Opinion
B226368
02-02-2012
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER WEDDLE et al., Defendants and Appellants.
Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant Christopher Weddle. Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Glenn Martin Cox. Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant Desmond Weddle. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Linda C. Johnson and Carl N. Henry, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NA076997)
APPEALS from judgments of the Superior Court of Los Angeles County. James D. Otto, Judge. Affirmed.
Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant Christopher Weddle.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Glenn Martin Cox.
Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant Desmond Weddle.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
Separate juries convicted defendants and appellants Christopher Weddle (Christopher), Glenn Martin Cox (Cox) and Desmond Weddle (Desmond) (sometimes collectively appellants) of first degree murder and attempted murder. Cox, joined by Desmond and Christopher, contends that the 25-year-to-life sentences imposed pursuant to Penal Code section 12022.53, subdivision (e)(1) should be reversed because the statute violates equal protection principles. He also contends that the use of a juvenile adjudication as a prior "strike" violated due process. We reject both claims as contrary to established law. We likewise reject Christopher's separate argument, joined by Cox and Desmond, that his conviction should be reversed for juror misconduct.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
The Shootings.
On December 31, 2007 at approximately 5:00 p.m., Oscar R., his older brother Alfredo and two of their friends were walking through an alley behind Pine Avenue in Long Beach. All four individuals were 15 to 17-year-old male Hispanics. After exiting a building next to the alley, Desmond and one or more African-American males approached the four and asked "Where are you guys from?" Interpreting the question to refer to gang affiliation, Oscar responded "Nowhere. I don't bang." One of the African-American men then said they were from "Babies," meaning the "Baby Insane" gang, and lifted up his shirt to show that he had a revolver tucked in his waist area. He also accused the four of being affiliated with "ESL" or "Chongos," references to the East Side Longos gang. At that point, the groups separated without further incident.
We refer to individuals having the same last name by their first names to avoid confusion.
A few hours later, Oscar and Alfredo attended a New Year's Eve party at the Rosales home on Pine Avenue in Long Beach. The Rosales family included siblings Jose, attempted murder victim Francisco and Veronica, then ages 21, 20 and 17, respectively. The approximately 60 party guests included non-gang affiliated family, friends and coworkers, though some coworkers invited other guests who the Rosales family did not know. Among the guests were murder victim Jonathan Fernandez and attempted murder victims Jessica Lopez and Savannah Malcolm.
While he was at the party, Alfredo saw five or six African-American men walking around in a courtyard area near the Rosales home. He recognized Desmond and another man from the alley confrontation. He left the party approximately 10 minutes before midnight to wish his mother a happy new year. While at his mother's home nearby, he heard gunshots.
Francisco also saw three African-American men in the courtyard area at approximately 11:00 p.m. He recognized Desmond and observed that he was wearing a red sweater. Cox was wearing a gray sweater and the third individual was wearing a black or blue sweater and a black or blue bandana which covered the lower half of his face.
Shortly before Alfredo left the party, Veronica returned home with her boyfriend who drove her and two others through the alley. She saw three African-American men standing in the alley; at that point they were wearing bandanas covering part of their faces and one man lifted his shirt to reveal a gun. Veronica's boyfriend sped quickly out of the alley, parked in front of the house and went into the party. She saw the three men looking over the fence periodically to observe the party.
Kurtland Livingston lived in an upstairs apartment next to the Rosales home. A few minutes before midnight, appellants knocked on his front door, but he did not let them in.
At the time of trial, Livingston was incarcerated, having been convicted of carjacking and kidnapping. He had admitted to gang affiliation as a "B.I.G.," or "Baby Insane Gangster." He did not want to testify. At trial he denied knowing appellants.
Just before midnight, Oscar saw Desmond again, crossing the street toward the party. As Oscar turned to go back inside the house, he heard at least four gunshots. Jose heard three to five gunshots. When the shots were fired, the party guests screamed and ran in different directions. When Veronica looked in the direction of the shots, she saw the same three individuals who had been in the alley, and then saw Fernandez and Lopez fall to the floor.
Immediately after the first gunshot, Francisco saw Desmond's clasped hands move downward. He also saw murder victim Fernandez fall to the ground. Though Veronica and Jose saw Cox (or a man in a gray shirt) shoot four or five shots randomly, Francisco and Malcolm observed the man wearing black or blue fire several shots.
When he returned to the party, Alfredo saw a man and woman lying on the ground, bleeding. Malcolm had been shot in the arm and ran to hide inside the Rosales garage. Francisco chased and tackled Cox after he stopped shooting, but let Cox go when he was shot in the back by the man in black or blue.
Long Beach police officers arrived at the scene just a few minutes after the shootings. They investigated for several hours, but were unable to recover any ballistic evidence from the area. The absence of casings led officers to believe that the weapon used was a revolver.
On January 4, 2008, Long Beach Police Officer Abel Morales arrested Desmond and retrieved a hat bearing gang writing on it. Two days later, Long Beach Detective Gary Hodgson arrested Christopher and recovered cell phone "SIM" and memory cards which contained photographic images that had been created on New Year's Eve, including a photograph of Cox in the possession of a revolver. Subsequently, in a March 2008 police interview, Livingston identified Desmond as the person he saw shooting during the New Year's Eve party at the Rosales home.
Gang Evidence.
Gang expert Long Beach Police Department Homicide Detective Todd Johnson was familiar with the Insane gang, as well as its cliques, one of which was the Baby Insane gang. The gang's primary activities were murder, attempted murder, possession of weapons, terrorist threats and possession of narcotics for sale. Baby Insane members were virtually all African-American males and their primary rivals were Hispanic individuals, regardless of whether they were gang members. He opined that Christopher was a Baby Insane gang member on the basis of his self-admission and his association with other Baby Insane gang members. He also opined that Desmond was a Baby Insane gang member on the basis of his self-admission and the gang tattoos that appeared following the shootings. Finally, he opined that Cox was a Baby Insane gang member on the basis of his previous contact with Cox where he admitted his gang membership. Detective Johnson found it significant that Cox's tattoos included a Cleveland Indian (the "I" serving as a symbol for "Insane"); the initials "B.I.G." and "23" standing for Baby Insane gang, 23rd Street; the initials "L" and "K" standing for Longo (or Hispanic) killer; and the name "Norman Cox," Cox's brother who was killed by East Side Longo gang members in November 2006.
When posed with a hypothetical that mirrored the evidence of the events that preceded the shootings, Detective Johnson opined that the shootings were committed for the benefit of and in association with the Baby Insane gang.
Evidence Offered Only Against Christopher.
After expressly waiving his constitutional rights, Christopher answered questions during a recorded interview with police officers on January 5, 2008. Initially, Christopher stated that he was unaware of the shootings. He then described the confrontation with Oscar, Alfredo and their friends during New Year's Eve afternoon. Later that day, he, Desmond and Cox smoked some marijuana and drank some alcohol. Much later that evening, the three walked though the alley toward Livingston's apartment when a car drove by toward a party and they took turns firing Cox's gun in the air. Christopher was wearing a black shirt. They reloaded the gun and then returned to the alley where Christopher grabbed the gun from Cox to keep him from shooting at a car with two Hispanic female passengers. Cox retrieved the gun and at that point Christopher put a blue bandana over his face because he knew Cox was going to do something stupid. Cox then fired shots over a wall into a party and, as he ran away, threw the gun to Christopher who fired shots to scare the individual who began chasing them. Cox told Christopher that he shot a "dude" and a girl in the head. The three disposed of the gun the next day.
Defense Case.
Christopher did not offer any defense evidence. On Cox's behalf, his father testified that he had been married to a Hispanic woman who helped raise Cox and that he had not heard Cox make negative references about Hispanic individuals. He conceded that Cox's brother was killed by Hispanic gang members. On behalf of Desmond, Baby Insane gang member Darnell Harris denied his earlier statements to the police about Desmond being at his house on New Year's Eve around the time of the shootings and about seeing Desmond running right after shots had been fired. He further denied knowing appellants.
Trial and Sentencing.
An information filed in January 2009 and amended in February 2009 by the Los Angeles County District Attorney charged appellants in count 1 with first degree murder (§ 187, subd. (a)), and in counts 2 through 4 with attempted deliberate and premeditated murder (§§ 187, subd. (a) & 664). As to all counts, the information alleged that appellants personally used a firearm within the meaning of section 12022.53, subdivisions (b) through (d); that a principal personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (d) and (e)(1); that a principal used a firearm within the meaning of section 12022.53, subdivisions (b) through (e); and that the crimes were committed for the benefit and direction of and in association with a criminal street gang under section 186.22, subdivision (b)(1)(C). The information further alleged that Cox had previously been convicted of two serious or violent felonies within the meaning of sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d), and section 667, subdivision (a)(1), and that he had suffered a prior prison term under section 667.5, subdivision (b). Appellants pled not guilty and denied the special allegations.
A jury trial commenced in May 2010. The juries found appellants guilty on all four counts and found the gang allegation to be true. As to Desmond and Cox, the jury found true the allegations that they personally used a firearm under section 12022.53, subdivisions (b) and (c) and that a principal personally used and discharged a firearm (§ 12022.53, subds. (d) & (e)(1)), but found not true allegations that they each individually personally discharged a firearm. As to Christopher, the jury found true that he used a firearm as charged in count 4, but not true that he used a firearm in counts 1 through 3. As to all counts, the jury found true the enhancements relating to a principal's use and intentional discharge of a firearm. (§ 12022.53, subds. (b)-(e).)
Christopher had a separate jury from Desmond and Cox.
Cox admitted the prior felony conviction allegations. The trial court denied probation and sentenced him to a term of 105 years to life on count 1. Cox received an indeterminate term of 25 years to life, tripled pursuant to section 1170.12, subdivisions (a) through (d). The trial court also imposed a consecutive 25-years-to-life term for the gun use enhancement under section 12022.53, subdivisions (d) and (e)(1), and a consecutive five-year enhancement under section 667, subdivision (a) and stayed the other enhancements. On counts 2 through 4, Cox received three tripled consecutive life terms; three consecutive 25-years-to-life terms for each gun use enhancement; and three consecutive five-year enhancements pursuant to section 667, subdivision (a). Cox's total sentence was nine life terms plus 195 years to life. Sentencing on all further enhancements was stayed.
Desmond and Christopher received total prison sentences of three life terms plus 125 years. Each sentence was comprised of a 50-years-to-life term on count 1 (25 years to life for first degree murder plus 25 years to life for the gun use enhancement), and three consecutive life terms plus three 25-years-to-life terms for the gun use enhancements on counts 2 through 4. All other sentencing was stayed.
Desmond received 932 days of presentence custody credits, while Christopher and Cox received 928 days of credit. All appellants were ordered to pay a $10,000 restitution fine (§ 1202.4, subd. (a)), a $10,000 parole revocation fine stayed pending completion of parole (§ 1202.45) and an $18,304.67 restitution fine (§ 1202.4, subd. (f)). All appellants separately appealed.
DISCUSSION
I. California Courts Have Uniformly Rejected Equal Protection Challenges to Section 12022.53, Subdivision (e)(1).
Appellants each received four consecutive 25-years-to-life sentences pursuant to section 12022.53, subdivision (e)(1). The statute provides: "The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c) or (d)." (§ 12022.53, subd. (e)(1).) Here, the jury found true both the gang allegation under section 186.22, subdivision (b), and the enhancement under section 12022.53, subdivision (d) that a principal personally and intentionally discharged a firearm. (See § 12022.53, subd. (d) ["Notwithstanding any other provision of law, any person who, in the commission of [murder] personally and intentionally discharges a firearm and proximately causes . . . death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life"]; see also § 31 [a "principal" includes those who aid and abet in commission of an offense].)
As summarized in People v. Hernandez (2005) 134 Cal.App.4th 474, 480: "Section 12022.53, subdivisions (d) and (e)(1)(B) when read together require the trial court to impose a consecutive 25-years-to-life sentence enhancement when a defendant is convicted of murder for the benefit of a criminal street gang and '[a]ny principal in the offense' 'personally and intentionally discharges a firearm and . . . causes . . . death, to any person other than an accomplice.' (Italics added.) Under this sentencing regime an aider and abettor who is found guilty of murder is subject to the 25 years to life enhancement even though he or she did not personally and intentionally discharge a firearm causing death if the murder was committed for the benefit of a criminal street gang and 'any principal' in the offense personally and intentionally discharged a firearm causing death. In all other killings subject to section 12022.53, subdivision (d)—that is, killings not for the benefit of a criminal street gang—a principal, including an aider and abettor, is only subject to the 25-year enhancement if he or she personally and intentionally discharged a firearm causing death." (Fns. omitted.)
Appellants contend that this disparity in the sentencing of aiders and abettors violates equal protection because the statutory scheme unreasonably discriminates between aiders and abettors of a criminal street gang and aiders and abettors who commit crimes for the benefit of other groups with a criminal purpose. The courts in both People v. Hernandez, supra, 134 Cal.App.4th 474 and People v. Gonzalez (2001) 87 Cal.App.4th 1 have already rejected this claim, and we find no basis to depart from this established authority.
"The constitutional guaranty of equal protection of the laws has been judicially defined to mean that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances in their lives, liberty and property and in their pursuit of happiness. [Citations.] The concept recognizes that persons similarly situated with respect to the legitimate purpose of the law receive like treatment, but it does not, however, require absolute equality. [Citations.] Accordingly, a state may provide for differences as long as the result does not amount to invidious discrimination. [Citations.]" (People v. Romo (1975) 14 Cal.3d 189, 196.)
"'"The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." [Citations.]'" (People v. Miranda (2011) 199 Cal.App.4th 1403, 1427.) "If persons are not similarly situated for purposes of the law, an equal protection claim fails at the threshold." (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.) The court in People v. Gonzalez, supra, 87 Cal.App.4th at page 13 expressly addressed and rejected appellants' argument that an aider and abettor of a gang member who discharges a firearm is similarly situated to an aider and abettor of a firearm user who is not a member of a criminal street gang. The court explained that "[u]nlike other aiders and abettors who have encouraged the commission of a target offense resulting in a murder, defendants committed their crime with the purpose of promoting and furthering their street gang in its criminal conduct. . . . [¶] Defendants were not similarly situated with other aiders and abettors, and on that basis, their equal protection argument fails." (Ibid.)
But even if appellants could show that they were similarly situated with aiders and abettors of non-gang members, "'a second level of analysis is required. If the law in question impinges on the exercise of a fundamental right, it is subject to strict scrutiny and will be upheld only if it is necessary to further a compelling state interest. All other legislation satisfies the requirements of equal protection if it bears a rational relationship to a legitimate state purpose. [Citation.]'" (People v. Gonzalez, supra, 87 Cal.App.4th at pp. 12-13.) Though appellants contend aiding and abetting a gang shooting involves the exercise of a fundamental right subject to strict scrutiny, the court in People v. Hernandez, supra, 134 Cal.App.4th at page 483 determined that rational basis review was the appropriate test to resolve an equal protection challenge to section 12022.53, subdivision (e)(1). The rational basis test typically applies to an equal protection challenge to a criminal statutory scheme where there is no claim that the classification at issue involves a suspect class or harsher treatment for a juvenile than an adult. (People v. Wilkinson (2004) 33 Cal.4th 821, 838.)
The court in People v. Hernandez, supra, 134 Cal.App.4th at page 483, further concluded that the enhancement provided by section 12022.53, subdivision (e)(1) satisfied the rational basis test: "Clearly the Legislature had a rational basis for imposing a 25-years-to-life enhancement on one who aids and abets a gang-related murder in which the perpetrator uses a gun, regardless of the relationship between the aider and abettor and the perpetrator. As we previously observed, the purpose of this enhancement is to reduce through punishment and deterrence 'the serious threats posed to the citizens of California by gang members using firearms.' One way to accomplish this purpose is to punish equally with the perpetrator a person who, acting with knowledge of the perpetrator's criminal purpose, promotes, encourages or assists the perpetrator to commit the murder." (Fn. omitted.)
Citing People v. Olivas (1976) 17 Cal.3d 236, appellants argue that we should not adopt the rational basis test endorsed by People v. Hernandez, supra, 134 Cal.App.4th 474. Again, appellants' argument is contrary to law. In People v. Wilkinson, supra, 33 Cal.4th 821, the California Supreme Court held that the statutory scheme governing the offense of battery on a custodial officer did not violate equal protection principles. (Id. at pp. 838-841.) In reaching its conclusion, the court rejected the defendant's argument that strict scrutiny was required according to People v. Olivas, a case involving an equal protection challenge to a statute which gave the trial court discretion to commit a defendant, convicted as an adult and between the ages of 16 and 21, to the California Youth Authority for a longer term than the defendant would have received if he or she had been sentenced as an adult. (See People v. Wilkinson, supra, at p. 837.) The Wilkinson court concluded that People v. Olivas did not stand for the proposition that strict scrutiny is required for an equal protection challenge on the grounds a penal statute authorizes different sentences for comparable offense. The court explained that People v. Olivas "'requires only that the boundaries between the adult and juvenile criminal justice systems be rigorously maintained. We do not read Olivas as requiring the courts to subject all criminal classifications to strict scrutiny requiring the showing of a compelling state interest therefor.' [Citation.] Other courts similarly have concluded that a broad reading of Olivas, as advocated by defendant here, would 'intrude[] too heavily on the police power and the Legislature's prerogative to set criminal justice policy.' [Citations.]" (People v. Wilkinson, supra, at pp. 837-838.) Accordingly, the rational basis test applied in People v. Hernandez is applicable and results in the conclusion that section 12022.53, subdivision (e)(1) does not violate equal protection principles.
II. A Juvenile Adjudication May Serve as a "Strike" Under California's "Three Strikes" Law.
Cox was sentenced under the "Three Strikes" law (§§ 667, subds. (b)-(i) & 1170.12), which served to triple the maximum penalty on all four counts. Below, Cox admitted the truth of the strikes, comprised of two juvenile adjudications for robbery (§ 211) and one adult conviction for making criminal threats (§ 422). He now contends that the use of his prior juvenile adjudications violated both due process and his right to a jury trial. We disagree.
Though we could conclude that Cox forfeited his contentions by admitting the truth of the juvenile adjudications without objection (see generally People v. Superior Court (Andrades)(2003) 113 Cal.App.4th 817, 830), we will address his arguments on the merits to obviate any ineffective assistance of counsel claim.
In a California Supreme Court case not cited by the parties, People v. Nguyen (2009) 46 Cal.4th 1007, our state's highest court rejected Cox's claim. The court expressly acknowledged that "[a] series of United States Supreme Court decisions, beginning with Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), establishes an adult criminal defendant's general right, under the Fifth, Sixth, and Fourteenth Amendments, to a jury finding beyond reasonable doubt of any fact used to increase the sentence for a felony conviction beyond the maximum term permitted by conviction of the charged offense alone. [Citations.]" (People v. Nguyen, supra, at p. 1010.) There, as here, the defendant argued "the Apprendi rule barred use of the prior juvenile adjudication to enhance his maximum sentence in the current case because the prior juvenile proceeding, though it included most constitutional guarantees attendant upon adult criminal proceedings, did not afford him the right to a jury trial." (Id. at p. 1011.)
Declining to construe Apprendi so broadly, People v. Nguyen, supra, 46 Cal.4th at page 1019 held "that the Fifth, Sixth, and Fourteenth Amendments, as construed in Apprendi, do not preclude the sentence-enhancing use, against an adult felon, of a prior valid, fair, and reliable adjudication that the defendant, while a minor, previously engaged in felony misconduct, where the juvenile proceeding included all the constitutional protections applicable to such matters, even though these protections do not include the right to jury trial." The court cited a host of California, federal and out of state cases to reach the same conclusion, emphasizing that the United States Supreme Court had declined to review any of those decisions. (Id. at pp. 1020-1021 & fn. 10.)
The Nguyen court then went on to explain and endorse the reasoning behind those cases: "Prior juvenile adjudications substantially satisfy all the reasons set forth in [United States Supreme Court authority] why prior convictions may be employed to increase the maximum punishment for a subsequent adult offense without the need for jury findings in the later case. Like prior adult criminal convictions, such prior juvenile judgments do not involve facts about the current offense that were withheld from a jury in the current case, but instead concern the defendant's recidivism—i.e., his or her status as a repeat offender—a basis on which courts, acting without juries, traditionally have imposed harsher sentences. Moreover, the prior criminal misconduct establishing this recidivism was previously and reliably adjudicated in proceedings that included all the procedural protections the Constitution requires for such proceedings—indeed, every substantial safeguard required in an adult criminal trial except the right to a jury. Use of such reliably obtained juvenile judgments of prior criminality to enhance later adult sentences does not offend an adult defendant's constitutional right to a jury trial in an adult criminal proceeding. Conversely, it makes little sense to conclude, under Apprendi, that a judgment of juvenile criminality which the Constitution deemed fair and reliable enough, when rendered, to justify confinement of the minor in a correctional institution is nonetheless constitutionally inadequate for later use to establish the same individual's recidivism as the basis for an enhanced adult sentence. Such a determination would preclude a rational and probative basis for increasing an adult offender's sentence—that he or she was not deterred from criminal behavior by a youthful brush with the law— unless juveniles were afforded a right to jury trial, which the Constitution does not require." (People v. Nguyen, supra, 46 Cal.4th at pp. 1021-1022.) We are bound by this decision (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and, accordingly, reject Cox's claim that the use of his juvenile adjudications to increase his sentence violated his constitutional rights.
III. The Trial Court Properly Denied Christopher's Motion for a Mistrial on the Ground of Juror Misconduct.
The trial court denied Christopher's motion for mistrial, made after his sister had made an inappropriate remark to a juror that other jurors overheard. We find no error.
A. Facts Relating to Juror Contact.
After the prosecution's opening statement to Christopher's jury, the trial court and counsel convened because it had been reported to the court that Christopher's sister, Shakain Weddle, had inappropriate contact with a juror and used inappropriate language. The bailiff described what the juror told her about the encounter: "When—I don't think the juror was actually sure exactly what she said, but he said that as the whole group stepped out, they were talking loud, and he was just sitting there and he was looking and, I guess, they caught each other's eyes. And she said something to the effect of, what are you looking at, my mouth? And I don't know if he said something about mother fucker, but basically that's what it was. And he said she was confrontational. And for the record, she has been confrontational with me from the beginning. We had a discussion. Just so you know, there have been words in the past with this trial. So I just wanted to bring it to the court's attention." The trial court excluded Shakain from the building for the pendency of the trial, and admonished other family members to not speak to jurors, make facial expressions or otherwise contact them.
Later that afternoon, following the prosecution's opening statement to Cox's and Desmond's jury, the trial court interviewed Juror No. 11, who explained he was sitting in the hallway and stated: "I didn't really hear them say anything. They were speaking loud, and they were being very theatrical. And I was sitting there just looking around, and one girl turned to me and said something about—something about the lips, and I took it as I'm reading her lips. And I was not. So I looked the other way because she kept insisting that I was staring at her." He did not know who that woman was. In response to the trial court's inquiry as to whether that incident would affect his ability to listen to the evidence and be fair, Juror No. 11 responded that he was "a little scared" and "a little intimidated," but believed that he could still be a fair and impartial juror.
Immediately after the incident, Juror No. 11 had answered "yes" when Alternate Juror No. 2 asked if the group had been speaking with him. The trial court then interviewed Alternate Juror No. 2, who stated that he heard the comment "why are you staring at my face?" While he was not intimidated by the statement, he would have been if it had been directed to him because it was said in an angry, hostile manner. Though he did not know the individual who made the statement, he made the assumption that she was associated with the trial because she came out of the courtroom. Although Alternate Juror No. 2 initially stated that he thought the incident would affect his ability to be fair and impartial because he assumed the woman was associated with the defendants and she left him with a very negative impression about the defendants' judgment, he ultimately responded that he would try to put aside his negative impression and judge the case on the basis of the evidence.
Christopher's counsel asked that the entire panel be interviewed individually. Juror No. 7 heard the statement "are you staring at me?" and stated that Juror No. 11 then said "I guess I shouldn't be staring." Juror No. 7 was not intimidated and did not believe the exchange would affect his or her ability to listen to the evidence and be fair. Jurors Nos. 2, 3, 6 and 8 heard some exchange by a group leaving the courtroom, but had not paid much attention to what was said and described varying accounts of what they thought they heard—none of which involved the actual exchange with Juror No. 11. Juror No. 6 added that she heard a comment about the case being tried as retaliation for another gang murder, but stated she could follow the trial court's instruction to disregard the comment. Jurors Nos. 1, 4, 9, 10 and 12, and Alternate Jurors Nos. 3 and 4 heard nothing.
Juror No. 5 heard someone in the group say she was upset that she could not testify because she was on probation or parole. He stated that he might speculate about her testimony, which would render him unable to judge the case on the basis of the evidence presented. He had not discussed his feelings with anyone else on the panel, but believed that the absence of her testimony could affect his ability to be fair and impartial.
Christopher moved for a mistrial on the ground that Shakain's comments had impacted the jurors, regardless of whether they stated they could be fair. The prosecution opposed the motion, asserting that, at most, any juror who said he or she could not be impartial could be removed. The trial court agreed with the prosecution; it denied the motion for mistrial and excused Juror No. 5, who said he could not be fair. Though Alternate Juror No. 2 had expressed some reservations, he ultimately represented that he could be fair and the trial court did not excuse him. During the trial, Alternate Juror No. 2 replaced Juror No. 7.
B. There Was No Substantial Likelihood That Christopher's Sister's Comment Affected the Verdict.
The governing legal standards are well established: "An accused has a constitutional right to a trial by an impartial jury. [Citations.] An impartial jury is one in which no member has been improperly influenced [citations] and every member is '"capable and willing to decide the case solely on the evidence before it"' [citations]." (In re Hamilton (1999) 20 Cal.4th 273, 293-294.) Because evidence showing that a juror's internal thought processes reflect bias may not generally be used to attack a verdict, "where a verdict is attacked for juror taint, the focus is on whether there is any overt event or circumstance . . . which suggests a likelihood that one or more members of the jury were influenced by improper bias." (Id. at p. 294, fn. omitted.)
Juror misconduct may occur where an overt event directly violates actual or prospective jurors' duties and admonitions, such as when a juror consciously receives outside information, discusses the case with nonjurors or conveys improper information to the other jurors. (In re Hamilton, supra, 20 Cal.4th at p. 274.) Where the event involves a claim of juror intimidation, "[a] sitting juror's involuntary exposure to events outside the trial evidence, even if not 'misconduct' in the pejorative sense, may require similar examination for probable prejudice. Such situations may include attempts by nonjurors to tamper with the jury, as by bribery or intimidation. [Citations.]" (Id. at pp. 294-295; accord, People v. Harris (2008) 43 Cal.4th 1269, 1303.) "[A] nonjuror's tampering conduct or communication with a sitting juror, usually raises a rebuttable 'presumption' of prejudice. [Citations.]" (In re Hamilton, supra, at p. 295.)
We resolve the question whether an individual verdict must be overturned for jury misconduct or irregularity pursuant to an objective, substantial likelihood test. (People v. Harris, supra, 43 Cal.4th at p. 1303.) "Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant." (In re Hamilton, supra, 20 Cal.4th at p. 296.) "We independently determine whether there was such a reasonable probability of prejudice. [Citation.]" (People v. Harris, supra, at pp. 1303-1304.) In making this inquiry, our Supreme Court has cautioned: "The standard is a pragmatic one, mindful of the 'day-to-day realities of courtroom life' [citation] and of society's strong competing interest in the stability of criminal verdicts [citations]. It is 'virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.' [Citation.] . . . . 'If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias.' [Citation.]" (In re Hamilton, supra, at p. 296.)
On the basis of the record, we conclude there is no substantial likelihood that the jurors were actually biased against Christopher as a result of Shakain's exchange with Juror No. 11. The trial court excused Juror No. 5, the only juror to indicate that third- party comments rendered him unable to decide the case on the basis of the evidence. The vast majority of the jurors did not hear the exchange or know anything about it. Though Jurors Nos. 2, 3, 6 and 8 heard comments by the group of which Shakain was a part, they did not hear her make any hostile or intimidating comments. Jurors Nos. 1, 4, 9, 10 and 12 did not hear any exchange or learn about it from other jurors.
During the trial court's individual inquiries of each juror, the two jurors who heard Shakain's statement—Juror No. 11 and Alternate Juror No. 2 (who replaced Juror No. 7)—expressly indicated that they could be fair and impartial notwithstanding the exchange. Juror No. 11 stated he believed he could remain a fair and impartial juror, and Alternate Juror No. 2 responded "I will try, yes," to the court's inquiry "Can you put that [negative impression] aside and just judge this case based on the evidence?" Courts may properly rely on a juror's statement that his or her ability to deliberate impartially has not been affected by a threat or intimidation "to determine whether a juror can maintain his or her impartiality after an incident raising a suspicion of prejudice. [Citations.]" (People v. Harris, supra, 43 Cal.4th at p. 1304.) Moreover, Juror No. 11 and Alternate Juror No. 2 did not discuss the event with other jurors; nor did they even know it was Christopher's sister who made the comment. Under these circumstances, Christopher has failed to show a substantial likelihood of actual bias. (See People v. Panah (2005) 35 Cal.4th 395, 480 ["spectator misconduct on the part of defendant's supporters who, intentionally or not, made themselves conspicuous to the jurors in a manner that some of the jurors [understandably] interpreted as intimidating" does not amount to juror misconduct that denied defendant an impartial jury]; In re Hamilton, supra, 20 Cal.4th at p. 306 [defendant's sister and her boyfriend's attempt to intimidate juror by parking in an alley behind juror's house and driving away when the juror appeared gave rise to no substantial likelihood of actual bias].)
We note that "[t]he trial court was not required to expressly declare its awareness of presumed prejudice; it did so implicitly by holding a prompt hearing to explore the circumstances of the threat and the possibility of bias, which is the required procedure for handling a presumptively prejudicial incident ofjuror tampering. [Citations.]" (People v. Harris, supra, 43 Cal.4th at p. 1304.)
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In sum, we conclude that the record, "'including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant'" on the basis of Shakain's conduct. (People v. Harris, supra, 43 Cal.4th at p. 1303.) The trial court properly denied Christopher's motion for a mistrial.
DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
DOI TODD, Acting P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.