Opinion
B293728
02-06-2020
THE PEOPLE, Plaintiff and Respondent, v. MARLIN JAMIR SIMON, Defendant and Appellant.
Michael S. Evans for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Roberta L. Davis, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA145881) APPEAL from a judgment of the Superior Court of Los Angeles County, Michael Shultz, Judge. Affirmed. Michael S. Evans for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Roberta L. Davis, Deputy Attorney General, for Plaintiff and Respondent.
* * * * * *
A jury convicted Marlin Jamir Simon (defendant) of being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)). Defendant now contends that the verdict was coerced and that there was insufficient evidence that he committed the prior crime used to enhance his sentence. Because these arguments lack merit, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Defendant possessed a firearm on April 19, 2018. At that time, defendant stood convicted of a felony that barred him from possessing a firearm.
II. Procedural Background
The People charged defendant with being a felon in possession of a firearm. The People further alleged that defendant's 2008 robbery conviction constituted a prior "strike" under our state's Three Strikes Law (§§ 667, subd. (d), 1170.12, subd. (b)). The People additionally alleged that defendant had served two prison priors for being a felon in possession of a firearm—in 2010 and again in 2014 (§ 667.5, subd. (b)).
A jury convicted defendant. Defendant waived the right to a jury trial on the "strike" allegation, and the court found that defendant had been convicted of robbery in 2008.
The court sentenced defendant to six years in prison. The court imposed a high-end base term of three years, which it doubled due to the prior "strike." The court struck the prior prison term allegations.
Defendant filed this timely appeal.
DISCUSSION
I. Coerced Verdict
Defendant argues that the trial court coerced the jury's guilty verdict in instructing the jury to continue deliberating after it indicated a possible deadlock.
A. Pertinent facts
The presentation of the opening statements, evidence and closing argument took a day and a half. Following two hours and 35 minutes of deliberations, the jury sent a note stating, "We cannot come to a unanimous decision. Please advise on the next step."
After calling the jury into the courtroom, the court asked the foreperson whether there was "anything" the foreperson thought the court "could do in terms of clarifying the law [or] answering a question" that would "assist [the jury] in reaching a unanimous verdict." The foreperson replied, "I don't believe so." The court then stated it was going to "take a very brief break" and then "ask" the jurors "to go back in[to] th[e jury] room and deliberate after the break," but added that if further deliberations were "not working," then "it's not working out" and to "send . . . another note." Before the break, however, the court "want[ed] to just share" "a couple [of] things" with the jurors. The court noted that the trial had been "a relative[ly] short" one and that the jury had "only deliberated really for an afternoon and then for an hour this morning." The court then read from CALCRIM 3551, which encouraged the jurors "not [to] hesitate to re-examine [their] own views" because "effective jury deliberations require a frank and forthright exchange of views," but reminded them not to "surrender[] [their] individual judgment." The court closed by emphasizing that it was "not going to pressure . . . or hold [the jurors] hostage" and by imploring the jurors "to consider the instruction."
Following a 15-minute break, the jury resumed deliberations for another hour and 55 minutes before signaling that it had reached its verdict.
B. Analysis
A trial court may discharge a jury only if "it satisfactorily appears that there is no reasonable probability that the jury can agree" on a verdict. (§ 1140.) In assessing whether a jury has reached this point of deadlock, a court may inquire of the jury but must be careful not to "displac[e] the jury's independent judgment 'in favor of considerations of compromise and expediency.' [Citation.]" (People v. Breaux (1991) 1 Cal.4th 281, 319 (Breaux).) Whether a trial court's words or conduct "cross[] the line from encourag[ing a verdict] to coerc[ing]" one turns on "the facts and circumstances of each case." (Ibid.; People v. Peoples (2016) 62 Cal.4th 718, 783 (Peoples).) "'The decision whether to declare a hung jury or to order further deliberations rests in the trial court's sound discretion.' [Citations.]" (People v. Brooks (2017) 3 Cal.5th 1, 88.)
The trial court did not abuse its discretion in ordering further deliberations. The jury had not deliberated for very long, and courts may generally order a jury to continue deliberating if its initial proclamation of deadlock is preceded by "a relatively short period" of deliberations. (Breaux, supra, 1 Cal.4th at p. 320; People v. Debose (2014) 59 Cal.4th 177, 209-210 (Debose).) The court's inquiry into whether further deliberations might prove fruitful and its response thereafter was also appropriate: A court may ask a foreperson whether further deliberations would be helpful (People v. Gill (1997) 60 Cal.App.4th 743, 748-749), may give the jurors a break (Debose, at p. 210), and may give them a supplemental instruction that is not coercive (People v. Moore (2002) 96 Cal.App.4th 1105, 1121). And nothing about the court's interaction with the jury was coercive: The instruction reminded jurors not to "surrender[] [their] individual judgment" and the court both before and after that instruction told the jurors that they could stop deliberating if "it's not working out" and that the court was not "pressur[ing]" them.
Defendant raises three arguments in response.
First, he argues the court coerced a verdict by not accepting the foreperson's response that further deliberation would be unhelpful. For support, he cites People v. Rojas (1975) 15 Cal.3d 540 (Rojas). Defendant is incorrect. Contrary to what he suggests, the jury's self-evaluation of a potential deadlock is not dispositive. (People v. Valdez (2012) 55 Cal.4th 82, 159 ["a court 'is not bound to take as final the statement of the [jurors] that they cannot agree upon a verdict.'"], quoting People v. Greene (1893) 100 Cal. 140, 142.) And while Rojas held that a trial court acted within its discretion in accepting a foreperson's representation of deadlock (Rojas, at pp. 546-547), Rojas did not purport to hold the converse—that is, that a trial court always abuses its discretion if it rejects such a representation.
Second, defendant argues that the trial court's comments "[i]n effect" told "the juror[s] that the case was a simple one and they needed to keep deliberating." He likens this case to People v. Crossland (1960) 182 Cal.App.2d 117 (Crossland). Again, defendant is incorrect. The court commented on the relative shortness of the trial not to suggest, as the trial court in Crossland expressly stated, that the jury had already spent too much time on "the most simple case" ever (id. at p. 118), but rather to emphasize that the jury had not spent enough time deliberating. The former is impermissible; the latter, as noted above, is not.
Lastly, defendant argues that the trial court's inquiry into the deadlock was insufficient because the court did not (1) ask the foreperson why the jury was deadlocked, (2) ask the jury how many ballots it had taken, and (3) ask each and every juror whether they agreed with the foreperson that further deliberations would not likely be fruitful. No case has yet to require any or all of these steps as a prerequisite to ordering a jury to continue its deliberation. (E.g., Debose, supra, 59 Cal.4th at p. 210 [trial court need not inquire into jury's "numerical division"]; Rojas, supra, 15 Cal.3d at p. 547 [trial court need not take a "formal vote" of jury]; Peoples, supra, 62 Cal.4th at p. 782 ["[A] trial court does not abuse its discretion merely by declining to poll the jury as to the likelihood of reaching a unanimous verdict."].) We decline to do so in any event, as the type of probing inquiry that defendant suggests runs a significant risk of eliciting information about the substance of the jury's deliberations. We refuse to adopt a standard that would require trial courts to engage in a detailed colloquy that carries with it a risk of invalidating a jury's deliberations in order to determine whether those deliberations should continue.
II. Sufficiency of the Evidence Regarding Prior Robbery
Defendant also argues that the trial court erred in finding that he had committed the 2008 robbery charged as a "strike."
A. Pertinent facts
To prove that defendant committed the 2008 robbery, the People introduced (1) a certified docket sheet under the name "Marlon Simon," with a "CII" number of "A27123675," an FBI number of "228640LC3," an arrest date of July 14, 2007, a conviction date for robbery of December 11, 2007, a sentence date of January 18, 2008, and date of birth of September 15, 1984; (2) a certified "Adult Disposition of Arrest and Court Action" under the name "Marlon Simon," with the same CII and FBI numbers, the same arrest, conviction, and sentencing dates, and two different dates of birth—July 15, 1984 and September 15, 1984; and (3) a certified booking photo for "Marlon Simon," with the same CII and FBI numbers, an arrest date of July 24, 2007, a date of birth of September 15, 1984. The charging document in this case listed defendant's name as "Marlin Jamir Simon," with a date of birth of July 15, 1984, and a prior robbery conviction on January 18, 2008.
The trial court found that these documents established defendant's identity as the perpetrator of the 2008 robbery beyond a reasonable doubt. All of them involved the same name (except, as noted below, one instance where defendant's first name is one letter off) as well as the same CII and FBI numbers and same date of conviction and sentencing. The court also examined the booking photo and concluded that it looked like the same person sitting in court, in part because of the "very distinctive crook or bend" in defendant's nose. The court noted the discrepancies in the birth dates reported in the various documents, but found that those discrepancies between the two dates—sometimes in the same document—to be insufficient to overcome the "internal[] consisten[cy]" on all the other criteria of identity.
B. Analysis
The prosecution bears the burden of proving a prior "strike" beyond a reasonable doubt. (People v. Jones (1995) 37 Cal.App.4th 1312, 1315.) We review a trial court's finding of a prior "strike" for substantial evidence, asking only whether there is sufficient evidence to support that finding when viewing the evidence in the light most favorable to that finding. (Ibid.)
Substantial evidence supports the trial court's finding that defendant committed the 2008 robbery. Matching names are enough by themselves. (People v. Saez (2015) 237 Cal.App.4th 1177, 1190 (Saez); People v. Mendoza (1986) 183 Cal.App.3d 390, 401.) So are matching photographs. (People v. Foster (1988) 201 Cal.App.3d 20, 26.) Here, there are both, and the minor deviation in the spelling of defendant's first name does not overcome the evidence supporting the trial court's finding that defendant committed the 2008 robbery. Indeed, the evidence also included matching identification numbers issued by the California Department of Corrections and Rehabilitation (the CII number) and the Federal Bureau of Investigation (the FBI number), and a matching date of conviction and sentencing for a matching crime (robbery).
Defendant argues that the conflicting birthdates in the 2008 conviction records compelled the court to find he did not commit the 2008 robbery unless the People came forth with fingerprint or DNA evidence. For support, he cites CALCRIM 224 that requires a jury to "accept" the "conclusion" that "points to innocence" when confronted with two conflicting inferences. We reject this argument because it misapprehends the nature of substantial evidence review. As noted above, our task is solely to assess whether the evidence was sufficient for the court to find that defendant committed the 2008 robbery. The matching names and photographs are sufficient for that purpose. The age of the photograph is of no concern because, as the trial court noted, defendant has a distinctive facial feature. And contrary to what defendant asserts, nothing more is required. (E.g., Saez, supra, 237 Cal.App.4th at p. 1191 [rejecting argument that fingerprint was necessary when names matched].) And CALCRIM 224 applies to a jury's assessment of the evidence in the first instance, not an appellate court's subsequent review for substantial evidence. Indeed, if all a defendant had to do to overturn a conviction was point to any piece of conflicting evidence presented at trial, few if any convictions would ever be affirmed. That is obviously not the way it works.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, P.J.
LUI /s/_________, J.
CHAVEZ