Opinion
F078901
04-07-2022
THE PEOPLE, Plaintiff and Respondent, v. JESUS MANUEL REYES, Defendant and Appellant.
Chris R. Redburn, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Timothy L. O'Hair, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. No. 14CMS-4797B, Robert S. Burns, Judge.
Chris R. Redburn, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Timothy L. O'Hair, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LEVY, ACTING P.J.
INTRODUCTION
In 2017, appellant Jesus Reyes and two codefendants were tried for the 2014 stabbing death of Roman Aguayo. The jury was unable to reach a verdict and a mistrial was declared. In 2019, appellant was tried alone and a subsequent jury convicted him of first degree murder (Pen. Code, § 187, subd. (a); count 1), finding true that this crime was committed with the specific intent to promote, further or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)). The jury also convicted appellant of active participation in a criminal street gang (§ 186.22, subd. (a); count 2). Appellant received an indeterminate prison term of 25 years to life.
All future statutory references are to the Penal Code unless otherwise noted.
The sentence in count 2 (active participation in a criminal street gang) was stayed. Appellant was also sentenced in an unrelated matter. In Kings County Superior Court case No. 18CMS-0440, appellant received a consecutive determinate prison term of nine years for attempted murder, with an additional three years for a gun enhancement, and another 10 years for a gang enhancement. Altogether, appellant had a determinate sentence of 22 years plus a consecutive indeterminate term of 25 years to life.
Appellant raises claims of instructional error and insufficiency of the evidence. He also asserts the trial court erred in excusing a juror. We reject his claims and affirm.
BACKGROUND
Appellant did not testify in this matter and the defense did not call any witnesses. We summarize the relevant procedural history of this matter. We also provide the material facts which support appellant's judgment and which are relevant to the issues raised in this appeal.
I. The First Trial That Resulted in a Hung Jury.
In 2017, appellant was tried for the 2014 murder of Roman Aguayo. Appellant's brother, Ismael Reyes, was a codefendant, as was Michael Phenneger. The prosecution argued that all three of them had attacked Aguayo and stabbed him to death. In October 2017, the jury was unable to reach a verdict and a mistrial was declared.
II. Appellant Is Tried Alone in 2019.
In April 2018, the trial court severed Phenneger from the Reyes brothers. Appellant and his brother went to trial in this matter in October 2018. However, the second jury panel was quashed because not enough potential jurors had responded to the summons and appeared in court. A new trial date was set.
In January 2019, a third jury trial started with appellant and his brother Ismael as codefendants. The trial court, however, determined it no longer had jurisdiction over Ismael, who was 15 years old when this murder occurred. In January 2019, appellant's trial started and he was tried alone.
The trial court dismissed Ismael's criminal matter but Ismael was held in custody for 72 hours to give the prosecution an opportunity to petition the juvenile court.
III. An Overview of Appellant's Trial.
At trial, it was undisputed that Aguayo had been stabbed to death. The prosecution established that three males had attacked him. An eyewitness, Rodolfo Ramirez, positively identified appellant in court as one of those three assailants. Ramirez's testimony, however, had substantial credibility concerns based on numerous prior inconsistencies and admitted lies to law enforcement.
During closing argument, appellant's trial counsel attempted to discredit Ramirez. The defense also asserted it was Ramirez, an admitted gang member, who must have committed this murder. According to defense counsel, Ramirez had created a false narrative to avoid his own criminal liability. Finally, defense counsel contended that the prosecution had failed to establish that appellant actively participated in a criminal street gang with an intent to promote, aid, and benefit the gang.
IV. Appellant Was Involved in This Fatal Attack.
The trial evidence established that Aguayo was stabbed to death on November 20, 2014, outside an apartment complex in Hanford, California. Aguayo's girlfriend, E.F., was present when the fatal incident occurred. Ramirez, who lived in this apartment complex, was also present and he witnessed the attack. Ramirez knew Aguayo because they had worked together at a meat company.
The jury learned that appellant also lived in this apartment complex.
Just prior to the fatal attack, Aguayo and E.F. had gone on a walk together. They lived near this apartment complex. Near the apartment complex, they saw Ramirez outside, and Aguayo and Ramirez greeted each other and acted friendly. After the two men stopped talking, Aguayo and E.F. walked closer to the apartments. It was then when three males began walking towards them.
It was the prosecution's theory during closing argument that the assailants had a gang motive to attack Aguayo. The prosecution presented evidence that demonstrated Aguayo had been an active gang member before moving to Hanford. E.F. told the jury that before the three males attacked Aguayo one of them had asked him if he "banged anything" or words to that effect. Aguayo had answered that "he didn't do none of that stuff." An assailant responded that he had "heard different" or "that's not what we heard."
Aguayo pushed one of the assailants, who fell down. The other two assailants began to punch Aguayo, hitting him everywhere. Aguayo was not fighting back. The male who had been pushed down jumped up and he began to hit Aguayo, too.
At the time of his autopsy, Aguayo's blood-alcohol level was 0.22 percent.
According to E.F., all three males began to punch Aguayo with their fists. She never saw a weapon. Aguayo fell to the ground. Before the assailants fled, one of them kicked Aguayo's head while he was on the ground.
At trial, Ramirez identified appellant as someone he knew from the apartment complex. Ramirez said he had smoked marijuana with appellant "a couple times" before Aguayo was killed. According to Ramirez, it was appellant who was the assailant that had spoken with Aguayo before the attack started. Aguayo had pushed appellant down. Ismael and Phenneger began hitting Aguayo on his head and his face. Appellant jumped up and he joined in attacking Aguayo, who was not hitting the assailants back. Ramirez never saw the assailants use any weapons. Aguayo fell to the ground and appellant and the other two assailants began to kick his head.
Ramirez testified that he never told appellant that he was no longer active in the gang to avoid any altercations or fights.
At some point after the assailants fled, Ramirez ran to his apartment. He retrieved his mother's cellular phone and he called 9-1-1. He asked for medical assistance for Aguayo. E.F. separately ran to an apartment seeking help, and an occupant called 9-1-1. Emergency personnel responded a short time later, and they found Aguayo in critical condition. When medical emergency personnel cut open his shirt, his intestines were seen protruding from his lower abdomen. Aguayo died from injuries he sustained during this attack.
Ramirez told the jury that appellant had been one of the three assailants who had attacked Aguayo, including kicking him after he had fallen down. Ramirez knew the other two assailants as Ismael and Michael. According to Ramirez, appellant's apartment was in the same direction from where the three assailants had emerged before confronting Aguayo. Ramirez told the jury that he was "100 percent sure" that appellant was one of the three people who had attacked Aguayo.
Phenneger's first name is Michael.
In contrast to Ramirez, E.F. never identified appellant in court as one of the assailants. Ramirez testified that, while this attack was underway, he saw E.F. covering her eyes with her fingers and yelling," 'Stop. Stop.'" About four or five days after this attack, police searched appellant's residence. He was spotted running from the area, and he was taken into custody. Police did not find any clothes or weapons inside his residence that were linked to this crime.
V. Aguayo Died from Multiple Stab Wounds.
Although neither Ramirez nor E.F. saw the three males attack Aguayo with weapons, it was undisputed that at least one of them, and perhaps more, had stabbed Aguayo with knives during this encounter. The pathologist found 11 stab wounds to Aguayo's body. Aguayo died due to exsanguination from multiple penetrating stab wounds, in particular to the left lung. The doctor who performed the autopsy found a variation between the different stab wounds. He opined at trial that the wounds were consistent with at least two knives. It was possible that three knives were involved, but he could not say for sure.
On cross-examination the doctor denied that his opinion regarding one, two or three knife blades was pure speculation. He said it was an opinion based on reasonable fact. He reiterated that a possible third knife had been used in killing Aguayo.
VI. Law Enforcement Searches Ramirez's Apartment.
About a day after this fatal attack, law enforcement searched Ramirez's apartment. They found clothing with blood on it. Ramirez admitted at trial that he had been surprised and worried that he was being investigated for this attack. He admitted at trial that he had initially appeared as a suspect.
Ramirez testified that he initially had no idea he had blood on his clothes and he did not know how the blood got there. After refreshing his memory with apparent photographs, Ramirez testified that some blood had been on his jacket, shirt and pants from that night. Ramirez told the jury that the blood got on the jacket because he interceded in the attack. According to Ramirez, the three assailants began to kick Aguayo after Aguayo fell down. Ramirez got on all fours to stop all three of them from kicking Aguayo's head. Ramirez denied that he ever got kicked and he denied that he ever got hit. Ramirez claimed that, as soon as he covered Aguayo, the attack stopped.
At trial, E.F. denied that the three assailants had looked like Ramirez. She testified that she did not know where Ramirez was while this attack was happening. She was never looking at Ramirez. She denied in court that Ramirez had been one of the three assailants. She denied that Ramirez ever hit Aguayo and she denied ever seeing Ramirez do anything to Aguayo that was even unfriendly. She said it "looked like" they were friends.
VII. Ramirez's Credibility Was Impeached at Trial.
At trial, Ramirez's credibility was impeached in multiple ways. Ramirez admitted to the jury that he was a Norteño gang member from Avenal. He had moved to Hanford to get away from the gang lifestyle. He told the jury that he had never dropped out of the gang. Instead, he was no longer active. He wanted to provide for his son and for his wife, pay bills, and work. He had moved with his wife and child to the apartment in Hanford because his mother lived there.
Ramirez testified that, when he lived in Avenal, he was active in the "Avenal Varrio Lomas" gang, which is known as "AVL." This is a Norteño gang. This gang associates with the South Side Locs, which is also a Norteño gang from Hanford. At trial, Ramirez denied being part of SSL. The prosecution's gang expert testified that Ramirez's gang and SSL are both Norteños and they "work together pretty well."
After moving, Ramirez continued to hang out with Norteños but not with members of his gang from Avenal. He testified that he continued to wear red clothing after moving because he did not want people to know that he was no longer an active Norteño. He did not want to be attacked. He said he tried his best to stop wearing gang-affiliated clothing but it was not that easy. He saw Norteño gang members every day in his apartment complex. He eventually interacted with these gang members to cover up that he was no longer an active Norteño gang member to avoid problems. He would smoke marijuana with them to "keep things in a calm environment." He admitted at trial that he used to get into fights when he was active in the gang.
The jury learned that Ramirez had repeatedly lied to law enforcement about his knowledge of this fatal incident. In his 9-1-1 call, Ramirez had told the dispatcher that he had not seen the attackers. He claimed at trial that he had lied because he would eventually be murdered for snitching, including testifying.
Ramirez admitted in court that he had changed his story when speaking with officers. He did not speak with police the night this fatal attack occurred. It was a day or two later. At trial, he admitted he had lied and was not honest with police. He did not initially tell them what he saw. He told the jury that he had been instructed not to speak with police as a gang member. When he initially talked with a detective he said he did not know anything and he could not identify the people who were involved in the incident. He denied knowing Aguayo.
Ramirez initially told law enforcement that Aguayo had coughed, which was why he had blood on his clothes. At trial, Ramirez agreed he had changed that story after he was told there was too much blood on his clothes for that. Ramirez testified that he started telling the truth when he learned that Aguayo was dead. He claimed he had not known at the scene the extent of Aguayo's injuries. He told the jury that learning Aguayo had been murdered changed everything. In court, he denied that he started telling the truth because police believed he was a suspect.
It was disclosed at trial that Ramirez had tried to create an alibi for himself for the night Aguayo was attacked. Ramirez told his family to tell law enforcement if they asked that he had just gotten home and had not been there all day. Ramirez admitted that, after he had called 9-1-1, he went inside and tried to grasp everything that had happened. He then went to a store.
At the time of his trial testimony, Ramirez was in witness protection. He had received about $200 in cash to relocate, and about $1,000 was paid by the prosecutor's office for a place for him to stay. Ramirez denied coming forward for the purpose of getting that money. After cooperating with law enforcement, a warrant for a suspended license had been removed from his record. Ramirez also admitted that, in exchange for his testimony, the prosecutor's office also dismissed more than one undisclosed misdemeanor against him.
Appellant does not challenge the sufficiency of the evidence supporting the jury's verdict in count 2 that he was an active gang member. Appellant also does not challenge the evidence supporting the jury's true finding in count 1 that he committed this murder to benefit a criminal street gang. As such, we only provide a cursory summary of the gang evidence.
At trial, the prosecution established that appellant was a gang member affiliated with the South Side Locs (SSL), which is a Norteño gang in Kings County and Hanford. Appellant's brother, Ismael, was "associating" with SSL when this crime occurred. Phenneger was an SSL member. The parties stipulated at trial that SSL is a criminal street gang.
The prosecution's gang expert was given a hypothetical that mirrored certain facts in this matter. The gang expert opined that this murder was done to benefit SSL, and it was committed in association with that gang.
DISCUSSION
I. The Trial Court Did Not Err in Failing to Instruct the Jury Regarding Accomplice Testimony.
With CALCRIM No. 301, the jury was instructed that the testimony of only one witness was sufficient to prove any fact. Appellant argues that instructional error occurred because the trial court failed to inform the jury it was required to consider whether Ramirez was an accomplice in this murder, which would have required corroboration of Ramirez's testimony. Because the trial court did not instruct the jury to consider Ramirez as an accomplice, appellant seeks reversal of his judgment.
A. Standard of review.
In a criminal case, a trial court must instruct on the general principles of law relevant to the issues raised by the evidence. (People v. Diaz (2015) 60 Cal.4th 1176, 1189.) Instruction is required for those legal principles" 'closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.' [Citations.]" (Ibid.) We review de novo a claim that a trial court failed to give a required jury instruction. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
B. Analysis.
Appellant notes that Ramirez was an older member of the same gang as the three assailants, and the jury received evidence that older gang members use and manipulate younger gang members. Ramirez was present during this attack, and his clothes were bloody. According to appellant, Ramirez fled on the night in question when Ramirez went to the store after first responders arrived on scene. Ramirez was initially a suspect, and Ramirez changed his story with law enforcement about what had transpired. Appellant argues the record supports a conclusion that Ramirez used younger gang members to commit this assault, but he then denied any knowledge of it. Appellant asserts a reasonable jury could have concluded that Ramirez was part of the planning and execution of this offense. According to appellant, the trial court was required to instruct the jury with CALCRIM No. 334 to consider whether Ramirez was an accomplice.Appellant contends that the lack of accomplice instruction, combined with the instruction that allowed the jury to credit Ramirez without corroboration, lowered the prosecution's burden of proof and violated his rights to due process.
CALCRIM No. 334 instructs a jury on the legal definition of an accomplice. If jurors decide that a witness was an accomplice, then they are instructed they may not convict the defendant solely based on the accomplice's statements or testimony unless it was corroborated by other independent evidence. CALCRIM No. 334 instructs that supporting evidence may be slight, and it does not need to be enough, by itself, to prove that the defendant is guilty of the charged crimes, and it does not need to support every fact mentioned by the accomplice. "On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime." (CALCRIM No. 334.)
We disagree that the trial court was required to instruct the jury with CALCRIM No. 334.
A defendant may not be convicted of a crime based on the uncorroborated testimony of an accomplice. (§ 1111.) "If sufficient evidence is presented at trial to justify the conclusion that a witness is an accomplice, the trial court must so instruct the jury, even in the absence of a request." (People v. Brown (2003) 31 Cal.4th 518, 555.) The defendant bears the burden to prove it is more likely than not the witness was an accomplice. (CALCRIM No. 334; see also People v. Belton (1979) 23 Cal.3d 516, 523 [a defendant bears burden to prove accomplice status by a preponderance of the evidence].)
An accomplice is someone who is subject to prosecution for the same crime charged against the defendant. (§ 1111.) A witness is deemed an accomplice if (1) he or she personally committed the crime or (2) he or she knew of the criminal purpose of the person who committed the crime; and (3) he or she intended to, and did in fact, aid, facilitate, promote, encourage, or instigate the commission of the crime, or participated in a criminal conspiracy to commit the crime. (CALCRIM No. 334.)
A trial court has no duty to instruct if the trial evidence is insufficient as a matter of law to support a finding that a witness is an accomplice. (People v. Hinton (2006) 37 Cal.4th 839, 879; People v. Lewis (2001) 26 Cal.4th 334, 369.) Evidence that both the defendant and the witness had access to the victim, and opportunity to inflict the injury, is insufficient by itself to require a sua sponte instruction on accomplice testimony. (People v. Lewis (2004) 120 Cal.App.4th 837, 849-850.) "Mere presence at the scene of a crime which does not itself assist its commission or mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting." (In re Michael T. (1978) 84 Cal.App.3d 907, 911.) Our Supreme Court has held that "[s]ubstantial evidence supporting sua sponte instruction on a particular defense is evidence that is 'sufficient to "deserve consideration by the jury, i.e., 'evidence from which a jury composed of reasonable [persons] could have concluded'"' that the particular facts underlying the instruction did exist. [Citations.]" (People v. Brooks (2017) 3 Cal.5th 1, 75.)
In this matter, the trial evidence did not demonstrate or even reasonably suggest that Ramirez was an accomplice in this murder. We reject appellant's contention that Ramirez was "deeply involved" in the attack that ended Aguayo's life.
Ramirez admitted in court that he knew appellant. He had smoked marijuana "a couple times" with appellant before this murder occurred. Ramirez said he also knew the other two assailants, Ismael and Phenneger.
Ramirez admitted being a gang member while living in Avenal. He was with the Norteños and the AVL, which is specific to Avenal. He testified that his gang associates with the SSL, which are both Norteños. Ramirez told the jury that he moved from Avenal to get away from the gang lifestyle. However, Ramirez testified that he never dropped out of the gang. Instead, he stopped being active after his first child was born. He wanted to provide for his son and for his wife, pay bills, and work. He said he had moved with his wife and child to the apartment in Hanford because his mother lived there. Ramirez reiterated that he was no longer active in the gang when he left Avenal to go live in Hanford. However, he also told the jury that, although he was not a dropout, he continued to have relationships with people he believed to be Norteños around the area he lived in Hanford, and he continued to be social with them, such as smoking marijuana.
Just before this attack started, Ramirez and Aguayo spoke to each other, and their conversation appeared friendly. When the three assailants first appeared and stopped in front of Aguayo, Ramirez was on the left side of Aguayo and he "just stood there." Although it is undisputed that Ramirez was present when this murder occurred, E.F. testified that Ramirez did not inflict the injuries which Aguayo suffered. E.F. also made it clear that Ramirez was not the one who made the initial verbal challenges to Aguayo. Instead, those came from one of the three younger males. At trial, Ramirez denied that the three assailants had interacted with him at all before they ran up to Aguayo.
In court, Ramirez denied that he had murdered Aguayo.
After this attack ended, Ramirez called 9-1-1. The jury heard a recording of his call to the dispatcher requesting medical assistance for Aguayo. Ramirez stayed at the crime scene until first responders arrived. At trial, E.F. was shown portions of footage from a responding officer's body camera. She identified Ramirez as being seen in the video. She reiterated that Ramirez did not look like the three boys who had attacked Aguayo.
Ramirez explained to the jury why he had blood on his clothes. He saw all three assailants kicking Aguayo's head after Aguayo fell to the ground. He testified that he "got in the middle" of the assault and was trying to break it apart. He touched Aguayo. He said it was possible he got blood on him.
Finally, the jury heard about the many inconsistencies and lies which Ramirez told regarding his involvement in this matter. However, Ramirez explained to the jury that he had been instructed not to speak with police as a gang member. He testified that, once he learned that Aguayo had died, that changed everything and he started telling the truth about this attack.
During closing argument, appellant's trial counsel suggested it was Ramirez who may have killed Aguayo. Defense counsel argued it was impossible to know what happened when E.F. ran to the apartment complex looking for someone to call 9-1-1. Counsel noted that the only blood found on anyone belonging to Aguayo was on Ramirez's clothes. According to defense counsel, although 11 stab wounds had been inflicted, they were all in one particular area on Aguayo's body. Counsel argued it was not reasonable to believe that Ramirez got in the middle of the fight, tried to pull Aguayo out, laid his body across Aguayo's while they were kicking and hitting him, but Ramirez was never hit. Defense counsel argued that Ramirez was a gang member who had a reason to place the blame on younger gang members from his apartment complex.
Although appellant can point to a possibility that Ramirez may have been involved in this attack, a possibility is nothing more than speculation, and speculation does not represent substantial evidence. (People v. Ramon (2009) 175 Cal.App.4th 843, 851.) The totality of this trial record does not reasonably suggest that Ramirez personally killed Aguayo or that he knew of the criminal purpose of the three assailants who attacked Aguayo. The evidence also does not demonstrate that Ramirez intended to, and did in fact, aid, facilitate, promote, encourage, or instigate the commission of the crime, or participated in a criminal conspiracy to commit this crime. (CALCRIM No. 334.) As such, sufficient evidence fails to establish or even reasonably suggest that Ramirez was an accomplice. Thus, the trial court had no duty to instruct the jury with CALCRIM No. 334. (See People v. Hinton, supra, 37 Cal.4th at p. 879; People v. Lewis, supra, 26 Cal.4th at p. 369.) Consequently, we reject this claim and reversal is not required.
Because the trial court did not have a sua sponte duty to instruct the jury with CALCRIM No. 334, we do not reach appellant's arguments regarding prejudice. We likewise do not address respondent's contention that sufficient evidence corroborated Ramirez's testimony if he was an accomplice as a matter of law.
II. Substantial Evidence Supports the Verdict in Count 1 for First Degree Murder.
In count 1, the jury found appellant guilty of willful, deliberate and premediated murder in the first degree. He received an indeterminate prison term of 25 years to life. He contends that this verdict must be reversed due to insufficient evidence.
A. Standard of review.
When considering a challenge to the sufficiency of the evidence to support a conviction, we review the record in the light most favorable to the judgment and decide whether it contains substantial evidence from which a reasonable finder of fact could make the necessary finding beyond a reasonable doubt. The evidence must be reasonable, credible and of solid value. We presume every inference in support of the judgment that the finder of fact could reasonably have made. We do not reweigh the evidence or reevaluate witness credibility. We cannot reverse the judgment merely because the evidence could be reconciled with a contrary finding. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.) The standard of review is the same in which a conviction is based primarily on circumstantial evidence. (People v. Clark (2016) 63 Cal.4th 522, 625.)
B. Analysis.
A murder that is perpetrated by a "willful, deliberate, and premeditated killing" is classified as murder of the first degree. (§ 189, subd. (a).)" 'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance. [Citations.] 'The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.…" [Citations.]' [Citation.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), our high court set forth the types of evidence sufficient to sustain a finding of premeditation and deliberation. The Anderson court divided the evidence into the following three categories:
(1) Facts about what the defendant did before the actual killing showing that the defendant was engaged in activity directed toward, and intended to result in, the killing (the" 'planning' activity"). (Anderson, supra, 70 Cal.2d at pp. 26-27.)
(2) Facts about the defendant's prior relationship or conduct (or both) with the victim from which the jury could reasonably infer a motive to kill the victim. The high court stated that an inference of motive, together with facts of planning activity or the nature of the killing (discussed next) would, in turn, support an inference that the killing resulted from a" 'pre-existing reflection' and 'careful thought and weighing of considerations' rather than 'mere unconsidered or rash impulse hastily executed' [citation] .…" (Anderson, supra, 70 Cal.2d at p. 27.) (3) Facts about the nature of the killing from which the jury could infer that the manner of killing was so particular that the defendant must have acted on a preconceived design to kill in a particular way for a reason that the jury can reasonably infer from facts of type (1) or (2). (Anderson, supra, 70 Cal.2d at p. 27.)
Our high court typically sustains verdicts of first degree murder when there is evidence of all three types above. (Anderson, supra, 70 Cal.2d at p. 27.) In the alternative, it requires at least extremely strong evidence of planning activity or evidence of motive in conjunction with either planning activity or the manner of killing. (Ibid.) Our Supreme Court has cautioned that the Anderson factors are merely a guide to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations. (People v. Thomas (1992) 2 Cal.4th 489, 517.) The Anderson factors are "not exclusive" or "invariably determinative." (People v. Combs (2004) 34 Cal.4th 821, 850.)
Appellant argues that nothing from this record shows (1) planning; (2) motive; or (3) a manner of killing sufficient to find first degree murder. He contends this was a chance encounter and Aguayo, who was very drunk, started the incident. Appellant claims he defended himself after Aguayo knocked him down.
We reject appellant's arguments. With the Anderson factors as a guide, we determine that the jury had substantial evidence to find premeditation and deliberation.
Aguayo had been an active gang member before moving to Hanford. The prosecution's gang expert opined that appellant and Phenneger were SSL gang members. Ismael was an associate of that gang. The parties stipulated that SSL is a criminal street gang.
Ramirez testified that this incident started when appellant, Ismael and Phenneger ran towards Aguayo. Appellant's apartment was in the same direction from where the three assailants came. They stopped when they reached Aguayo and E.F.
When the three assailants confronted Aguayo, appellant asked "if he banged anything." Aguayo said he "didn't do none of that stuff." Appellant responded that "he heard different" or "that's not what we heard." E.F. understood that Aguayo was being asked if he was in a gang. E.F. said that this question was asked in a "mean way." It was posed in a rude manner with "aggression to it."
Although E.F. could not remember which of the three assailants made this statement to Aguayo, Ramirez testified it was appellant who spoke to Aguayo.
Ramirez testified that appellant stood right in front of Aguayo. Ismael and Phenneger were a couple of feet away from Aguayo. According to Ramirez, appellant was only a couple of inches away from Aguayo, "like face-to-face." Ramirez heard appellant ask Aguayo something such as "are you a homie?"
The jury learned that an assault can start with questions like "do you bang?" and "are you a homie?" Asking if somebody is a "homie" is "essentially" asking if that person is a "Northerner" gang member. The question whether someone bangs is a challenge asking, "who are you?" and "what are you doing here?"
The prosecution's gang expert testified that gang members such as appellant could not allow someone like Aguayo to disrespect them by walking through their territory. Based on a hypothetical that assumed Aguayo had dropped out of the Norteño gang, the gang expert opined that this murder would have benefited appellant's gang, SSL, because dropouts are not permitted.
Aguayo pushed appellant down after appellant verbally challenged him. The other two assailants started to beat Aguayo. Appellant jumped up and he joined in attacking Aguayo, who was not hitting the assailants back.
Aguayo was stabbed 11 times. He died due to exsanguination from multiple penetrating stab wounds, in particular to the left lung. The medical doctor who performed the autopsy opined that the wounds were consistent with at least two knives. It was possible three knives were involved, but he could not say for sure. After Aguayo fell to the ground, appellant, Ismael and Phenneger all kicked Aguayo's head before fleeing.
During cross-examination, the doctor denied that his opinion regarding the possibility of two or three knives being involved in this attack was speculation. He said his opinion was based on reasonable fact. Later, the doctor reiterated that a possible third knife was involved.
When the Anderson factors are considered, substantial evidence supports the jury's first degree murder verdict. This record demonstrates some planning activity because the jury could have reasonably determined the three assailants purposefully brought knives with them to confront Aguayo. A clear gang-related motive exists for this murder because appellant used a gang challenge when confronting Aguayo, and evidence demonstrated that Aguayo was a former gang member. Finally, the manner of this killing suggests a preconceived design to kill. The three assailants repeatedly stabbed Aguayo until he collapsed. They kicked his head while Aguayo lay defenseless. "A violent and bloody death sustained as a result of multiple stab wounds can be consistent with a finding of premeditation." (People v. Pride (1992) 3 Cal.4th 195, 247.)
Under these circumstances, it is appropriate to sustain the jury's first degree murder conviction because evidence of motive exists, along with some planning activity and some evidence of a manner of killing that shows a design to kill in a particular way. (See People v. Edwards (1991) 54 Cal.3d 787, 813-814; see also People v. Lucero (1988) 44 Cal.3d 1006, 1018 [although no single Anderson factor was particularly strong, at least some evidence was presented on each and evidence was sufficient when considered in combination].) Based on this record, the jury had substantial evidence to find appellant guilty beyond a reasonable doubt of first degree murder based on a theory of willfulness, premeditation and deliberation. This evidence was reasonable, credible and of solid value. Accordingly, reversal is not warranted and this claim fails.
III. The Trial Court Did Not Abuse Its Discretion in Excusing a Juror During Trial.
After the jury began hearing testimony in this matter, the trial court dismissed one of the sitting jurors (hereinafter Juror No. 12) and an alternate juror was appointed. Appellant asserts that the trial court erred. Appellant seeks reversal of his convictions, arguing he was deprived of his constitutional rights.
A. Background.
The trial court excused Juror No. 12 after three witnesses (all police officers) had testified in this matter. Concerns about Juror No. 12 started when one of the detectives in this matter, Richard Pontecorvo, alerted the prosecutor that Juror No. 12 may have been dishonest during jury selection or neglected to inform the court and the parties "about his affiliation with a criminal street gang called Vagos."
Pontecorvo informed the court that he had looked at Juror No. 12's Facebook page after being told by another investigator that Juror No. 12 was possibly linked to the victim of an unrelated homicide. According to Pontecorvo, the Facebook page showed that Juror No. 12 was "entrenched with the Vagos motorcycle gang, and all his associates and friends are Vagos, showing guns, things like that."
Pontecorvo stated he was familiar with Vagos due to his experience with a Hell's Angels' case in the early 2000's. The court interjected that he had been a prosecutor on that case, and Pontecorvo had been one of its investigators.
The court asked if Juror No. 12 had been wearing any "patches" for Vagos. Pontecorvo denied that but stated Juror No. 12 was "wearing the colors, and even in the photos-I mean it's common for them just to wear bandanas, shirts like that." Pontecorvo clarified that the colors for Vagos were green and white. Pontecorvo denied that Juror No. 12 was seen possessing any guns. According to Pontecorvo, the photos showed a lot of Juror No. 12's "friends, associates throughout California, mostly in the San Bernardino/Riverside area, Nevada, things like that. Obviously there's no set club in our area." According to Pontecorvo, this occurred "mostly down south and up north."
The prosecutor noted to the court that Juror No. 12 was wearing his "gang's colors" in the courtroom that day. The court responded that two jurors were wearing green. The court asked if both were Vagos members. The prosecutor stated that he did not know.
The court believed it had heard of Vagos coming through Tulare County but not actually being in Kings County. Pontecorvo agreed with that statement and also agreed with the court's understanding that Vagos was not seen very often in Tulare County.
The court asked if other people were seen in the photographs wearing patches for Vagos. Pontecorvo responded, "Yes, they are, and he's included in one. His profile picture has him up there surrounded by guys in … their cuts, and it says 'fuck the others.'" Pontecorvo clarified that "cuts" meant "vests" and this term was sometimes used for vests that have patches on them. Pontecorvo stated that Juror No. 12 was seen wearing green bandanas and shirts. Pontecorvo stated that when "they" are not wearing their vests or hats "they signify with the color green."
The court stated it was not concerned with the other homicide investigation possibly involving Juror No. 12. Instead, the court was concerned it had asked the potential jurors if they or anyone with whom they have a close relationship has ever been suspected of, or accused of, or been associated with a criminal street gang. The court had also asked potential jurors if they or someone close to them had ever been accused of possessing gang paraphernalia, including clothing. The court was troubled that Juror No. 12 had not answered those two questions.
The court stated it was going to question Juror No. 12. The court invited the attorneys to submit potential questions for consideration. Before Juror No. 12 came out, neither attorney had any suggested questions.
The court questioned Juror No. 12 outside the presence of the other jurors but with both parties present. The court asked Juror No. 12 if he was familiar with a motorcycle club called the Vagos. Juror No. 12 answered in the affirmative, admitting that he knew "them" and he had friends that were part of Vagos.
According to Juror No. 12, he rode a motorcycle and he was part of a "family club" called Los Unidos. Juror No. 12 denied that his club was part of Vagos. However, he admitted that "we go to their like toy runs and stuff like that." Juror No. 12 admitted that he has a Vagos patch on his club vest. The court asked how many patches were on the vest and Juror No. 12 stated there are two patches.
The court asked Juror No. 12 why he did not bring up Vagos when asked whether he or anyone he knows "was associated with a criminal street gang or a street gang." Juror No. 12 stated that he did not think Vagos was a criminal gang. He said the functions he had attended were "for the community and stuff." The court asked why Juror No. 12 did not respond to the question about clothing paraphernalia. Juror No. 12 stated, "I mean I don't see them as criminals, it's a brotherhood, and things are different. It's not like the old days." The court made a reference to the "wars" that had previously occurred. Juror No. 12 answered, "Right. But I think they still have-they have a bad rep or whatever. But, yeah, they're running things way different."
Juror No. 12 agreed with the court's assessment that he (Juror No. 12) was aware of Vagos's reputation but he did not view Vagos as being "criminally oriented." Instead, Juror No. 12 viewed Vagos more as "a community group." The court commented that, when Juror No. 12 was "referring to the old days, you are talking about Vagos, Hell's Angels, Monguls, Pagans, all those guys for [a while] were shooting and stabbing each other left and right because they were all fighting over territory." Juror No. 12 responded that they had been fighting over "[t]erritory and stuff" but they had new members and things were different. Juror No. 12 reiterated that he did not think Vagos was a gang. He said he had not realized the attorneys might have wanted to know this information. The court had Juror No. 12 return to the deliberation room. He was instructed to not discuss this matter with other jurors.
The prosecutor asserted that Juror No. 12 had not been forthcoming with the court during voir dire. The court noted that Juror No. 12 was aware of Vagos's reputation. The court stated its belief that motorcycle gangs have "a common tenant" to state they are not a gang but are incorporated and act as "a community entity." The court said it was not convinced that Juror No. 12 did not understand that some of the court's questions "would have brought his associations with the Vagos into play." The court felt this was true particularly with Pontecorvo's representations that the people were displaying firearms in some of the photos. The court felt that this was consistent in its experience regarding "how motorcycle gangs describe themselves." The court's inclination was to remove Juror No. 12 for his failure to disclose this information for the parties to be able to exercise their peremptory challenges intelligently.
Appellant's trial counsel objected, stating that Juror No. 12's responses had not violated the court's questions. According to defense counsel, the court had asked about "a criminal street gang," and Juror No. 12 did not believe Vagos was a criminal street gang. Defense counsel noted that Pontecorvo had never said there were guns in the photographs with Juror No. 12.
The court responded that Pontecorvo had said there were pictures of "them displaying guns." The court did not believe it mattered whether Juror No. 12 was in those photographs or not. Instead, "that would be a clue that that club may still be involved in criminal activity, particularly since he's aware of their reputations in the past."
Defense counsel noted that anybody could post on Juror No. 12's Facebook page. The court did not find that convincing, concluding that those photos would have put Juror No. 12 on notice. Juror No. 12 was called back into the courtroom, and the court informed him that he would be excused from the jury. The court stated that this was "something that should have been disclosed, and part of the reason is the District Attorney or the defense might have wanted to exercise one of their peremptories if they had known that information, and since that wasn't related to them, they were kind of denied that opportunity."
Juror No. 12 stated that he did not think it was "a big deal because I mean, you know, they do toy runs for the kids, you know? And we support that, so-" The court said it understood that Juror No. 12 was not a member of Vagos, but only associated with it. Juror No. 12 agreed with that representation.
The court stated that this was why it had asked the questions. However, the court noted that it had asked these questions on Monday and Juror No. 12 was not questioned until Tuesday afternoon as a potential juror. The court said it understood it was easy to forget some of this information but the court believed the district attorney, and probably the defense, would have wanted to know.
B. Standard of review.
A trial court has broad discretion to investigate and remove a juror during trial if it finds that, for any reason, the juror is no longer able or qualified to serve. (People v. Boyette (2002) 29 Cal.4th 381, 462, fn. 19.) Although the decision to remove a juror on such grounds is committed to the discretion of trial courts in the first instance, a reviewing court must ask "whether the grounds for such removal appear in the record to a demonstrable reality." (People v. Wilson (2008) 44 Cal.4th 758, 824.)
C. Analysis.
Appellant argues that Juror No. 12 did not commit misconduct. According to appellant, the questions posed during voir dire were not sufficiently specific to elicit a response from Juror No. 12. Appellant notes that the prospective jurors were never asked about a "motorcycle club" but, instead, were asked about "criminal street gangs" and that term was never defined. Appellant contends that Juror No. 12 "made no misrepresentations and did not fail to fully respond to voir dire." Appellant maintains that nothing demonstrates that Juror No. 12 was unable to perform his duties as a juror because nothing shows an actual or implicit bias. Appellant asserts that Juror No. 12 (who was asked to respond to the court's voir dire questions over a day after they were posed) either misunderstood or simply forgot with the passage of time. Appellant concludes that Juror No. 12 acted in good faith and his failure to respond was "unintentional." Finally, appellant argues that the trial court improperly relied on its own experience as a prosecutor to justify excusing Juror No. 12. Appellant asserts that his constitutional rights were impacted because he was denied his right to a full and fair trial by an impartial jury.
Appellant cites numerous authorities to support his arguments. However, he emphasizes four opinions: (1) People v. Jackson (1985) 168 Cal.App.3d 700 (Jackson); (2) People v. Dyer (1988) 45 Cal.3d 26 (Dyer); (3) People v. Wilson, supra, 44 Cal.4th 758 (Wilson); and (4) Sanders v. Lamarque (9th Cir. 2004) 357 F.3d 943 (Sanders). He contends that these opinions are analogous to this matter and mandate reversal.
We summarize the law regarding when it is proper to remove a sitting juror. We provide an overview of a prospective juror's obligation to provide correct information during voir dire. We summarize appellant's four cited opinions. We then explain why the record supports the trial court's decision to excuse Juror No. 12.
1. Grounds to remove a juror.
A trial court is empowered to remove a juror before or after the final submission of the case to the jury based on several factors, including if "good cause" is shown that a juror is "unable to perform his or her duty." (§ 1089.) Our Supreme Court holds that the basis for a juror's disqualification must appear on the record as a "demonstrable reality." (People v. Barnwell (2007) 41 Cal.4th 1038, 1052; see also People v. Armstrong (2016) 1 Cal.5th 432, 450 [reiterating standard].) This standard involves "a more comprehensive and less deferential review" than simply determining whether any substantial evidence in the record supports the trial court's decision. (People v. Barnwell, supra, 41 Cal.4th at p. 1052.) It must appear "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." (Id. at pp. 1052- 1053.) However, in applying the demonstrable reality test, an appellate court does not reweigh the evidence. (Id. at p. 1053.) The inquiry is whether "the trial court's conclusion is manifestly supported by evidence on which the court actually relied." (Ibid.)
2. A juror may be removed for concealing relevant facts.
A prospective juror's false answers or concealment during voir dire prevents a party from exercising a peremptory challenge over a belief the prospective juror "cannot be fair and impartial." (In re Hitchings (1993) 6 Cal.4th 97, 111.) If voir dire questioning is sufficiently specific to elicit the information which is not disclosed, or as to which a false answer is later shown to have been given, the defendant has established a prima facie case of concealment or deception. (People v. Blackwell (1987) 191 Cal.App.3d 925, 929 (Blackwell).)
Blackwell involved a battered wife who shot and killed her abusive alcoholic husband. (Blackwell, supra, 191 Cal.App.3d at pp. 927-928.) Juror misconduct was established when a juror failed to disclose during voir dire that she had experienced domestic violence. "The line of questioning by counsel and the court was sufficiently clear to alert her to provide information about her own prior experiences." (Id. at pp. 929-930.) The juror never indicated that she misunderstood or was confused by the questions during voir dire. (Id. at p. 930.) She never stated that "she failed to inform the court of her abusive first husband during voir dire because of oversight or forgetfulness." (Ibid.) The appellate court found misconduct because the juror had deliberately concealed relevant information by giving false answers. (Ibid.)
A juror commits misconduct when he or she conceals relevant facts or gives false answers during the voir dire examination. (Wilson, supra, 44 Cal.4th at pp. 822-823; In re Hamilton (1999) 20 Cal.4th 273, 295; In re Hitchings, supra, 6 Cal.4th at p. 111; People v. Morris (1991) 53 Cal.3d 152, 183-184 ["Concealment by a potential juror constitutes implied bias justifying disqualification."], disapproved on other grounds by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) However, "[a]lthough intentional concealment of material information by a potential juror may constitute implied bias justifying his or her disqualification or removal [citations], mere inadvertent or unintentional failures to disclose are not accorded the same effect. '[T]he proper test to be applied to unintentional "concealment" is whether the juror is sufficiently biased to constitute good cause for the court to find" that the juror "is unable to perform his duty." (People v. McPeters (1992) 2 Cal.4th 1148, 1175, superseded by statute on another ground as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.)
3. Appellant's cited authorities.
We summarize the four opinions which appellant emphasizes.
a. Jackson.
In Jackson, supra, 168 Cal.App.3d 700, the defendant was convicted of possession of marijuana for the purpose of sales. His sole contention on appeal was that error had occurred when the trial court did not excuse a juror. (Id. at p. 702.) During voir dire, defense counsel asked a "catch-all question" in which he wanted prospective jurors to respond if anyone had "anything in their background" that they would not want him to know. Defense counsel referred to this "as the skeleton in the closest question." The juror at issue did not respond to this question. (Ibid.) During jury deliberations, however, the juror alerted the court that his nephew had died from "drug related reasons" about 12 to 14 years before. The juror claimed that he had just remembered this fact. (Id. at p. 703.) The trial court declined a defense suggestion to excuse the juror and substitute an alternate. (Ibid.)
The Jackson court found no error, determining that defense counsel's question had been "inartfully framed." (Jackson, supra, 168 Cal.App.3d at p. 705.) The juror had unintentionally failed to provide this information during voir dire. Nothing demonstrated that the juror was sufficiently biased to constitute good cause for his removal. The appellate court concluded that an abuse of discretion was not present. The juror had stated that his decision would not be affected, and the trial court had drawn a reasonable inference that the juror was only coming forward because he was conscientious in his duty. (Id. at p. 706.) The judgment was affirmed. (Id. at p. 707.)
b. Dyer.
In Dyer, supra, 45 Cal.3d 26, the defendant was convicted of multiple violent crimes, including two counts of first degree murder, and he was sentenced to death. (Id. at pp. 36-37.) On appeal, the defendant asserted he was denied his right to an impartial jury because one of the jurors allegedly gave an incorrect or incomplete response to a voir dire question asking whether any member of her family had been a crime victim. (Id. at p. 58.) At the conclusion of the guilt phase of the defendant's trial, defense counsel learned that the juror in question had a brother who had been killed a few years earlier. (Ibid.) The juror admitted to the court that her brother had been shot and killed five years ago, but she believed it had been an accident. She was uncertain if criminal charges had ever been brought against the assailant. (Ibid.) Defense counsel moved for a mistrial observing that the juror's brother apparently had been shot in the head. The court denied the motion, finding that the juror had told the truth when she said she thought her brother's death had not been a crime. (Id. at pp. 58-59.)
The Supreme Court concluded that the defendant's questions during voir dire had been ambiguous. (Dyer, supra, 45 Cal.3d at p. 59.) The defense had not asked "whether any member of the family had been shot or killed by another person." (Ibid.) There was no evidence that the juror had lied when she answered" 'no' to the question and its reference to 'crime victims.'" (Ibid.) The Dyer court held that no abuse of discretion had occurred when the trial court denied the defendant's motion for a mistrial. (Ibid.)
c. Wilson.
In Wilson, supra, 44 Cal.4th 758, the defendant was sentenced to death following a conviction of first degree murder. The California Supreme Court affirmed the judgment of guilt but reversed the penalty judgment because the trial court had erroneously excused a juror (Juror No. 5) during the penalty phase deliberations. Juror No. 5 had been the sole person holding out for a life sentence. (Id. at p. 769.) The defendant is African-American, as is Juror No. 5. (Id. at p. 813.) It was another juror who raised concerns with the trial court that Juror No. 5 was not deliberating appropriately. Based on numerous reasons, the trial court removed Juror No. 5 and replaced him with an alternate. (Id. at p. 814.) One reason for removal was Juror No. 5's failure to disclose his "race-based biases" during voir dire. (Id. at p. 820.) The trial court concluded that Juror No. 5 exhibited "a fundamental racial bias" and was "improperly considering race in contradiction of his instructions and statements on voir dire." (Id. at p. 819.)
During voir dire, Juror No. 5 had affirmed that he would not consider the defendant's race to benefit or disadvantage him. Juror No. 5 had also affirmed that he would treat the defendant like he would anyone else. (Wilson, supra, 44 Cal.4th at p. 823.) However, during penalty phase deliberations, Juror No. 5 had viewed the mitigating evidence favorably because the defendant came from a broken, disadvantaged family. Juror No. 5 explained to the trial court that he did not view the evidence favorably simply because the defendant was African-American. Instead, Juror No. 5 suggested that, had the defendant enjoyed the benefits his own son had growing up, he would consider death as a possible penalty for the defendant's crimes. (Id. at p. 823.)
The Supreme Court concluded that the record failed to demonstrate that Juror No. 5 had concealed anything during voir dire. "He was never asked whether he would interpret evidence of any abuse [the] defendant may have suffered as a child through the prism of his own experiences; indeed, we expect jurors to use their own life experiences when evaluating the evidence." (Wilson, supra, 44 Cal.4th at p. 823.) Moreover, although the trial court had apparently concluded that Juror No. 5 had concealed certain race-based assumptions regarding the nature of family dynamics in African-American families, Juror No. 5 had never been asked about that subject. (Ibid.) In any event, the high court held that a "failure to express his views about African-American family dynamics" was insufficient to justify removal from the jury because such a belief did not demonstrate good cause, i.e., that Juror No. 5 was unable to perform his duty as a juror. (Id. at pp. 823-824.) Finally, any concealment during voir dire had been unintentional, and the totality of the circumstances did not establish to a demonstrable reality that Juror No. 5 was unable to perform his duty as a juror. (Id. at p. 824.) The high court affirmed the judgment of guilt but, because the trial court improperly discharged Juror No. 5 during penalty phase deliberations, it reversed the penalty phase judgment. (Id. at p. 842.)
d. Sanders.
In Sanders, supra, 357 F.3d 943, the Ninth Circuit affirmed the judgment of the district court, which had granted the defendant's petition for a writ of habeas corpus based on the state trial court's dismissal of the lone holdout juror (Juror No. 4). (Id. at p. 944.) The Ninth Circuit concluded that the record failed to support the state's argument that Juror No. 4 had been biased. (Id. at p. 949.) The trial court had asked prospective jurors whether they were familiar with the general area of the charged murder, but Juror No. 4 had not responded. (Id. at p. 947.) The court had also asked prospective jurors if anyone had family members who were gang members, or lived or worked in an area with gang activity, but Juror No. 4 did not respond. (Ibid.) After deliberations started, it came to light that Juror No. 4 had once lived (about 25 years before) about 20 blocks from the neighborhood at issue. It was also discovered that her sons had associated with gangs. When questioned by the court, the juror explained that she did not respond to the questions during voir dire because she did not currently live in a gang area, and her sons (who were in their mid- and late-30's) had been teenagers when they had lived in a gang area. (Ibid.) The trial court removed the juror and seated an alternate. (Ibid.)
The Ninth Circuit agreed with the district court's assessment that Juror No. 4 had "provided responsive and direct answers to questions posed to her, that she was forthcoming with information during voir dire, that there was no evidence that she intentionally or unintentionally concealed information, and that there was no evidence that she harbored bias or impermissible prejudice during the deliberation process." (Sanders, supra, 357 F.3d at p. 949.) The appellate court found it highly significant that the trial court made a preliminary determination that the juror was impartial and objective, and decided to dismiss her only after considering the prosecutor's argument that he would have challenged her if he had known of her life experiences. (Id. at pp. 949-950.) The Ninth Circuit concluded that the prosecutor's failure to discover any relevant information about Juror No. 4 was due to his own lack of diligence and not to the concealment of information. (Id. at p. 950.)
4. The facts from this matter.
Applying the heightened standard of review that governs our assessment of a trial court's decision to discharge a juror under section 1089, we conclude that the court did not abuse its discretion in discharging Juror No. 12.
The prospective jurors in this matter were asked during voir dire if anyone had any affiliation with a criminal street gang, or had ever been accused of possessing gang paraphernalia, including clothing. We reject appellant's argument that these questions were ambiguous or somehow not sufficient enough to elicit a response from Juror No. 12. He had photos on his Facebook page that depicted individuals displaying firearms while wearing colors and patches for the Vagos motorcycle gang. Juror No. 12 was seen wearing Vagos's colors (green and white). His "profile picture" had him "surrounded by guys" in their vests and it said," 'fuck the others.'" He admitted to the court that he wears a Vagos patch on his vest. Although Juror No. 12 denied that he thought Vagos was a criminal organization, he agreed with the court's representation that prior "wars" had occurred involving Vagos. Juror No. 12 stated there had been fighting over "[t]erritory and stuff" but things were different now. When the trial court excused him, Juror No. 12 agreed with the court's understanding that, although he was not a member, he had an association with Vagos.
Juror No. 12 made it clear when questioned by the court that he was aware of Vagos's past criminal reputation. His answers to the court, coupled with Pontecorvo's representations regarding the contents of the photos on Juror No. 12's Facebook page, adequately support the trial court's conclusion that Juror No. 12 had concealed material information during voir dire. His failure to disclose this relevant information establishes a prima facie showing of concealment or deception. (See Blackwell, supra, 191 Cal.App.3d at p. 929.) Juror No. 12's silence on this topic prevented either party from making an informed decision whether to seek his removal during voir dire. Under these circumstances, Juror No. 12's concealment of these relevant facts was grounds for his removal because a juror commits misconduct when he or she conceals relevant facts or gives false answers during the voir dire examination. (See Wilson, supra, 44 Cal.4th at pp. 822-823; In re Hamilton, supra, 20 Cal.4th at p. 295; In re Hitchings, supra, 6 Cal.4th at pp. 110-111; People v. Morris, supra, 53 Cal.3d at pp. 183-184.)
Appellant argues it is irrelevant whether or not the prosecution missed an opportunity to peremptorily challenge Juror No. 12. Appellant notes that the Ninth Circuit has held that a trial court "may not remove a juror to accommodate the prosecution's desire to exercise a peremptory challenge after a jury has been impaneled." (Sanders, supra, 357 F.3d at p. 948.) This law from the Ninth Circuit is irrelevant to the present matter because the trial court never stated it was excusing Juror No. 12 because the prosecution missed an opportunity to peremptorily challenge Juror No. 12. Instead, the court made it clear it was concerned that Juror No. 12 had failed to provide relevant information so that both parties could make an informed decision.
In People v. Price (1991) 1 Cal.4th 324 (Price), the prosecutor informed the trial court during the guilt phase of trial that a juror (Juror No. 3) had been" 'less than candid'" during voir dire. The prosecutor had information that Juror No. 3 had failed to disclose prior criminal charges and a conviction. (Id. at p. 399.) During voir dire, all prospective jurors had been asked by questionnaire whether they had been involved in a criminal proceeding as a defendant or witness. Juror No. 3 had responded to this question with the statement that he had once been a witness. When asked if he knew any of the prosecution witnesses, Juror No. 3 had failed to reveal that one such witness had been his parole officer. (Ibid.) The trial court questioned Juror No. 3, who admitted he had pleaded guilty to a prior offense, but "he said he had relied on a legal interpretation he had received from the State of Oregon stating that a full pardon 'totally obliterates' a conviction." (Ibid.) He said he" 'saw no reason'" to mention his prior relationship with the parole officer because it was" 'over and done.'" (Id. at pp. 399-400.) He said he was not guilty of another alleged offense, and he had not thought it necessary to disclose that charge because it had been dismissed. (Id. at p. 400.) He admitted that a prior charge had" 'ruined a military career'" for him, but he denied "harboring any grudges against the system. He said he could be fair and impartial to both sides in this case." (Ibid.) The prosecutor moved to disqualify Juror No. 3, and defense counsel opposed the motion. The trial court excused Juror No. 3 and substituted an alternate juror in his place. The court explained that" 'material information'" had been concealed, which had denied the prosecution "the opportunity to intelligently exercise its peremptory challenges." (Ibid.)
The California Supreme Court concluded that the information concealed by Juror No. 3 "was material." (Price, supra, 1 Cal.4th at p. 400.) When considered in light of Juror No. 3's conduct, substantial grounds existed to infer that he was "biased against the prosecution, despite his protestations to the contrary." (Id. at pp. 400-401.) The high court held that an abuse of discretion had not occurred when the juror had been discharged and an alternate seated in his place. (Id. at p. 401.)
Price is instructive. There, the Supreme Court did not require a showing of actual bias to affirm the trial court's decision to remove the juror for failure to respond fully during voir dire. As in Price, the court here excused Juror No. 12 because he had concealed" 'material information'" which had denied both parties the opportunity to intelligently exercise peremptory challenges. (Price, supra, 1 Cal.4th at p. 400.) Juror No. 12's answers and the images displayed on his Facebook page suggested a predisposition to view gangs or gang activity in a positive way. Thus, similar to Price, this could support a reasonable inference that Juror No. 12 held a bias unfavorable to the prosecution. (Id. at pp. 400-401.) Consistent with Price, an abuse of discretion did not occur when the trial court felt it was appropriate to discharge Juror No. 12 and seat an alternate in his place. (Id. at p. 401.)
The four opinions upon which appellant focuses are distinguishable. Unlike what occurred in Jackson, Dyer, Wilson and Sanders, the trial court's voir dire questions to the prospective jurors were not ambiguous, and Juror No. 12 should have responded and disclosed his association with Vagos. His failure to respond suggests a concealed bias. Appellant's cited opinions do not mandate reversal. (See Jackson, supra, 168 Cal.App.3d at p. 705; Dyer, supra, 45 Cal.3d at p. 59; Wilson, supra, 44 Cal.4th at p. 823; Sanders, supra, 357 F.3d at p. 949.)
We are not persuaded that Juror No. 12's omission was unintentional. Juror No. 12 never stated that he failed to provide this information because he had forgotten about the relevant voir dire questions when it became his turn to respond to the court and parties during jury selection. He did not claim confusion about this subject. Instead, it is apparent that he made a self-determination that he need not disclose his association with Vagos. The trial court believed that Juror No. 12's omission warranted his removal. This record supports the trial court's implied finding of misconduct.
Appellant contends that a juror may only be removed if he is "actually biased" and a showing is made that he is unable to perform his duties. He cites various opinions to support this proposition, including (1) People v. Nesler (1997) 16 Cal.4th 561, 578-581 (Nesler); (2) People v. McPeters, supra, 2 Cal.4th 1148, 1175 (McPeters), superseded by statute on another ground as stated in Verdin v. Superior Court, supra, 43 Cal.4th 1096, 1106; and (3) People v. Lomax (2010) 49 Cal.4th 530, 589 (Lomax). These authorities do not assist him.
Lomax is inapplicable because it involved a juror who refused to deliberate. The trial court conducted a lengthy inquiry and gave detailed reasons for discharging the juror in question. (Lomax, supra, 49 Cal.4th at p. 582.) The Supreme Court found that the record reflected "a demonstrable reality" that the juror was unable to perform his duty as a capital juror "because he was conscientiously opposed to the death penalty and was refusing to deliberate with his fellow jurors." An abuse of discretion did not occur. (Ibid.)
Likewise, Nesler is inapposite to the present matter, and it does not support appellant's claim that actual bias had to be established to remove Juror No. 12 for failure to disclose relevant information during voir dire. Nesler holds that "[j]uror misconduct, such as the receipt of information about a party or the case that was not part of the evidence received at trial, leads to a presumption that the defendant was prejudiced thereby and may establish juror bias." (Nesler, supra, 16 Cal.4th at p. 578.) "When juror misconduct involves the receipt of information about a party or the case from extraneous sources, the verdict will be set aside only if there appears a substantial likelihood of juror bias." (Ibid.) If a "substantial likelihood" exists that a juror was actually biased, the verdict must be set aside no matter how convinced an appellate court "might be that an unbiased jury would have reached the same verdict, because a biased adjudicator is one of the few structural trial defects that compel reversal without application of a harmless error standard." (Id. at p. 579.)
Finally, McPeters holds that "[a]lthough intentional concealment of material information by a potential juror may constitute implied bias justifying his or her disqualification or removal [citations], mere inadvertent or unintentional failures to disclose are not accorded the same effect. '[T]he proper test to be applied to unintentional "concealment" is whether the juror is sufficiently biased to constitute good cause for the court to find'" that the juror" 'is unable to perform his duty.'" (McPeters, supra, 2 Cal.4th at p. 1175.) McPeters does not mandate reversal here. We agree with the trial court's assessment that Juror No. 12 failed to provide relevant information during voir dire. Because he concealed material facts during the voir dire examination, which undermined the jury selection process, misconduct occurred. (See Price, supra, 1 Cal.4th at p. 400; Wilson, supra, 44 Cal.4th at pp. 822-823.)
This record supports the trial court's conclusion that good cause existed for removing Juror No. 12 and seating an alternate juror. Under the demonstrable reality standard, we are confident that the trial court's conclusion "is manifestly supported by evidence on which the court actually relied." (People v. Armstrong, supra, 1 Cal.5th at p. 451.) Accordingly, an abuse of discretion is not present, and this claim fails.
DISPOSITION
The judgment is affirmed.
WE CONCUR: PEÑA, J., MEEHAN, J.