Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA258730, Craig E. Veals, Judge.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
A jury found defendant and appellant Tyrone Jackson guilty of the attempted murder and assault of Rickey De Lowry. The jury also found true, among other things, a gang allegation under Penal Code section 186.22, subdivision (b)(1). On appeal, defendant contends, first, that there is insufficient evidence to support the true finding on the gang allegation. Second, he contends that the way in which the trial court conducted jury selection created an “atmosphere of fear.” We affirm the judgment.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
A. The shooting of Rickey De Lowry.
In July or August 2003, Rickey De Lowry moved into an apartment in an area of Los Angeles known as the Jungles, which is in the Black P Stones (BPS) gang’s territory. A few days after moving into the apartment, De Lowry met defendant, who was a member of the BPS gang. De Lowry was not a BPS gang member; he was a member of the 88th Street Mobsters in Inglewood.
At some time in October 2003, defendant asked De Lowry to hold a gun for him. A few days later, defendant also gave De Lowry what looked like crack cocaine and marijuana packaged in bags and over $1,000 to hold. De Lowry kept the items in a box in a cupboard. Thereafter, defendant came back 10-to-15 times to put things in and take things out of the box. De Lowry did not refuse to hold the items for defendant because he was afraid he might be beaten or killed.
De Lowry held items for other BPS gang members. For example, on October 22, 2003, De Lowry was arrested for gun possession. Although De Lowry said the gun was his, it actually belonged to “Black,” a BPS gang member. Moo Moo, also a BPS gang member, asked De Lowry to hold a backpack containing bullets.
On the evening of October 31, 2003, Tank, Tray K, and Rudolph, all of whom were BPS gang members, were at De Lowry’s apartment. Defendant came by and asked for his box. De Lowry gave the box to him, and defendant took out money, which he said he was going to use to buy a gun, and drugs. Defendant gave the box back to De Lowry, who put it into the closet.
Michael Boddie.
De Lowry rejoined Tank, Tray K, and Rudolph, one of whom asked De Lowry if he was holding stuff for defendant. When De Lowry said yes, one of them said he shouldn’t hold defendant’s stuff. De Lowry went outside to smoke a cigarette. When he returned, his door was locked. After a minute or so, Tank, Tray K, and Rudolph let him back in. They left. De Lowry did not see anything in their hands, but all the contents of the box he was keeping for defendant were gone. De Lowry stopped Tank and asked why he and the others took the stuff. Tank asked De Lowry not to tell on them and to make it seem like someone broke into the house. Tank, Tray K, and Rudolph left, and De Lowry went for a drive with a friend to figure out what to do.
De Lowry soon returned home, only to find his back door kicked in. Defendant arrived and, soon thereafter, Tank, Tray K, and Rudolph came back. De Lowry told defendant that someone broke into his house and took defendant’s stuff. Defendant accused De Lowry of taking his stuff. De Lowry did not tell defendant that Tank, Tray K, and Rudolph took his stuff because he figured it was easier to get away from one person than from three. Defendant left, but Tank stayed with De Lowry.
Defendant came back with a gun, which he used to beat De Lowry. He told De Lowry to find out who took his stuff. After hitting De Lowry repeatedly, defendant pointed the gun at De Lowry’s head and said he should kill him. Tank told defendant not to “ ‘do it in here.’ ” Defendant tried to drag De Lowry outside, but he could not. He kicked De Lowry and left with Tank.
Scars from that beating were visible at trial.
De Lowry grabbed something to staunch bleeding from his face, and he ran out of his apartment into the nearby alley. He heard defendant say, “ ‘You can’t get away that easy.’ ” De Lowry turned and saw defendant pointing a gun at him. Defendant shot De Lowry twice; De Lowry’s legs went “dead” and he fell. Defendant left in a maroon car.
De Lowry had been shot in the shoulder and in the back with a nine-millimeter gun. De Lowry was unable to walk until around the time of trial, when he got leg braces and was able to take a couple of steps.
B. Gang evidence.
1. The prosecution’s gang evidence.
The BPS gang originated in Chicago and migrated to Los Angeles in the mid-to-early 1970’s. Although the gang started out as a political action organization, it became involved in selling drugs. The gang has over 700 documented members, and there are probably 700 undocumented members. The gang’s territory is lower Baldwin Village, which is commonly referred to as the Jungles.
BPS is a Bloods gang, and its main rivals are the Crips and the 18th Street gang, which is a Hispanic gang. The People’s gang expert had never heard of the 88th Street Mobster Bloods, the gang to which De Lowry belonged, and he had never heard of a rivalry between BPS and 88th Street. Rather, Bloods gangs usually are “in alignment.”
BPS sells drugs, and that activity benefits the gang because the gang uses the proceeds to buy vehicles and guns and to pay bail for the gang’s members. A person who simply stores drugs, money, and firearms for a gang member is not necessarily a member of the gang or an associate (someone who hangs out with the gang on a regular basis but does not commit crimes or call himself a gang member). Gang members typically have other people store their narcotics, guns, and money. Defendant has admitted to officers on multiple occasions that he is a BPS gang member.
Defendant’s assault of De Lowry inside his apartment and threat to kill him were done for the benefit of or in association with BPS. Defendant used fear and intimidation to show that he represents BPS and that if you “steal from me, there are going to be consequences or repercussions for doing so.” The People’s gang expert testified, “If someone were to find out that drugs and weapon were stolen from a Black P Stones gang member and nothing was done about it, that [de]creases the status of the gang. But if someone does something about it . . . such as deliberat[ly] beating them with a weapon or shooting them, that [lets] other people know within the community and among the gang culture that this gang commits violence amongst people who do things to them that they don’t like.” If defendant had done nothing, he probably would have been labeled a “punk.” That the beating took place in the presence of another BPS gang member, Tank, could increase defendant’s status in the gang because Tank can vouch for defendant’s act of violence and for his loyalty to the gang. Shooting De Lowry showed that defendant was “serious about what he’s doing, and that he will do whatever it takes to continue this type of activity and not allow someone to take his property from him . . . . So the neighborhood knows what’s going on. So if they see this again, they’re not going to want to confront or be involved with these gang members which is going to maintain and elevate the status of the gang.”
De Lowry was an outsider who was made to do something through fear and intimidation. If De Lowry refused to hold the items for defendant it is possible nothing would have happened to him or he could have been beaten up. It is possible that if defendant allowed the items to be stolen from him the gang would be hurt by it. Based on De Lowry’s description of the drugs he was holding for defendant, the People’s expert testified that the drugs were possessed for sale.
2. Defense gang evidence.
According to the defense’s gang expert, the crimes against De Lowry did not benefit the BPS gang. While there are some “hardcore” gang members, many gang members deal drugs for personal benefit. Shooting De Lowry would not benefit the gang because it would merely publicize that BPS gang members were ripping each other off, making the gang appear vulnerable.
II. Procedural background.
Trial was by jury. On April 15, 2005, the jury found defendant guilty of count 1, attempted murder of De Lowry (§§ 187, subd. (a), 664). The jury found that the attempted murder was committed willfully, deliberately and with premeditation. The jury also found true gun enhancement allegations under section 12022.53, subdivisions (b), (c), and (d). The jury found defendant guilty of count 2, assault with a firearm (§ 245, subd. (a)(2)). The jury found true that defendant personally inflicted great bodily injury on De Lowry (§ 12022.7, subd. (a)) and that defendant personally used a handgun (§ 12022.5, subd. (a)). As to both counts, the jury found true gang allegations under section 186.22, subdivision (b)(1).
On July 18, 2006, the trial court sentenced defendant to a life term on count 1 with a 15-year minimum plus 25 years under section 12022.53, subdivision (d). The court imposed and stayed the sentence on count 2.
The stayed sentence included upper terms. Defendant does not raise any issues under Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856].
DISCUSSION
I. Sufficiency of the evidence to support the true finding on the gang enhancement allegations.
Defendant contends that the evidence is insufficient to support the jury’s finding that the crimes were committed to benefit or in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1). We disagree.
Section 186.22, subdivision (b)(1), provides, “[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members” shall be subject to additional punishment as further defined in section 186.22, subdivision (b). (See also People v. Gardeley (1996) 14 Cal.4th 605, 617.) To determine whether there is sufficient evidence to support a jury’s true finding under that section, we review the entire record in the light most favorable to the judgment to decide “ ‘whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) “We draw all reasonable inferences in support of the judgment. [Citation.]” (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
To establish the elements of an allegation under section 186.22, subdivision (b)(1), an expert witness may give an opinion that is related to a subject sufficiently beyond common experience and which is based on matter, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which the expert’s testimony relates, unless the expert is precluded by law from using such matter as a basis for the opinion. (Evid. Code, § 801; People v. Gardeley, supra, 14 Cal.4th 605.) For example, in People v. Ferraez (2003) 112 Cal.App.4th 925, 930, the Court of Appeal said that although the gang expert’s testimony was circumstantial evidence, “it was still evidence supporting defendant’s conviction.” The “gang expert’s testimony was necessary to explain to the jury how a gang’s reputation can be enhanced through drug sales and how a gang may use the proceeds from such felonious conduct.” (Id. at pp. 930-931.) Coupling the expert’s testimony with evidence of defendant’s prior admissions of gang membership and his receipt of permission from a gang to sell drugs within their territory, there was sufficient evidence to find that the drug offense at issue was gang related.
Similarly, here there was evidence, which when coupled with the People’s expert testimony, supports the gang allegation. De Lowry testified that although he was not a BPS gang member, his friends or acquaintances were. Knowing that defendant was a member of the BPS gang and afraid of what might happen if he said no, De Lowry agreed to hold drugs, money, and firearms for defendant. De Lowry also agreed to hold guns and ammunition for other BPS gang members. When someone stole the drugs and money De Lowry was holding for defendant, defendant threatened to kill De Lowry, beat him, and shot him.
According to the People’s gang expert, the drugs De Lowry held for defendant were possessed for sale. De Lowry’s testimony that defendant, a longtime BPS member, frequently came to take items out of and to put items into the box supported this opinion. The gang expert also said that drug sales benefit the gang because the proceeds are used to buy cars and guns that gang members use and to bail members out of jail. Stolen drugs and money would, inferentially, decrease profits to the gang. Moreover, allowing the theft of the drugs and money to go unpunished would lower defendant’s status in the gang and would lower his esteem in the eyes of other gangs.
Defendant, however, argues that the People’s expert’s opinion was based on a factual scenario that was full of “improbabilities” and lacked “verisimilitude.” De Lowry’s credibility, however, was a matter for the jury. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [trier of fact’s credibility determinations must be given due deference on appeal].) Similarly, whether to believe the People’s gang expert or defendant’s gang expert was a matter for the jury to decide. As we have said, the People’s expert testified that the crimes against De Lowry benefited the BPS gang. The defense expert argued to the contrary that punishing De Lowry would not benefit the gang because the drugs and money were stolen by three BPS gang members (Tank, Tray K, and Rudolph) from another BPS gang member (defendant). Publicizing such infighting by shooting De Lowry would, according to the defense’s gang expert, only undermine BPS’s reputation, not benefit it. That is certainly one way to view the evidence. But the jury was entitled to believe the People’s expert.
We therefore conclude that there was sufficient evidence to support the jury’s finding that the crimes against De Lowry were committed for the benefit of or in association with a criminal street gang.
II. Voir dire.
A. Additional facts regarding voir dire.
Because defendant claims that the trial court created “an atmosphere of fear” based on the way in which voir dire was conducted, we set forth in detail those portions of voir dire defendant cites to support his claim.
The information alleged that the attempted murder and assault of De Lowry were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(4)). Although defendant moved to bifurcate the gang allegation, the trial court denied the motion and therefore allowed the jury to be questioned about gangs. That questioning, defendant argues, created “an atmosphere of fear” in violation of his Sixth Amendment right to an impartial jury and his federal due process right to a fair trial.
Defendant does not challenge the ruling on the bifurcation motion.
In making this argument, defendant cites specific questioning during voir dire that allegedly created this fearful atmosphere. He cites voir dire of Juror No. 16/6122 who, in response to the trial court’s question whether any of the prospective jurors would have a problem deciding the case based on the evidence rather than personal feelings, said he or she would have a problem. Juror No. 16 formed opinions quickly and said it would be a “struggle” to set aside feelings and prejudices. The court asked if it would be impossible to do so, and the juror said it would not be impossible. The court then reiterated that jurors need to decide the case based on evidence and the law and to leave feelings outside. Juror No. 16 understood, but was challenged.
In response to questioning by defense counsel whether jurors had a concern about their ability to be fair because guns were involved, Juror No. 15/9838 said, “I have [a] big problem with guns,” including when police officers have them. Later, during questioning by the prosecutor, Juror No. 15 repeated that anyone who uses a gun is guilty, although upon further questioning by the prosecutor, Juror No. 15 would still hold the prosecutor to the burden of proof. The juror said that he or she understood that a discomfort with guns is not a substitute for proof. Juror No. 15 was not on the jury.
The trial court then addressed Juror No. 1/1820, who had indicated that he or she would have a hard time deciding an issue based on the testimony of a single witness. The court said that the testimony of a single witness can be sufficient evidence of a fact. When the juror expressed a concern about sending someone to jail, the court said sentencing was not a concern for jurors. The juror said he or she understood what the court was saying and would make every effort to follow through on it. At sidebar, the prosecutor accused the trial court of “rehabilitating” Juror No. 1 and argued that the juror should be excused for cause. The court denied the request, and the prosecutor exercised her first peremptory challenge to Juror No. 1.
Jurors No. 1/1820, along with Juror No. 7/8984, also said that gang members will cover and lie for each other. Juror No. 7’s uncle had also been recently killed during a robbery. Jurors Nos. 1 and 7 were not on the jury.
Juror No. 14/1309 had a “problem with gang membership.” A discussion ensued:
“The court: Okay. Most people do. And by the way, the law does too. Depending on what sort of gang we’re talking about. If it’s the U.S. Congress, it’s one thing. As Mark Twain might say or [to] paraphrase him, I guess. [¶] When you say you have a problem with it, there’s no problem with that. I don’t think anyone likes the idea that there are gangs out there, but that has nothing to do with the guilt or innocence of the defendant. And you can’t use your feelings about gang membership, certainly should there be any connection drawn by the evidence between him and such in deciding his guilt or innocence. It just would be unfair. Does that make sense?
“Prospective Juror No. 14[/1309]: It makes sense, but I’m not sure that I can – I have – to me someone who’s a member of a gang is like someone who’s a member of the Nazi party or Klu Klux Klan. I have a very deep-seated feeling about it. And it’s very hard for me. I want to separate that from and for the ability to be fair, but I’m not sure that I can.
“The court: Yes. Well, let me ask you this. Suppose the very person who is accused in this case, the defendant or the plaintiff in a personal injury case, has slipped in a market and hurt himself. And the market was not maintained well. The lighting was poor and so forth and so on. Similar to the scenario that I gave you several days ago. [¶] And let’s assume hypothetically, . . . that there is some evidence somehow that gets in to the effect that the defendant had friends who were members of a gang or that he was a member of a gang. Would that have any bearing on the issue, per se, bearing on the issue of whether or not he’s entitled to recovery under the circumstances?
“Prospective Juror No. 14[/1309]: Under those circumstances probably not. [¶] . . . [¶]
“The court: [Don’t read things into] the scenario here. Just think in terms of purely the facts that I g[a]ve you which demonstrates the problem because what we’re concerned about, and certainly of course the court is tremendously concerned about this, is that when you hear about gang membership, when you hear about membership in the Klu Klux Klan or whatever the organization might be, that you will use the passion that is engendered as a result of that revelation as a substitute as actual facts in this case. You can’t do that. There is no substitute for facts. You have to rely upon the evidence which is to say the facts that are presented during the course of the trial. Don’t read into it unreasonably simply because you have a passionate belief or a passionate reaction to something that you hear in this case. [¶] If there’s no evidence in support of it, you talk in terms of they were there to steal something. Well, you’re assuming something that was not contained in my scenario and it would be unfair for you to impart upon any party such motivation of the evidence that doesn’t support it. Does that make sense?
“Prospective Juror No. 14: Yes.
“The court: So with that in mind, . . . can you make that necessary differentiation? Can you put aside your passions, your feelings, and simply decide this case based on the facts no matter how the coin falls? Simply on the basis . . . if the facts show you something, can you determine this case based on those facts without resort to your emotions, in other words?
“Prospective Juror No. 14: I would hope so. That’s the reason I raised my hand because I’ve been conflicted about what I heard about the gang, been so conflicted about this.
“The court: Yes. Yes.
“Prospective Juror No. 14: It seems like every other day we’re hearing about someone being innocently shot, usually a child by people in gangs, drive-bys. And it seemed like it’s a blight on our society and it’s very hard for me to be fair and unbiased when it comes to that.
“The court: Yes. I understand. And I’m emotional. I understand that, too. Were you a fan of Star Trek? [¶] . . . [¶] . . . And you said McCoy, the doctor who was so emotional who just ran off the wall at the drop of a hat whenever something emotional would occur. And you had Spock always standing there, placidly not affected at all by the emotion of the situation. [¶] And that’s what we want in this case. We understand that it’s not easy. It’s not easy. But to the extent that you possibly could dedicate yourself to doing exactly that, in other words in being fair, you don’t say, well, I’ll be fair to the People. I’ll be fair to the court and stop there. You have to be fair to the defendant, too. [¶] And, likewise, in being fair you don’t say I’ll be fair to the defendant. I’ll be fair to the court and stop before you make any such commitment to the People. You have to be fair to all parties. And if the facts justify a certain decision irrespective of emotion, then you must decide accordingly. You must be reasonable and you must be fair. [¶] Okay, and by the way, in throwing out these scenarios, I’m not suggesting in any way that there will be such evidence linking the defendant with gang membership. That is up to the state of facts in this case for you to determine. You’ll have to determine that, depending upon what the facts are in this case. But I’m just covering the possibility of that. [¶] And to the extent that there should be such a presentation on this case, we have to make sure at the outset that we’re dealing with people who can be fair and not decide the case based on emotion. [¶] So you’ll make every effort?
“Prospective Juror No. 14: Yes, sir.”
Later, during defense counsel’s voir dire, Juror No. 14 and Juror No. 13/6104 raised their hands when counsel asked if anyone had concerns about being fair. Juror No. 14 repeated that it would be hard for him to be objective about gangs. He said, “This judge is really very brilliant and charming and persuasive in wanting us all to do our best, and I really want to do my best for him. By the same token I want to be fair. I have a problem with something that I see as a real blight on our society and that if I had my way and national guard, we’d go block by block weed these people out.” The juror clarified that “right now I come down on the side of the People.”
Juror No. 13/6104 had a “personal and extremely threatening” experience with gangs that might color his feelings about the case. Declining a sidebar, the juror said a gang member broke into his house and threatened him. The juror also expressed a dislike of guns.
The trial court then said it wanted to clarify a few things. “Everyone understand that what we are interested in is . . . jurors who can be fair in this case, who don’t have any particular agenda, who don’t have a bias one way or the other that will influence your ultimate determination of fact in this case. We want you to come in, dispossessed of all of your baggage that we ordinarily have outside, listen to the evidence here, and make your decision on the facts, determine what the facts are based upon only the evidence presented here as well as the law of course. [¶] So if you have a particular experience in your life that makes you mad at a particular group of people, based upon whatever characteristic, leave that there, and when you come in here to decide the issues in this case, do not consider it to the best of your ability. [¶] All right. We all have prejudices. We all have baggage. We all have experiences and God knows I do and no doubt you’re any different. But fairness dictates that I have any particular feelings that I not bring them into play when I decide issues involving people who appear before me. And you have to do the same thing. I’m the judge of the law. You [are] the judge or the judges of the facts. And you have to decide the facts based upon what you see and hear and experience here in this courtroom. I don’t know if I can say it any plainer than that.” The court then asked Juror No. 13 if he could follow these instructions, but the juror continued to equivocate.
Jurors Nos. 13 and 14 were excused for cause.
Juror No. 17/3858 expressed discomfort about a woman in the audience who was taking notes. Later, Juror No. 6/4433 said she was also nervous because she was contacted after a prior criminal case by that defendant’s mother. The trial court reassured jurors that their identities were confidential.
New Juror No. 14/6513 had been shot and expressed hostility at being in court and at gangs. He could not promise he would be fair to the defendant. He said, “I see many of these young adolescents, not referring to him [defendant], I see young, arm behind their chair. They don’t care about anybody else’s time being utilized. And I’m thinking, wait a minute. There’s plenty of us over here who have jobs. I don’t get paid while I’m here. The fact of the matter, I’m here as a civic duty. . . .” The court interrupted the juror and excused him.
After the jury was empaneled, defendant moved for a mistrial citing Juror No. 6/4433 who asked about the woman in the audience taking notes. Defense counsel also referred to the juror who had a bad personal experience with gangs and the juror who had been contacted by another defendant’s mother. Defense counsel summarized that “I think the climate is becoming one where there’s a little bit of intimidation. I’m afraid it’s going to taint the proceedings, . . .”
After the jury rendered its verdict, defendant raised the same argument in a motion for a new trial. Defendant also cited incidents concerning a “yawning juror” and a juror who cried during deliberations as evidence that the proceedings were unfair. We discuss those incidents in greater detail below.
The trial court denied the motion and stated, “The defending party, at least the first person you mentioned, is certainly not here anymore. And talking about segues, I use that as an opportunity – and a golden opportunity to point out to the jurors the importance of proceeding not on the basis of stereotypes and experiences outside of this courtroom but instead the evidence actually presented here and even personalized it to the point where I discussed with them a[n] experience that I personally had several years ago and have had many times in my life where individuals judge me on the basis not of what I present but these stereotypical views that they have. The jurors were all seemingly quite in agreement with the points that I made. And to the extent that they were not, they were isolated and ultimately released from the case. [¶] So I’m satisfied that we have a panel of jurors who will proceed as they have promised to do, that is, fairly in this case.”
B. Voir dire did not create an “atmosphere of fear.”
The purpose of voir dire is to uncover jurors’ potential biases. (In re Hitchings (1993) 6 Cal.4th 97, 110-111.) “The United States Constitution ‘does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury.’ [Citations.]” (People v. Avila (2006) 38 Cal.4th 491, 536.) “ ‘It is, of course, well settled that the examination of prospective jurors should not be used “ ‘to educate the jury panel to the particular facts of the case, to compel the jurors to commit themselves to vote a particular way, to prejudice the jury for or against a particular party, to argue the case, to indoctrinate the jury, or to instruct the jury in matters of law.’ ” ’ [Citations.]” (People v. Abilez (2007) 41 Cal.4th 472, 492.) Where, as here, the defendant claims that a motion for mistrial should have been granted because his chance of receiving a fair trial was irreparably damaged by the way in which the trial court conducted voir dire, we use the deferential abuse of discretion standard to review a ruling denying a mistrial. (People v. Bolden (2002) 29 Cal.4th 515, 555.)
Defendant argues that his motion for a mistrial should have been granted because during voir dire the trial court “allow[ed] jurors to vent hatred and fear of gangs, in a misplaced attempt to talk them out of their feelings,” thereby “tainting” the whole trial process. That is not what occurred. What occurred during voir dire was the trial court asked prospective jurors whether they would be prejudiced if the case involved gangs. When several jurors said that they had specific prejudices about gangs and/or guns, the trial court properly asked about those biases and whether the jurors could nevertheless be impartial.
The trial court also did not try to talk jurors out of their feelings. To the contrary, the court tried to elicit, for the benefit of both parties, whether the jurors had any feelings about gangs, what those feelings were, and whether they could follow the law. Indeed, the court was successful in conducting voir dire. Each juror whom defendant cites as expressing negative attitudes toward gangs or guns was challenged or excused for cause. The only juror to whom defendant refers in the opening brief on appeal who remained on the jury was Juror No. 6/4433. She expressed concern about her identity remaining confidential, but there is no indication that this concern was anything other than a generalized one.
The court’s conduct thus comported with the purpose of voir dire: “Jurors do not enter deliberations with their personal histories erased, in essence retaining only the experience of the trial itself. Jurors are expected to be fully functioning human beings, bringing diverse backgrounds and experiences to the matter before them. Indeed, the purpose of voir dire is to provide counsel the opportunity to learn about a prospective juror’s background, experiences, and philosophy as it relates to the matter to be heard.” (Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 741-742; see also Mu’Min v. Virginia (1991) 500 U.S. 415, 431.)
Defendant, however, cites People v. Mello (2002) 97 Cal.App.4th 511, to support his contention that voir dire was improper. In Mello, the trial judge instructed prospective jurors during voir dire that if they harbored racial bias against the African-American defendant because of her race, they should lie about it under oath and make up some other reason to be excused from serving as jurors on this case. The Court of Appeal held that the instruction was prejudicial error because it frustrated the main object of voir dire: to uncover bias and prejudice on the part of prospective jurors. The instruction also told prospective jurors to conceal and falsify relevant information, which could deprive the parties of information necessary to make informed tactical decisions.
Mello has no bearing on this case. In fact, what happened here is the direct opposite of what happened in Mello. Here, the trial court did not tell prospective jurors to lie. The court instructed jurors to tell the truth and to feel free to air prejudices. Several jurors expressed their feelings about gangs, and the court properly discussed those feelings with them in the context of how they would impact the jurors’ ability to decide the case. What the court did thus furthered the purpose of voir dire rather than frustrated it.
Defendant also cites two incidents to evidence the alleged creation of an “atmosphere of fear.” First, defendant refers to an incident that occurred during juror deliberations. Juror No. 10 came out of the jury room crying and asking to speak to the trial court. She told the court that the jurors were unable to come to a conclusion. The court explained that deliberations involves “open-mindedness” and that deliberating is not always easy. Juror No. 10 returned to deliberate with the jury.
Second, defendant cites to an incident concerning a “yawning juror.” During the trial court’s voir dire of prospective jurors, a prospective juror in the audience, Juror No. 2386, audibly yawned. The following exchange occurred in the presence of all prospective jurors:
“The court: . . . [¶] And you yawned rather audibly there. As a matter of fact, it was to the point where it was contemptuous, really.
“Prospective Juror [No.] 2386: I’m sorry, but I’m really bored.
“The court: I’m sorry?
“Prospective Juror [No.] 2386: I’m really bored.
“The court: Okay. It’s getting worse. Your attitude is lousy. It really is bad. [¶] Well, I’ll tell you what. Your boredom just cost you $1,000, and that’s what I’m going to expect you to pay to this court. I’m finding you in contempt. And we’ll talk more about that at the end of the day.
“Prospective Juror No. 2386: Sure.
“The court: Okay? All right. [¶] Are you quite so bored now?” Later, outside the presence of other prospective jurors, Juror No. 2386 refused to pay the fine and was remanded into custody. The court ultimately reduced the fine to $100, ordered the juror to return the next day with payment, and to sit in the audience, although he was no longer included in any panel. After the jury rendered its verdict, the following was apparently discovered written on the chalkboard in the jury room:
“Accurate Clock: $10
“Yawn: $1000
“Trip to Oxnard ‘City’: $5,000
“Excused from jury duty: Priceless.”
The incidents with the “yawning juror” and the “sobbing juror” do not, as defendant argues, evidence an atmosphere of “intimidation” and “stress.” As to Juror No. 2386, the record is more than clear that he was being disruptive and disrespectful to the court and to the entire process. The court dealt appropriately with the situation. The chalkboard note shows that jurors viewed the incident with humor, not with fear.
As to the sobbing juror, nothing in the record indicates that she broke down because she felt intimidated or afraid because of something that happened during voir dire. Rather, the only comment the juror made was that the jurors were having a hard time coming to a conclusion. The court invited the juror to send out any notes, but the juror did not send any note concerning intimidation or fear. While the juror was apparently “stressed,” a certain amount of stress can be expected as a result of serving on a jury. Nevertheless, nothing in this record shows that the juror’s stress was out of the ordinary and related to some “atmosphere of fear” created by the trial court that impinged on the defendant’s right to an impartial jury. To the contrary, the court conducted voir dire in a proper manner, creating an atmosphere, not of fear, but of openness in which potential biases could be uncovered.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P. J., KITCHING, J.