Opinion
B219857
08-05-2011
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN HIGGINS, Defendant and Appellant.
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Yun K. Lee and Viet H. Nguyen, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA103427)
APPEAL from a judgment of the Superior Court of Los Angeles County. Kelvin D. Filer, Judge. Affirmed as modified.
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Yun K. Lee and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Jonathan Higgins of first degree murder in violation of Penal Code section 187, subdivision (a). The trial court sentenced appellant to 25 years to life in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals on the grounds that: (1) the trial court prejudicially erred in denying appellant's request to revoke his waiver of counsel; (2) the trial court erred in dismissing a lone holdout juror; (3) there was insufficient evidence to establish that the murder was willful, deliberate, and premeditated; and (4) the judgment must be modified to award additional days of presentence custody credits.
FACTS
Prosecution Evidence
Appellant and the victim, Marjorie Robinson, had been domestic partners since 1988 and lived together in a home on East Peck Street in the City of Compton. On May 22, 2006, Robinson was scheduled to work as a substitute teacher at the Elizabeth Learning Center. At 5:12 a.m. on that day, a call was placed from the East Peck Street home to the school district's automated substitute-finder telephone system accepting the assignment, but Robinson did not show up for work.
At approximately 9:00 a.m. on May 23, 2006, sheriff's deputies responded to a call about a body found in an open field near Linsley Street and Gibson Avenue. The body was identified as Robinson's. At 12:45 p.m., Denise Bertone, a coroner's investigator for Los Angeles County, arrived and saw Robinson lying face-up in a patch of tall grass. Her upper clothing had been pulled up, exposing her stomach and breast. Her arms were raised above her head. There was duct tape at her ankles on top of her jeans. One shoe was near her and the other some distance away. She had $29.25 in her jeans pocket.
Bertone and Jaime Lintemoot, a senior criminalist for the Los Angeles County Coroner, carefully removed Robinson's clothing and underwear. Bertone and Lintemoot found a piece of white material that looked like a piece of plaster on Robinson's right buttock. There was white fibrous material on her black sweater. All the clothing and items found at the scene were preserved as evidence. There was bruising the length of Robinson's right arm on the inside. There was a contusion above her right eyebrow and fine petechial hemorrhages were visible all over the front of her neck and around her right and left eyes. She had an abrasion on an elbow and bruises on the knuckles of her right hand. There was only a small amount of blood on Robinson's body. There were no signs that Robinson had been sexually assaulted. Robinson's body was very warm and beginning to decompose. At 1:34 p.m., her body temperature was 90 degrees, which was about 10 degrees warmer than the ambient temperature. Bertone believed Robinson may have been in a hot car for some time because of the decomposition and warmer body temperature.
On May 23, 2006, Renee Taylor was living on South Gibson Avenue in Compton. That morning, between 4:15 a.m. to 4:45 a.m., she went outside to move her truck. She saw a man stumbling down the middle of the street towards her. The man appeared to be "a little bit exhausted." She got in her truck and watched the man go to a van that was parked on the street. The man was a light-skinned Black or Hispanic, about five feet 11 inches tall and wearing a baseball cap that may have been red and white. The van was parked close to a street lamp. The location was near the spot where Robinson's body was found. Taylor chose appellant's van from a photographic lineup of vans the police showed her.
Appellant often wore a baseball cap.
On November 3, 2005, approximately seven months before her murder, Robinson and appellant met with George Bowman, who was an insurance broker employed at Defeeble and Associates. Bowman made a presentation to Robinson and appellant and offered them life insurance policies in the amount of $500,000. Robinson commented that she could not afford the premiums, and appellant said he would make the payments for her. The premium was approximately $186 per month. Appellant was listed as the beneficiary of Robinson's policy. Robinson's policy was later adjusted to $400,000 because of her health and weight. Robinson had an additional life insurance policy for $20,000 as an employee of the Los Angeles Unified School District (LAUSD). On January 14, 2006, a change of beneficiary form on the policy was processed for Robinson, and the new beneficiary was appellant.
On May 26, 2006, three days after Robinson's body was found, Los Angeles County Deputy Sheriff George Martinez and his partner Detective Jose Romero went to appellant's home and left their business cards. On May 29, 2006, Detective Romero received a message from appellant. Deputy Martinez then telephoned appellant, and he and appellant exchanged telephone messages until June 1, 2006, when appellant stopped responding to Deputy Martinez's messages. Appellant was arrested on June 6, 2006, after a brief surveillance during which he was seen loading items into a car. Inside his wallet, appellant had Deputy Martinez's business card and a piece of paper with Robinson's LAUSD employee number.
On the day appellant was arrested, police officers searched his home pursuant to a warrant. In a ground floor bedroom, there were two captain's chairs that belonged to appellant's van. Such chairs were normally located in the middle of the van. Removing them allowed the rear bench seat to slide forward and provide more cargo space. Police saw dark stains on the staircase carpeting. There was evidence of repair to the banister. It appeared that someone had attempted to use a metal strap to secure the base of the bottom post. The strapping and a drill were located next to the banister. Directly across from the base of the stairs, the wall had been flaking away and there was debris on the carpeting. Criminalist Juli Watkins examined the walls at the base of the stairs and took a sample of the portion of the wall where the paint and some of the substructure was located.
Appellant was released from custody within 48 hours of his arrest. On June 29, 2006, appellant called Bowman and inquired about the status of the life insurance policies he and Robinson had purchased. Appellant did not mention that Robinson had been killed. On November 28, 2006, appellant called Bowman for a change of beneficiary form. When Bowman commented about the relationship between appellant and Robinson apparently not working out, appellant did not mention that Robinson was dead. On December 4, 2006, appellant asked Bowman to bring a change of beneficiary form to his home. When Bowman entered the home, he saw that most of the furniture was gone, and there were paint pans and brushes present. Appellant stated that he wanted to change the beneficiary of his policy from Robinson to his sister. Appellant then told Bowman he had bad news and that Robinson was dead. Bowman saw no sign of pain in appellant's expression. Appellant told Bowman that Robinson had been murdered. He said she had been beaten to death and dumped in a field in May. Bowman was surprised appellant was still paying on her policy and told him, "You can't pay on a dead person's policy." Appellant told Bowman that his neighbors thought that he had committed the crime. Bowman told appellant that Bowman needed the death certificate to begin the process of paying the proceeds of Robinson's policy. Appellant replied that he did not have the death certificate and asked Bowman if Bowman could obtain it. Afterwards, appellant contacted Bowman six to eight times, always asking when he would be paid the insurance money.
On August 29, 2006, appellant and his sister were stopped in appellant's van at the San Ysidro border crossing from Mexico. The carpeting in the rear cargo area of the van was missing.
On June 15, 2007, appellant called Russell Laws, an assistant vice-president of claims for Old Mutual insurance. Appellant was unhappy that his insurance claim on Robinson's life insurance policy had not been paid. Laws told appellant he had not yet filed a "claimant statement," formally claiming the proceeds of the policy and also that the company had not ruled out appellant's involvement in Robinson's death. Over the next two weeks, appellant repeatedly called Laws stating that he was entitled to the money and that he should be paid without involving his need to file a declaratory judgment in court.
On May 29, 2008, police conducted a second search of appellant's home. The same soiled carpeting existed throughout the house as formerly, but the carpeting on the staircase was now missing. There were obvious signs of repair on the staircase and the base of the staircase. Criminalist Steve Schliebe and Detective Paul Delhauer were present during the second search. Schliebe compared the paint chip taken from Robinson's buttock to paint chips taken from appellant's home by Juli Watkins and found that they were from the same wall. Schliebe collected some carpet fibers that still remained on a stair at appellant's home and found them to be similar to fibers he collected from the heel of Robinson's shoe. Schliebe collected paint samples from the stair banister at appellant's house and compared them to the white paint smears found on Robinson's sweater and found them to be similar.
Detective Delhauer testified as a crime scene reconstruction expert. He reviewed the crime reports, crime scene photographs, coroner's photographs, and photographs from execution of the first search warrant. He requested certain forensic tests to be done and conducted independent experiments. He then prepared a report. In Detective Delhauer's opinion, the fact that Robinson's clothing on the upper body had been pulled up and the pants pulled down indicated that her clothing was used as a handle. The way the duct tape was wrapped around her ankles showed that its purpose was to keep her legs together as she was hauled. The lack of debris from the field on Robinson's body indicated that a blanket or something similar was used to get her to the field. The abrasions on Robinson's stomach were consistent with her being pulled by her pants and belt across the carpet.
Detective Delhauer believed the chalky white marks on the clothing on Robinson's upper arm and shoulder area and the bruising on her bicep meant that Robinson's clothing had been pulled tight against her skin while it was rubbed against a white chalk-like residue. This residue was consistent with oxidized paint from places where old paint had started to crumble. Robinson's right eye showed petechial hemorrhages, which are the type of injury that occurs most frequently in asphyxia death. The area above Robinson's left eye was swollen, which was consistent with a blunt force trauma, which is most frequently a result of a blow from a fist or a punch in the eye. The injuries to the lips and mouth were typically a result of a punch or a slap to the mouth or from cupping a hand over the mouth and pressing in order to stifle screams. A piece of broken tooth filling could be seen on the lower lip.
Detective Delhauer compared the pile and texture of the carpet at appellant's residence with the marks on Robinson's abdomen and found them to be consistent. He concluded that the injury to Robinson's abdomen was consistent with a fall. Detective Delhauer believed that Robinson's injuries were consistent with having been inflicted on the staircase. Detective Delhauer noted that Robinson had a diagonal bruise across her right brow, a cone-shaped bruise on the corner of the right eye, an abrasion across the bridge of her nose, and a contusion on the top of her head. These facial injuries were consistent with the surfaces of the balusters. The right elbow injury was consistent with the base of the balusters. The injuries to the area of the left hip and abdomen were consistent with the protrusions of the stairs as the body fell against and probably slid on the stairs. Robinson also had a very deep "reddish purple discoloration" around the base of her neck, which indicated that Robinson's head had been tilted forward in a position that would pinch the air pipe making it impossible to breath. Robinson had marks on her face called Tardieu spots, which are similar to petechial hemorrhages but larger. These could indicate compression as a means of asphyxiation.
Detective Delhauer believed the paint chip came to be on Robinson's body as a result of her being dragged through the area where the wall was damaged, which was across from the bottom stair. As her body was turned and manipulated, the chip worked its way down as a result of pushing and pulling on the body.
Defense Evidence
Appellant presented no evidence in his defense.
I. Denial of Appellant's Request to Revoke Waiver of Counsel
A. Argument
Appellant contends the trial court abused its discretion in denying his unequivocal request to revoke his in propria persona status and have counsel appointed to represent him. Appellant claims that the reasons the trial court gave for refusing his request were insufficient. Appellant argues that the error violated his Sixth Amendment right to counsel and was structural error requiring automatic reversal, or that it was not harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).
B. Relevant Authority
When a criminal defendant who has waived his right to counsel and elected to represent himself under Faretta v. California (1975) 422 U.S. 806 seeks to revoke that waiver and have counsel reappointed, the trial court must exercise its discretion under the totality of the circumstances. (People v. Lawrence (2009) 46 Cal.4th 186, 191-192 (Lawrence); People v. Lawley (2002) 27 Cal.4th 102, 149; People v. Gallego (1990) 52 Cal.3d 115, 164; People v. Elliott (1977) 70 Cal.App.3d 984, 993 (Elliott).) In determining whether the trial court abused its discretion in denying such a request, we review relevant factors including, "'(1) defendant's prior history in the substitution of counsel and in the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendant's effectiveness in defending against the charges if required to continue to act as his own attorney.'" (Lawrence, supra, at p. 192, quoting Elliott, supra, at pp. 993-994.) These factors are not absolutes, although they are relevant and helpful to a trial court's analysis. (Lawrence, supra, at p. 192.) It is not the case that "the trial court must review on the record each factor . . . or that any one factor is necessarily determinative." (Id. at p. 196.)
C. Proceedings Below
At a pretrial proceeding on June 6, 2008, Judge Cheroske granted appellant his request for in propria persona status. Trial began on January 29, 2009. The trial court appointed Edward Murphy to serve as standby counsel. During voir dire appellant requested advisory counsel, which was denied. Opening statements occurred on February 4, 2009, and the first witnesses were called on February 5. Trial continued on February 6, 9 and 10. On February 10, Detective Delhauer began his testimony after the trial court read a lengthy instruction to the jury on how to evaluate an expert's opinion. Prior to the continuation of Detective Delhauer's testimony on February 11, appellant told the court he had "a couple of motions to dismiss." He said he wished to offer a motion under Evidence Code section 402 on the rest of Detective Delhauer's presentation, arguing that it was based on secondhand hearsay. The trial court denied the motion, stating that it was being vigilant that the detective's testimony followed the court's ruling, i.e., that the detective was to render his opinions based on his personal observations. Appellant then stated that his motion was also based on Evidence Code section 352 and Crawford v. Washington (2004) 541 U.S. 36, although appellant recognized that the trial court had already explained how Crawford did not apply. The trial court explained to appellant that the evidence was more probative than prejudicial. Appellant then stated that the detective was using photographs that were unreliable. The trial court told appellant he could explore that issue on cross-examination if he chose to do so and could pose hypotheticals as long as they were based on the evidence and reasonable inferences. The trial court denied the motions to exclude the balance of Detective Delhauer's testimony and/or to strike the testimony already given.
When asked if there was anything else, appellant replied "Yes." When asked what it was, appellant replied, "It is obvious that I can't—I can't find the right words to say. Would you appoint me an attorney?" The trial court replied, "Well, no. We're three-quarters of the way through the trial. And, again, you were advised of this. You were warned and admonished about pitfalls of representing yourself. So these are the last witnesses of the case, so at this point your request for any advisory counsel, that request will be denied at this time." Appellant stated, "No, an attorney to handle this. I'm sure an attorney would know exactly why that's probably not admissible. It's all secondhand information. He has not seen the body. And he has not seen injuries that he's speaking on and saying what he's saying." The trial court replied, "An attorney would not be able to make any stronger argument than you just made in terms of what the law allows, and that's not a basis for me revoking your pro. per. status or anything along those lines. All right. Let's proceed." After the prosecutor pointed out that the sergeant was the last major witness, the trial court asked if there was anything else. Appellant merely stated that he had two more motions, and the trial court stated it would deal with them when the time came.
D. No Abuse of Discretion
We believe the trial court's decision not to revoke appellant's in propria persona status in this case was not an abuse of its discretion under the totality of the circumstances. Appellant did not make an unequivocal request to revoke his in propria persona status. Rather, he wanted an attorney to "handle" his attempt to have Detective Delhauer's testimony excluded, as the record clearly shows. This is evidenced by the fact that, when this request was refused, appellant continued with the trial with no further comments about feeling inadequate to act as his own attorney. (See, e.g., Lawrence, supra, 46 Cal.4th at p. 193 [defendant's comment that he was having trouble with cross-examination was not an unequivocal request to revoke his in propria persona status]; People v. Gallego, supra, 52 Cal.3d at p. 164 [trial court did not abuse discretion in refusing to revoke in propria persona status late in guilt phase after defendant stated he felt he could not adequately cross-examine two witnesses].) In this case, as in Gallego, the trial court gave appellant every opportunity to request an attorney at the beginning of every court session and during appellant's motion hearings. (See Gallego, supra, at pp. 164-165.) As the trial court pointed out during appellant's motion for a new trial, Detective Delhauer was the 29th of 31 witnesses presented by the People on the ninth day of trial. The two witnesses (Nos. 30 and 31) who interrupted the detective's testimony were only briefly on the stand.
During the hearing on the new trial motion, which was based on the trial court's refusal to revoke appellant's in propria persona status during Detective Delhauer's testimony, the trial court further explained its motivation. Although appellant characterizes the trial court's discourse as "an attempt by the court to clean up the record," given the subject of the new trial motion, we believe the trial court legitimately took the opportunity to explain its position. The trial court pointed out that, even if appellant's request were construed as a proper request for an attorney, it was not timely, and he had had many opportunities to make the request earlier but did not. The trial court asked appellant at every break and every recess if there was anything he wished to bring up. Granting appellant's request would have caused disruption and delay, since no attorney would have been able to resume representation at that time. Since they were at the end of trial, the issue of appellant's effectiveness was not pertinent. Moreover, the request was so obviously untimely that the court's decision did not need to be expounded upon any more than it had been at the time.
From this court's point of view on review of the record, the fact that appellant was not seeking a permanent change in his in propria persona status was also evident in his conduct subsequent to his equivocal request. Appellant did not ask for an attorney at any time through rendering of the verdict. Afterwards, he showed a penchant for jumping between self-representation and attorney representation depending on his issue at the moment. After the verdict, appellant was represented by Attorney Ed Murphy for his new trial motion. After argument by both parties, appellant interrupted the proceedings and asked to speak with his attorney. He then requested a Marsden hearing and for his attorney to be relieved "right now" because his attorney was unprepared. The trial court granted appellant a Marsden hearing. During the Marsden hearing, appellant's in propria persona status was reinstated, and in open court, appellant said, "If Mr. Murphy is going to be standby counsel, can we stipulate that he has to stay in the courtroom so he can be prepared to take over?" The trial court warned appellant that he could not keep going back and forth. The court granted appellant one continuance until October 2, 2009, when appellant indicated he was not prepared to move forward with his new trial motion. Before court adjourned, appellant stated, "Would you give me something—would you give me—would you substitute the counsel, that's what I really need." Appellant later sent a letter to the court in which he wrote that Attorney Murphy had stated everything that needed to be stated and appellant wished for a ruling. On October 2, 2009, appellant told the trial court that he had written another letter saying he did not want to proceed without an attorney. Appellant's tendency to continually change his mind about representing himself or accepting attorney representation casts further doubt on his current attempt to characterize as unequivocal his request for an attorney during Detective Delhauer's testimony.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
In any event, if the trial court erred, the error was harmless under any standard. As the trial court noted, appellant's effectiveness was not an issue at that point in the trial. Appellant did his best to exclude the crime reconstruction expert's testimony, but there was no better argument to be made on this issue, and an attorney would not have succeeded in excluding the testimony. Although appellant did not cross-examine Detective Delhauer, the trial court had admonished the jury that it was not required to accept the expert's opinion as true or correct. The jury was told to consider the reasons the witness gave for any opinion and the facts on which he relied. The jury was told it could disregard any opinion it found unbelievable or unreasonable. One of the other two witnesses was Diane Yell, who merely testified that Robinson had made appellant the beneficiary of her school district life insurance policy on January 14, 2006. The other was Detective Traci Gonzales, who testified that she found school art supplies, feminine beauty and hygiene products, and pictures from students inside the home Robinson shared with appellant. She also found packages of the same feminine hygiene products in a car in the driveway of the home. Although appellant made an extremely brief closing argument, there was strong circumstantial evidence of his guilt, and an argument by an attorney was not likely to engender reasonable doubt.
Moreover, any defect in the quality of appellant's self-representation did not necessarily compel granting his motion to relinquish his waiver. (See People v. Lawley, supra, 27 Cal.4th at pp. 149-150.) A "defendant's asserted ineffectiveness at self-representation does not demonstrate an abuse of discretion. Defendant was untrained in the law and may not have been especially experienced in court procedures, but the same could be said of many, if not most, in propria persona criminal defendants. That defendant's defense would have been more effectively presented . . . had he been represented is likely. But if that fact were determinative, virtually all self-representing defendants would have the right to revoke their counsel waivers at any time during trial. That is not the law." (Lawrence, supra, 46 Cal. 4th at p. 196.) As for sentencing, appellant's sentence was mandatory. We conclude that, even if the trial court abused its discretion in denying appellant's request for counsel, any error was harmless. (Chapman, supra, 386 U.S. at p. 24 [harmless beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 836 [not reasonably probable that had counsel been appointed a result more favorable to appellant would have been obtained]; see Elliott, supra, 70 Cal.App.3d at p. 998 [the defendant's constitutional right to represent himself does not preclude review of any error in denying his request to reverse this status under the Watson standard—an abuse of discretion in not permitting a defendant to change his mind is not of constitutional dimension].)
II. Dismissal of Deliberating Juror
A. Argument
Appellant contends that his Sixth and Fourteenth Amendment rights to due process and a full and fair trial by an impartial and unanimous jury were violated when the trial court dismissed the lone holdout juror. According to appellant, there was no showing of a demonstrable reality that the juror was unable or unwilling to deliberate.
B. Relevant Authority
Section 1089 provides that a trial court may discharge a juror and replace him or her with an alternate if the juror is found to be unable to perform his or her duty. On appeal, this court reviews the decision to discharge a juror and replace that juror with an alternate for abuse of discretion. (People v. Marshall (1996) 13 Cal.4th 799, 843 (Marshall); People v. Johnson (1993) 6 Cal.4th 1, 21 (Johnson).) If there is any substantial evidence supporting the trial court's decision, it will be upheld. (Marshall, supra, at p. 843; Johnson, supra, at p. 21.) The juror's inability to perform his or her duty "must '"appear in the record as a demonstrable reality."'" (Marshall, supra, at p. 843; Johnson, supra, at p. 21.) A finding of inability to perform the duties of a juror may not be based on the juror's taking a position contrary to that of the other jurors (People v. Hamilton (1963) 60 Cal.2d 105, 128, disapproved on other grounds in People v. Daniels (1991) 52 Cal.3d 815, 865-866), nor may it occur merely because a juror indicates he or she has doubts about the prosecution's evidence (People v. Cleveland (2001) 25 Cal.4th 466, 483 (Cleveland)).
A trial court is required to extend its inquiry only to the degree "'reasonably necessary to determine'" whether grounds for discharging the juror exist. (Cleveland, supra, 25 Cal.4th at p. 484.) The "trial court's inquiry into possible grounds for discharge of a deliberating juror should be as limited in scope as possible, to avoid intruding unnecessarily upon the sanctity of the jury's deliberations." (Id. at p. 485.)
C. Proceedings Below
Deliberations began on Tuesday, February 17, 2009 at 3:02 p.m. On Thursday, February 19, 2009, at 12:15 p.m., the trial court received a note from the jury stating, "I think we are a 'hung jury.'" The trial court announced its intention to tell the jury to continue deliberating while the court contacted the parties. When the parties and the jury were again assembled, the trial court asked the foreman (Juror No. 2) if the jury was still deadlocked, and the foreman said, "Yes, sir, your Honor. We have a member of the jury who is espousing that position." When asked what he himself thought, the foreman replied that he did not think the jury could arrive at a unanimous decision and that there was no reasonable probability it might reach a verdict. Upon being asked, he said there was nothing the court could do, such as further reading of instructions or testimony.
The foreman stated that the jury had taken two formal ballots, and the numerical breakdown of the balloting was 11 to one. The court then asked some of the other jurors if his or her opinion was that the jury was hopelessly deadlocked. Juror Nos. 1, 3, and 4 replied, "yes." Juror No. 5 replied, "no." The trial court then allowed the jury to leave for the afternoon and ordered them to resume deliberations the next morning.
On the following morning, the foreman sent the trial court a note asking, "Your [H]onor, what are my responsibilities when one of the jury refuses to deliberate and has stated that they will not follow your instructions??" Appellant suggested the trial court declare a mistrial, but the court brought out the foreman and asked in what way the juror or jurors refused to follow the court's instructions. The foreman stated that a juror had expressed that personal beliefs would prevent that juror from following the instructions. This juror had refused to reconsider several times that day and the previous day. The personal belief expressed was that "they don't want to make a decision that could send someone to prison for the rest of their life." At the court's request, the foreman asked the juror, Juror No. 4, to enter the courtroom, and the foreman was instructed not to share anything that he had discussed with the court with other jurors.
The trial court asked Juror No. 4 how he thought things were going so far in terms of deliberations. The trial court told the juror that it was not interested in his verdict. The court wanted to know if Juror No. 4 was talking to the other jurors. The juror replied, "Yes." The trial court asked if there had been any consideration or discussion of what the punishment might be, and if such consideration had affected Juror No. 4's consideration in any way. Juror No. 4 replied, "No." The trial court asked, "There's been no discussion of that?" The juror replied, "My understanding is that I can vote one way or the other, and that will be it." The trial court told the juror he was "absolutely right," but the court was trying to find out if there had been any discussion about anything that related to penalty or punishment. The juror replied, "as far as punishment goes, no, I don't see where that would come in to it." The trial court asked again, "But you haven't mentioned anything about that; is that correct?" The juror replied, "About what?" The trial court repeated, "Penalty or punishment, or what might happen to [appellant]." Juror No. 4 stated, "No, I have not."
The trial court then questioned Juror No. 1, who indicated that Juror No. 4 had talked about punishment. Juror No. 1 told the court that Juror No. 4 had said that morning, "'The penalty is so severe that I don't feel the evidence will convince me for that verdict, will convince me to say he's guilty.'" Juror No. 1 said that Juror No. 4 "clearly stated he is not going to change his mind."
The trial court stated for the record it was randomly selecting jurors, and it asked Juror No. 6 to come out. Juror No. 6 told the court that a juror expressed concern about the severity of the punishment, and the trial court ascertained the juror's identity. Juror No. 5 told the court that one of the jurors was discussing punishment as an influence in his decision. Juror No. 5 said that Juror No. 4 "can't really follow the instructions because of his feelings," and Juror No. 4 was the only juror expressing this position. Juror No. 8 informed the court that a member of the jury talked about penalty or punishment as a basis for their verdict, and he was the only one to do so.
After completing its random sample, the trial court stated, "Juror number 4 clearly has violated the court's order to not only not consider penalty or punishment, but he's making that a basis for not listening to the other side. And I don't believe he was truthful when I directed that question to him. It doesn't look like any of the other jurors, though, are engaging in the misconduct. But clearly there is misconduct on the part of Juror No. 4." The trial court announced its intention to replace him with an alternate. Appellant argued that "this is adversarial process at this time. Him against them. I don't think a fair verdict can be reached at this time." The trial court responded that Juror No. 4 was refusing to deliberate because of his belief that the punishment was too severe and secondly because he was considering penalty or punishment after the court told him not to. Furthermore the trial court believed "he came right out here and lied to the court." Juror No. 4 was excused and Alternate Juror No. 3 was empanelled. The trial court instructed the jury to begin deliberations again, from the beginning. (CALCRIM No. 3575.) The jury returned to its deliberations before the noon recess. At 3:38 p.m., the jury announced it had reached a verdict.
D. No Abuse of Discretion
We believe the trial court did not abuse its discretion in dismissing Juror No. 4. We initially observe that, although appellant refers to Juror No. 4 as the "holdout juror," the record shows that the trial court did not consider Juror No. 4's possible verdict in its inquiry or decision and did not wish to know what it was.
Before deliberations, the jury was instructed to "not let bias, sympathy, prejudice, or public opinion influence [its] decision" and to "reach [its] verdict without any consideration of punishment." The jury was also instructed with CALCRIM No. 3550 that: "It is your duty to talk with one another and to deliberate in the jury room. You should try to agree on a verdict if you can. Each of you must decide the case for yourself, but only after you have discussed the evidence with the other jurors. . . . Your role is to be impartial judges of the facts, not to act as an advocate for one side or the other."
The record clearly revealed that Juror No. 4 had committed misconduct by focusing on potential punishment and refusing to follow the trial court's instruction not to consider punishment. Moreover, when asked about his position and whether he had discussed punishment, Juror No. 4 refused to admit it, despite more than one opportunity to do so during questioning. Even if the cold record did not reveal the juror's deceit, the trial court was in the best position to assess the demeanor and believability of Juror No. 4. (People v. Beeler (1995) 9 Cal.4th 953, 989; People v. Turner (1994) 8 Cal.4th 137, 205.) The trial court could reasonably conclude that Juror No. 4's deceptive and evasive answers to its questions concealed a bias that warranted his excusal. (See In re Hitchings (1993) 6 Cal.4th 97, 111 [false statements during voir dire are misconduct and indicative of bias]; People v. Thomas (1990) 218 Cal.App.3d 1477, 1484-1485.)
Thus, Juror No. 4's inability to perform his duty as a juror was a "'"'"demonstrable reality"'"'" as shown by the record. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) It is evident that the problems with Juror No. 4 went beyond a failure to "deliberate well or reli[ance] upon faulty logic or analysis." (Cleveland, supra, 25 Cal.4th at p. 485.) His problems were not merely "disagree[ment] with the majority of the jury as to what the evidence show[ed], or how the law should be applied to the facts, or the manner in which deliberations should be conducted." (Ibid.)The juror was fixated on the punishment appellant might receive in contravention of the trial court's instruction, of which the jurors were clearly aware, and he refused to acknowledge this before the trial court. We conclude there was no error in excusing Juror No. 4, and appellant's constitutional rights to a jury trial and due process were not violated.
III. Sufficiency of the Evidence
A. Argument
Appellant contends there was no substantial evidence presented at trial to show that he acted willfully, deliberately, and with premeditation to support the first degree murder finding. Appellant argues that his constitutional rights to due process guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution were violated, and the first degree murder finding must be reversed.
B. Relevant Authority
"Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation. . . . Settled principles of appellate review require us to review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt. [Citations.]" (People v. Perez (1992) 2 Cal.4th 1117, 1124 (Perez).)
There are three basic, but not exhaustive, categories of evidence that will sustain a finding of premeditation and deliberation: (1) planning activity; (2) motive; and (3) manner of the killing. (People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson); see also Perez, supra, 2 Cal.4th at p. 1125.) All of these factors need not be present to sustain a finding of premeditation and deliberation. (People v. Pride (1992) 3 Cal.4th 195, 247.) The Anderson factors are merely categories of evidence to be used as a framework in the analysis of the sufficiency of the evidence of premeditation and deliberation. (See Perez, supra, 2 Cal.4th at p. 1125; People v. Thomas (1992) 2 Cal.4th 489, 517.) The Perez court emphasized that these factors are by no means the exclusive means of showing premeditation. (Perez, supra, at p. 1125.)
In reviewing the sufficiency of the evidence of premeditation and deliberation, we do not substitute our judgment for that of the jury. Rather, we draw all reasonable inferences in support of the verdict and affirm the judgment if any rational jury could find premeditation and deliberation beyond a reasonable doubt. (People v. Pride, supra, 3 Cal.4th at p. 247; Perez, supra, 2 Cal.4th at p. 1124.) Premeditation and deliberation may be shown by circumstantial evidence. (Anderson, supra, 70 Cal.2d at p. 25.)
C. Proceedings Below
The trial court instructed the jury with CALCRIM No. 521 as follows: "If you decide that defendant has committed murder, you must then decide whether it was murder of the first or second degree. The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused death. The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made [rashly], impulsively, or without careful consideration is not deliberated and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time. All other murders are of the second degree. The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder."
D. Evidence Sufficient
Appellant contends that, without knowing the exact cause of death and the circumstances surrounding the cause of death, no reasonable juror could have determined that the killing was premeditated and deliberate. He claims that none of the elements in the Anderson factors were present, and the circumstantial evidence of appellant's intent just as easily supported a conclusion that he killed Robinson as a result of an uncontrolled rage. We disagree.
First, the evidence that appellant arranged for him and Robinson to purchase life insurance policies in the amount of $500,000 is evidence of planning activity and motive. According to the insurance agent, when Robinson hesitated about buying her policy because of the premium, appellant volunteered to pay the premiums on Robinson's policy, of which he was the beneficiary. The policies were purchased approximately 17 years after appellant and Robinson began their relationship, but only seven months before Robinson was murdered. Robinson also named appellant as the beneficiary of her school district life insurance policy only four and a half months before her murder, and appellant carried her employee number in his wallet.
After Robinson's death, appellant asked his insurance agent about the status of Robinson's policy without telling his agent that Robinson had been killed. His agent told him that the policy was good as long as he paid the premiums, and appellant continued to pay the premiums after that phone call, even though Robinson was dead. When he finally told his agent that Robinson had died, appellant was upset that he could not collect on her policy because Robinson had been murdered. He called his agent six to eight times, and he repeatedly called Laws, the vice-president of the insurance provider, to complain that he could not collect the proceeds of the policy.
Robinson's injuries also provided strong evidence of a planned killing. There was ample evidence presented from which a rational juror could find that Robinson had been pushed down the stairs of appellant's home and then beaten, giving appellant opportunities to reflect on his actions and make a decision to kill. Detective Delhauer concluded that the injury to Robinson's abdomen was consistent with a fall. The bruise on Robinson's elbow was consistent with her falling into the corner of the balusters on the staircase. Robinson also had a diagonal bruise across her right brow, a rectangular bruise on the corner of the right eye, an abrasion across the bridge of her nose, and a contusion on the top of her head. Significantly, the swollen area above Robinson's left eye was consistent with blunt force trauma—most frequently the result of a punch. Her injuries to her lips and mouth were consistent with being slapped.
There was also time to make a cold and calculated decision between the fall and the beatings shown by the evidence and the asphyxiation. There was evidence that appellant suffocated Robinson to death at the base of the stairs. The wall directly across from the landing at the bottom of the stairs had flaking paint. Robinson's black sweater showed white marks like a chalky residue on the right upper arm and shoulder area. These white transfer marks and contusions on the victim's biceps showing lines produced by folds in clothing suggested that Robinson's clothing was pulled tight against her skin while rubbing against oxidized paint such as that on appellant's wall. The Tardieu spots, the deep purple marks around the base of the collar, and the petechial hemorrhages in her eyes indicated asphyxiation caused by compression. Detective Delhauer testified that these areas indicated that Robinson's head had been tilted forward and locked in a position in which it pinched the air pipe, making it difficult or impossible to breathe. It appeared her head was locked down with the chin pressed against the base of the neck. Robinson's lacerations to the inner lips caused by her own teeth also indicated asphyxiation by closing the mouth and pinching the nose off so that the person cannot breathe. Although the coroner's examination was hampered by the rapid decomposition that occurred between the finding of the body and the autopsy on the following day, the coroner stated that the cause of death was oral facial trauma with probable asphyxia. The latter cause was based on evidence of petechial hemorrhages around the eyes and the face that are associated with asphyxia.
Thus, the evidence showed that the acts leading to Robinson's death were committed in several stages, all of which gave appellant time to reflect on his actions and decide to kill. Appellant's actions after the killing were also indicative of premeditation and deliberation. Appellant had duct tape ready to bind Robinson's legs so that they stayed together while he dragged her, probably on a blanket, to his van.
In sum, a reasonable juror could infer that appellant had premeditated his act and prepared a plan to dispose of the body. We conclude that substantial evidence supported the jury's finding that appellant acted willfully, deliberately, and with premeditation when he killed Robinson.
IV. Award of Credits
A. Argument
Appellant contends that the trial court miscalculated the number of actual days he spent in presentence custody. Under section 2900.5, he is entitled to receive full credit for actual confinement time.
B. Relevant Authority
"A challenge to an award of presentence conduct credit may be raised at any time. [Citation.]" (People v. Florez (2005) 132 Cal.App.4th 314, 318, fn. 12.) Section 1237.1 requires a request for correction of such credits to be directed first to the trial court. When other issues are litigated on appeal, however, "section 1237.1 'does not require defense counsel to file [a] motion to correct a presentence award of credits in order to raise that question on appeal.' [Citation.]" (People v. Florez, supra, at p. 318, fn. 12.)
C. Additional Custody Credits Should be Awarded
At sentencing, the trial court awarded appellant credit for 723 actual days that he served. This purportedly corresponded to the time appellant spent in custody after his second arrest on October 10, 2007, until his sentencing on October 2, 2009. For this period, however, the total number of actual days was 724. The record shows that appellant was initially arrested for the murder of Robinson on June 6, 2006. He was released on June 8, 2006. Therefore, he is entitled to three more days of custody credits for a total of 727 days.
DISPOSITION
The judgment is modified to award appellant a total of 727 days of presentence credit. In all other respects, the judgment is affirmed. The superior court is directed to amend the abstract of judgment to reflect the correct number of credit days and to forward the amended abstract to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
P. J.
BOREN
We concur:
J.
DOI TODD
J.
ASHMANN-GERST