Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino CountySuper.Ct.No. FVI012900, Donald R. Alvarez, Judge. Affirmed.
Andrew E. Rubin for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Raquel Gonzalez, Janelle Marie Boustany, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
King, J.
I. INTRODUCTION
Defendant was convicted of several felonies based on an incident that occurred at the home of Kelley Lundin on January 25, 2001. He was given a three strikes sentence of 20 years plus 25 years to life in prison, and appeals. He contends his three strikes sentence was improperly imposed, because the jury found only one of two prior strike allegations true and specifically found the other prior strike allegation not true. He also contends the trial court erroneously refused to dismiss Juror No. 10 and substitute an alternate juror during trial, and erroneously denied his motion to reopen his defense case to present evidence that Lundin, a material prosecution witness, bragged about lying at trial. We find each of these claims without merit, and affirm the judgment in all respects.
II. THE CHARGES AND CONVICTIONS
Defendant was charged in an amended information with the burglary of Lundin’s residence (Pen. Code, § 459; count 1), attempted residential robbery of Lundin (§§ 664, 211; count 2), false imprisonment of Lundin and Michelle Becker by violence (§ 236; counts 3 & 4), unlawful possession of a rifle as a felon (§ 12021, subd. (a)(1); count 5), assaulting Becker, Lundin, and S.M. with a firearm (§ 245, subd. (a)(2); counts 6, 7, & 8), and extorting money or property from Lundin (§ 520; count 9). It was further alleged that defendant was armed with and personally used a firearm in each count. (§§ 12022, subd. (a)(1), 12022.5, subd. (a)(1), 12022.53, subd. (b).) The jury found defendant not guilty on count 8, but guilty as charged on counts 1 through 7 and 9. The firearm allegations were also found true in counts 1 through 7 and 9.
All further statutory references are to the Penal Code unless otherwise indicated.
The information also alleged that defendant had two prior felony convictions, one for burglary on June 18, 1985, and one for robbery on September 5, 1991, which qualified as serious felonies within the meaning of Penal Code section 667, subdivision (a) and strikes within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d). It was also alleged that defendant had three prison priors. (Pen. Code, § 667.5, subd. (b).) The prison prior allegations were based on the 1985 burglary and 1991 robbery convictions, and a 1987 conviction for violating Health and Safety Code section 11351.5.
A bifurcated jury trial was held on the prior serious felony, prior strike, and prison prior allegations. The jury’s findings on these allegations are the subject of defendant’s first contention and are discussed below.
III. THE EVIDENCE PRESENTED AT TRIAL
A. Prosecution Evidence
On January 20, 2001, defendant, known as Ray Dog, went to the Apple Valley residence of Lundin and Monica Wimer. Defendant was accompanied by two of Lundin’s friends, Francine and Connie. Defendant, Francine, and Connie were drinking, but not using drugs.
Lundin and Wimer were methamphetamine users. They shared the residence with Lundin’s two children and Wimer’s three children. Wimer had known defendant for eight years, but Lundin had never met defendant before.
Before midnight, defendant asked Lundin whether he could borrow $500 to buy an ounce of methamphetamine to resell. Lundin refused. At 6:00 a.m., Wimer came home and joined Lundin, defendant, and others in the bedroom. Defendant was still asking Lundin for $500 and was becoming frustrated.
Finally, defendant left without any money, but returned several hours later with his wife, Mildred, his two stepdaughters, and two pit bulls. Lundin and Wimer were in Wimer’s bedroom on the phone when defendant and his family walked in. He began to yell at Lundin and his wife that Lundin owed him money for a drug deal. Defendant’s wife had a baseball bat and defendant was telling her to “kick [their] ass.”
After some further discussion, defendant’s wife and two daughters left with one of the dogs. Defendant and the other dog remained. The police, who were called by the person to whom Lundin had been speaking on the phone, came to the residence. Lundin told the police that there was a dispute over money. After about half an hour, the police left. Soon thereafter, defendant left, saying he would be back.
Defendant returned to the residence on January 25, 2001. He walked in through the sliding glass door to the living room, carrying a rifle and demanding money. Lundin, Becker, and several of the children, including S.M., were at home. Becker recalled that defendant “put the gun to my face; and told me to get up; and grabbed me by my arm; picked me up; and kind of threw me.” Lundin also recalled that defendant pointed the rifle at Becker, cursed, and told her to shut up. Lundin heard defendant say to Becker, “Who the fuck are you, you fucking bitch,” and “I’ll kill you.”
Defendant yelled about money and pointed the rifle at Lundin. Lundin walked into the kitchen and defendant followed. Angry and muttering, defendant saw the telephone in the kitchen and pulled it out of the wall, saying, “You bitches aren’t going to call the cops.” Defendant returned to the living room, and when Lundin asked what he wanted, he pointed the rifle at her and at S.M. who was on her lap and yelled, “You’re going to give me some money.” Lundin had no money, so he had Lundin write him an IOU for $500 and demanded that she get him $500 from Western Union the next morning. He said that he would wait at the residence overnight until Lundin got the money.
Defendant directed Lundin and S.M. to the bedroom and returned to the living room. After Lundin and S.M. were in the bedroom for around half an hour, Wimer drove up to the residence. From outside, Wimer saw Lundin in the bedroom window, motioning for her to leave. Eventually, Wimer had a neighbor call police. Sheriff’s deputies arrived, and saw Lundin gesturing from the window that someone in the residence had a gun. More units were called. Before other officers arrived, Lundin escaped with S.M. through the window.
Lundin told one of the deputies that Ray Dog was in the apartment with a rifle and there were other people inside. Another deputy got on a loud speaker and demanded that Ray Dog come out without the gun. At that time, defendant and Becker were in the kitchen, smoking what appeared to be methamphetamine. Minutes later, defendant came out of the residence and was taken into custody.
Deputies found three .30-30 bullets on the kitchen floor and a similar round in defendant’s pocket. Defendant had already dismantled the rifle before deputies demanded that he come outside.
B. Defense Evidence
Defendant’s wife, Mildred, testified that she went to the residence of “Monica and Kelley” on January 21, 2001, with her two daughters and one dog. Defendant, Wimer, Lundin, and a third woman were in the back bedroom. Mildred denied threatening anyone or having a baseball bat. According to Mildred, Wimer was saying that Lundin owed defendant money and, at one point, Lundin said, “Yeah. I know I owe him. I’m going to pay him.”
Mildred’s daughter, Elisha Satterwhite, also recalled being present at the residence on January 21, 2001. She waited outside the bedroom door while her sister Adrienne stayed in the living room with the dog. She overheard “Kelly” telling defendant that he did not have to get physical, she owed him the money, and she would pay him. Adrienne testified that she overheard someone, maybe Lundin, say, “I’m going to pay you. I’m going to pay you.”
IV. DISCUSSION
A. Defendant Was Properly Sentenced as a Third Striker
Defendant contends he was improperly sentenced as a third striker rather than a second striker, because the jury found the June 18, 1985, prior strike allegation not true, although it found the September 5, 1991, prior strike allegation true. He also argues that retrial of the June 18, 1985, prior strike allegation is barred by principles of res judicata, collateral estoppel, and double jeopardy. Therefore, he argues, the judgment must be modified and the case remanded with directions to resentence him as a second striker. We reject this claim.
As will appear, defendant’s argument is misplaced because the jury found the fact of the June 18, 1985, conviction allegation true several times over in relation to the prison prior (§ 667.5, subd. (b)) and prior serious felony allegations (§ 667, subd. (a)). The jury never found the June 18, 1985, conviction allegation not true for any purpose, including for purposes of the prior strike conviction allegation. (§ 667, subds. (b)-(i).) In addition, the trial court correctly found, as a matter of law, that the June 18, 1985, conviction constituted a strike within the meaning of section 667, subdivisions (a) through (i), and that defendant was the person who suffered the conviction. Accordingly, defendant was properly sentenced as a third striker. (People v. Williams (2002) 99 Cal.App.4th 696, 700-701 (Williams) [a true finding of one prior conviction allegation supports imposition of sentence under two enhancement allegations when both enhancements are based on the same prior conviction].)
1. Background
Following defendant’s convictions in counts 1 through 7 and 9, a bifurcated jury trial was held on the three prison prior, two prior serious felony, and two prior strike conviction allegations. Before any questions were submitted to the jury, the trial court found that the conviction allegations underlying the enhancement allegations qualified as violent felonies, serious felonies, and strikes within the meaning of sections 667.5, subdivision (b) and 667, subdivisions (a) and (b) through (i). The court also found that defendant was the person described in the documents establishing each of the convictions. The jury was accordingly instructed that defendant was the person whose name appeared on the documents admitted to establish the convictions. The jury was then given numerous verdict forms requesting them to find each prior conviction allegation true or not true as to each of defendant’s current convictions, as applicable.
For example, the three prison prior enhancement allegations were designated as Special Allegations I, II, and III, respectively. Each prison prior allegation was based, respectively, on the September 5, 1991, June 18, 1985, and August 21, 1987, prior conviction allegations. The jury was specifically asked to find whether defendant suffered each of these three prior convictions for purposes of Special Allegations I, II, and III, and for purposes of defendant’s current convictions in counts 1 through 7 and 9. Thus, the jury was given 24 verdict forms on the three prison prior allegations—one for each of the three underlying conviction allegations as to counts 1 through 7 and 9. The jury returned a total of 24 true findings, finding each of the three prior conviction allegations true eight times over.
Similarly, the two prior serious felony allegations were designated as Special Allegations IV and V and were based, respectively, on the 1991 and 1985 prior conviction allegations. The jury was asked to find the September 5, 1991, and June 18, 1985, conviction allegations true or not true for purposes of counts 1, 2, 6, and 7. The jury found Special Allegation IV true on counts 1, 2, and 6, but not true on count 7. However, as pertinent here, the jury found Special Allegation V—the fact of the June 18, 1985, burglary conviction allegation—true on counts 1, 2, 6, and 7.
Accordingly, the jury found the fact of the June 18, 1985, burglary conviction true a total of 12 times: eight times on the verdict forms denoted Special Allegation II on counts 1 through 7 and 9, and four times on the verdict forms denoted Special Allegation V as to counts 1, 2, 6, and 7. Each of these 12 verdict forms stated: “We, the jury in the above-entitled action, find the defendant, RAYMOND GALBREATH, has the following prior conviction on 06/18/1985, to wit, Penal Code section 459, BURGLARY.” (Italics added.)
Finally, the two prior strike allegations were designated as Special Allegations VI and VII, respectively. The eight verdict forms on Special Allegation VI correctly described the 1991 conviction as occurring on September 5, 1991, and the jury returned true findings on each of these allegations. However, the eight verdict forms on Special Allegation VII incorrectly described the underlying conviction allegation as occurring on June 18, 1981, rather than on June 18, 1985, as the information alleged and as the evidence showed. The jury found Special Allegation VII not true on all eight counts. The date “06/18/1981” was circled on each of the eight not true verdict forms.
After the jury returned its verdicts but before the verdicts were read, Juror No. 12 announced, without being asked: “I don’t know if I could speak for everybody, but in regards to . . . I think it’s 6/18/81, you’ll notice a different verdict there, because we have no information in 1981, so we voted that way.” The clerk then read and recorded the verdicts.
After the verdicts were recorded, and before the jury was discharged, the court and counsel met in chambers. The prosecutor said there was “obviously” a typographical error and an inconsistency in the verdicts forms, and asked the court to send the jury back with corrected jury forms on Special Allegation VII. Although the prosecutor noted that the jury found the 1985 conviction allegation true, that the court found the 1985 conviction qualified as a strike, and the 1981 findings were “irrelevant to anything,” the prosecutor was concerned that the 1981 not true findings would be confused with the 1985 true findings. The defense objected to resubmitting the matter to the jury on the grounds it would be “improper to upset the verdict that they have already recorded.”
The court then questioned the 12 jurors to “clarify and confirm” that they found the 1985 conviction allegation “true” as to Special Allegation II. All 12 jurors responded in the affirmative. The court then asked the jurors whether they found the 1981 conviction allegation not true for purposes of Special Allegation VII because there was no evidence of a burglary conviction occurring in 1981. Again, all 12 jurors responded in the affirmative, and Juror No. 12 said: “We had no information on that date.” The jury was then thanked and discharged.
Before sentencing, the People filed a motion requesting that the trial court deem defendant to have three strikes for sentencing purposes based on the jury’s true findings on the 1985 conviction allegation and the trial court’s finding that the 1985 conviction qualified as a strike. Following a hearing, the trial court granted the People’s motion, based on the Third Appellate District’s decision in Williams, supra, 99 Cal.App.4th 696. Defendant was later sentenced as a third striker. This appeal followed.
2. Analysis
As the trial court correctly concluded, Williams is directly on point and is dispositive of defendant’s claim. In Williams, the information alleged that the defendant had one prior strike conviction within the meaning of section 1170.12 based on a 1992 conviction for burglary, and a prior serious felony conviction within the meaning of section 667, subdivision (a) based on the same 1992 conviction. The jury returned a verdict form finding the prior strike allegation true, but failed to return any verdict for the section 667, subdivision (a) enhancement allegation based on the 1992 burglary conviction. The trial court nevertheless concluded that the 1992 conviction qualified as a serious felony conviction within the meaning of section 667, subdivision (a), and imposed a five-year enhancement based on the conviction. (Williams, supra, 99 Cal.App.4th at pp. 699-700.)
The court in Williams reasoned that “sections 1025 and 1158 grant to a defendant the right to have the jury determine only the factual question whether he suffered the alleged prior conviction [citation], and a separate finding is required only for each prior conviction, rather than for each prior enhancement allegation.” (Williams, supra, 99 Cal.App.4th at p. 700.) “Legal questions, such as . . . whether a prior or present felony conviction qualifies . . . under the Three Strikes law, are matters to be determined by the court. (Id. at pp. 700-701.)
The principles followed by the court in Williams and by the trial court here are well settled. “‘The right, if any, to a jury trial of prior conviction allegations derives from [Penal Code] sections 1025 and 1158, not from the state or federal Constitution. [Citations.]’ (People v. Epps (2001) 25 Cal.4th 19, 23.) [A defendant] has no right to jury trial on whether he is the person whose name appears on the documents admitted to establish the convictions. (Id. at pp. 26-27; People v. Belmares (2003) 106 Cal.App.4th 19, 20-28.) Nor is there a constitutional right to a jury trial on whether the prior convictions qualify as sentence enhancements. (People v. Williams[, supra, ] 99 Cal.App.4th [at pp.] 700-701; see also People v. Sengpadychith (2001) 26 Cal.4th 316, 326 [sentencing enhancement may be decided by trial court]; Harris v. United States (2002) 536 U.S. 545, 566-569 [122 S.Ct. 2406, 2419-2420, 153 L.Ed.2d 524] [same].)
As discussed, the jury found the June 18, 1985, conviction allegation true a total of 12 times in relation to the prior serious felony and prison prior allegations, and the trial court correctly found that the 1985 conviction qualified as a strike. (§ 667, subds. (b)-(i).) Accordingly, defendant was properly sentenced as a third striker based in part on the 1985 burglary conviction.
Defendant argues that the trial court read Williams too broadly because there, the jury failed to return any finding on whether the defendant’s 1992 burglary conviction qualified as a serious felony within the meaning of section 667, subdivision (a). Here, in contrast, defendant argues that the jury found the fact of defendant’s 1985 conviction not true for purposes of the strike allegation.
The critical fact defendant disregards is that the jury clearly did not find the fact of the June 18, 1985, burglary conviction not true for purposes of any enhancement allegation or for no purpose at all. Instead, the jury found the “06/18/1981” burglary conviction not true for purposes of the strike allegations in counts 1 through 7 and 9. Furthermore, the not true findings on the June 18, 1981, conviction allegations are of no consequence—not because the 1981 date was a typographical error or because no June 18, 1981, conviction was ever alleged—but because the not true findings on the 1981 conviction were entirely consistent with and in no way undermined the true findings on the June 18, 1985, conviction. Nor is it of any consequence that the true findings on the June 18, 1985, conviction were made in relation to the serious felony and prison prior allegations. The trial court correctly recognized that it was the trial court’s function, not the jury’s, to decide the legal question whether the 1985 conviction qualified as a strike. (Williams, supra, 99 Cal.App 4th at pp. 700-701.)
Defendant further argues that, “although the court below could have reconvened the jury to address what the prosecution claimed was a typographical error before the verdicts were affirmed and recorded, once those events had occurred, the verdicts were final.” In other words, defendant argues that, because the verdicts were entered and the trial court failed to follow the proper procedure for correcting an incomplete or inconsistent verdict, the court was bound by the not true findings and erroneously failed to follow them.
This argument, like defendant’s attempt to distinguish Williams, disregards the true findings on the fact of the June 18, 1985, conviction. It also assumes, incorrectly, that the question of the 1985 conviction allegation should have been resubmitted to the jury before the court lost control over the jury. (See People v. Gray (2005) 37 Cal.4th 168, 199; People v. Bonillas (1989) 48 Cal.3d 757, 768-779 [trial court is authorized to reconvene jury to complete or correct an incomplete or inconsistent verdict where jury has not been discharged and trial court has not lost control over the jury].) As discussed, the jury’s not true findings on the June 18, 1981, conviction were consistent with the jury’s true findings on the June 18, 1985, conviction allegations. Nor were the jury’s not true findings incomplete or incorrect in any relevant respect, in view of its true findings on the fact of the June 18, 1985, conviction. There was no reason to resubmit the question of the June 18, 1985, conviction to the jury.
Our conclusion is not based to any extent on the trial court’s questioning of the jurors regarding their reasons for their findings on the 1985 and 1981 conviction allegations. Defendant argues that this procedure violated Evidence Code section 1150 (verdict may not be impeached based on the effect of a statement, conduct, or evidence on a juror). But regardless of whether the inquiry violated Evidence Code section 1150, it had no bearing on the jury’s true and not true findings. The findings were clear and consistent on their face, were rendered before the inquiry, and were not disturbed following the inquiry.
B. The Trial Court Properly Refused to Dismiss Juror No. 10
Defendant claims the trial court erroneously denied his request to excuse Juror No. 10 and replace him with an alternate juror. We find no error.
1. Background
During the prosecution’s case, several jurors and alternates expressed concern that several African-American males, who had been sitting in the audience and appeared to be associated with defendant, were hanging around the courthouse and, in some instances, following jurors to their cars. Some jurors overheard these individuals comment on Lundin’s use of drugs and the evidence in the case. The court questioned several of the jurors and alternates, including Juror No. 10. Each indicated they felt “awkward,” “uncomfortable,” or “intimidated” about the incidents; however, they also said that the incidents would not affect their decisions in the case. Defendant’s motion for a mistrial was denied.
The following week, after defendant’s stepdaughter Elisha Satterwhite testified for the defense, Juror No. 10 gave the court a note stating: “This is the lady that was outside the court laughing with the other males making remarks about Kelley Lundin being on drugs for three days during this incident.” After discussing the note with the prosecutor and defense counsel, the trial court called Juror No. 10 to be examined outside the presence of the other jurors.
Juror No. 10 confirmed that he was referring to Elisha Satterwhite in his note, that he had seen her with the individuals who were making derogatory comments about Lundin outside the courtroom the week before, and that she had not made any comments herself at that time but was laughing at the other individual’s derogatory comments about Lundin. Juror No. 10 also indicated that, in giving the note to the court, he believed he was following what he understood to be the court’s previous direction to identify any persons involved in the earlier incidents in the event any of them were called to testify.
The trial court asked Juror No. 10 whether his knowledge that Satterwhite was familiar with some of the individuals who had been hanging around outside the courtroom the week before would “in any way prejudice you one way or another in this case[.]” Juror No. 10 responded, “I honestly have to say towards her testimony, yes.” Next, when asked whether he would now give Satterwhite’s testimony less weight, he responded, “I believe that a lot of her credibility was lost. Yes.” Then, when asked whether he could still be fair and impartial, he responded, “Yes.”
Defense counsel then asked Juror No. 10 to explain how he could be fair and impartial after concluding that Satterwhite’s “credibility [was] lost.” Juror No. 10 explained that, “in fairness to everybody,” he believed he would have to tell the other jurors during deliberations that he had seen Satterwhite laughing with the other individuals. But when the court asked whether he could follow the court’s instructions, and that under the instructions the only evidence the jurors could consider was the evidence presented in court, Juror No. 10 said he could follow the instructions and he now understood he would not be able to disclose the incident involving Satterwhite to the other jurors.
The prosecutor also got Juror No. 10 to acknowledge that he understood that the comments made by the individuals who were with Satterwhite were not evidence, and that he now understood that he had to assess Satterwhite’s credibility based solely on her testimony and the other testimony and evidence presented in court. He also reiterated that he could be fair and impartial and base his decisions solely on the evidence presented in court.
Defense counsel moved for a mistrial, on the ground that Juror No. 10 would not be able to separate what he had heard and seen outside the courtroom from the evidence presented inside the courtroom. The motion was denied. The trial court also denied defense counsel’s request to excuse Juror No. 10 and replace him with an alternate juror.
Finally, defense counsel asked that the other jurors be questioned concerning whether they recognized any of the individuals who testified in court that day. The trial court brought in the jury, and asked them whether any of them recognized any of the witnesses that had testified that morning. None of the jurors raised their hands or responded affirmatively.
2. Analysis
“A defendant accused of a crime has a constitutional right to a trial by unbiased, impartial jurors. [Citations.] A defendant is ‘entitled to be tried by 12, not 11, impartial and unprejudiced jurors. “Because a defendant charged with a crime has a right to the unanimous verdict of 12 impartial jurors [citation], it is settled that a conviction cannot stand if even a single juror has been improperly influenced.” [Citations.]’ [Citations.]
“Juror misconduct, such as the receipt of information about a party or the case that was not part of the evidence received at trial, leads to a presumption that the defendant was prejudiced thereby and may establish juror bias. [Citations.] ‘The requirement that a jury’s verdict “must be based upon the evidence developed at the trial” goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury. . . . [¶] . . .’ ‘Due process means a jury capable and willing to decide the case solely on the evidence before it . . . .’ [Citations.]” (People v. Nesler (1997) 16 Cal.4th 561, 578-579.)
Relying on People v. Nesler, defendant claims that Juror No. 10 committed misconduct by receiving information about defense witness Elisha Satterwhite from outside the courtroom. We agree that Juror No. 10’s inadvertent exposure to the extra judicial information concerning Satterwhite’s association with the individuals outside the courtroom, though not blameworthy, nevertheless constituted “misconduct” that gave rise to a presumption of prejudice. (People v. Nesler, supra, 16 Cal.4th at p. 579.) But this is only part of the question. Whether Juror No. 10 should have been replaced depends upon whether “there appears a substantial likelihood” he was actually biased, that is, actually influenced by the extrajudicial information. (Id. at pp. 580-581.)
This is a mixed question of law and fact, subject to independent review. (People v. Majors (1998) 18 Cal.4th 385, 417, citing People v. Nesler, supra, 16 Cal.4th at p. 582.) Specifically, we must independently determine whether, based on the nature of Juror No. 10’s inadvertent misconduct and all the surrounding circumstances, there is a substantial likelihood that he was unable to put aside his impressions or opinions based upon the extrajudicial information and render a verdict based solely upon the evidence received at trial. (People v. Nesler, supra, at pp. 582-583.)
We conclude it is not substantially likely that Juror No. 10 was incapable of rendering a verdict based solely on the evidence received at trial. The court and counsel made it abundantly clear to Juror No. 10 that he could not tell the other jurors what he had seen outside the courtroom—Satterwhite laughing at other individuals’ comments about Lundin—and that he could not allow that extrajudicial information to affect his assessment of Satterwhite’s credibility or any of his other decisions in the case. Juror No. 10 repeatedly acknowledged that he understood. Nor was there any indication that Juror No. 10 was displeased with or intimidated by the other individuals, such that he was substantially likely to have used any bias he had against them against defendant. He only reported seeing Satterwhite laughing with the individuals because he believed the court had directed him to do so. Finally, his inadvertent receipt of the out-of-court information was not “so prejudicial in and of itself that it is inherently and substantially likely” to have influenced his decisions in the case. (People v. Nesler, supra, 16 Cal.4th at pp. 578-579.) The trial court therefore did not err in refusing to replace him.
C. The Trial Court Properly Refused to Reopen the Defense Case
Lastly, defendant claims the trial court erroneously refused to allow his counsel to reopen the defense case before argument to elicit evidence that a material prosecution witness, Lundin, had bragged about lying at trial. Again, we find no error.
1. Background
After the defense rested, but before argument, defense counsel asked the court to allow him to reopen his case to present evidence that Lundin had “spoken with people in this community and essentially bragged about lying in this trial.” He asked to reopen so he could “try to investigate” the claim.
The prosecutor pointed out that defense counsel had not identified any witness to Lundin’s purported bragging, and asked the court to deny the motion based on the lack of specificity and failure to make a sufficient offer of proof. Defense counsel said he knew the first name of the proposed witness and requested time to get in touch with her and interview her. The motion was denied without prejudice.
Two days later, while discussing jury instructions, defense counsel renewed his motion to reopen the defense case, on the grounds he had a tape recording of a telephone interview the defense investigator conducted with Celena Warren, the proposed witness to whom Lundin allegedly bragged about lying at trial. Defense counsel had just received the tape and had not had an opportunity to listen to it. Nor did he have copies or a transcript of it.
Defense counsel said the tape would show that, approximately two weeks earlier, Lundin told Warren that she had “not [been] completely truthful” in her trial testimony. In addition, according to Warren, Lundin’s “attitude” was, “It’s just another nigger anyway. So what does it matter?” Lundin was also allegedly smoking methamphetamine when she made these statements to Warren—contrary to her testimony that she did not use methamphetamine anymore. Warren had lived with Lundin in the past, and had approached the Galbreath family with this information.
The prosecutor opposed the motion on the grounds Warren was not present to be examined; it was unclear, among other things, what Lundin allegedly lied about; and the nature of Warren’s relationship with defendant was unclear. The trial court asked what would happen if the People found a witness who would testify that Warren had a vendetta or “hard feelings” of some kind against Lundin, and “now we’re going back and forth with discrediting these subsequent witnesses?” Nevertheless, the court and both counsel listened to the tape, which was less than 15 minutes in length.
After listening to the tape, the court observed that, according to Warren, Lundin said defendant did try to rob her, although she also said, “it wasn’t quite as bad as that.” Lundin also allegedly indicated she could not “change her story” because she did not want to “prejudice” or perjure herself.
The court noted that the tape did not reveal “anything specific” concerning what Lundin meant when she said the incident was “not as bad as described.” The court also observed that Warren indicated she was friends with defendant and his wife, and that she referred to Lundin as a “snitch,” and claimed Lundin had a history of “snitching out friends.” This indicated to the court that Warren may have had “an ax to grind” with Lundin on behalf of defendant and his wife.
Moreover, the court emphasized there was no indication of how or in what respect Lundin’s testimony was false. Despite being pressed for specifics by the defense investigator, Warren offered none. Thus, in the court’s view, Lundin’s alleged statement that the incident “didn’t go down exactly as described” was too vague and unspecific, and could have been in reference to a minor or trivial matter.
On these grounds, the court denied the motion to reopen the case. The court noted the defense was not precluded from further investigating the matter and developing additional evidence as grounds for a motion for new trial. However, the record does not indicate that the defense was able to develop additional evidence.
2. Analysis
A trial court has discretion to order a case reopened for good cause even after jury deliberations have begun. (People v. Green (1980) 27 Cal.3d 1, 27; §§ 1093, 1094.) In determining whether a trial court has abused its discretion in refusing a defense request to reopen, we consider the following factors: “‘(1) the stage the proceedings had reached when the motion was made; (2) the defendant’s diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence.’” (People v. Jones (2003) 30 Cal.4th 1084, 1110, quoting People v. Funes (1994) 23 Cal.App.4th 1506, 1520.)
Here, the significance of the evidence or lack thereof is the controlling factor. As the trial court said, Warren’s proffered testimony was too vague and unspecific to warrant reopening the defense case. Warren was expected to testify only that Lundin said she was “not completely truthful” in testifying at trial and, although defendant attempted to rob her, the incident was “not as bad” as she described. But there was no showing of exactly how or in what respect Lundin was untruthful. As the trial court recognized, there was no showing that Lundin lied about a significant matter, rather than a trivial or minor point.
Lundin’s alleged use of methamphetamine after she testified that she no longer used the drug, and her reference to defendant as a “nigger,” were also insufficient grounds for reopening the case. Lundin’s use of methamphetamine after she testified would have, at best, impeached her on a collateral matter. Similarly, her use of a racial epithet would have served only to inflame the jury with another collateral matter. For these reasons, the trial court properly refused to reopen the case to evidence.
V. DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P.J., Richli, J.
“Where the trial court finds that the defendant is the person who is named in the conviction records, it may so instruct the jury. (People v. Kelii (1999) 21 Cal.4th 452, 458.) The jury then “‘determine[s] whether those documents are authentic and, if so, are sufficient to establish that the convictions the defendant suffered are indeed the ones alleged.”’ (People v. Epps, supra, 25 Cal.4th at p. 27, quoting People v. Kelii, supra, 21 Cal.4th at pp. 458-459.)” (People v. Garcia (2003) 107 Cal.App.4th 1159, 1165.)