Opinion
F076514
03-02-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH MICHAEL HAMMOND, Defendant and Appellant.
Michelle T. LiVecchi-Raufi, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F17903698)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge. Michelle T. LiVecchi-Raufi, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted Joseph Michael Hammond (defendant) of second degree robbery (Pen. Code, § 211), and he admitted having served three prior prison terms (§ 667.5, former subd. (b)). He was sentenced to a total of six years in prison, and ordered to pay various fees, fines, and assessments. On appeal, we hold: (1) Errors related to the admission of evidence of defendant's silence as an adoptive admission were harmless beyond a reasonable doubt; (2) Defendant was not entitled to an instruction that a witness was an accomplice as a matter of law; (3) Trial counsel's failure to impeach a witness did not constitute ineffective assistance of counsel; and (4) The trial court's supplemental instruction did not improperly coerce a verdict; but (5) The prior prison term enhancements must be stricken and the matter remanded for resentencing.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
On June 6, 2017, N. and V. were employed at a property management company in Fresno. At approximately 4:30 that afternoon, defendant entered the office. N. assumed he wanted to pay his rent, but he slid her a folded piece of paper that read, "I want $10,000 cash, no die [sic] packs, no tracers, stay quiet." When N. asked if he was serious, he told her that he had a gun and was not afraid to use it. She believed him, although she never saw a weapon. She told him that they were not a bank and did not have $10,000 cash, and she could not help him. Defendant told her to read the note.
Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first initials. No disrespect is intended.
Unspecified dates in the statement of facts are from the year 2017.
V. came over and asked what was going on. She read the note and asked if it was serious. N. nodded. V., who was afraid for her and N.'s lives, told defendant that they were not a bank and did not have "that." She then took a money bag containing around $120 to $200 in petty cash from a drawer, set it on the counter, and told him to take it. Defendant, who had been very calm up to that point, became somewhat agitated. He asked what it was and what she wanted him to do with it, and he said it was not what he asked for. V. and N. both reiterated that it was all they had. Defendant then took the bag and walked out. He got into a black pickup sitting in the driveway with someone else driving, and the vehicle drove away.
The business was equipped with video surveillance. A video recording of the incident was played for the jury.
Once defendant exited the business, V. pushed the panic button and called 911. When the police arrived, she and N. each gave them a statement, and N. gave a description of the robber's clothing.
Fresno Police Detective Xiong, who was assigned to the robbery unit, responded to the location and viewed the surveillance video. He created a Be On the Lookout (BOL) flier of the robber from the video. Eventually, he located the black truck shown in the video. It was registered to Michael Anderson, who did not match the robber's description.
Xiong spoke to Anderson, who is defendant's brother, at police headquarters on June 20. Xiong showed Anderson a picture of a truck and asked if it was his. Anderson said yes. Xiong then showed him another photograph and asked if he knew who the person was. Anderson identified his brother.
Anderson testified that on June 6, he gave defendant a ride in Anderson's black Toyota Tacoma so defendant could take care of some errands and pay some bills. Defendant exited the vehicle and went somewhere. He had some paperwork in his hand. Anderson denied seeing defendant enter a business or knowing what happened inside. When defendant returned to the vehicle, he had a bank bag in his hand. Anderson could see something was wrong, so he pulled over down the street and defendant got out. Anderson did not ask defendant any questions. Anderson then drove to the Friant area, after which he went home. He drove "just to think." He knew something had happened and was nervous about what was going on. He denied involvement in or knowledge of a robbery. Prior to Xiong coming to see him, however, someone told him there had been a robbery. Because of the robbery, Anderson changed the rims on his truck to try to disguise it.
On June 22, an officer showed the photograph on the BOL flier to the house manager of a transitional home in Fresno. The manager immediately identified defendant, whom he had seen on a daily basis for 60 days. Defendant was arrested and transported to police headquarters. A search of his living quarters turned up boots, a shirt, and a hat that were similar to, but did not exactly match, what was depicted in the flier.
When the house manager identified defendant from the BOL flier, he told the officer that he had seen defendant wearing the shirt in the photograph in the past.
Shortly after defendant was taken into custody, Xiong showed V. a photographic lineup that contained the booking photograph taken of defendant following his arrest that day. V. said she did not recognize anybody. Xiong then showed N. the photographic lineup. N. selected the photograph of someone other than defendant and said he looked like the suspect.
According to V., she told Xiong that two of the pictures looked more like the robber than the others, but she did not identify anyone. She said that if she was to see the perpetrator in person, she could recognize him "100 percent." That is what she did at the preliminary hearing and at trial.
According to N., the photographs looked different than defendant looked in person. She identified defendant in court at the preliminary hearing. He was the only person sitting next to the attorney, but when she saw him at the preliminary hearing, she knew he was the same man who had told her that he had a gun.
At police headquarters, Xiong took defendant from the holding cell to an interview room. When Xiong asked if defendant would talk to him about the incident, defendant responded that he had nothing to say. Xiong then took defendant to get fingerprinted and processed. While Xiong was waiting for defendant's turn, defendant called to Xiong, who was about 10 feet away in another room but with an open door. When Xiong walked over and asked what he needed, defendant asked how much time he was looking at. Xiong said he did not know. Defendant then asked how much money was taken. Xiong responded that he (Xiong) knew how much money was taken, but was not going to tell defendant, and that defendant knew how much money was taken because he was the one who committed the robbery. Xiong then said defendant forgot one crucial thing, which was that after he committed the robbery, he left the demand note. Defendant's eyes shifted away and he did not respond or otherwise react. Xiong then walked back to the other room.
The demand letter was tested for fingerprints. None were recovered.
DISCUSSION
I
ALLEGED VIOLATION OF DEFENDANT'S PRIVILEGE AGAINST SELF-INCRIMINATION
Defendant contends the testimony, instruction, and prosecutorial comment on his silence in the face of Xiong's accusations regarding the robbery violated defendant's Fifth Amendment privilege against self-incrimination. We agree errors occurred, but conclude they were harmless beyond a reasonable doubt. A. Background
The People moved, in limine, to introduce defendant's statements and silence/nondenial to Xiong, as admissions of a party (Evid. Code, § 1220) and adoptive admissions (id., § 1221). The People argued defendant freely and voluntarily reinitiated contact with Xiong, and clearly heard and understood Xiong's statements, and that a reasonable innocent person would have denied the statements if they were untrue. The trial court found that a jury question existed as to whether defendant understood the statements and whether a reasonable person would have denied the assertions if they were not true. Accordingly, it determined there was sufficient evidence to warrant the giving of CALCRIM No. 357 on adoptive admissions and for the jury to consider whether defendant's silence was an adoptive admission. The court stated: "The People don't have to prove it beyond a reasonable doubt, they have to present evidence that there is a statement that a person who was not guilty of the crime would likely have denied . . . . So it's a jury question then as to whether his silence constitutes an admission. I don't believe given that he raised the issue with Detective Xiong and asked the questions that he can somehow claim that he's prejudiced, that it somehow violates Miranda Rights for him to respond to those statements. He is reinitiating conversation with the detective about the case, and therefore I think his failure to make a comment in response to the detective's statements is fairly considered as silence, not an invocation of his Miranda Rights."
Xiong's testimony on the subject is set out in the statement of facts, ante. The trial court subsequently instructed the jury, pursuant to CALCRIM No. 357:
"If you conclude that someone made a statement outside of court that accused the defendant of the crime or tended to connect the defendant with the commission of the crime and the defendant did not deny it, you must decide whether each of the following is true:
"1. The statement was made to the defendant or made in his presence;
"2. The defendant heard and understood the statement;
"3. The defendant would, under all circumstances, naturally have denied the statement if he thought it was not true; and
"4. The defendant could have denied it, but did not.
"If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true. If you decide that any of these requirements have not been met you must not consider either the statement or the defendant's response for any purpose."
In her closing summation, the prosecutor sought to refute defense counsel's claim the evidence was insufficient to establish defendant was the robber. The prosecutor pointed out that N. and V. were not the only people to identify defendant. She also stated: "So then you have all that evidence. You . . . also heard that the defendant asked to speak to Detective Xiong, and he said, How much time am I looking at? Detective said, I don't know. He said, How much money was taken? Detective said, You know how much money was taken when you robbed them. Oh, you left your letter there. And the defendant didn't respond. You can consider his failure to deny that statement as evidence of his guilt. That's the law. You can consider that. You have overwhelming evidence of guilt. This is not misidentification." B. Analysis
"The Fifth Amendment provides that '[n]o person . . . shall be compelled in any criminal case to be a witness against himself.' [Citations.] To safeguard a suspect's Fifth Amendment privilege against self-incrimination from the 'inherently compelling pressures' of custodial interrogation [citation], the [United States Supreme Court] adopted a set of prophylactic measures requiring law enforcement officers to advise an accused of his right to remain silent and to have counsel present prior to any custodial interrogation [citation]." (People v. Jackson (2016) 1 Cal.5th 269, 338-339; see Miranda v. Arizona (1966) 384 U.S. 436, 444-445 (Miranda).)
"Once an in-custody suspect invokes his right to either silence or counsel, interrogation must cease. [Citation.] If the right to counsel is invoked, the suspect cannot be interrogated further, unless counsel is provided [citation] or the suspect reinitiates contact with the police [citations]. Interrogation includes both express questioning and 'words or actions . . . the police should know are reasonably likely to elicit an incriminating response from the suspect.' [Citation.]" (People v. Enraca (2012) 53 Cal.4th 735, 752.)
There is no claim in the present case that defendant invoked his right to counsel. Miranda "distinguished between the procedural safeguards triggered by a request to remain silent and a request for an attorney . . . ." (Michigan v. Mosley (1975) 423 U.S. 96, 104, fn. 10; see Miranda, supra, 384 U.S. at p. 474.) "[T]he admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored.' " (Michigan v. Mosley, supra, at p. 104, fn. omitted.) If a suspect, having invoked his or her right to silence, subsequently desires to speak, we know of no authority that precludes the police from listening. Thus, a suspect can reinitiate contact without the police necessarily running afoul of the requirement that they honor his or her right to stop any questioning. Accordingly, we assume the reasoning of cases involving reinitiation of contact following invocation of the right to counsel apply equally, for our purposes, where the suspect invoked his right to remain silent. (See Berghuis v. Thompkins (2010) 560 U.S. 370, 381; In re Z.A. (2012) 207 Cal.App.4th 1401, 1417-1418.)
" ' "An accused 'initiates' " further communication, exchanges, or conversations of the requisite nature "when he speaks words or engages in conduct that can be 'fairly said to represent a desire' on his part 'to open up a more generalized discussion relating directly or indirectly to the investigation.' " ' [Citations.]" (People v. Gamache (2010) 48 Cal.4th 347, 384-385.) Where interrogation follows, "the People must show both that the defendant reinitiated discussions and that he knowingly and intelligently waived the right he had invoked. [Citation.]" (Id. at p. 385.) " '[T]he prosecution bears the burden of establishing by a preponderance of the evidence that [a Miranda] waiver was knowing, intelligent, and voluntary under the totality of the circumstances of the interrogation.' [Citation.]" (People v. Jackson, supra, 1 Cal.5th at p. 339.)
"A statement obtained in violation of a suspect's Miranda rights may not be admitted to establish guilt in a criminal case. [Citation.]" (People v. Jackson, supra, 1 Cal.5th at p. 339.) " ' "In reviewing constitutional claims of this nature, it is well established that we accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained." [Citation.]' [Citation.]" (People v. Enraca, supra, 53 Cal.4th at p. 753.)
In the present case, it is clear defendant invoked his right to remain silent when he informed Xiong that he had nothing to say about the incident. The People did not seek to use his own statement against him, but rather his silence.
Although no testimony was elicited on this point, it would be unreasonable to assume defendant had not been advised of his constitutional rights by that time: He had already been arrested and transported to the police station, and Xiong had taken him to an interview room. (See Doyle v. Ohio (1976) 426 U.S. 610, 611, 617-618; but see Fletcher v. Weir (1982) 455 U.S. 603, 605-606 .) As the court and parties assumed the Miranda advisements were given, so will we.
"Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth." (Evid. Code, § 1221.) The statute "contemplates either explicit acceptance of another's statement or acquiescence in its truth by silence or equivocal or evasive conduct." (People v. Combs (2004) 34 Cal.4th 821, 843.) Generally speaking, " '[w]hen a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the party's reaction to it. [Citations.] His silence, evasion, or equivocation may be considered as a tacit admission of the statements made in his presence.' [Citation.]" (People v. Riel (2000) 22 Cal.4th 1153, 1189.)
However, "the Fifth Amendment . . . forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." (Griffin v. California (1965) 380 U.S. 609, 615, fn. omitted.) "The rationale of Griffin implicitly proscribes drawing an inference adverse to the defendant from his failure to reply to an accusatory statement if the defendant was asserting his constitutional privilege against self-incrimination." (People v. Cockrell (1965) 63 Cal.2d 659, 669-670.) Thus, for Evidence Code section 1221 to apply, the circumstances cannot " 'lend themselves to an inference that [the person] was relying on [his constitutionally guaranteed] right of silence . . . .' " (People v. Riel, supra, 22 Cal.4th at p. 1189.) "Where a defendant's failure to reply is based on his constitutional right to remain silent, instructing the jury that it can treat the failure to reply as an adoptive admission violates the Fifth Amendment. [Citations.]" (Arnold v. Runnels (9th Cir. 2005) 421 F.3d 859, 869.)
Although at least one federal court appears to have placed a blanket prohibition on the use of a defendant's post-Miranda silence because such silence "is 'insolubly ambiguous' " (Franklin v. Duncan (N.D.Cal. 1995) 884 F.Supp. 1435, 1447, affd. (9th Cir. 1995) 70 F.3d 75), the California Supreme Court has not drawn such a bright line (see People v. Medina (1990) 51 Cal.3d 870, 890-891, affd. sub nom. Medina v. California (1992) 505 U.S. 437).
" '[A] trial court has broad discretion to determine whether a party has established the foundational requirements for a hearsay exception [citation] and "[a] ruling on the admissibility of evidence implies whatever finding of fact is a prerequisite thereto . . . ." [Citation.] We review the trial court's conclusions regarding foundational facts for substantial evidence. [Citation.]' [Citation.]" (People v. Chism (2014) 58 Cal.4th 1266, 1297.) "We review the trial court's ultimate ruling for an abuse of discretion [citations], reversing only if ' "the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." ' [Citation.]" (People v. DeHoyos (2013) 57 Cal.4th 79, 132; see People v. Waidla (2000) 22 Cal.4th 690, 724.)
Substantial evidence supports the trial court's finding that defendant reinitiated conversation with Xiong about the case, particularly in light of defendant's question concerning the amount of money that was taken. (See Oregon v. Bradshaw (1983) 462 U.S. 1039, 1045-1046 (plur. opn. of Rehnquist, J.); People v. McCurdy (2014) 59 Cal.4th 1063, 1089; People v. Waidla, supra, 22 Cal.4th at p. 731 & fn. 10; cf. People v. Bradford (1997) 15 Cal.4th 1229, 1311; In re Z.A., supra, 207 Cal.App.4th at p. 1418.) Nevertheless, the fact of reinitiation is not dispositive of whether defendant impliedly waived the right he previously invoked, such that his silence in the face of Xiong's statements could be used against him. (See People v. Bradford (1997) 14 Cal.4th 1005, 1036; In re Z.A., supra, 207 Cal.App.4th at pp. 1418-1419.)
On the facts of this case, only speculation supports a conclusion defendant was not relying on his constitutional right to remain silent when he failed to respond to Xiong. (See Doyle v. Ohio, supra, 426 U.S. at pp. 617-618; In re Z.A., supra, 207 Cal.App.4th at p. 1419; cf. People v. Jurado (2006) 38 Cal.4th 72, 116-117; People v. Medina, supra, 51 Cal.3d at pp. 889-891.) " 'But speculation is not evidence, less still substantial evidence.' [Citations.]" (People v. Waidla, supra, 22 Cal.4th at p. 735.) Accordingly, the trial court erred by admitting evidence of defendant's silence. It follows that the court should not have instructed, or the prosecutor commented, on adoptive admissions. (People v. Chism, supra, 58 Cal.4th at p. 1298; see People v. Medina, supra, 51 Cal.3d at p. 891.)
The Attorney General argues defendant's claims regarding the giving of CALCRIM No. 357 and the propriety of the prosecutor's remarks to the jury were forfeited by defendant's failure to object at trial. We disagree. Once the trial court determined the evidence was admissible, any objection to the giving of the instruction or the prosecutor's comments would have been futile. (See People v. Charles (2015) 61 Cal.4th 308, 331; People v. Hill (1998) 17 Cal.4th 800, 820.) Accordingly, we do not address defendant's alternate claim that any forfeiture was the result of ineffective assistance of counsel.
Nevertheless, defendant is not entitled to reversal, because the errors were harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; see People v. Case (2018) 5 Cal.5th 1, 22; People v. Thompson (2016) 1 Cal.5th 1043, 1118.) Both victims gave solid identifications in court, and explained their inability to identify defendant from the photographic lineup. Although they had never seen defendant before the robbery, the house manager — who had seen him daily for 60 days — identified him immediately upon viewing a photograph taken from the video recording of the crime. Defendant's own brother also identified him as the robber. We have viewed the video (as did the jury during deliberations); it is sufficiently clear that someone acquainted with defendant would recognize whether it was or was not him. Despite the jury's temporary deadlock, discussed post, we are confident "the guilty verdict actually rendered . . . was surely unattributable to the error." (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.)
II
ISSUES CONCERNING ANDERSON'S TESTIMONY
A. Failure to Instruct that Anderson was an Accomplice as a Matter of Law
The trial court gave CALCRIM No. 334, which explained that before jurors could consider Anderson's statement or testimony, they had to decide whether he was an accomplice, and that defendant bore the burden of proving his accomplice status by a preponderance of the evidence. The instruction defined accomplice, told jurors they should view the testimony of an accomplice with distrust, and instructed them that they could not use the testimony of an accomplice to convict absent supporting evidence, which the instruction also defined. The court neither gave, nor was it asked to give, CALCRIM No. 335, which would have differed from CALCRIM No. 334 in pertinent part by telling jurors that Anderson was an accomplice as a matter of law.
Defendant now contends the court prejudicially erred, and violated defendant's due process rights, by failing to inform the jury that Anderson was an accomplice as a matter of law. We find no error.
"The relevant principles governing accomplice testimony are well settled. No conviction can be had upon the testimony of an accomplice unless such testimony is corroborated by other evidence tending to connect the defendant with the commission of the offense, an 'accomplice' being one who is liable to prosecution for the identical offense charged against the defendant on trial. (§ 1111.)" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103.) "To be so chargeable, the witness must be a principal under section 31. That section defines principals as '[a]ll persons concerned in the commission of a crime, whether . . . they directly commit the act constituting the offense, or aid and abet in its commission . . . .' (§ 31.) An aider and abettor is one who acts with both knowledge of the perpetrator's criminal purpose and the intent of encouraging or facilitating commission of the offense." (People v. Avila (2006) 38 Cal.4th 491, 564.) Stated another way, "[a]n accomplice must have ' "guilty knowledge and intent with regard to the commission of the crime." ' [Citation.]" (People v. Lewis (2001) 26 Cal.4th 334, 369.) "Accessories, therefore (defined as persons who, after a felony has been committed, harbor, conceal or aid a principal in the felony with the intent that the principal avoid criminal liability therefor and knowing that the principal has committed the felony or been charged with or convicted thereof), are not accomplices as to whose testimony corroboration is required. [Citations.]" (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 103.)
" ' "[W]henever the testimony given upon the trial is sufficient to warrant the conclusion upon the part of the jury that a witness implicating a defendant was an accomplice," ' the trial court must instruct the jury, sua sponte, to determine whether the witness was an accomplice. [Citation.] If the testimony establishes that the witness was an accomplice as a matter of law, the jury must be so instructed. [Citation.]" (People v. Zapien (1993) 4 Cal.4th 929, 982.) " 'Whether someone is an accomplice is ordinarily a question of fact for the jury; only if there is no reasonable dispute as to the facts or the inferences to be drawn from the facts may a trial court instruct a jury that a witness is an accomplice as a matter of law.' [Citation.] '[A] court can decide as a matter of law whether a witness is or is not an accomplice only when the facts regarding the witness's criminal culpability are "clear and undisputed." ' [Citation.]" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 430.) " '[W]here the facts are in dispute as to the knowledge and intent of the asserted accomplice, the witness'[s] liability for prosecution is a question for the jury.' [Citation.]" (People v. Stankewitz (1990) 51 Cal.3d 72, 91.)
"To be an accomplice, [Anderson] would have had to act with knowledge of defendant's criminal purpose and with the intent to encourage or facilitate the commission of the offense. [Citation.] Providing assistance without sharing the perpetrator's purpose and intent is insufficient to establish that a person is an accomplice. [Citation.]" (People v. Carrington (2009) 47 Cal.4th 145, 191.)
Although there was ample evidence from which jurors could have concluded Anderson aided and abetted the robbery (see, e.g., People v. Cooper (1991) 53 Cal.3d 1158, 1161; People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 742; In re Jose T. (1991) 230 Cal.App.3d 1455, 1460-1461; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1095-1096), the evidence concerning whether he had the requisite knowledge and intent was conflicting. He testified he did not. If jurors believed his testimony, they reasonably could have concluded he did not intend to assist defendant in committing the robbery or escaping with the loot, and therefore was not an accomplice. (See People v. Carrington, supra, 47 Cal.4th at p. 191.) "Thus, the evidence was not so clear and undisputed that a single inference could be drawn that [Anderson] was an aider and abettor to the charged offenses." (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1161, disapproved on another ground in People v. Cook (2015) 60 Cal.4th 922, 939.)
Under the circumstances, "[t]he trial court . . . could not have instructed that [Anderson] was an accomplice as a matter of law without indicating to the jury the court's belief that [Anderson] had testified falsely. [Citation.] Accordingly, the question of [Anderson]'s status as an accomplice was a factual one properly submitted to the jury." (People v. Stankewitz, supra, 51 Cal.3d at pp. 91-92, fn. omitted.) B. Ineffective Assistance of Counsel for Failure to Impeach Anderson
In light of the trial court's sua sponte duty to correctly instruct on accomplice testimony, we conclude defendant's failure to object to the use of CALCRIM No. 334 did not, contrary to the Attorney General's argument, forfeit his claim for purposes of appeal. Accordingly, we do not address defendant's assertion that any forfeiture was the result of ineffective assistance of counsel.
Anderson's criminal history dated back at least to 1994. The trial court ruled he could be impeached with a residential burglary conviction from 2000, but denied defense counsel's request also to permit impeachment with a 2005 conviction involving unlawful possession of a weapon. Defense counsel subsequently failed to impeach Anderson with the burglary conviction. Defendant now says this omission denied him his federal constitutional right to the effective assistance of counsel. We disagree.
The burden of proving ineffective assistance of counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425, overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) "To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings. [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-694.)
"If the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' [Citation.]" (People v. Kipp (1998) 18 Cal.4th 349, 367.) "This is such a case: the appellate record sheds no light on why trial counsel acted as he did; he was not asked to explain his performance; although we may doubt that a satisfactory explanation could be provided, we are unable to conclude that it could not. Thus, we must reject defendant's point." (People v. Bell (1989) 49 Cal.3d 502, 546, fn. omitted.) Moreover, even assuming counsel could not have had any reasonable tactical purpose for his omission, in light of Anderson's obvious motive to minimize his own involvement and the other identifications of defendant as the robber, there is no reasonable probability defendant would have obtained a more favorable result had Anderson been impeached.
III
ALLEGEDLY COERCED VERDICT
Defendant contends the trial court's supplemental instruction, given when the jury reported it was deadlocked, improperly coerced a verdict. We disagree. A. Background
According to the clerk's minutes of trial, the jury was taken to the jury room to begin deliberating at 3:14 p.m. on September 21, 2017. At 4:28 that afternoon, the jury recessed until 9:30 the next morning. About half an hour after deliberations resumed, jurors asked to view the surveillance video again, and it was shown to them. At approximately 2:21 p.m., the jury foreperson sent out a note stating: "We cannot come to a unannous [sic] conclusion it is 11-1. What is our coarse [sic] of action[?] We have debated it [crossed-out word or words.]" The jury was returned to the courtroom, where this ensued:
"THE COURT: . . . Juror in seat 10, you were chosen foreperson?
"JUROR NUMBER TEN: Yes, sir.
"THE COURT: I got your note. It tells me the jury is divided 11 to 1. I actually gave an instruction to not tell me how you were divided unless I specifically asked you to do so. Now that I have that I don't need to know which way you're divided, just that you have been divided 11 to 1 for some period of time. Has that been the division for several hours? All day?
"JUROR NUMBER TEN: Both. Yes and no.
"THE COURT: Okay. So at some point today the division was different than 11 to 1?
"JUROR NUMBER TEN: Yes, sir.
"THE COURT: At no point the jurors were able to reach unanimous agreement though?
"JUROR NUMBER TEN: Yes, sir.
"THE COURT: And so now that we're 11 to 1, the jury's been divided for a period of time, we have had recording played back, an opportunity for you to ask questions and review jury instructions and request readback if you need it, is there anything you think the Court could do by way of assistance to the jury to help the jurors reach agreement or do you think that this inability to reach agreement is permanent and there's just no likelihood that the jurors can agree?
"JUROR NUMBER TEN: With good conscience I believe we are at that point and unable to come to a unanimous, consistent verdict.
"THE COURT: Okay. So just to clarify, have there been points in the discussion where you believe that you had a unanimous agreement and it turned out otherwise?
"JUROR NUMBER TEN: Yes, sir.
"THE COURT: But at this point there is one juror who continues to disagree with the other 11, and you don't feel that additional time to discuss the case or anything else that the Court could offer by way of assistance would likely lead to that juror agreeing to the verdict that the others have?
"JUROR NUMBER TEN: Your Honor, the — Your Honor, the clarity of the instructions on reaching a verdict, based upon the evidence at hand is, I believe, the sticking point.
"THE COURT: Okay. Let me just ask the jury collectively, do any of you feel further deliberations may assist the jurors in reaching unanimous agreement? I'm not seeing any nodding of the head. And so, you know, I can't inquire into the jury's deliberations. Do I understand that at some point all 12 jurors had agreed and when it came time to complete a verdict form that's when this juror decided they no longer agreed?
"JUROR NUMBER TEN: Yes.
"THE COURT: Or has there never really been unanimous agreement?
"JUROR NUMBER TEN: No, sir. There was unanimous —
"THE COURT: But when it came time to sign the verdict form that juror decided otherwise?
"JUROR NUMBER TEN: Yes.
"THE COURT: And has that been the case now that that juror has firmly decided that that juror does not agree with the other 11? Has that been the case now for at least a couple of hours of deliberation?
"JUROR NUMBER TEN: No, sir.
"THE COURT: No, that's just recent?
"JUROR NUMBER TEN: Yes, sir.
"THE COURT: Well, I'm gonna read you folks another instruction, and when I read this instruction I want you to understand I am not directing the jury that it is to reach unanimous agreement. I am not telling you that that is what the Court's seeking. I am simply going to give you some information about jury deliberations. If it's helpful, fine, if it's not, I need the individual assent of every juror before I will accept a verdict. So I will just read this to you, give you some time to consider this, and decide how you want to proceed. And some time could be as brief as moments, it could be hours. The important point is that it's not my intent to tell you you must reach agreement. That is not the reason I'm reading this instruction. And if the jury's not able to do so, that does not mean the jury's failed. Sometimes jurors who have had [sic] verdicts are able to resume deliberations and successfully reach a verdict. Please consider the following suggestions: Do not hesitate to re-examine your own views. Fair and effective jury deliberations require a frank and forthright exchange of views. Each of you must decide the case for yourself and form your individual opinion after you have fully and completely considered all of the evidence with your fellow jurors. It is your duty as jurors to deliberate with the goal of reaching a verdict, if you can do so without surrendering your individual judgment. Do not change your position just because it differs from that of other jurors or just because you or others want to reach a verdict. Both the People and the defendant are entitled to the individual judgment of each juror. It is up to you to decide how to conduct your deliberations. You may want to consider new approaches in order to reach a fresh perspective. Let me know whether I can do anything to help you further, such as give additional instructions or clarify instructions I have already given you. Please continue your deliberations at this time. If you wish to communicate with me further, please do so in writing, using the form contained in your jury binder. And again, I repeat, I am not directing you to reach agreement, I am directing you to consider whether additional deliberations may assist you in doing so. In the event a verdict is returned, whatever that verdict is, I will ask each individual juror if that is their
individual verdict. So I am not asking a juror simply to agree with others to make this thing end and then go out of here saying somehow they — their voice wasn't heard or their opinion didn't matter. I am telling you that if you can reach agreement without offending the individual judgment of each of you, then you should do so, but that is entirely up to you. I am not directing you to do so. I am, however, based on the fact that this is only a recent development that you moved from unanimity to 11 to 1, suggesting that you examine your views and determine whether your individual judgment allows you to reach agreement. I am not asking that twelfth person to agree with the other 11 simply because the other 11 feel strongly. I am asking the jury as a whole to discuss the case further and to determine whether there is anything further served by additional deliberations. Your deliberations might be moments, they might be longer. I leave that to each of you as individuals. Let me know if there's anything else I can do, and I'll excuse you to continue your deliberations at this time." (Italics added.)
Jurors resumed deliberations at 2:34 p.m. After they left the courtroom, the court remarked: "That was really — I did not expect that he was gonna tell me as recently as moments ago they were in unanimous agreement. That's not a jury that's deadlocked, that's a jury that apparently has somebody with cold feet, somebody who is afraid to make a decision, somebody asking what ifs about evidence that's not in front of them. I don't know if a reviewing Court's gonna look at that instruction in light of what that juror told me and feel that somehow I gave them a dynamite charge. I think I told them at least three or four times I wasn't asking them to reach agreement but simply asking them to examine whether they could do so without offending the individual judgment of each, and I told them specifically if they returned a verdict I will ask them individually if it is their verdict."
Neither counsel wished to add anything for the record, and the court recessed. At 2:47 p.m., the jury informed the clerk that they had reached a verdict. Back in open court, the trial court confirmed with the jury foreperson that the jury had reached unanimous agreement. The court asked: "You're satisfied the jurors reached agreement; that this is not a matter of someone badgering or bullying someone into a decision not their own? You believe it's a fair deliberation and jurors jointly agreed?" The foreperson answered, "Yes, sir."
The reporter's transcript states the noon recess was taken. However, the clerk's transcript shows the note reporting the jury was deadlocked was marked as court's exhibit 4. The clerk's minutes show the written request marked as court's exhibit 4 was submitted at 2:21 p.m., and the court reconvened at 2:25 p.m. with all parties and the jury present, and with the jury resuming deliberations at 2:34 p.m. Thus, it appears the reference to the noon recess is in error.
After the verdict was read, the court polled the jurors individually, and asked each one if it was his or her individual verdict. Each juror responded affirmatively. The verdict was recorded and the jury retired from the courtroom. The court then observed: "My normal polling practice is a lot more expedited than that. I made eye contact with each juror, and I asked the foreperson if he thought anybody bullied anyone or badgered anyone into agreeing. He said no. The jurors all looked me in the eye, said that was their individual verdict. It's not my preferred method of jurors reaching agreement, but I believe that the charge that I read to them encouraged them, if not enabled them, to continue to be deadlocked. It appears that all we had was simply a juror who was just uncomfortable with the seriousness of the moment, panicked, and once that juror had a chance to reconsider, had no difficulty reaching agreement. So the verdict's recorded . . . ." B. Analysis
"Any criminal defendant . . . being tried by a jury is entitled to the uncoerced verdict of that body." (Lowenfield v. Phelps (1988) 484 U.S. 231, 241.) "Section 1140 provides in relevant part that a 'jury cannot be discharged' without having rendered a verdict unless, 'at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.' 'The decision whether to declare a hung jury or to order further deliberations rests in the trial court's sound discretion.' [Citations.] However, a court must exercise its power under section 1140 without coercing the jury, and 'avoid displacing the jury's independent judgment "in favor of considerations of compromise and expediency." ' [Citation.]" (People v. Brooks (2017) 3 Cal.5th 1, 88.)
" '[C]oercive' actions are those involving 'a judicial attempt to inject illegitimate considerations into the jury debates [and] . . . appeal to dissenting jurors to abandon their own independent judgment of the case against the accused,' by placing 'excessive pressure on the dissenting jurors to acquiesce in a verdict.' [Citation.]" (People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 461, quoting People v. Gainer (1977) 19 Cal.3d 835, 849-850, disapproved on another ground in People v. Valdez (2012) 55 Cal.4th 82, 163.) " '[A]ny claim that the jury was pressured into reaching a verdict depends on the particular circumstances of the case.' [Citations.]" (People v. Brooks, supra, 3 Cal.5th at pp. 88-89; see Lowenfield v. Phelps, supra, 484 U.S. at p. 237.)
No improper coercion occurred here. The trial court never expressed or implied the jury must reach a unanimous verdict or particular outcome, and, in fact, emphasized that agreement might not be reached. (See People v. Brooks, supra, 3 Cal.5th at pp. 89-90.) Although it learned the jury was split 11 to 1, it did not ask for the numerical division, reminded the foreperson it had previously instructed that it was not to be given the division unless it so requested, and stated it did not need to know which way the jury was divided. This communicated to the jury that the court was unconcerned with the direction of the voting, and nothing in its comments suggested jurors should reconsider their views in light of the numerical breakdown of the votes. (See People v. Brooks, supra, at p. 90; People v. Breaux (1991) 1 Cal.4th 281, 319.) Although it appears none of the jurors responded affirmatively when the court asked them collectively whether any felt further deliberations might assist them in reaching a unanimous decision, a court has "wide discretion to determine whether the jury has had enough time to deliberate and may be unable to reach a verdict. [Citation.]" (People v. Dennis (1998) 17 Cal.4th 468, 540.) The court was not required to accept the jury's position that it truly was deadlocked at that point (see People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 462), nor was it required to question individual jurors on the probability of agreement (People v. Rodriguez (1986) 42 Cal.3d 730, 776-777).
In part, the court instructed jurors just prior to deliberations: "Do not reveal to me or anyone else how the vote stands on the issues in this case unless I specifically ask you to do so."
Significantly, and contrary to defendant's contention, the court's comments did not exert undue pressure on the minority juror — who almost inevitably would have felt pressure in any event, simply by virtue of being the lone holdout — to acquiesce in the majority position. To the contrary, the court took great care not to do so. Its comments were directed at all jurors, and made it clear the jury had the options of determining that further deliberations would not be helpful and of not reaching a unanimous verdict. (See People v. Debose (2014) 59 Cal.4th 177, 209-210; People v. Valdez, supra, 55 Cal.4th at pp. 162-163; People v. Whaley (2007) 152 Cal.App.4th 968, 983.) Defendant appears to claim the trial court was required to, but did not, remind jurors of their duty not to surrender conscientiously held beliefs simply to secure a verdict. The record, quoted ante, belies this assertion.
"The federal courts require such an admonition if the trial court gives the jury an 'Allen charge' (Allen v. United States (1896) 164 U.S. 492) — 'the generic name for a class of supplemental jury instructions given when jurors are apparently deadlocked' that stresses 'the importance of securing a verdict' and asks 'jurors to reconsider potentially unreasonable positions' — to counterbalance the excesses of that charge. [Citations.]" (People v. Debose, supra, 59 Cal.4th at p. 210.) "[W]e are not bound by decisions of the lower federal courts, even on federal questions. [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.) In any event, the California Supreme Court long ago declared that the Allen charge is not to be given in California criminal trials (People v. Gainer, supra, 19 Cal.3d at pp. 852, 856-857), and such an instruction was not given here (see People v. Debose, supra, 59 Cal.4th at p. 210; People v. Moore (2002) 96 Cal.App.4th 1105, 1121).
"We are mindful that the jury returned with its verdict soon after receiving the supplemental instruction, and that this suggests the possibility of coercion. [Citation.]" (Lowenfield v. Phelps, supra, 484 U.S. at p. 240.) Defendant did not object to the court's comments or supplemental instruction, however. "[S]uch an omission indicates that the potential for coercion argued now was not apparent to one on the spot. [Citation.]" (Ibid., fn. omitted; accord, People v. Whaley, supra, 152 Cal.App.4th at p. 983.) Under all the circumstances of this case, including the court's polling procedure and subsequent comments, we find no coercion.
Based apparently on the foreperson's comment that "the clarity of the instructions on reaching a verdict, based upon the evidence at hand is . . . the sticking point," defendant says the trial court erroneously failed to inquire into the jury's problems with the instructions on how to reach a verdict. We find no error.
"When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy." (Bollenbach v. United States (1946) 326 U.S. 607, 612-613.) " 'The court is under a general obligation to "clear up any instructional confusion expressed by the jury," but "[w]here . . . the original instructions are themselves full and complete, the court has discretion . . . to determine what additional explanations are sufficient to satisfy the jury's request for information." ' [Citations.]" (People v. Boyce (2014) 59 Cal.4th 672, 699-700; see § 1138.) "An appellate court applies the abuse of discretion standard of review to any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury. [Citation.]" (People v. Waidla, supra, 22 Cal.4th at pp. 745-746.)
In the present case, the trial court clearly was aware of its duty to avoid interfering with or intruding upon the secrecy and sanctity of the jury's deliberations. (See People v. Russell (2010) 50 Cal.4th 1228, 1251.) The jury foreperson did not expressly ask for further instructions on or clarification of the instructions concerning reaching a verdict, but rather intimated one juror was going beyond the evidence in making his or her decision. The trial court reasonably turned first to having the jurors decide whether further deliberations would be of assistance in reaching a unanimous agreement, rather than immediately delving further into the foreperson's remark and risking a discussion that might reveal the content of deliberations or be viewed as directly singling out the holdout juror. Jurors were told to inform the court if it could help by giving additional instructions or by clarifying instructions it already gave. No such request was forthcoming. Under the circumstances, the trial court did not abuse its discretion by proceeding as it did.
In light of all the circumstances, the trial court did not coerce a verdict. It follows that there was no due process violation.
IV
PRIOR PRISON TERM ENHANCEMENTS
The trial court sentenced defendant to the middle term of three years for the robbery, plus an additional consecutive one-year term for each of defendant's three prior prison term enhancements. (§ 667.5, former subd. (b).) In announcing its tentative sentence, it stated: "I would say factors in aggravation — there are none really related to the crime. Those that relate to the defendant, one that he engaged in violent conduct which indicates a danger to society is in part the nature of the charge, a violent felony robbery. Another that his prior convictions are numerous or of increasing seriousness. True, however he's admitted three prison priors and the Court intends to impose those priors so I think that's more or less dual use to aggravate based on that as well as his performance on parole or probation. So really no circumstances in mitigation." In imposing sentence, the court observed: ". . . I feel like in this case where he threatened use of a gun and seriously threatened these two defenseless persons just working in an office not expecting to face this kind of intrusion, three years for the crime is I think the minimum the Court could impose, and frankly it would not be hard to get to the aggravated five-year term, but I'll find factors in aggravation and mitigation more or less balance to avoid dual use. I'm not considering it's a violent crime . . . and not considering his prior numerous convictions, but instead imposing three consecutive one-year priors under 667.5(b) for the three separate commitments to state prison as noted on the first amended information."
Effective January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) amended section 667.5, subdivision (b) to provide for imposition of a prior prison term enhancement only where the prior offense was a sexually violent offense as defined in subdivision (b) of Welfare and Institutions Code section 6600. (§ 667.5, as amended by Stats. 2019, ch. 590, § 1.) Defendant's prior convictions do not meet this requirement, and defendant contends the enhancements based thereon must be stricken. We agree, having recently determined the change in law applies retroactively to cases such as this in which the judgment is not yet final. (People v. Lopez (2019) 42 Cal.App.5th 337, 341.)
In light of our conclusion, defendant's claims that (1) he did not knowingly and intelligently waive his right to a jury trial on the prior conviction allegations, and (2) two of his prior offenses are reducible under Proposition 47 and so did not qualify as prior convictions for enhancement purposes, are moot, and we do not address them. --------
"[W]hen part of a sentence is stricken on review, . . . 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' [Citation.]" (People v. Buycks (2018) 5 Cal.5th 857, 893.) In light of the trial court's comments, quoted ante, and the fact it did not impose the maximum possible term ab initio, a remand to permit the court to exercise its sentencing discretion with respect to the robbery count is warranted.
DISPOSITION
The judgment of conviction is affirmed. Sentence is vacated, and the matter is remanded to the trial court to strike the three section 667.5, former subdivision (b) enhancements imposed and to resentence defendant.
/s/_________
DETJEN, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
SMITH, J.