Opinion
B297330
09-29-2020
THE PEOPLE, Plaintiff and Respondent, v. CHAD BRANDON MCZEAL, Defendant and Appellant.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Roberta L. Davis, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA072162) APPEAL from an order of the Superior Court of Los Angeles County, Shannon Knight, Judge. Affirmed. Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Roberta L. Davis, Deputy Attorney General, for Plaintiff and Respondent.
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A jury convicted defendant and appellant Chad Brandon McZeal of first degree murder (Pen. Code, § 187, subd. (a) [count 1]); attempted murder (§§ 187, subd. (d), 664, subd. (a) [count 2]); possession of a firearm by a felon with three prior convictions (§ 29800, subd. (a)(1) [count 3]); and unlawful possession of ammunition (§ 30305 subd. (a)(1) [count 4]). The jury further found that all four counts were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(A) [counts 3 & 4] & (C) [counts 1 & 2]). With regard to counts 1 and 2, the jury found that appellant personally and intentionally discharged a firearm, causing great bodily injury or death (§ 12022.53, subds. (b)-(d)), and that a principal personally and intentionally discharged a firearm, causing great bodily injury or death (§ 12022.53, subds. (d), (e)(1)).
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant was sentenced to a total of 90 years to life, as follows: 25 years to life on count 1, plus 25 years to life for the firearm enhancement; a consecutive term of 15 years to life on count 2, plus 25 years to life for the firearm enhancement. The sentence on count 3 was ordered to run concurrently with the other terms, and the sentence on count 4 was imposed and stayed pursuant to section 654.
On appeal, appellant contends that (1) the trial court's refusal to dismiss a juror was prejudicial error; (2) there was insufficient evidence to establish identity; and (3) the trial court erred when it refused to instruct the jury on voluntary manslaughter. We reject all of these contentions, and affirm.
FACTS
Prosecution
The Incident
On June 4, 2017, appellant was driving a purple Mercedes Benz, which had a large dent on the side, to his aunt's house. He had three passengers: Brijae Wilcher, Tabatha Hardison, and a man named "Chris." Appellant's aunt lived on the east side of Yaffa Street. Appellant parked across the street, and went to talk to his aunt while the others stayed in the car.
Anthony Evans lived on the west side of Yaffa Street. Evans noticed appellant's parked car in front of his driveway. He asked the occupants why they were parked there. Chris exited the car, and began arguing with Evans.
Micah Riley's house was south of Evans's home. Riley and his cousin Trevor Jerome Anderson approached the arguing men. Evans told Riley the men in the car were trying to "jump" him. Riley assured Evans that he would not let that happen. Appellant returned to his car, and joined the argument between Chris, Anderson, and Riley. Riley and Anderson challenged appellant to a fight, but neither appellant nor Chris appeared eager to enter into a physical altercation.
Evans told Riley to go inside. When Riley refused, Evans went inside. Appellant's aunt came outside and told appellant to leave. Appellant pointed at Anderson and said either "I'll see you later," or "I'll be back." Appellant got in his car and drove away.
After appellant left, Riley obtained a gun. Anderson called his younger brother Andre and relayed what had happened. Andre came to Anderson's house and the two of them stood on the corner in front of Riley's house.
Appellant dropped off Wilcher and Hardison. He returned to Yaffa Street, suddenly walked up to Anderson and Andre at the corner, and shot Anderson in the arm. Anderson fled. Appellant then shot Andre multiple times, killing him. Riley was inside his house when the shootings occurred, and did not witness them.
Anderson called Riley, and said, "He came back, bro. Bro, he came back. They shot us. I think my brother's dead," and, "They came back shooting."
After the shooting, Riley told Anderson that the driver from the first altercation was associated with the Nation of Islam. Someone told Anderson the shooter's name was Brandon. Anderson searched Facebook for people named Brandon associated with the Nation of Islam. When he saw a photograph of appellant in a tuxedo, he recognized him as the shooter.
The Investigation
Anderson identified appellant as the shooter from a photographic lineup. Anderson and Riley both identified appellant as the shooter in court.
Law enforcement obtained surveillance video from security cameras at two nearby homes. The videos depict a dark Mercedes driving southbound on Yaffa Street, away from Riley's house, and turning left onto the next cross street, at 6:49 p.m. on the evening of the shooting. A large dent can be seen on the rear driver's side door of the car. At 7:07 p.m., the same car can be seen driving toward Riley's house. The dent on the rear driver's side door is again visible. The videos show the driver parking on a side street, exiting the car, and walking away. Another man then exits the passenger side of the car and gets into the driver's seat. The original driver then runs toward Riley's house. There are gunshots, and the shooter runs to the driveway of Riley's house. The shooter then runs away from Riley's house, toward the Mercedes. At 7:10 p.m., the car drives away. The dent on the rear driver's side door is visible.
The videos were played for the jury at trial.
As confirmed by DMV records, photographic evidence, and the surveillance videos, appellant owned a blue 2008 Mercedes-Benz with a large dent on the rear driver's side door. The dent was consistent with the dent on the car in the video. The hubcaps on appellant's car were also consistent with the hubcaps on the car in the video.
Seven expended .40-caliber cartridge casings were found strewn across Yaffa Street.
Phone records for Wilcher's, Hardison's, and appellant's phones were consistent with the three having been near Riley's house around 6:15 p.m., appellant driving the female passengers to Hardison's house around 6:53 p.m., and appellant driving back to Riley's house just before the shooting.
Defense
Dr. Mitchell Eisen testified on behalf of appellant as an expert on the validity of eyewitness identification. Dr. Eisen acknowledged that some eyewitness identifications are "[a]bsolutely" correct, but the finders of fact "should evaluate each case on its merits based on what is known in the context of the entire case."
DISCUSSION
Trial Court's Refusal to Dismiss a Juror
Appellant first argues that the court abused its discretion when it refused to dismiss a juror who requested to be dismissed and appeared to be in distress. We reject this contention. The record demonstrates that there was not good cause to dismiss the juror. The court made reasonable accommodations and was able to address each of the juror's concerns, and the juror stated that she would be able to remain fair and decide the case based on the evidence.
Proceedings
The jury was sworn in on February 25, 2019. After the lunch break on February 28, 2019, the court said that it knew Juror No. 12 had "an issue," which it would address at the end of the day. After the court excused the other jurors for that day, the court told Juror No. 12 that it had received her note. The court told the juror, "I wasn't clear as to whether it was on a particular day that you were having an issue or what the exact problem is and what your request is at this time."
Juror No. 12 explained that her husband was leaving the country on March 14. She and her husband were both self-employed. Her husband was the "breadwinner." During the trial, her husband had been caring for their two children. She had not been able to work. Customers were going to her office even though it was closed because her business was on a "walk-in basis." She felt stressed because her husband had to "come up with rent for March and for April," and she had to pay for her office's lease. She also had to miss a doctor's appointment for a brain scan, and she was worried that she might have a tumor.
The court noted that Juror No. 12 appeared emotional and had begun to cry. The court then reminded Juror No. 12 that it had advised the prospective jurors to tell the court about any pressing appointments or hardships. The court asked her why she had not mentioned any of these issues during jury selection. Juror No. 12 explained that she had already had the brain scan; she just needed to go in for the results. She had an appointment to do this in April, but the medical office had called a day or two ago to say there was an earlier opening. The court responded that it would break early to accommodate her appointment. The court reassured Juror No. 12, "That's absolutely not a problem."
With regard to Juror No. 12's husband's trip outside the country, the court stated it was highly unlikely the trial would not conclude by March 14, because trial was proceeding ahead of schedule. The court said, "[W]ith regard to the work issue and things like that, the problem, ma'am, is it's a different standard. If you let us know ahead of time before you are selected, it is much easier to let you go then than now that you are a sitting juror."
Outside the juror's presence, the court informed counsel that "at this point I can't really excuse her without, you know, good cause and without a finding that she's not able to fulfill her obligation as a juror."
The next morning, March 1, 2019, the court told counsel, "I think that [the] issue [with the doctor's appointment] ultimately was resolved. I advised [Juror No. 12] if she could get an appointment, we could accommodate her appointment. And so hopefully that is no longer an issue. [¶] It seemed that she was more concerned with regard to a loss of income. [¶] . . . [¶] So at this point the problem is that I really can't excuse her under the law unless she indicates that she is no longer able to fulfill her obligations as a juror. This is a much higher standard now that she is a sworn juror as opposed to, you know, during the process of jury selection."
When Juror No. 12 arrived, she informed the court that she had scheduled her medical appointment for 4:00 p.m. that day. The court responded that it would break early for the day so she could go to her appointment. Upon the court's inquiry, Juror No. 12 assured the court that she could still be fair to both sides and base her verdict only on the evidence presented in court. Regardless, Juror No. 12 requested to be excused because her husband had to leave the state on March 14 to deal with issues related to his visa. His lawyer wanted her to obtain a transcript from the IRS office, which she needed to get in person.
The court explained the case would likely conclude on the same week that it was submitted to the jury, so the juror would have time to obtain the transcript. If deliberations lasted longer, the court would delay deliberations for a whole morning or even a whole day for the juror to go to the IRS office. The court said, "I mean because I don't want that to weigh on your mind. You know, we'll give you the time to get that. [¶] Like I said, I think you will be done by then. But even if deliberations are still ongoing, we will stop what we're doing and give you the time to make sure that you get that so that you are not worried about that."
The juror said she still wanted to be excused because she had been unable to work. She explained that she was unable to work remotely or after court. The court said it could have court sessions start later or end early to assist the juror, but cautioned that reducing the daily hours could extend the days the case continued.
Outside the juror's presence, the court again said that it "did not see any legal ground to excuse [Juror No. 12]." Defense counsel argued that Juror No. 12 should be excused because she was not candid with the court regarding these hardships during voir dire. Defense counsel also argued that the juror should be excused because she had "pressing needs" that might cause her to "go with the flow" and decline to be a holdout juror.
The court found that its accommodation of Juror No. 12's medical appointment, as well as time to get the IRS transcript, "set her mind at ease." The court said if the juror had health issues related to her brain scan, it would reconsider the issue. The court said, "Her main focus really did seem to be that she's missing out on clients, but she did say very clearly that she could still be fair to both sides, that she would base her verdict only on the evidence. And so I don't believe that she's in a position where she is unable to fulfill her duties as a juror at this time." The court also found that Juror No. 12 was not deliberately deceptive during voir dire. The juror explained that she thought she was going to have an assistant at work, and the IRS transcript issue was unanticipated. The court concluded that "at this time I don't believe that there is adequate cause to excuse her, so she will remain."
The case was submitted to the jury for deliberations at 4:28 p.m. on March 6, and the jury reached a verdict at 10:50 a.m. on March 7.
Analysis
"Section 1089 provides in relevant 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, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged . . . .' 'The . . . ultimate decision whether to retain or discharge a juror . . . rests within the sound discretion of the trial court. [Citation.] If any substantial evidence exists to support the trial court's exercise of its discretion pursuant to section 1089, the court's action will be upheld on appeal.' (People v. Bradford (1997) 15 Cal.4th 1229, 1351.) 'The juror's inability to perform must appear as a "demonstrable reality" and will not be presumed.' (People v. Lucas [(1995)] 12 Cal.4th [415,] 489.)" (People v. Sattiewhite (2014) 59 Cal.4th 446, 485-486.) Pursuant to section 1089, a trial court may discharge a juror if it finds the juror is unable to perform his or her duty. We review the trial court's dismissal of a juror for abuse of discretion and will uphold the trial court's decision if it is supported by substantial evidence. (People v. Marshall (1996) 13 Cal.4th 799, 843.)
Here, substantial evidence supports the trial court's decision not to discharge Juror No. 12, as good cause to discharge her does not appear as a demonstrable reality in the record. When the juror expressed concern regarding the results of her brain scan, the court concluded the proceedings early to allow her to go to her doctor's appointment. In response to the juror's concern about obtaining documents for her husband, the court assured the juror that it would schedule trial to accommodate her. Finally, with respect to the juror's financial concerns, the court offered to commence proceedings later in the day or conclude early, so that the juror could do some work during normal business hours. Moreover, although she requested to be removed from the jury, Juror No. 12 confirmed that she could perform her duties fairly and base her verdict on the evidence alone. The court did not abuse its discretion in declining to discharge her.
Substantial Evidence of Identity
Appellant next contends that there was insufficient evidence to support the jury's finding that he was the shooter. Appellant questions Anderson's credibility as a witness due to his prior convictions, his former gang membership, and his initial refusal to cooperate during trial. He additionally argues that Anderson's photographic identification of him was flawed because Anderson had previously seen a picture of appellant on Facebook. We reject these arguments as impermissible attempts to persuade us to evaluate witness credibility and re-weigh the evidence, which we will not entertain on appeal.
When reviewing for sufficiency of the evidence, we consider "'"'the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'"' [Citation.]" (People v. Casares (2016) 62 Cal.4th 808, 823 (Casares), disapproved of on another ground in People v. Dalton (2019) 7 Cal.5th 166, 214; People v. Clark (2011) 52 Cal.4th 856, 942-943.) "'The standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence.' (People v. Bean (1988) 46 Cal.3d 919, 932.) '. . . [I]t is the jury rather than the reviewing court that weighs the evidence, resolves conflicting inferences and determines whether the People have established guilt beyond a reasonable doubt.' (People v. Yeoman (2003) 31 Cal.4th 93, 128.)" (Casares, supra, at p. 823.) "Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." (People v. Jones (1990) 51 Cal.3d 294, 314.)
Here, the People presented substantial evidence to establish appellant's guilt. In court, Anderson identified appellant as the shooter, and both Riley and Anderson identified appellant as the driver in their encounter prior to the shooting. There was evidence presented at trial that appellant owned a dark Mercedes with damage to the rear driver's side door, which matched the vehicle and vehicle damage depicted in surveillance video taken from the area where the shooting occurred. Evans, Riley, and Anderson each testified that after engaging in a verbal altercation with appellant, he threatened to return. Phone records, surveillance video, and witness testimony were consistent with the Mercedes leaving the area and returning shortly thereafter. Appellant was identified as the driver in the first encounter, and the video showed the same driver in the second encounter exiting the car, followed by the sound of gunshots. The jury was aware of potential credibility issues pertaining to Anderson's prior convictions, gang membership, and his initial refusal to cooperate during trial. It was also aware that Anderson viewed the photograph of appellant on Facebook before making the photographic identification of appellant to law enforcement officers. The jury had all of the information it needed to determine the effect of these factors on Anderson's credibility as a witness, and to assess the accuracy of his identification. We will not second-guess its findings. (See Casares, supra, 62 Cal.4th at p. 823 ["'it is the jury rather than the reviewing court that weighs the evidence'"].) Substantial evidence supports the jury's finding that appellant was the shooter.
Voluntary Manslaughter Instruction
Finally, appellant argues that the trial court erred in refusing to instruct the jury regarding voluntary manslaughter as a lesser charge. We conclude that the trial court did not err because there was not substantial evidence to support the instruction, but that regardless, he cannot establish prejudice.
Legal Principles
"[A] trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present." (People v. Lewis (2001) 25 Cal.4th 610, 645.) "Conversely, even on request, a trial judge has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction." (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense . . . . [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) Evidence is substantial for this purpose if it could cause a jury of reasonable persons to conclude that the defendant committed the lesser but not the greater offense. (Ibid.)
"'Murder is the unlawful killing of a human being with malice aforethought. (See § 187, subd. (a).) A murder, however, may be reduced to voluntary manslaughter if the victim engaged in provocative conduct that would cause an ordinary person with an average disposition to act rashly or without due deliberation and reflection.' [Citation.] [¶] Heat of passion has both objective and subjective components. Objectively, the victim's conduct must have been sufficiently provocative to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.] . . . [¶] Subjectively, 'the accused must be shown to have killed while under "the actual influence of a strong passion" induced by such provocation. [Citation.]' . . . [Citation.]" (People v. Enraca (2012) 53 Cal.4th 735, 758-759 (Enraca).) "'"[I]f sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter. . . ." [Citation.]' [Citation.]" (People v. Moye (2009) 47 Cal.4th 537, 550.)
"Generally, it is a question of fact for the jury whether the circumstances were sufficient to arouse the passions of the ordinarily reasonable person. [Citations.] However, where the provocation is so slight or so severe that reasonable jurors could not differ on the issue of adequacy, then the court may resolve the question." (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1705.)
The trial court's refusal to instruct on a lesser included offense generally is subject to harmless error review as articulated in People v. Watson (1956) 46 Cal.2d 818 (Watson). (Breverman, supra, 19 Cal.4th at pp. 176-177.) Under this standard, reversal is required only if it is reasonably probable the jury would have returned a different verdict absent the error or errors committed by the trial court. (Watson, supra, at pp. 836-837.)
Analysis
The trial court denied appellant's request for an instruction on voluntary manslaughter because there was not substantial evidence to support giving voluntary manslaughter or attempted voluntary manslaughter instructions. On this record, we cannot conclude that the trial court erred.
The evidence presented at trial did not establish adequate provocation to arouse the passions of an ordinarily reasonable person. The initial altercation was a mere verbal dispute about why appellant parked in front of Evans's house. This was not sufficient to cause an ordinary person of average disposition to act rashly. (See, e.g., Enraca, supra, 53 Cal.4th at pp. 743, 759 [victim's "'talking all sorts of shit'" to rival gang members insufficient provocation]; People v. Manriquez (2005) 37 Cal.4th 547, 585-586 [calling the defendant a "'mother fucker'" and taunting him to use a weapon were "plainly . . . insufficient" to constitute provocation]; People v. Najera (2006) 138 Cal.App.4th 212, 226 [using a gay slur was insufficient evidence of provocation]; People v. Lucas (1997) 55 Cal.App.4th 721, 739-740 [calling the defendant names, giving him dirty looks, and smirking at him was insufficient evidence of provocation].)
Moreover, sufficient time had elapsed between the altercation and the shooting for appellant's anger to subside. Appellant ended the argument, left the scene, and drove the female passengers home before returning and shooting his victims. He had more than enough time to reflect on his course of action. That there was a sufficient cooling-off period was further substantiated by Wilcher and Hardison's testimony that appellant was calm and did not appear to be angry about the altercation. The trial court did not err by failing to instruct the jury on voluntary manslaughter.
Finally, the jury had the opportunity to find appellant guilty of second degree murder, but did not. "[Its] finding of premeditation and deliberation is 'manifestly inconsistent with [appellant] having acted under the heat of passion' and nullifies any potential for prejudice . . . . [Citations.]" (People v. Franklin (2018) 21 Cal.App.5th 881, 894.)
DISPOSITION
The trial court's judgment is affirmed.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.