Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA051298. James R. Dabney, Judge.
Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant George Saucedo was convicted, following a jury trial, of one count of murder in violation of Penal Code section 187, subdivision (a), and one count of possession of a firearm by a felon in violation of section 12021, subdivision (a). The jury found true the allegations that a principal was armed in the commission of the murder within the meaning of section 12022.53, subdivisions (b), (c), (d) and (e)(1) and the offense was committed to benefit a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(A). The jury also found true the special circumstance allegation that the murder was perpetrated by the discharge of a firearm from a vehicle within the meaning of section 190.2, subdivision (a)(21). Appellant admitted that he had suffered a prior felony conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, "Three Strikes" law. The trial court sentenced appellant to life in prison without the possibility of parole and, pursuant to the Three Strikes law, 50 years to life for the section 12022.53, subdivision (d) enhancement plus 20 years for the gang enhancement. The firearm possession conviction was sentenced concurrently.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals from the judgment of conviction, contending that the trial court abused its discretion by failing to excuse one of the jurors. We affirm the judgment of conviction.
Facts
In the morning of January 15, 2004, appellant, accompanied by Juan Gascon and Christopher Velasquez, went to the Oakwood section of Venice, territory claimed by the Shoreline Crips. There, appellant shot Michael Marks in the head and killed him. Marks was a Shoreline Crips gang member.
The shooting was witnessed by Michael's wife, Gia Marks. According to Gia, appellant approached the Markses in their parked car, purchased some marijuana and asked if anyone wanted to buy a gun. Michael started to walk away to see if someone up the street wanted to buy a gun. Appellant then shot Michael.
Police responded rapidly to the shooting, and captured appellant and his companions as they fled. The car they were driving was stolen.
Appellant admitted to police that he had shot Michael. He claimed that he was driving in Oakwood when Michael asked him and his companions if they wanted to buy "dope." When appellant declined, Michael asked him where he was from, and said that he was from Shoreline Crips. Appellant told police "next thing you know, man I just shot this fool." Appellant also claimed that prior to the shooting, Gia stated "Go call homies."
At trial, the People offered expert evidence that appellant and his companions were members of the Culver City Boys and that there was mutual hatred between the Culver City Boys and the Shoreline Crips.
Appellant testified in his own defense at trial. He denied that he was a member of the Culver City Boys gang. He stated that he went to Oakwood to buy marijuana. He approached Michael and offered to trade a gun for marijuana. Gia accused appellant and his companions of being gang members. Appellant became nervous and fired a shot at Michael. He and his companions then fled.
Discussion
1. Failure to excuse a juror
Appellant contends that Juror No. 8 committed misconduct and demonstrated clear prejudice against him, and the trial court abused its discretion in refusing to dismiss that juror. He further contends that the trial court compounded its error by failing to hold an adequate hearing on Juror No. 8's prejudices and possible contamination of other jurors.
Section 1089 provides in pertinent part: "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors."
A juror's inability to perform as a juror must "appear in the record as a demonstrable reality." (People v. Boyette (2002) 29 Cal.4th 381, 462, internal quotes omitted.)
A trial court's decision to discharge or keep a juror is reviewed under the deferential abuse of discretion standard. (People v. Guerra (2006) 37 Cal.4th 1067, 1158.) The decision will be upheld if there is substantial evidence supporting it. (People v. Boyette, supra, 29 Cal.4th at p. 462.)
Here, Juror No. 8 came to the attention of the trial court after he gave the bailiff a note near the end of trial which asked: "Why is this not a death penalty case?" (Double underline in original.) The trial court brought the juror into the courtroom and questioned him as follows:
"You asked a question, 'Why is this not a death penalty case?' Beyond basically saying that it's not really – it's not a matter – as a juror you're not to be concerned with penalty or punishment unless it is in fact a death penalty case, which it's not. So the issue of penalty and punishment is not one for you to be concerned with at all, so I'm not going to answer your question directly.
"But another – a second concern that I had about this, sir, I was wondering – in your note you said, you kind of underlined, why is this not a death penalty, why you asked this question.
"The court: Okay.
"The court: Okay.
"The court: And I just want to make sure that you – that this note doesn't reflect that – that you've already made up your mind
"The court: – about the facts or circumstances of this case, and you're still keeping an open mind
"The court: – even through the point of deliberations.
"The court: Great. You've answered my questions, and I refuse to answer yours.
"The court: All right. Let's bring in the rest of the jurors.
"Juror No. 8: Okay."
The court then read the instructions to the jury, and the prosecutor began closing argument. After a recess, appellant's counsel moved to replace Juror No. 8 with an alternate. Counsel requested that the court question the juror further about his thought process in writing the note, and also asked the court to inquire further to determine if the juror had told anyone else about the note.
The court declined appellant's counsel's request, stating: "I'm satisfied with the inquiry at this point. His response was he was wondering why this wasn't a death penalty case, what makes a case like this a death penalty case or not a death penalty case. [¶] And I didn't get any indication from him, his demeanor, the way he answered the question – he didn't seem fidgety, and he was forthright. I'm satisfied with his responses, and I don't think any further inquiry is necessary. And I don't think the note amounts to misconduct that justifies his removal from this jury." The court noted that the paper used to write the note was from a juror notebook and so it was written inside the courtroom.
On appeal, appellant contends that the writing of the note showed that Juror No. 8 "could no longer be impartial because he had prejudged the case." Appellant also contends that the juror violated the court's pre-trial instructions to keep an open mind throughout the trial and to not allow bias, sympathy, prejudice or public opinion to influence their decision. Thus, appellant in effect argues nothing that Juror No. 8 could say about the note mattered and that the note required an automatic dismissal. We do not agree.
There could have been a number of reasons the juror wrote the note. The trial court told the jury at the beginning of this case that it was not a death penalty case, and the topic was before the jury from the beginning of the case. It was appropriate for the court to inquire as it did about the juror's thought process in writing the note.
Upon inquiry, the juror explained that he was simply curious about what qualifies or does not qualify a case for the death penalty. The juror stated that he did not mean to imply that this case should be a death penalty case. He also stated he had not made up his mind about the case and could keep an open mind during deliberations. The trial court observed the juror's demeanor, and expressly found the juror credible.
It is well within the court's discretion to accept a juror's representations that he could be fair even when the juror's earlier comments could be understood as showing prejudice. (See, e.g., People v. Schmeck (2005) 37 Cal.4th 240, 295-298; People v. Beeler (1995) 9 Cal.4th 953, 975.) We see no abuse of discretion in the trial court doing exactly that in this case.
Appellant also contends that the trial court should have held a hearing to question Juror No. 8 further.
A decision about how and when to investigate allegations of juror misconduct falls within the discretion of the trial court. (People v. Engelman (2002) 28 Cal.4th 436, 442.) "[I]t is up to the trial court to determine the appropriate procedure to follow when a question arises about a juror's continued service." (People v. Delamora (1996) 48 Cal.App.4th 1850, 1856.) There is no requirement that a formal hearing be held to determine good cause. (Ibid.)
We see no abuse of discretion in the trial court's decision to question Juror No. 8 itself. The court questioned the juror extensively. Appellant does not suggest any questions that he would have asked if given the opportunity. Appellant further contends that the trial court should have questioned Juror No. 8 to see if his opinions had contaminated any other jurors. The court determined that the juror was not biased, but simply curious. Thus, the juror could not have contaminated other jurors.
2. State construction penalty
In May 2007 we asked the parties to discuss the effect of our opinion in People v. Chavez (2007) 149 Cal.App.4th 1340 on the restitution fine imposed in this case. Chavez considers the effects of section 1465.7 and Government Code section 70372 on fines imposed in criminal cases. On August 15, 2007, the California Supreme Court granted review in Chavez, S153920. On October 5, 2007, the Governor approved Senate Bill No. 425 which was enacted to clarify that the state construction penalty is not to be imposed on restitution fines. Section 22 of that bill states that it was enacted in part to "construe and clarify the meaning and effect of existing law and to reject the interpretation given to the law in People v. Chavez (2007) 150 Cal.App.4th 1288."
Senate Bill No. 425 operates retroactively. (People v. McCoy (2007) 156 Cal.App.4th 1246 [68 Cal.Rptr.3d at p. 141]; People v. Estrada (1965) 63 Cal.3d 740, 748.) Further, a defendant generally is entitled to benefit from statutory amendments that become effective during his appeal. (People v. Vieira (2005) 35 Cal.4th 264, 305.) Accordingly, we conclude that Government Code section 70372 has no application to appellant's restitution fine. The abstract of judgment, which does not reflect a construction penalty, is correct.
In our modification to Chavez, we held that the section 1465.7, subdivision (a) surcharge did not apply to parole revocation fines.
Disposition
The judgment is affirmed.
We concur: TURNER, P. J., KRIEGLER, J.