Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA054472. Darlene E. Schempp, Judge. Reversed in part and affirmed in part.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Richard S. Moskowitz and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P.J.
Mauricio Eduardo Magana appeals from the judgment entered following a jury trial that resulted in his conviction of second degree murder (Pen. Code § 187, subd. (a)), during which he discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)), and in his admissions to having suffered a prior serious felony conviction (§ 667, subd. (a)) which also qualified as a strike under the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and to having served a prior prison term (§ 667.5, subd. (b)). He was sentenced to prison on his murder conviction to life with a 30-year minimum term, or double the 15-year minimum for his strike, plus 25 years to life for the firearm and five years for the serious felony enhancements. The court also imposed a one-year prior prison enhancement to be served concurrently with the firearm enhancement.
All further section references are to the Penal Code unless otherwise indicated.
Appellant contends the trial court committed prejudicial error in refusing to instruct on voluntary manslaughter and in denying his petition for disclosure of juror identification information. No error was committed.
We invited the parties to provide supplemental briefing on whether the concurrent prior prison term enhancement is an unauthorized sentence and whether the matter should be remanded to afford the trial court an opportunity either to strike the underlying prior prison term enhancement or additional punishment therefor (§ 1385) or require the one-year term be served consecutively. We have received their responses.
BACKGROUND
In accordance with the usual review standard (People v. Medina (2009) 46 Cal.4th 913, 919), the evidence established about 4:00 or 5:00 am. on December 29, 2006, Tina Valenzuela was shot once in the chest and died from a massive hemorrhage.
Earlier that evening, Valenzuela attended a gathering held by Kari Johnston, a close friend, in the latter’s garage-bedroom known as “the Happy Zone.” Valenzuela and Johnston smoked crack cocaine. Valenzuela later picked up Frank Orbin, Johnston’s boyfriend, after his work shift ended about 2:10 am. and drove back to the gathering. Johnny Hargrave, a good friend of Johnston’s, was present with appellant, known as “Duende,” whom Johnston met for the first time the day before.
When Orbin arrived, Johnston was asleep. Although he woke her, she fell back to sleep about 20 minutes later. Appellant was repairing his tattoo gun but mostly he just sat without speaking to anyone. Hargrove never saw appellant become annoyed or angry with Valenzuela. Hargrave, Johnston, and Orbin did not see appellant use any drugs that evening. Hargrave smoked crystal methamphetamine. He passed out and fell asleep on the couch about 30 to 40 minutes after Orbin’s arrival. Valenzuela and Orbin watched television until Orbin said goodbye to her and left about 4:30 am.
Sometime afterward, appellant, who appeared “hysterical,” nudged Hargrave awake and said they had to leave. Upon observing Valenzuela struggling to breathe and making jerking motions, Hargrave woke up Johnston and expressed his concern that Valenzuela might be having a heart attack or might have overdosed. Hargrave and appellant then left. Once outside, Hargrave asked what happened. Appellant responded, “‘She’s been shot.’” Meanwhile, Johnston asked Valenzuela, who was lying on her side, what was wrong. Valenzuela responded someone shot her.
About a month before the shooting, Hargrave befriended appellant. At some point, Hargrave acquired a.32- or.38-caliber Derringer, which was in a small bag along with a case of bullets. The bag then disappeared. Hargrave later observed appellant, who wanted a gun, with the bag, about a week before the shooting. The bullet recovered from Valenzuela’s body was a.32-caliber and might have been fired from a Derringer. Its physical attributes were identical to 28 live rounds recovered from appellant’s suitcase.
During a police interview, appellant admitted he had been “partying” at the “Happy Zone” with Hargrave, “the girl who owned the garage,” and “Tina.” He denied the bullets or other items in the suitcase were his.
Hargrave told Johnston appellant first stated he “didn’t mean to shoot that girl” but then acknowledged “she irritated him so bad that he just shot her.” Appellant explained Valenzuela had been getting on his nerves and he pulled out his gun. He shot her after she “laughed at him when he... pulled out the gun.” Johnston later told police that “a day or so after the shooting,” Hargrave related to her that as he and appellant left the garage-bedroom, appellant “broke down and said, ‘I shot her.’” When asked why, appellant responded he shot Valenzuela because she had made him mad and laughed at him when he pulled out the gun. He also said he got rid of the gun “somewhere on Hart Street near Winnetka.”
Appellant, who chose not to testify, presented evidence to show there was no blood at the scene nor a handgun and that Valenzuela never gave any names “or anything” about who shot her.
DISCUSSION
1. Voluntary Manslaughter Instruction Not Warranted
Appellant contends the trial court’s refusal to instruct on voluntary manslaughter is reversible error. The instruction was not warranted.
Murder is an unlawful killing with malice. (§ 187.) Voluntary manslaughter, a lesser included offense of murder, may be based on heat of passion, which negates malice. (People v. Lee (1999) 20 Cal.4th 47, 59.) “Heat of passion arises when ‘at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.’ [Citations.]” (People v. Barton (1995) 12 Cal.4th 186, 201, italics added (Barton).) “The defendant must actually, subjectively, kill under the heat of passion... [b]ut the circumstances giving rise to the heat of passion are also viewed objectively.” (People v. Manriquez (2005) 37 Cal.4th 547, 584 [heat of passion consists of “both an objective and a subjective component”].)
A trial court sua sponte must instruct the jury on lesser included offenses “‘when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.’ [Citation.]” (Barton, supra, 12 Cal.4th at pp. 194-195.) The “court need not instruct on a lesser included offense whenever any evidence, no matter how weak, is presented to support an instruction, but only when the evidence is substantial enough to merit consideration by the jury. [Citation.]” (Barton, supra, at p. 195, fn. 4; see also People v. Breverman (1998) 19 Cal.4th 142, 162 [court “not obliged to instruct on theories that have no such evidentiary support”].) “‘“[S]peculation is an insufficient basis upon which to require the giving of an instruction on a lesser included offense.”’ [Citations.]” (People v. Valdez (2004) 32 Cal.4th 73, 116.)
Appellant concedes “[n]one of the people present in the garage[-bedroom] that evening and who testified at trial saw the events which [led] up to the shooting” and “it is unclear what transpired between appellant and Ms. Valenzuela.” Nonetheless, he posits, “based on her prior conduct with Mr. Hargrave[], it is safe to assume that she teased and taunted appellant in a similar manner as she did with Mr. Hargrave[]” and that such taunts “probably tended toward sexual, controversial, or personal subjects.” (Italics added.) The fatal flaw in appellant’s position is the absence of evidence to support it. Speculation is not evidence, much less the requisite substantial evidence. (People v. Ramon (2009) 175 Cal.App.4th 843, 851.)
The only evidence bearing on appellant’s motive for shooting and killing Valenzuela arises from appellant’s statements that Valenzuela irritated him and when he pulled out his gun, she laughed at him. Appellant’s irrational, subjective belief that such laughter amounted to unacceptable disrespect is insufficient provocation to support instruction on voluntary manslaughter, and, as the trial court found, “the act of the victim laughing at [appellant] when he pulled out a gun is not even close to what a reasonable and prudent person would consider as a sufficient provocation to be considered a heat of passion or a sudden quarrel.” (People v. Lucas (1997) 55 Cal.App.4th 721, 739-740 [smirks, “dirty looks” insufficient provocation]; see also People v. Manriquez, supra, 37 Cal.4th at p. 586 [calling defendant a “motherf---er” and taunting victim to use weapon he claimed to have]; People v. Najera (2006) 138 Cal. App.4th 212, 226 [calling defendant a “faggot”].)
2. Denial of Disclosure of Juror Information Not Error or Abuse
Appellant contends the trial court committed prejudicial error in denying his petition for juror information. No error or abuse transpired.
In his petition, appellant sought disclosure of personal juror identifying information on the ground of juror misconduct.
The alleged misconduct was set forth in the declarations of appellant’s defense counsel, Donna Tryfman, and a defense investigator, Susan Stephans, neither of which was signed under oath, penalty of perjury.
At the hearing, Juror No. 2, a 22-year-old woman and the youngest panel member, testified she did not think there was enough evidence of guilt and initially leaned toward voting not guilty, as had two or three other jurors. She related some jurors were frustrated with her position. She felt intimidated because of her age and did not think she was experienced enough to be on the case, and she also felt that she was “being timed.”
Juror No. 2 testified frustration arose also because the male foreman spent so much time going over the instructions. She believed “everybody pretty much felt intimidated by” a white male juror who had a very strong personality and was very influential. He became very impatient, approached the board, and outlined what he thought had happened based on the prosecutor’s closing argument. When the male juror with a moustache asked why appellant had not taken the stand and remarked “[i]f I was [sic] innocent, I would be shouting it from the top of my lungs,” no other juror discussed his comments, which were made only after all jurors already had voted to convict appellant and was prompted only to make Juror No. 2 feel better about her vote.
Juror No. 2 thought the photograph used in closing argument made appellant appear to be “up to no good.” She added the jurors wondered about the reason why appellant was living on the streets. She noted a “skinny white lady” in the rear continually brought up unspecified matters not presented at trial.
Juror No. 2 acknowledged there was a “somewhat” fair exchange of views during deliberations and that she had been unable to describe a scenario consistent with appellant’s innocence when challenged to do so. She admitted the juror she characterized as intimidating never tried to usurp the foreperson’s role; the jurors did discuss the evidence, including various interpretations; she accepted the time line proposed by the others; and when she voted to convict appellant, her vote “was, in fact, [her] decision.”
In denying the petition, the trial court found appellant failed to make a prima facie showing for disclosure of personal juror identifying information. The court noted Juror No. 2 testified the comment regarding appellant’s failure to testify was made after the jurors had voted to return a guilty verdict.
“Upon the recording of a jury’s verdict in a criminal jury proceeding, the court’s record of personal juror identifying information of trial jurors... consisting of names, addresses, and telephone numbers, shall be sealed until further order of the court.” (Code Civ. Proc., § 237, subd. (a)(2).) The defendant may petition the trial court for access to this information. (Id. at subd. (b).) He must demonstrate the personal juror identifying information is “necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose.” (Code Civ. Proc., § 206, subd. (g).) Good cause for disclosure requires a showing sufficient to support a reasonable belief that juror misconduct occurred and further investigation is necessary to provide the trial court with sufficient information to rule on a defendant’s new trial motion. (People v. Carrasco (2008) 163 Cal.App.4th 978, 990.)
“Denial of a petition filed pursuant to [Code of Civil Procedure] section 237 is reviewed under the deferential abuse of discretion standard.” (People v. Santos (2007) 147 Cal.App.4th 965, 978; see also People v. Perez (1992) 4 Cal.App.4th 893, 906.) The exercise of the trial court’s broad discretion “must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316.)
No abuse of discretion arose in this instance. For the most part, Juror No. 2 testified regarding her own mental processes and her perception of other jurors’ mental processes during deliberations. These matters are not a proper basis for impeaching a jury’s verdict and therefore cannot support a new trial motion based on juror misconduct. (People v. Steele (2002) 27 Cal.4th 1230, 1261-1264; In re Stankewitz (1985) 40 Cal.3d 391, 397-398.) Her description of the heated, sometimes vehement, disagreements and conduct of the jurors fall well within the normal juror deliberation process rather than amounting to improper coercive deliberations. (People v. Johnson (1992) 3 Cal.4th 1183, 1255; People v. Keenan (1988) 46 Cal.3d 478, 541 & fn. 34; People v. Orchard (1971) 17 Cal.App.3d568, 574.)
Juror misconduct arises when jurors during deliberations discuss a criminal defendant’s decision not to testify in violation of the trial court’s express instruction not to do so. (Cf. People v. Loker (2008) 44 Cal.4th 691, 749; People v. Hord (1993) 15 Cal. App.4th 711, 724-725.) This did not transpire here. Juror No. 2 specifically acknowledged the comment about appellant’s not testifying was made only after the jury unanimously reached a guilty verdict.
3. Remand for Resentencing on Prior Prison Term Mandated
“[W]here the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony.” (§ 667.5, subd. (b), italics added.)
At sentencing, the trial court sentenced appellant on his murder conviction to 30 years to life, plus 25 years to life for the firearm enhancement. The court also sentenced him to serve five years for the prior serious felony enhancement (§ 667, subd. (a)) and to one year on the prior prison term finding, which the court ordered to “run concurrent” with “the 667(a)(1)” sentence.
As the parties concede, the trial court committed unauthorized sentencing error by imposing a concurrent one-year prior prison term enhancement. (People v. Scott (1994) 9 Cal.4th 331, 354 [sentence is “unauthorized” where it could not be lawfully imposed under any circumstances in the case].) The matter thus must be remanded for the trial court to strike the prior prison term enhancement or additional punishment therefor in accordance with section 1385 or impose the one-year prior prison term consecutive to the other prison terms imposed. (People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)
DISPOSITION
Appellant’s sentence is reversed and the matter is remanded for resentencing by either striking the one-year prior prison term enhancement (§ 667, subd. (a)(1)) or imposing it consecutively with the other prison terms. In all other respects, the judgment is affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.