Opinion
D073456
06-07-2018
THE PEOPLE, Plaintiff and Respondent, v. MARTIN AHMAD MOSBY, Defendant and Appellant.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FSB1403346-1) APPEAL from a judgment of the Superior Court of San Bernardino County, J. David Mazurek, Judge. Affirmed. Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury convicted Martin Ahmad Mosby of one count of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)), two counts of driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)), and two counts of driving with a 0.08 percent blood-alcohol content causing injury (Veh. Code, § 23153, subd. (b)). As to the driving under the influence and driving with a 0.08 percent blood-alcohol content convictions, the jury also found true allegations Mosby personally inflicted great bodily injury (Pen. Code, §§ 1192.7, subd. (c)(8), 12022.7, subd. (a)). Mosby separately pleaded guilty to one count of leaving the scene of an accident (Veh. Code, § 20001, subd. (a)) and, as to the gross vehicular manslaughter while intoxicated conviction, he admitted an attendant allegation he fled the scene of the crime (Veh. Code, § 20001, subd. (c)). The trial court sentenced him to 18 years four months in prison.
Mosby appeals, contending the court abused its discretion and deprived him of his constitutional right to a trial by an impartial jury by determining two jurors did not engage in prejudicial misconduct. He also contends the court prejudicially erred and deprived him of his constitutional right to due process and a fair trial by failing to instruct the jury on accomplice liability under CALCRIM No. 334.
We conclude that, while two jurors committed misconduct by commenting to one another in passing about the tragic circumstances of the case, the court did not abuse its discretion in determining the misconduct was not prejudicial. We also conclude the court did not abuse its discretion in failing to instruct the jury on accomplice liability as there was insufficient evidence to warrant the instruction. We further conclude any error in failing to give the instruction was harmless. We, therefore, affirm the judgment.
II
BACKGROUND
A
One evening, three sisters went to the market and then through the drive-thru of a fast-food restaurant. The older sister drove, the younger sister was in the front passenger seat, and the middle sister was in the rear driver's side seat. Because the restaurant forgot to give them their french fries, the older sister parked the car and the younger sister went into the restaurant to get them. When the younger sister returned, she got back into the front passenger seat and the sisters started heading home. On the way, a car being driven by Mosby struck the passenger side of their car. The two older sisters suffered severe injuries. The younger sister died.
Mosby's car was traveling a minimum estimated speed of 50 miles per hour at the time of the collision. The speed limit going into the intersection where the collision occurred was 40 miles per hour, but traffic surveys indicated 85 percent of the cars in the area traveled at 49 miles per hour.
Earlier that evening, Mosby and one of Mosby's friends picked up David Brass from Brass's house. After stops for gas and for Brass to purchase a drink and a snack, they went to Mosby's house. While there, Mosby drank two 16-ounce beers. Brass did not drink any alcohol. The trio left the house to take Mosby's friend to work. Mosby drove hurriedly to get his friend to work on time, but he did not appear to be drunk and he was obeying traffic lights and signs.
After dropping Mosby's friend off, Mosby and Brass got some food and then went to meet some women. At this point, Mosby appeared drunk and began driving much faster and more recklessly, including driving on the shoulder of the freeway, speeding, and driving through multiple red lights and stop signs. Brass asked Mosby why he was driving so fast, but Mosby did not respond. Brass asked Mosby to stop and let him out of the car, but Mosby kept driving.
After Mosby drove through another red light, Brass asked Mosby what was going on and what was wrong. Mosby told Brass he was thinking about his daughter because it was her birthday and he had not seen her in a long time. Brass thought Mosby appeared emotionally upset, reckless, and careless. Brass continued to try to get Mosby to stop the car and Mosby continued to drive extremely fast until Mosby drove through another red light and collided with the victims' car.
After the collision, Brass got out of Mosby's car, walked over to the driver's side, and helped Mosby get out of the car through the window. Brass was not injured, but Mosby had blacked out and had some scratches.
Brass hit Mosby in the face to wake him up. He told Mosby they had to get out of the area and they took off running. Brass ran because he thought it was likely someone in the other car had died and he thought he might be arrested for vehicular manslaughter since he was with Mosby. A police officer later found them about a mile from the collision.
Brass pleaded guilty to being an accessory after the fact. (Pen. Code, § 32.) As part of his plea bargain and in exchange for his cooperation and truthful testimony, he agreed his sentence would be determined by the court with the minimum sentence being probation with credit for time served and the maximum sentence being three years in jail. --------
Another police officer, who had training and experience investigating cases involving individuals driving under the influence of alcohol, evaluated Mosby. Mosby smelled of alcohol and his eyes were bloodshot and watery. The officer administered a horizontal gaze nystagmus test and observed horizontal gaze nystagmus in Mosby's eyes. Mosby was bleeding from his ear and he told the officer his girlfriend had hit him. He said he had eaten some sunflower seeds and a burrito several hours earlier and had not been drinking anything besides water. The officer suspected Mosby was under the influence of alcohol and took Mosby to the police station for further field sobriety tests. After observing Mosby and administering the additional tests, the officer believed Mosby had been driving while impaired by alcohol.
A criminalist analyzed a blood sample taken from Mosby at the police station. Mosby's blood-alcohol content was 0.11 percent at the time the sample was taken and the criminalist opined Mosby's blood-alcohol content would have been between 0.12 and 0.14 percent at the time of the collision. The criminalist explained driving is considered a multitasking activity and while humans can adapt to the physical impairments of alcohol by tolerance, they cannot adapt to the mental impairments of alcohol. The criminalist opined everyone with a blood-alcohol content of 0.08 percent would be mentally impaired to drive a motor vehicle safely and some people would be mentally impaired with a blood-alcohol content below 0.08 percent. Consequently, if someone had a blood-alcohol content of 0.14 percent, the person would be mentally impaired for driving purposes.
B
Mosby played a video recording of his interview with a police detective. The video recording showed Mosby surprised and distressed after being told a young girl had died and her two sisters were injured in the collision.
III
DISCUSSION
A
1
During an inquiry into an unrelated juror misconduct issue, the court had the following exchange with Juror No. 035 (Juror 035):
"THE COURT: And have you had any discussions with [any] of the other jurors about anything that's happened here in court?
"[JUROR 035]: Yes, I have.
"THE COURT: Okay. What have you talked about?
"[JUROR 035]: Some small details. And one person did mention, like, one of the persons passing away, just how can missing a French fry—
"THE COURT: I'm sorry. One more time.
"[JUROR 035]: We did discuss how very unfortunate it is and how missing some fries, a few seconds of your time, can cause a huge accident.
"THE COURT: Other than just a generalized, like, Wow. Things can change in a few seconds, did you discuss any of the specific testimony that anybody gave or any of the specific witnesses?
"[JUROR 035]: No, sir.
"THE COURT: Would you characterize—how would you characterize what you talked about? Would you say it was specifically in reference to this case or would you say it's just generally, Wow. Your life can change in a few seconds?
"[JUROR 035]: Well, I would say it was to this case because it was specifically about the French fries and going to [a fast-food restaurant] and having—
"THE COURT: Yeah, okay. And who all talked about that?
"[JUROR 035]: I don't remember exactly who, but it was one of the other gentlemen."
The court had Juror 035 wait in the hallway and, after discussing the matter with counsel, inquired further of Juror 035:
"THE COURT: [¶] ... [¶] (Juror 035), come on back in and have a seat for us. All right. I just wanted to go over if you can tell me everything you remember about the conversation relative to the French fries and that whole thing. Just tell me everything you remember about that.
"[JUROR 035]: It was right after the witness testifying. I don't remember exactly if it was on this floor or downstairs, but it was around the elevator area. And then we just mentioned it's very unfortunate that someone lost their life because they had to go back to get their French fries.
"THE COURT: And who was doing the talking?
"[JUROR 035]: I believe it was the other gentleman that brought it up, and but then I also went in the conversation as well.
"THE COURT: Was anything else said at all related to the case other than the French fry comment?
"[JUROR 035]: Not that I can remember."
After obtaining a description of the other juror from Juror 035, the court determined the other juror was Juror No. 121 (Juror 121) and inquired of him:
"THE COURT: Do you remember ever having a conversation with anybody in passing about stopping—somebody stopping for French fries and that being like, Wow. But for the fact that somebody—
"[JUROR 121]: Oh, I did make some comment about, Gees, if they had put the fries in the bag. I don't know who to, though. That was the only comment I made.
"THE COURT: Where did that happen?
"[JUROR 121]: I couldn't tell you. I really don't know. It was just like—yeah. Yes.
"THE COURT: That was the extent?
"[JUROR 121]: That was the extent of it, yeah.
"THE COURT: And did you feel like that was related to the—specifically discussing the facts of the case?
"[JUROR 121]: I didn't think so. No.
"THE COURT: Was it—how would you classify it? Would you just say it was just like—well, how would you classify that comment? Just—
"[JUROR 121]: Like—I can't really remember exactly how it was said. It was like, Gees, so many scenarios that happened in life. If they had not forgot to put the fries in the bag—something to that degree. I didn't think about it, you know, being related to the case, as far as evidence or anything like that goes.
"THE COURT: Okay.
"[JUROR 121]: But, yes, I did make that comment. Yes."
The court thanked Juror 121 and ended the inquiry. The court then ruled:
"With respect to the conversation between (Juror 035) and (Juror 121), I don't think it's related to anything ... specific with regards to the case. It doesn't indicate that the jurors are leaning one way or the other or that they're particularly favoring one side over the other, from what I can decipher. I think it's, again, what [defense counsel] indicated at some point with all the cases that we do, it's Wow, could have been me, but for the fact I—somebody stopped for fries or missed—they didn't put the fries in the bag, they would have been either through that intersection earlier or missed it completely, which is one of the really tragic, sad things about the case. But, to me, it doesn't indicate a discussion about what they think about the facts of the case as it may relate to guilt or innocence. [¶] ... [¶] ... I don't feel like that necessarily implies that they have taken a position relative to the case."
The court subsequently reinstructed jurors to keep an open mind and not to discuss the case until deliberations.
2
Mosby contends the court prejudicially erred and deprived him of his constitutional right to a trial by an impartial jury when it determined Jurors 035 and 121 had not committed prejudicial misconduct. We review the court's decision for abuse of discretion. (People v. Holloway (2004) 33 Cal.4th 96, 124-125 (Holloway).) We will not find error in the court's decision unless the record shows as a demonstrable reality the jurors were unable to perform their duty. (Pen. Code, § 1089; People v. Martinez (2010) 47 Cal.4th 911, 943.)
The comments by Jurors 035 and 121 to one another about the tragic circumstances of this case were misconduct. (Pen. Code, § 1122, subd. (a)(1) [jurors must not converse among themselves on any subject connected with the trial].) Although such misconduct creates a rebuttable presumption of prejudice, reversal is not required unless there is a substantial likelihood one or more jurors were improperly influenced by bias. (Holloway, supra, 33 Cal.4th at p. 125.) "Where the misconduct is not 'inherently likely' to have affected the vote of any of the jurors, prejudice is not shown." (People v. Hord (1993) 15 Cal.App.4th 711, 727 (Hord).)
The comments by Jurors 035 and 121 were not inherently likely to have affected the vote of any of the jurors because they were brief and fleeting. Such transitory comments "are normally innocuous, particularly when a comment stands alone without any further discussion." (Hord, supra, 15 Cal.App.4th at p. 728; accord, People v. Avila (2009) 46 Cal.4th 680, 727.)
While Mosby faults the court for not investigating the matter more thoroughly, the court "is afforded broad discretion in deciding whether and how to conduct an inquiry to determine whether a juror should be discharged. [Citations.] Our assessment of the adequacy of a court's inquiry into juror misconduct is deferential: ... except when bias is apparent from the record, the trial judge is in the best position to assess the juror's state of mind during questioning." (People v. Clark (2011) 52 Cal.4th 856, 971.)
Here, the court questioned both jurors about what they had said to one another and both jurors gave consistent accounts. The court had the opportunity to observe their demeanor and assess their credibility during the questioning. The court determined after the questioning that the jurors' brief comments reflected the sad circumstances of the case and not their perception of Mosby's guilt or innocence. On this record, we cannot fault the court's determination or its investigative methodology. Accordingly, we conclude Mosby has not established the court abused its discretion by finding Jurors 035 and 121 had not committed prejudicial misconduct. Given our conclusion, we need not decide whether Mosby forfeited this issue by failing to request the jurors' discharge or otherwise object below.
B
Mosby also contends we must reverse the judgment as to the conviction for gross vehicular manslaughter while intoxicated because the court prejudicially erred and deprived him of his constitutional right to due process and a fair trial by denying his request to instruct the jury on accomplice liability under CALCRIM No. 334.
"[Penal Code s]ection 1111 provides: 'A conviction [cannot] be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense ....' Under [Penal Code] section 1111, an accomplice is 'one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.' An accomplice must have ' "guilty knowledge and intent with regard to the commission of the crime." ' [Citations.] 'If there is evidence from which the jury could find that a witness is an accomplice to the crime charged, the court must instruct the jury on accomplice testimony. [Citation.] But if the evidence is insufficient as a matter of law to support a finding that a witness is an accomplice, the trial court may make that determination and, in that situation, need not instruct the jury on accomplice testimony.' " (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 302 (Gonzales).)
Here, the trial court properly found there was insufficient evidence as a matter of law to characterize Brass as an accomplice to the gross vehicular manslaughter while intoxicated offense because there was no evidence Brass acted "with knowledge of [Mosby's] criminal purpose and with the intent to encourage or facilitate the commission of the offense." (People v. Carrington (2009) 47 Cal.4th 145, 191; see People v. Verlinde (2002) 100 Cal.App.4th 1146, 1160 [accomplice liability is not ordinarily associated with the crime of gross vehicular manslaughter because of the individual nature of the act and the mental state involved], disapproved on another point in People v. Cook (2015) 60 Cal.4th 922, 939.) Although there is evidence Brass knew Mosby had been drinking before Mosby drove them around, this evidence does not establish Brass: (1) knew Mosby would become emotional and start driving recklessly, and (2) intended to encourage or facilitate Mosby's reckless driving. Rather, the evidence indicates Brass was surprised and frightened by Mosby's reckless driving and tried to get Mosby to stop the car. Accordingly, we conclude the trial court did not err by declining to give the jury the CALCRIM No. 334 instruction.
3
Even if the trial court had erred, the error was harmless. " 'A trial court's failure to instruct on accomplice liability under [Penal Code] section 1111 is harmless if there is sufficient corroborating evidence in the record.' [Citation.] 'Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense.' [Citation.] The evidence is 'sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.' " (Gonzales, supra, 52 Cal.4th at p. 303.)
Other evidence in this case sufficiently connected Mosby to the crime to corroborate Brass's testimony, including the witnesses who saw Mosby get out of the car and flee the scene, the officer's observations of Mosby's impairment after the collision, and the blood-alcohol content test results. Accordingly, we conclude the trial court's failure to give the CALCRIM No. 334 instruction does not require reversal of Mosby's conviction for gross vehicular manslaughter while intoxicated.
IV
DISPOSITION
The judgment is affirmed.
MCCONNELL, P. J. WE CONCUR: NARES, J. O'ROURKE, J.