Opinion
B295947
07-16-2020
THE PEOPLE, Plaintiff and Respondent, v. LINDSEY LACEY, Defendant and Appellant.
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Kathy S. Pomerantz, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. TA128304 APPEAL from a judgment of the Superior Court of Los Angeles County, Eleanor Hunter, Judge. Affirmed in part, reversed in part, remanded with directions. Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant Lindsey Lacey of second degree murder (Pen. Code, § 187), attempted premeditated murder (§§ 664/187, subd. (a)), and attempted voluntary manslaughter (§ 664/192, subd. (a)). The jury found associated firearm and gang enhancements to be true, (§§ 12022.5, 12022.53, subd. (d); 186.22, subd. (b)(1)), and the court sentenced defendant to an aggregate term of 146 years to life in state prison.
All undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court erred by: (1) discharging a juror on grounds he lacked sufficient command of the English language to perform his duties; (2) imposing a second-strike sentence and a five-year serious felony prior enhancement not pled in the operative information; and (3) imposing fines, fees, and assessments without holding an ability-to-pay hearing. Defendant also contends that his presentence custody credits were incorrectly calculated and there are errors in the abstract of judgment.
We discern no error in the court's juror dismissal but reverse its imposition of the second-strike and five-year serious felony enhancements. We further direct the court to grant two additional presentence custody credits and modify the abstract of judgment to conform to the judgment. In all other respects, we affirm.
PROCEDURAL BACKGROUND
1. Overview
In a case that began with a nine-count information based on two separate incidents several years apart, defendant was tried three times. This appeal involves the third trial and the operative charging document, the second amended information.
2. The Second Amended Information
The second amended information filed on September 27, 2017 charged defendant with two counts of attempted premeditated murder (§§ 664/187, subd. (a)), committed on January 29, 2013. The information further charged defendant with one count of murder (§ 187), and three counts of attempted premediated murder (§§ 664/187, subd. (a)), committed on August 4, 2007. The information alleged that in committing each offense, defendant personally used and intentionally discharged a firearm, causing great bodily injury or death (§12022.53, subds. (b)-(d)), and that the offenses were committed for the benefit of a street gang (§186.22, subd. (b)(1)(C)).
Defendant pled not guilty and denied the allegations. 3. The Second Trial
The first trial ended in a mistrial.
The court dismissed one of the two January 29, 2013 attempted murder charges. The jury returned a verdict of attempted voluntary manslaughter as a lesser included offense of the second January 29, 2013 attempted murder charge, and it found defendant personally used a firearm in committing the attempted manslaughter. This was count 1 of the information, on which the court sentenced defendant at the end of the third trial. The jury deadlocked on the remaining counts, as to which the court declared a mistrial.
4. The Third Trial and Sentencing
The only incidents involved in the third trial took place on August 4, 2007. Four counts were tried to the jury: one count of murder and three counts of attempted murder.
The jury acquitted defendant of one count of attempted premeditated murder. On the murder charge, the jury found defendant guilty of the lesser included offense of second degree murder. This was count 5 of the information. The jury found defendant guilty of the two remaining attempted premediated murder charges. These were counts 7 and 8 of the information. The jury found the associated firearm and gang allegations true on all three counts of conviction.
On December 24, 2018, the court sentenced defendant to an aggregate term of 146 years to life, calculated as follows: (1) a determinate sentence of 26 years for count 1 (upper term of five and a half years, doubled to 11 years for a second strike, plus a 10-year firearm enhancement, and a five-year prior serious felony enhancement); and (2) three consecutive indeterminate terms of 40 years to life on counts 5, 7, and 8 (15 years to life for each underlying offense, plus 25 years to life for the firearm enhancements). The court stayed imposition of sentence on all gang enhancements.
Defendant filed a timely notice of appeal.
FACTUAL BACKGROUND
1. Events of January 29, 2013
On January 29, 2013, defendant and his ex-girlfriend, Tia Phillips, quarreled over her new boyfriend, Forrest Freeman. Defendant spent the day calling and sending threatening texts to Phillips, making use of his gang name to reinforce the threats.
Defendant drove to Phillips's apartment and opened fire on Freeman and his cousin, Jeremy Holland, who were standing outside of Phillips's apartment. Holland was shot and paralyzed from the waist down.
Officers found eight .45 caliber shell casings at the scene. Later that night, police officers found defendant at Phillips's home. After searching the apartment, officers found a .45 caliber pistol. The pistol was subsequently identified as the firearm used in Holland's shooting.
2. Events of August 4, 2007
On August 4, 2007, a group of Mob Piru gang members drove into rival gang territory past Ace Liquor store in Lynwood. Men in two cars, a white Chevy Camaro and a silver Ford Mustang, opened fire on the liquor store targeting several black males whom they believed to be rival Crip gang members. Two of the black males, Timothy Ledford and Ronald Davis, were hit and suffered minor wounds. Kyutza Herrera, who was sitting in her boyfriend's car in front of the liquor store, was struck by a .40 caliber bullet in the neck. Herrera died from the wounds.
Video from outside cameras captured the cars and gunfire, but was of no help in identifying the occupants of the Mustang and Camaro. No witnesses were able to give a description of any occupants in either car.
Defendant was subsequently implicated by fellow gang members who identified defendant as the shooter in the Mustang linked to the semi-automatic handgun responsible for Herrera's death. In 2012, while defendant was in jail, he made some incriminating statements about the shooting to a police informant.
DISCUSSION
1. Removal of Juror No. 27
Defendant contends the court abused its discretion, and violated his constitutional rights, by discharging Juror No. 27 during deliberations. According to defendant, the court's finding that Juror No. 27 had insufficient command of the English language to perform his duties is not supported by the record. A careful examination of the record reveals that Juror No. 27's inability to adequately comprehend the proceedings was a "demonstrable reality." (See People v. Barnwell (2007) 41 Cal.4th. 1038, 1053 (Barnwell).) Accordingly, we conclude the court acted within its discretion and affirm its decision.
1.1. Relevant Facts
1.1.1. April 9, 2018
The case was submitted to the jury on the afternoon of April 9, 2018. In the court's final admonitions, it reiterated that the jury should only discuss the case in the jury room, and only with other members of the jury. The court further instructed that if the jury needed to communicate with the court, it must send a note through the bailiff signed by the foreperson or a member of the jury. The trial judge explained this procedure was important to "have a complete record of this trial ... ."
The jury deliberated that afternoon until approximately 4:00 p.m. During deliberations, the jury requested, and received, video and audio recordings from the trial.
1.1.2. April 10, 2018
The jury returned on April 10, 2018, and continued its deliberations from 1:40 p.m. until 3:30 p.m. Thereafter, the foreperson sent a note indicating two jurors had commitments the next day, and asking if the jury could return on April 12. The note also stated "the jury is hung" and asked "what is next?" Deliberations were continued to April 12, 2018.
1.1.3. April 12, 2018
The jury resumed its deliberations at 9:40 a.m. on April 12, 2018, and, after speaking with counsel, the court addressed the jury. The court observed that with time off, the jury had been deliberating for less than a day. The court instructed the jurors to continue with their deliberations and "openly exchange ... thoughts and ideas," but not to "change [their] mind just because of any pressure."
The court reminded the jury that if any court staff enters the jury room, the jury must stop its deliberations and may not discuss the case in the presence of court staff. The jury resumed its deliberations at 10:20 a.m.
A court staff member had informed the court that when the jury was previously excused, Juror No. 27 had attempted to speak with court staff about the deliberations.
Within minutes, Juror No. 27 stormed into the courtroom, arms flailing, stating he needed to speak with the court. The court told Juror No. 27 to return to the jury room and, after initially refusing to comply with the court's order, Juror No. 27 reluctantly returned to the jury room.
The court informed the parties it would bring the jurors back into the courtroom to speak with them and asked if counsel had any suggestions. Defense counsel responded, "No. Just encourage peace." The prosecutor noted for the record that before the court admonished the jury, he could hear "some yelling going on in the jury room, from a male individual"—though he did not know who it was. The prosecutor stated it sounded "very heated in there ... ."
At 10:33 a.m., the jury was reassembled in the courtroom. The court stated, "Ladies and Gentlemen, I understand emotions run high and people sometimes get frustrated, but that doesn't help at all." The court instructed the jury to keep deliberating with an open mind. The court stated "don't get so entrenched in a spot that you aren't going to change if you become convinced that you're wrong. And on the flip side, don't just change because other people are saying it."
The jury resumed its deliberations at 10:40 a.m. Shortly before the lunch break the jury requested the transcript testimony of two trial witnesses; the court responded there were no transcripts available but the jury could obtain a read-back of the testimony.
At 1:41 p.m., Juror No. 1 sent a note stating "I feel intimidated by Juror # 27," that "his expressions are disrespectful," and the jury "already had a few outbursts from him." The court subsequently held a chambers conference with counsel and Juror No. 1.
Juror No. 1 told the court that Juror No. 27 was, in her opinion, being rude by rolling his eyes and making both gestures and sounds when other jurors said "things that he didn't like." Juror No. 27 had commented the previous day that "we need to be finished today," and Juror No. 1 had responded this wasn't possible. After Jurors No. 1 and No. 27 accused each other of being rude, Juror No. 27 "jolted" out and ignored jurors telling him "you have to wait. We need to write it down." Juror No. 1 complained that Juror No. 27 had been dead set in his opinion from the very beginning, but conceded that Juror No. 27 had since then become "a little open-minded" and willing "to review things."
The trial judge said, "Okay. What I'd like to do is give it a little bit more breathing room, because you have asked for some readback, and so—that might help him feel a little bit more comfortable, to explain his reasons—and maybe listen to other people's reasons. But I just didn't want you feeling uncomfortable. So if you continue to feel that way, please let me know—or if anything else is going on, just—you know, everybody can let me know."
Deliberations resumed, and the requested testimony was read back to the jury and completed by 2:55 p.m. At 3:11 p.m., the foreperson sent a note to the court, stating, "Juror 27 said he was changing his vote so we can leave. It is difficult to keep deliberating. What do we do?"
At 3:50 p.m., the court held a chambers conference with the jury foreperson and counsel. The foreperson stated that "the majority of the room feels that [Juror No. 27] is not open to deliberate." The foreperson herself felt that Juror No. 27 had been deliberating but noted he "doesn't speak very good English" and speaks "very forcefully." The foreperson opined that Juror No. 1 had been "egging" on Juror No. 27 on the first day, and that Juror No. 27 "might have felt attacked ... and wanted to kind of stick his heels in." The foreperson stated she had been defending Juror No. 27, and that he was trying to pay more attention and participate but "there's a language barrier, so they're going back and forth ... ." The foreperson added that some jurors were translating for Juror No. 27, stating, "[s]o if one person is trying to explain, like, pieces of evidence that we're reviewing, they'll explain it in Spanish, and then he will speak kind of a combination." This was occurring "like, half. Or less than half" of the time. She further explained that when things became more complex, jurors could not relay their viewpoints to Juror No. 27 unless it was translated into Spanish.
The court sent the foreperson back to the jury room with instructions not to tell the others what they had spoken about. The court commented to counsel, "[i]t appears that he reached his opinion at the very beginning, and there are some people he's not able to communicate with because of the language barrier." The court would bring in Juror No. 27 and "talk to him, as best as I can, and get a feel of how much he's understanding and about the interpretation ... ."
At 3:40 p.m., the court held a chambers conference with counsel and Juror No. 27. The court explained that from the notes it had received, "it's been a little tense back there," and the court was going to speak with other jurors as well to ensure the court's instructions were being followed.
The court asked Juror No. 27 if he had any problems following the court's instructions:
Juror No. 27: No, I have no problem about that.
The Court: Okay. So did you understand all of the law that I've given you?
Juror No. 27: Of course.
The Court: Okay. So with regard to—have you been deliberating with everybody?
Juror No. 27: I feel fine.
The Court: No. My question is: Have you been deliberating with everybody?
Juror No. 27: For that, I feel good. With the other people in the room I have seen, I feel fine.
The Court: That's not my question. Have you been deliberating with them?
Do you understand what I'm saying?
Juror No 27: Hmm.
[¶] ... [¶]
The Court: Do you understand that word, "deliberating"?
Juror No. 27: Yes. All talking about inside the room.
The Court: And have you been doing that?
Juror No. 27: I participate. I did it good all the time.
The Court: All the time?
Juror No. 27: Of course.
The Court: Okay. Have you felt any pressure with regard to how your opinion was—
Juror No. 27 I feel good.
The Court: Okay. So nobody's putting any pressure on you?
Juror No. 27: No. No, Judge.
The Court: Now, English is not your first language; is that correct?
Juror No. 27: Of course.
The Court: What is your first language?
Juror No. 27: Spanish.
The Court: When you are back there, do other jurors sometimes have to interpret for you in Spanish?
Juror No. 27: Probably someone inside the room no understand my English, they'll translate because they feel more comfortable, no I didn't feel I understood. English no is my first language.
The Court: By the way, is somebody back there, translating for you?
Juror No. 27: Yes, but only because they want it. Probably they thinking—
The Court: They don't speak English?
Juror No. 27: Yeah. My Spanish—English—or my English no is very well.
The Court: Okay. So you didn't need anyone to interpret for you?
Juror No. 27: No, because when finished the interpreter Spanish, I say again in English.
The Court: Okay. But before they interpreted for you, did you have some problem understanding the English?
Juror No. 27: No.
The Court: So you didn't need them to interpret for you in Spanish?
Juror No. 27: No need it.
The Court: So you were able to understand everything that was said?
Juror No. 27: Yes.
The Court: And you understand the law that I gave you?
Juror No. 27: Yes.
The Court: And you're still willing to continue to deliberate and discuss and listen to people? Can you listen to what their ideas are?
Juror No. 27: Yes, I can listen.
The Court: Okay. And can you consider them? Not just listen, can you consider where they might be coming from?
Juror No. 27: Yes, I can.
The Court: Okay. All right.
Juror No. 27 returned to the jury room, and the court subsequently summoned all the jurors and instructed them with CALCRIM No. 3551, regarding continued deliberations. The court further told the jury that the court understood that "English maybe is not everybody's first language," but the court could not have "other people that might speak Spanish acting as interpreters ... ."
1.1.4. April 13, 2018
The jury resumed its deliberations on April 13, 2018, at 9:44 a.m. At 10:01 a.m., the jury foreperson submitted a note stating Juror No. 27 "would like to request an interpreter[.]" After the foreperson wrote the note, Juror No. 27 took it and added "in special to will be [compatible] the rest of the jurors. Thanks." Juror No. 27 did not sign the note.
The court read this word as "compatible." The note in the record is not entirely legible, but appears to be "compositable."
The court discussed the note with the foreperson:
Foreperson: We were deliberating, and we were about to go over some points, and he raised his hand and said, "I wanted an interpreter." And so I wrote my part of the note. I showed it to him and said, "Is this exactly what you wanted me to say or do you want me to say more? And he requested that he finish it, he folded it up and gave it to me, along with the other note, and I asked him, while we were waiting for a response, "Can we continue to deliberate without an
interpreter?" And he said, "No, please do not."
The Court: Okay. Okay. So it seems like he needs one, at least to be able to fully communicate with everyone.
Foreperson: I don't know what he needs. Because his note is saying to me the same thing he said yesterday.
The Court: Well, I'm asking your opinion—
Foreperson: My opinion—
The Court: —Does it appear, because he said he needs an interpreter, based on what you've seen—based on what you've seen, does it appear that he needs an interpreter?
Foreperson: It seems like he has needed one to adequately express what he is trying to say.
The foreperson returned to the jury room. The court then had separate chambers conferences with Juror Nos. 14 and 35, asking them whether they thought Juror No. 27 needed a Spanish interpreter to assist with deliberations. Juror No. 14 believed Juror No. 27 may be able to understand without an interpreter. Juror No. 35 stated she did not know whether he needed an interpreter because Juror No. 27 "speaks English very well," but acknowledged a female juror had been interpreting for him.
The court discussed with the parties whether more jurors should be brought in, and defense counsel questioned what more they would find out, stating, "[e]ither he needs an interpreter or he doesn't need one." The court said, "I'm not giving him one." Defense counsel suggested they call in Juror No. 27 and hear directly from him. The court agreed and then spoke with Juror No. 27 about his request for an interpreter:
The Court: Juror No. 27, I got a note, and I guess—do you know who wrote the first part?
Juror No. 27: I believe the Jury No. 31 thinks.
The Court: The foreperson?
Juror No. 27: Uhm, like, could be Japanese people.
The Court: Is she—do you know who the foreperson is?
Juror No. 27: The first person sign, and then in the color black, that's why my write.
The Court: Do you know who the foreperson is? Do you know what a foreperson is? Have you guys picked a foreperson?
Juror No. 27: I don't remember.
The Court: Okay. Anyway, so she writes that you would like to request an interpreter. And is that true, you want an interpreter?
Juror No. 27: Please.
The Court: Okay. And why is that?
Juror No. 27: Hmm, in first time, because the rest the jurors in the room feel more
comfortable I speak in Spanish, and one person help me to translate, and then because—I don't know—state—prepare or listen or understanding everything.
The Court: So you're not understanding everything?
Juror No. 27: In part. Not totally, 100 percent.
The Court: What about the trial testimony? Did you understand everything that was said? Because everything was in English, I believe. Did you understand everything that was being testified to?
Juror No. 27: Hmm, by sure I understood a lot. I don't know exactly how percentage.
The Court: I'm sorry. I didn't hear you.
Juror No. 27: I understand—I understand a lot, but I don't know totally.
The Court: Okay. So with regard to actually deliberating, if you didn't have an interpreter, are you telling me—because you haven't had one up until this point, are you saying that you've had some problems understanding English, what other people are saying to you?
Juror No. 27: Yes. Because today one juror started use from the green board and write
probably, like, expectation about the—who is in the car, in the first one car.
The Court: I don't want to get into specifics.
Juror No. 27: Okay. Okay. Okay. I try. Probably when he—he asking me maybe two time, three times I prefer if one interpreter, because he probably no understand my English I talking.
The Court: Okay. But are you understanding his English?
Juror No. 27: Of him?
The Court: Yeah. He's speaking English to you; correct?
Juror No. 27: Excuse me? He or me?
The Court: Him. He's speaking—
Juror No. 27: Yeah, he speaking English. Okay?
The Court: And you understood that?
Juror No. 27: Yes. Pero he no understood my answer.
The Court: So the interpreter isn't for you, it's for everybody else?
Juror No. 27: Okay.
The Court: Is that true?
Juror No. 27: Really I prefer—I feel more comfortable because I no understood 100 percent the English.
The Court: Okay. What about the law that I gave you? I read that to you, and it's written in English. Did you read over the law that I gave you?
Juror No. 27: Yes, but the same. No 100 percent. Someone words is new one for me.
The Court: And is that because it's in English?
Juror No. 27: Excuse me?
The Court: Is that because the law is in English and you don't understand it?
Juror No. 27: Yeah. Probably the laws is terminal—terminology or the laws and the people who use contraction in the—especially in the recording—the recording and the—between there.
The Court: I don't want to get into specifics again. I'm sorry. It's just that I'm only limited—
Juror No. 27: Yes. Yes. Yes. It's—for me is—please, honorable the judge, it's hard to understand me. It's my first time. Maybe two, three times before, I receive the letter for coming the juror, not to this one. You know, the other I say, "no understand."
The Court: Because you didn't?
Juror No. 27: Please. And that moment, say, "hey"—in this court, in this
selection—selection, say, "hey, you are"—"you are citizen, yes?" Yes, I am citizen. A little different, because the question is silly. You only for memorize. For English fluency—fluent English for me, no. Is hard because it's my second language. It's for that.
The Court: So what about back in the jury room, going just back there? You guys have been back there for a little bit, and people are speaking in—I've told them they can only speak in English.
Are you going to be able to do that, just in English?
Juror No. 27: Yes. I—I try.
The Court: Can you understand it, what they're saying?
Juror No. 27: I can repeat: totally, out of—not 100 percent or totally. That's not possible. Because sure, as my second language, I—never I gone to the school. It's only—only my grammar is about the reading someone it's for myself, not because I go to the school.
The Court: Okay. So I recognize that today, during the deliberation, that you
kind of stopped it and said you wanted an interpreter.
Juror No. 27: Yes.
The Court: Okay.
Juror No. 27: Because the days before, like a lot people inside the room speaking Spanish, and all the time they prefer talking with me in Spanish. I say they please—please let me—let me talk in English pero I—I can see, and I believe they no feel comfortable.
The Court: Okay. Well, yesterday I told everybody—do you remember what I said yesterday about speaking in Spanish back there?
What did I say yesterday about speaking in Spanish?
Juror No. 27: Outside in the court?
The Court: Yeah, when I talked to everybody.
Juror No. 27: Yes. He—he—someone needs an interpreter. Asking about the paper, it's for that, the first time I can say, again, I apologize because probably no understood exactly the instruction. I asking to the room.
The Court: Right. But I never—
Juror No. 27: I apologize.
The Court: No. No. That's okay. But I'm saying yesterday what did I tell—what were my instructions to you—to everybody yesterday about speaking in Spanish?
Juror No. 27: They need an interpreter, asking that, asking about.
The Court: That's what you think I said?
Juror No. 27: Yes, I believe that—I understood that.
The court commented that if Juror No. 27 was not able to understand the other jurors that might be a problem. Juror No. 27 responded: "Let me—let me refer this. The other judge talk about the Spanish. I understood he needed some person span—talking in Spanish, talking about the interpreter. It's for that today, asking when the other—the other jurors start asking me what thinking about the specific case."
The court then followed up with Juror No. 27 as to whether he would be able to continue deliberations without the assistance of an interpreter:
The Court: Would you feel more—so if I were to tell you that there is no interpreter.
Juror No. 27: The question is I need interpreter?
The Court: Right. No. If I told you that—you already said you need an interpreter.
Juror No. 27: Today, yes, because all—like, four years—four days ago in the court, I can see clear now the—the other
jurors no understand—understanding me, my accent.
The Court: Are you understanding them, though? That's the issue.
Juror No. 27: Not totally.
The Court: Okay. So because if you're not understanding them, you can't really understand their positions, because you don't understand English a hundred percent.
Juror No. 27: Yes.
The Court: Okay. And probably the same for them; maybe they don't understand.
Juror No. 27: Yes.
The Court: Okay.
Juror No. 27: Probably I no make a perfect sentence, you know. I talking how thinking only pero no—no—no perfect. Like my Spanish, I can—
The Court: Okay.
Juror No 27: Speaking Spanish very well, pero for me no is easy, the translation.
The Court: Okay.
Juror No. 27: And I no found every word.
The Court: So if I did not get you an interpreter—so if there is no interpreter to sit back there and interpret, would you be able to
deliberate with them? Would you be able to talk with them—
Juror No. 27: Let me—
The Court: —and understand?
Juror No. 27: At this moment, no interpreter for me?
The Court: Correct.
Juror No. 27: I can continue.
The Court: You can or cannot?
Juror No. 27: I can.
The Court: Okay.
Juror No. 27: Pero very important the—they say for me try it.
The Court: But the problem is do you understand them? That's where I'm getting back to. If you don't understand—
Juror No. 27: Not 100 percent.
The Court: So then—
Juror No. 27: I not—
The Court: —How are you going to be able to deliberate with them, if you don't understand them?
Juror No. 27: Asking the people—because, see, like three or four times ago receive the same letter for juror, for the jury. I re-send—re-send the letter,
say, "I no understand very well English."
The Court: Okay.
Juror No 27: They agree. But on this moment, say by telephone, "hey please, one person in Spanish. You need to—you need to coming."
It's hard. Okay? I stay here. I stay in the reselection—preselection. I don't know how—preselection? I stay here, never they reject me, I guess, because I stay here pero a hundred percent the English, no have it.
[¶] ... [¶]
The Court: Why did you ask for an interpreter? Did you just misunderstand me yesterday?
Juror No. 27: For the people who—yes. Probably for two things. I say again. The first time because today, when he wrote a star in the board and asking, probably he no understood. My—my English is, for that, no—no, I need one interpreter, because it's very important for them. Obviously, for me, too.
Outside the presence of Juror No. 27, the court commented, "there are people that certainly have very strong accents and have no problem conversing and understanding" but pointed out the problem here appeared to be that Juror No. 27 was having trouble understanding what others were saying and requested an interpreter. The court observed that there were times when Juror No. 27 was asked about deliberations that there were "significant pauses" and times where the court "knew he didn't understand what [the court] was saying, and that's kind of consistent with kind of the frustration that the jury is having."
The court deferred ruling on the issue until after the noon recess.
When the parties reconvened in the afternoon, they argued their positions. The prosecutor stated it was within the court's discretion under section 1089 to replace a juror if the court determines he cannot perform his duties. The prosecutor stated that Juror No. 27, "admitted three important things, which is that he did not a hundred percent understand what was going on in the trial; second, the law that the Court instructed him to follow; and third, to deliberate fully with the jury." The prosecutor concluded that based on the court's inquiry that day and the previous day, Juror No. 27 was not competent to serve on the jury and should be removed.
Defense counsel argued that Juror No. 27 asked for an interpreter because he was concerned the other jurors did not understand him, that he understood English better than he spoke it, and that his inability to "fully articulate his position in front of the other jurors" had "led to some friction." Defense counsel remarked defendant was entitled to a jury panel comprised of a cross-section of the community, which includes "bilingual and Hispanic jurors" and that he's entitled to a jury chosen "without any bias."
After the prosecutor made it clear he was asking the court to remove Juror No. 27, defense counsel responded, "So, you know, removing a juror such as this might, in fact, force a verdict, and ... we're removing a juror who's sat through all the entire trial and all of the deliberations. If we put a new juror on, we're going to have to start deliberations all over again." Defense counsel objected to the removal of Juror No. 27 based on defendant's federal constitutional right to a jury trial and his state constitutional right to "a fair jury panel drawn from a cross-section of the community."
Prior to issuing its ruling, the court pointed out that, contrary to the court's instructions, Juror No. 27 attempted to speak with court staff about the case and, on another occasion, stormed into the courtroom unannounced to speak with the trial judge. The court further noted that when Juror No. 27 was told he could not engage in this conduct, he claimed no one instructed him to the contrary. The court noted these were signs or indications that Juror No. 27 was not understanding the court's instructions.
The court then noted that when it spoke to Juror No. 27 the previous day about continuing to deliberate without the assistance of juror translators, Juror No. 27 stated he needed no translation assistance and was able to understand everything that was said. Based on these responses, the court did not remove him and allowed the jury to continue its deliberations.
However, this morning, the court stated, it received a note indicating that Juror No. 27 needed an interpreter before continuing with deliberations. The court remarked:
That's in direct contrast to what he told the court just the day before, that he understood everything,
that he didn't need an interpreter, and that he understood all the law.
When I had him back, just this afternoon, again I was asking him questions, and I don't think he said he understood most of it. I think he said he didn't understand everything, and he didn't understand everything about the law but generally about the law.
What concerns this court is the court has to ensure that a juror is, number 1, willing to deliberate; but, also, number 2, able to deliberate.
Then also, very telling, is that a lot of his responses to questions weren't in direct response. Yesterday, when I asked him about deliberating, there was a long pause, and I just got the feeling that he didn't understand what I was saying.
The court added that after Juror No. 27 requested an interpreter, he indicated that the court had suggested such an option the previous day, when in fact the court had told the jury that no one was allowed to interpret in the jury room and they must conduct their deliberations in English. The court remarked this was "a glaring example of him just not understanding, I think, to a sufficient degree for him to be able to fully deliberate with this jury."
The court granted the prosecutor's request to discharge Juror No. 27 and replaced him with an alternate juror.
1.1.5. Final Verdicts
The newly constituted jury began deliberations at 3:00 p.m. on April 13, 2018. At 3:10 p.m., the jury requested a more specific definition, and examples of, first degree murder. The court, without objection from counsel, gave the jury a definition of deliberate and premeditated murder with CALJIC 8.20. At 4:15 p.m., the jury indicated it had reached its verdicts, and the jury's verdicts were then read into the record.
The jury had previously submitted a similar note before the dismissal of Juror No. 27, but the court (upon instructing the jury to begin its deliberations anew) informed the jury it would set the note aside to allow full participation by the alternate. The court told the jury to let it know if it still wanted the question answered. The jury also requested a new verdict form for count 6, and subsequently found defendant not guilty on that count.
1.2. Standard of Review
Section 1089 provides, in pertinent part: "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, ... the court may order the juror to be discharged and draw the name of an alternate ... ." (§ 1089.)
"While a trial court has broad discretion to remove a juror for cause, it should exercise that discretion with great care." (Barnwell, supra, 41 Cal.4th at p. 1052.) The trial court's decision to dismiss a sitting juror will be upheld on review if the juror's inability to serve appears in the record "as a 'demonstrable reality.' " (People v. Wilson (2008) 44 Cal.4th 758, 821.) This standard of review is more stringent than the deferential " 'substantial evidence' " test. (Ibid.) "Under the demonstrable reality standard ... the reviewing court must be confident that the trial court's conclusion is manifestly supported by evidence on which the court actually relied." (Barnwell, at p. 1053.)
1.3. Grounds for Juror Removal
" 'Insufficient command of the English language to allow full understanding of the words employed in instructions and full participation in deliberations clearly ... render[s] a juror "unable to perform his duty" within the meaning of Penal Code section 1089.' " (People v. Lomax (2010) 49 Cal.4th 530, 566 (Lomax), quoting People v. Elam (2001) 91 Cal.App.4th 298, 316 (Elam); Code Civ. Proc., § 203, subd. (a)(6) [to be eligible and qualified to serve as juror, a person must be "possessed of sufficient knowledge of the English language"].)
"Limiting jury service to those who are 'possessed of sufficient knowledge of the English language' ... serves 'a significant state interest' [citation] in ensuring the uniform and efficient administration of the justice system and avoiding possible translation distortions." (People v. Eubanks (2011) 53 Cal.4th 110, 131 (Eubanks).)
" 'Grounds for investigation or discharge of a juror may be established by his statements or conduct, including events which occur during jury deliberations and are reported by fellow panelists.' " (Lomax, supra, 49 Cal.4th at p. 588.) The facts must show "an inability to perform the functions of a juror." (People v. Compton (1971) 6 Cal.3d 55, 60.) Any ambiguity in remarks must be resolved by proof and the court is not entitled to presume the worst. (Ibid; see also People v. Lucas (1995) 12 Cal.4th 415, 489.)
1.4. The court's reason for substituting Juror No. 27 is manifestly supported by the record.
It is important to recognize that Juror No. 27 initially came to the court's attention due to his purported refusal to deliberate with fellow jurors. It further appears, based on statements made by the foreperson, that Juror No. 27 was a potential hold-out juror or, at least, in the minority-view position.
The heightened standard of review for juror removal cases is specifically premised on concerns that removal of a seated juror may infringe upon a defendant's constitutional right to a unanimous jury verdict. (People v. Allen and Johnson (2011) 53 Cal.4th 60, 71 [stating that removal of sitting juror "may upset the delicate balance of deliberations" and violate right to a "unanimous criminal verdict"—"an important safeguard, long recognized in American jurisprudence"]; People v. Cleveland (2001) 25 Cal.4th 466, 488-489 (conc. opn. of Werdegar, J.) [explaining that "discharge of a juror who may be holding out in a defendant's favor raises the specter of the government coercing a guilty verdict by infringing on an accused's constitutional right to a unanimous jury decision" and "[i]n light of this constitutional dimension to the problem," "a stronger evidentiary showing than mere substantial evidence is required to support a trial court's decision to discharge a sitting juror"].)
It is equally important, however, to recognize that Juror No. 27 was ultimately discharged not for his purported refusal to deliberate, but because the court determined that he was unable to do so due to language difficulties. Thus, while we review the juror substitution under "a less deferential, more searching review of the factual predicate for discharging a juror than what is entailed by the substantial evidence standards," (People v. Perez (2018) 4 Cal.5th 421, 446), the sole and precise question before us is whether Juror No. 27's inability to perform his duties due to language difficulties appears on the record as a "demonstrable reality." (Cf. People v. Homick (2012) 55 Cal.4th 816, 900 [noting juror was not discharged for refusal to deliberate, as argued by defendant, but because her views on capital punishment " 'prevented or substantially impaired her ability to perform her duties' "].)
We conclude that it does. In reaching this conclusion we discuss two cases: People v. Szymanski (2003) 109 Cal.App.4th 1126 (Szymanski) and Elam, supra, 91 Cal.App.4th 298.
1.4.1. People v. Szymanski
In Szymanski, the trial court denied a challenge for cause made on the grounds the prospective juror was not sufficiently proficient in English. During voir dire, the juror indicated that her primary language was Chinese and stated, " 'I think everything is okay with me except my English. Some of the words I cannot catch because I come from China.' " (Szymanski, supra, 109 Cal.App.4th. at p. 1129.) The juror responded in broken English to the court's questions, often with "unintelligible" answers (id. at p. 1132), and admitted she did not understand commonly understood terms such as "law enforcement" and "police department" (id. at p. 1130). Nevertheless, the trial court concluded she appeared to understand the court proceedings "pretty well" and noted if there were words she couldn't understand, she could ask for an explanation. The juror was ultimately sworn and served on the jury. She asked no questions at trial. (Id. at p. 1132.)
The appellate court concluded the trial court abused its discretion in denying the challenge for cause and reversed. In light of the record, the court found it "hard to imagine what else [the juror] could have said or done to convey that her insufficient understanding of the English language was a reality." (Szymanski, supra, 109 Cal.App.4th at p. 1132.)
Although Szymanski concerned the dismissal of a prospective juror, the appellate court reviewed the question under the "demonstrable reality" standard. (Szymanski, supra, 109 Cal.App.4th at p. 1131.) Szymanski predated our high court's decision in Barnwell wherein the court identified the correct standard of review for the dismissal of seated, as opposed to prospective, jurors. (Barnwell, supra, 41 Cal.4th at p. 1052 ["We have given two different formulations of the applicable standard on review. ... [¶] To dispel any lingering uncertainty, we explicitly hold that the more stringent demonstrable reality standard is to be applied in review of juror removal cases"].)
Here, as in Szymanski, Juror No. 27's responses to questioning were in broken English and, at times, difficult to follow. (Szymanski, supra, 109 Cal.App.4th at p. 1132.) Juror No. 27 not only indicated he needed an interpreter to continue his deliberations but, like the juror in Szymanski, admitted he had difficulty understanding some of the proceedings. For example, he stated he doesn't "know—state—prepare or listen or understand everything."
Shortly into deliberations, the jury requested audio recordings admitted at trial, including a recording of a jailhouse conversation between defendant and an informant. The court informed the jury that the transcript utilized by the informant stated "fake" on it because the statements were not necessarily true, but made at the behest of law enforcement. The court instructed the jury that the statements were admitted for state of mind or effect on the hearer, but not the truth of the matter. Thus, understanding the substance of these recordings was not only an important part of assessing the evidence in the case, but so was the ability to understand the court's legal instructions regarding the purpose for which they were admissible. (Eubanks, supra, 53 Cal.4th at pp. 129-130 [juror must have sufficient knowledge of the English language to "understand the legal proceedings and the evidence upon which a juror would base his or her decision in any given case"].)
In his argument, defendant states "it is likely that many jurors who speak English as their first language also find words in jury instructions that express legal concepts unfamiliar or new to them." While this general observation is well-taken, defendant's reliance on Juror No. 27's statement that he understood "the main idea" or—as defendant characterizes it—"the gravamen" or "essential points" of the court's instructions, is not. Both defendant and the People have the right to twelve jurors who possess sufficient knowledge of the English language " 'to allow full understanding of the words employed in instructions and full participation in deliberations ... .' " (Lomax, supra, 49 Cal.4th at p. 566, italics added.) This was lacking here.
Indeed, the record shows that Juror No. 27 did not comprehend the court's basic instructions regarding how to communicate with the court and failed to comply with the court's instructions to not discuss deliberations with court staff.
In Szymanski, the prospective juror was candid about her language difficulties and linked her ability to be fair to her limited ability with English. (Szymanski, supra, 109 Cal.App.4th. at p. 1130.) Here, Juror No. 27 was similarly frank in stating that when previously summoned for jury duty, he informed the court that he would not be able to understand the proceedings because English was his second language.
We note also that the voir dire transcript from the instant proceedings reflects that shortly before Juror No. 27 was examined, defense counsel told prospective jurors that if they had trouble with English, an interpreter may be provided for them. Defense counsel suggested the same option when the parties discussed Juror No. 27 during deliberations. While the court initially entertained the option (and asked the parties to research the issue) it ultimately concluded it would not provide an interpreter. This conclusion was correct. (See Eubanks, supra, 53 Cal.4th at p. 130 [rejecting challenge to English proficiency requirement and lack of translation assistance for jurors by noting that "[o]ur state trials are conducted entirely in English, with translation into English provided only for those defendants and witnesses who do not speak English"]; see also People v. Lesara (1988) 206 Cal.App.3d 1304, 1309-1310 [identifying potential problems that would arise from use of interpreters for jurors].)
In his reply brief, defendant contends any comparison to Szymanski is inapt because in the instant proceedings, "Juror No. 27 was confident that although he lacked full command of the English language, he could continue to deliberate." Defendant reminds us that "[c]ourts must not presume the worst of a juror."
The court here, however, did not "presume the worst." Instead, the court retained Juror No. 27 based on his assurances that he would be able to continue deliberations without translation assistance. It was only after Juror No. 27 requested an interpreter—and admitted his lack of comprehension in open court—that the court determined he had not been fully forthcoming about his ability to understand the proceedings and replaced him.
To the extent Juror No. 27 at times retreated from his own admissions—or contradicted himself—this court will not reweigh the evidence. (Barnwell, supra, 41 Cal.4th at p. 1053) [stating that "[i]t is important to make clear that a reviewing court does not reweigh the evidence under either [substantial evidence or demonstrable reality] test"].) To the extent the court also based its rulings on observations that do not appear on the record—such as Juror No. 27's hesitation during his responses—these observations are entitled to deference. We will not second guess a trial court's credibility judgment where it depends, in part, on observing the witness. (Ibid. ["we afford deference to the trial court's factual determinations, based, as they are, on firsthand observations unavailable to us on appeal"]; People v. Avila (2006) 38 Cal.4th 491, 529 [prospective juror's tone of voice, apparent level of confidence, and demeanor divulge valuable information that does not appear on the record].)
We do not agree, however, with the court's observation that Juror No. 27's belief that he could request an official court interpreter was "a glaring example" of his inability to understand the court's instructions. In sending the jurors back for further deliberations, the court stated they could not interpret for one another because the court could not determine the accuracy of the interpretation as they were not "certified court interpreter[s]." The Court then told the jury "if somebody does not understand the English, then let me know, and we'll see if we can do anything to help facilitate." Based on these statements, Juror No. 27—or his fellow jurors—could have reasonably understood the court was prohibiting jurors from acting as interpreters, but might provide a certified interpreter if Juror No. 27 was unable to continue without translation assistance. Nevertheless, the record as a whole supports the court's grounds for discharging Juror No. 27. (Barnwell, supra, 41 Cal.4th at p. 1052 [under demonstrable reality test, reviewing court must determine whether trial court relied on evidence that "in light of the entire record" supports its conclusion].)
1.4.2. People v. Elam
Defendant relies heavily on Elam, supra, 91 Cal.App.4th at p. 316. However, while Elam arose in a similar context—dismissal of a potential holdout in tension with majority jurors—the similarities end there.
In Elam the court received a note from the foreperson that read, " 'There is a perception problem with Juror No. 3. Possibly a language understanding. Help.' " (Elam, supra, 91 Cal.App.4th at p. 313.) The court summoned Juror No. 3, who "acknowledged having 'some' difficulty with the English language, 'a little bit.' " (Ibid.) However, the juror had grown up speaking English, spoke English continuously while serving in the United States Navy, and earned an associate of arts degree in English from Glendale Community College. (Ibid.) The other jurors thought there was a language problem because some of them had trouble understanding Juror No. 3, but mainly because he frequently changed his mind, " 'block[ed] out' " circumstantial evidence, and did not seem to " 'grasp the law.' " (Id. at pp. 314-316.) When the court asked Juror No. 3 his opinion of why the other jurors were concerned about an inability to communicate, he answered, " 'Maybe we see the case differently.' " (Id. at p. 323.) In his opinion, Juror No. 3 did not have a significant language problem. (Ibid.) He understood all of the testimony. (Id. at p. 321.) He understood the instructions and was able to participate in discussions. (Id. at pp. 323-324.) After speaking to all of the jurors and noting Juror No. 3 had a "pronounced accent" which made him difficult to understand, the court discharged Juror No. 3, stating, " 'I fear that you may have overestimated your own abilities to understand all of these proceedings.' " (Id. at p. 316.)
On appeal, the court reversed. In so doing, the reviewing court stated that the complaints about Juror No. 3 "do not necessarily demonstrate inadequate comprehension of the English language as opposed to legitimate disagreement over the meaning to be given certain instructions, interpretations of the law and evidence." (Elam, supra, 91 Cal.App.4th at p. 317.) The Elam court cautioned that in a "[potential deadlock] atmosphere, it is more likely that majority jurors will attribute genuine differences of opinion to 'language problems,' or 'lack of comprehension,' where possible." (Ibid.)
Justice Vogel dissented, stating "[t]he trial court heard Juror No. 3 and could determine the extent of his accent and his ability to understand." (Elam, supra, 91 Cal.App.4th at p. 320 (dis. opn. of Vogel, J.).) Like Szymanski, Elam preceded the high court's decision in Barnwell wherein it clarified the appropriate standard of review for removal of seated jurors.
In his opening brief, defendant points out that the complaints of other jurors in this case "were not based upon juror No. 27's limited English proficiency," but on his "refus[al] to deliberate." From this, defendant extrapolates that Juror No. 27 " 'clearly understood what was transpiring' " but simply " 'had a different view of the law and the facts than did the other jurors.' " However, a critical distinction between Elam and this case renders defendant's extrapolation unwarranted.
That is, unlike in Elam, Juror No. 27's own assessment of the situation—through his act of requesting an interpreter and express statements to the court—demonstrated his inability to adequately comprehend the proceedings. Thus, in explaining his request for an interpreter, Juror No. 27 acknowledged he needed translation assistance both for the benefit of other jurors and his own needs, stating "I don't know—state—prepare or listen or understand everything." Juror No. 27 subsequently reiterated he wanted an interpreter because he himself would "feel more comfortable because I no understood 100 percent the English" and that his need for an interpreter was not only "important for [other jurors]" but "obviously, for me, too." (Italics added.)
To that end, while Juror No. 3 in Elam had spoken English continuously during his time in the Navy and obtained an associate degree at a local community college, Juror No. 27 told the court, "as my second language, I—never gone to the school. It's only—only my grammar is about the reading someone it's for myself, not because I go to the school."
The differing backgrounds of the two jurors are reflected in their respective court colloquies. The Elam juror's colloquy, reproduced in its entirety in the appendix of the decision, reveals a virtually flawless exchange with the court. (Elam, supra, 91 Cal.App.4th at pp. 314 & 321-323, fn. 4.) In contrast, the colloquy between Juror No. 27 and the court reflects that he was clearly struggling with the language and often gave non-responsive answers to questions posed by the court. In light of this record, we cannot conclude that the court abused its discretion by discharging Juror No 27. (Barnwell, supra, 41 Cal.4th at p. 1052; see also People v. Jones (1972) 25 Cal.App.3d 776, 783, citing Ganz v. Justice Court (1969) 273 Cal. App.2d 612, 623 ["This much is certain: we should have jurors who are fully able to understand spoken and written English on our juries, if justice is to be achieved"].)
Our determination that the court acted within its discretion under section 1089 necessarily disposes of any constitutional challenge raised by defendant. (People v. Williams (2013) 58 Cal.4th 197, 293 [noting that because the substitution of a juror for good cause pursuant to section 1089 " 'does not offend constitutional proscriptions,' " any constitutional claims must necessarily fail]; Eubanks, supra, 53 Cal.4th at pp. 130-131 [rejecting fair cross-section challenge to English knowledge requirement on grounds it is a " 'permissible racially neutral section criteri[on]' " and deeming "speculative" defendant's claim that such a requirement would automatically cause qualified Hispanics to avoid jury duty].)
2. Imposition of Second-Strike Sentence and Prior Serious Felony Enhancement
Defendant contends the court's imposition of a second-strike sentence and five-year prior serious felony enhancement (§ 667, subd. (a)(1)) was unauthorized because neither enhancement was alleged in the operative information. We agree with defendant and order the enhancements stricken.
2.1. Background Facts
2.1.1. The Original December 2, 2013 Information
On April 4, 2013, the prosecution was provided a section 969b packet by the California Department of Corrections and Rehabilitation. The packet contained information about defendant's two prior convictions for grand theft and residential burglary. The original information, filed on December 2, 2013, alleged that defendant had suffered two prior convictions requiring that any sentence for a felony be served in state prison (§ 1170, subd. (h)(3).)
2.1.2. The Operative September 27, 2017 Information
After defendant's first trial ended in a mistrial, the prosecution filed an amended information on September 27, 2017, omitting the three counts dismissed by the court pursuant to section 1118.1. This information did not allege any strikes or prior serious felony enhancements, but included the section 1170, subdivision (h)(3) allegations. Defendant was arraigned on the amended information on October 2, 2017.
On October 11, 2017, at the close of the second trial, defendant waived his right to a jury trial on the prior conviction allegations. While taking defendant's waiver, the court commented that the prosecution had alleged in the information that defendant had suffered two prior convictions, and that the court "believe[d] the People are alleging them under 667.5(c)." The prosecutor agreed with the court's statement.
Subdivision (c) of section 667.5 lists the offenses that are classified as violent felonies. This subdivision is expressly referenced in section 1170, subdivision (h)(3) and was cited in the December 2013 information and the September 2017 information for the section 1170, subdivision (h)(3) allegations. Subdivisions (a) and (b) of section 667.5 specify enhancement terms for prior prison terms. No prior prison term enhancements were imposed in this case.
2.1.3. The Withdrawn December 5, 2017 Information
On December 5, 2017, the prosecution filed an amended information charging defendant with the four remaining counts from the second trial. Like the two previous informations, this information pled a section 1170, subdivision (h)(3) allegation. However, unlike the previous two informations, this information included allegations that defendant had suffered a prior serious felony conviction under section 667, subdivision (a)(1), and that defendant was "subject to sentencing pursuant to the provisions of Penal Code section 667(b)-(j) and Penal Code section 1170.12." The latter provisions are within the Three Strikes sentencing scheme.
Defendant was not arraigned on the December 2017 information. The third trial commenced on March 29, 2018, and, before starting voir dire, the court observed the prosecution had filed an "amended information" on December 5, 2017, and noted, "all it did was take out the charges that the defendant had been convicted of." The prosecutor stated "correct." The court then remarked: "I think it's improper to take those out, because he was convicted of them. The defendant has not been arraigned on this at all."
The prosecutor then withdrew the December 2017 information, and the court confirmed: "So we are still going to be working off of the 'information' that was filed—the 'second amended information' that was filed September 27, 2017, and the only remaining counts the defendant faces are counts 5, 6, 7, 8, plus the gun and gang allegations."
2.1.4. December 24, 2018 Sentencing Proceedings
The prosecutor's sentencing memo, filed on September 14, 2018, stated at the outset that he expected to prove up two prison priors but never again referred to any prior convictions as prison priors. However, in discussing the computation of defendant's determinate sentence, the prosecutor stated he was "also requesting the Court impose the strike from Defendant's residential burglary" and was "also asking the Court to impose the previous strike conviction ... as a PC 667(a)(1) 5 year prior."
Defendant's sentencing memo, filed on December 21, 2018, addressed defendant's prior convictions as follows: "The information in this case alleges the defendant suffered prior convictions. In particular, the people allege the defendant suffered a 'strike' conviction pursuant to his conviction in case #VA118311. Counsel has seen no evidence that this conviction qualifies as a strike pursuant to Pen. Code § 1192.7 or 667.5(c). Should the prosecution present evidence of prior convictions and prison terms at the defendant's bifurcated trial on the priors, then counsel will address this issue."
On December 24, 2018, prior to imposing sentence, the court stated it was conducting "the court hearing on the prior that is alleged." The court added it was "looking at an 'amended information' " and that it "probably was the third amended, but it doesn't state it there. It looks like it was filed December 5, 2017." The court noted the amended information contained a prior strike and a prior serious felony under section 667, subdivision (a)(1), and the prosecution introduced the section 969(b) packet.
Defense counsel objected, arguing the packet was not admissible as a business record absent testimony from the custodian of records. The court disagreed and admitted the packet. The court found the People had satisfied their burden of proof and established beyond a reasonable doubt that defendant suffered a prior conviction pursuant to section 667, subdivision (a)(1) and a prior strike under section 667, subdivisions (b) through (j) and section 1170.12. As a result, in pronouncing the determinate sentence, the court doubled defendant's five and a half year prison term on count 1 (attempted voluntary manslaughter), and added five years to the sentence for the prior serious felony enhancement.
The court did not impose a second-strike sentence on the indeterminate term imposed for the remaining counts, nor did it impose a sentence for the five-year prior on those counts.
Defense counsel did not object to the sentence on count 1.
2.2. Governing Legal Principles
Section 1170.1, subdivision (e) provides that "[a]ll enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact." This includes section 667, subdivision (a) enhancements. (People v. Jackson (1985) 37 Cal.3d 826, 835, fn. 12 ["It is obvious ... that the enhancement provided by [section 667, subdivision (a),] is subject to equivalent pleading and proof requirements" to those of other enhancements specified in section 1170.1, former subdivision (f), disapproved on another point in People v. Guerrero (1988) 44 Cal.3d 343, 348].) The Three Strikes law provisions expressly require that qualifying prior felony convictions be "pled and proved." (People v. Sawyers (2017) 15 Cal.App.5th 713, 720 (Sawyers), citing §§ 667, subd. (c), 1170.12, subd. (a).)
"[I]n addition to the statutory requirements that enhancement provisions be pleaded and proven, a defendant has a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes." (People v. Mancebo (2002) 27 Cal.4th 735, 747 (Mancebo).) The prosecution may not meet this requirement merely by pleading the fact of the prior conviction, but must notify the defendant it seeks to use the prior conviction as the basis of the specific enhancement to be imposed. (Id. at pp. 747, 753; People v. Nguyen (2017) 18 Cal.App.5th 260, 266-267 (Nguyen).)
2.3. Applicable Decisional Law
In People v. Mancebo, gun use was charged as a basis for One Strike sentences of 25 years to life. (Mancebo, supra, 27 Cal.4th at p. 740.) The jury found the gun use allegations to be true and the trial court subsequently substituted a multiple victim circumstance for the gun use findings as a basis for the One Strike sentences. (Ibid.) This allowed the trial court to separately apply the gun use enhancement to increase the defendant's sentence by an additional 10 years. (Ibid.)
The Mancebo court observed, "[N]o factual allegation in the information or pleading in the statutory language informed defendant that if he was convicted of the underlying charged offenses, the court would consider his multiple [victim] convictions as a basis for One Strike sentencing ... . Thus, the pleading was inadequate because it failed to put defendant on notice that the People, for the first time at sentencing, would seek to use the multiple victim circumstance to secure indeterminate One Strike terms[.]" (Mancebo, supra, 27 Cal.4th at p. 745.)
In so holding, the Mancebo court acknowledged that the jury's guilty verdicts for multiple counts involving two or more victims may have made it "difficult to meaningfully contest the truth of a multiple victim qualifying circumstance" for purposes of the One Strike sentencing. (Mancebo, supra, 27 Cal.4th at p. 752.) Nevertheless, the court rejected application of the harmless error doctrine, explaining that the failure to plead the enhancement allegations in the operative information "must be deemed a discretionary charging decision" made by a prosecutor who is familiar with the necessary pleading requirement. (Id. at pp. 749-751; see also People v. Hernandez (1988) 46 Cal.3d 194, 208-209 [stating in relation to imposition of sentencing enhancement first mentioned in probation report: "It is unnecessary to articulate a particular standard of review and engage in a harmless-error analysis when defendant's due process right to notice has been so completely violated"].)
Other courts have similarly relied on Mancebo to conclude an enhancement under a statute requiring pleading and proof of the enhancement cannot be imposed unless the enhancement is specifically pleaded. (See Nguyen, supra, 18 Cal.App.5th at pp. 266-267 [striking five-year enhancement under section 667, subdivision (a) as unauthorized where prosecution alleged prior conviction as a "strike," but made no reference to five-year enhancement in the accusatory pleading]; Sawyers, supra, 15 Cal.App.5th at pp. 724, 726 [concluding trial court erred by imposing sentence under Three Strikes law where information alleged prior conviction was serious or violent felony under § 1170, subd. (h)(3), and prior prison term under § 667.5, subd. (b), but made no reference to Three Strikes law]; People v. Botello (2010) 183 Cal.App.4th 1014, 1027 [trial court's imposition of firearm enhancement under § 12022.53, subd. (e)(1) unauthorized where information alleged personal use of firearm, but not principal armed allegation].)
2.4. The trial court erred by imposing a second-strike sentence and prior serious felony enhancement.
Respondent acknowledges that the enhancements at issue were not pled in the operative information, and that the enhancements must be pled to comply with both statutory law and fair notice principles. Respondent, however, argues the claim is forfeited for lack of a timely objection and, if not, that defendant had reasonable notice under the informal amendment doctrine. We reject both contentions.
2.4.1. The claim is not forfeited.
In Mancebo the Supreme Court held that the defendant did not forfeit the error by failing to object. (Mancebo, supra, 27 Cal.4th at p. 749, fn. 7.) It relied on the unauthorized sentence exception—i.e., principles of waiver and forfeiture do not apply to " 'legal error resulting in an unauthorized sentence [that] commonly occurs where the court violates mandatory provisions governing the length of confinement.' [Citation.]" (Id. at p. 750, fn. 7.) In the case before it, the sentence was unauthorized because it violated the "pled and proved" requirement of section 667.61. (Mancebo, at p. 750, fn. 7.)
The same holds true here. The operative information filed on September 27, 2017 did not allege, either in so many words or by citing a relevant statute, a prior serious felony conviction enhancement or a prior strike pursuant to the Three Strikes law. As such, the sentence imposed was unauthorized, and not subject to waiver or forfeiture rules. (Mancebo, supra, 27 Cal.4th at p. 749, fn. 7; see also Sawyers, supra, 15 Cal.App.5th at p. 727 ["[I]t is the People's burden to properly plead enhancement allegations, not the defendant's responsibility to ferret them out"].)
2.4.2. Defendant did not have fair notice of the enhancements through the informal amendment doctrine.
Under the informal amendment doctrine " 'a defendant's conduct may effect an informal amendment of an information without the People having formally filed a written amendment to the information.' " (Sawyers, supra, 15 Cal.App.5th at p. 722.) "The ' "proceedings in the trial court may constitute an informal amendment of the accusatory pleading, when the defendant's conduct or circumstances created by him amount to an implied consent to the amendment." ' " (Id. at p. 721.) However, "[t]he informal amendment doctrine ... applies only when a defendant had reasonable notice of a sentence enhancement allegation despite an incomplete pleading." (Id. at p. 723.)
Respondent asserts that defendant had written notice of the enhancements by virtue of the December 2017 information filed by the prosecution. We disagree.
First, the prosecutor's express withdrawal of the December 2017 information rendered that information of no legal effect and reinstated the September 2017 information as the operative pleading. (People v. Gates (1931) 214 Cal. 175, 176 [noting that amended information "was later withdrawn" and that the original information through this process "did not lose its efficacy"].)
Second, it would be anomalous to conclude that the omission of a statutory enhancement from pleadings is deemed a prosecutorial charging decision to forego the enhancement, but then hold that a prosecutor's decision to plead—and then expressly withdraw—such an enhancement somehow imparts notice of an intention to have the court impose it.
To the extent respondent seeks to bolster its argument by pointing out that the December 5, 2017 information was not withdrawn for four months, we note the following events reflected in the record after its filing: Defendant failed to appear for a pretrial conference hearing on December 22, 2017, and on January 3, 2018, the court trailed sentencing pending retrial of the four remaining counts. On March 6, 2018, defense counsel filed a motion to withdraw as retained counsel (and to be appointed to represent defendant at public expense) noting defendant and his family had insufficient funds to continue paying counsel and that no current representation agreement existed between counsel and defendant. The court subsequently granted the motion and issued a written order to that effect on the first day of defendant's third trial, March 29, 2018. It was on this day, that the prosecutor represented to the court that the December 5, 2017 information before it made no changes other than to remove the dismissed counts, and, after the court stated defendant would have to be arraigned upon this information, withdrew it.
Respondent also argues that defendant implicitly consented to imposition of the strike and prior serious felony enhancements. However, Sawyers rejected application of the informal amendment doctrine where the "first explicit reference [to the unpled strike prior] was in the People's sentencing memorandum ... ." (Sawyers, supra, 15 Cal.App.5th at p. 723.) The court pointed out that the sentencing memo came "after Sawyers had waived his right to a jury trial on the prior conviction allegations[,]" and that Sawyers was not advised at that time that the prior conviction was a strike or would result in Three Strikes sentencing. (Id. at p. 723-724.) The Sawyers court so held even though in taking defendant's waiver, the trial court had commented "in passing that one of the priors was a strike." (Id. at p. 723.)
Here, at the time of defendant's waiver of his right to a jury trial on his prior convictions, there was no mention, either by the court or the prosecution, that any of the priors would be used as a strike under the Three Strikes law or subject to an additional five-year term under section 667. Thus, "[w]hile the People are correct that defense counsel never objected to the prosecution's sentencing memorandum or to the trial court's imposition of [the unpled enhancements], ... we cannot conclude from those omissions alone that the informal amendment doctrine applies." (Sawyers, supra, 15 Cal.App.5th at p. 724.)
In sum, both adherence to Mancebo, supra, 27 Cal.4th 735, and basic fairness require that we hold the prosecution to its tactical pleading choices. Accordingly, the prior serious felony enhancement and the sentence imposed under the Three Strikes sentencing law must be stricken. 3. Imposition of Fines, Fees, and Assessments
Without objection from defendant, the court imposed a $120 court facilities assessment (Gov. Code § 70373), a $160 court operations assessment (§ 1465.8), and a $10,000 restitution fine (§ 1202.4).
Citing People v. Dueñas (2019) 30 Cal.App.5th 1157, defendant contends that the court violated his constitutional rights by imposing the $280 in assessments and the $10,000 restitution fine without first determining his ability to pay these amounts. Respondent asserts defendant forfeited the issue by failing to interpose any objections to the fine and assessments.
We need not decide this issue because defendant's restitution fine was set at $10,000, well above the statutory minimum of $300. Under that circumstance, the statute provides that a court may consider a defendant's inability to pay. (§ 1202.4, subd. (d); People v. Avila (2009) 46 Cal.4th 680, 729.) Thus, an objection to the $10,000 fine would not have been futile under governing law at the time of his sentencing hearing. (§ 1202.4, subds. (c) & (d); see also Avila, at p. 729.) Having failed to object on the ground of inability to pay, the issue is forfeited as to the fine and assessments. (See People v. Scott (1994) 9 Cal.4th 331, 353.)
To the extent defendant alleges trial counsel was ineffective for failing to challenge his ability to pay, the record is insufficiently developed to address the issue on direct appeal. (People v. Cunningham (2001) 25 Cal.4th 926, 1003 [explaining ineffective assistance of counsel claim must be rejected on appeal unless " 'there simply could be no satisfactory explanation' " for counsel's action].) Defendant points out he was appointed counsel and thus could not afford private counsel for his defense. That a defendant is represented by publicly funded counsel at trial and sentencing does not, however, automatically establish his inability to pay fines or assessments. (See e.g., People v. Douglas (1995) 39 Cal.App.4th 1385, 1397 [noting defendant may lack the ability to pay the costs of court-appointed counsel yet have the ability to pay a restitution fine]; see also People v. Vournazos (1988) 198 Cal.App.3d 948, 958 [record supported finding of defendant's ability to pay $2,180 in restitution despite being indigent enough to qualify for court-appointed counsel and inability to post bail].)
4. Presentence Credits
At sentencing, the court awarded defendant 2,151 days of presentence credit against his prison sentence. Defendant contends the court erred in calculating his presentence credits, and that he is entitled to two additional days for the time he actually spent in confinement before he was sentenced. Respondent agrees, and requests this court order the requisite modification.
Although a defendant must generally seek correction of an error in presentence credit in the court before seeking correction from the court of appeal (§ 1237.1), the failure to do so does not preclude appellate correction if, as here, other issues are raised. (People v. Acosta (1996) 48 Cal.App.4th 411, 420-421, 427; People v. Florez (2005) 132 Cal.App.4th 314, 318, fn. 12.)
As the parties point out, defendant was arrested on February 1, 2013, and he was sentenced on December 24, 2018. As the parties also correctly point out, the relevant time span for purposes of presentence credit calculation includes both the date of arrest and the date of sentencing and, in this case, amounts to a total of 2,153 days. (§ 2900.5, subd. (a); People v. Smith (1989) 211 Cal.App.3d 523, 526.) Accordingly, the court's calculation of presentence custody credit must be corrected to reflect 2,153 days of credit. (People v. Turrin (2009) 176 Cal.App.4th 1200, 1205.)
5. Errors in the Abstract of Judgment.
For count 5, the jury convicted defendant of second degree murder. Defendant contends that the abstract of judgment should be modified to reflect that defendant was convicted of second, not first degree murder, and to reflect the correct amount of presentence credits. Respondent agrees and joins in these requests.
"It is, of course, important that courts correct errors and omission in abstracts of judgment." (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Hong (1998) 64 Cal.App.4th 1071, 1080.) If an abstract of judgment is defective in form, a "new and corrected one may be issued to conform to the judgment." (People v. McPheely (1949) 92 Cal.App.2d 589, 592).
In addition to the modifications requested by the parties, the abstract reflects that on count 1, a gang enhancement was imposed, though stayed. However, during the second trial (that resulted in a partial mistrial), the court not only dismissed count 2, it also dismissed the gang allegation for count 1 pursuant to section 1118.1. Accordingly, in addition to the corrections requested by the parties, we order correction of the abstract of judgment by deleting reference to the gang enhancement imposed for count 1. (People v. Walker (2014) 231 Cal.App.4th 1270, 1276-1277 [ordering abstract of judgment be modified to reflect that duplicative counts were dismissed, not stayed].) We further order that the abstract of judgment for count 1 be corrected to reflect that the year this crime was committed was 2013, not 2007.
DISPOSITION
We reverse the court's imposition of the second-strike and five-year prior serious felony enhancements and order them stricken, resulting in a determinate sentence of 15 and a half years on count 1. The judgment is further modified to reflect two additional days of presentence custody credits.
We order amendment of the abstract of judgment to reflect the correct amount of presentence credits and the striking of the second-strike and five-year prior serious felony enhancements for count 1. We further order amendment of the abstract of judgment to reflect dismissal of the gang enhancement allegation for count 1, consistent with the court's previous dismissal of the allegation, and to reflect that the year of the offense underlying count 1 was 2013, not 2007. Finally, we order amendment of the abstract of judgment to reflect that defendant was convicted of second, not first, degree murder for count 5.
In all other respect the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J. WE CONCUR:
EDMON, P. J.
Retired Presiding Justice of the Court of Appeal, Second Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.