Opinion
B159077.
7-22-2003
THE PEOPLE, Plaintiff and Respondent, v. LAMONT JEFFRIES, Defendant and Appellant.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
BACKGROUND
Appellant Lamont Jeffries was charged along with codefendants, Darryl Conyers and Darryl Palmer, with assault upon Charles Smith by means of force likely to produce great bodily injury, in violation of Penal Code section 245, subdivision (a), battery with serious bodily injury, in violation of Penal Code section 243, subdivision (d), and mayhem, after a fight in the dormitory of the jail where the three men were incarcerated.
All three defendants were tried together before the same jury, and all three appealed from the ensuing judgments, but the appeals of Conyers and Palmer were consolidated, and the appeal of Jeffries has proceeded separately. We affirmed the judgments of Conyers and Palmer in an opinion filed on February 21, 2003, in Case No. B156191. Since the record of the oral proceedings in this case is nearly identical to the record in Case No. B156191, we shall include here, at times verbatim, much of our summary of the testimony set forth in our opinion in that case.
At trial, David Sotomayor testified that he was a Custody Assistant (now a Deputy Sheriff) at the time of the incident on February 9, 2000, and that he was assigned to monitor Dormitory No. 321 at the Pitchess Detention Center. Sotomayor was acquainted with inmates Conyers and Jeffries, because they worked for him in the dormitory, and he knew inmates Palmer and Smith by sight. Standing at the officers gate outside the dormitory that morning, he heard a fight. He looked toward the sound and saw Conyers, Palmer, and Jeffries about 65 to 75 feet away, punching Smith with their closed fists and kicking him. Smith was crouched down with his hands up by his face, and blows were landing around his upper torso and toward his head. From his position at the gate, Sotomayor ordered the inmates to stop and to get on their bunks. They momentarily stopped, looked toward him, and then continued to punch and kick Smith. Sotomayor did not see Smith strike any of the defendants.
Sotomayor radioed for assistance, and when the responding deputies appeared about 20 seconds later and entered the dormitory, the three defendants ran to their bunks. Smith was bleeding profusely from a cut above one eye and another cut below it, and the eye appeared to be protruding.
Sotomayor saw no serious injuries on Conyers, Palmer, or Jeffries. Jeffries had a small cut under his eye and a few scratches on his arms; Conyers had a few scratches on his arms and blood on his t-shirt; and Palmer had some scratches on his hands.
Smith testified that on February 9, 2000, he was incarcerated at the Pitchess Detention Center and housed in Dormitory No. 321. He was in custody on a spousal-battery charge, for which he was later convicted and placed on probation. Between 6:30 and 7:00 a.m., Smith began sweeping and helping to clean up so that he might be permitted to call his lawyer during office hours. He explained that an inmate has to do something helpful in order to get a favor from a guard. He had also put water in paper cups to be used by inmates taking medicine. He knew that was Conyerss job, but Conyers was asleep. Palmer and Jeffries, whom Smith knew to be friends of Conyers, were also in the dormitory that morning while he was sweeping.
Smith saw Jeffries and Conyers in conversation while he was sweeping. Conyers then approached and asked why he was "disrespecting" him. When Smith replied, "Im not disrespecting you," Conyers grabbed the broom. They looked at each other for a minute before Smith let the broom go and returned to his bunk at the far side of the dormitory, where he changed from his shower shoes to his regular shoes, in order to be better prepared to defend himself in a fight.
Conyers approached Smith and they looked at each other again before Conyers returned to the other side of the dormitory, and then approached Smith once more. This time, Smith stood up as Conyers approached. Conyers said, "Lets do this." "Do this," Smith explained, means to fight. After they stared at each other for another moment, Conyers threw a punch at Smith, just grazing him. At that moment, Jeffries jumped on Smiths back, and Smith could see Palmer coming toward him, as well.
Smith managed to flip Jeffries toward Conyers, and as soon as he had done so, he felt someone hit him on the right side of his face, near his temple. Then he felt a kick or punch on his left side. From that moment on, all three defendants were hitting or kicking him, taking turns, landing blows to his kidneys, back, head, and hand. Conyers hit him with his closed fist, Jeffries kicked him, and Palmer struck him with his fists.
Smith testified that prior to the beating, his right eye was just as functional as his left eye. Now, however, he has to put moisturizer in it constantly, it hurts all the time, and his vision is hazy, as though there were a film over it.
Ophthalmologist Howard Shann-Cherng Ying examined Smith shortly after the beating at County-USC Hospital. Smith had a swollen right eye, his vision was slightly diminished, and movement of the eye was limited and painful. There were open, bleeding lacerations on his face, a black eye, bruises and swelling that covered a large part of his face surrounding the eye, and some bleeding in the white of the eye. Smiths lower lid was lacerated, and orbital fractures caused depression of the globe. Surgery was required to insert an implant (plate) into the orbital floor to repair the fractures. Without such treatment, Smith would have developed double vision and would not be able to move his eye, and the condition would have been permanent.
In an exam just prior to trial, Dr. Ying determined that Smiths sight in his left eye is 20/200, whereas the vision in the undamaged eye is 20/25. Smith requires regular eye drops to keep his right eye moist, because his tears evaporate at a faster rate than normal, due to significant right lower lid laxity, and because the eyelid is not positioned well.
The jury found appellant guilty of assault by means of force likely to produce great bodily injury, and battery with serious bodily injury. Appellant was acquitted of mayhem. The charge that appellant had suffered a prior felony conviction was then tried to the same jury, and found to be true.
The jury also brought in not guilty verdicts with regard to various lesser included offenses upon which they were instructed. These were not acquittals, "but a clerical inconsistency between the verdict forms and the stated verdicts. [Citation.]" (People v. Caird (1998) 63 Cal.App.4th 578, 588.)
On April 10, 2002, appellant was sentenced on count 1, alleging a violation of Penal Code section 245, subdivision (a), to the upper term of four years, doubled to eight years pursuant to Penal Code section 1170.12, subdivisions (a) through (d). That term was enhanced with a three-year term pursuant to Penal Code section 12022.7, subdivision (a), and an additional five years were imposed due to appellants prior felony conviction, pursuant to Penal Code section 667, subdivision (a)(1). Appellant filed a timely notice of appeal from the judgment.
DISCUSSION
1. Lost Videotape
Appellant contends that the trial court erred in denying motions for sanctions due to the prosecutions failure to preserve and turn over evidence.
Prior to trial, defense counsel received information that there had been videotaping at the time of the incident, but no tape had been turned over by the prosecution. Appellants codefendant Conyers therefore brought a discovery motion to obtain the tape. At hearing on the motion, Detective Edgar Capifali testified that he was the investigating officer in this matter, and had investigated the whereabouts of the videotape. He determined that no videotape was ever logged or placed into evidence.
Capifali also testified that although it was probable that a videotape had been made, since it is typically done when inmates are injured, and although he interviewed the deputies who were present at the time, he could find no one with any recollection of any videotape. If it had been preserved, it would have been checked into the evidence locker. Since there was no tape in the evidence locker, Capifali thought that the footage taken the day in question was probably taped over.
Capifali testified that there is no particular policy with regard to making and preserving such videotapes, which are usually done to protect jail personnel from civil liability. He stated that he would be unlikely to preserve such a tape for use in a criminal prosecution, unless it showed the actual assault.
Hearing was continued, and Conyers then brought a "Trombetta" motion to dismiss due to the loss or destruction of the videotape, pursuant to Arizona v. Youngblood (1988) 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333, and California v. Trombetta (1984) 467 U.S. 479, 81 L. Ed. 2d 413, 104 S. Ct. 2528. Appellant joined in the motion.
At the continued hearing, Judy Sobel testified that she was employed by the Los Angeles County Sheriffs Department as a Custody Assistant, and was assigned to the Pitchess Detention Center. On February 9, 2000, she was working a midnight to 8:00 a.m. shift, and was assigned to the "video position." When a radio call went out that there was an incident in Dormitory No. 321, she went to the scene with her video camera, arriving within seconds. The altercation had ended by the time she arrived, and she was directed by a superior officer to film the victim and a portion of the dormitory floor and wall where blood had spattered.
Sobels shift ended soon after, and before she had an opportunity to check the tape, she was directed by Sergeant Pitts to turn the camera over to someone on the day shift. She could not recall to whom she handed the camera, although her training dictated that she turn it over to the line sergeant, unless she was the report-writing officer. She did not write the report in this case.
The hearing on the motion was continued for argument, and prior to the continued hearing, Conyers filed a "Brady" motion for sanctions for suppression of the videotape. (See Brady v. Maryland (1963) 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 ("Brady").)
The trial court denied the motions, finding that the tape was not intentionally destroyed, but either lost or disposed of in the course of the usual use of such film, and that there was no evidence that the tape might be material or favorable to the defendants.
Appellant contends that the trial court erred in denying both motions. He analyzes the two motions separately, contending first, that the Brady motion should have been granted, because the videotape was material evidence that may have been exculpatory.
We agree that under Brady, the prosecution has an obligation to disclose material exculpatory evidence. (Brady , supra, 373 U.S. at p. 87.) The prosecutions obligation to disclose includes "a duty to learn of any favorable evidence known to the others acting on the governments behalf in the case, including the police." (Kyles v. Whitley (1995) 514 U.S. 419, 437, 131 L. Ed. 2d 490, 115 S. Ct. 1555, italics added.)
Appellant makes no attempt to show that the videotape was material under the circumstances of this case, but merely argues that it was material, because "there can be no dispute that a videotape of a crime and/or its aftermath is a material piece of evidence." It is undisputed that the videotape did not depict the crime or the crime and its aftermath, either of which might have been very material. But the materiality of a tape of simply the aftermath of the crime cannot be determined in a vacuum, without regard to circumstances.
Here, however, there was no evidence that Sobels videotape ever existed beyond the day of the fight. It was either lost or destroyed, and was not, therefore known evidence, the existence of which the prosecution had any ability to learn. Further, as appellant acknowledges, it cannot be known whether the videotape would be favorable to the defense, since no one has seen it, and the uncontradicted evidence established that it shows only the scene in the aftermath of the fight.
When disclosure of evidence is impossible, because it has been destroyed or lost, the question becomes one of the duty of the police to preserve the evidence, not the prosecutions duty to disclose it. (See Arizona v. Youngblood, supra, 488 U.S. at p. 57.) Appellant acknowledges that failure to preserve merely potentially useful evidence will not justify a severe sanction, such as dismissal, unless the deputies acted in bad faith. (See id. at p. 58.) He does not contend that there was evidence of bad faith, but suggests that it was an abuse of the trial courts discretion to refuse the lesser sanction of giving an instruction. Neither motion suggested an instruction as a sanction, and appellant does not claim to have requested or proffered one. Appellant appears to be advocating an instruction such as the one described in Arizona v. Youngblood, supra, 488 U.S. at page 54, which would permit the jury to draw an adverse inference from the prosecutions failure to preserve and produce the videotape.
Appellant suggests that the trial court should have determined what instruction was appropriate under the circumstances, apparently on its own motion. Absent a request, however, the trial court was not required to fashion an appropriate instruction or to give it to the jury. (See People v. Medina (1990) 51 Cal.3d 870, 893, 274 Cal. Rptr. 849, 799 P.2d 1282.)
In any event, at most, appellant has shown that the tape was lost through negligence, and the negligent failure to preserve potentially useful evidence does not compel the trial court to impose sanctions. (See People v. Ochoa (1998) 19 Cal.4th 353, 417, 966 P.2d 442.)
2. Cross-Examination of Smith
Appellant contends that a series of rulings by the trial court resulted in the denial of his right to cross-examine Smith, the complaining witness, with regard to any inducement that may have been offered to him by the prosecution in exchange for his testimony.
Prior to the end of jury selection, defense counsel learned that Smith had an outstanding warrant in a felony case in which the prior conviction was alleged as a "strike," and that Detective Capifali had contacted Smiths attorney to arrange for Smith to appear and resolve the warrant. Appellants counsel, Mr. Carr, then requested discovery from the prosecution with regard to the facts surrounding the warrant and Capifalis communications.
Counsel for the prosecution in this case, Ms. Soloway, represented to the court that Capifali had made the arrangements at her request, but that she had not spoken with Smith and had extended no offers to him. She said that it was because of her concern for Smiths safety that Capifali arranged to arrest Smith himself and ensure that he was housed separately from the defendants. Soloway further informed the court that Smith was in Judge Fischers courtroom at that very moment with regard to the matter.
Defense counsel objected, asserting that Soloways statement was not adequate discovery. Counsel for Conyers asked the court to call Judge Fischers courtroom to ask that Smiths hearing be placed on the record, and to order that a transcript be provided to the defendants. The court denied the request as unnecessary and found the issue premature. The court told counsel that the issue might be revisited upon submission of evidence of consideration given to Smith.
Later that morning, Soloway informed the court that Capifali had returned with Smith, and had told her that the warrant had been recalled and Smith had been released. She offered to make Smith available to speak to the defense attorneys, but defense counsel demanded a hearing on the record regarding the reason for Smiths release. The trial court denied the request, and told counsel to speak to Capifali and Smith off the record about it. Carr then asked the court to make a discovery order. That request was denied as well, on the ground that counsel had presented no evidence that the prosecution had refused to provide discovery informally.
Later that afternoon, Conyers attorney, Ms. Russo, told the court that she was prepared to have the Alternate Public Defender testify that Smith walked into court with two detectives who requested that the warrant be quashed and that he be released and allowed to return with proof of enrollment in anger management courses. Russo informed the court that from her own experience, she knew Judge Fischer to be extremely strict, and did not believe that she would release a defendant with two "strikes" after a warrant had been out for ten months. She therefore suspected that the District Attorneys Office had requested the release, because the prosecution preferred that Smith be out of custody. This, she argued, was a favor, and raised an issue of bias. Russo again requested a transcript of the hearing, and other defense counsel joined.
Soloway again told the court that no promises were ever made to Smith, that Capifalis involvement was to ensure his safety and his attendance at this trial, and that no one from the District Attorneys Office had spoken to Smith about this matter. The court asked Capifali, who was present, to comment. Capifali told the court that he was the only detective there, that he drove Smith to court, spoke with his attorney, and informed the court that Smith was a witness in this case.
The court again denied the request for a transcript, and jury selection continued. The issue surfaced again during opening statements. In his opening remarks, Palmers attorney, Mr. Montanez, said to the jury, "The evidence will also show that — this is a matter of credibility here. You have to decide who is telling the truth. We have inmate Smith, a convicted felon about three times. If he is not a victim in this case as a result of this incident, he will be charged with a crime." The prosecutions objection was sustained, and Montanez continued, "The evidence will show you that he chose to say that he was a victim because he had the black eye and also there was a warrant out for his arrest now as we started. Yesterday he came over . . . to the criminal —" Another objection was interposed, the matter was taken up in chambers, and the second discussion ensued.
The trial court, Judge Schuit, expressed an inclination to sustain the objection, because he had "heard nothing to indicate that the warrant is relevant in our proceedings." He offered to conduct a hearing outside the presence of the jury to allow counsel to question Smith with regard to the warrant hearing, and then recessed for lunch.
After the lunch recess, the court again questioned Capifali, who confirmed that Smith was ordered to return with proof of domestic violence counseling and was released on his own recognizance. Judge Schuit then told counsel that he had had an ex parte conversation with Judge Fischer that day at lunchtime. Judge Fischer told Judge Schuit that Smith had not been personally in court when she originally calendared a date for proof of enrollment in domestic violence counseling, and she had relied upon his attorney to so inform him. Judge Fischer explained that since he had not been in court, and had therefore not been personally ordered to appear, and because he walked in "under his own power," she released him on his own recognizance and set another date. She did not base her decision on Capifalis informing her that Smith was a witness in this case.
Based upon that conversation and the information given by Capifali, Judge Schuit decided against going forward with a hearing on the issue. Defense counsel objected and moved for a mistrial, citing a violation of the Sixth Amendment right to confront witnesses. The motion was denied.
Appellant contends that the trial court abused its discretion by refusing to order discovery, by denying the request for a transcript of Smiths hearing before Judge Fischer, by excluding all evidence of possible inducements given to Smith by the prosecution in exchange for his testimony, and then by denying the motion for mistrial.
We have found no ruling excluding all evidence relating to any favorable treatment given or offered to Smith by the prosecution. The only rulings revealed by our own review of the record are the denial of a discovery request, the denial of a request for a transcript, an implied limitation placed upon Montanezs opening statement, the denial of a hearing pursuant to Evidence Code section 402, and the denial of a motion for mistrial.
Respondent apparently found no such ruling, either, since it does not refer to a ruling in its brief, but argues, "Assuming The Trial Court Excluded Evidence, Its Decision Was Proper."
We find no error in the trial courts denial of discovery, or in its refusal to provide a transcript of Smiths hearing. What a criminal defendant may obtain by discovery is limited by statute. (People v. Tillis (1998) 18 Cal.4th 284, 294, 956 P.2d 409; Pen. Code, § 1054.1.) A defendant may obtain the prosecutions written or recorded statements of witnesses it intends to call, if relevant. (Pen. Code, § 1054.1, subd. (f).) The prosecution has no obligation, however, to obtain court documents that were never in its possession and are equally available to the defense. (See People v. Mason (1991) 52 Cal.3d 909, 946, fn. 15, 277 Cal. Rptr. 166, 802 P.2d 950; People v. Sanchez (1998) 62 Cal.App.4th 460, 473-474.)
Thus, appellant was not entitled to an order compelling the prosecution to obtain a transcript of Smiths hearing for him. Nor was the trial court itself obligated to furnish the transcript to appellant, without a showing that it was necessary as the "basic tools of an adequate defense," which he was unable obtain himself due to financial need. (See People v. Hayden (1994) 22 Cal.App.4th 48, 55.)
We agree with appellant that he had a constitutionally protected right to cross-examine Smith regarding his motivation for testifying. (See Davis v. Alaska (1974) 415 U.S. 308, 316-317, 39 L. Ed. 2d 347, 94 S. Ct. 1105.) Favorable treatment by the prosecution in the witnesss pending criminal matter is highly relevant evidence of a motive to testify favorably for the prosecution. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679, 89 L. Ed. 2d 674, 106 S. Ct. 1431.) The prohibition against all inquiry into the subject on cross-examination may be a violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution. (Id. at p. 679.) We are presented, however, with no such ruling.
The trial judge stated, "Given [the information obtained from Judge Fischer and Detective Capifali], Im inclined not to hold a hearing. I think it would be fruitless. Given that, my inclination — tentative ruling is to rule that is not a matter subject to impeachment. There is nothing that we know of now unless you folks have something else you could provide me with that would indicate the victim was offered anything in exchange for testifying today. At least something more specific than having a warrant outstanding for him recalled and quashed and having him . . . O.R.d in that case."
"The purpose of a hearing under Evidence Code section 402 is to decide preliminary questions of fact upon which the admissibility of evidence depends. [Citation.]" (People v. Superior Court (Blakely) (1997) 60 Cal.App.4th 202, 209, fn. 6.) Appellant does not claim to have attempted to examine Smith with regard to favorable treatment by the prosecution, and Smith had not yet testified. Further, the prosecution had not brought a motion in limine or otherwise objected to such a line of questioning.
Appellants attorney was given the opportunity to interview Smith, and although Smith declined, appellant has not explained why Smith could not simply be asked in front of the jury whether he had been promised anything by the prosecution. There was no attempt to obtain from Smith during cross-examination the "something more specific" required by the trial court. It appears that the only purpose in examining Smith outside the presence of the jury would have been to discover his testimony in advance; in effect, a deposition.
Depositions are not required as a matter of right in criminal proceedings. (Reid v. Superior Court (1997) 55 Cal.App.4th 1326, 1332-1333.) A criminal defendant must support his application for a deposition with an affidavit stating "that the witness is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he or she will not be able to attend the trial, or that the life of the witness is in jeopardy." (Pen. Code, § 1337, subd. (4); see also, §§ 1335, et seq.)
We agree that the trial court should not have based its ruling on an ex parte conversation with Judge Fischer regarding the facts presented to her and the reasons for her ruling. Although a trial judge may confer ex parte with another judge with regard to abstract principles of law, he should not discuss matters subject to cross-examination, such as disputed facts. (See People v. Farmer (1989) 47 Cal.3d 888, 923, 254 Cal. Rptr. 508, 765 P.2d 940 [ex parte conference with expert], disapproved on another ground by People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6, 996 P.2d 46.)
It is appellants burden to establish that he suffered a miscarriage of justice as a result of the trial courts improper ex parte conversation. (See Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.) Appellant contends that we must view the error under the standard of Chapman v. California (1967) 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824; but he has not carried his burden, whether measured under the standard set forth in Chapman (see id. at p. 24) or that set forth in People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243. Since appellant provided none of the statutory reasons that might have justified what was, in effect, an application for a deposition, it is unlikely that a 402 hearing would have been allowed, even if the trial judge had not spoken to Judge Fischer. (Pen. Code, §§ 1336, 1337.)
Appellant does not claim to have been harmed by the trial courts limitation on Montanezs opening statement. Nor does he contend that his own attorneys opening statement was curtailed by the court. And even if the ruling extended to all opening statements, an opening statement is not evidence in the case, and does not limit the right to introduce evidence. (People v. Stoll (1904) 143 Cal. 689, 693-694, 77 P. 818.)
In sum, we reject appellants attempt to characterize the trial courts rulings as sustaining a nonexistent objection to evidence or as restricting cross-examination that had not yet been attempted.
3. Juror Misconduct
Appellant contends that the trial court abused its discretion in refusing to investigate a claim of juror misconduct prior to verdict, and erred in denying a new trial without first investigating a second claim of juror misconduct that came to light after the verdict.
The first occurrence came to the courts attention after deliberations had begun, when the jury foreperson asked to speak to the court. Out of the presence of the other jurors, she reported an incident that occurred the previous evening, before the cause had been submitted to the jury. As she was getting into her car, an unidentified juror said to her something to the effect that once deliberations started, it would be over quickly, because everyone will have the same answer on the verdict. The unidentified juror also said that she was worried about the Filipino juror, because he seems stupid, and "were going to have to convince him." When the foreperson replied that she did not think he was stupid, the unidentified juror said, "Well, well do something to make sure that he understands how the rest of us feel." The foreperson said that she replied, "Well, I dont feel that way."
After deliberations began, the foreperson reported, a different juror told her that she, the foreperson, was going to be the one that was difficult. This comment gave her the impression that the juror had been talking to others without her knowledge.
The court asked the foreperson whether any jurors had inappropriately pressured any other jurors. She answered, "I wouldnt say that, no." The court asked no further questions, and after allowing the foreperson to return to the jury room, the court expressed the concern that any further questioning would delve into the province of the jury, since deliberations had begun. The court denied the prosecutions suggestion that the jury be admonished, because they had been instructed after the incident and would be presumed to follow the instructions, and the court was confident that the foreperson would alert the court if anything went "awry inside the jury room."
Deliberations continued that day and into the next. The day after the forepersons report, defense counsel requested further inquiry into the out-of-court comments of the unidentified juror. The court denied the request, explaining that a day and a half of deliberations had ensued after the comments, and there had been no indication from the foreperson that there were any problems in the jury room. The court felt that this foreperson was the type of individual who would bring any problems to the courts attention. The jury continued to deliberate throughout that second day and into the afternoon of a third day the following week.
We agree that the unidentified jurors comments violated the jurors duty not to "converse among themselves, or with anyone else, on any subject connected with the trial, or . . . form or express any opinion thereon until the cause is finally submitted to them." (Pen. Code, § 1122, subd. (b).) "Violation of this duty is serious misconduct. [Citation.] [Citation.]" (People v. Majors (1998) 18 Cal.4th 385, 423, 956 P.2d 1137.) Further, the comments suggest that the unidentified juror may have made up her mind, although deliberations had not yet begun. "`For a juror to prejudge the case is serious misconduct. [Citation.]" (Romo v. Ford Motor Co. (2002) 99 Cal.App.4th 1115, 1135-1136, cert. granted sub nom. Ford Motor Co. v. Romo, May 19, 2003, No. 02-1097.)
"Juror misconduct raises a rebuttable presumption of prejudice." (People v. Mendoza (2000) 24 Cal.4th 130, 195.) The presumption of prejudice may be dispelled by appropriate instructions. (People v. Zapien (1993) 4 Cal.4th 929, 996, 846 P.2d 704.) The presumption has been dispelled here, where the remarks by the unidentified juror occurred prior to final instruction. After the remarks were made, the jury was instructed with CALJIC No. 17.40, in addition to instructions regarding the elements of the charged offenses and the burden of proof.
Thus, the courts instruction included the following admonishments: "Each of you must consider the evidence for the purpose of reaching a verdict if you can do so. Each of you must decide the case for yourself, but should do so only after discussing the evidence and instructions with the other jurors"; and, "The attitude and conduct of jurors at all times are very important. It is rarely helpful for a juror at the beginning of deliberations to express an emphatic opinion on the case or to announce a determination to stand for a certain verdict. When one does that at the outset, a sense of pride may be aroused, and one may hesitate to change a position even if shown it is wrong. Remember that you are not partisans or advocates in this matter. You are impartial judges of the facts."
The court also gave CALJIC No. 17.41.1: "The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment, or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation."
The jury is presumed to have followed their instructions. (People v. Zapien , supra, 4 Cal.4th at p. 996.) There was no evidence that any juror failed to follow the courts instructions, unduly pressured any of the others, or refused to deliberate. On the contrary, the jury deliberated for two and one-half days, and when the foreperson assured the court that no jurors had inappropriately pressured any other jurors, they had already deliberated for a day and a half. Further, while the jury found appellant guilty of assault by means of force likely to produce great bodily injury and battery with serious bodily injury, it acquitted him of mayhem. Under such circumstances, a single improper remark, or even its possible repetition to another juror, does not amount to prejudicial misconduct. (See People v. Cleveland (2001) 25 Cal.4th 466, 479-480; People v. Bradford (1997) 15 Cal.4th 1229, 1352, 939 P.2d 259.)
Appellant contends that the trial court should have ordered an evidentiary hearing on the motion for new trial after it received a letter from one of the jurors after the jury had been discharged, because, he also contends, the letter is compelling evidence of undue pressure during deliberations.
The juror reported that during deliberations, she remarked, "Who can one trust these days," and said that she found it difficult to really trust anyone. These remarks, she wrote, prompted another juror to say that her statement was "stupid," accuse her of lying to get on the jury, and to suggest that she be replaced by an alternate, because she was "unfit." The same juror, she wrote, continued for the next two days with various "jibs" [sic] and remarks.
Rude outbursts are not necessarily misconduct, and it is not unusual during deliberations for one juror to express "frustration, temper, and strong conviction against the contrary views of another panelist." (People v. Cleveland, supra, 25 Cal.4th at p. 476.) "Jurors have a duty to discuss the case with fellow jurors. The exchange of views may well become vigorous. Comments may be acerbic, critical, even agitated. A juror may express an adverse comment in reaction to an exhibit, a witness testimony or demeanor, personality, or credibility. These remarks may be candid, even unflattering. But cutting and sarcastic words do not ipso facto constitute jury misconduct." (Tillery v. Richland (1984) 158 Cal. App. 3d 957, 977, 205 Cal. Rptr. 191.)
Appellant contends that the letter is evidence that the author was rendered unable to express her opinions by the rude remarks. The letter described one opinion that she did not express. She wrote, "I did not say it, but I found that each witness could have possibly had reason to shade their testimony." The author did not say why she did not express such a view, and her letter indicates that she was not, in fact, intimidated into silence, since the insults continued throughout the deliberations.
Further, the author never suggested that the rude remarks had any effect other than making her feel humiliated and making deliberations more difficult. Indeed, she concluded on a positive note, dispelling any inference that her decision was unduly influenced. On the whole, she found "the whole jury experience very interesting, educational, and invaluable," and she "received a bonus — a not so wonderful but amazing lesson in human nature." She suggested that jurors be admonished more clearly not to engage in "personal attacks."
"A court may hold an evidentiary hearing when jury misconduct is alleged in a new trial motion, but the court may also, in its discretion, conclude that a hearing is not necessary to resolve material, disputed issues of fact. [Citations.]" (People v. Steele (2002) 27 Cal.4th 1230, 1267.) Here, the trial court found nothing in the letter to suggest that any juror came to a faulty conclusion or felt forced to say or do anything against his or her will. The court read the letter as no more than a suggestion for future juries. We agree, and find no abuse of discretion.
4. Cumulative Error
Appellant contends that all the asserted errors of the trial court, although not prejudicial when considered individually, have in combination, caused a miscarriage of justice. We found just one error, the ex parte communication with Judge Fischer. There are no others to consider in combination with it, and therefore no cumulative error.
5. Sentencing Errors
Appellant contends that sentence enhancements imposed with regard to count 2 pursuant to Penal Code section 12022.7, subdivision (a), and section 667, subdivision (a), must be stricken. Appellant points out that count 2 did not allege an enhancement pursuant to section 12022.7, subdivision (a), and no such allegation was found to be true with regard to count 2. Appellant contends that it was improper to attach an enhancement to count 2, or any count, pursuant to section 667, subdivision (a), because it must be added just once as the final step in computing the total sentence.
If either of these enhancements had, in fact, been imposed upon count 2, we would agree. (See People v. Tassell (1984) 36 Cal.3d 77, 90, 201 Cal. Rptr. 567, 679 P.2d 1, overruled on another ground in People v. Ewoldt (1994) 7 Cal.4th 380, 401, 867 P.2d 757.) Appellant was not, however, sentenced at all on count 2.
Nevertheless, the abstract of judgment shows that the upper term for count 2 was selected and stayed, and that an enhancement pursuant to Penal Code section 12022.7, subdivision (a), was imposed and stayed. It does not reflect the imposition of an enhancement with regard to count 2 pursuant to Penal Code section 667. That enhancement appears as appellant wishes, as one enhancement upon the total sentence.
No number of years appears on the abstract with regard to count 2. The upper term for a violation of Penal Code section 243, subdivision (d), is four years, and there is no notation that it was doubled. The enhancement under section 12022.7, subdivision (a), is three years. Thus, it appears from the abstract that the total stayed sentence on count 2 would be a total of seven years.
The minutes for April 10, 2002, however, tell a different story. They set forth a sentence on that count, stating, "As to the base count (02): Court orders probation denied. Serve 16 years in any state prison. Court selects the upper term of 4 years as to the base term count 02. Plus 12 years pursuant to section see comments. . . . . The court orders the sentence in count 2 stayed pursuant to section 654 of the Penal Code pending successful completion of the sentence as to count 1." Thus, according to the minute order, the total stayed sentence under count 2 was 16 years.
There is nothing in the minutes labeled, "comments."
Appellant was convicted of count 1, assault by means of force likely to produce great bodily injury, in violation of Penal Code section 245, subdivision (a)(1); and of count 2, battery with serious bodily injury, in violation of Penal Code section 243, subdivision (d). In addition, the jury found the special allegation in count 1 to be true, that appellant personally inflicted great bodily injury, within the meaning of Penal Code section 12022.7, subdivision (a). The jury also found that appellant had suffered a prior felony conviction, a violation of Penal Code section 459, on September 19, 1996.
There were two sentencing hearings, one on March 18, 2002, and a continued hearing on April 10, 2002. On March 18, 2002, the court imposed the high base term of four years on count 1, and since the current offense was found to be a "second strike," the court doubled the base term to eight years, pursuant to Penal Code section 1170.12, subdivisions (a) through (d), and imposed a five-year enhancement, pursuant to pursuant to section 667, subdivision (a)(1). The court also imposed a three-year great-bodily-injury enhancement pursuant to pursuant to section 12022.7, subdivision (a). The total sentence with regard to count 1 was 16 years. The court also imposed a restitution fine of $ 200, and a parole restitution fine of $ 200, which was stayed, with the stay to become permanent upon successful completion of parole.
Appellants counsel then reminded the court that appellant was serving a ten-year prison term at that time in Case No. BA193390, and that the ten-year term should be subordinated to appellants current 16-year term. The court was unsure of its jurisdiction to do so, so it continued sentencing to April 10, 2002, to allow time for research.
On April 10, 2002, the court reviewed the sentence pronounced on March 18, 2001, with regard to count 1, and reimposed the identical sentence. In addition, since the sentence was to be served consecutively to appellants ten-year term in Case No. BA193390, the court selected the term imposed in this case on count 1 as the principal term, and one-third of the statutory middle term of the other case as the subordinate term. (See Pen. Code, § 1170.1, subds. (a), (c); People v. Washington (1994) 27 Cal.App.4th 940, 945.) The court found that so modified, the sentence in Case No. BA193390 had been served, leaving appellant with 383 good time/work time credits in this case.
There was no oral pronouncement of sentence with regard to count 2. Thus, appellant has not been sentenced on count 2. (People v. Mesa (1975) 14 Cal.3d 466, 471, 121 Cal. Rptr. 473, 535 P.2d 337.)
In their initial briefing, the parties did not address the effect of the courts failure to orally pronounce sentence with regard to count 2. We notified counsel by letter that the court omitted any sentence with regard to count 2 in its oral pronouncement, even though the minutes of April 10, 2002, and the abstract of judgment, filed April 17, 2002, both reflect that sentence was imposed with regard to count 2 and stayed. We requested additional briefing on the issue.
Since appellant was convicted on count 2, the trial was required to pronounce sentence with regard to count 2, and was required to do so orally and in appellants presence. (People v. Hartsell (1973) 34 Cal. App. 3d 8, 13, 109 Cal. Rptr. 627; Pen. Code, §§ 1191, 1193.) The appropriate procedure was to pronounce sentence on count 2, and then, since it was subject to Penal Code section 654, to stay execution of the sentence. (See People v. Miller (1977) 18 Cal.3d 873, 886, 135 Cal. Rptr. 654, 558 P.2d 552.) Since the court did not do so, the matter must be remanded for sentencing on count 2. (See Hoffman v. Superior Court (1981) 122 Cal. App. 3d 715, 724-725, 177 Cal. Rptr. 868.) We assume that upon doing so, the court will not impose enhancements that were neither charged nor found to be true.
DISPOSITION
The judgment is affirmed. The matter is remanded for sentencing with regard to count 2.
We concur: VOGEL (C.S.), P.J., EPSTEIN, J.