Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA305712, Anita H. Dymant, Judge.
Meredith J. Watts, 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, Assistant Attorney General, Lance E. Winters and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
VOGEL, J.
Erik Mejia was convicted of one count of possession for sale of cocaine base, with true findings on allegations that he had suffered three prior drug convictions and served three prior prison terms. (Health & Saf. Code, §§ 11351.5, 11370, subds. (a), (c); Pen. Code, §§ 1203.07, subd. (a)(11), 667.5, subd. (b).) He was sentenced to state prison for a term of seven years. Mejia appeals, contending a mistrial should have been granted during jury selection and claiming there were instructional and evidentiary errors. We affirm the judgment.
FACTS
Los Angeles Police Officer Delila Vizcarra was working undercover when she was approached by 16-year-old Jose N. who asked, in Spanish, whether she was looking for something. In Spanish, she replied that she was “looking for a 20 of rock” ($20 worth of rock cocaine). Jose said he could get it for her and she walked with him down the street to a pay phone where Jose called Mejia, then reported to Officer Vizcarra that the drugs (five pieces of rock cocaine) would be delivered by car (and that Jose would keep one piece for himself). Officer Vizcarra gave Jose a $20 bill.
Within minutes, Mejia drove up in a Ford Taurus, Jose got into the car, and the two talked. Jose then got out of the car, Mejia drove off, and Jose told Officer Vizcarra that Mejia did not want to give him the drugs because he saw several police cars in the area. The officer told Jose she would look elsewhere for the drugs and he gave her back the $20. A few blocks away, Mejia was stopped by uniformed officers who searched him and the Ford -- and found $456 in small bills, a baggie containing 8.6 grams of rock cocaine, and a cell phone.
Mejia was arrested and charged as noted at the outset. At trial, the People presented evidence of the facts summarized above, plus Officer Vizcarra’s expert testimony (based on the amount of cocaine and the small bills) that the drugs were possessed for sale. The jury rejected Mejia’s defense (the money was for the purchase of a television, and neither the cell phone nor the car belonged to him) and convicted him as charged.
DISCUSSION
I.
Mejia contends the trial court should have granted his motion for a mistrial based on comments made during voir dire by two prospective jurors. We disagree.
A.
Juror G-7262 told the court during voir dire that she believed she “could not be a juror” in this case because her “close friends, several of them have been raped by Hispanic males. One of them had to go to the court system and prosecute.” In addition, she had been the victim of a hit-and-run and a 10-year old residential burglary (she wasn’t at home but found a crowbar on her bed when she returned). A friend was the victim of an armed robbery at a gas station, and Juror G-7262 herself had been treated unfairly by the police when they arrived at her house by mistake in response to a domestic violence call. Although the trial court told her this case did not involve rape or violence, the juror insisted she was “uncomfortable” and “fear[ed] for [her] life because of what [her] friends have gone through.” She was excused for cause.
Juror J-9290 said in response to questioning that he had been assaulted four months earlier by someone who had been convicted of drug-related crimes. The juror had spent several days in the hospital and believed the assault would affect his view of this case because the assailant’s “first offense was a drug-related crime, and my understanding is that he was treated rather leniently in the crime, and he went on to commit many other crimes, including one against me.” He said it was his opinion “that the court system is too much geared towards protecting the rights of defendants and not geared enough towards thinking about victims and what they might be going through.” He elaborated: “I have kind of been through the system a little bit in the last few months, and I have found that the police officers, the district attorney, the judges, they will not take any action . . . unless there is overwhelming evidence, essentially, against a defendant. . . .” (He was not excused at that point, although he was later dismissed for cause.)
Defense counsel’s motion for a mistrial based on the jurors’ comments was denied, the trial court rejecting the notion that the comments had tainted the jury pool, but the court allowed both sides to pose additional questions to the remaining jurors. When defense counsel asked the panel whether “anyone just feel like because we’re here sitting in the box with the judge and my client that he must have done something otherwise we wouldn’t be here,” several jurors (including Juror J-9290) raised their hands, and one panel member said there had “obviously” been “an incident” or they wouldn’t be there, but acknowledged that it was “possible that we are here because there was a misunderstanding.” Another panel member said, “I think if he had not done anything we wouldn’t be at this stage,” but said he would stay in a “neutral position” and agreed that someone could have been in the wrong place at the wrong time. Yet another juror said, “I think that where there’s smoke there’s usually some sort of fire.” Juror J-9290 was excused and replaced by Juror M-2800 who echoed the thought, stating “a person wouldn’t be here if . . . they didn’t do anything.” All of the jurors who made these comments were excused.
B.
We reject Mejia’s contention that the trial court abused its discretion when it denied his mistrial motion. (People v. Medina (1990) 51 Cal.3d 870, 889.)
Although the trial court has discretion to determine whether the bias of some jurors has contaminated the entire venire to such an extent that it must be discharged, there is no authority for the proposition “that such a drastic remedy is appropriate as a matter of course merely because a few prospective jurors have made inflammatory remarks. . . . [D]ischarging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venire persons would be insufficient protection for the defendant.” (People v. Medina, supra, 51 Cal.3d at p. 889.) On review in this context, we defer to the trial court because it was in a position to assess the demeanor of the venire and the individuals themselves. (People v. Thornton (2007) 41 Cal.4th 391, 414.)
The record does not support Mejia’s claim that the entire panel was tainted. To the contrary, it shows that the trial court admonished the prospective jurors at the beginning of voir dire that they “must always remember that the fact that a defendant has been charged with a crime is not to be considered proof that he committed that crime,” and later gave all the required instructions on the presumption of innocence and the burden of proof. All of the jurors who expressed a contrary view were excused, and there is nothing in the record to suggest that the remaining jurors disregarded the trial court’s admonishment and, instead, chose to believe the dismissed jurors’ patently biased opinions. We find no abuse of discretion.
II.
Mejia contends the trial court erred in instructing the jury according to a modified version of CALCRIM No. 418 because, claims Mejia, it “erroneously allowed the jury to find an on-going conspiracy to be proved in two inconsistent factual circumstances.” We disagree.
A.
At trial, Mejia objected to Officer Vizcarra’s testimony that Jose told her that Mejia said he had the cocaine but did not want to make the sale because there were too many police cars in the area. The trial court conditionally overruled the objection, relying on the coconspirator hearsay exception of Evidence Code section 1223 (the exception for statements made during the existence and in furtherance of a conspiracy) but finding that the jury could rely on the statement only if it found by a preponderance of the evidence that an ongoing conspiracy existed at the time Mejia made the statement. (People v. Herrera (2000) 83 Cal.App.4th 46, 60-61.) Accordingly, the trial court instructed the jury thus:
“In deciding whether the People have proved that the defendant committed the crime charged, you may not consider any statement made out of court by Jose . . . unless the People have proved by a preponderance of the evidence four things: [¶] One, that some evidence other than the statement itself establishes that a conspiracy to commit a crime existed when the statement was made. [¶] Two, that Jose . . . was a member of and participating in the conspiracy when he made the statement. [¶] Three, that Jose . . . made the statement in order to further the goal of the conspiracy. [¶] And four, that the statement was made before or during the time that the defendant was participating in the conspiracy.”
Mejia did not object to the instruction or request any modifications.
B.
There are at least two problems with Mejia’s challenge to this instruction.
First, his failure to object or request additional or different instructions forfeited his right to challenge the instruction on appeal. (People v. Kelly (1992) 1 Cal.4th 495, 536; People v. Ainsworth (1988) 45 Cal.3d 984, 1017.)
Second, the argument -- that it was “not clear from this instruction whether the jury was to find the statements admissible if they were made by Jose to Officer Vizcarra while [Jose] was still participating in the conspiracy, or if the statement in question was the one made by [Mejia] to Jose while [Mejia] was still participating in a conspiracy” -- fails on the merits. The instruction did not ask the jury to determine the “admissibility” of any evidence -- only to determine the facts (whether some evidence other than the statement to Jose itself established a conspiracy, whether Jose was a member of and participating in the conspiracy when he made the statement, whether Jose made the statement in order to further the goal of the conspiracy, and whether the statement was made before or during the time that Mejia was participating in the conspiracy.) It was clear that the jury could only consider Jose’s statements if it found these facts to be true. (People v. Martin (2000) 78 Cal.App.4th 1107, 1112 [instructions are interpreted when possible to support the judgment].)
III.
Mejia contends that, because the conspiracy was already over at the time Jose’s statements were made, they should not have been admitted. We disagree.
Mejia’s assumption -- that the conspiracy was limited to the crime of selling drugs to Officer Vizcarra -- is wrong. The evidence shows a continuing conspiracy to engage in drug sales to any willing buyer, and that is plainly what the jury found (as did the trial court at the time it conditionally admitted the testimony about Jose’s statements). (Evid. Code, § 1223; People v. Herrera, supra, 83 Cal.App.4th at pp. 59, 63 [a prima facie showing of a conspiracy for the purposes of admissibility of a coconspirator’s statement simply means that a reasonable jury could find it more likely than not that the conspiracy existed at the time the statement was made].) Uncontroverted evidence established that Jose called a “friend” after Officer Vizcarra inquired about buying drugs, that Mejia drove up within minutes of the phone call, that Jose got into Mejia’s car and talked to him, and that drugs and small bills were found in Mejia’s car. The only reasonable inference is that Mejia was the friend on the phone and appeared in response to Jose’s call for drugs for a customer. No more was required.
Mejia’s reliance on People v. Samuels (2005) 36 Cal.4th 96, 121, is misplaced. The hearsay declarant in Samuels told two people that the defendant had paid him to kill the victim, which he had done. Because the object of the conspiracy -- killing the victim -- was completed before the statements were made, the Supreme Court found that the statements were not in furtherance of the conspiracy. That rule has nothing to do with this case -- where there was an ongoing conspiracy to sell drugs to any willing buyer.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, Acting P.J., ROTHSCHILD, J.