Opinion
A129360
10-28-2011
THE PEOPLE, Plaintiff and Respondent, v. JUAN JOSE HERNANDEZ MENDOZA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Napa County Super. Ct. No. CR119013)
Defendant Juan Jose Hernandez Mendoza stabbed a man to death and confessed to the killing. He was charged with first degree murder and with personal use of a deadly weapon, a knife, in the commission of the crime. (Pen. Code, §§ 187, subd. (a), 12022, subd. (b).) At trial, defense counsel requested jury instructions on voluntary manslaughter based upon heat of passion and imperfect self-defense (CALCRIM Nos. 570, 571), an instruction that provocation may reduce a murder from first degree to second degree (CALCRIM No. 522), and a modification to the instruction defining the elements of first degree murder (CALCRIM No. 521) to add a reference to heat of passion, among other things. The court refused the provocation and voluntary manslaughter instructions as unsupported by the evidence and likewise refused the requested modification to the standard instruction on murder. The jury convicted defendant as charged, with first degree murder and personal use of a deadly weapon. The court sentenced defendant to 25 years to life in prison for the murder, plus one year for use of a deadly weapon.
Defendant appeals. He claims the trial court erred in refusing his requested jury instructions, and that there is insufficient evidence to support his conviction for murder in the first degree. Defendant also raises an issue concerning the trial court's refusal to reopen jury selection after a seated juror volunteered information that she was familiar with several law enforcement officers uninvolved in the case being tried. We find sufficient evidence to support the conviction and no error in the trial proceedings. We affirm the judgment.
I. FACTS
It is not clear why defendant killed the victim—a man he did not know who was giving him a ride. Defendant alone survived the chance encounter, and he cannot or will not say why he stabbed the man to death. What is clear is that defendant armed himself with a knife, used it to stab the victim multiple times, and later disclaimed any aggression by the victim.
The police tracked defendant's movements on the night of the stabbing. At around 10:30 p.m. on August 3, 2003, defendant was at a Napa supermarket. A Latino matching defendant's physical description was recorded on the store's video surveillance cameras, and transaction records show the purchase of a five-inch knife in the same time period. A shopper leaving the store, Joan Rich, saw defendant as she was leaving the store around 10:30 p.m. Defendant was looking for a ride. Rich saw defendant talking to a woman as the woman walked to her car in the store parking lot and, when that woman entered her car and drove away, defendant approached Rich. Defendant spoke little English, and Rich spoke little Spanish. Communicating with "[b]roken English, broken Spanish" and "gestures," Rich thought defendant wanted a ride to the town's Wal-Mart, located on Soscal Street. Rich's son worked at Wal-Mart and was scheduled to get off work soon. Rich agreed to drive defendant there, figuring she could pick up her son at the same time.
Defendant walked with Rich to her car and got in the passenger side. As they drove, Rich telephoned her son's girlfriend and told her she did not need to pick up Rich's son because Rich was going to Wal-Mart. Once inside the closed car, Rich noticed that defendant smelled of alcohol. Defendant did not display any behavior associated with intoxication—like stumbling, slurred speech, or impaired movement— but he "stunk" of alcohol. Rich asked defendant if he had been drinking and he said no. Rich asked him his name, and he gave his true name: Juan Hernandez Mendoza. Rich asked him if he had family in the area and if he worked, and he said no to both questions. Rich noticed that defendant's intonation was flat, with no inflection and no emotion.
Rich arrived at Wal-Mart's location, but defendant gestured for her to drive straight ahead down Soscal Street, past Wal-Mart. Rich did so, "thinking that perhaps he lived farther down Soscal" Street. Rich reached the end of the street, turned onto another, and defendant kept gesturing for her to keep driving forward. Rich had driven about 10 minutes away from downtown and "wasn't going any farther." Rich pulled over in "a well lit place" and spoke to her son's girlfriend on the telephone. The son's girlfriend was with her father, Ramon, who speaks Spanish. Rich and defendant both spoke with Ramon on the telephone. While speaking on the telephone, Rich drove back downtown and parked across from the police station. Defendant continued to speak with Ramon on the telephone. Defendant's demeanor changed. He became insistent and "pushy," his voice grew stronger, and he kept saying "porque, porque," which is Spanish for "why." The telephone call lasted 20 minutes. Finally, defendant left the car and walked down First Street. It was about 11:10 p.m.
Ten minutes later, at 11:20 p.m., a man later identified as defendant approached a taxi in downtown Napa. The taxi driver, Ronnie Field, did not speak Spanish and could not understand where defendant wanted to go. Defendant pointed in the direction he wanted to go, and Field thought he wanted to go toward Yountville, north of Napa. Field collected a $22 flat fee and drove toward Yountville. At some point, defendant told the driver his name was Juan. As she drove to Yountville, defendant was "quiet, nervous, shifting." He shifted in his seat and chewed on his thumbnail. He smelled of alcohol, but Field never saw defendant stagger or stumble.
The taxi reached Yountville in about 20 minutes, and defendant pointed the driver off the freeway, then in the general direction of the Veterans Home. Field did not know where defendant wanted to go; defendant just kept pointing forward and to the top of the hill. Field decided to stop at the guard shack of the Veterans Home to see if a guard spoke Spanish and to get directions. Field had asked directions of the Veterans Home security guards previously.
Three people were standing outside the guard shack, talking, when the taxi arrived. One of them was Manuel Reyes, a Veterans Home security guard and the man defendant later stabbed. Reyes wore a uniform but was unarmed—he had no firearm or Taser. Reyes was accompanied by Sol Daniels, a Veterans Home dispatcher, and Janice Ericsson, Reyes's fiancée. Ericsson had gone to the Veterans Home with a dinner to share with Reyes, and had joined in about 15 minutes of conversation with Reyes and Daniels before the taxi arrived.
Reyes stepped up to the taxi when it arrived and the driver, Field, asked him if he spoke Spanish. Reyes said yes, and offered his assistance. Field told Reyes that she was "trying to get this young kid home" but did not know where he lived and requested that Reyes ask defendant. Reyes spoke to defendant in Spanish for a few minutes. Reyes told Field that he knew where defendant was going. Field asked Reyes to provide directions, and Reyes offered to drive defendant himself. At trial, Field did not remember if Reyes named defendant's destination but, in a pretrial interview, Field told an investigator that Reyes stated that the defendant's destination was "hard to get to" and was called "something like Pelucci Ranch." Field, upon receiving Reyes's offer to drive defendant, told defendant to "go ahead and get out and go with the guard." Defendant hesitated and " 'looked as though he didn't want to get out' " of the taxi but then exited the taxi and walked away with Reyes. Field testified at the preliminary hearing that defendant had " 'looked nervous the whole trip' " and " 'still appeared a little nervous' " when he exited the taxi and went with Reyes.
At that time, defendant was 24 years old.
Later investigation revealed that defendant worked as a vineyard field laborer from April to July 2003. The events related here occurred on August 3, 2003.
Reyes told his fiancée Ericsson that he was going to take defendant "where he wanted to go." Ericsson asked where Reyes was going and he said "towards the outskirts of Yountville" and that he would be "right back," returning "within 15 minutes." Reyes and defendant entered a security vehicle with the Veterans Home logo and a roof-top light bar. The dispatcher, Daniels, logged the vehicle's departure at 11:45 p.m. Daniels wrote in the log that Reyes was "exercising vehicle off grounds" and did not report that Reyes was assisting someone with a ride, because he did not want Reyes to "get into trouble" for using the vehicle for unofficial business.
Reyes drove about three and a half miles north of the Veterans Home to the Oakville Grade, which is a winding, quiet rural mountain road connecting Napa and Sonoma Counties. He proceeded up the Oakville Grade. A man driving home from work, Mark Little, saw Reyes's vehicle. Little was stopped alongside the road making a telephone call before driving up the mountain grade where reception is poor. Little noticed Reyes's car as it passed because it was "unusual-looking," like "some kind of police cruiser" with headlights illuminated but no "running lights" around the car. Reyes's car was "moving fast," about 55 miles per hour. Little completed his telephone call and proceeded up the Oakville Grade, about ten minutes after Reyes drove past. Several miles up Oakville Grade at the intersection with Dry Creek Road, Little found Reyes's car crashed into a tree. Reyes's body was on the side of the road in a pool of blood. The crash site was 7.3 miles from the Veterans Home.
Reyes did not die from the crash; he died from multiple stab wounds to his torso. An autopsy revealed four fatal wounds: one in the right upper chest that penetrated the lung, and three that penetrated the liver. Reyes suffered three additional stab wounds to the torso, a deep slash above the right knee, and cuts to his hands and arms that appeared to be defensive wounds incurred by a victim trying to block a knife from reaching more vital parts of the body. All the stab wounds to Reyes's torso were on his right side.
An investigation of the crime scene found that the windshield on the passenger side of the vehicle had "spider marks," indicating that an unrestrained passenger struck the inside of the windshield. No passenger was located. The police recovered a blood- stained knife from the floorboard of Reyes's vehicle. Reyes's wounds were consistent with that knife, and the blood on the knife matched Reyes's genetic profile. The knife had a five-inch, single edge blade and was the same model as the knife sold about an hour before the stabbing at the Napa supermarket where defendant was seen. The police also recovered a baseball style hat just outside the driver's side door. The hat was tan and black with the golf equipment brand Titleist embroidered across the front. A witness testified that the hat was the same as those worn at the golf course restaurant where he worked, and that he had given his hat to defendant. Genetic material extracted from the hat's sweatband matched defendant.
A forensic scientist expert in blood stain pattern interpretation, John Thorton, reconstructed the crime scene. There was a lot of blood on the driver's side of Reyes's vehicle, and blood had been projected onto the interior windshield and the left side of the hat recovered from the scene. The pattern of the blood stains led Thorton to opine that Reyes was stabbed inside the vehicle by the front seat passenger wearing the hat, while the vehicle was moving. Thorton also noted that there were blood smears on the exterior of the vehicle, indicating that the fatally wounded Reyes exited the vehicle and walked around it before collapsing on the ground.
Defendant fled Napa County and was not located until March 2008, almost five years after the stabbing. Sergeant Oscar Ortiz of the Napa County Sheriff's Office interviewed defendant in Spanish on March 18, 2008. At the start of the interview, defendant gave a false name and denied ever being in Napa County. Later, he confessed to stabbing Reyes with a knife. But defendant said he could not remember the details of the killing. When asked "[w]hy did you do this?," defendant said "I honestly don't know. The honest truth is I don't know why."
Defendant was located in Oregon where he was arrested and later convicted on charges of child sodomy and sexual abuse. (Or. Rev. Stat. §§ 163.405, 163.427.) Defendant's arrest and conviction were not disclosed to the jury.
Sergeant Ortiz tried to lead defendant through the events of the day but defendant provided few details. Defendant said he remembered drinking beer and smoking marijuana at a friend's house but could not remember the names of anyone there. At some time during the night, he left the house and "th[ought]" he "headed for the little downtown area in Napa" but did not know why. Defendant remembered talking to a lady, and later a man with a star on his shirt who offered him a ride. Defendant did not remember why he asked for a ride or where he wanted to go. Defendant was asked if he was going to the "Pelosi Ranch," a workers' camp near Yountville. Defendant said he was familiar with the ranch but did not think he was headed there because he did not "really get along with the people that were there." Defendant insisted: "I don't remember where I was headed to." Defendant remembered sitting in the front seat of the vehicle with the victim but did not remember "where we went, how far we got." Defendant only remembered "going on a highway where it was all just bushes and pines."
Defendant says he "th[ought]" he stabbed Reyes two or three times but did not know why. Defendant did not remember Reyes saying or doing anything hostile to him before the knife attack. Sergeant Ortiz asked defendant "What was it that this old man said that made you, made you snap?" Defendant said he did not remember anything. Sergeant Ortiz raised the point again, and asked defendant "what did [Reyes] do to you?" Defendant answered "I think he didn't do anything to me." Sergeant Ortiz said: "He didn't do anything bad to you, right?" Defendant answered: "No. [T]he thing is, what I think is that when he was taking me, I don't know what highway we were on, I don't know, right, I think that for me to do that, I think that he must've told me that he wouldn't take me any further, or that he was going to go back, or [not] be able to go beyond that, I don't know. And since we were in the middle of the boonies I think that that's what led me to do that. I can't, can't find any other explanation, honestly." Sergeant Ortiz asked. "You got mad?" and defendant answered, "Well, the way I was so drunk, and, and high on drugs. I think that that's what led me to do that. I can't find any other explanation." Defendant said "I am—a good person" and if he "had been in [his] right mind [he] never would've done it."
The victim Reyes's age is unstated but it is noted that he was a grandfather.
II. INSTRUCTIONS AND VERDICT
The jury was instructed on first and second degree murder, and told that it could consider evidence of voluntary intoxication in deciding whether defendant acted with deliberation and premeditation necessary for a first degree murder conviction. (CALCRIM Nos. 521, 625.) Defense counsel had also requested jury instructions on voluntary manslaughter based upon heat of passion and imperfect self-defense (CALCRIM Nos. 570, 571), an instruction that provocation may reduce a murder from first degree to second degree (CALCRIM No. 522), and a modification to the instruction defining murder (CALCRIM No. 521) to add a reference to heat of passion, among other things. The court refused the provocation and voluntary manslaughter instructions as unsupported by the evidence and likewise refused the requested modification to the standard instruction on murder. The jury returned a verdict of first degree murder.
III. DISCUSSION
Defendant claims (1) the trial court erred in refusing requested homicide instructions; (2) there is insufficient evidence to support his conviction for first degree murder; and (3) the trial court erred in refusing to reopen jury selection after a seated juror disclosed familiarity with law enforcement officers uninvolved in the case. We turn to a discussion of these claims.
A. The trial court properly refused an instruction regarding the effect of provocation on degrees of murder because there was no evidence of provocation
Defense counsel asked the court to instruct the jury on provocation, pursuant to CALCRIM No. 522, as follows: "Provocation may reduce a murder from first degree to second degree[]. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder."
"[P]rovocation is relevant only to the extent it 'bears on the question' whether defendant premeditated and deliberated. [Citation.] Because [the provocation instruction] relates the evidence of provocation to the specific legal issue of premeditation and deliberation, it is a 'pinpoint instruction' . . . and need not be given on the court's own motion." (People v. Rogers (2006) 39 Cal.4th 826, 878-879.) " 'Such instructions relate particular facts to a legal issue in the case or "pinpoint" the crux of a defendant's case. . . . They are required to be given upon request when there is evidence supportive of the theory . . . ." (Id. at p. 878.) "A trial court must give a pinpoint instruction, even when requested, only if it is supported by substantial evidence.' " (People v. Ward (2005) 36 Cal.4th 186, 214, italics added.) "The evidentiary premise of a provocation defense is the defendant's emotional reaction to the conduct of another, which emotion may negate a requisite mental state." (Id. at p. 215.) "Provocation means 'something that provokes, arouses, or stimulates'; provoke means 'to arouse to a feeling or action'[;] . . . to incite to anger." (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1334, quoting Merriam-Webster's Collegiate Dict. (10th ed. 2001) p. 938.)
Here, there was no evidentiary basis for a provocation instruction. There was no evidence that the victim Reyes did anything to provoke an emotional reaction in defendant, and no evidence that defendant was incited to anger or otherwise acted under stimulated emotions when he stabbed Reyes. Defendant told the police he could not remember why he killed Reyes, and did not "know what crossed my mind at the moment I did that." He claimed only that he was intoxicated, not that he was provoked. When the police asked defendant "what did [the victim Reyes] do to you?" defendant answered, "I think he didn't do anything to me." Defendant agreed when the police said that Reyes "didn't do anything bad to you." When pressed to give an explanation for his actions, defendant said that Reyes "must've told me that he wouldn't take me any further, or that he was going to go back, or [not] be able to go beyond that, I don't know. And since we were in the middle of the boonies I think that that's what led me to do that. I can't, can't find any other explanation, honestly." Sergeant Ortiz asked "You got mad?" and defendant answered "Well, the way I was so drunk, and, and high on drugs. I think that that's what led me to do that. I can't find any other explanation." Clearly, the record shows reliance upon an intoxication defense—which the jury considered and rejected— not a provocation defense.
The evidence offered on appeal as supportive of a provocation theory is illusory. Defendant, citing trial counsel's argument to the jury rather than the evidence itself, contends that the blood spatter analysis (showing both projected and dripping blood on defendant's hat) suggests that there "there was some kind of struggle inside the vehicle while it was moving at the time of the stabbing." The blood evidence did not show a struggle. Defendant's hat was marked mostly with projected blood (blood propelled through the air) and two or three "gravity drips" from blood falling down onto the hat. The blood spatter expert, John Thorton, testified that the projected blood and the gravity drips were "not contemporaneous. They're not at the same instant in time." The likeliest explanation is that defendant was wearing the hat during the stabbing when blood was projected through the air and the hat then fell off (it was found on the ground) and blood dripped on it from the wounded Reyes. This is not evidence of a struggle.
The only suggestion of a struggle raised by the blood evidence is just that—a suggestion that was made by defense counsel at trial in a hypothetical posed on cross examination of Thorton and expanded upon in closing argument to the jury. Thorton was asked if someone wearing a baseball hat is "forced down on a person's lap and that person is bleeding profusely from his torso, would a gravity drip be consistent with that type of scenario?" Thorton said, "[y]es." This exchange proves nothing. A hypothetical is not evidence that the events transpired as postulated. Even if we accepted trial counsel's invented scenario in which Reyes exercised force over defendant, that force did not come until after Reyes was stabbed and "bleeding profusely"—it could not have provoked the stabbing.
Also unavailing is defendant's claim that "[t]he very act of stabbing the driver of a vehicle under circumstances virtually certain to result in a life-threatening crash supports an inference that the stabbing was a 'rash, impulsive decision' with 'no premeditation or deliberation.' " We do not know how fast the vehicle was traveling at the time of the stabbing. Defendant claims there was evidence that the vehicle was traveling "in excess of 40 miles an hour on a windy and precipitous mountain road" but, in fact, the evidence shows only that the vehicle was seen traveling at about 55 miles per hour several miles from the crash site when it was first heading up the mountain. Defendant's characterization of the crash as "life-threatening" is hyperbole. It is true that there was "major damage" to the front end of the vehicle from the impact with a tree. But it is also true that defendant walked away from the crash to the main highway, suffering only a rash from a toxic plant he had contact with while traversing bushes. Nothing in the circumstances of the crime, defendant's confession, or the testimony of the trial witnesses supports a provocation instruction.
B. The trial court properly refused instructions on voluntary manslaughter
The trial court refused defense counsel's requested jury instructions on voluntary manslaughter based upon heat of passion and imperfect self-defense. (CALCRIM Nos. 570, 571.) The court was correct in finding insufficient evidence to support the instructions.
"Manslaughter, an unlawful killing without malice, is a lesser included offense of murder. [Citation.] Malice is presumptively absent when a defendant kills 'upon a sudden quarrel or heat of passion' ([Penal Code,] § 192, subd. (a)), provided that provocation is sufficient to cause an ordinarily reasonable person to act rashly and without deliberation, and from passion rather than judgment. [Citation.] Additionally, when a defendant kills in the actual but unreasonable belief that he or she is in imminent danger of death or great bodily injury, the doctrine of 'imperfect self-defense' applies to reduce the killing from murder to voluntary manslaughter." (People v. Koontz (2002) 27 Cal.4th 1041, 1086.)
There was no evidence here to support voluntary manslaughter instructions. As previously discussed, defendant disclaimed any hostile words or acts by the victim Reyes preceding the stabbing. Defendant admitted that Reyes "didn't do anything bad to" him. Defendant claimed he was intoxicated, not that he was provoked or acting in self-defense. Appellate counsel speculates that defendant "must have felt" that Reyes presented some danger, or why risk a car crash? "Speculation is an insufficient basis upon which to require the giving of an instruction on a lesser offense." (People v. Wilson (1992) 3 Cal.4th 926, 941.) Evidence, not imagination, is required. Here, all of the evidence points to an unprovoked attack upon a Good Samaritan who was simply offering defendant a ride. The requested instructions on voluntary manslaughter were rightly refused.
C. The trial court properly refused modifications to the standard instruction on murder
Defense counsel asked to modify the standard instruction on murder. (CALCRIM No. 521.) The court allowed some modifications but refused others. Set out here is the instruction given to the jury, with defense modifications that were granted in italics and defense modifications that were refused in bold: "If you decide that the defendant has committed murder, you must decide whether it is murder of the first or second degree. [¶] The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. Furthermore, to deliberate requires the conduct to be carried on coolly and steadily according to a preconceived design. The defendant acted with premeditation if he decided to kill before completing the act that caused death. Premeditation requires an intent to kill based upon pre-existing reflection and not upon a sudden heat of passion sufficient to preclude the idea of deliberation. [¶] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time. The length of time alone is not determinative. [¶] To prove the killing was 'deliberate and premeditated' it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his act. [¶] The brutality of a killing cannot in itself support a finding that the killer acted with premeditation and deliberation. If the evidence showed no more than the infliction of multiple acts of violence on the victim, it would not be sufficient to show that the killing was the result of careful thought and weighing of considerations. [¶] All other murders are of the second degree. [¶] The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder." (Boldface added; some italics added, some omitted.)
The requested modifications were properly refused. The proposed modification concerning heat of passion was inapt given the lack of any evidence supporting a heat of passion theory, and thus properly refused. The other proposed modification, concerning premeditation and deliberation, was unnecessary because the standard instruction is adequate and correct on this point. It fully explained that a "defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill." It would have been repetitive to restate the point that a killing, to be first degree murder, must be "the result of careful thought and weighing of considerations." The proposed modification on premeditation and deliberation also risked confusing, and possibly inflaming, the jury by emphasizing the "brutality of the killing." The trial court did not err in administering the standard murder instruction without the requested modifications.
D. Substantial evidence supports the first degree murder conviction
"The law is settled. In reviewing a criminal conviction challenged as lacking evidentiary support, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Brady (2010) 50 Cal.4th 547, 561.) " ' " 'An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.' [Citation.] A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported—preexisting motive, planning activity, and manner of killing—but '[t]hese factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation.' " ' [Citation.] These three factors . . . are merely a framework for appellate review; they need not be present in some special combination or afforded special weight, nor are they exhaustive." (Id. at pp. 561-562.)
There is, as appellate counsel emphasizes, no evidence of a preexisting motive or planning activity in defendant's killing of the victim Reyes. Defendant did purchase a knife and set out with determined effort to reach a particular destination—perhaps with violence in mind—but Reyes was not the target. A chance encounter occurred between defendant and Reyes when defendant, speaking Spanish, could not make himself understood to the taxi driver, and Reyes offered his help as interpreter then driver. The lack of a preexisting motive and planning activity, however, does not necessarily negate a finding of premeditation. (People v. Brady, supra, 50 Cal.4th at p. 563.) It is the totality of the evidence, not individual factors, that matters. (Id. at p. 562.)
The totality of the evidence supports the jury's finding of premeditation and deliberation. Defendant stabbed Reyes in the torso seven times. Reyes tried to ward off the stabbings, and suffered defensive wounds to his hands and arms. Defendant then left Reyes to bleed to death on the road. The manner of the killing—multiple stab wounds to vital parts of the body—implies "a cold, calculated decision to kill." (CALCRIM No. 512.) Appellate counsel concedes that the infliction of multiple stab wounds "may support an inference of intent to kill" but argues that the killing occurred in an "explosion of violence" (People v. Anderson (1968) 70 Cal.2d 15, 28) "incompatible with premeditation and deliberation." We disagree. The manner of the stabbing—seven deep wounds to the torso inflicted upon a victim struggling for life—" 'shows a calculated design to ensure death rather than an unconsidered explosion of violence.' " (People v. Brady, supra, 50 Cal.4th at p. 565.) "The mere possibility of a contrary finding as to defendant's mental state does not warrant a reversal of the guilt judgment." (Ibid, original italics.)
E. The court did not err in refusing to reopen jury selection
Defendant raises a final issue concerning the trial court's refusal to reopen jury selection after a seated juror volunteered information that she was familiar with several law enforcement officers uninvolved in the case being tried. The jury was sworn on the afternoon of Tuesday May 25, 2010, following voir dire. The next day, Juror No. 3 submitted a note disclosing personal ties with law enforcement (and the supervising court reporter). The note read: "When I got home Tuesday evening I realized that counsel did not ask me if I knew anyone in law enforcement. [¶] My brother [name provided] is a CSO w/the Napa PD. [¶] I also know Andy Hess [¶] John Acardo [¶] and Diane Erickson. [¶] Thank you, [juror's name]." The court read the note to the prosecutor and defense counsel and stated its intention to question Juror No. 3, outside the presence of the other jurors, as to whether Juror No. 3's familiarity with law enforcement officers would prevent her from being fair and impartial.
The names of the juror and her brother are omitted to protect juror confidentiality. (Code Civ. Proc., § 237, subd. (a)(2).)
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The exchange between the court and Juror No. 3 follows. "THE COURT: . . . [¶] [Y]ou delivered to the bailiff a note this morning which indicated that there were some things that you wanted to let the Court know about your relationship with law enforcement. And that you did not indicate to the court yesterday that you have a brother who's—works for the Napa Police Department. Is that correct? [¶] JUROR NO. 3: Yes, sir, it is. [¶] THE COURT: All right. [¶] And your brother is [name]? [¶] JUROR NO. 3: Yes, sir. [¶] All right. [¶] And how long has he worked for Napa PD? [¶] JUROR NO. 3: Five to seven years. [¶] THE COURT: Okay. [¶] And do you talk with your brother about his cases? [¶] JUROR NO. 3: No. [¶] All right. [¶] And do you believe that your brother working for Napa Police Department would prevent you from being fair and impartial in this case? [¶] JUROR NO. 3: No, it would not prevent me from being fair. I would definitely be fair. [¶] THE COURT: Could you still be fair and impartial? [¶] JUROR NO. 3: Yes, your Honor. [¶] THE COURT: You also indicated that you know Andy Hess and John Accardo, who are both law enforcement officers. [¶] JUROR NO. 3: Yes, your Honor. [¶] THE COURT: Okay. [¶] And how well do you know Mr. Hess? [¶] JUROR NO. 3: Very well. I've been to his house, and he's been to ours. We do family vacations. [¶] THE COURT. Okay. [¶] And would your relationship with Mr. Hess in any way affect you, your ability to be fair and impartial in this case? [¶] JUROR NO. 3: No, it would not. [¶] THE COURT: Okay. [¶] And then what about Mr. Accardo? Deputy Accardo? [¶] JUROR NO. 3: It would not. I would be fair. [¶] THE COURT: Okay. [¶] And how—what is your relationship with Deputy Accardo? [¶] JUROR NO. 3: Just our children play baseball since a young age at Little League. They played baseball together. [¶] THE COURT: Okay. [¶] And do you believe that you could still be fair and impartial? [¶] JUROR NO. 3: Yes, your Honor. [¶] THE COURT: All right. [¶] And your relationship with our supervising court reporter, Diane Erickson. [¶] JUROR NO. 3: Yes. [¶] THE COURT: And what's your relationship with Miss Erickson.? [¶] JUROR NO. 3: Just our children went to elementary school together. [¶] All right. [¶] And do you believe you could be fair and impartial in this case despite the fact that you know Miss. Erickson? [¶] JUROR NO. 3: Yes, your Honor. [¶] THE COURT: All right. [¶] Thank you, you can go back into the jury room. [¶] [Defense Counsel]: Your Honor, I do have some questions, your Honor. [¶] THE COURT: I think that we've ended our questions. I'm not gonna ask a—allow any more questions to be asked of this potential juror. She's satisfied me that she can be fair and impartial, so that's where we'll end it."
Defense counsel renewed her objection. Outside the presence of all jurors, counsel stated: "I believe that this is information that (Juror No. 3) did not disclose. It obviously would have impacted my decision to remove her as a juror. I would be making a request to reopen jury selection, so I am making that request for the record." The court denied the request.
The trial court did not err. Once a jury is impaneled and sworn, the trial must proceed to opening statements and the introduction of evidence. (Pen. Code, § 1093.) "A challenge to an individual juror may only be made before the jury is sworn." (Code of Civ. Proc., § 226, subd. (a).) A court may not reopen voir dire simply to permit exercise of a peremptory challenge. (People v. Cottle (2006) 39 Cal.4th 246, 255.) Once sworn, a juror cannot be discharged except upon a showing of good cause. (Pen. Code, § 1089.) "A showing of good cause is a prerequisite to granting the motion to discharge the jury or to reopen voir dire. The trial court is not obliged to reopen voir dire based upon mere speculation that good cause to discharge the jury thereby may be discovered." (People v. Bradford (1997) 15 Cal.4th 1229, 1354.) A trial court's decision not to reopen voir dire of a seated juror is reviewed for abuse of discretion. (People v. Clark (2011) 52 Cal.4th 856, 966-967.) The trial court here did not abuse its discretion. The trial court questioned Juror No. 3 about her ties to law enforcement and sufficiently established that her personal familiarity with several officers—none of whom was involved in the case— would not impact the juror's ability to be fair and impartial. No good cause existed to reopen voir dire.
IV. DISPOSITION
The judgment is affirmed.
Sepulveda, J. We concur: Reardon, Acting P.J. Rivera, J.