Opinion
B289376
05-01-2020
THE PEOPLE, Plaintiff and Respondent, v. MARCUS LYNN PERKINS, Defendant and Appellant.
Law Offices of Damon L. Hobdy, Damon L. Hobdy for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Yun K. Lee and Thomas C. Hsieh, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA414302) APPEAL from a judgment of the Superior Court of Los Angeles County, Curtis B. Rappe, Judge. Affirmed. Law Offices of Damon L. Hobdy, Damon L. Hobdy for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Yun K. Lee and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Marcus L. Perkins for a murder committed 27 years earlier, and the trial court sentenced him to a long prison term. Perkins contends the court made several evidentiary and instructional errors, improperly discharged a juror, and improperly denied his motion to continue trial and motion for a new trial. We affirm.
BACKGROUND
A. 1990
On the evening of July 24, 1990, Timoteo Pena, the owner of Sinaloa Market on San Pedro Street in Los Angeles, was closing the store with the help of his nine-year-old daughter Esmeralda. He had about $600 in his wallet and a handgun in his pocket. When Esmeralda went to close the back door, she passed Perkins, who was holding a soda can. As she closed the door she heard a gunshot, and saw Perkins shoot Pena and run to a parked car.
Jorge Vasquez, who lived across the street from the market, heard the gunshots and saw Perkins run out of the store and get into a dark green 1978 or 1979 Toyota Corolla sedan and drive away.
Pena was pronounced dead at the scene. His wallet and gun were missing, and the cash register had been disturbed.
Los Angeles Police Department (LAPD) officers recovered .25-caliber and .38-caliber bullet casings and projectiles from the scene.
Daniel Freeman Hospital in Inglewood reported that Perkins had arrived there with a gunshot wound. Officer Theodore Jara responded, and saw a green Toyota Corolla parked in front of the emergency room. He interviewed Perkins, who had a gunshot wound to his abdomen. Perkins said he was at a store on 47th Street and Broadway when several Black males approached, demanded his money, and shot him. Officer Jara recovered a bag containing Perkins's clothing and shoes, but found no blood stains or bullet casings in the area of 47th Street and Broadway.
Four spent bullets were recovered from Pena's body, and a blood sample was taken for DNA testing.
On August 9, 1990, the police showed Esmeralda two six-pack photographic line-ups, one of which included Perkins's photograph, but she was unable to identify anyone.
On September 25, 1990, police recovered Pena's gun from Darren Sardin, Perkins's cousin-in-law, who said he bought it from "a smoke."
On October 4, 1990, police searched Perkins's Volkswagen Bug as part of an investigation into his involvement in a September 1990 robbery, recovering a .38-caliber Enfield revolver.
B. 1994
On the evening of August 17, 1994, Perkins robbed Oscar's Market, a minimarket on Sixth Street in Los Angeles, by pointing a gun at the proprietor and instructing him to hand over money in the register. When a postman walked in, Perkins forced the postman to the ground and took his wallet. Taking advantage of a distraction outside, the proprietor shot Perkins, who ran out of the store.
In response to a call from Daniel Freeman Hospital regarding a gunshot victim, police interviewed Perkins at the hospital. He said he had been walking in the area of Pico and Western when someone shot at him. Police found no evidence of a shooting at that location. Perkins was convicted of two counts of robbery.
C. 2011
In 2011, DNA testing showed that Pena's blood was on one of Perkins's shoes recovered 21 years earlier by Officer Jara.
D. 2017
In 2017, an LAPD criminalist examined the bullets and casings recovered in this case and determined that .25-caliber bullets from the crime scene had been fired from Pena's gun, and seven .38-caliber bullets recovered from the scene and Pena's body had all been fired from the same gun, a gun with uncommon rifling characteristics that were consistent with the rifling of Perkins's Enfield.
E. Trial
1. 402 Hearing on Identification Evidence
At trial, Perkins, representing himself, moved to preclude Esmeralda from identifying him, on the ground that she had failed to identify him from a photo array 27 years earlier, and had seen him at the preliminary hearing and several other hearings.
At the resulting Evidence Code section 402 hearing, Esmeralda testified that when she closed her eyes, she would see Perkins's face every time and "play and play the whole scenario all over again." After the shooting, she did not see him in person until the preliminary hearing, but even then, she could not see his face from her vantage point in the back of the courtroom. The prosecutor showed Esmeralda a 1989 booking photograph of Perkins, and she began to cry and said the person in that photograph, whom she identified as Perkins, had murdered her father.
The trial court found Esmeralda to be credible, and found that she had not seen Perkins's face at the preliminary hearing, but possessed an independent recollection of him. The court denied Perkins's motion.
2. Ballistics Evidence
The .38-caliber bullets recovered from Pena's body and the crime scene were tested in 1990 by Ronald Helson, a ballistics expert, who reported they had an "eight right" general rifling characteristic, and could not have been fired from Perkins's Enfield revolver, which had "seven right" rifling. Because by the time of trial Helson was elderly and on oxygen, and could testify only with difficulty, the prosecutor had the bullets re-tested, anticipating the same results. However, upon retesting, Daniel Rubin, a second ballistics expert, reported that the bullets in fact had obvious "seven right" rifling, which was unique to Enfield revolvers.
In the meantime, the revolver itself, which had been used as evidence in the prosecution of Perkins for the September 1990 robbery, was destroyed by police in 1993.
Perkins moved to exclude any evidence connecting him to the Enfield, arguing that destruction of the weapon left him with no means to conduct an adequate firearms comparison test.
At the hearing, LAPD Detective Timothy Marcia testified that the Enfield had been recovered during an investigation of the September 1990 robbery. Perkins pleaded guilty to that robbery in February 1992 and was sentenced in March 1992. The Enfield was destroyed in October 1993, apparently as "part of a routine destruction" of evidence from resolved cases. Detective Marcia testified that in 1993, a detective seeking to destroy evidence would fill out an authorization form only after obtaining a court order, and the form would be entered into the department's property division system. Marcia had been unable to locate any form authorizing the Enfield's destruction, but testified that in cold cases, such forms sometimes "no longer exist."
The prosecutor represented that she intended to show only that the bullets recovered from the shooting bore the seven-right rifling of an Enfield, not that unique markings on them matched Perkins's Enfield specifically.
The court found that no relevant bullets had been destroyed, and although elderly, Helson was under subpoena and available to testify about his 1990 analysis of the bullets. The court found no evidence to suggest that the LAPD had acted in bad faith in destroying the Enfield; at most, the evidence "might show somebody was careless or sloppy." Finally, the court found that because the bullets were still available, and because the prosecutor intended to show only that they came from an Enfield, not definitively from Perkins's Enfield, the revolver was not "necessarily exculpatory," but at most only "possibly exculpatory." It therefore denied Perkins's motion to exclude evidence linking him to the weapon.
3. Preservation of Evidence and the Testimony of Timothy Williams
a. Section 402 Hearing on Admissibility of DNA Evidence
In 1990, Officer Jara gave the bag containing Perkins's clothing and shoes to Detective Addison Arce. Detective Arce gave the bag to Detective Ewing Kwock at the Parker Center police building, who put it in a secured "drying cage" locker on July 25, 1990, and made an entry in a robbery-homicide division log that he had done so. (The property division would not accept evidence contaminated with wet pathogens.) Thirty-three days later, on August 27, 1990, Detective Kwock placed Perkins's clothing into a box, listed the items on a property report, and booked the clothing into the property division.
In 2011, criminalist Randy Zepeda opened a sealed box from the property division containing Perkins's clothing from the 1990 shooting. The box included a property report itemizing items contained in the box. Zepeda noticed the box had been sealed with only packaging tape, and lacked an overlay of evidence tape such as would be required by current standards. He also found that several items—business cards in a shirt pocket, a navy blue T-shirt "bunched" inside the outer shirt, and a sealed gunshot residue kit contained in a small envelope that had been stuffed into a glove—had not been itemized. He wrote a property report itemizing the additional items.
Before trial, Perkins moved to exclude DNA evidence on the ground that the chain of custody was inadequate. He argued there had been a 32-day delay between the date his clothing was collected and the date it was booked into evidence, and at some point, someone had opened the box containing his clothing, as evidenced by there being additional items and no overlay of evidence tape.
At a hearing on the matter, Detective Marcia testified that once evidence is collected, it is sometimes secured in a police facility before being booked into the property division. The officer taking possession of the evidence would log the date and time it was secured in a police locker. Detective Marcia was unable to find any "secure locker logs" for the robbery-homicide division from 1990, which he stated "could easily have been destroyed" when the LAPD moved offices from Parker Center to its current location.
Criminalist Zepeda testified the manner in which the LAPD packaged evidence had changed over the years, but if he packed evidence today, he would place it in a box, seal it with tape, and place an evidence seal over the tape. In January 2011, he noticed that the box containing Perkins's clothing lacked an evidence seal, but there was no sign it had been tampered with or opened.
The court found that the delay in moving the box of Perkins's clothing from a drying locker to the property division, lack of a log or evidence seal, and presence of unitemized items in the box, went "to the weight of the evidence, not the admissibility of it." It denied Perkins's motion to exclude DNA evidence.
b. Section 402 Hearing on Gunshot Residue
At an Evidence Code section 402 hearing on gunshot residue, Lennard Henkhaus, a LAPD criminalist, testified he had performed gunshot residue tests on Perkins's gloves in 1990. He checked the gloves out of a sealed box in the property division, analyzed them (finding negative results), then put the gunshot residue kit (tubes and a disk) into a coin envelope, which he placed inside a glove before resealing the box.
c. Trial Evidence Concerning Chain of Custody
During trial, on May 19, 2017, Perkins asked for a continuance to allow Timothy Williams, his police practice expert, to appear. When asked the nature of the anticipated testimony, Perkins said Williams would testify about police procedures regarding the handling of evidence, including recordkeeping, the storage locations, and "chain of custody procedures," and explain that "drying cabinet policy" had not been followed in the instant case, and the investigation did not "line up" with police practices and procedures as they were in 1990. The trial court found that these issues were undisputed. It stated: "[M]y basic problem is I don't see there is any real dispute about the things that you say [Williams] would testify to. The officer is going to admit he didn't do the things that you say he should have done. I don't see how this witness would add anything." The court denied Perkins's motion for a continuance.
As part of the prosecution case, Detective Kwock testified about his handling of the evidence in this case, and testified that LAPD policy required evidence to be booked without "unnecessary delay," which meant "as soon as possible." Detective Marcia testified that he found an un-logged T-shirt bundled inside an outer shirt in the box containing Perkins's clothing, but it was common 15 to 20 years before trial for items within other items not to be separately logged. Current LAPD policy required that they be separated.
After Detective Kwock testified, the prosecutor moved to exclude the testimony of Williams. A hearing was held, at which Williams represented he would testify about the chain of custody of evidence, the integrity of packaging, and LAPD procedures in 1990, which required that an "employee seizing or taking custody of evidence shall ensure it is properly booked without unnecessary delay." Williams stated that items should be logged separately, and opined that the term "unnecessary delay" meant evidence should be booked "as soon as possible."
Williams offered a report he had authored, which the parties discussed at length. In it, Williams noted several deficits in the evidentiary chain here, including that: (1) no documentation showed when Perkins's clothing was booked into a secure locker at the robbery-homicide division; (2) the presence of un-itemized items suggested they were added after Kwock sealed the box, which could mean Perkins's clothing had been contaminated by outside evidence; (3) lack of an evidence seal was nonstandard; and (4) the box was not transferred expeditiously from the robbery-homicide locker to the property division.
The trial court found that Williams offered nothing new, as LAPD officers had already testified that policies were not followed. It stated Perkins could argue the detectives were "sloppy or something happened," but Williams's testimony was unnecessary. It therefore excluded the testimony.
4. Identification Testimony
Esmeralda testified that she had identified Perkins 27 years earlier from a photo array (a point later refuted by the detective who had shown her the array), and positively identified him in court as the killer.
She also testified she had been unable able to see Perkins's face at the preliminary hearing. In response to the testimony of Perkins's brothers that they had seen Esmeralda looking at Perkins during hearings in October 2013 and October 2014, she produced employment records showing she had not been at those hearings.
Perkins's aunt testified that she sat across the aisle from Esmeralda during the preliminary hearing, and could clearly see Perkins's face.
5. Removal of Juror No. Four
During deliberations, court personnel noticed that Juror No. 4 frequently absented himself from the jury room, and when questioned in the hallway, shouted, "I'm done, I'm not doing this anymore, I'm just done, I'm done, I'm done."
When several jurors reported that Juror No. 4 was biased against the LAPD, the court questioned each of them individually. Each juror reported that Juror No. 4 had said members of the LAPD had been corrupt and tampered with evidence in the late 1990s, and mentioned personal incidents in which he had been treated unfairly by officers and unfairly prosecuted. He frequently refused to participate in deliberations, and had said he did not want to be there. Jurors Nos. 1, 6, 9 and 12 said that Juror No. 4 had said he would hold the prosecution to a higher standard because officers involved in this case had once belonged to the LAPD's C.R.A.S.H. (Community Resources Against Street Hoodlums) unit, an anti-gang unit of the department's Rampart Division that in the late 1990s was implicated in widespread misconduct.
Juror No. 4 denied any anti-LAPD bias, but admitted that he was upset, angry and "getting emotional," and had told the other jurors that he did not want to participate in this case anymore, and was "done." He admitted that on the first day of deliberations he mentioned that several officers in this case were from the CRASH unit. Juror No. 4 said he brought up the CRASH issue only once, and on a later occasion responded to another juror's mention of LAPD Officer Rafael Perez (who was not involved in this case), commenting that Officer Perez was from the CRASH unit, and was corrupt. Juror No. 4 admitted he had told jurors that the police were "sloppy" and had "made mistakes" in this case, but that was based on the testimony of one of the detectives, not on the officers having been part of the CRASH unit.
The trial court found Juror No. 4 to be less credible than the others, as he was the only one to state he had brought up CRASH only once. It found he had a "long standing and well seated" bias against the police, and was incapable of "fairly deliberating in this matter." The court excused Juror No. 4, seated an alternate juror, and directed the jury to begin deliberations anew. In denying Perkins's later motion for a mistrial, the court said, "I did make the credibility call and my finding was that this juror was not deciding the case on the facts and the law. He was deciding it on outside matters that he had become aware of immediately. And these weren't even things in his personal experience. There w[ere] things that he had no firsthand experience with. I lived through that whole C.R.A.S.H. Rampart Rafael Perez era and it got a lot of media attention and this is what he kept bringing up." The court explained it had removed Juror No. 4 for bias, not for failing to deliberate.
6. Verdict and Sentence
The jury convicted Perkins of first degree murder, with a robbery-murder special circumstance, and found he personally used a firearm to commit the crime. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17), 12022.5, subd. (a).) The court sentenced him to prison for life without the possibility of parole, plus four years for the firearm use.
Undesignated statutory references will be to the Penal Code.
He appeals.
DISCUSSION
A. Identification Evidence
Perkins contends the trial court erred by admitting Esmeralda's in-court identification, because it had no independent source, but instead resulted from her seeing him at the preliminary hearing. We disagree.
An in-court identification of a defendant at trial that is based on an unduly suggestive and unreliable pretrial identification procedure violates due process. (Neil v. Biggers (1972) 409 U.S. 188, 196-198.) To determine whether admission of identification evidence violates due process, we consider (1) whether the pretrial identification procedure was unduly suggestive and unreliable, and, if so, (2) whether the in-trial identification itself was nevertheless reliable under the totality of the circumstances. (People v. Cunningham (2001) 25 Cal.4th 926, 989.) We take into consideration "such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification." (Ibid.) " ' "Only if the challenged identification procedure is unnecessarily suggestive is it necessary to determine the reliability of the resulting identification." ' " (People v. Thomas (2012) 54 Cal.4th 908, 930-931.) The defendant bears the burden of demonstrating that the identification procedure was unduly suggestive. (People v. Cunningham, at p. 989.)
"A claim that an identification procedure was unduly suggestive raises a mixed question of law and fact to which we apply a standard of independent review, although we review the determination of historical facts regarding the procedure under a deferential standard." (People v. Clark (2016) 63 Cal.4th 522, 556-557.)
In the 27 years between the murder and trial, Esmeralda saw Perkins only at his preliminary hearing, and even then only from the side or rear. Nothing about this viewing suggested it was unduly suggestive. Even had Esmeralda seen Perkins face-to-face at that hearing, an in-court identification with the defendant sitting at the defense table is not unduly suggestive. (People v. Yonko (1987) 196 Cal.App.3d 1005, 1008.) Therefore, admission of Esmeralda's evidence did not violate Perkins's due process rights.
Perkins argues Esmeralda's identification evidence was unreliable, as she was only nine years old at the time of the crime, had misrepresented during the 402 hearing that she had identified Perkins 27 years earlier, and was in fact unable to identify him. Her testimony that during a daylong preliminary hearing she never saw anything but the back of his head could not be believed.
These were matters for the triers of fact. We have no power to reweigh or resolve conflicts in the evidence, reevaluate a witness's credibility, or draw inferences contrary to the verdict. (People v. Reed (2018) 4 Cal.5th 989, 1006-1007.)
B. Ballistics Evidence
Perkins contends the court erred in admitting evidence tying him to the Enfield revolver recovered in 1990, because the police destroyed the gun, depriving him of an opportunity to prove it was not the murder weapon. We disagree.
The state must preserve evidence "expected to play a significant role in the suspect's defense. To meet this standard . . . [citation], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (California v. Trombetta (1984) 467 U.S. 479, 488-489, fn. omitted (Trombetta).) In Arizona v. Youngblood (1988) 488 U.S. 51, 57-58 (Youngblood), the Court clarified that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law."
We apply a two-step inquiry to determine whether the state's failure to preserve evidence violated a defendant's right to due process: "First, did the destroyed evidence meet either the 'exculpatory value that was apparent' or the 'potentially useful' standard for materiality under Trombetta or Youngblood, respectively? (See Youngblood, supra, 488 U.S. at p. 58; Trombetta, supra, 467 U.S. at pp. 488-489.) Second, if the evidence qualified as 'potentially useful' under Youngblood but did not meet the Trombetta standard, was the failure to retain it in bad faith? (Youngblood, supra, 488 U.S. at p. 58.)" (People v. Alvarez (2014) 229 Cal.App.4th 761, 774 (Alvarez).)
In this case, there was no apparent exculpatory value in the Enfield at the time it was destroyed. It had not been tied to the Pena shooting, and was thought to pertain only to the later, September 1990 robbery, which was resolved by Perkins's guilty plea in 1992. Nor did destruction of the Enfield significantly prejudice Perkins. The prosecution presented evidence only that Perkins had possessed an Enfield, and the bullets that killed Pena had been fired from an Enfield. There was no evidence that markings on the bullets matched Perkins's specific Enfield. Perkins was able to access the bullets at trial, and prove, if he could, that they had not actually been fired from an Enfield.
Because the Enfield was at most " 'potentially useful' " to the defense (Alvarez, supra, 229 Cal.App.4th at p. 774), Perkins's due process rights were violated only if the LAPD acted in bad faith by destroying it. But the trial court found that the department had not acted in bad faith, and we must defer to that conclusion if substantial evidence supports it. (See People v. Memro (1995) 11 Cal.4th 786, 831, overruled on another ground by People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.)
Detective Marcia testified that the LAPD commonly destroyed evidence thought to have no further investigatory or prosecutorial value, which in 1993 seemed to apply to the Enfield. Although the department required a court order and an authorization form to be lodged with its property division when evidence was destroyed, both of which were lacking here, it was not unknown for paperwork in cold cases to be lost. A poor recordkeeping system does not constitute bad faith: "The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed." (Youngblood, supra, 488 U.S. at pp. 56-57, fn. *.) Here, all available evidence indicates that no one working on Perkins's robbery case in 1993 knew the Enfield would have evidentiary value in another case. There was thus no indication of "a calculated effort to circumvent the disclosure requirements established by Brady v. Maryland [(1963) 373 U.S. 83] and its progeny," nor any "allegation of official animus towards [the defendant] or of a conscious effort to suppress exculpatory evidence." (Trombetta, supra, 467 U.S. at p. 488.) Any flaws in the LAPD property division's procedures seem likely to lead to the destruction of exculpatory and inculpatory evidence equally, favoring neither prosecutors nor defendants.
For these reasons, destruction of the Enfield did not violate due process.
C. The removal of Juror No. 4 was not an abuse of discretion
Perkins contends the court abused its discretion in discharging Juror No. 4 because the juror's bias was not a demonstrable reality. We disagree.
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . ." (U.S. Const., 6th Amend.) The California Constitution declares that "[t]rial by jury is an inviolate right and shall be secured to all . . . ." (Cal. Const., art. I, § 16.)
A trial court may "discharge a juror at any time before or after the final submission of the case to the jury if, upon good cause, the juror is 'found to be unable to perform his or her duty.' " (People v. Bennett (2009) 45 Cal.4th 577, 621.) A juror who harbors "actual bias" against a defendant is unable to perform his or her duty. (Code Civ. Proc., § 227, subd. (d).) Actual bias is "the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party." (Code Civ. Proc., § 225, subd. (b)(1)(C); see People v. Nesler (1997) 16 Cal.4th 561, 581 ["An impartial juror is someone 'capable and willing to decide the case solely on the evidence' presented at trial"].) A juror's inability to perform "must appear in the record as a 'demonstrable reality' and bias may not be presumed." (People v. Bennett, at p. 621.)
"[A]n appellate court's review of the decision to remove a seated juror is not conducted under the typical abuse of discretion standard, but rather under the 'demonstrable reality' test. . . . [¶] . . . [¶] . . . 'The demonstrable reality test . . . . requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that bias was established. It is important to make clear that a reviewing court does not reweigh the evidence under either test. Under the demonstrable reality standard, however, the reviewing court must be confident that the trial court's conclusion is manifestly supported by evidence on which the court actually relied. [¶] In reaching that conclusion, the reviewing panel will consider not just the evidence itself, but also the record of reasons the court provides.' " (People v. Fuiava (2012) 53 Cal.4th 622, 711-712.)
Here, the jurors testified that Juror No. 4 had made several statements indicating he harbored bias against the police. Several reported that Juror No. 4 said he would hold the prosecution to a higher standard because CRASH unit officers were involved in this case. The court expressly found the reporting jurors to be credible, and Juror No. 4 to be less credible. Based on that credibility call, the court found Juror No. 4 was biased.
When jurors testify that one of the jurors is biased, and the identified juror denies any bias, "the trial court must weigh the credibility of those whose testimony it receives, taking into account the nuances attendant upon live testimony. The trial court may also draw upon the observations it has made of the jurors during voir dire and the trial itself. Naturally, in such circumstances, we afford deference to the trial court's factual determinations, based, as they are, on firsthand observations unavailable to us on appeal." (People v. Barnwell (2007) 41 Cal.4th 1038, 1053.)
Here, the trial court stated that it credited the other jurors over Juror No. 4, and removed him for bias. The totality of the evidence supports its conclusion that Juror No. 4 judged police testimony by a different standard because the witnesses were police officers. Applying a different standard to the evaluation of a specific witness violates the juror's oath of impartiality. Based on this record we are satisfied that Juror No. 4's disqualifying bias was established to a demonstrable reality.
Perkins argues some of the other jurors were "simply upset" that Juror No. 4 was a lone holdout against a guilty verdict, and conspired to oust him, and the court erred in believing their testimony over his. But no juror indicated he or she was upset with Juror No. 4. On the contrary, to the extent we may gauge their feelings through the lens of the reporter's transcript, each juror seemed respectful toward Juror No. 4 and dispassionate about his approach to deliberations. Some simply believed he was biased. Certainly none informed the court specifically that Juror No. 4 was a lone holdout against a guilty verdict. The closest anyone came to such a statement were Jurors No. 1, who said of Juror No. 4, "I don't think he's biased. I just think that it's his opinion isn't agreeing with the rest of us, that's all"; and No. 12, who said that Juror No. 4 continued to deliberate, but "I do not think we would be able to change his mind." But neither juror testified he or she was upset over the disagreement. Perkins's argument that the jurors had unstated motives for conspiring against him is mere conjecture.
In any event, the evidence bearing on whether a juror has exhibited a disqualifying bias is often in conflict. "In such a case the trial court must weigh the credibility of those whose testimony it receives, taking into account the nuances attendant upon live testimony." (People v. Barnwell, supra, 41 Cal.4th at p. 1053.) Here, the trial court found the testimony of jurors who stated that Juror No. 4 had expressed or exhibited bias to be credible, and based its decision on that finding. We must defer to it.
D. Exclusion of Williams's Testimony
Perkins argues the trial court erred in excluding Williams's testimony. We disagree.
"Except as otherwise provided by statute, all relevant evidence is admissible." (Evid. Code, § 351.) Relevant evidence is that which tends in reason to prove or disprove a disputed fact of consequence. (Evid. Code, § 210.) A trial court must limit the introduction of evidence and argument to relevant and material matters. (Evid. Code, § 1044.)
We review a trial court's rulings on the admissibility of evidence for abuse of discretion, i.e., discretion that is exercised in an arbitrary, capricious or patently absurd manner. (People v. Merriman (2014) 60 Cal.4th 1, 74.)
Here, several police personnel testified at length about the evidentiary chain of custody in this case, identifying procedures that were not followed and explaining why. Williams offered to testify about the chain of custody and identify procedures that were not followed. Nothing he offered was different from what the prosecution had already admitted. Therefore, his testimony was properly excluded as having no tendency in reason to prove or disprove a disputed fact of consequence.
E. Perkins's Motion for Acquittal
At the close of the prosecution's evidence, Perkins moved for acquittal pursuant to section 1118.1, arguing the prosecution failed to establish the special allegation that the murder took place in the commission of a robbery, because Esmeralda did not see Perkins take anything from her father or the cash register. The court denied the motion. Perkins argues the court erred.
A defendant must be acquitted of a charged offense if insufficient evidence supports conviction. (People v. Lopez (2010) 185 Cal.App.4th 1220, 1228.) Our review of a trial court's ruling denying a motion for judgment of acquittal is governed by the same standard used to assess whether sufficient evidence supports a conviction. (People v. Cuevas (1995) 12 Cal.4th 252, 261.)
Here, Esmeralda saw appellant shoot Pena near the front counter area, and after he left, Pena's gun and wallet containing $600 were missing, and the cash register had been disturbed. " '[W]hen one kills another and takes substantial property from the victim, it is ordinarily reasonable to presume the killing was for purposes of robbery.' " (People v. Hughes (2002) 27 Cal.4th 287, 357.) A juror could reasonably infer from the facts that Perkins took the wallet and gun, and killed Pena to get them. Therefore, Perkins's motion was properly denied.
F. Perkins's Motion for New Counsel
Pretrial proceedings in this case lasted four years. On the first day of trial, Perkins, who had been accompanied by standby attorney Dave Houchin since the preliminary hearing, moved to relinquish his self-represented status, and asked for a continuance so he could retain a private attorney. The trial court denied the request as untimely. On the next two court days, Damon Hobdy, an attorney, requested leave to substitute in as Perkins's attorney or co-counsel, representing that although he had seen none of the discovery in the case, he needed only 15 to 45 days to prepare. The court denied these requests too as untimely. Perkins argues the court erred.
A defendant has the right to representation by retained counsel of his or her choice. (People v. Ortiz (1990) 51 Cal.3d 975, 982-983.) But the right " 'must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration.' " (People v. Courts (1985) 37 Cal.3d 784, 790.) A self-represented defendant has no constitutional right to advisory or hybrid counsel. (People v. Moore (2011) 51 Cal.4th 1104, 1120.) "[A] defendant who desires to retain his own counsel is required to act with diligence and may not demand a continuance if he is unjustifiably dilatory or if he arbitrarily desires to substitute counsel at the time of the trial." (People v. Blake (1980) 105 Cal.App.3d 619, 623-624.) In ruling on a motion to retain new or advisory counsel, the court considers the seriousness of the charges, the complexity of the case, and the defendant's reasons for seeking new or advisory counsel, including whether the defendant's purpose seems manipulative. (People v. Debouver (2016) 1 Cal.App.5th 972, 976.) A trial court's ruling on a motion to retain new or advisory counsel is reviewed for abuse of discretion. (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1411; People v. Crandell (1988) 46 Cal.3d 833, 863.)
Here, the case was serious and complex, involving a 27-year-old murder, with attendant challenges concerning witness memory and evidence preservation. By the time Perkins sought new counsel, the case had been pending for four years, extensive pretrial proceedings had occurred, and jury selection had begun. Further, although Perkins had standby counsel who was ready to take the case without delay, Perkins, on the first day of trial, sought representation by an attorney who had not reviewed the discovery in the case and thus would not have been ready to try the case that day. Under these circumstances, the court reasonably concluded that Perkins had failed to exercise due diligence in retaining counsel, and therefore acted within its discretion in denying his motions.
G. Post-Trial Motion to Disclose Juror Information
After trial, Perkins moved for disclosure of juror information, arguing Juror No. 4 had said in the proceedings leading to his dismissal that other jurors had conspired against him, and had independently told him that the standard of proof was a preponderance of the evidence. The court denied the motion. Perkins argues this was error.
In criminal proceedings, the jurors' personal identifying information must be sealed after the verdict is recorded. (Code Civ. Proc., § 237, subd. (a); People v. Johnson (2013) 222 Cal.App.4th 486, 492.) Although a defendant may gain access to such information for the purpose of developing a new trial motion (Code Civ. Proc., § 206, subd. (g)), to do so the defendant must show good cause for the disclosure (Code Civ. Proc., § 237, subd. (b)). To demonstrate good cause, the defendant must establish a reasonable likelihood that jury misconduct occurred, and show "that diligent efforts were made to contact the jurors through other means, and that further investigation is necessary to provide the court with adequate information to rule on a motion for new trial." (People v. Jones (1998) 17 Cal.4th 279, 317.) Speculative, conclusory, vague, or unsupported allegations fail to establish good cause. (People v. Munoz (2019) 31 Cal.App.5th 143, 165.) We review a court's order denying disclosure of juror identifying information for abuse of discretion. (People v. Johnson, at p. 492.)
Here, Perkins's motion was supported only by Juror No. 4's conclusory opinions about other jurors. A juror's "opinion alone, with no additional evidence," does not establish good cause to release juror information. (People v. Munoz, supra, 31 Cal.App.4th at p. 167.) We conclude the trial court acted within its discretion in finding no good cause warranted disclosure of the jurors' contact information.
H. CALCRIM No. 548
Perkins argues the trial court erred in failing to instruct the jury with CALCRIM No. 548, which states that when a defendant is prosecuted under two different murder theories, the jury need not agree on which theory applies, but must agree whether the murder was of the first or second degree. Perkins offers no authority supporting his argument, and no citation to the record nor explanation why the instruction was necessary, other than to assert that the jury, which at one point submitted a question to the court about whether both theories must apply, was "obviously confused." We deem the argument to be forfeited. (See Estate of Cairns (2010) 188 Cal.App.4th 937, 949.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
CHANEY, J. We concur:
BENDIX, Acting P. J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.