Opinion
E065355
01-03-2018
THE PEOPLE, Plaintiff and Respondent, v. GEORGE ANTHONY TOPETE, Defendant and Appellant.
Patrick Morgan Ford for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FBA1000764) OPINION APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata and John M. Tomberlin, Judges. Affirmed as modified. Patrick Morgan Ford for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellate George Anthony Topete guilty of (1) attempted premeditated murder (Pen. Code, §§ 187, subd. (a)), 664); and (2) first degree residential robbery (§ 211). The jury found true the following allegations: (1) defendant personally inflicted great bodily injury upon the victim during the robbery and attempted murder (§ 12022.7, subd. (a)); and (2) the robbery was committed in concert with two or more people (§ 213, subd. (a)(1)(A)). The jury found untrue the allegations that defendant committed the robbery and attempted murder to benefit, or in association with, a criminal street gang. (§ 186.22, subd. (b)(1)(B).) The trial court sentenced defendant to prison for a determinate term of 12 years and a consecutive indeterminate term of seven years to life.
All subsequent statutory references will be to the Penal Code unless otherwise indicated.
The clerk's minute order incorrectly reflects the jury found true an allegation that the attempted murder was a home invasion robbery, carjacking, or drive-by shooting committed to benefit a criminal street gang. (§ 186.22, subd. (b)(4)(B).) The record reflects the jury found the gang allegations in both counts to be untrue. (§ 186.22, subd. (b)(1)(B).)
The determinate abstract of judgment incorrectly reflects defendant received a three-year enhancement for the in-concert allegation (§ 213, subd. (a)(1)(A)). It should reflect defendant received a three-year enhancement for inflicting great bodily injury (§ 12022.7, subd. (a)). We will direct the trial court to amend the determinate abstract of judgment.
Defendant raises two issues on appeal. First, defendant contends substantial evidence does not support his conviction for attempted murder. Second, defendant contends the trial court erred by not questioning jurors who had discussed being scared following the testimony of the gang expert. We affirm the judgment.
I. FACTS
In February 2008, the victim was approximately 60 years old. The victim lived alone, in a house in Barstow. The victim was missing an eye, due to cancer, and was disfigured.
At approximately 11:00 p.m. on February 10, 2008, while the victim was preparing for bed, he heard a knock at the door. The knocking came from two women who were directed by defendant to knock on the victim's door and ask to use his telephone. The victim opened the front door of his house. The victim was immediately struck on his head with a baseball bat. The victim backed away and three men entered his house, including defendant, as well as the two women. Defendant said to the victim, "[Y]ou remember me, you son of a bitch?"
One of the men said to defendant, " 'No, we can't do this guy . . . . You didn't tell us this.' " Defendant was mad and responded, " 'No, fuck that, you knew what we were going [to] come do, so you can't back out now. We're here, we're inside.' " Defendant told the two men, " 'I told you he was going to look different.' " Defendant attacked the victim. Defendant "smashed" a beer bottle on the victim's head, breaking the bottle, and causing the victim to fall to his knees.
Defendant continued striking the victim with another beer bottle. Defendant said to the victim, "Where are the guns? Give me the guns." The victim screamed, " 'Help! Stop!' " The victim was on his knees, covering his head. The more the victim screamed, the more defendant struck the victim. Defendant hit the victim with a bat and his fists. Defendant hit the victim with the bat all over the victim's body. Defendant "kept hitting him and hitting him and hitting him." The victim curled into a fetal position.
The two other men who entered the house also kicked the victim and hit the victim with their fists while defendant was striking the victim. However, the two men did not strike the victim "as much as [defendant]" struck the victim. It appeared defendant "wanted payback for something because of the way he was hitting him."
Defendant went into a bedroom "like he knew exactly where he was going." Defendant exited the bedroom with three shotguns. In total, the group stole eight firearms. The two women and two men exited the house; defendant remained inside. When defendant exited the house, he had blood all over his hands and on his shirt. Defendant explained that he had struck the victim's face where the victim was missing an eye and defendant's hand "went all the way in, and [defendant] cut [his] hand."
The victim may have passed out. The victim was incoherent for several hours. The victim walked to his bedroom and laid down. After laying down, the victim's pillow was covered with blood. In the morning the victim called his sister (Sister) and told her he had suffered a home invasion. When Sister arrived at the victim's house, she saw "he had been beaten pretty severely." Sister observed that the victim "was covered in blood and so were some of the walls in the living room."
The victim went to the hospital, where he stayed for three or four days. The victim suffered a large laceration on the top of his head, lacerations on his arms and legs, a bruise on his abdomen, "extensive bruising" on his back, and the loss of a tooth. Defendant told a woman he knew "that they had done a home invasion, they had beaten an old man, and that [defendant] had killed him."
II. DISCUSSION
A. SUBSTANTIAL EVIDENCE
Defendant contends substantial evidence does not support his conviction for attempted murder because there is insufficient evidence to support the finding that he intended to kill the victim.
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Smith (2005) 37 Cal.4th 733, 738-739.)
" '[A]ttempted murder requires the specific intent to kill.' " (People v. Smith, supra, 37 Cal.4th at p. 739.) "[I]t is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendant's acts and the circumstances of the crime. [Citation.] 'There is rarely direct evidence of a defendant's intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant's actions." (Id. at p. 741.) For example, an intent to kill can be found where a defendant hits a victim "in the head with a baseball bat with extreme force" causing multiple skull fractures. (People v. Lasko (2000) 23 Cal.4th 101, 112-113.)
Defendant broke a beer bottle over the victim's head. A broken beer bottle found at the crime scene, with defendant's fingerprints on it, still had the cap attached to it. This evidence indicates the beer bottle was full when defendant struck the victim's head. The victim suffered a large laceration on his head. Defendant struck the victim with a baseball bat all over the victim's body. Defendant punched the victim's face, where the victim was missing an eye, with such force that defendant's hand " 'went all the way in.' " Defendant's hands were bloody, his shirt was bloody, the victim was covered in blood, and the walls were covered in blood. The victim stayed in the hospital for three or four days following the attack. Defendant told a woman he had killed the victim.
The foregoing evidence reflects defendant used a great amount of force in striking the victim, because blood covered the victim, the walls, and defendant's hands and shirt. Additionally, it can reasonably be concluded a great amount of force was used because defendant said he killed the victim, which reflects defendant's belief that he used great force—force sufficient to kill the victim. Given the amount of force defendant used in attacking the victim, the jury could reasonably conclude defendant intended to kill the victim. (See People v. Lasko, supra, 23 Cal.4th 101, 112-113 [striking victim's head with bat causing fractures reflects an intent to kill].)
Defendant asserts that if he intended to kill the victim, then he could have shot the victim with one of the victim's guns. The evidence reflects defendant "wanted payback for something." The jury could reasonably conclude defendant wanted a painful death for the victim, administered via a beating by multiple people, rather than a quick death via a shooting. Accordingly, we find defendant's argument to be unpersuasive.
B. INQUIRY
1. PROCED URAL HISTORY
On June 11, 2015, Los Angeles County Sheriff's Detective Anthony Delia testified as a gang expert at defendant's trial. Detective Delia explained that common crimes of the West Side Playboys include assault, robbery, burglary, and murder.
Judge Nakata presided over defendant's trial. On June 17, the jury began deliberating. Judge Nakata explained that, beginning June 18, Judge Tomberlin would be presiding over the matter. On June 18, the trial court, i.e., Judge Tomberlin, contacted the trial attorneys. The court explained that the jury convened at 9:30 a.m. on June 18; at 9:45 a.m., the courtroom deputy (Deputy Heiner) shared information with the court that the court wanted shared with the attorneys.
Deputy Heiner explained that, during the trial, after the gang expert testified, Juror-10 approached Deputy Heiner during a recess. Juror-10 said she saw defendant and his codefendant writing notes during the trial. Juror-10 was concerned the defendants were making notes about Juror-10's appearance so as to possibly retaliate against her in the future. Deputy Heiner immediately relayed Juror-10's concern to Judge Nakata. Judge Nakata did not direct the deputy to take any further action.
Defendant's codefendant was found not guilty of the charges against him. --------
On June 18, Deputy Heiner met the jurors outside the courtroom. Before the deputy took the jury to its deliberation room, Juror-3 approached the deputy. The deputy took Juror-3 to a hallway away from the other jurors. Juror-3 said that during the June 17 deliberations, Juror-7 and Juror-10 expressed concern for their safety due to the gang allegations. Juror-7 said she had cried one night because she feared for her safety. Either Juror-7 or Juror-10 expressed fear that they were being followed. Juror-3 asked the deputy to tell Juror-7 and Juror-10 that they did not need to fear for their safety. The deputy thanked Juror-3.
When Deputy Heiner shared his statements with the attorneys, defendant's attorney was participating telephonically. The trial court wanted all the attorneys to be present, in-person, so the trial court ordered the jury to recess, so the attorneys could discuss the matter, in-person, at 1:30. The trial court excused the jury for an early lunch, and admonished the jury to send the trial court a written note if it needed to communicate with the court. The court said, "If you need to communicate with me while you are deliberating, send a note through the bailiff signed by the foreperson or by one or more members of the jury. [¶] To have a complete record of this trial, it is important that you not communicate with me except by a written note."
During the afternoon session, when the attorneys were present in-person, the trial court suggested to the attorneys that the jury should continue its recess until the court could speak with the jury foreperson, Juror-9. The court asked the prosecutor if he had a different procedure he would like the court to follow. The prosecutor suggested the court inform the jurors that their personal information is confidential. Defendant's attorney did not agree with the prosecutor's proposal because defendant's attorney did not "want to highlight the issue further and make it such a big deal that now they all are going to be raising their own red flags."
Defendant's attorney suggested Jurors 7 and 10 be removed, but conceded further inquiry would likely be necessary. The attorney for defendant's codefendant (Sotelo's counsel) suggested the trial court speak to the jury foreperson to learn the context of what was said. The court agreed and said it would question the foreperson. The prosecutor suggested the jury continue deliberating because it was unclear "how big of a concern this really is or isn't."
Defendant's attorney requested a mistrial because the jurors were biased. Sotelo's counsel joined in the request. The court explained it did not have sufficient information to cause it to doubt the jurors' ability to be impartial. The court said it understood the mistrial motion as defense counsel not wanting the trial court to inquire of the foreperson.
Sotelo's counsel suggested admonishing the jury to render verdicts based upon the evidence, rather than based upon concerns about personal safety. Defendant's attorney again requested a mistrial; or, in the alternative, that the court question the jurors about what was said and in what context it was said; or, as a second alternative, that Jurors 7 and 10 be removed due to bias; or, as a third alternative, that the court question the foreperson.
The court explained that removal of the two jurors was effectively a request for a mistrial because there was an insufficient number of alternates and no stipulation to proceed with less than 12 jurors. The prosecutor objected to the trial court questioning the foreperson. The prosecutor asserted questioning the foreperson would "highlight[] the issue . . . [¶] . . . [¶] [T]hat there is indeed some type of fear . . . . It makes it seem like a bigger issue than it is." The prosecutor asserted that if fear were an issue during deliberations, then the jury would send the trial court a note.
The trial court admonished the jury to focus its deliberations on the evidence. The court again admonished the jury to send the court a written note if the jury had any concerns. Specifically, the court said, "Your jury deliberations should be focused strictly on the law and the facts as you decide them from the evidence presented. [¶] [I]f there is a difficulty in doing that or if you need some kind of clarification or there are other concerns that you wish to express to me, I need to have those in writing so that we have a clear record of them. And I will do my very best to talk to the attorneys and address any concerns anyone wishes to bring to my attention."
The jury resumed its deliberations. The jury did not contact the court. The jury found the gang allegations were untrue.
2. ANALYSIS
a) Contention
Defendant contends (1) Judge Nakata erred by not initiating a hearing regarding Juror-10's statement to Deputy Heiner; and (2) Judge Tomberlin "erred by refusing to conduct a hearing into the matter."
b) Law
" ' "[O]nce a trial court is put on notice that good cause to discharge a juror may exist, it is the court's duty 'to make whatever inquiry is reasonably necessary' to determine whether the juror should be discharged." ' [Citations.] [¶] 'But not every incident involving a juror's conduct requires or warrants further investigation. "The decision whether to investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror—rests within the sound discretion of the trial court." ' [Citation.] ' "[A] hearing is required only where the court possesses information which, if proven to be true, would constitute 'good cause' to doubt a juror's ability to perform his [or her] duties and would justify his [or her] removal from the case." ' " (People v. Martinez (2010) 47 Cal.4th 911, 941-942.) A juror's safety concerns, in and of themselves, do not demonstrate bias. (People v. Manibusan (2013) 58 Cal.4th 40, 56; People v. Navarette (2003) 30 Cal.4th 458, 500; In re Hamilton (1999) 20 Cal.4th 273, 306.) If a juror's decision-making process or ability to be impartial are influenced by the juror's fear, then there is good cause to dismiss the juror. (Hamilton, at p. 306.) We apply the abuse of discretion standard of review. (People v. Ray (1996) 13 Cal.4th 313, 343; People v. Hayes (1999) 21 Cal.4th 1211, 1256.)
c) Judge Nakata
Deputy Heiner provided the following information, "When I opened up the door to let the jurors out for a break, juror seated in seat Number 10 approached me and asked if she could speak with me. We did this away from the other jurors where they did not hear this, but she spoke with me and said she had a concern. [¶ Her concern was that as the trial was proceeding she looked at the defendants and saw them taking notes with a pencil and a yellow paper; that they were writing things down. This juror believed that it was a possibility that the defendants could have been taking notes as to what Juror Number 10 looked like, her personal features. She said that she was a blonde and stands out from other people in the crowd.
"So her concern was that these people had some gang ties and that there was a possibility that they could be taking information on her to retaliate against her at some future date. I did not have any discussion with her. I said that that was—I understood her concern and told her that I would bring it to Judge Nakata's attention."
Deputy Heiner described Juror-10 as presenting a "concern" about her safety. He did not describe her as being upset. He did not say she asked to be removed from the jury. He only provided facts reflecting Juror-10 had a concern. Given the information provided by Deputy Heiner, Judge Nakata could reasonably conclude that Juror-10 was not upset or fearful to a degree that her ability to serve as an impartial juror was affected. In other words, if what Deputy Heiner said was true—Juror-10 was concerned—that would not be good cause to remove her from the jury. Accordingly, we conclude the trial court did not err by not conducting a hearing.
d) Judge Tomberlin
Deputy Heiner provided the following information, "Before I took the jurors back, juror seated in seat Number 3 approached me and asked if she could speak to me in private. [¶] . . . And she told me that during deliberations yesterday—they went out yesterday to deliberate. During those deliberations she said [the] juror seated in seat Number 7 and also juror seated in seat Number 10 raised issues while they were deliberating that said they were concerned for their safety. They were concerned at the gang allegations that had been brought against [defendant] and Sotelo.
"She, juror seated in seat Number 3, said she heard the other two ladies speaking, Juror 7 and Juror 10. They were talking with one another, stating that they saw the defendants taking notes. And Juror Number 3 said that Juror Number 7 said that she went home and cried one night because she was in fear of her safety. [¶] One—Juror Number 3 also told me that one of them stated that they had an inclination that one of them was being followed. Juror 7 or Juror Number 10, one of them felt like they were being followed at one point in the trial. She didn't say when."
Judge Tomberlin was presented with information reflecting Juror-7 was fearful and cried as a result of the ear. The evidence of the juror's fear, by itself, is not good cause to remove the juror. In an effort to determine if this fear would affect the juror's impartiality or decision making process, such that a hearing should be conducted, Judge Tomberlin admonished the jury to send him a note if there was any difficulty in focusing "strictly on the law and the facts as you decide them from the evidence presented." They jury did not contact the court following the admonition.
Because there was no evidence that the fears of Juror-7 and Juror-10 caused them to possibly be biased against defendant, Judge Tomberlin acted within the bounds of reason by not conducting a hearing about possible bias. The jurors' fears alone would not constitute good cause for removal. (People v. Manibusan, supra, 58 Cal.4th at p. 56; In re Hamilton, supra, 20 Cal.4th at p. 306.) Accordingly, the trial court did not err by not conducting a hearing because if the information provided by Deputy Heiner were proven to be true, it would not constitute good cause to remove the jurors from the case.
DISPOSITION
The trial court is directed to modify the determinate abstract of judgment to reflect defendant's three-year enhancement is for great bodily injury (§ 12022.7, subd. (a)) and forward the modified abstract to the appropriate agency/agencies. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.