Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07WF1009, John Conley, Judge.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Sufficient evidence supports defendant’s conviction of child endangerment. The trial court did not err when it denied defendant’s motion for mistrial based upon juror misconduct, when it granted the People’s motion to consolidate two cases or when it denied defendant’s request to strike a strike. We affirm.
I
FACTS
On December 13, 2007, the prosecution filed a 30-count information consisting primarily of identity theft charges against defendant Gene Anthony Franklin, Jr. A year later, a 24-count information in another case was filed against defendant which also charges various financial crimes, most of which center around a conspiracy in a scheme to obtain bail money for defendant after he was in jail on the charges in the earlier information. The court granted the People’s motion to consolidate the two cases.
A jury found defendant guilty and returned true findings on scores of charges and enhancements. The court sentenced defendant to state prison for 31 years four months.
First Information Filed
On December 13, 2007, the People filed an information against defendant alleging child endangerment, obstruction of a police officer and numerous financial crimes, most involving identity theft. Most of the charges alleged that defendant obtained personal information about others and used the information to obtain credit, loans and make purchases without the other person’s knowledge.
The Standoff
During the evening of April 19, 2007, Huntington Beach police officers attempted to serve an arrest warrant on defendant on Cambay Street in Huntington Beach. Defendant was observed as he drove into the driveway of the residence and reaching into the car as if to remove something when he got out of the car. It looked as if he might be getting a child out, but the observing officer never saw a child because a bush blocked a complete view.
Officers knocked on the front door. They then knocked on the front window and then used “the P.A. system on the car” and asked defendant to come out of the house. There was no response. An attempt was made to crawl inside the residence. A perimeter of eight officers was established around the house. An officer telephoned the phone number for the residence. No one answered. Police then knocked on some large bedroom windows. Officers shouted for defendant and tried “making some verbal announcements.” A police car was pulled “up to the house” and an officer used his public address system to call out defendant’s name at least a dozen times. No response.
Police worked under the assumption a child was inside the house. Their goals were to get defendant to come out and make sure the child was safe. Some of the options usually available were not utilized because there was a child inside the house: “We weren’t able to use chemical agents. We weren’t able to use tear gas to try to force him out of the house, because of the presence of the child.” An officer said, “The last thing we wanted to do was to go inside.” Nor could the police use a K-9 unit with the child inside, because “[i]f the person does something that the dog interprets as a threat, the dog will bite them.”
At some point before midnight, defendant’s ex-wife, T., arrived and spoke with defendant on her cell phone. An officer requested to speak with defendant, but when the officer identified himself “the phone went dead, ” although the officer testified the phone “still had battery power.” The police tried calling and texting defendant on his cell number, obtained from defendant’s ex-wife, but got no response. But officers observed and overheard conversations between T. and defendant as defendant would accept messages from his ex-wife, but not from the police. Police heard T. repeatedly request defendant “to deliver the child to her, ” who was then three years old. T. was “trying to insure the safety of the child and getting the child.”
At some point, the police stopped the telephone contact with defendant. An officer explained: “We had the cellular telephone call and the residential phone server turn off his telephone so that he could no longer make any outgoing phone calls other than to 911.” The police did not “want additional people showing up, him calling other people.” The SWAT team delivered a phone to the front door “that would allow him to simply pick the phone up and he would be calling us” but the phone was never picked up.
“Eventually the SWAT team decided to go ahead and make an entry into the home, ” an officer told the jury. Sometime after 4:00 a.m., police entered through the kitchen after opening the door with a battering ram. All of the SWAT team members were armed with guns. No lights were on inside the house. Although officers did not initially see the child, she was found asleep in a hallway covered with a blanket. An officer spotted her foot.
Police used a hook on the end of a pole to try to slide the child down the hallway toward them, but she got caught on a turn. Officers then “provided a human shield” for one officer who “crawled on his hands and knees to grab the blanket and pulled the blanket down the hallway.”
The child awakened and started crying. The child was given to awaiting paramedics. She was shaken up by the time she was handed over to her mother. Afterward T. took the child to therapy “for half a year.”
Once the child was safe, officers used a dog to complete the rest of the search. An officer told defendant the dog was there and that the dog would bite him. At that point, defendant “exited the bedroom” and was taken into custody.
Second Information Filed
On December 10, 2008, the People filed another information alleging that between April 25, 2007 and January 15, 2008, defendant conspired with others to commit forgery, identity theft and recording a false or forged statement. Among the overt acts alleged are that defendant provided information to his coconspirators to place mortgages on other people’s property in order to raise money for defendant’s bail. Once the money was raised, the allegations continued, a coconspirator contacted a bail bondsman to arrange for defendant’s bail.
Motion to Consolidate
The People moved to consolidate the two cases against defendant. Defendant opposed the motion, arguing: “The crimes alleged are not connected in their commission, and not part of the same transaction.”
The People described both cases. Regarding the first one, the motion states: “On February 12, 2007, the defendant was arrested by the Huntington Beach Police Department for an outstanding Los Angeles County warrant. At the time, he was driving a car in another person’s name... and possessed a driver’s license with victim Rex Barnett’s name and defendant’s photograph on it. The vehicle was impounded and officers found personal identifying information for Gilbert Liberto and a forged license in his name, as well as applications to Chesapeake Financial Services relating to the purchase of a $310,000 boat with a loan in the amount of $240,000. In speaking with Liberto, detectives confirmed that although he knew the defendant, he did not give permission to have a loan submitted in his name. Detectives also discovered that the defendant had rented a car from Enterprise Rental Car in Liberto’s name using a fraudulent driver’s license and credit card. The sale of the boat did not go through, but the applications for credit were submitted. [¶] On April 5, 2007, during an impound search of one of the defendant’s vehicles, the impound agents located numerous identifications with different names, but with the defendant’s picture.... The documents in the vehicle lead the police to numerous checking and credit accounts fraudulently opened at Wescom Credit Union using information ultimately located on the defendant’s computer.”
The moving papers describe the standoff at the Cambay Street house, and state that investigations later determined that the “residence was fraudulently purchased in the name of yet another of the defendant’s victims, Jorge Villacinda, who had met the defendant as a mortgage broker and provided his information to the defendant in order to purchase real property... The documentation regarding the sale, which was also forged, showed that the real estate agent and notary was Amanda Urquidi, a known associate of the defendant who had pleaded guilty in Los Angeles to the fraudulent purchased of a boat with defendant.... Further investigation revealed that the defendant placed most of the utilities for the residence into other victims’ names without their consent.” The court ordered defendant held on $1 million bail.
Regarding the second case, the moving papers state: “While incarcerated, he contacted an old girlfriend, now codefendant Iris Orozco.... The defendant provided Orozco with addresses to three 4-unit apartment complexes and directed her to transfer the properties into her name and use them as collateral to secure his bail. One of the properties belonged to defendant’s cellmate’s daughter.... The other two properties belonged to a close friend of the defendant’s cellmate.... After a transfer of the property for credit purposes, Orozco obtained a $200,000 loan against one of the properties and used the same property to collateralize the defendant’s bail. The defendant was released on bail and fled to Mexico with Orozco. The bail bond company located the defendant and he was returned to Orange County custody.”
The court conducted a hearing. The motion was granted.
Motion for Mistrial
Defendant moved for a mistrial and release of jury contact information after the jury verdict and prior to sentencing. A declaration of defense counsel attached to the motion stated: “2. On April 7, 2009, after the verdict was announced, I walked outside of the courtroom, to the hallway, to speak with the jurors. [¶] 3. In the hallway, I noticed six jurors were waiting in the hallway to be interviewed. [¶] 4. As I walked outside, I was approached by one of the jurors, black female, who was seated in either seat number 8 or 9 in the front row. [¶] 5. Said juror grabbed me by my arm and began to apologize, stating that most of the jurors wanted to give defendant not guilty for the child abuse charge; however one of the jurors pressured them because she wanted to find the defendant guilty of the child abuse in order to make sure ‘that he will never see his daughter again.’ [¶] 6. Said juror became emotional and started crying when she was informing me of this. [¶] 7. She further described the juror who pressured them as white, blonde, female sitting in the back row of the jury box. [¶] 8. The juror who pressured the other jurors to find defendant guilty on the child abuse charge did not wait in the hallway to speak with me.”
The court heard the defense motion and made a finding there was no juror misconduct. The court found the statements attributed to the juror about her not wanting defendant to ever see his child again reflected “the mental processes of one juror.” With regard to the jury identifying information, the court made a finding there was a lack of a prima facie showing of good cause. The motion was denied.
Sentencing Hearing
In 1994, defendant was convicted of carjacking. The court found defendant’s prior was a strike within the meaning of the “Three Strikes” law. Defendant moved for the court to “strike the strike.” Defense counsel argued it was 15 years old and that “justice [would] be best served by striking it.”
In making its ruling, the court reasoned: “The potential sentence when you don’t strike the strike is very severe. But to strike the strike the court has to find that the defendant falls outside the spirit of the Three Strikes law. And he has a sentence of seven years in state prison, again, may not have served the whole seven years, in ’94. And five years in 2001. He spent a lot of time in custody, even though we’re disagreeing probably on the total amount. How do I find that falls outside the spirit of the Three Strikes law? [¶] Well, we can also look at this case. The taking was something like a million dollars, though we know the total loss was not that much. Some of that was recovered. But that was the taking. [¶] There are multiple, multiple victims and many, many counts. I don’t just see how I can strike the strike and say no, Mr. Gene Anthony Franklin falls outside the spirit of the Three Strikes law. It was just a mistake here that he fit within it and I should rectify that. [¶] I’m afraid he fits right within the meaning of the Three Strikes law and the spirit of the Three Strikes law. And I say that without any antagonism towards you, Mr. Franklin. So, the court declines the offer to strike the strike.”
II
DISCUSSION
Sufficiency of Evidence of Child Endangerment
Defendant argues there is insufficient evidence to support his conviction for child endangerment. He contends he did not try to abuse or otherwise endanger his daughter.
In addressing challenges to the sufficiency of evidence, “the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - evidence that is reasonable, credible and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]”’ [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
“Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.” (Pen. Code, § 273a, subd. (a).)
“Section 273a(1) is ‘intended to protect a child from an abusive situation in which the probability of serious injury is great.’ [Citation.]” (People v. Sargent (1999) 19 Cal.4th 1206, 1216.) “Felony child abuse ‘can occur in a wide variety of situations: the definition broadly includes both active and passive conduct, i.e., child abuse by direct assault and child endangering by extreme neglect.’” (People v. Lee (1991) 234 Cal.App.3d 1214, 1220.) “It is the likelihood of foreseeable injury, rather than whether such injury in fact occurs, that is relevant.” (Ibid.)
Here defendant barricaded himself in a dark house with a small child despite numerous requests he release her. Defendant was aware the house was surrounded by police officers, and that, most likely, the police were armed. He placed a three-year-old child in a hallway covered with a blanket between himself and the SWAT team. She was in danger of being trampled by a large group of armed police officers in an unlighted residence. Had gunfire broken out, she was in danger of being shot. Under the circumstances in this record, we must conclude the evidence is sufficient for a reasonable jury to conclude defendant placed the child in a situation where her person or health was in danger of great bodily injury.
Motion for Mistrial
According to defendant, the trial court violated his Sixth Amendment right to a fair trial when it denied his motion for a mistrial. He claims the jury convicted him of child abuse, not on the evidence, “but on the insistence of a single juror who wanted to prevent [him] from ever seeing his daughter again.”
An appellate court reviews a trial court’s decision regarding whether or not to conduct an investigation of juror misconduct for abuse of discretion. (People v. Cleveland (2001) 25 Cal.4th 466, 478.) “In determining whether misconduct occurred, ‘[w]e accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.] Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court’s independent determination. [Citations.]’ [Citation.]” (People v. Majors (1998) 18 Cal.4th 385, 417.)
“[T]he jury is a ‘fundamentally human’ institution; the unavoidable fact that jurors bring diverse backgrounds, philosophies, and personalities into the jury room is both the strength and the weakness of the institution. [Citation.] ‘[T]he criminal justice system must not be rendered impotent in quest of an ever-elusive perfection.... [Jurors] are imbued with human frailties as well as virtues. If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias.’ [Citation.]” (In re Hamilton (1999) 20 Cal.4th 273, 296.) Even when there is juror misconduct, any presumption of prejudice is rebuttable “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.]” (Ibid.)
“Where a party seeks a new trial based upon jury misconduct, the court must undertake a three-step inquiry. First, the court must determine whether the evidence presented for its consideration is admissible. [Citations.]” (People v. Duran (1996) 50 Cal.App.4th 103, 112-113.) “Once the court finds the evidence is admissible, it must then consider whether the facts establish misconduct. [Citations.] [¶] Finally, if misconduct is found to have occurred, the court must determine whether the misconduct was prejudicial. [Citations.]” (Id. at p. 113.)
“Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.” (Evid. Code § 1150, subd. (a).)
Here the court determined the declaration of defense counsel was “simply the mental processes of one juror, ” and was not admissible under Evidence Code section 1150. It also impliedly stated there was no juror misconduct anyway when it said: “And so some juror says my God, he should never have his child back again, is another way of saying this is overwhelming evidence of child endangerment.” The court determined such a statement by a juror during deliberations was “really a comment on the evidence.” When another juror reported the comment to defense counsel, the court stated that there is “a certain unreliability of what jurors say to attorneys after a trial. I’ve had it in my own experience where jurors will try to say something nice to defense attorneys who have lost their case, and so it seems to me it’s an attempt by a juror to say don’t feel bad. I’m sorry you lost.” As the trial court determined the statements of the juror were not admissible under Evidence Code section 1150 and, even if they were admissible, did not amount to misconduct, it never got to the third Duran step.
We agree with the trial judge. One juror’s statement about what another juror said about the evidence to a defense lawyer in the hallway after the trial does not amount to juror misconduct under the circumstances in this record. We find no error in denying the motion for mistrial.
Motion to Consolidate
Defendant contends the court erred and made his trial fundamentally unfair in granting the prosecution’s motion to consolidate. He says “the joining together of the two cases made the trial too confusing factually which invited the jury to arrive at a blanket guilty verdict without unraveling the many different facts for each of the 53 counts.”
“An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated.” (Pen. Code, § 954.) “[J]oinder of charged offenses ordinarily promotes efficiency [and] is the course of action preferred by the law. [Citations.]” (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220.) Denial of a motion to sever is reviewed for an abuse of discretion. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1244.) “The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. [Citations.]” (People v. Bean (1988) 46 Cal.3d 919, 938-939.)
In People v. Grant (2003) 113 Cal.App.4th 579, defendant was charged with burglary in count one, concealing stolen property in count two and unlawful possession of property in count three. Originally the district attorney filed counts one and three separately from count two, but was later permitted to consolidate them. (Id. at p. 583.) At the close of evidence, the court dismissed count three, and the jury convicted the defendant on counts one and two. (Ibid.)
The Grant court stated: “We conclude that the trial court did not abuse its discretion in denying defendant’s motion to sever. Nevertheless, the joinder substantially prejudiced defendant and denied him a fair trial. Our conclusion is based on the non-cross-admissibility of the evidence on counts 1 and 2, the similarity of the evidence on counts 1 and 2, and the relative weakness of the evidence on count 1 in relation to count 2 in conjunction with prosecutorial and instructional errors. In combination, these factors had a substantial and injurious effect or influence on the jury’s verdicts. Accordingly, the judgment must be reversed.” (People v. Grant, supra, 113 Cal.App.4th at pp. 583-584.)
‘“[T]he first step in assessing whether a combined trial [would have been] prejudicial is to determine whether evidence on each of the joined charges would have been admissible, under Evidence Code section 1101, in separate trials on the others. If so, any inference of prejudice is dispelled.’ [Citations.] Cross-admissibility suffices to negate prejudice, but it is not essential for that purpose. Although ‘“we have held that cross-admissibility ordinarily dispels any inference of prejudice, we have never held that the absence of cross-admissibility, by itself, sufficed to demonstrate prejudice.’” [Citation.] [¶] In the present case, the prosecutor urged, and the trial court found, that evidence of each incident would have been cross-admissible in a separate trial of the charge relating to the other incident because the incidents disclosed a distinctive modus operandi tending to establish the killer’s identity. Pursuant to Evidence Code section 1101, subdivision (b), evidence that a defendant has committed an offense, although inadmissible to demonstrate a defendant’s disposition to commit crimes, may be received to establish, among other things, identity, intent, motive, or plan. To be admissible to demonstrate a distinctive modus operandi, the evidence must disclose common marks or identifiers, that, considered singly or in combination, support a strong inference that the defendant committed both crimes. [Citations.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1315-1316.)
Here there were counts of identity theft, grand theft and making false financial statements in both cases. Defendant’s motive in the crimes charged in both cases was to defraud the victims of their money. Plus the two cases were closely related. Defendant was in custody on the first case and engaged in subsequent felonious conduct to make bail and flee the country. Nor has defendant shown he was substantially prejudiced by the joinder. Under these circumstances, we do not find the court abused its discretion, that defendant was prejudiced by the court’s ruling or that the trial was unfair.
Motion to Strike
Defendant next argues the trial court erred when it declined his invitation for it to exercise its discretion under Penal Code section 1385 to strike his prior for sentencing purposes under the Three Strikes law. The Attorney General contends defendant’s “prior convictions placed him squarely within the boundaries of the Three Strikes law.”
We review the trial court’s decision to strike a prior conviction allegation for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374-375.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) Penal Code section 1385, subdivision (a) authorizes a trial court “to strike factual allegations relevant to sentencing, such as the allegation that a defendant has prior felony convictions. [Citations.]” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.) The trial court’s power to dismiss an action under Penal Code section 1385 is broad, but not absolute. “‘Rather, it is limited by the amorphous concept which requires that the dismissal be “in furtherance of justice.”’” (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530.) In determining whether or not there should be a dismissal under Penal Code section 1385, the court must consider both the constitutional rights of the defendant and the interests of society represented by the People. (People v. Orin (1975) 13 Cal.3d 937, 945.) The court must consider the nature and circumstances of the present felony and the prior serious or violent felony conviction, as well as the particulars of the defendant’s background, character and prospects, and determine whether or not the defendant should be deemed outside the spirit of the Three Strikes law and treated as though he had never been convicted of the prior serious or violent felony. (People v. Williams (1998) 17 Cal.4th 148, 161.)
The trial court carefully considered the totality of the circumstances of defendant’s criminal record. The fact defendant’s sentence is lengthy is the chance he took when he undertook to devote his life to committing crimes. He comes within the spirit and intent of the Three Strikes law. Under the circumstances in this record, we cannot conclude the court abused its discretion.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., ARONSON, J.