore, that jurors misapplied the instruction, concluding they could convict defendant of the attempted murder of Battle, if they found he had been standing apart from his companions (the intended victims) and was only accidentally shot by a stray or ricochet bullet.
E. The Firearm Enhancement (Count 5)
Finally, defendant was convicted on count five of shooting at an inhabited dwelling (§ 246), and the jury found true the allegation that he personally used a firearm, a handgun, in doing so (§ 12022.5, subd. (a)). The trial court stayed the firearm enhancement. But defendant contends we must strike it. The People agree and we concur.
At the time of his conviction, and currently, section 12022.5, subdivision (a) provides for additional punishment for personal use of a firearm in the commission of a felony "unless use of a firearm is an element" of the offense. (Italics added.) "The elements of a violation of section 246 are '(1) acting willfully and maliciously, and (2) shooting at an inhabited house. [Citation.]' [Citation.]" (People v. Hernandez (2010) 181 Cal.App.4th 1494, 1501, italics added.) The second element includes and requires use of a firearm.
The People do not contend that any of the exceptions stated in section 12022.5 apply, allowing imposition of the additional punishment—e.g., on grounds defendant personally used an assault weapon or machine gun, or used the firearm for any violation of section 245 or for a murder perpetrated by shooting from a motor vehicle (§ 12022.5, subds. (b), (d))—nor do we find any indication in the record the exceptions apply. Accordingly, count five was not eligible for the firearm enhancement (§ 12022.5, subd. (a); see People v. Athar (2005) 36 Cal.4th 396, 402), and we agree it must be stricken.
III. DISPOSITION
The section 12022.5 enhancement on count five is stricken and the trial court is directed to amend the abstract of judgment accordingly, forwarding the amended abstract to the appropriate correctional authorities. With this modification, the judgment is affirmed.
/s/_________
Rivera, J. We concur: /s/_________
Reardon, Acting P.J. /s/_________
Streeter, J.