Opinion
A098865.
10-17-2003
THE PEOPLE, Plaintiff and Respondent, v. DANTE LOVE, Defendant and Appellant.
Dante Love appeals from a judgment entered after a jury convicted him of first degree murder (Pen. Code, §§ 187, 189), and other offenses. He contends (1) the trial court erred when it denied his motion for a new trial based on juror misconduct, and (2) the court improperly imposed a sentence enhancement. We reject these arguments and affirm the judgment.
All statutory references will be to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was convicted of murdering a young college student named Kenneth Ishida.
On July 18, 1998, appellant encountered a relative named "Ken" on the streets of Berkeley. Ken told appellant they should meet later that night because he had "something up." Ken asked appellant to bring some .32 caliber bullets.
Kens true name was Glenn Green.
Appellant and his girlfriend Natalee Brown met Ken in Berkeley later that evening. Ken gave appellant a gun and showed him how to load it. The trio then started roaming the streets looking for someone to rob. After a few hours, they spotted Ishida, who was pulling his car into a garage. Appellant pointed the gun at Ishida, and with the help of his companions, forced Ishida into the trunk of his car.
The group drove to Emeryville where they forced Ishida to give them his money and bank cards. Ken struck Ishida in the head with the gun and forced him back into the trunk. They drove to a bank in Oakland where appellant and Ken used Ishidas ATM card to withdraw money from Ishidas account. The transaction was captured by a camera connected to the ATM. The tape shows appellant and a man wearing a cowboy hat (Ken) withdrawing money.
Ken told appellant he should take Ishida out of town and kill him. He suggested Vallejo because it was sufficiently far from Berkeley, but close to appellants home in Richmond. After dropping Ken off, appellant and Brown drove to Vallejo. Appellant selected an alley and took Ishida out of the trunk. Ishida begged appellant not to kill him. Appellant apologized to Ishida, had him lie face down on the ground, and shot him in the back of the head.
Several hours later around noon, appellant, Brown, appellants sister Chiquila, and Chiquilas friend Gloria Sharpe, went to Hilltop Mall in Richmond for a shopping spree. Using Ishidas credit cards, they purchased clothing and jewelry.
The following day, appellant and Brown returned to Hilltop Mall where appellant purchased more clothing and jewelry using Ishidas credit cards.
Two days later on July 22, 1998, police obtained a warrant to search appellants home in Richmond. Ishidas car was parked behind the residence. Inside, officers found Ishidas bank cards, an ATM receipt that reflected the withdrawal appellant and Ken had made on the day of Ishidas death, and receipts from appellants shopping excursions. The officers also found a .32 caliber revolver that had blood on it that was consistent with Ishidas blood.
Police officers arrested appellant that same day. Appellant waived his Miranda rights and spoke with the officers. He confessed to the crime, explaining in detail how it occurred. The confession was videotaped.
The next day, July 23, 1998, appellant gave the police another detailed statement about the crime. Again, the confession was videotaped.
Based on these facts, an information was filed charging appellant with five counts: (1) first degree murder with special circumstances (& sect;§ 187, 190.2), (2) robbery (§ 211), (3) kidnapping for robbery (§ 209, subd. (b)), (4) kidnapping for carjacking (& sect; 209.5, subd. (a)), and (5) carjacking (§ 215, subd. (a).) As is relevant here, the information alleged appellant had personally and intentionally used a firearm and caused great bodily injury when committing the murder alleged in count 1. (§ 12022.53, subd. (d).)
The case went to jury trial beginning in January 2001. The prosecutor sought the death penalty. In March 2001, the jurors rendered their verdict finding appellant guilty of robbery and kidnapping for robbery as alleged in counts 2 and 3, not guilty of kidnapping for carjacking and carjacking as alleged in counts 4 and 5, but guilty of the lesser included offenses of simple kidnapping (§ 207), and theft (§ 487.) The jury was unable to reach a verdict on the murder charged in count 1.
Retrial on count 1 began in October 2001. This time, the prosecutor decided not to seek the death penalty. Appellants counsel did not seriously dispute that appellant committed the crime. Instead he argued appellant was mentally ill and that his criminal culpability was therefore reduced. Counsel supported this defense with testimony from a school principal who described appellant as mentally slow, and from psychiatric experts who said there was evidence that appellant had brain damage. In addition, the defense presented testimony that while appellant was in jail, he solicited the murder of two witnesses who played a minor role in the prosecutions case. The defenses theory was that appellants obsession with the witnesses was evidence of his "sticky thinking."
In rebuttal, the prosecution presented testimony from an expert who said appellant did not suffer from any type of brain dysfunction.
The jurors considering this evidence convicted appellant of first degree murder. The jurors also found the special circumstance allegations and the sentence enhancement for using a weapon and causing great bodily injury to be true.
Subsequently, and as is relevant here, the court sentenced appellant to life without the possibility of parole for his murder conviction, plus an additional 25 years to life sentence for personally using a weapon and causing great bodily injury.
This appeal followed.
II. DISCUSSION
A. Motion for New Trial
After the jurors rendered their verdict, appellant filed a motion for new trial based on juror misconduct. The motion was premised on the fact that, while the case was being tried, one of the jurors discussed the case with his stepson, Larry Colbert. Colbert was incarcerated in the county jail at the time. The call was recorded by jail authorities. The relevant portion of their conversation is as follows:
"COLBERT: Where you been?
[Juror]: Huh?
COLBERT: Where you been?
[Juror]: Ah man, they got me all messed up, man.
COLBERT: What at work?
[Juror]: No, fuck, I go, they got, I got, I got drafted, man.
COLBERT: Drafted to where?
[Juror]: Drafted by the mother friggin judicial system and shit.
COLBERT: What you mean?
[Juror]: Huh?
COLBERT: What you mean?
[Juror]: I made the, I made 12, the 12 man roster man.
COLBERT: (Laughing) youre on the jury?
[Juror]: Yeah. . .
COLBERT: Where at?
[Juror]: Huh?
COLBERT: Where at?
[Juror]: Vallejo.
COLBERT: Is it Dante Loves case?
[Juror ]: Right.
COLBERT: (unintelligible)
[Juror]: Yeah.
COLBERT: (unintelligible) he just told me
[Juror]: Aint that a bitch?
COLBERT: Oh my god. Hey man, he right next to me right now.
[Juror]: Uh oh.
COLBERT: Im talking to him right now.
[Juror]: Oh.
COLBERT: I swear to god he just said in Vallejo. . . .
[Juror]: I aint supposed . . . .
COLBERT: . . . he just said in Vallejo.
[Juror]: . . . I aint supposed to talk . . . .
COLBERT: And he said, I said the name Love and he says . . . .
LOVE: Does your dad got a beard (unintelligible)
COLBERT: No he aint got a beard, he just got a, a little mustache, a dark skinned brother bud.
LOVE: (unintelligible)
COLBERT: (Laughing) (Unintelligible)
[Juror]: I aint supposed to be discussing this shit.
COLBERT: Yeah, look, he didnt do it `B, he didnt, man look, they, they aint got nothing on him, I been knowing this man for years. They aint got [nothing] on him man.
[Juror]: Thats what (unintelligible) I could see it man.
COLBERT: He said thats all he could see they aint got [nothing] on you.
[Juror]: I aint supposed to, I aint supposed to even mention . . . .
COLBERT: Man, you arent even supposed to be talking to me about that, we (unintelligible) but, uh, we, uh, man he just, he right, that was my cellie, man.
[Juror]: Um.
COLBERT: Aint that about a bitch? What a fucking coincidence. Huh?
[Juror]: Um hum.
COLBERT: Well man, my boy didnt do that shit, man, they aint got nothing on him. I been knowing that boy for years. They, look, I can tell you like this, it was somebody else that did it and they framed him for it. Trust me. I even know who did it.
[Juror]: (unintelligible) so do you know the guy in for it?
COLBERT: Uh huh.
[Juror]: Do you know him?
COLBERT: What you mean, the one thats going to trial?
[Juror]: Yeah.
COLBERT: Hes my cellie.
[Juror]: Yeah, yeah, I mean but did you know him anyway?
COLBERT: Yeah, I knew him, hell yeah I do.
[Juror]: Oh.
COLBERT: I been knowing him for 10 years.
[Juror]: Oh is that right?
COLBERT: I been knowing him for over 10 years, you know what Im saying? We grew up together in the bay area.
[Juror]: Oh really?
COLBERT: What he got 2 gold teeth in the front and all that shit.
[Juror]: Yeah.
COLBERT: Man, thats my boy. I been knowing him for hell of years man, and he being framed over 3 years ago trust me.
[Juror]: Um.
COLBERT: And he never been in custody before. This his first time in jail.
[Juror]: Yeah that is, that is a coincidence.
COLBERT: Aint that, aint that `bout a bitch?
[Juror]: Yeah.
COLBERT: No, really.
[Juror]: Anyway . . . .
COLBERT: Uh huh?
[Juror]: Thats whats been happening man . . . ."
The trial court conducted an evidentiary hearing to address appellants motion. The juror in question testified. He said he did not tell any of the other jurors about the conversation; a fact the jury foreperson confirmed.
Colbert also testified. He said appellant was standing next to him listening during the conversation. When Colbert told appellant his stepfather was a member of appellants jury, appellant asked Colbert to solicit his fathers help. Colbert said appellant did not ask him to tell his stepfather that he did not commit the crime or that he was being framed. Colbert volunteered those statements.
After considering this evidence, the trial court denied appellants motion for a new trial. The court ruled appellant was the "instigator" of Colberts attempt to influence the juror, and that he should not benefit from his wrongful conduct. The court also ruled appellant had received a "fair trial" which both parties interpret to mean there was no prejudice from the misconduct.
Appellant now contends the trial court erred when it denied his motion for a new trial.
Turning first to whether appellant instigated Colberts attempt to influence the juror, appellant concedes that when misconduct is committed at the instigation of a defendant, the impropriety will be deemed invited and the defendant will not be allowed to benefit from his own misconduct. (People v. Hines (1997) 15 Cal.4th 997, 1054; People v. Williams (1988) 44 Cal.3d 1127, 1156.) However, appellant contends there is no "substantial evidence in support of the trial courts finding that appellant had Colbert make this call in order to tamper with a sitting juror, thereby precluding appellant from raising the claim of juror misconduct."
This argument focuses on the wrong aspect of appellants conduct. As respondent correctly observes, "Whether or not appellant was involved from the outset and had Colbert make the call on his behalf, appellant most assuredly was involved when he became aware that Colbert was talking to a juror in his case and asked Colbert to influence that juror in his favor."
Viewed from the proper perspective, it is clear the courts ruling is supported by substantial evidence. At the motion for new trial, Colbert testified as follows, "Q. You indicated that Mr. Love, at some point in time made a statement to you if you could ask your stepfather if the stepfather could help out Mr. Love, is that correct? Did Mr. Love make a statement like that to you? [¶] A. Yes, he did. [¶] Q. Did he make the statement to you during this telephone conversation or afterwards. [¶] A. It was during the conversation on the phone." The trial court interpreting this testimony could reasonably conclude appellant invited the misconduct by actively soliciting the jurors help and therefore, that he should not be permitted to challenge the judgment on that basis. (People v. Hines, supra, 15 Cal.4th at p. 1054; People v. Williams, supra, 44 Cal.3d at p. 1156.) The courts ruling is supported by substantial evidence.
Furthermore, even ignoring the procedural barrier, we conclude the trial court did not err when it denied appellants motion for new trial.
While it is misconduct for a juror to receive information about a case from extraneous sources, (People v. Williams, supra, 44 Cal.3d at p. 1054) this type of misconduct is not necessarily prejudicial. "`The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. [Citations.] Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. [Citation.] The judgment must be set aside if the court finds prejudice under either test." (People v Yeoman (2003) 31 Cal.4th 93, 158; quoting In re Carpenter (1995) 9 Cal.4th 634, 653.)
We find no prejudice under either of these standards. First, the extraneous information that Colbert provided was not inherently likely to have influenced the juror. The thrust of Colberts comments were that appellant had not committed the murder and that he was being framed. Given the overwhelming evidence that appellant did commit the murder and the fact that appellants counsel did not seriously dispute appellants involvement in the crime, it is not likely that the juror placed any credence in Colberts statements.
We also conclude it is not likely the juror was actually biased. The information Colbert provided was favorable to appellant. He tried to convince the juror appellant was not guilty. Since any possible external influence would have benefited appellant, we find no reasonable likelihood that the juror was actually biased against him. (Cf. People v. Barton (1995) 37 Cal.App.4th 709, 717-719 [defendant not prejudiced where his uncle contacted a juror and urged him to vote not guilty].)
Appellant contends the misconduct was inherently prejudicial because the juror who was the object of the tampering would be offended either because of the corruption of the judicial process or because of the risk of compromise or criminality such corruption imposes on the juror himself. We find nothing in the record that indicates the jurors sense of justice was offended or that he was concerned about his own criminal exposure. In any event, we believe this argument vastly overstates the misconduct at issue. Colberts statements that appellant "didnt do that shit" and that he was "being framed" were brief and vague. While clearly improper, they were so contrary to the evidence that was presented at trial, it is unlikely that the juror gave them any significance. We find no likelihood of inherent prejudice.
B. Sentence Enhancement
The trial court sentenced appellant to 25 years to life based on the jurys finding that appellant intentionally and personally used a firearm and inflicted great bodily injury when committing the murder within the meaning of section 12022.53, subdivision (d). When appellant committed his crime in 1998, section 12022.53 subdivision (d) applied to "any person who is convicted of a felony specified in subdivision (a) . . . and who in the commission of that felony intentionally and personally discharged a firearm and proximately caused great bodily injury, as defined in Section 12022.7 . . . ." (Stats. 1997, ch. 503, § 3.) One felony specified in section 12022.53, subdivision (a)(1) was "Section 187 (murder)." (Stats. 1997, ch. 503, § 3.) However, section 12022.53, subdivision (d) was amended effective January 1, 1999, to add the words "or death" after the phrase "great bodily injury, as defined in Section 12022.7." (Stats. 1998, ch. 936, §§ 19, 19.5.) Appellant now contends the court could not validly impose the section 12022.53 subdivision (d) enhancement because it was based on the "or death" language added after the date of the murder.
Appellants argument is premised upon the assumption that the murder of Ishida did not constitute "great bodily injury" and would not have qualified for imposition of the enhancement in the absence of the "or death" language after the date of the crime. Appellants premise is baseless. (See People v. Valencia (2000) 82 Cal.App.4th 139, 143-149 [despite the absence of the words "or death," the original version of section 12022.53, subdivision (d) may nevertheless be used to enhance a murder conviction].)
By its terms, section 12022.53, subdivision (d) defined the term "great bodily injury" by reference to the language set forth in section 12022.7. Section 12022.7 in turn defined "great bodily injury" as "a significant or substantial physical injury." (See current § 12022.7, subd. (f).) We conclude a gunshot to the head is a great bodily injury within the meaning of this definition.
This conclusion is supported by the fact that when the Legislature amended section 12022.53 in 1998, it expressly stated: "[t]he amendment to subdivision (d) . . . is intended to be declaratory of existing law and to clarify that the enhancement in that subdivision applies to causing great bodily injury or death." (Stats. 1998, ch. 936, § 27.) The 1998 amendment was made during the same 1997-1998 Regular Session of the Legislature which had adopted the original statutory language using only the phrase "great bodily injury." The expression of legislative intent is therefore entitled to substantial consideration. (People v. Valencia, supra, 82 Cal.App.4th at p. 149.)
Appellant contends Valencia was wrongly decided. He points to other Penal Code sections in which both "great bodily injury" and "death" are used as evidence that the Legislature distinguishes those terms and thus could not have intended the original version of section 12022.53, subdivision (d) to include death. However, this argument ignores the plain language of section 12022.53, subdivision (a)(1) which expressly made the section applicable to murder cases. The Legislature could not have intended the section to apply to murder cases, but not intended it to apply to cases where the defendants use of a firearm caused death.
We conclude the court properly imposed the sentence enhancement.
III. DISPOSITION
The judgment is affirmed.
We concur: Simons, J. and Gemello, J.