Opinion
NOT TO BE PUBLISHED
Superior Court of Ventura County No. 2007019315 Rebecca S. Riley, Judge.
Madeline McDowell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jamie L. Fuster, Margaret E. Maxwell and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, J.
Ernesto Gracia appeals from the judgment entered following his conviction by a jury of first degree murder. (Pen. Code, §§ 189, 187, subd. (a).) The jury found true allegations that appellant had personally used a deadly weapon (§ 12022, subd. (b)(1)) and that the murder had been committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) In addition, the jury found true a special circumstances allegation that appellant had intentionally killed the victim to further the activities of a criminal street gang while appellant was an active participant in the gang. (§ 190.2, subd. (a)(22).) Appellant admitted two prior prison terms. (§ 667.5, subd. (b).) He was sentenced to prison for life without the possibility of parole plus one year for the deadly weapon enhancement plus two years for the two prior prison terms.
All statutory references are to the Penal Code unless otherwise stated.
Appellant contends that the evidence is insufficient to support the gang enhancement and special circumstances allegation. Appellant also contends that the trial court erroneously: (1) discharged a juror during jury deliberations; (2) admitted evidence of a felony assault committed by appellant while he was in jail awaiting trial on the murder charge; (3) permitted a gang expert to opine that the murder was committed for the benefit of a criminal street gang; (4) gave a special jury instruction on first degree murder; and (5) failed to answer the jury's question during deliberations. We affirm.
Facts
People's Evidence
The victim, Juan Zarate, went to a liquor store on Hill Street in Oxnard. He was "drunk, " "kind of stumbling, " and "loud." Appellant arrived later at the liquor store. Appellant was an active member of the Loma Flats criminal street gang. The liquor store was in the "heart" of the territory claimed by the gang.
Appellant and Zarate got into an argument. The argument occurred in the presence of other Loma Flats gang members. Zarate was bragging that "he could take on all" of the gang members. Zarate said that "he had some kind of steel, " which the gang members interpreted as meaning that he had a weapon. Zarate called appellant "a mother fucker." Appellant "snapped" and had a "crazy look." One of the gang members, Marcos Manilla, told Zarate that "this was [their] neighborhood" and that he would get hurt if he continued to be "disrespectful."
Zarate said, "Oh, I'm sorry, I didn't know you guys were from Loma. Zarate shook Manilla's hand and "said he didn't want no problems." Zarate tried to shake appellant's hand and offered to buy him a beer. Appellant said, " 'No, ' and he kind of slapped [Zarate's] hand." Appellant appeared to be mad. Zarate "backed off." Appellant told Manilla that Zarate had "disrespected him."
Appellant said to Zarate in a nice tone of voice, "Let's just go outside." Zarate walked outside of the store. An older man told Zarate: "This is my street. This is my store, ... stop messing around here or something is going to happen to you." Appellant walked up to Zarate and stabbed him in the heart. Appellant said to Zarate, "Who's the mother fucker now." Another gang member, Danny Molano, started laughing. Molano said, "Give him [Zarate] five minutes. He's going to choke on his own blood." "You hit him good, you hit him in a good spot." At the time of the stabbing, Zarate was "[j]ust standing there." His hands were not up to defend himself.
A gang expert opined that the murder "was done for the benefit of and in association with the Loma Flats criminal street gang."
Defense Evidence
Appellant testified that Zarate removed his belt and started swinging the buckle end at appellant. Zarate said, "Come on, mother fucker." Appellant was scared. Zarate put his belt back on and said, "Fuck this, I'll go get a knife." Appellant bought a lottery ticket and walked outside. Zarate exited the store and walked toward appellant. Appellant removed a knife from his pocket, walked three steps toward Zarate, and swung at him with the knife. Appellant was scared because Zarate said he was going to get a knife. Appellant "wasn't aiming, ... [he] just swang at [Zarate]." Appellant testified: "My intentions were never to kill him. I didn't mean for him to die. I was just scared."
Sufficiency of the Evidence
Appellant contends that the evidence is insufficient to support the gang enhancement and special circumstances allegation because the gang expert's "opinion that the stabbing was gang-motivated based on fear of retaliation from other gang members was based on pure speculation." Appellant is referring to the gang expert's testimony that, when a "non-gang member fails to show proper respect" to a gang member, the gang member must "retaliate and strike back to show that [he is] the dominant one." Otherwise, the gang member "would lose his status within that particular street gang and most likely would be punished for his lacking of courage that he had for taking care of the issue of the disrespect. It's basically one of their own unwritten rules and part of their subculture that once they're disrespected, they have to take action...." Thus, "it can be a dangerous thing for an active gang member" to not respond to an act of disrespect.
The gang expert further testified: "The status of the person within this gang is huge. They can't allow to be disrespected in front of their fellow gang members. If they did, ... they, in turn, would be dealt with by their own gang members because they have to show that they're tough...." The prosecutor asked the gang expert: "[W]ould there have been a consequence for this hypothetical defendant if he had not enforced the gang honor, if he walked away from that disrespect?" The gang expert replied, "The consequence would be a punishment, severe punishment from his fellow gang members if he would have just walked away." Appellant argues that "[t]he proffered reason that this 'hypothetical defendant' would retaliate by stabbing the victim to avoid severe punishment was based on pure speculation...."
"Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error. [Citation.] Thus, when a criminal defendant claims on appeal that his conviction was based on insufficient evidence of one or more of the elements of the crime of which he was convicted, we must begin with the presumption that the evidence of those elements was sufficient, and the defendant bears the burden of convincing us otherwise." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
Appellant has failed to carry his burden. He mischaracterizes the basis of the gang expert's opinion that the stabbing was a gang-motivated crime. The expert's opinion was not based on appellant's "fear of retaliation from other gang members" if he had walked away. The opinion was based on several factors that cannot be characterized as speculative. The most important factor is the paramount place of respect in gang culture. Because respect is "the ultimate, " "the utmost challenge that you can do to a gang member is disrespecting them." Zarate's act of disrespect was especially egregious because it was committed in the presence of appellant's fellow gang members and in territory claimed by the gang. The expert explained: "[B]y the victim disrespecting the person who stabbed him in front of his other fellow gang members, ... it basically puts a ball in motion...." "This is their territory. You can't disrespect it.... [I]f they let people disrespect them in their territory, then they're nothing, and they're not going to be the king of the hill, and other gangs are going to be able to come into their neighborhood and disrespect them."
The expert's opinion that the stabbing was gang motivated was also based on the benefit that the gang would derive from the crime. The stabbing "in broad daylight in front of citizenry and other people" benefited the gang by increasing the community's fear of the gang. Gang members want to be dominant, "and in order to be dominant they have to be feared by the rival gangs as well as the community and the public." "[B]y instilling fear and intimidation into the community, it increases [the gang's] chances of continuing their criminal behavior on the street." "[T]his is like a trophy for them, that they committed this type of act, and it increases their status and their culture."
Discharge of Juror
Appellant contends that the trial court abused its discretion in discharging juror no. 12 during jury deliberations.
Facts
The trial court received notes from three jurors complaining about juror no. 12. The three jurors were the foreperson, juror no. 3, and juror no. 6. The court investigated the complaints by questioning each of the three jurors.
The court asked the foreperson, "So what you've indicated is that he's the juror, of course, who was sleeping through the trial." The foreperson responded, "Yes, ma'am." The foreperson went on to state: Juror number 12 has been "[c]onsistently sleeping" during jury deliberations. At juror number 12's request, on the previous day appellant's testimony was read back by the court reporter. When the reporter "started reading the testimony, [juror No. 12] began to sleep." During a "heated discussion, " the foreperson berated juror number 12 for not staying awake. As a result of this discussion, juror number 12 is no longer deliberating in good faith. "It was... as if his decision was not based on the testimony. His decision was based on the fact that there was an angry discussion.... [¶] So instead of having a juror who would be more open to listening to the testimony and evaluating the evidence, he was more like 'my decision is made'...." Juror number 12 "has constantly defended circumstances based on his own experiences.... [¶]... He's not following the instructions."
Juror number 3 stated that juror number 12 has been sleeping and "not paying attention" during deliberations. Juror number 3's "main concern" was "that... [juror No. 12] has an attitude that was not disclosed during voir dire." In juror number 3's note to the court, he/she observed that juror number 12 had indicated during deliberations "that he doesn't trust the police & listens to them [with a] grain of salt." Juror number 3 told the court that juror number 12's distrust was based on his personal experiences and his "philosophy class."
As to juror number 6, the court asked the juror whether he/she was complaining about juror number 12, the "juror that a couple times nodded off during the trial." Juror number 6 replied: "Correct. And because he was right in front of me, I was also able to observe that he was constantly drawing pictures, doodling doodles." Juror number 6 informed the court that "[d]uring many of our sessions he's been falling asleep, and when he's asked to wake up, he states that he's not sleeping." According to juror number 6's notes, juror number 12 declared: " 'I wasn't sleeping. I'm just trying to block out all the distractions so I can focus. My doodles can help me focus.' " Juror number 6 complained: "[W]e're having to repeat things, go over testimony that were [sic] given in full again because he missed quite a bit." The previous day, "[t]here was a little bit of belligerence and hostility... when [the foreperson]... asked... [juror no. 12] to pay attention and keep his eyes open." The foreperson asked juror number 12 if he would "still be willing to listen to the testimony because he seemed to have shut down." Juror number 12 responded: " 'I'm a passionate person. I need distance. I wasn't shutting down this morning. I was just meditating.' "
After the questioning of the jurors was completed, the court asked counsel: "Do you want me to bring him [juror no. 12] in and talk to him?" The prosecutor replied that juror number 12 need not be questioned because the statements of the three jurors were sufficient to justify his discharge. Defense counsel did not respond to the court's question.
Over appellant's objection, the court decided to discharge juror number 12. It reasoned: "[B]oth (juror's name) and (juror's name) said that he's fallen asleep multiple times, although he denies it. He also denied that he was sleeping in the courtroom. He was clearly sleeping. I don't think there was anyone who was here who would believe he was meditating or something, and we could physically see him nodding over there. [¶] I believe we have sufficient evidence both because of the sleeping during the trial, the lack of truthfulness of questioning in voir dire and what's been going on back in the jury room that I'm going to dismiss him...."
Juror number 12 came into the courtroom. The court said that it was going to discharge him because "there has been a problem with deliberations and... the sleeping." Juror number 12 responded: "No problem, but just for the record, your Honor, I wasn't sleeping. I close my eyes sometimes to visualize things. It makes it easier for me to process." The court selected one of the alternate jurors to replace juror number 12.
Standard of Review
Section 1089 provides that the court may discharge a juror at any time if upon "good cause shown to the court [the juror] is found to be unable to perform his or her duty." "Removal of a juror under section 1089 is committed to the discretion of the trial court, and we review such decisions by asking whether the grounds for such removal appear in the record as a demonstrable reality. [Citation.]" (People v. Thompson (2010) 49 Cal.4th 79, 137.)
Discussion
Based on People v. Ramirez (2006) 39 Cal.4th 398, the discharge of juror number 12 can be upheld solely on the ground that he was sleeping during the trial and deliberations. In Ramirez the jury foreperson informed the trial court that a juror (Mr. L.) had fallen asleep on two occasions during deliberations. "The court dismissed the juror over defendant's objection, stating: 'I have from time to time observed Mr. L[.]... nodding, and it seemed somewhat clear that - that Mr. L[.] was asleep or dozing or catnapping or doing something other than paying rapt attention to the proceedings.... The court finds that although I gave Mr. L[.]... the benefit of a reasonable doubt prior to today with regard to his attentiveness... it now is quite clear that good cause exists to excuse him because of his sleeping.' " (Id., at p. 457.)
In Ramirez our Supreme Court declared: "A trial court does not abuse its discretion if it discharges a juror who falls asleep during the trial. (People v. Johnson (1993) 6 Cal.4th 1, 22, 23....) As we stated in Johnson, 'the court's ruling excusing [the juror] can be sustained solely on the basis of its finding that [the juror] had fallen asleep during trial.' [Citation.] In the present case, the trial judge had observed that the juror had difficulty paying attention during trial and appeared to fall asleep. The judge's observations were consistent with the testimony of the jury foreperson that the juror had fallen asleep twice during deliberations. The trial court, therefore, did not abuse its discretion in discharging the juror." (People v. Ramirez, supra, 39 Cal.4th at p. 458.)
The justification for the discharge here is stronger than it was in Ramirez. In Ramirez only the foreperson told the court that Mr. L. had fallen asleep during deliberations. Here, two jurors corroborated the foreperson's observations. In addition, juror number 6 confirmed the trial court's observation that juror number 12 was the "juror that a couple times nodded off during the trial." The foreperson answered affirmatively when the trial court asked, "So what you've indicated is that he's the juror, of course, who was sleeping through the trial?" Appellant did not object when the court stated: "He was clearly sleeping [in the courtroom].... I don't think there was anyone who was here who would believe he was meditating or something, and we could physically see him nodding over there."
During the trial, the court interrupted testimony to state: "I think we need a quick stretch break. We've lost one of our jurors." Juror no. 12 replied, "I'm still listening."
Accordingly, the trial court did not abuse its discretion in discharging juror number 12 for sleeping during the trial and deliberations. We need not consider whether the discharge of juror number 12 was also justified on the other grounds mentioned by the court.
Admission of Evidence of Appellant's Jail Assault
Appellant made a pretrial motion in limine to prohibit the prosecution from referring to a felony assault committed by him while he was in jail awaiting trial on the murder charge. In the motion appellant stated that he had allegedly beaten and kicked another inmate, who had "suffered several lacerations requiring sutures as well as a fractured orbital socket." At a preliminary hearing, appellant was held to answer for assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) and active participation in a criminal street gang. (§ 186.22, subd. (a).) As to the assault, appellant was also held to answer on a great bodily injury allegation. (§ 12022.7, subd. (a).)
Appellant requested that evidence of the assault be excluded pursuant to Evidence Code section 352. The trial court deferred ruling on whether evidence of the assault would be admissible to show that it was a gang-related incident. The trial court ruled that evidence of the assault would be admissible to impeach appellant if he testified.
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Appellant contends that "it was error for the court to permit the gang expert to allude to" the jail assault. Appellant argues that the gang expert alluded to this assault when he "testified that, in part, he based his opinion that appellant was an active gang member at the time of the crime based on 'one gang involved arrest which I'll talk about later which is a current incident that[] we're here for.' " Since the gang expert said nothing about the nature of this incident, the jury could not have reasonably construed his testimony as alluding to the jail assault. In any event, appellant forfeited the issue by failing to object or make a motion to strike. (People v. Lewis (2008) 43 Cal.4th 415, 527.)
Appellant contends that the trial court abused its discretion in allowing the prosecutor to cross-examine appellant about the jail assault. Appellant argues that the assault was inadmissible for impeachment purposes because it did not result in a conviction. "But section 28(d) [of Article I of the California Constitution] makes immoral conduct admissible for impeachment whether or not it produced any conviction, felony or misdemeanor." (People v. Wheeler (1992) 4 Cal.4th 284, 297, fn. 7.)
The trial court did not abuse its discretion in allowing appellant to be impeached with the jail assault. Assault by means of force likely to produce great bodily injury is a crime of moral turpitude. (People v. Elwell (1988) 206 Cal.App.3d 171, 177.) A magistrate held appellant to answer for the crime. The assault was very recent. It was committed in June 2008, only a few months before the trial. "Although the [assault] was of a violent nature, it was no more violent than the circumstances surrounding [appellant's] present offense." (People v. Chavez (2000) 84 Cal.App.4th 25, 30.)
Admission of Gang Expert's Opinion
Appellant contends that the trial court erroneously permitted the gang expert to opine that the murder "was committed for the benefit of and to further the activities of" the Loma Flats gang. Appellant asserts that this "improper opinion prejudiced appellant's right to a fair trial because the expert's opinion regarding appellant's intent shifted responsibility away from the jury in deciding an element of the gang enhancement and the special circumstance...."
Appellant's contention is meritless. "[C]ourts... have repeatedly recognized that expert testimony is admissible on the issue of ' "whether and how a crime was committed to benefit or promote a gang." ' [Citations.] [¶]... We conclude there was no error in the admission of expert opinion testimony that the crimes were for the purpose of benefiting the gang." (People v. Williams (2009) 170 Cal.App.4th 587, 621; see also People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551, fn. 4 ["A gang expert may render an opinion that facts assumed to be true in a hypothetical question present a 'classic' example of gang-related activity, so long as the hypothetical is rooted in facts shown by the evidence"]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1384 [jury could reasonably rely on gang expert's opinion that shooting "benefited Southside because it 'promoted the respect of the Southside Gang' "; court noted that "[i]t is difficult to imagine a clearer need for expert explication than that presented by a subculture in which this type of mindless retaliation promotes 'respect' "].)
Special Jury Instruction on First Degree Murder
The trial court gave a special jury instruction that was taken verbatim from section 189. The instruction provided: "To prove the killing was 'deliberate and premeditated, ' it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his act." Appellant argues that, although the special instruction "is 'an accurate statement of the law' in the abstract, the principle stated in the instruction has no application to the facts of this case whatsoever and should not have been given." We disagree. The principle stated in the special instruction is clearly relevant here.
Jury's Question
In addition to giving the special instruction on first degree murder, the trial court gave CALCRIM No. 521, which provides in part: "The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation.... The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill."
During deliberations, the jury sent a note to the court asking it to "reword/clarify" the special instruction "because it seems to be ambigious [sic] and conflicts with" the definition of "deliberately" in CALCRIM No. 521. After consulting with counsel, the court stated, "I'm just going to tell them that both instructions are accurate statements of the law." Appellant did not object to this course of action, and the court so instructed the jury in writing. Appellant now contends that the trial court "[e]rred in [f]ailing to [a]nswer the [j]ury's [q]uestion." (Underscoring omitted.) Appellant argues that the court violated section 1138, which "requires that any questions posed by the jury regarding the law or the evidence be answered in open court in the presence of the accused and his or her counsel, unless presence is waived." (People v. Chagolla (1983) 144 Cal.App.3d 422, 432.)
Section 1138 provides: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."
"The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.]... But a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given." (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
"When a trial court decides to respond to a jury's note, counsel's silence waives any objection under section 1138. [Citation.]" (People v. Roldan (2005) 35 Cal.4th 646, 729, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, and fn. 22.) Here, appellant waived any objection because his counsel remained silent. In any event, the trial court did not abuse its discretion. The original instructions were full and complete. The trial court considered how to best aid the jury. The court reasonably decided to correctly instruct the jury that both the special instruction and CALCRIM No. 521 are accurate statements of the law.
Dispositiom
We concur: GILBERT, P.J., PERREN, J., Rebecca S. Riley, Judge
The judgment is affirmed.