Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed, Super. Ct. No. 04HF0810
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Randall D. Einhorn and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
A jury convicted Mannie Thomas III of three counts of attempted murder (counts 1-3), three counts of assault with a semiautomatic firearm (counts 4-6), and one count of shooting from a motor vehicle (count 7). The jury also found true allegations Thomas personally discharged a firearm causing great bodily injury (counts 1-3, 7) personally discharged a firearm (counts 1-3, 7), personally caused great bodily injury (counts 1-7), and personally used a firearm (counts 4-6). The court sentenced Thomas to an indeterminate term of life with the possibility of parole, plus a consecutive term of 25 years to life.
Thomas contends the jury engaged in prejudicial misconduct, and his attorney rendered ineffective assistance of counsel by failing to move for a mistrial on this ground. He argues the judgment must be reversed as to counts 4, 5, and 6 because assault with a semiautomatic firearm is a lesser included offense of attempted murder (counts 1-3), and count 4 must be reversed because assault with a semiautomatic firearm is also a lesser included offense of shooting from a motor vehicle (count 7). We conclude Thomas’ contentions are meritless and affirm the judgment.
I
FACTS
One night in May 2004, Thomas and his friends Brian Higginbotham and Nicholas Hirsch attended a party at the Irvine home of Omar Moreno and Lorenzo Morales. During the course of the evening, Morales asked Thomas and several other people to leave the party. Thomas and Morales argued and shoved each other for about 20 minutes. Their scuffle began in the residence’s kitchen, but it ended in the driveway. En route, Thomas told Hirsch to “go get my shit out of the car.” However, Moreno intervened and sprayed Thomas with pepper spray before the conflict could further escalate.
The pepper spray convinced Thomas, Higginbotham, and Hirsch to leave the party. Before he left, Thomas told Eric Holter, “I respect you. Don’t be in front in five minutes. People are going to die.” As Thomas and his friends walked away from Moreno, Morales, Brian Scott, and approximately 20 other people that had gathered in the driveway to watch, Thomas stopped four girls coming to the party and said, “Don’t go to that party. There’s a lot of bad people going in. It’s gonna get crazy. I don’t want to be responsible for what happens to you.” One of these girls reported that Thomas turned and lifted his shirt to reveal a gun tucked into the waistband of his pants.
Minutes later, a small, white car slowly passed by the crowd that had gathered in the driveway. When the car was approximately 15 to 20 feet from Moreno, Morales, and Scott, Thomas, who was seated on the car’s passenger window sill and leaning over the car’s top, fired several shots from a semiautomatic gun. At least one shot hit Scott’s right leg, fracturing his right kneecap. There were no other injuries, but another person felt something brush his pant’s leg and later discovered his pants had brand new bullet holes. Another witness thought she heard two shots coming from the house after the white car sped away.
Crime scene investigators found 10 shell casings in the street. Irvine Police Department Investigator David Edwin Stoermer testified that the location of these shell casings was consistent with shots having been fired from a moving car. A firearms expert determined that all 10 shell casings had been fired from the same semiautomatic gun. The investigators were unable to locate any bullets or additional shell casings in the general area of the shooting.
The day after the shooting, Irvine police officers interviewed Thomas, Hirsch, and Higginbotham. Higginbotham admitted he was in the backseat of the white car when Thomas fired several shots from a semiautomatic gun. He told investigators that Thomas had given him a semiautomatic gun one week before the party, but Higginbotham said he returned this gun fully loaded to Thomas the night of the party. Hirsh admitted that he was the driver of the white car, and he also told investigators Thomas fired several shots as the car passed the crowd.
Thomas initially denied knowing anything about the shooting or the party. When investigators confronted him with proof he attended the party, Thomas admitted going to the party but denied knowing anything about the shooting. Eventually, Thomas admitted that he used Higginbotham’s semiautomatic gun to fire several shots into the air. He claimed to have done so in self-defense after someone in or around the house fired shots at the car. He denied having anything to do with the gun before the party, denied having a gun in his waistband after he left the party, and denied making the many incriminating statements witnesses attributed to him. Thomas said he gave the gun to his friend, Ronald Foster, after the shooting. Foster admitted burying the gun, but he and the investigators were unsuccessful in their attempt to recover it. Thomas said another person at the party, a man in a Los Angeles Lakers jersey, had a gun and threaten him with it after Moreno used the pepper spray.
II
DISCUSSION
Alleged Juror Misconduct
Investigator Stoermer, a veteran police officer with over 20 years experience, testified during the prosecution’s case-in-chief. His testimony began late Thursday afternoon, September 22, 2005, and it concluded the following Monday morning, September 26, 2005. Investigator Stoermer formed the opinion that the location of the expended shell casings was consistent with shots having been fired from a moving car. He also testified about the steps he and other crime scene investigators took to locate expended bullets and their efforts to locate additional shell casings in the general area of the shooting.
At the conclusion of Investigator Stoermer’s testimony on Thursday afternoon, the court admonished the jury, “Again, do not discuss this case amongst yourselves or anyone else, nor form [an] opinion on the matter until submitted to you for deliberation. Do not have any contact with any of the participants. Do not conduct any independent investigation of the law or the facts of this case.” The court gave essentially the same separation admonition at the conclusion of Investigator Stoermer’s testimony on Monday morning and before declaring Monday’s noon recess.
Notwithstanding the court’s admonition, Juror No. 9 told the court that there had been a conversation between Investigator Stoermer and another juror. The court immediately convened a hearing outside the presence of the jury. Under court questioning, Juror No. 3 admitted that he had asked Investigator Stoermer if the investigator ever watched the popular television program, “CSI.” According to Juror No. 3, Investigator Stoermer responded, “I don’t believe this should be any part of the case, so it’s okay.” Stoermer then told Juror No. 3 that he had seen CSI, but that he thought “it was pretty Hollywood.” Juror No. 3 asked the investigator if he carried a gun, and the investigator said that he did. Jurors No. 10 and 11 said they overheard Juror No. 3 ask Investigator Stoermer a question, but neither one heard the entire conversation. According to Juror No. 10, after his exchange with Juror No. 3, Investigator Stoermer purposefully took a different elevator from the one a group of jurors boarded.
The court asked the jurors if they felt this incident would influence their decision making and the jurors indicated that it would not. The court stated, “For future reference, that’s an absolute no-no. That’s why I said at the beginning don’t have any contact with any participant, including witnesses. I know it was harmless on your part. It didn’t have anything to do with the case, but it just doesn’t look right, so please don’t do that again.” Out of the presence of the entire jury, the court asked counsel for any comments. The prosecutor had no comment. Defense counsel explained that he had been aware of the incident and talked to a trial observer who had also witnessed the exchange between Juror No. 3 and Investigator Stoermer. Based on the court’s inquiry, his own inquiry, and the subject matter, defense counsel told the court, “It sounds harmless.”
On appeal, Thomas contends the jurors involved in the incident with Investigator Stoermer engaged in prejudicial misconduct. True, contact between a witness and a juror during trial may constitute juror misconduct. (People v. Hardy (1992) 2 Cal.4th 86, 173-175; Caliendo v. Warden, California Men's Colony (9th Cir. 2004) 365 F.3d 691, 697-699 .) Once such information is brought to the trial court’s attention, the court has the discretion to conduct an inquiry into the incident, but should only do so where the information demonstrates a “‘strong possibility’” that prejudicial misconduct has occurred. (People v. Hardy, supra, 2 Cal.4th at p. 174, quoting People v. Hedgecock (1990) 51 Cal.3d 395, 419.)
In this instance, the trial court correctly decided that the reported contact between Investigator Stoermer and Juror No. 3 warranted further investigation. As the Attorney General concedes “any discussion concerning the officer’s thoughts on C.S.I. was improper . . . .” Nevertheless, the Attorney General also claims Thomas suffered no prejudice as a result of the improper communication between Juror No. 3 and Investigator Stoermer, or because Jurors No. 9, 10, and 11 overheard their improper conversation. We agree.
The trial court promptly convened a hearing and questioned all of the jurors involved. After this inquiry, the court received the jurors’ assurances that the improper contact would not influence their decision making. Thomas has not come forward with any information to suggest the jurors were untruthful or withheld information. Although we cannot characterize the misconduct as trivial, it was insignificant. A crime scene investigator’s opinion of a television show based on the work of fictional crime scene investigators is not the type of outside evidence likely to influence a verdict. Further, nothing in the record suggests the jury placed undue emphasis on Investigator Stoermer’s testimony. To the contrary, although the jury requested a readback of Thomas’ testimony, it did not make the same request of Investigator Stoermer’s testimony.
The prosecution presented ample evidence Thomas fired multiple shots into a crowd of people, seriously wounding one person and needlessly jeopardizing the lives of others. Investigator Stoermer’s opinion the shots were fired from a moving car merely buttressed the testimony of several eyewitnesses as to how the crimes occurred. In addition, Investigator Stoermer testified that efforts to recover the expended bullets may have been hampered by the fact the shooting occurred outdoors, which might also explain the absence of additional shell casings, assuming there were any to be found. On this record, we find no basis for a reversal of the judgment on the grounds of juror misconduct.
Ineffective Assistance of Counsel
Thomas also contends trial counsel rendered ineffective assistance of counsel by failing to move for a mistrial on the ground of juror misconduct. However, we have concluded the court correctly investigated the reported instance of juror misconduct and found no basis for discharging any of the jurors. Consequently, Thomas cannot demonstrate he suffered prejudice as a result of his attorney’s failure to move for a mistrial on this ground. (Strickland v. Washington (1984) 466 U.S. 668, 697.) Nor can he show a reasonable probability of a more favorable result absent counsel’s asserted error. (People v. Burgener (2003) 29 Cal.4th 833, 880.)
Assault with a Firearm is not a Lesser Included Offense of Attempted Murder
Thomas contends the convictions on counts 4, 5, and 6 (assault with a semiautomatic firearm) violate state and federal Constitutional guarantees against double jeopardy. He asserts assault with a firearm is a lesser included offense of attempted murder (counts 1, 2, 3) when considered with the associated enhancements for personal use of a firearm and causing great bodily injury. We disagree.
Traditionally, appellate courts “have applied two tests in determining whether an uncharged offense is necessarily included within a charged offense: the ‘elements’ test and the ‘accusatory pleading’ test. ‘Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former. [Citation.]” (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228, (Reed).)
Thomas acknowledges that under the statutory elements test, assault with a firearm is not a lesser included offense of attempted murder because one need not possess a gun to commit attempted murder. (People v. Parks (2004) 118 Cal.App.4th 1, 6; People v. Cook (2001) 91 Cal.App.4th 910, 918.) Nevertheless, he argues enhancement allegations should be treated as the functional equivalent of an element of any associated offense. Unfortunately for Thomas’ position, the California Supreme Court recently rejected his argument. (People v. Izaguirre (2007) 42 Cal.4th 126, 133 (Izaguirre); People v. Sloan (2007) 42 Cal.4th 118, 121 (Sloan).)
As stated by the high court, enhancement allegations alone do not trigger the protection afforded under the double jeopardy clauses of our state and federal Constitutions. (Izaguirre, supra, 42 Cal.4th at p. 133.) The court has further stated, “[i]n deciding whether multiple conviction is proper, a court should consider only the statutory elements.” (Sloan, supra, 42 Cal.4th at. p. 118, italics added.) Although Thomas did not acknowledge the Sloan and Izaguirre decisions in his reply brief, we are required to follow California Supreme Court precedent under principles of stare decisis. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Consequently, we reject Thomas’ contention that assault with a semiautomatic firearm is a lesser included offense to attempted murder as pled in counts 1, 2, and 3 of the information.
Assault with a Firearm is not a Lesser Included Offense of Shooting at Another Person from a Motor Vehicle
Thomas also argues assault with a semiautomatic firearm is a lesser included offense to shooting from an occupied vehicle (count 7). He contends the conviction on count 4 must be reversed to avoid violating Penal Code section 954 . We disagree.
All further statutory references are to the Penal Code.
Section 954 provides that a single act or course of conduct by a defendant can lead to convictions “of any number of the offenses charged.” (See also People v. Ortega (1998) 19 Cal.4th 686, 692, overruled on another point in Reed, supra, 38 Cal.4th at pp. 1228-1229.) However, there exists a judicially created exception to this rule that prohibits multiple convictions based on necessarily included offenses. (Ibid.) Until recently, the determination was made using one of two tests: “a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 117-118.) However, as with the previous argument, Thomas filed his opening brief approximately one month before the California Supreme Court filed a decision contrary to his position.
In People v. Licas (2007) 41 Cal.4th 362, 370-371 (Licas), the high court resolved a split of authority in the Courts of Appeal by deciding that assault with a firearm (§ 245, subd. (a)(2)) is not a lesser included offense of “discharging a firearm from a motor vehicle at another person” (§ 12034, subd. (c)) because only the former offense requires the perpetrator to have the present ability to commit violent injury on another person. Relying on Licas, the Attorney General argues the doctrine of stare decisis compels us to hold assault with a semiautomatic firearm (§ 245, subd. (b)) is likewise not a lesser included offense of discharging a firearm from a motor vehicle at another person (§ 12034, subd. (c)). Thomas did not discuss the Licas decision in his reply brief, but we agree with the Attorney General’s argument in any event.
The trial court instructed the jury on the elements of assault with a semiautomatic firearm. As the court explained, one element of the offense is that Thomas “had the present ability to apply physical force to the person of another.” Thus, as with assault with a firearm, assault with a semiautomatic firearm includes the requirement that the perpetrator have the present ability to cause injury to another. Because both assault crimes share this element, the holding in Licas is equally applicable to cases involving a conviction of assault with a semiautomatic firearm. As a result, a conviction on count 4 does not run afoul of the judicially created exception to section 954 for lesser included offenses.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, J., BEDSWORTH, J.