Opinion
C082393
07-24-2018
THE PEOPLE, Plaintiff and Respondent, v. COLEEN IVA MARIE TORRES, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. SF125122A/STKCRFE20130 007849)
A jury convicted defendant Coleen Iva Marie Torres of second degree murder, gross vehicular manslaughter while intoxicated, and driving under the influence of alcohol or drugs causing injury. The trial court dismissed the conviction for driving under the influence, dismissed various multiple-victim enhancement allegations, and sentenced defendant to 45 years to life in state prison.
In her appellant's opening brief, defendant asserted (1) the trial court's response to a jury question coerced a guilty verdict, and any failure to preserve the issue constituted ineffective assistance of counsel; (2) a juror committed prejudicial misconduct; and (3) the minute order and abstract of judgment must be corrected to reflect that the trial court dismissed the conviction for driving under the influence and the multiple-victim enhancements.
We affirmed the judgment and directed the trial court to correct the minute order and abstract of judgment, but we subsequently granted defendant's petition for rehearing to address recent amendments to Penal Code section 3051 which extend eligibility for youth offender parole hearings to persons of defendant's age. After considering the supplemental briefs by the parties, we will remand the matter so that defendant can make a record for a youth offender parole hearing. We will otherwise affirm the judgment and direct the trial court to correct the minute order and abstract of judgment.
BACKGROUND
Defendant and her friend Tiani were working at the Graduate restaurant in August 2013. Defendant's shift ended early but she stayed to socialize with other employees. Defendant drank two pints of beer and two shots of whiskey but did not eat anything. Tiani did not think defendant was drunk when defendant left to go home.
According to the evidence, defendant caused three collisions on the interstate highway. A Federal Express driver was driving north on the interstate when she saw a white Jeep Cherokee pass her going approximately 80 miles per hour while drifting from the left shoulder to the right shoulder and back again. Defendant later admitted driving the Jeep and admitted drinking some alcohol and using heroin. Her blood-alcohol level was 0.10 percent. Defendant rear-ended a truck while driving north on the interstate; she then crossed the median into the southbound lane, striking a Volkswagen Beetle; and then a southbound truck collided with defendant's Jeep. The three people in the Beetle died from injuries sustained in the accident.
Two years earlier, defendant had been convicted of misdemeanor "wet reckless" driving. (Veh. Code, § 23103.5.) She completed a driving under the influence course as part of her sentence in that case. As part of the program, defendant signed a statement acknowledging that if she killed someone while driving under the influence, she could be charged with second degree murder.
Defendant testified at trial, admitting that she drank at least two beers and two shots that evening and smoked heroin that morning, although she was not feeling the effects by the time she left the bar. She said she felt perfectly fine when she drove home.
The jury convicted defendant of second degree murder (Pen. Code, § 187 -- counts 1 through 3), gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a) -- counts 4 through 6), and driving under the influence of alcohol or drugs causing injury (Veh. Code, § 23153, subd. (a) -- count 7). The trial court dismissed the conviction for driving under the influence causing injury because it is a lesser included offense of gross vehicular manslaughter. (See People v. Binkerd (2007) 155 Cal.App.4th 1143, 1148-1150.) The trial court also dismissed various multiple-victim enhancement allegations because the jury was never given verdict forms for them. The trial court sentenced defendant to 45 years to life in state prison.
Undesignated statutory references are to the Penal Code.
DISCUSSION
I
Defendant contends the trial court's response to a jury question coerced a guilty verdict. We disagree.
A
During deliberations, the jury asked, "Do we have to meet all 4 criteria unanimously to find a guilty charge?" The trial court responded, "Yes, all four elements must be unanimously agreed upon." Later that day, the jury asked, "Do we all need to unanimously agree on not guilty for murder?" The trial court revealed the question to the prosecutor and defense counsel, telling them, "I'm inclined to write, 'Yes.' " The prosecutor and defense counsel agreed with the trial court's proposed response. The trial court answered "Yes" to the jury's question.
Next, the jury asked, "Scenario = If we have all agreed on a verdict of vehicular manslaughter while intoxicated, do we need to unanimously agree/disagree on murder? If we don't agree/disagree on murder, but agree on vehicular manslaughter, what do we do?" After discussing the matter with the prosecutor and defense counsel, the trial court replied, "If you agree on vehicular manslaughter, fill out (sign & date) the appropriate verdict form. You will be brought into the courtroom for further instruction regarding your deliberations on the remaining counts."
The jury was then brought into the courtroom, where the trial court said the following:
"This is in response to your question number four. I'm going to read you some additional instructions.
" 'Special Jury Instruction Number Five: A unanimous verdict is a decision in which all 12 of you agree you must be unanimous in order to reach a verdict. This applies to all seven counts. If you cannot reach a unanimous verdict as to any particular count or counts and further deliberations and/or instructions would not assist you, please send a note indicating that to the judge.'
"Okay. And then 'CALCRIM 3551, Further Instruction About Deliberations.
" 'Sometimes juries that have had difficulty reaching a verdict are able to resume deliberations and successfully reach a verdict on one or more counts. Please consider the following suggestions:
" 'Do not hesitate to re-examine your own views. Fair and effective jury deliberations require a frank and forthright exchange of views.
" 'Each of you must decide the case for yourself and form your individual opinion after you have fully and completely considered all of the evidence with your fellow jurors. It is your duty as jurors to deliberate with the goal of reaching a verdict. If you cannot do so without surrendering your individual judgment, do not change your position just because it differs from that of other jurors or just because you or others want to reach a verdict. Both the People and the defendant are entitled to the individual judgment of each juror.
" 'It is up to you to decide how to conduct your deliberations. You may want to consider new approaches in order to get a fresh perspective. Let me know whether I can do anything to help you further, such as give additional instructions or clarify instructions I have already given you. Please continue your deliberations at this time. If you wish to communicate with me further, please do so in writing using the form my bailiff has given you.' "
The trial court then sent the jury back to the jury room for deliberations. The jury reached verdicts the next day.
B
Defendant argues the trial court's reply of "Yes" to the jury's question regarding whether it had to unanimously agree on a not guilty verdict on murder coerced the guilty verdicts on the murder counts. She claims the trial court's answer was incorrect, because a jury deadlock can lead to a mistrial. Defendant also claims that, by requiring unanimity on a not guilty verdict, the trial court showed its opinion that defendant was guilty of murder.
Section 1138 requires a trial court to provide a deliberating jury with information the jury desires on points of law. (People v. Smithey (1999) 20 Cal.4th 936, 985.) "This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. . . . But a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given." (People v. Beardslee (1991) 53 Cal.3d 68, 97, original italics.) "We review for an abuse of discretion any error under section 1138." (People v. Eid (2010) 187 Cal.App.4th 859, 882.)
Although the trial court provided the initial answer challenged by defendant, it subsequently instructed the jury that any verdict must be unanimous, and that the jury could fail to reach a unanimous verdict. Viewed in the context of all the court's instructions (see People v. Wilson (2008) 44 Cal.4th 758, 803 [assess instructions as a whole on review]), the jury was correctly instructed that a verdict of guilty or not guilty on the murder counts must be unanimous, and that it could fail to reach a verdict on those counts. That was a correct statement of the relevant law and did not coerce a verdict.
Defendant also claims that any failure to preserve her jury coercion contention constituted ineffective assistance of counsel. But we have rejected the jury coercion claim on the merits. In any event, because the totality of the trial court's instructions was correct, defendant's ineffective assistance claim necessarily fails. (See People v. Riel (2000) 22 Cal.4th 1153, 1202 ["trial counsel . . . have no duty to object simply to generate appellate issues"]; see also People v. Thompson (2010) 49 Cal.4th 79, 122 ["[c]ounsel . . . not ineffective for failing to make frivolous or futile motions"].)
II
In addition, defendant argues a juror committed prejudicial misconduct.
On the day after the verdict was rendered, defense counsel learned that Juror No. 4 had visited the Graduate restaurant five days earlier. Counsel obtained the Graduate's surveillance tape from that day, which showed Juror No. 4 taking photographs of the restaurant's interior and attempting to flag down the bartender, a witness who had testified at trial.
The defense moved to disclose juror information regarding Juror No. 4. Juror No. 4 was asked to appear before the trial court, where he agreed to the release of identifying information to defense counsel and the prosecution with the understanding that either side could contact him.
The defense subsequently moved to disclose additional juror information based on statements from Juror No. 4 that Juror No. 2 refused to deliberate and several jurors changed their minds as to the final verdict. The trial court denied the motion, and defendant does not challenge that ruling on appeal. --------
Defendant subsequently moved for a new trial based on Juror No. 4's visit to the Graduate and attempts to speak to the bartender. The surveillance video depicting Juror No. 4's behavior was introduced into evidence in support of the motion, as well as affidavits from the bartender and her mother, who were at the Graduate when Juror No. 4 visited. The motion additionally stated that in an interview with defense counsel, Juror No. 4 admitted going to the Graduate. No other statement from Juror No. 4 was presented.
The trial court denied the motion, finding Juror No. 4 committed misconduct but the misconduct was not prejudicial.
A juror commits misconduct when he or she considers information about a party or about the case that was not part of the evidence received at trial. (People v. Dykes (2009) 46 Cal.4th 731, 809; People v. San Nicolas (2004) 34 Cal.4th 614, 650.) "Juror 'misconduct raises a presumption of prejudice that may be rebutted by proof that no prejudice actually resulted.' [Citation.]" (People v. Sandoval (2015) 62 Cal.4th 394, 437.) In determining whether prejudice occurred, the trial court must consider whether there is any substantial likelihood a member of the jury panel was influenced by improper bias. (People v. Lewis (2009) 46 Cal.4th 1255, 1309.) If, based on the entire record in the case, there is any substantial likelihood of juror bias, the verdict cannot stand. (In re Boyette (2013) 56 Cal.4th 866, 889-890.)
Although the Graduate was not the scene of the crimes, it was a location addressed in the evidence, the place where defendant consumed alcohol before starting the drive home that led to the series of collisions in which she killed three people with her Jeep. Defendant's intoxication was an element of gross vehicular manslaughter while intoxicated (see § 191.5, subd. (a)), and the driving under the influence charge, as well as being necessary for liability for implied malice second degree murder under People v. Watson (1981) 30 Cal.3d 290, at page 298. The jury had been instructed with CALCRIM No. 201 not to investigate the facts or to "visit the scene of any event involved in this case." Going to the Graduate, investigating the location, and attempting to contact one of the witnesses who worked there was misconduct.
However, the juror misconduct was not prejudicial. Defendant's drinking at the Graduate was not at issue in the case, as she admitted doing so in her testimony. Defendant committed no crime there. Her criminal liability is predicated on her acts after leaving the Graduate, choosing to drive home while intoxicated, as well as the knowledge of the danger of driving while intoxicated that she obtained in her driving under the influence course. In addition, Juror No. 4 did not make contact with the bartender at the Graduate. And there is no evidence the deliberations were influenced by Juror No. 4's visit to the restaurant. The trial court did not err in finding the juror's improper visit to a location tangential to the case did not prejudice defendant.
III
Defendant further contends the minute order and abstract of judgment must be corrected to reflect that the trial court dismissed the count 7 conviction for driving under the influence causing injury and the multiple-victim enhancement allegations. The Attorney General agrees and so do we.
The minute order and abstract of judgment say the sentence for driving under the influence was stayed pursuant to section 654. Regarding the multiple-victim enhancements, the minute order says two years were imposed but stricken, while the abstract of judgment says sentence was stayed. The minute order and abstract of judgment must be corrected to reflect the trial court's orders.
IV
In supplemental briefing, defendant contends she is entitled to remand for a hearing to make a record of information relevant to her eventual youth offender parole hearing because she was 23 years old at the time of the murder. The Attorney General agrees, as do we.
During the pendency of this appeal, the Legislature enacted Assembly Bill No. 1308 (2017-2018 Reg. Sess.), which amends section 3051 to extend eligibility for youth offender parole hearings to individuals who were 25 years of age or younger when they committed their controlling crimes. (Stats. 2017, ch. 675, § 1.) When the sentence for the controlling offense -- here, second degree murder -- is less than 25 years to life, the youth offender shall be considered for release at a youth offender parole hearing during her 20th year of incarceration. (§ 3051, subd. (b)(2).) At that hearing, the Board of Parole Hearings must "give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law." (§ 4801, subd. (c).)
Here, the amended statute applies to defendant. It has retroactive effect (Stats. 2017, ch. 675, § 1), defendant was under 25 years old at the time of the murder, and she was sentenced to a term of 15 years to life for the controlling offense. The California Supreme Court held that juvenile offenders must be given the opportunity to make a record of information relevant to a future youth offender parole hearing. (People v. Franklin (2016) 63 Cal.4th 261, 283, 286-287.)
DISPOSITION
The matter is remanded to allow defendant sufficient opportunity to make a record of information relevant to a youth offender parole hearing. The judgment is otherwise affirmed. The trial court is directed to correct the minute order to reflect its orders dismissing the driving under the influence causing injury conviction and striking the multiple-victim enhancement allegations, to correct the abstract of judgment to omit references to the dismissed conviction and stricken enhancement allegations, and to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
/S/_________
MAURO, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
HOCH, J.