Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Cruz County Super. Ct. No. F10925
Premo, J.
A jury convicted defendant Joshua Thomas Satterfield of second degree robbery and the trial court found true that defendant had suffered a prior serious felony for purposes of the Three Strikes law and a prior prison term for purposes of a one-year sentence enhancement. On appeal, defendant contends that the trial court erred by denying his (1) request to challenge photographic lineup identifications outside the presence of the jury, (2) request for discovery of a witness’s medical records, and (3) motion for a new trial grounded upon jury misconduct and a lack of jury unanimity. In a separate petition for writ of habeas corpus, which we ordered considered with the appeal, defendant raises a claim of ineffective assistance of counsel grounded on trial counsel’s withdrawal and failure to renew a motion for mistrial. We disagree with defendant’s appellate claims and affirm the judgment. We also dispose of the habeas corpus petition by separate order filed this day.
Background
Defendant entered a convenience store and stood to the side while the clerk, Jessie Gomez, attended customers. Gomez recognized defendant as the same person who had asked to cash a check in the store the previous evening. He began talking with defendant after finishing with his customers. Defendant showed Gomez a gun from his pocket and demanded money. Gomez then gave defendant all the money that was in the cash register. Jon Schreck entered the store to buy cigarettes and saw defendant staring at him. Defendant asked Gomez for the videotape from the surveillance camera. Gomez went into an office in the back of the store and retrieved the videotape. Another clerk, Robert Smith, who was in the back of the store, saw Gomez remove the videotape and asked Gomez what he was doing. Gomez ignored him, returned to the front of the store, and gave the videotape to defendant. Smith had followed Gomez and saw defendant take the videotape. Defendant then left the store. Gomez waited on Schreck. After Schreck left the store, Gomez told Smith that defendant had robbed the store. Smith called the police. Schreck returned to the store after hearing the police sirens.
Gomez described defendant to the police as a mustachioed Black or Hispanic wearing a black leather jacket. Schreck described defendant to the police as being a Black or Hispanic five feet, seven inches tall, being in the mid to late 30’s in age, and weighing 200 pounds. Smith described defendant to the police as being five feet, eight inches tall, weighing 200 pounds, and having a dark complexion.
The police identified defendant as a suspect and used a photo-imaging machine to provide booking pictures of people who looked similar to defendant. They then picked five pictures at random and made a photographic lineup with those pictures and defendant’s picture. They went to the store and showed the lineup to Gomez. Gomez identified defendant’s picture. The police then went to Schreck’s home and showed the lineup to Schreck. Schreck identified defendant’s picture.
Defendant was wearing a black leather jacket when the police arrested him. He made telephone calls from jail that led the police to place one of defendant’s friends under surveillance. The police saw defendant’s friend exit a residence with luggage and drive away. The friend had an outstanding arrest warrant, and the police stopped him. They searched the luggage and found a copper colored cigarette lighter that looked like a gun. Gomez testified that the lighter resembled what defendant had displayed to him during the robbery.
photographic lineup identifications
Defendant moved in limine to exclude evidence of (1) the photographic lineup identifications on the ground that the procedures used were unduly suggestive, and (2) any in court identifications by Gomez and Schreck on the ground that such identifications would be tainted by the lineup identifications. He asked for a hearing outside the presence of the jury to litigate the suggestiveness of the procedures via testimony from the police officer who had arranged and conducted the lineup. The trial court posed that such a hearing would be unnecessary. It pointed out that there was no prejudice in the jury hearing testimony related to suggestiveness because the People’s case would fail if it ultimately excluded the evidence. The People agreed and added that the testimony at a hearing outside the presence of the jury would be the same as that in trial before the jury. Defendant did not disagree or suggest how his challenge to the evidence would be compromised without a pretrial hearing. He nevertheless asked for a ruling. The trial court stated, “I’m going to deny that request for the reasons stated, because, as a practical matter, in this particular case, it’s not going to make any difference to [defendant]. [¶] . . . [¶] If this ID testimony does not meet due process muster, the case is going to be dismissed.” At trial, the People introduced evidence as to the procedures and defendant cross-examined the police officer, Gomez, and Schreck. Afterward, defendant did not renew his motion to exclude.
Defendant contends that “the trial court clearly erred in refusing to rule on [his] motion to exclude evidence of the pretrial identification prior to allowing that evidence to be presented to the jury.” He overlooks that the trial court did rule on his request for a pretrial hearing on the suggestiveness issue. The record clearly shows that the trial court denied the request. In any event, defendant cites no authority for the proposition that the trial court’s ruling was error though he seems to urge that the ruling was error because it transgressed his constitutional right to due process of law. There is no merit to this claim.
Defendant thereafter argues the merits and claims that the photographic lineup was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. But defendant has forfeited this claim because he failed to ask the trial court for a ruling on this point. After the trial testimony, defendant was obligated to ask for a ruling on the suggestiveness issue if he still desired such action by the court. (People v. Hayes (1999) 21 Cal.4th 1211, 1260; People v. Brewer (2000) 81 Cal.App.4th 442, 459.) Since he did not do so, defendant has not preserved the issue on appeal. (People v. Roberts (1992) 2 Cal.4th 271, 297; People v. McPeters (1992) 2 Cal.4th 1148, 1179.) “ ‘ “An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.” ’ [Citation.] ‘ “The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . .” ’ [Citation.] ‘ “No procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” ’ ” (People v. Saunders (1993) 5 Cal.4th 580, 589-590, fn. omitted.)
“In Watkins v. Sowders (1981) 449 U.S. 341, the United States Supreme Court held that a state criminal trial court is not required by the due process clause of the Fourteenth Amendment to conduct a hearing out of the jury’s presence whenever a defendant contends that a witness’ identification of him was ‘arrived at improperly.’ The court recognized that a hearing outside the presence of the jury may be the prudent procedure, but due process of law does not require such a hearing in all cases.
“A number of California decisions indicate that a hearing outside the presence of the jury is the proper procedure where a defendant asserts that an in-court identification of him would be tainted by an unduly suggestive pretrial identification procedure. (See, e.g., People v. Floyd, [(1970)] supra, 1 Cal.3d 694, 712 [stating that ‘A hearing outside the jury’s presence is required only where there is some factual conflict concerning the fairness of the lineup’]; People v. Banks, [(1970)] supra, 2 Cal.3d 127, 139 [stating that determination of whether the in-court identifications were independent of the illegally conducted lineups should be determined out of the presence of the jury]; People v. Nation, [(1980)] supra, 26 Cal.3d 169, 179 [stating that ‘Since an objection to the identification evidence would have been adjudicated outside the presence of the jury’]; People v. Rodriguez, [(1970)] supra, 10 Cal.App.3d 18, 30 [stating that ‘Where it is asserted under the Stovall [Stovall v. Denno (1967) 388 U.S. 293] rule that the pretrial identification procedure was so unfair as to taint the in-court identification, the proper procedure requires that the trial court determine initially, outside the presence of the jury, whether such procedure was unfair’]; People v. Greene (1973) 34 Cal.App.3d 622, 645 [quoting Rodriguez, supra].) No California decision, however, has held that due process of law requires a hearing outside the presence of the jury in each and every case.” (People v. Cooks (1983)141 Cal.App.3d 224, 306-307.)
We hold that defendant had no due process right to a pretrial hearing on the suggestiveness of the photographic lineup. (Watkins v. Sowders, supra, 449 U.S. 341.)
As for a discretionary right to such a hearing, defendant fails to demonstrate that the trial court abused its discretion by denying his request for a pretrial hearing. (People v. Bradford (1997) 15 Cal.4th 1229, 1315 [abuse of discretion is found when the trial court’s ruling falls outside the bounds of reason].) This follows because defendant does not assert that there was a factual conflict concerning the fairness of the lineup. (People v. Floyd, supra, 1 Cal.3d 694, 712.) Although defendant generally states that presenting the suggestiveness evidence before the jury “severely limited [his] tactical choices,” he does not explain how his tactical choices were limited. Moreover, defendant simply fails to confront the reality that the evidence at a pretrial suggestiveness hearing would have been the same as was introduced at trial. Absent some explanation from defendant, there was simply no point in having duplicative hearings. Absent some explanation from defendant, there is no colorable abuse-of-discretion claim.
REQUEST FOR DISCOVERY
When trial began, Schreck was in the hospital because he was suffering from stomach ulcers, alcoholism, and had stopped taking medications for bipolar disorder. He was released and testified for the People. On cross-examination, he revealed why he had been hospitalized and admitted that he had been taking his bipolar medication at the time of the robbery. After cross-examination but before the trial court excused Schreck, Schreck’s medical records arrived in court pursuant to defendant’s subpoena. Defendant sought to review the records so as to discover a means to impeach Schreck. The trial court denied the request after reviewing the records. It explained: “I’ve gone through these records, and, as is typical of hospital records, they have endless notes on medications and a lot of--he had a lot of work done for his gastric problems, but looking at the discharge notes, entrance notes, and the psychiatric report in the file, there’s nothing in here that’s inconsistent with what Mr. Schreck has already testified to. [¶] He appears to be testifying candidly on his very unfortunate medical situation, and I might also add that his medical condition--medical, as opposed to his mental condition--unfortunately, is probably worse than he is acknowledging to us. He’s not in good health. [¶] I don’t see any benefit of going through all of these medical records. He, otherwise, has correctly reported to us what his medical condition is.”
Defendant asks us to review the trial court’s decision by examining the medical records, transmitted to us as defendant’s trial exhibit “J,” in order to determine whether the trial court’s order denying defendant access to the records transgressed his right of confrontation. We have examined exhibit “J” and find no error in the trial court’s denial of discovery.
MOTION FOR NEW TRIAL
During in limine proceedings, the prosecution had proffered evidence on the issue of identity in the form of a prior similar robbery in which defendant had demanded [a surveillance camera] from the victim. Characterizing the issue as a close call, the trial court denied the People’s motion to introduce the evidence at trial. The parties and trial court then discussed the People’s anticipated testimony from defendant’s parole agent. The discussions resulted in the trial court’s order that the witness not be identified as a parole agent.
During direct examination of the investigating detective at trial, the following colloquy occurred.
“[The prosecutor]: After speaking to the two witnesses, did you ask for an arrest warrant to be issued for [defendant]?
“[The witness]: Well, actually, I called his parole officer.
“[Defense counsel]: Objection, Your Honor.
“THE COURT: Sustained.
“[Defense counsel]: Move to strike.
“THE COURT: The jury is admonished to ignore that comment.
“[Defense counsel]: Your Honor, we’d be making a motion.
“THE COURT: All right. I’m going to have to excuse the jury for a few minutes.”
After the jury had exited, defendant moved for a mistrial. The trial court opined that the reference to the parole agent had been inadvertent but expressed a tentative intention to grant the motion. It revealed that it had observed the jury when the remark was made and “some of them knew exactly what had happened immediately, as they heard something they weren’t supposed to hear.” It opined that an admonition to the jury was not “going to work here.” But it also commented that the People might have a stronger case at a new trial because Schreck’s availability to testify at the present trial was then uncertain and a different judge at a new trial would not be bound by its in limine rulings. It advised defendant to confer with his counsel to “make sure that they want this motion to be granted.” After a recess, defendant asked the trial court whether it was assigned to the case for all purposes. The trial court replied that it did not believe the assignment was for all purposes. It then checked the file and opined that the case had originated after it had stopped taking all-purpose assignments. It then commented: “So, just so it’s clear, what I’m talking about is there’s motions that I had denied and granted in this case, which I was comfortable making, but, on the other hand, I think I’m reasonable enough to guess that other judges may have ruled differently . . . on that [section] 1101 [subdivision] (b) motion involving the prior robbery conviction, and you don’t need to be Solomon to know that if evidence of the prior robbery conviction comes into evidence in this case, the chances of [defendant] being convicted are overwhelming. [¶] So that’s just an observation, and I don’t know when this case is going to be retried, and I can’t promise you that I will be the one that retries it if the motion is granted.” Defendant then asked what type of admonition would be given to the jury, and the trial court gave a summary of a proposed admonition. Defendant consulted with his counsel and withdrew the motion for mistrial. The trial court then recalled the jury and gave it the following admonition: “Obviously, a mistake was made, and I’m not going to go into the reasons why, but the now obvious fact that [defendant] was on parole . . . had been excluded from evidence, was not to be introduced into evidence. [¶] . . . [The detective] had been instructed not to mention this subject, to avoid the subject and not mention the fact that [defendant’s] on parole--has nothing to do with this case--and the error was made. [¶] So I’m admonishing you folks to disregard it and treat that information--as prejudicial as it may be, to disregard that evidence. Treat it as if you’d never heard of it and not dwell on what you now know, that [defendant] was on parole at the time of the commission of this robbery by whomever.”
October 7, 2005, was the last day of trial. In the morning, Schreck testified, defendant cross-examined him, and the People rested. The trial court and parties then discussed evidentiary matters outside the presence of the jury while they waited for a defense witness to arrive. Defendant finally presented two witnesses and rested. The trial court then proposed instructing the jury but advised that the proceedings would thereby be extended until approximately 12:30 p.m. It offered that it would not do so if any of the jurors had made arrangements for lunch. Juror No. 8 raised his hand. The trial court then recessed until 1:15 p.m. When court reconvened, the trial court instructed the jury. Among other instructions, the trial court gave the following: (1) “[The jury instructions] will be available to you in written form, if you want, during your deliberations. So don’t concern yourself about learning the instructions as I read through”; (2) “You must accept and follow the law as I state it to you, regardless of whether you agree with it”; (3) “Do not consider for any purpose any offer of evidence that was rejected or any evidence that was stricken by the Court. Treat it as though you had never heard it”; (4) “You must decide all questions of fact in this case from the evidence received in this trial and not from any other source. You must not independently investigate the facts or the law or consider or discuss facts as to which there is no evidence”; (5) “Neither side is required to call as witnesses all persons who may have been present at any of the events disclosed by the evidence or who may appear to have some knowledge of these events. [¶] Neither side is required to produce all objects or documents mentioned or suggested by the evidence”; and (6) “The instructions which I am now giving to you will be made available in written form, if you so request, for your deliberations.” The parties then argued their cases to the jury. Thereafter, the trial court gave a concluding instruction, Juror No. 4 requested a copy of the instructions, and the jury retired to deliberate.
Immediately after the jury had retired, the trial court and parties discussed a typewritten letter from Juror No. 8 that was in the trial court’s possession. It is unclear when the trial court received the letter, but the likely time frame is during the noon recess because (1) the letter was dated that day, (2) there is nothing in the before-recess record acknowledging the existence of the letter, (3) there is no hiatus between the time that the trial court began instructing the jury after the noon recess and the time that the jury retired to deliberate, (4) there is nothing in the record to indicate that Juror No. 8 delivered the letter during that afternoon court session, and (5) the parties had prior knowledge of the letter and planned to address it.
After the jury had retired, defendant brought up the subject by asking, “We also need to address--I don’t recall--Number 8, Your Honor.”
The letter posed “questions--mostly minor ones--that have come up during the trial” and offered the juror’s “thoughts concerning them.” The questions principally related to a witness (defendant’s parole agent) and queried about that witness’s precise job and relationship to defendant. The thoughts were expressed as follows: “These are, to me, gaps in the narrative that both attorneys seem, jointly, to refuse to fill--refuse to fill even as both, in their different ways, are trying to develop a convincing narrative of what did, or might, have happened during the convenience store robbery. I can make up an answer to all these gaps in one simple way. But to do that involves me relying on information that it has become clear I am not supposed to have or know--and the one answer from one witness that I have been admonished to ignore and to strike from the record. There might be other, even simpler explanations for all these issues than the one I can imagine, but I have yet to have any presented to me by either attorney. [¶] On the other hand, the defense case has little to do with any of this, so far as I can understand it to this point.” The letter concluded by asking for answers to the questions or, “Given no answers, am I supposed to ignore these questions and concentrate only on what is presented despite the sense of evasion that is involved in such a decision?”
Defendant’s parole agent testified as to certain matters. Though the investigating detective had exposed that defendant had a parole agent, the parole agent was identified only as being employed in law enforcement.
Defendant urged that the letter showed that the juror was considering information he had been admonished to ignore and had “prejudged the defense case before deliberations.” The trial court offered the following: “I don’t see any problem with his letter. He’s just stating the obvious. He understands he’s supposed to ignore this stuff, even though he’s figured out to the contrary. All he’s doing is being candid. [¶] . . . [¶] But then he goes, down at the bottom, ‘I suppose what I’m supposed to do is not consider this.’ ” Defendant then asked the trial court to readmonish the juror. The trial court agreed and turned to accepting defendant’s waiver of jury trial for the prior-conviction allegations. Thereafter, it proposed recalling the jury so as to discharge it for the day while retaining Juror No. 8 in court for readmonishment. But the bailiff informed that the jury had requested three more minutes. The trial court then took a recess. When it reconvened court, the jury returned and its foreperson, Juror No. 8, presented the verdict.
The trial court polled the jury. When it asked Juror No. 6 whether he voted guilty, the juror replied, “Yes, with hesitation. Yes.” The trial court then asked what the juror had meant, and the juror replied, “I just don’t feel great about it, applying the rules that we’ve been given.” The trial court then asked the juror, “Are you satisfied that the People have proven their case for the robbery beyond a reasonable doubt?” The juror replied, “Yes.” Upon another inquiry by the trial court, the juror offered, “I guess there’s still some--some doubt, but probably not enough to be called a reasonable doubt.” The People then suggested that, “until each person can say that this is their verdict, that they should deliberate further.” At this point, Juror No. 6 interjected, “I vote yes.” The trial court then offered the following: “I believe [Juror No. 6] has said that he has voted yes. He thinks the case has been proved beyond a reasonable doubt. He has some doubts, but he does not feel that constitutes, as he understands them, reasonable doubts.” The juror then offered, “That’s correct.” Defendant expressed that he “would have questions about his doubt.”
Defendant moved for a new trial on several grounds. As pertinent to this appeal, defendant claimed that the trial court had erred by failing to (1) stop the jury deliberations after receiving Juror No. 8’s letter so as to admonish the jury to disregard his parole status, and (2) order the jury to deliberate further after Juror No. 6 informed that he had hesitation as to guilt.
On appeal, defendant recasts these arguments as trial court error in failing to (1) “conduct a reasonable inquiry to determine whether [jury] misconduct is occurring” regarding Juror No. 8’s ability to limit himself to admissible evidence, and (2) conduct a reasonable inquiry whether Juror No. 6 assented to the verdict freely and voluntarily or, alternatively, send the jury back for further deliberations when Juror No. 6 expressed hesitation or confusion as to his verdict. There is no merit to these claims.
Proof of jury misconduct has two fundamental elements. The first is an adequate factual showing to establish the misconduct. The second is a showing of prejudice; that is, the claimed misconduct must have materially affected the party’s substantial rights. (See People v. Nesler (1997) 16 Cal.4th 561, 580.) Certainly, a juror’s consideration of nonevidentiary information would constitute misconduct. (Id. at p. 578.) “In the context of a claim of juror misconduct we have held that the court must conduct ‘an inquiry sufficient to determine the facts . . . whenever the court is put on notice that good cause to discharge a juror must exist.’ [Citations.] In those cases placing ultimate responsibility upon the court to make such inquiry, the trial court had been alerted to facts suggestive of potential misconduct, and hence had proceeded to voir dire the jurors or other relevant witnesses to determine the extent, if any, of prejudice.” (People v. Adcox (1988) 47 Cal.3d 207, 253.)
Defendant’s premise is that there was an adequate factual showing of potential juror misconduct sufficient to trigger the trial court’s duty to voir dire. But this premise is flawed.
The sole factual showing is Juror No. 8’s letter. But the letter does not suggest that Juror No. 8 was improperly considering defendant’s parole status. The letter states that there were gaps in the narrative, describes that the gaps relate to the parole-agent witness, and implies that the gaps could be closed by concluding that the witness was defendant’s parole agent. It then recognizes that the implication would require information that was stricken from the record and to be ignored. It then asks the two ultimate questions whether the gaps can be answered and, if not, whether the juror should ignore the gaps and concentrate on the presented evidence. The trial court itself adopted this neutral interpretation of the letter. In any event, an interpretation of the letter favorable to defendant falls short of suggesting that Juror No. 8 was improperly considering defendant’s parole status. The letter implied that minor evidentiary gaps could be filled if one could conclude that the witness in question was defendant’s parole agent, not that evidentiary gaps as to defendant’s guilt could be filled if the jury could conclude that defendant was a parolee. Moreover, the trial court could also have accepted that the letter’s ultimate questions were answered by its instructions despite its unfulfilled intent to readmonish Juror No. 8. That Juror No. 8 did not seek a specific answer to the letter before retiring to deliberate supports an inference that the trial court’s instructions answered his two ultimate questions. We add that defendant requested only that the trial court readmonish Juror No. 8. But any readmonishment would have simply covered the same general ground as the already-given instructions.
We conclude that there was no duty to conduct an inquiry to determine the facts suggestive of potential jury misconduct because the facts were evidenced by the letter, the letter does not suggest that potential misconduct would occur, and the jury instructions given after the letter was written and delivered assured that misconduct would not occur.
The United States Supreme Court has held that the United States Constitution does not require conviction by unanimous jury (Apodaca v. Oregon (1972) 406 U.S. 404, 406), but the California Constitution provides the right to a unanimous jury (Cal. Const., art. I, § 16; People v. Green (1995) 31 Cal.App.4th 1001, 1009). Unanimity requires that each juror vote for and acquiesce in the verdict. (People v. Superior Court (1967) 67 Cal.2d 929, 932.) To protect this right, on the polling of a jury, “if anyone answer in the negative, the jury must be sent out for further deliberation.” (Pen. Code, § 1163.) Only if no disagreement is expressed on polling is the verdict complete. (Id., § 1164.)“Where . . . a juror makes equivocal or conflicting statements as to whether he has assented to the verdict freely and voluntarily, a direct question of fact within the determination of the trial judge is presented. The trial judge has the opportunity to observe the subtle factors of demeanor and tone of voice which mark the distinction between acquiescence and evasion of individual choice.” (People v. Superior Court, supra, 67 Cal.2d at p. 932.)
Here, the trial court polled the jury and Juror No. 6 said as to defendant’s guilt, “Yes, with hesitation. Yes.” The trial court then determined that Juror No. 6 acquiesced in the guilty verdict even though he might have harbored doubts about defendant’s guilt but “not enough to be called a reasonable doubt.” The juror affirmed that he was satisfied that the People had proven defendant guilty beyond a reasonable doubt. He also unequivocally stated that he had voted, “yes.” The trial court observed those responses and understood the juror as affirming that the verdict as read was his verdict. We must give deference to the trial court’s implicit finding that the verdict was unanimous and therefore no grounds existed to send the jury out for further or additional deliberations.
Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.