Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA276394, Mark V. Mooney, Judge. Affirmed as modified.
David M. Thompson, 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, Robert F. Katz and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Defendant William Frank Shaw appeals from a judgment of conviction entered after a jury trial. The jury found defendant guilty of carjacking (Pen. Code, § 215, subd. (a)) in counts 1 and 2; second degree robbery (§ 211) in counts 3 and 4; dissuading a witness by force or threat (§ 136.1, subd. (c)(1)) in counts 5 and 6; kidnapping (§ 207, subd. (a)) in counts 7 and 9; kidnapping for the purpose of carjacking (§ 209.5, subd. (a)) in counts 8 and 10; sexual battery by restraint (§ 243.4, subd. (a)) in count 11; and kidnapping to commit robbery (§ 209, subd. (b)(1)) in counts 12 and 13. The jury also found to be true the allegations that defendant personally used a firearm within the meaning of section 12022.5, subdivision (a), as to count 11 and that defendant personally used a firearm within the meaning of section 12022.53, subdivision (b), as to counts 1 through 10, 12 and 13. A gang enhancement pursuant to section 186.22, subdivision (b)(1)(A), was found to be true as to all counts.
All further statutory references are to the Penal Code.
Defendant was sentenced to an indeterminate life term, with a 15-year minimum parole eligibility, pursuant to section 186.22, subdivision (b)(4)(C), on counts 1, 2, 8, 10, 12 and 13, with an additional 10 years for the firearm use allegations. The terms imposed on counts 8 and 10 were to run consecutively. The terms for counts 12 and 13 were to run concurrently, and the terms for counts 1 and 2 were stayed pursuant to section 654. In counts 5 and 6, defendant was sentenced to life, with a minimum parole eligibility of 7 years, plus 10 years for the firearm use allegations, with the terms to run concurrently. As to count 11, the sentence was 3 years, plus 4 years for the firearm use and 3 years for the gang allegations. In counts 3 and 4, defendant was sentenced to 3 years for each, plus 10 years for the firearm use, plus 10 years for the gang enhancements, to be stayed pursuant to section 654. In counts 7 and 9, defendant was sentenced for each to 5 years, plus 10 years for the firearm use and 10 years for the gang enhancements, to be stayed pursuant to section 654. Defendant was sentenced to an additional 5 years for a prior felony conviction (§ 667, subd. (a)(1)) found true by the trial court.
On appeal, defendant challenges (1) the denial of a mistrial motion during voir dire; (2) the sufficiency of the evidence to sustain one of the witness intimidation convictions; (3) the sufficiency of the evidence as to the criminal street gang enhancement, including the enhancement as to the sexual battery count; and (4) the correctness of the abstract of judgment. We agree that the evidence was insufficient to sustain the witness intimidation conviction on count 6 and the street gang enhancement as to the sexual battery count (count 11). We also agree there is an error in the abstract of judgment. We affirm as to the remainder of the judgment.
FACTS
Prosecution
On December 26, 2004, at about 9:50 p.m., Vanessa O. (Vanessa) and Maximo Hernandez (Hernandez) were sitting in a car in front of Vanessa’s house. Hernandez saw a man ride by on a bicycle and stare at him. About 10 minutes later, two men approached the car, and the taller of the two tapped on the car window with a gun. The taller man got into the front seat, and the shorter man, defendant, got into the back seat. The taller man, who Hernandez believed was the man on the bicycle that he had seen earlier, asked “Where are you from” and demanded “everything you have.”
Hernandez noticed that the taller man ended almost every sentence with the term, “cuz,” which Hernandez believed meant the taller man was a member of the Crips gang. The taller man told Hernandez to start the car and, at one point, put the barrel of the gun into Hernandez’s mouth. The taller man handed the gun to defendant and took Hernandez’s possessions, including his wallet, cell phone, jewelry and shoes. The taller man then drove away with Hernandez and Vanessa still in the car. Defendant pointed the gun at Vanessa and demanded her jewelry. She hesitated, but he forcibly removed her necklace and earrings. He also reached his hands under her blouse and bra and fondled her breasts. She complained, but he told her to “shut up, bitch.”
After driving around for several minutes, the taller man stopped the car on Flower Street, near 55th and 56th Streets, and told Hernandez and Vanessa to get out of the car. He also told Hernandez that they had his identification and would come looking for him if he reported the crime to the police. Vanessa heard this threat.
The next day, police saw defendant driving a car near Towne Avenue and 51st Street, in the vicinity of South Park, a Five Deuce Crips meeting place. Defendant was not wearing a seat belt. The police checked the car license number and found it was stolen. Defendant ran a stop sign and fled on foot when police tried to stop him. He was wearing a red and gray baseball cap. When captured, a red and gray baseball cap, with “Portland” on it, was found nearby.
Hernandez’s “Portland” cap was in the back of his car when the car was taken.
Hernandez was taken to a location near 49th and Main Streets, where he identified defendant. Vanessa and Hernandez picked defendant out of a six-pack photographic lineup.
Thomas Sherwood, a Los Angeles Police Department officer, testified that he had contacted defendant in the past, and defendant had said he was affiliated with the Five Deuce Broadway Crips. Members of that gang “hang out” at 54th Street and Broadway.
Los Angeles Police Officer Patrick Rudolf, a gang expert, was familiar with the Five Deuce Broadway Gangster Crips, a gang dealing in sales of narcotics, robberies and drive-by shootings. He opined that a carjacking would benefit the gang due to its intimidation factor. A stolen car would be displayed as a trophy and would be shared with other gang members.
According to Officer Rudolf, gang members often use the phrase “where are you from” to identify other gang members and to intimidate individuals who are not gang members. The term “cuz” is used primarily by Crips gang members. Officer Rudolf had a previous contact with defendant at an apartment building dominated by Five Deuce Crips, and it was the officer’s opinion that defendant was a member of the Five Deuce Broadway Gangster Crips. It also was the officer’s opinion that the crimes committed in this case were committed at the direction of and for the benefit of a criminal street gang.
Defense
Mitchell Eisen, Ph.D., testified as an expert on the reliability of eyewitness identification. He testified as to the factors that could affect the accuracy of an identification.
DISCUSSION
Mistrial Motion During Voir Dire
Defendant contends that the trial court erred in denying a mistrial motion during voir dire based upon comments made by a prospective juror. We disagree.
The decision of a trial judge on the question of whether a potential juror has tainted the jury pool, requiring a mistrial, is a matter of discretion for the trial court. The court’s decision is given great deference. (People v. Medina (1990) 51 Cal.3d 870, 889; People v. Martinez (1991) 228 Cal.App.3d 1456, 1466-1467.)
During voir dire, Juror No. 17 was interviewed by the trial court in the presence of the other potential jurors. He said he was an attorney with 39 years of experience in criminal defense work. He had a very dear friend who was carjacked, kidnapped, and raped. He indicated that he would have a difficult time being objective. He indicated a bias in favor of the prosecution.
Defense counsel questioned Juror No. 17 and asked if his defense work had given him any “preconceived” ideas about the case. Juror No. 17 responded that his defense work “and personal experience” would. Defense counsel asked Juror No. 17 if he ever had a client he believed was not guilty. The prospective juror responded that he could count on one hand the number he thought were innocent and could only think of one off the top of his head. Juror No. 17 also revealed that, “I just don’t really want to be here.” He indicated that he was not comfortable with the case and would prefer not to sit as a juror on a case with “charges like this.” The trial court and the prosecutor agreed that Juror 17 could not be fair and was excused for cause.
The defense thereafter moved for a mistrial based on Juror No. 17’s comments, particularly his comment regarding the number of innocent clients he had represented. The trial court denied the motion, noting that by the time the court had finished its inquiry of Juror No. 17, “the juror had sort of telegraphed [his] feeling about criminal defendants by indicating that he didn’t want to taint the jury and speak any further about it, but he certainly didn’t say anything specific regarding criminal defendants. [¶] The only impression I think that was left at the end of the court’s inquiry is that he was leaning towards the prosecution and that could be for any reason . . . .
“And unfortunately I know counsel was attempting rehabilitation, but it did not work out as counsel had anticipated and I thought he pretty well telegraphed where he was going when he said he didn’t want to taint the panel, so I think it’s a situation where you have to live with the answer you got. [¶] I don’t think it’s going to really impact the jury in any event regardless of who asked the question. The question is more that he just didn’t want to serve and the jury will be instructed that whatever goes on in voir dire is not evidence and should not be viewed as evidence.”
Defendant contends that Juror No. 17’s responses irreparably contaminated the entire jury pool, requiring a mistrial. Defendant’s reliance on Mach v. Stewart (9th Cir. 1997) 137 F.3d 630 to support his contention is misplaced. In Mach, a case involving sexual assault on a minor, a social worker who worked in the field of sexually abused children was questioned and gave “expert” responses regarding the truth and veracity of abused children. (Id. at p. 632.) The court found the statements tainted the prospective jurors due to the nature of the statements, the certainty and authority with which they were made, and the number of times they were repeated. (Id. at pp. 633-634.)
While federal cases may be relied upon, they are not controlling authority on matters of California law. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 943, p. 984.)
Here, Juror No. 17 stated he had no specific knowledge or insight regarding the instant case. He acknowledged bias based mainly on personal rather than professional experience, referring to the carjacking and kidnapping of a friend. While he did mention that few of his clients as a criminal defense attorney were innocent, he did acknowledge that some were, and he expressed no opinion as to defendant’s guilt or innocence.
In contrast to Juror No. 17’s comments, there were other jurors who commented on their experiences with law enforcement, in which they asserted that the police had lied or wrongly accused individuals and were lazy. Additionally, the court later would give the jury the standard instructions on presumption of innocence and the prosecution’s burden to prove guilt beyond a reasonable doubt.
The trial court was present and able to observe the reaction of the jury pool. The trial court was not convinced that Juror No. 17 had irreparably contaminated the entire panel. Discharging the entire venire should be reserved for a serious instance of demonstrated bias or prejudice. (People v. Medina, supra, 51 Cal.3d at p. 889. We find the evidence does not show that defendant’s chances of receiving a fair trial were irreparably damaged by the comments made by Juror No. 17. The trial court therefore did not abuse its discretion in denying defendant’s motion for a mistrial. (Ibid.)
Sufficiency of the Evidence as to Witness Intimidation
Defendant contends that the evidence was insufficient to sustain the conviction of witness intimidation as to the count naming Vanessa as a victim, since there is no evidence that any threats were made to her. We agree.
In reviewing the sufficiency of the evidence, the question on appeal is whether there is evidence from which a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 848-849.) “In making this determination, we ‘“must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citation.]” (People v. Rayford (1994) 9 Cal.4th 1, 23; accord, People v. Cuevas (1995) 12 Cal.4th 252, 260-261.) We also must examine the entire record, not merely “‘“isolated bits of evidence.”’” (Cuevas, supra, at p. 261.)
Substantial evidence is that which is reasonable, credible and of solid value. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) Although all reasonable inferences must be drawn in support of the judgment, the court “may not ‘go beyond inference and into the realm of speculation in order to find support for a judgment. A finding . . . which is merely the product of conjecture and surmise may not be affirmed.’” (People v. Memro (1985) 38 Cal.3d 658, 695; accord, People v Waidla (2000) 22 Cal.4th 690, 735.)
Hernandez testified that he was told “if I went to the cops or something that they had my I.D., my driver’s license and they would go look for me.” There is no evidence in the record that Vanessa was similarly threatened if she reported the crimes, or that defendant and his companion had any personal information about her which would enable them to carry out such a threat. Additionally, in her testimony, Vanessa said that “they told him if he snitched to the police he was going to go get him. They were going to go get him.” (Italics added.)
The evidence is insufficient to show that defendant or his companion made any attempt to intimidate Vanessa. Accordingly, defendant’s conviction of witness intimidation as to Vanessa must be reversed.
Sufficiency of the Evidence to Support the Gang Enhancement
Defendant contends that the evidence was insufficient to support the true findings on the criminal street gang enhancement. We agree only as to his conviction of sexual battery.
To subject a defendant to the consequences of section 186.22, “the prosecution must prove that the crime for which the defendant was convicted had been ‘committed for the benefit of, at the direction of, or in association with any criminal street gang, [and] with the specific intent to promote, further, or assist in any criminal conduct by gang members.’” (People v. Gardeley (1996) 14 Cal.4th 605, 616-617.) In the instant case, there was testimony from two police officers that defendant was a member of the Five Deuce Broadway Gangster Crips. The taller assailant issued a common gang challenge at the beginning of the robbery with his “where are you from” question. The taller man continuously used the term “cuz,” another gang term. The fact that there was no direct evidence that the taller man was also a gang member does not affect the jury’s gang finding as to defendant. The crimes were the type of crimes that are committed by Five Deuce Crips. The car, the “trophy” from the crimes committed, was seen the next day in an area that was a common meeting place of Five Deuce Crips members.
While we agree with defendant that not all crimes committed by gang members are for the benefit of the gang, the evidence in this case was sufficient to show that all but one of the crimes were committed for the benefit of, at the direction of, or in association with the Five Deuce Crips gang.
However, during the commission of the violent property-related crimes, defendant committed a sexual battery against Vanessa by putting his hands under her clothing and fondling her bare breast. The People’s gang expert, Office Rudolf, acknowledged that not all crimes committed by gang members are to benefit the gang. Crimes not benefiting the gang include drug use and spousal battery. When asked hypothetical questions by the prosecutor, Officer Rudolf indicated that carjacking, kidnapping and robbery were possibly gang-related. He did not indicate that the sexual battery was gang-related.
We find that the offensive act of fondling Vanessa’s breast was an act to satisfy defendant’s own sexual gratification. There is no evidence that it had anything to do with the Five Deuce gang or any gang objectives. The gang enhancement as to that crime therefore must be reversed.
Abstract of Judgment
Defendant contends that the abstract of judgment does not reflect the correct minimum amount of time defendant is required to serve before parole eligibility. The Attorney General concurs.
The wrong Penal Code section is referred to in the abstract of judgment in reference to some of defendant’s sentences. The abstract of judgment as to counts 1, 2, 5, 6, 8 and 10 states that pursuant to section 12022.53, subdivision (b), defendant must serve a minimum of 15 years before becoming eligible for parole. The reference to section 12022.53, subdivision (b), is incorrect. Defendant correctly identifies the applicable statute as section 186.22, subdivision (b), and its subparts. Additionally, while defendant’s sentence as to counts 1, 2, 8 and 10 are subject to the 15-year minimum parole eligibility provisions of section 186.22, subdivisions (b)(4)(B) and (b)(5), counts 5 and 6 are subject to the 7-year minimum parole eligibility provisions of section 186.22, subdivision (b)(4)(C). The abstract of judgment therefore must be corrected.
Section 12022.53, subdivision (b), adds 10 years to a sentence for the use of a firearm in the commission of specified felonies. It does not set a minimum amount of time a defendant must serve before becoming eligible for parole.
DISPOSITION
Defendant’s conviction of count 6 (dissuading a witness) and the gang allegation as to count 11 (sexual battery) are reversed. The abstract of judgment is to be modified to correctly reflect the reversals of count 6 and the gang allegation as to count 11, that counts 1, 2, 8 and 10 are subject to the 15-year minimum parole eligibility and count 5 is subject to the 7-year minimum parole eligibility provision. The clerk of the court is directed to prepare a modified abstract of judgment and forward a copy to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: VOGEL, Acting P. J., ROTHSCHILD, J.