Opinion
C077362
01-18-2018
THE PEOPLE, Plaintiff and Respondent, v. VINCENT RAMON ROBINSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F02301)
Convicted of charges associated with a drive-by shooting and sentenced to a long determinate term in state prison, defendant Vincent Ramon Robinson appeals.
Defendant contends on appeal that the judgment must be reversed because a juror expressed the opinion that defendant could be convicted whether he was the actual shooter or just someone in the car, even though the jury was not instructed on aiding and abetting. We conclude that, even assuming there was jury misconduct, there was no prejudice because the juror's misunderstanding of the law applicable to this case came to the court's attention during deliberations and the court gave a clarifying instruction.
Defendant contends we must remand, in any event, because he was sentenced on firearm enhancements and a new law, as enacted in Senate Bill No. 620, effective January 1, 2018, will give trial courts discretion to strike firearm enhancements in the interest of justice. We conclude we need not remand because the trial court indicated its intent to impose upper-term and consecutive sentencing on the specific gun enhancements at issue in this case.
We therefore affirm.
BACKGROUND
Defendant agreed to buy a car from Markell Martin and took the car but did not pay for it. When Martin threatened to report the car as stolen, defendant threatened to kill him if he called the police. In March 2013, defendant drove by Martin's home in a car with at least one other person, and shots were fired at the home. This shooting was not charged in this case.
Martin and his fiancée Alexis Willrich moved away from the area. In April 2013, at the new house, Willrich saw, through a window at the front of the house, a car make a U-turn in front of the house. She asked Martin who pulled up, so he opened the front door to see who it was. Martin and Willrich both saw defendant in the car. Four people were in the car including defendant. The occupants other than defendant were disguised with their faces covered. Defendant was driving the car. The person in the front passenger seat was large and wore glasses and looked like a friend of defendant's named Snap. Defendant leaned out the car window and fired multiple rounds at the house. One or more of the other occupants of the car also shot at the house. A barrage of bullets entered the house through the door and through the walls, and Willrich was hit in the stomach.
The district attorney charged defendant by information with one count of shooting at an inhabited dwelling (Pen. Code, § 246), two counts of assault with a firearm (§ 245, subd. (a)(2)), and one count of possession of a firearm by a felon (§ 29800, subd. (a)(1)). The information alleged that the assault with a firearm counts involved defendant's personal use of a firearm (§ 12022.5, subds. (a) & (d)) and that defendant had a prior serious strike felony (§ 667) and a prior conviction resulting in a prison term (§ 667.5, subd. (b)).
Hereafter, unspecified code citations are to the Penal Code.
A jury convicted defendant on all charges, and the trial court found true the prior conviction allegations. The court denied defendant's motion for new trial, which alleged juror misconduct, and sentenced defendant to an aggregate term of 29 years 8 months in state prison.
DISCUSSION
I
Alleged Juror Misconduct
Defendant contends we must reverse for juror misconduct. We need not consider whether there was misconduct because there was no prejudice.
A. Law
"A defendant accused of a crime has a constitutional right to a trial by unbiased, impartial jurors." (People v. Nesler (1997) 16 Cal.4th 561, 578.) Prejudicial jury misconduct is grounds for a new trial. (§ 1181.) "When a party seeks a new trial based on juror misconduct, the trial court must determine from admissible evidence whether misconduct occurred and, if it did, whether the misconduct was prejudicial. [Citation.] Prejudice is presumed where there is misconduct. This presumption can be rebutted by a showing no prejudice actually occurred or by a reviewing court's examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party. [Citation.]" (People v. Loot (1998) 63 Cal.App.4th 694, 697.) "The moving party bears the burden of establishing juror misconduct. [Citations.]" (Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 625.)
"We review independently the trial court's denial of a new trial motion based on alleged juror misconduct. [Citation.] However, we will ' "accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence." ' [Citation.]" (People v. Gamache (2010) 48 Cal.4th 347, 396.)
B. Procedure
During deliberations, Juror No. 9 asked to speak to the court. She related that, early in the deliberations, disagreements arose over what testimony to have read back. Juror No. 9 said she wanted to hear testimony about who fired the shots. She continued: "I mentioned . . . I wanted to rehear something because I wanted proof of who the shooter was, if he was the shooter or if he was just in the car. And two other jurors said that didn't matter. It doesn't matter if he was a shooter or not. That they felt strongly about their opinion, that it didn't matter if he was actually the one that shot the gun or if he was just there, their verdict would be the same. And that upset me."
No instructions had been given to the jury concerning aiding and abetting liability, so the prosecution's sole theory was that defendant was the actual shooter. (Defendant does not contend on appeal that the jury was improperly or inadequately instructed.)
The trial court sent Juror No. 9 back in to deliberate further, but the court expressed consternation that some of the jurors may not have understood the instructions.
The next morning, the court again expressed concern that some of the jurors might not be following the law. The court decided to bring each juror, separately, into the courtroom and ask about whether anyone in the jury room said that it did not matter whether defendant was the actual shooter. The following are the jurors' responses:
Juror No. 9 (Ms. S., the juror who brought the concern to the court's attention): two people said it did not matter whether defendant was the actual shooter—Juror No. 5 (Ms. R.) and an unidentified older male juror.
Juror No. 1 (Ms. A.): two or three unidentified female jurors said it did not matter whether defendant was the actual shooter.
Juror No. 8 (Mr. Y., a young male juror): Juror No. 9 said it did not matter whether defendant was the actual shooter.
Juror No. 2 (Mr. R.): Juror No. 4 (Mr. K.) said it did not matter whether defendant was the actual shooter, and Juror No. 9 (Ms. S.) said something to the effect of "so for some of you in here, it [doesn't] matter if he was in the car or not."
Juror No. 4 (Mr. K.): He may have heard a juror say that it did not matter, on the issue of guilt, whether defendant was the shooter or just someone in the car.
Juror No. 10 (Mr. D.): Someone might have said that it did not matter whether defendant was the shooter or just in the car, but Juror No. 10 did not remember who said it.
Juror No. 11 (Mr. B.): He did not recall anyone saying that it did not matter whether defendant was the shooter or just someone in the car.
Juror No. 7 (Ms. L.): She either did not remember hearing that anyone said it did not matter whether defendant was the shooter or just someone in the car, or if she heard it she simply dismissed it.
Juror No. 12 (Ms. T.): She said it was "possible there was something said to the effect that if there's a crime committed, like, for instance, the case of the bank in Stockton. If they were to find the fourth person, that this—." At this point, the court cut off Juror No. 12, saying she was not to discuss juror deliberations. Juror No. 12 said "[i]t could have been [her]" who said it. After Juror No. 12 left the courtroom, the court said: "[T]he bank thing is a common aider and abett[o]r liability scenario that I don't think she got from us."
Juror No. 6 (Ms. D.): She remembered someone saying that it did not matter whether defendant was the shooter or just someone in the car, but she did not remember who said it. There was "a lot of cross talk."
Juror No. 3 (Mr. M.): He did not hear anyone say that it did not matter whether defendant was the shooter or just someone in the car.
Juror No. 5 (Ms. R.): She remembered someone saying that it did not matter, on the issue of guilt, whether defendant was the shooter or just someone in the car, but she did not remember the exact words. Nor did she remember who said it. She said there was "a context around it." But the trial court prevented her from explaining the context.
The trial court also asked each juror, if the juror was willing to follow the law as found in the jury instructions, and each juror responded affirmatively.
After questioning each juror, the court said: "We have spoken with the jurors. I'll say tentatively I want to hear from you guys [the attorneys], but I—my feeling is, is that it was said and that there is a danger, given the instructions and given what one of the women said about—started to say about aiding and abetting a bank robbery, that there's a danger a guilty verdict could be based on aiding and abetting, which we have not instructed on and which was not argued. [¶] So I'm going to suggest that we either reopen argument to make that clear or that we construct a[n] instruction that we send in to all of these jurors. They have now all said that they will follow our instructions."
The prosecutor argued that the court should give an instruction on aiding and abetting, while the defense argued that instructing on aiding and abetting would violate defendant's due process rights because the case was not prosecuted on that theory. The defense also moved for mistrial based on jury misconduct because one of the jurors said something about it not mattering whether defendant was the shooter or was just in the car and no juror admitted saying it.
The court refused to instruct on aiding and abetting because the parties tried the case on a direct perpetrator theory only.
The court expressed its opinion that Juror No. 5 (Ms. R.) said it did not matter whether defendant was the shooter or just someone in the car. And defense counsel asked that she be excused from the jury because she did not admit, when questioned by the court, that she was the one who made the statement. The court responded: "I had the impression she was hedging? I shouldn't say my impression is so strong as to warrant saying she was lying. I felt she was hedging. I don't think it was unreasonable that she was hedging given that she was the last juror who was pulled in here. She clearly was nervous. [¶] I don't think it warrants removing her from the jury. I don't think it indicates that she is not able to perform her duties as a juror, given the ameliorative measures we have taken."
Defense counsel noted that at least two jurors indicated that two or more people had made the comments about defendant being guilty whether he was the shooter or just someone in the car and that establishes that whoever made those comments and did not admit it to the court was being untruthful. On that basis, the defense made a motion for mistrial. The court said it was not clear what statements were made by whom because of the free-flowing nature of deliberations where more than one person might be talking at a time. The court found no reasonable basis for concluding that any other juror was lying. On that basis, the court denied the motion for mistrial.
The court sent a written clarification of the instructions to the jury as follows: "It has come to the Court's attention that the jury may benefit from a clarification as to the application of the previously given instructions. It is the People's theory that [defendant's] liability for the charged crimes, if any, is as the person who fired the gun. Consider this clarification along with the previously given instructions. The People must prove the elements of each charge beyond a reasonable doubt. If the People have not met this burden you must find the defendant not guilty."
The jury had not reached a verdict by the end of the day, and Juror No. 9 (Ms. S.) reminded the court that she had vacation tickets for the next week and would lose them if she did not use them. The court excused her and chose an alternate to become a juror on Monday. The court instructed the jury to begin deliberations over again.
After trial, defendant moved for a new trial based on juror misconduct. The court ruled that there was no misconduct and, even if there was misconduct, there was no prejudice. It concluded that any prejudice was cured by the court's instruction on the prosecution theory and by the fact that the jury found that defendant personally used a firearm in committing the crime. Finally, the court stated that "a reasonable juror could not find [defendant] to have been involved in this situation as anything other than the shooter."
C. Legal Analysis
Even if we assume for the purpose of argument that misconduct took place, any presumption of prejudice was rebutted by the court's further instruction of the jury, the court's instructions to the jury to restart deliberations, and the jury's conclusion that defendant was the actual shooter.
Even if we were to conclude that Juror No. 5's statement constituted juror misconduct, raising a presumption of prejudice, any presumption is easily rebutted in this case. As noted, the jury received an instruction that the sole prosecution theory was that defendant was the shooter. And the jury found true the allegation that defendant personally used a firearm. In other words, he was the shooter. That unanimous finding is inconsistent with finding defendant guilty on an aiding and abetting theory.
Furthermore, after the court cleared up the confusion, it replaced Juror No. 9 and instructed the jury to start over with its deliberations. Presuming the jury followed those instructions (which appears to be the case and which we presume absent a contrary indication (People v. Avila (2006) 38 Cal.4th 491, 575)), the jury deliberated without the mistaken belief that an aiding and abetting theory was on the table.
II
Senate Bill No. 620
After the briefing in this case was finished, the Legislature passed and the Governor signed a law (Sen. Bill No. 620) giving trial courts discretion to strike firearm enhancements in the interest of justice. Defendant filed a supplemental brief, asserting Senate Bill No. 620 can be applied retroactively to cases not yet final and, therefore, we must remand for the trial court to exercise its discretion concerning whether to strike the firearm enhancements in this case. We conclude that a remand would be futile because the trial court made it clear that it intended to impose upper-term and consecutive sentencing on the specific enhancements at issue here, and it did so. Under no circumstances would the trial court have stricken either of the two enhancements imposed here, even if it was aware of its discretion to do so.
Effective January 1, 2018, sections 12022.5, subdivision (c), and 12022.53, subdivision (h) will allow a court to exercise its discretion under section 1385 to strike or dismiss a firearm enhancement allegation or finding. The legislation enacting the amendment (Sen. Bill No. 620; Stats. 2017, ch. 382, § 2 ) does not expressly declare whether the amendment applies to cases in which firearm enhancements were imposed prior to January 1, 2018. However, we need not address in this case whether the provisions apply to all cases not yet final. Even assuming the law is retroactive, we need not remand given the specific circumstances of sentencing in this case.
When a change in law after sentencing but before the case is final would give the trial court discretion to impose a more lenient sentence, it is unnecessary to remand if the record shows the trial court would not exercise its discretion to impose a more lenient sentence. (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 (Gutierrez).) In Gutierrez, while the appeal was pending before the Court of Appeal, the Supreme Court held that trial courts have discretion to strike three strikes prior convictions in the interest of justice. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) Even though the defendant in Gutierrez was sentenced under the "Three Strikes" law, the Court of Appeal declined to remand for the trial court to exercise its discretion because the record showed that the sentencing court would not have exercised its discretion to strike any prior conviction allegation. (Gutierrez, supra, at p. 1896.)
Here, the record makes it clear that the trial court would not have struck any firearm enhancement if it had known it had such discretion. The probation report recommended imposition of the upper term of 10 years on the firearm enhancement associated with count two, a violation of section 245, subdivision (a)(2). (See § 12022.5, subd. (a), prescribing terms of 3, 4, or 10 years for personal use of a firearm.) The probation report also recommended a consecutive term of one year four months (one-third of the middle term) for the firearm enhancement associated with count three, also a violation section 245, subdivision (a)(2). (See § 1170.1, subd. (a), limiting consecutive sentence to one-third of the middle term.)
The trial court followed the probation report's recommendation. Additionally, the court said: "I am going to find that that one-year prior, in and of itself, is sufficient to warrant the upper term of your counts and is sufficient in and of itself to warrant consecutive sentencing. [¶] In addition and apart from that, I'm going to consider that the—how recent that conviction is is another factor that warrants the imposition of the upper term and consecutive sentences, that those factors alone, regardless of any other factors I mentioned in the course of your sentencing, warrant imposition of the upper term and consecutive sentencing." Later, the court added: "I am considering in the course of all these sentences that there's a particular vulnerability of shooting into a house that [defendant] reasonably should have known would have been occupied by adults and children."
If the trial court had been at all inclined to minimize defendant's sentence with respect to the firearm enhancements, it would have imposed lower-term and concurrent sentencing as to those specific enhancements. Instead, it signaled its intent to impose a longer sentence by imposing upper-term and consecutive sentencing on the very enhancements at issue here. In other words, remand for the trial court to consider striking the firearm enhancements would be futile.
DISPOSITION
The judgment is affirmed.
NICHOLSON, J. We concur: MURRAY, Acting P. J. DUARTE, J.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------