Opinion
E072218
06-29-2020
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN MUWWAKKIL GRAY, JR., Defendant and Appellant.
Eric S. Multhaup, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Robin Urbanski and Yvette M. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV18002337) OPINION APPEAL from the Superior Court of San Bernardino County. Tony Raphael, Judge. Affirmed. Eric S. Multhaup, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Robin Urbanski and Yvette M. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Was there a lawyer on this jury? The voir dire, as usual (Cal. Rules of Court, rule 8.320(c)(3)), has not been transcribed, so we may never know. During their deliberations, however, the jurors sent out multiple questions, including two that were unusually perspicacious — the jurors spotted subtle legal issues that the parties and the trial court had not.
The jurors then found defendant Benjamin Muwwakkil Gray, Jr. guilty, as charged, of driving or taking a vehicle without consent. (Veh. Code, § 10851, subd. (a).) In a bifurcated proceeding, after waiving a jury trial, he admitted one strike prior. (Pen. Code, §§ 667, subds. (b)-(i); 1170.12.) He was sentenced to six years in prison.
Defendant contends that the jurors's two questions showed that they had been exposed to prejudicial information; therefore, the trial court should have conducted a further inquiry. Moreover, one of the questions was about evidence which, according to defendant, should never have been admitted. He contends that the prosecutor, defense counsel, and the trial court all fell down on the job by letting this evidence in.
We find no error. The trial court's answers to both questions were favorable to defendant; it told the jury to disregard the assertedly inadmissible evidence. Defendant has not shown any misconduct by the jurors, the trial court, the prosecutor, or defense counsel. Hence, we will affirm.
I
STATEMENT OF FACTS
On April 17, 2018, an employee of BMW of Ontario discovered that a red 2018 BMW 330i was missing. It was worth $45,000.
Surveillance video showed that on April 15, at about 5:30 a.m., a man climbed in over the wall of the dealership. He was African-American, tall and thin, with a shaved head. He was wearing a gray jacket, a blue shirt, and blue jeans. He was also wearing sunglasses, and his face was never clearly visible.
April 15 was a Sunday; the dealership did not open until 9:00 a.m., and no one else was on the lot. The man spent two hours checking cars to see if they were unlocked; when they were, he rummaged through them and took items — mostly paperwork belonging to people who had left their cars to be serviced.
At about 7:30 a.m., he drove the red car off the lot. It was a loaner car; the keys had been left in it. He opened the locked gate using a set of cleaning ladies' keys that he found in a shed.
On April 17 or 18, the car was impounded in Hollywood. It was "filthy." Both bumpers and all four wheels were damaged. The battery was dead. There was Gatorade in the gas tank. The police did not check the car for fingerprints.
Inside the car, there were items, including paperwork, that had been taken from the other vehicles. In the trunk, there was an identification card with defendant's name; it indicated that on April 14, he had been arrested for "poss unlaw paraphernalia," a violation of Health and Safety Code section 11364 (section 11364). There was also a booking application. It indicated that on April 14 at 9:47 p.m., defendant had been booked into jail for a violation of section 11364.
Defendant was African-American, six feet one inch tall, weighing 180 or 200 pounds, with a shaved head. West Valley jail records showed that he had been released on April 15 at 2:00 a.m. When released, he was wearing a blue shirt and blue jeans. The West Valley jail is approximately four miles from BMW of Ontario.
II
JURY QUESTION ABOUT CONSIDERING
DEFENDANT'S "BODY LANGUAGE"
Defendant contends that, after the jury sent out a question about considering his "body language," the trial court erred by failing to inquire into the jury's discussion.
A. Additional Factual and Procedural Background.
During its deliberations, the jurors sent out the following question: "Are we allowed to use Mr. Gray's body language in court? To identify as the suspect in the video."
At defense counsel's urging, but over the prosecutor's objection, the trial court responded, "Mr. Gray's body language in the courtroom is not evidence. Please refer to instruction No. 222 for the definition of evidence."
B. Discussion.
"'In criminal trials of guilt, prosecutorial references to a nontestifying defendant's demeanor or behavior in the courtroom have been held improper on three grounds: (1) Demeanor evidence is cognizable and relevant only as it bears on the credibility of a witness. (2) The prosecutorial comment infringes on the defendant's right not to testify. (3) Consideration of the defendant's behavior or demeanor while off the stand violates the rule that criminal conduct cannot be inferred from bad character.' [Citation.]" (People v. Boyette (2002) 29 Cal.4th 381, 434; accord, People v. Garcia (1984) 160 Cal.App.3d 82, 91-92.)
On the other hand, it is a "routine practice [for] a jury [to] view[] the defendant's physical appearance to see if it comports with a physical description given by a witness or to determine if the physical appearance of a defendant supports a factual finding that must be made by the trier of fact. [Citation.]" (People v. Garcia, supra, 160 Cal.App.3d at p. 91, fn. 7; see, e.g., People v. Montalvo (1971) 4 Cal.3d 328, 335 ["a view of the defendant by the trier of fact in an appropriate case may be sufficient to support a finding that the defendant is an adult"].) While it is probably better practice for counsel to call attention, on the record, to the relevant aspect of the defendant's physical appearance, that is not required. (E.g., People v. Weathers (1950) 97 Cal.App.2d 821, 824 [jury could consider its observations of defendant's size in deciding whether he could fit through a hole 12 inches wide].)
In a case like this, where there is video of a culprit committing a crime, it would be absurd to prohibit the jury from considering whether the defendant looks like the culprit. Admittedly, the jury's question referred to defendant's "body language," which could mean his demeanor rather than his appearance. It went on to make it clear, however, that the jury was only asking whether it could consider his body language in making an "identif[ication]," not in evaluating his character.
Defendant claims the jury could not possibly have been comparing his gait to that of the perpetrator, "because [the jurors] never saw [him] walking." He does not cite any portion of the record supporting this, nor have we found any. In any event, walking is only one of innumerable potentially idiosyncratic ways of moving or positioning oneself.
Thus, the trial court did err, but in favor of defendant, by instructing the jury not to consider its observations. Because the jury could properly have considered these observations, there was no need for the trial court to inquire further, and further inquiry would not have revealed misconduct.
From their question, and from the reactions of the prosecutor and defense counsel, defendant's "body language" evidently was inculpatory. If that is incorrect — if it was exculpatory — then the trial court's instruction was prejudicial. However, it gave that instruction at defense counsel's request; thus, defense counsel invited any error.
Separately and alternatively, however, even if the trial court's instruction was legally correct, its failure to make a further inquiry was not reversible error.
Preliminarily, the People do not contend that defense counsel forfeited this contention by failing to raise it below. Supreme Court authority on this point is confusingly mixed. (Compare People v. Powell (2018) 6 Cal.5th 136, 185 [forfeited] and People v. Holloway (2004) 33 Cal.4th 96, 126-127 [forfeited] with People v. Cowan (2010) 50 Cal.4th 401, 506-507 [never forfeited].) We therefore assume, without deciding, that the contention was not forfeited. Nevertheless, it lacks merit.
"[T]he secrecy of deliberations 'may give way to reasonable inquiry by the court when it receives an allegation that a deliberating juror has committed misconduct.' [Citation.]" (People v. Nelson (2016) 1 Cal.5th 513, 569.)
"'"When a trial court is aware of possible juror misconduct, the court 'must "make whatever inquiry is reasonably necessary"' to resolve the matter." [Citation.] Although courts should promptly investigate allegations of juror misconduct "to nip the problem in the bud" [citation], they have considerable discretion in determining how to conduct the investigation. "The court's discretion in deciding whether to discharge a juror encompasses the discretion to decide what specific procedures to employ including whether to conduct a hearing or detailed inquiry." [Citation.]' [Citations.]" (People v. Linton (2013) 56 Cal.4th 1146, 1213, italics added.)
When a trial court questions whether the jurors are deliberating properly, "it often is appropriate . . . to reinstruct the jurors . . . and to permit the jury to continue deliberations before making further inquiries that could intrude upon the sanctity of deliberations." (People v. Cleveland (2001) 25 Cal.4th 466, 480.)
People v. Lucas (2014) 60 Cal.4th 153, disapproved on unrelated grounds in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19, is all but on point here. In Lucas, the jury sent out a question asking what would happen if it deadlocked. (Id. at p. 320.) On appeal, the defendant argued "that the jury committed misconduct in discussing the consequences of a deadlock and that the trial court erred by failing to inquire into this alleged misconduct." (Id. at p. 320, fn. 64.)
The Supreme Court rejected this contention. It explained: "[J]urors having difficulty during deliberations would naturally be curious about the consequences of their deadlock, and this circumstance, by itself, cannot be considered misconduct. More important, instead of relying on speculation or extrinsic information, the jury dutifully expressed its concern by asking the court about this scenario. In this situation, the court addressed the jury's question and had no obligation to inquire further." (People v. Lucas, supra, 60 Cal.4th at p. 320, fn. 64.)
Here, similarly, the jurors could reasonably wonder about whether they could consider defendant's body language, especially if it resembled that of the suspect in the video. In the words of Lucas, they "dutifully expressed [their] concern by asking the court about this . . . ." The trial court instructed them not to consider it. There is no reason to suppose that they could not or did not follow that instruction (especially as they had asked the question themselves).
Defendant argues that an instruction alone was not sufficient to prevent prejudice; he cites People v. Hem (2019) 31 Cal.App.5th 218. There, however, the jurors had already been instructed to deliberate only when they were all together in the jury room. (See id. at p. 230.) Nevertheless, four jurors were overheard discussing the case in a hallway. (Id. at pp. 221-222.) The appellate court held that the trial court erred by failing to inquire further regarding the misconduct. (Id. at pp. 225-229.) It added that reinstructing the jury to deliberate only when they were all together in the jury room (see id. at p. 223) was not sufficient to rebut the presumption of prejudice, because the jurors had already proved willing to violate the original instruction. (Id. at p. 230.)
Here, by contrast, the jurors never showed that they were willing to violate instructions. Admittedly, they had been given CALCRIM No. 222, which stated, in part: "'Evidence' is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence." However, this did not in so many words prohibit them from considering defendant's appearance. The same instruction also stated: "You must disregard anything you saw or heard when the court was not in session." This implied that they could consider anything they saw or heard when the court was in session. Thus, the mere fact that they evidently had a discussion of whether they could consider defendant's appearance did not show that they were unable to follow the instruction, only that they were unsure how to interpret the instruction. Quite properly, they asked the trial court.
Under these circumstances, the trial court could reasonably conclude that any presumption of prejudice had been rebutted and that there was no need for any further inquiry. (See also People v. Harris (2013) 57 Cal.4th 804, 857 [presumption of prejudice from juror's misconduct in sharing her observations of defendant's in-court demeanor during deliberations was rebutted because trial court instructed jurors not to consider them].)
III
JURY QUESTION ABOUT DEFENDANT'S PRIOR CRIME
AS SHOWN ON THE BOOOKING APPICATION
Defendant contends that the trial court erred by failing to redact the crime for which he was arrested from the booking application. He also contends that, when the jury sent out a question about that crime, it erred by failing to inquire further regarding the jury's discussion.
A. Additional Factual and Procedural Background.
During a discussion of in limine matters, the trial court asked defense counsel whether he objected to the booking application. He said he did not. The trial court then specifically asked whether he wanted the reference to section 11364 to be redacted. Again, he said he did not. Finally, the trial court asked if he wanted a limiting instruction. He said he did not. Rather, he wanted defendant's Social Security number redacted; this was the "only thing" he wanted redacted. Thus, the booking application and the identification card were admitted without objection.
During their deliberations, the jurors sent out the following question: "Are we allowed to use Mr. Gray's priors [sic] as it is shown on the exhibits. Can we use that as a factor in our decision?"
It is undisputed that (1) "exhibits" referred to the booking application and the identification card, and (2) "priors" referred to the charge of possession of paraphernalia under section 11364. No one claims that any exhibit revealed any actual prior convictions. --------
With the agreement of counsel for both sides, the trial court responded, "The prior crimes are not relevant to this case. You must not consider Mr. Gray's priors for any reason."
B. Discussion.
1. Admissibility.
Defendant argues that the trial court, the prosecutor, and defense counsel each had a duty to redact the fact that his arrest was for a violation of section 11364.
The booking form and the identification card had substantial probative value: they tied defendant to the theft of the car. The nature of the offense for which he was arrested, however, did not. Thus, the trial court would have had a duty to redact this information, on request. However, "'[t]he trial court . . . has no sua sponte duty to exclude evidence . . . .' [Citations.]" (People v. Medina (1995) 11 Cal.4th 694, 727; see also Evid. Code, § 353, subd (a).)
Turning to the prosecutor, "a prosecutor commits misconduct by intentionally eliciting inadmissible evidence . . . . [Citation.]" (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1210, italics omitted.) We fail to see how it can be misconduct, however, for a prosecutor to elicit evidence to which defense counsel has affirmatively stated that he or she does not object. And even assuming it is nevertheless misconduct, here defense counsel forfeited the issue by failing to object. (People v. Flores (2020) ___ Cal.5th ___, ___ [2020 Cal. LEXIS 2916 at pp. *55-*56.)
This brings us to the duty of defense counsel. In his opening brief, defendant does not specifically contend that his counsel rendered ineffective assistance; he does not even discuss the elements of an ineffective assistance claim. In his reply brief, however, he tersely labels this an "IAC claim." Accordingly, we analyze it under this rubric.
"To make out a claim that counsel rendered constitutionally ineffective assistance, 'the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different.' [Citation.] To make out an ineffective assistance claim on the basis of the trial record, the defendant must show '(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.' [Citation.]" (People v. Hoyt (2020) 8 Cal.5th 892, 958.)
Thus, it is not the law that defense counsel must always object to any inadmissible evidence. To the contrary, "'deciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.' [Citation.]" (People v. Romero and Self, supra, 62 Cal.4th at p. 25.)
Defendant cannot show deficient performance. This is not a case where there could be no tactical reason for the failure to object. Some evidence that defendant had been arrested was going to come in. Defense counsel could reason that it was better to let the jury know that he had been arrested for the relatively minor crime of possession of paraphernalia than to allow the jury to speculate that he had been arrested for a major crime or a crime of moral turpitude.
Defendant also cannot show prejudice. The trial court instructed the jury to ignore the inadmissible evidence. "We presume the jury followed the trial court's instruction absent evidence to the contrary. [Citation.]" (People v. Fayed (2020) 9 Cal.5th 147, 192.) All the more so here, as the jurors raised the issue themselves and obviously anticipated the possibility that they were not supposed to consider the evidence.
2. Failure to inquire.
Defendant also argues that the trial court should have inquired further regarding the jurors' discussion of the inadmissible evidence.
Once again, defense counsel forfeited this contention by failing to raise it below. (See part II, ante, and cases cited.) Had the trial court refused to make the requested inquiry, his remedy would have been a motion for a mistrial.
And, once again, the contention lacks merit in any event. As defendant concedes, "The jurors in this case did not commit misconduct . . . ." It would be harsh to fault the jurors for considering evidence that they had been given, without objection. (Cf. People v. Wilson (2008) 44 Cal.4th 758, 829 [receipt of information that was not part of the evidence is juror misconduct, which raises a presumption of prejudice].) Indeed, they went above and beyond the call of duty by questioning on their own the propriety of doing so. In the absence of any misconduct, there was no presumption of prejudice.
And, yet again, even assuming there was misconduct, the trial court did not abuse its discretion by not inquiring further. The trial court instructed the jury not to consider the inadmissible evidence. Because jurors are presumed to follow the trial court's instructions, and particularly because the jurors raised the issue themselves, any presumption of prejudice was rebutted, and a further inquiry was unnecessary.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: FIELDS
J. RAPHAEL
J.