Opinion
B225593
01-11-2012
THE PEOPLE, Plaintiff and Respondent, v. STEVEN SUMNER, Defendant and Appellant.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster, Joseph P. Lee and Dana M. Ali, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. GA076561)
APPEAL from a judgment of the Superior Court of Los Angeles County, Teri Schwartz, Judge. Affirmed.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster, Joseph P. Lee and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Steven Sumner appeals from the judgment entered following his conviction by jury of second degree murder (Pen. Code, § 187) with personal use of a deadly and dangerous weapon (Pen. Code, § 12022, subd. (b)(1)) and with court findings he suffered two prior felony convictions (Pen. Code, § 667, subd. (a)). The court sentenced appellant to prison for 45 years to life, plus one year. We affirm the judgment.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that between 6:00 p.m. and 7:00 p.m. on April 20, 2009, James Calvin Hall (the decedent) and Patrick Mason were involved in an altercation in a store in Pasadena. Hall was an African-American, and Mason was a Caucasian. Hall left the store while Mason remained inside.
Mason, appellant's codefendant, is not a party to this appeal.
Between 7:30 p.m. and 8:30 p.m., Ashley Hansen and a friend were drinking beer outside a library in Pasadena. Hansen possibly had smoked marijuana. About 20 minutes later, Hall joined Hansen and Hansen's friend. Hansen knew Hall as Caveman. After Hall joined Hansen and his friend, Mason and a fifth man approached. Hansen knew Mason "from the streets." Mason and the fifth man, both upset, asked where Caveman was, and Hall approached Mason and the fifth man. Mason and the fifth man were about 10 feet from Hansen.
Pasadena Police Detective William Broghamer testified that he interviewed Hansen, and Hansen told him the following. After Hall had been called out, Hansen "heard the comments of 'Let's get it on' and 'We're going to stick you' or 'shank you.' " The fifth man said " 'We are going to lay you out[]' " and told Mason to "beat [Hall's] ass right then and there[.]" The fifth man delivered an underhand punch to Hall's stomach. Hall, Mason, and the fifth man left, walking in the same direction.
Hall later died in the hospital as a result of a single stab wound to his abdomen. The wound cut his aorta. There were no wounds on Hall's hands or knuckles. On April 21, 2009, Pasadena Police Detective Keith Gomez arrested appellant at appellant's home. Appellant's hands were swollen and had abrasions.
Following appellant's arrest, multiple detectives interviewed him at various times. During Broghamer's April 21, 2009, interview of appellant, appellant told detectives the following. Appellant was with Mason from about 5:00 p.m. on April 20, 2009, to about 12:30 a.m. on April 21, 2009. Appellant did not recall fighting with Hall, but recalled that Mason told appellant that Hall earlier had struck Mason in the store. Appellant's knuckles were swollen because he had hit a wall.
During Gomez's April 22, 2009, interview of appellant, appellant told detectives the following. Appellant fought with Hall. Hall began talking with Mason, and Hall had his hand in his back pocket like he had something. Hall and Mason argued, and Hall said Hall would "do" Mason and appellant. Appellant asked Hall why Hall was going to "do" appellant since appellant was merely trying to help Mason. Mason did not want to do anything. Hall "got in [appellant's] face." Hall, using profanity, said he ran the neighborhood. Appellant struck Hall a couple of times in the face. Appellant denied remembering hitting Hall in the stomach. In an April 23, 2009 interview, appellant admitted to detectives that appellant had stabbed Hall twice in his chest, but appellant told detectives that appellant "didn't intend to do it." Appellant presented no defense testimony.
ISSUES
Appellant claims (1) the trial court erroneously admitted evidence that appellant, when talking with detectives, used racial slurs to refer to Hall, (2) the trial court erroneously admitted evidence of Mason's alleged statements to detectives, (3) the trial court erroneously admitted evidence of appellant's postarrest silence and the trial court erroneously instructed on adoptive admissions, (4) appellant received ineffective assistance of counsel, (5) the trial court erroneously gave inconsistent instructions to the jury, (6) the trial court erroneously failed to instruct sua sponte on assault with a deadly weapon as a lesser included offense, (7) the trial court erroneously denied appellant's motion for a mistrial, and (8) cumulative prejudicial error occurred.
DISCUSSION
1. Evidence of Appellant's Racial Slur Was Admissible.
On April 22, 2009, detectives interviewed appellant and, during the interview, the following occurred: "[Detective Gomez:] Is that a derogatory term for blacks? You ever call anyone a rug [sic]? [¶] . . . [¶] [Appellant:] No. I've called 'em toads." Gomez later asked if appellant had ever called African-Americans a "rug" and appellant replied to the effect he had done so in the past but did not do so currently.
During trial, the prosecutor proffered appellant's above statement that he had called African-Americans "toads" to prove appellant's bias toward Hall. Appellant argued it was unknown what the term "toads" meant to appellant or whether the term was derogatory. Appellant objected the proffered statement was irrelevant and excludable under Evidence Code section 352.
The court indicated the proffered statement was highly relevant to the issues of appellant's motive, intent, and animosity towards Hall at the time of the alleged stabbing. As to the Evidence Code section 352 issue, the court indicated it had never heard the term "toads" used in a derogatory sense and the term was somewhat innocuous. The proffered statement was admitted in evidence. During jury argument, the prosecutor commented to the effect that, in the past, appellant had derogatorily referred to African-Americans as "toads," and this explained why he might have committed the present offense on behalf of Mason.
Appellant claims the trial court erred by admitting into evidence appellant's statement to the effect he had called African-Americans "toads." Appellant argues the statement was irrelevant and excludable under Evidence Code section 352, and admission of the statement into evidence violated his right to due process. We reject appellant's claim.
An appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including a ruling concerning relevance and Evidence Code section 352 issues. (People v. Waidla (2000) 22 Cal.4th 690, 717, 723-724.) Appellant was a Caucasian and Hall was an African-American. Appellant's statement was reasonably understandable as a statement that he had used the term "toads" as a derogatory reference to African-Americans. Expressions of racial animus by a defendant towards the victim and the victim's race, like any other expression of enmity by an accused murderer towards the victim, are relevant evidence in a murder case. Among other things, they are evidence of the defendant's prior attitude toward the victim, a relevant factor in deciding whether the murder was deliberate and premeditated because it goes to the defendant's motive. (People v. Quartermain (1997) 16 Cal.4th 600, 628 (Quartermain). The statement was also relevant and admissible as to the issues of whether appellant stabbed Hall with intent to kill.
Moreover, as to Evidence Code section 352, the challenged statement was not so inflammatory that its probative value was substantially outweighed by its potential for undue prejudice. Appellant argued below the meaning of the term "toads" was unknown, and it was unknown whether the term was derogatory. The challenged statement was only a small portion of the evidence concerning appellant's interviews and appellant's offense. The prosecutor referred to the challenged statement during jury argument but only as evidence of appellant's state of mind, i.e., his motive for committing the present offense. There is no reason to believe the jury treated the derogatory reference as propensity evidence and convicted appellant based on that instead of convicting him for what he did to Hall. (Cf. Quartermain, supra, 16 Cal.4th at p. 628.) The record demonstrates the trial court fulfilled its responsibilities under Evidence Code section 352. (See People v. Williams (1997) 16 Cal.4th 153, 213.)
We conclude the trial court did not abuse its discretion by admitting the challenged statement as against appellant's relevance and Evidence Code section 352 objections. Similarly, the admission into evidence of the challenged statement was not so prejudicial that it denied appellant a fair trial. (Quartermain, supra, 16 Cal.4th at pp. 628-629.)
Finally, there is no dispute someone stabbed Hall, killing him. The jury reasonably could have concluded appellant's conflicting statements concerning whether he stabbed Hall evidenced appellant's consciousness of guilt. Appellant concedes elsewhere in his brief that the prosecutor introduced lengthy recordings of police interviews with appellant; the challenged statement was only a small portion of them. The jury, without consideration of the challenged statement, reasonably could have concluded appellant and Mason approached Hall, and that appellant intentionally stabbed Hall in the chest with malice aforethought in retaliation for Hall's earlier confrontation with Mason. There were no wounds on Hall's hands or knuckles, but appellant's hands were swollen and had abrasions, facts providing evidence appellant was the aggressor.
During jury argument, appellant argued he stabbed Hall in self-defense. The court instructed the jury on, inter alia, murder and justifiable homicide based on self-defense. The jury, by their verdict, rejected self-defense and concluded appellant harbored malice aforethought, and it is not reasonably probable a different outcome would have occurred absent the brief challenged statement. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836.)
2. Mason's Alleged Statements to Detectives Were Admissible.
Prior to trial, appellant advised the court that Mason's trial had been severed from appellant's trial on Bruton/Aranda grounds because of statements by Mason to police which incriminated appellant. During trial, evidence was admitted that detectives interviewed appellant on, inter alia, two occasions and, during those interviews, a detective(s) told appellant that Mason told detectives various alleged facts about the present case. The two interviews at issue were Broghamer's April 21, 2009, interview of appellant, and Gomez's April 22, 2009, interview of appellant. A recording of each of the two interviews was played to the jury. Before playing the recording of Broghamer's interview of appellant, the court, at appellant's request, gave the jury an instruction entitled "Questions Posed By Police Officer Are Not Evidence." The court also gave the substance of that instruction when the recording of Gomez's interview of appellant was played to the jury.
People v. Aranda (1965) 63 Cal.2d 518 (Aranda); Bruton v. United States (1968) 391 U.S. 123 (Bruton).
The instruction stated, ". . . you will be hearing the recorded statements of Steven Sumner. You are cautioned that only statements actually made by the defendant are to be considered as evidence. The statements and the questions posed by detectives or police officers are not evidence and should not be considered by you as evidence." The admonition continued, " . . . police officers are permitted to use various methods to try to obtain admission [sic] from individuals suspected of committing a crime. Often times these tactics involve using lies, deceit, false assumptions, false statements allegedly made by others, and unproven theories and hypotheticals. [¶] Therefore, do not assume to be true any statement made by, nor any insinuation suggested by a question posed by any detective or officers. Questions may be considered only to the extent they help you understand the answers."
The recordings and transcripts thereof were admitted into evidence. During its final charge to the jury, the court gave a modified CALCRIM No. 303 instruction concerning limited purpose evidence.
The modified CALCRIM No. 303 instruction stated: "[d]uring the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other." The instruction then recited the substance of the instruction entitled "Questions Posed By Police Officer Are Not Evidence" set forth at footnote 3, ante. The instruction then stated, "Also, during the trial, you have heard several recordings of Steven [Sumner's] statements. . . . [¶] Contained within those recordings which you heard, were questions posed by Detectives Broghamer, Okamoto, Gomez and Pham, as well as many statements made by them that may have contained lies, deceit, false assumptions, false statements allegedly made by others and unproven theories and hypotheticals. [¶] You are not to assume to be true any statement made by any detective or officer in the recordings, nor assume as true any insinuation suggested by the question posed. [¶] As to these recordings, you are not to consider any assertions by any detective or police that Angela, Teresa Sanchez, Calvin Hall, Patrick Mason, or Ashley Hansen actually made any statements to them. [¶] You are not to consider any of the information from the recordings said to have been obtained from Angela, Teresa Sanchez, Calvin Hall, Patrick Mason or Ashley Hansen for their truth or for any other reason."
Appellant claims the detectives' statements and questions to appellant during his interviews violated the Bruton/Aranda rule and the principles enunciated in Crawford v. Washington (2004) 541 U.S. 36 (Crawford).We conclude otherwise. Appellant waived any Bruton/Aranda issue by failing to raise it at his trial. (People v. Hill (1992) 3 Cal.4th 959, 994-995.) Similarly, appellant waived any confrontation clause and/or Crawford issue by failing to raise them below. (Cf. People v. Alvarez (1996) 14 Cal.4th 155, 186; People v. Benson (1990) 52 Cal.3d 754, 786-787, fn. 7 (Benson))
Appellant cites, from the following pages of the reporter's transcript, four general instances in which detectives told appellant that Mason told detectives various alleged facts: (1) pages 413 through 420, (2) page 420 in particular, (3) page 440, and (4) pages 441 through 443. We have reviewed those pages.
Even if the issues were not waived, no violation of the Bruton/Aranda rule occurred. The Bruton/Aranda rule is that the admission in evidence, against a nontestifying codefendant, of said codefendant's confession which also facially incriminates and is inadmissible hearsay as to a defendant violates the latter's right to confrontation when the confession is admitted into evidence at their joint jury trial. (Aranda, supra, 63 Cal.2d at pp. 528-531; Bruton, supra, 391 U.S. at pp. 124-128, fn. 3, 129-136.) No joint jury trial occurred in the present case.
Nor does Crawford apply to this case. The trial court made reasonably clear by the previously discussed instructions to the jury that, with respect to the detectives' interviews of appellant, only appellant's statements were evidence. The instructions also made reasonably clear that the detective's statements and questions, including any statements by detectives relating what Mason allegedly told them, were not admitted for their truth or implied truth, but only as evidence of statements and questions designed to elicit responses from appellant concerning his alleged involvement in the killing of Hall. The detectives' statements and any implied statements from the detectives' questions were thus nonhearsay. The admission of nonhearsay into evidence does not violate Crawford. (Cf. People v. Cage (2007) 40 Cal.4th 965, 975, fn. 6; People v. Combs (2004) 34 Cal.4th 821, 843-844.)
3. No Doyle Error Occurred, and the Court Did Not Err by Instructing on Adoptive Admissions.
Following appellant's arrest, detectives interviewed appellant on April 21 and April 22, 2009. There is no dispute appellant waived his Miranda rights prior to those interviews. Various statements made and questions posed by detectives were admitted into evidence. During its final charge to the jury, the court gave CALCRIM No. 357, pertaining to adoptive admissions.
Towards the beginning of the April 22, 2009, interview, Gomez indicated he wanted to ask appellant questions about the present case. However, prior to such questioning, appellant indicated that he remembered his Miranda rights which detectives read to him the day before, and that he understood that those rights applied to the current conversation. Appellant then spoke with Gomez about the present case. Appellant asserts in his opening brief, "All of the interviews with appellant occurred after his arrest, and after he received Miranda rights telling him he could remain silent." Appellant does not argue he did not initially waive his Miranda rights prior to any interrogation, nor does appellant dispute in his reply brief respondent's assertion that "appellant waived his Miranda right to remain silent at the interviews."
CALCRIM No. 357 stated, "If you conclude that someone made a statement outside of court that (accused the defendant of the crime/or tended to connect the defendant with the commission of the crime) and the defendant did not deny it, you must decide whether each of the following is true: [¶] 1. The statement was made to the defendant or made in (his/) presence; [¶] 2. The defendant heard and understood the statement; [¶] 3. The defendant would, under all the circumstances, naturally have denied the statement if (he/) thought it was not true; [¶] AND [¶] 4. The defendant could have denied it but did not. [¶] If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true. [¶] If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant's response for any purpose."
Appellant claims the detectives' interviews contained accusations by the detectives, and the admission into evidence of those accusations, coupled with the trial court's instruction on adoptive admissions, "essentially told jurors to view as true any accusation appellant had failed to deny." Appellant maintains this resulted in violations of Doyle v. Ohio (1976) 426 U.S. 610 (Doyle) and his right against self-incrimination. We conclude otherwise.
First, appellant waived the Doyle and related issues by failing to raise them below. (Cf. People v. Coffman and Marlow (2004) 34 Cal.4th 1, 118; Benson, supra, 52 Cal.3d at pp. 786-787, fn. 7.)
Second, as to the merits, in Doyle, the high court stated, "We hold that the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment." (Doyle, supra, 426 U.S. at p. 619, fn. omitted.) In Doyle, the defendants' Miranda advisements were immediately followed by the defendants' silence; there was no intervening waiver of rights and/or police questioning. Doyle observed, "[s]ilence in the wake of these warnings may be nothing more than the arrestee's exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. [Citation.] Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial. [Fns. omitted.]" (Doyle, supra, 426 U.S. at pp. 617-618, italics added.)
However, Doyle does not bar use of post-Miranda, postwaiver silence, i.e., when a defendant waives the defendant's Miranda rights, voluntarily talks to police, later invokes the rights, and the prosecutor seeks to use the defendant's silence that occurred during the period after the waiver but before the invocation. (People v. Hurd (1998) 62 Cal.App.4th 1084, 1093; People v. Thompson (1986) 183 Cal.App.3d 437, 441-443; People v. Clem (1980) 104 Cal.App.3d 337, 340-344; People v. Farris (1977) 66 Cal.App.3d 376, 387-390; but see People v. Coffman and Marlow, supra, 34 Cal.4th at pp. 118-119 .)
Finally, in People v. Evans (1994) 25 Cal.App.4th 358 (Evans), the court stated that a Doyle violation has two components. First, the prosecution makes use of a defendant's postarrest silence for impeachment purposes. Use of a defendant's postarrest silence can occur either by questioning or by reference in closing argument. Second, the trial court permits that use. Permission will usually take the form of overruling a defense objection, thus conveying to the jury the unmistakable impression that what the prosecution is doing is legitimate. (Id. at p. 368.)
In the present case, first, appellant initially waived his Miranda rights prior to any questioning, and any silence at issue was postwaiver silence. Second, appellant did not testify; therefore, any post-Miranda silence on his part could not be used to impeach him. Third, use of a defendant's postarrest silence can occur either by questioning or by reference in closing argument. (Evans, supra, 25 Cal.App.4th at p. 368.) No such prosecutorial use occurred. No Doyle error, or violation of appellant's right against self-incrimination, occurred. Nor did the trial court's giving of CALCRIM No. 357 constitute, or contribute to, Doyle or other error.
Appellant's fourth claim is that he received ineffective assistance of counsel to the extent his trial counsel waived issues appellant raises in his second and third claims (addressed in parts 2 and 3 of our Discussion, respectively) by failing to raise them in the trial court. We disagree. The record sheds no light on why appellant's trial counsel allegedly failed to act in the manner challenged, the record does not reflect appellant's counsel was asked for an explanation and failed to provide one, and we cannot say there simply could have been no satisfactory explanation. Moreover, we have concluded in part 2 of our Discussion that no Bruton/Aranda or Crawford error occurred, and we have concluded in part 3 that no Doyle or related error occurred. We reject appellant's ineffective assistance claim, since he has failed to demonstrate prejudicial constitutionally-deficient representation. (See People v. Slaughter (2002) 27 Cal.4th 1187, 1219; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.)
4. The Trial Court Did Not Give Inconsistent Instructions.
During opening statement, appellant conceded he stabbed Hall but appellant asserted he lacked intent to kill and acted in self-defense. As previously discussed, the recording of Broghamer's interview of appellant was played to the jury and the court at appellant's request gave the jury an instruction entitled "Questions Posed By Police Officer Are Not Evidence." The court also gave the substance of that instruction when the recording of Gomez's April 22, 2009, interview of appellant was played to the jury.
The instruction is set forth in footnote 3, ante.
Later, during the presentation of evidence, Juror No. 4 submitted a note to the court. The note indicated (1) Hanson had testified he was unable to identify the "other guy" but (2) Broghamer repeatedly had testified "the other guy" was appellant. The note asked whether it was understood, based on an admission from Mason and appellant's statements to detectives, that "the other guy" to whom Hanson referred was appellant. In response, the court gave the jury a modified CALCRIM No. 303 instruction concerning limited purpose evidence (see fn. 4, ante). During its final charge to the jury, the court again gave the modified CALCRIM No. 303 instruction. The trial court also gave CALCRIM No. 357, pertaining to adoptive admissions (see fn. 7, ante).
The note stated, "[d]uring the testimony last Thursday, the witness (Hansen) admitted to not being able to identify 'the other guy', but during questioning of [Detective Broghamer], [Broghamer] explained the interview & on repeated occasions referred interchangeably to 'other guy', 'defendant', 'Mr. Sumner'. It was never established how the detective was able to make the leap & I noted in my notes as such. My question: is it somehow understood that the 'other guy' Ashley Hansen is referring to is Sumner because of an admission from Patrick & the defendant's statements [with] detectives? I don't want to overexaggerate the point/confusion, but it appears the court was okay with [this] & I was curious if it was related to opening statements from defense that Sumner's actions were not in question. Didn't you advise however that we were not to consider opening statements as evidence?
Appellant claims the special instructions (i.e., the instruction entitled "Questions Posed By Police Officer Are Not Evidence" and the modified CALCRIM No. 303 instruction) were inconsistent with CALCRIM No. 357. We disagree. In deciding whether an instruction is erroneous, we determine how it is reasonably likely the jury understood the instruction, and whether the instruction, so understood, accurately reflects applicable law. (People v. Warren (1988) 45 Cal.3d 471, 487.) In addressing the question of how a reasonable juror would understand the instruction, we consider the charge in its entirety. (Ibid.)
A reasonable juror would have understood from the special instructions that when police officers interview a suspect, they sometimes make statements, including false ones, as tactics to obtain an admission from a defendant; therefore, a juror could not consider such police statements by themselves for their truth but could consider them by themselves only as tactics employed to obtain an admission. A reasonable juror also would have understood that when the requirements of CALCRIM No. 357 were satisfied and police statements were coupled with a defendant's failure to deny them, a juror could construe that failure as an admission of the truth of the statements. No instructional error occurred.
The note from Juror No. 4 does not compel a contrary conclusion. The note indicated it was from Juror No. 4, not from the jury. It did not ask a question about instructions, but asked about what was understood concerning the state of the evidence given Broghamer's allegedly unsupported assumption that the "other guy" to whom Hansen referred was appellant. After Juror No. 4 submitted the note, the court responded with the modified CALCRIM No. 303 instruction, and no juror posed any subsequent questions to the court. Notwithstanding appellant's assertion in his opening brief that Juror No. 4's question was posed during deliberations, Juror No. 4 in fact posed the question during the presentation of evidence. Any alleged inconsistency between the special instructions and CALCRIM No. 357 could not therefore have prompted Juror No. 4 to pose said question, because CALCRIM No. 357 was given only after the presentation of evidence, i.e., during the court's final charge to the jury.
5. The Trial Court Did Not Err by Failing to Instruct Sua Sponte on Assault with a Deadly Weapon as a Lesser Included Offense.
Appellant claims the trial court erred by failing to instruct sua sponte that assault with a deadly weapon was a lesser included offense of second degree murder. He argues his Penal Code section 12022, subdivision (b)(1) enhancement should be considered as an element of second degree murder with the result assault with a deadly weapon is a lesser included offense of second degree murder with personal use of a knife. There is no dispute that, absent consideration of the enhancement, assault with a deadly weapon is not a lesser included offense of second degree murder.
People v. Wolcott (1983) 34 Cal.3d 92, 96 (Wolcott) concluded weapon use enhancements are not to be considered when determining whether an offense is a lesser included offense. Apprendi v. New Jersey (2000) 530 U.S. 466 , relied on by appellant, does not compel a contrary conclusion. (Cf. People v. Izaguirre (2007) 42 Cal.4th 126, 129, 133-134.) Appellant concedes we are bound to follow Wolcott by Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, but asserts he "raises this issue to permit reconsideration by the California Supreme Court and to preserve the issue for possible federal review." We reject appellant's claim. 6. The Trial Court Properly Denied Appellant's Motion for a Mistrial. a. Pertinent Facts.
Appellant also suggests equal protection principles support his position. Appellant cites no authority for this proposition. In any event, and notwithstanding appellant's argument to the contrary, a person charged only with a crime is not similarly situated with respect to a person charged with a crime and an enhancement. An enhancement is not equivalent to an offense, because a defendant is not at risk for punishment under an enhancement allegation until the defendant has been convicted of the offense. (People v. Wims (1995) 10 Cal.4th 293, 307.) Since the persons whom appellant asserts are similarly situated are in fact not similarly situated, his equal protection claim fails. (Cf. People v. Gonzales (2001) 87 Cal.App.4th 1, 12.)
During trial, the court interrupted appellant's cross-examination of Broghamer to permit testimony from a doctor who had treated Hall in the hospital while he was still alive. After the doctor's testimony, the court recessed for 15 minutes, indicating it would resume with Broghamer's testimony.
During the taking of the recess, a fire alarm activated in the courthouse. The court later indicated as follows. What had happened was utter chaos. Shortly after the jury left the courtroom, fire alarms activated. The trial judge entered the courtroom and no law enforcement officer was present. Everyone panicked because of the alarm and because of an announcement that fire was in that area of the building and everyone had to evacuate. The court told the clerk not to have the jurors depart, and the clerk made that announcement.
The court asked Broghamer what had occurred, and he indicated as follows. The clerk had told Broghamer something to the effect that he was not to let the jurors get to the stairwell. Broghamer exited the courtroom, entered the hallway, and told the jurors to wait there while it was determined whether what had occurred was a false alarm. Broghamer did this based solely on his concern for public safety. The stairwells were steep and some jurors might have had difficulty descending them.
The court asked the clerk what had occurred, and she indicated as follows. The clerk exited and saw that some jurors already had left to descend the stairs. The clerk told a juror to not let anymore jurors descend the stairs because those jurors would be locked inside. The clerk did not remember directly addressing Broghamer. No law enforcement officers were in the hallway, and the clerk did not remember whether Broghamer was in the hallway because the clerk had not been focused on him.
Juror No. 7 indicated Broghamer entered the hallway and said " 'Don't go,' " and some jurors already had begun descending the stairs. Juror No. 8 indicated Broghamer entered the hallway and said " 'Just don't go anywhere.' " Juror Nos. 7 and 8 agreed that all Broghamer said was, " 'Just don't go anywhere.'" Juror Nos. 7 and 8 were the only jurors who indicated they had had contact with Broghamer.
The court indicated it needed to know if Juror Nos. 7 and 8 would be able to maintain an open mind, remain unbiased, and be fair. Juror No. 7 indicated what had occurred presented a unique situation which would not make any difference to Juror No. 7. Juror No. 8 indicated "it wasn't anything about a case." Juror No. 8 indicated she used a cane, was not good at descending stairs, and had been wondering if the alarm was a false alarm. Juror No. 8 said she was very happy when "he said 'just wait here until we find out what is going on.' "
The following occurred: "The Court: Is there anybody on this panel that given this event feels it might be difficult to be fair and opened minded in this case, given that there may have been some contact with the detective, or the detective may have assisted some of you in either telling you what to do or not to do? [¶] And, No. 8, are you able to keep an open mind in this case and on all the issues? [¶] Juror No. 8: Sure." The record does not reflect a response from the rest of the jurors, or that any juror felt it would be difficult to be impartial.
Counsel for both parties indicated they had no questions. The court stated, "That's taken care of" and did not expressly rule on appellant's motion for a mistrial. Appellant's cross-examination of Broghamer resumed.
b. Analysis.
Appellant claims the trial court erred by denying his motion for a mistrial. He argues the trial court's inquiry was inadequate because it exposed all jurors to Broghamer's conduct, the trial court failed to ascertain whether any jurors would be affected, and the responses of jurors who had directly contacted Broghamer were facially unbelievable.
A motion for a mistrial should be granted only when a defendant's chances of receiving a fair trial have been irreparably damaged. (People v. Ayala (2000) 23 Cal.4th 225, 282.) An appellate court applies the abuse of discretion standard of review to any ruling on a motion for a mistrial. (People v. Williams (1997) 16 Cal.4th 153, 210.)
Moreover, appellant's claim raises an issue of jury misconduct. When a trial court is aware of possible juror misconduct, the court must make whatever inquiry is reasonably necessary to resolve the matter. Although courts should promptly investigate allegations of juror misconduct, they have considerable discretion in determining how to conduct the investigation. The court's discretion in deciding whether to discharge a juror encompasses the discretion to decide what specific procedures to employ including whether to conduct a hearing or detailed inquiry. (People v. Prieto (2003) 30 Cal.4th 226, 274.)
Not every allegation of jury misconduct justifies an evidentiary hearing. (People v. Yeoman (2003) 31 Cal.4th 93, 163.) Instead, such hearings should be conducted only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred. Even when the defense has made such a showing, an evidentiary hearing will generally be unnecessary unless the evidence presents a material conflict that can be resolved only at such a hearing. (Ibid.)
Finally, when "true jury misconduct" (People v. Chavez (1991) 231 Cal.App.3d 1471, 1484) exists, a presumption of prejudice arises. (Ibid.)However, when the alleged jury misconduct involves an unauthorized communication with or by a juror, the presumption of prejudice does not arise unless there is a showing that the content of the communication was about the matter pending before the jury, i.e., the guilt or innocence of the defendant. (Id. at p. 1485.)
We assume arguendo that appellant secured a ruling on his mistrial motion and the trial court denied it. Nonetheless, no communication between Broghamer and any juror pertained to a matter pending before the jury. Any jury misconduct was not true jury misconduct. Indeed, any juror misconduct was trivial. (Cf. People v. Ryner (1985) 164 Cal.App.3d 1075, 1083.) No presumption of prejudice arose from the alleged jury misconduct.
Even if a presumption of prejudice arose, it does not follow we must reverse the judgment. A fire alarm sounded and there was an announcement that the courtroom was in the area at risk. Appellant concedes the situation was chaotic. Broghamer, the only law enforcement officer present, did not, merely because he was a witness at trial, cease to be a police officer charged with responsibility for the public's safety. The court indicated it had told the clerk not to have the jurors depart and the clerk made that announcement. Broghamer testified without contradiction the clerk told Broghamer something to the effect that he was not to let the jurors get to the stairwell.
The court dutifully inquired which jurors had had contact with Broghamer. Only Juror Nos. 7 and 8 responded. Both indicated in essence that they could be impartial notwithstanding the incident. Their answers were not facially unbelievable; indeed, they were eminently believable, facially and contextually. The court asked the panel a question to the effect of whether, given the event, anyone might feel it would be difficult to be impartial. No juror indicated it would be difficult.
There was no real factual dispute as to what had occurred. The court gave appellant an opportunity to pose further questions; neither counsel posed any. The alleged jury misconduct was trivial, the trial court's inquiry was proper and sufficient, no presumption of prejudice arose, any such presumption was rebutted, and the alleged misconduct was not prejudicial. Accordingly, no constitutional or other error occurred, and the trial court did not abuse its discretion by denying appellant's motion for a mistrial.
In light of our resolution of appellant's claims, we reject his final claim that prejudicial cumulative error occurred.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J. We concur:
KLEIN, P. J.
CROSKEY, J.