Opinion
H043651
11-22-2019
THE PEOPLE, Plaintiff and Respondent, v. JACOB CRAIG WHITLEY et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1246799)
Defendants Jacob Craig Whitley and Louis Sanchez Emanuel appeal from judgments entered after a jury found them guilty of first degree murder for causing a death while perpetrating a robbery or attempted robbery.
Emanuel raises seven claims of error and joins three claims raised by Whitley. Whitley raises four claims of error and joins three claims raised by Emanuel. Stated broadly, Emanuel's claims relate to an eyewitness identification, prosecutorial misconduct, dismissal of a juror during deliberations, and his sentencing. Whitley's claims relate to juror misconduct during deliberations and his sentencing.
For Emanuel, we vacate his sentence and remand his case to allow the trial court to exercise its discretion to consider whether to impose a jail term in excess of one year in the county jail as a condition of probation. We reject his other claims of error.
For Whitley, we vacate his sentence, remand his case to allow the trial court to exercise its discretion whether to strike his firearm enhancement, and reject his other claims of error.
FACTS AND PROCEDURAL BACKGROUND
A. Procedural Background
In April 2015, the Santa Clara County District Attorney filed a second amended information charging Emanuel and Whitley with the murder of John Cody S. (Pen. Code, § 187; count 1). Count 1 included an allegation that Whitley personally and intentionally discharged a firearm and proximately caused Cody's death (§ 12022.53, subds. (b), (c) & (d)). The information further alleged that Whitley had suffered a prior strike conviction for a violent or serious felony (§§ 667, subds. (b)-(i), 1170.12) and a prior serious felony conviction (§ 667, subd. (a)).
To protect the victim's privacy, we first refer to him by his given name and the first initial of his surname. In the rest of the opinion, we refer to the victim as Cody, the name used to identify him at trial. (See Cal. Rules of Court, rule 8.90(b)(4).)
Unspecified statutory references are to the Penal Code.
The case was tried to a jury in April and May 2015. During jury deliberations, the trial court discharged a juror for refusing to deliberate. Later that day, after the reconstituted jury announced it had reached a verdict, the trial court questioned the jurors individually about alleged misconduct that had been disclosed by the discharged juror after she was dismissed. The next day, the trial court denied a defense motion for a mistrial based on other alleged misconduct exposed during the inquiry and recorded the jury's verdict.
The jury convicted Emanuel and Whitley of first degree felony murder and found true that Whitley personally and intentionally discharged a firearm causing death within the meaning of section 12022.53, subdivision (d). The trial court subsequently found true Whitley's prior strike conviction and prior serious felony conviction allegations.
The trial court sentenced Emanuel to 25 years to life in prison. The trial court sentenced Whitley to 80 years to life in prison: 25 years to life on count 1, which was doubled pursuant to section 667; plus 25 years to life for the firearm enhancement on count 1; and a consecutive five-year term for the prior serious felony conviction enhancement. The trial court also ordered payment of various fines and fees.
B. The Evidence Presented at Trial
1. Overview
In late 2012, Emanuel and Whitley arranged to buy a pound of marijuana from Cody and Mansour Amini. On December 11, 2012, Cody was shot and killed near a park in San Jose where the group had planned to complete the deal. The evidence showed that Whitley shot Cody.
2. The Prosecution Evidence
Amini and Cody were friends who exercised and smoked marijuana together. Cody had sold marijuana to Amini numerous times.
Amini testified under a grant of immunity from the district attorney.
About two weeks before Cody was shot, Emanuel and Whitley approached Amini at a local community college. Amini had never seen Emanuel and Whitley before. Whitley said his name was "Louis" (although in fact that was Emanuel's first name), and that he was from Las Vegas. Emanuel identified himself only as "Louis's cousin." After talking about school, their conversation turned to marijuana. Emanuel said they were interested in purchasing a pound of marijuana. Amini told Emanuel and Whitley that he could get them the marijuana, but it would take a couple of weeks. Amini exchanged phone numbers with Emanuel.
Emanuel later said he, too, was from Las Vegas. Other evidence suggested that Whitley and Emanuel had no connection to Las Vegas.
At trial, Amini identified Whitley and Emanuel and made clear that, by the time of his trial testimony, Amini understood their actual names.
The number Amini obtained belonged to a phone registered to Emanuel's girlfriend Breanna Santos.
Emanuel called Amini frequently in the ensuing days to inquire about the marijuana. Amini contacted several people, including Cody, to find a seller. Cody said he could obtain a pound of marijuana and agreed that Amini would receive $200 from the transaction.
Amini and Cody met with Emanuel and Whitley at a Panda Express restaurant to discuss the deal. Amini could not remember precisely when this meeting occurred. Emanuel and Whitley arrived on foot. Amini and Cody showed Emanuel and Whitley a small sample of the marijuana. Emanuel took a photo of it and said he and Whitley planned to ship it to their uncle in Las Vegas.
Emanuel offered to pay $2,200 or $2,600 for the marijuana. Amini knew that a pound of marijuana sold for around $1,800, and he thought that Emanuel's offer was high. Amini was "confused" by the lack of negotiation on the price, and he "didn't have a good feeling at that time" about the situation.
Two or three days later, Amini and Cody met with Emanuel and Whitley at the Panda Express to complete the deal. Emanuel and Whitley again arrived on foot. Cody did not have the marijuana and said he would drive them to his marijuana supplier's home to obtain it. All four men drove in Cody's white pickup truck for about 15 minutes and smoked marijuana on the way.
When they got to the supplier's house, Emanuel and Whitley said they did not have money for the drugs. Emanuel and Whitley asked which house belonged to the supplier. Emanuel and Whitley wanted to meet the supplier, but Cody said that the supplier refused to let them in his house without money. During the drive back to Panda Express, the four men decided to meet on December 11, 2012 (that is, the next day), at "Cherry Park" in San Jose. Emanuel and Whitley said they would bring the money, and Cody stated he would have a pound of marijuana.
On the morning of December 11, Amini received a call from Emanuel and Whitley and text messages about doing the deal. Amini and Cody also exchanged numerous text messages that morning, including one in which Amini told Cody to obtain the marijuana and several angry messages after Cody appeared to be backing out of the deal.
Cody eventually picked up Amini, and they drove in Cody's truck to Cherry Park. They arrived at the park around 2:30 p.m. While in the truck, Cody showed Amini a pound of marijuana packaged in a plastic bag in a "Vans" shoebox. Amini called Emanuel's phone and spoke to Whitley, who said they were on their way and were around the corner.
Amini had some of his own marijuana with him. As Amini and Cody waited in the truck, they argued about when to smoke the marijuana. Cody threw Amini's gym bag out of the truck, causing Amini's marijuana to spill. Amini got out of the truck, and Cody drove away. Cody returned a short time later and gave Amini a hat he had left in the truck before driving off again.
Amini testified that Cody was taking steroids and "was getting mad at random points" over trivial matters. Cody had a "bad knee" and had been using steroids to "beef up" in preparation for joining the Marines.
Amini believed Cody was trying to cut him out of the marijuana deal. Amini called and sent multiple text messages to Cody inquiring about the deal and his whereabouts. Amini also texted and called Emanuel, but his phone was off.
Phone records showed that Cody texted Emanuel's phone at 2:37 p.m. and said, "I be at the park right now with it. We can do this without this fool [Amini]. I'll get you for 21 instead of 22."
Ten or fifteen minutes after Cody drove away, Amini saw emergency vehicles, a body in a yellow bag, and a couple of pickup trucks on a street on the other side of the park; Amini did not know whether one of the trucks was Cody's. Amini's girlfriend eventually picked him up, and he went to the gym. Amini first learned of Cody's death when he was interviewed by detectives a couple of days later.
Between 3:00 and 3:20 p.m. on December 11, several witnesses heard what sounded like a gunshot followed by screeching tires a block away from Cherry Park, near the intersection of Fairhaven Drive and Lupine Court. Witnesses reported seeing a beige, bronze, gold, or tan-colored car in the area and leaving the scene. Witnesses also reported seeing two to four men, either standing beside or riding in the car. The witnesses either could not describe the men they saw, or gave a variety of descriptions, such as that the men were young, Hispanic or Filipino, lighter skinned, and of average height and thin build.
After hearing what she thought might be a gunshot, one witness saw Cody's truck move at a high speed with its tires screeching. As the truck moved, Cody "fell out and rolled down the street and landed in the gutter." The truck collided with a tree between the sidewalk and the roadway.
Cody died at the scene from a close-range gunshot wound to the right side of his neck that perforated his carotid artery. The presence of stippling on Cody's face indicated that the barrel of the gun was within three feet of his face when it was fired. Cody also had multiple blunt force injuries on his body. His injuries included an abrasion to his left forehead and other abrasions and lacerations on his forehead and scalp that were consistent with being struck by a solid blunt object.
Responding officers found the passenger-side door of Cody's truck was unlocked, and the driver's-side door was locked. There was blood on the passenger seat and center armrest, which was broken. In addition, there was blood on the right front tire and wheel well and front bumper. An accident reconstruction expert opined that Cody's body had been caught underneath the front portion of the truck and dragged until it came to rest against the curb.
Inside Cody's truck, officers found a very small, unusable amount of marijuana and an empty shoebox with the brand name "Supra." An analysis of DNA collected from various items in the truck did not result in a match to Whitley's or Emanuel's DNA. Whitley's DNA, however, was found in "wet" saliva on the pavement on Lupine Court.
Amini testified that this shoebox was not the "Vans" shoebox which held the pound of marijuana.
Around the time of the crime, Emanuel had an "on and off" relationship with Breanna Santos, who was the mother of their then-almost three-year-old son. Santos testified that she recalled being interviewed by police at least twice about this crime. Santos, however, repeatedly claimed she could not recall details about her statements to police or events on the day of the crime and said she was testifying involuntarily.
At the time of trial, Santos had charges pending against her and testified under immunity granted by the district attorney.
After a hearing outside the presence of the jury, the trial court found Santos's alleged lack of memory to be disingenuous and that Santos was "evasive to say the least." As a result, Sergeant Stewart Davies was permitted to testify about Santos's prior statements to police.
Sergeant Davies testified that he interviewed Santos on December 12 and December 14, 2012. Santos initiated the December 12 interview by contacting the police and going to the police station. Santos said she contacted the police because a phone that was registered in her name had been used by Whitley to "set something up."
During the December 12 interview, Santos told police that, on the night of December 10, Emanuel had loaned the cell phone to Whitley. Whitley had yet to return the phone. On December 11 (the day of Cody's death), Santos had dropped her son off with Emanuel at his home at about 12:30 p.m. Santos returned to Emanuel's house after leaving her workplace at around 4:00 p.m. Santos encountered Emanuel and Whitley in Emanuel's bedroom. Santos asked Whitley to return the phone, and Whitley said he had "shot a white boy" at Cherry Park. Whitley repeated " 'I shot him' " three times. Emanuel told Santos that Whitley was telling the truth and had shot somebody.
Police asked Santos to return for a second interview on December 14. Since meeting with Santos on December 12, the police had conducted further investigation and believed Santos had not told the truth during her earlier interview. On December 14, the police confronted Santos with phone records. She admitted that Emanuel possessed the phone on December 11 and had not loaned it to Whitley. She also said that Emanuel suggested telling the story about the phone.
Santos reiterated to the police that she had dropped her son off at Emanuel's home around 12:30 or 1:00 p.m., and Whitley was not there but Emanuel's brother and his girlfriend were. Emanuel called Santos at 3:20 p.m., but Santos could not answer his call. At 3:29 p.m., Emanuel called again and Santos answered the phone; they discussed Santos leaving work early and picking up their son. Santos again called Emanuel at 4:00 p.m.; Whitley answered and placed Emanuel on the phone. Emanuel told Santos to "hurry up" and pick up their son.
Sergeant Davies testified further that, during the second interview, Santos said she returned to Emanuel's house around 5:00 or 5:30 p.m. When she arrived, Whitley and Emanuel were in Emanuel's room. Whitley said, " 'I shot him. I shot him.' " Emanuel confirmed that "[Whitley] did shoot him," and said the shooting happened at Cherry Park. Santos asked Emanuel what happened. Emanuel said, " '[Whitley] just shot him and then we came home.' " Emanuel said " '[t]hat shit was crazy.' "
When Santos asked Whitley why he shot the person, Whitley said, " 'I don't know. I don't know. I shot him.' " Emanuel told Santos that Whitley " 'had set something up to meet a guy at Cherry Park . . . to get some weed.' " Emanuel said further that the " ' "dude . . . wasn't trying to give it up. So [Emanuel] just told [Whitley], let's go, but he wouldn't come on." ' " " 'He wouldn't let . . . go, so [Whitley] hit him with the gun. And [Whitley] said he hit him on the head with the gun. He didn't get knocked out. The guy started fighting back and [Whitley] pointed the gun. And [Whitley] said he [was] pointing the gun down, he was trying to aim down, but the guy hit his hand, it went up and [Whitley] pulled the trigger and he said he shot him in his neck.' "
Afterwards, Emanuel "started panicking," and they went to Emanuel's home. When Santos "started panicking" about their use of the phone that was in her name, Emanuel " 'started crying and saying that, "I didn't do nothing, though. I didn't do nothing." . . . [Whitley] was like [sic], "I don't know what I'm going to do, Breanna. I don't know." ' "
Sergeant Davies testified that Santos told the police that Whitley had admitted throwing the gun away. Emanuel and Whitley said " 'they got rid of the phone' " and suggested that Santos " 'report the phone lost.' " When Santos interacted with Whitley at Emanuel's house, he was wearing shorts but no shirt; Whitley said he had gotten rid of his clothing. In addition, Santos reported that Emanuel had had long dreadlocks when she dropped off their son that day. When Santos returned later in the afternoon, Emanuel had cut off his dreadlocks.
Destinee Kindle testified that she was Whitley's "[o]n, off" girlfriend in December 2012. On the evening of December 11, Whitley called Kindle and asked her to pick him up at Emanuel's house. Kindle and Whitley spent time together over the next three days. One night during this period, Whitley told Kindle that he and Emanuel were involved in a shooting. Whitley showed Kindle a news story about the shooting. Whitley said he was trying to rob a boy of some marijuana and meant to shoot him in the foot but accidentally shot him in the neck. On December 14, Kindle and Whitley went shopping, and Whitley purchased clothing and a cell phone. Kindle testified that she "believe[d]" Whitley used cash for the clothing, and he "[p]robably [used] cash" for the cell phone.
Police interviewed Kindle on December 14, after Whitley was arrested at her house. On cross-examination, Kindle admitted to lying during the December 14 interview. Kindle did not tell police that Whitley had talked to her about the shooting, and she feigned surprise when police said Whitley shot someone. Kindle testified that she lied to the police because she was scared and did not want Whitley to get in trouble.
3. The Defense Case
Whitley did not present any witnesses. Emanuel presented three.
Dr. Richard Leo testified as an expert in social psychology and psychological factors related to police interrogation techniques. Dr. Leo explained that an interrogation differs from an interview in that the goal of the former is to obtain an inculpatory statement from a suspect, and it typically involves the use of pressure and persuasion to overcome a suspect's denials. An interview, by contrast, usually involves the use of open-ended, non-accusatory questions to obtain information from a witness about the case. Dr. Leo opined that it is not appropriate to use interrogation techniques in a witness interview. The use of coercive interrogation techniques, such as making accusations and appealing to self-interest or morality, could lead a witness to make involuntary or unreliable and inaccurate statements.
Emanuel's mother, Pamela, testified that Emanuel was at their house between 3:05 and 3:30 p.m. on the day of the crime. Whitley was not at the house during that time.
Detective Jaime Jimenez testified that there was no information linking Emanuel or Whitley to the car described by the eyewitnesses. Detective Jimenez also testified about Amini's failure to identify Emanuel in a photograph that was shown to Amini during his police interview and the circumstances surrounding the subsequent display to Amini of a video of Emanuel. Amini was not given any admonishment about the identification process before the photograph or video was shown to him.
On cross-examination by the prosecutor, detective Jimenez testified that cell tower records showed that Emanuel's phone was in the area of Emanuel's house before the crime, in the area of Cherry Park at the time of the crime, and back in the area of Emanuel's house after the crime. In addition, a text message was sent from Emanuel's phone to Cody's phone at 2:37 p.m. on December 11 that said, "Can I put the baby to sleep before we meet?"
DISCUSSION
Emanuel and Whitley raise multiple claims of error, jointly and separately. Emanuel and Whitley jointly argue: (1) the prosecutor committed prejudicial misconduct by appealing to the jury's sympathies and passions during opening statement and closing arguments; (2) the trial court erred by dismissing a juror (Juror No. 88) for failing to deliberate; (3) the trial court erred by failing to discharge or question further Juror No. 116 for dishonest answers to the court's inquiries about the jury's deliberations; (4) the trial court failed to properly inquire about Juror No. 55's introduction of extraneous information into the jury's deliberations; (5) the trial court erred by failing to instruct sua sponte on the requirements of section 1120; and (6) the cumulative effect of all the alleged errors requires a reversal of the judgment.
Emanuel separately argues: (1) Amini's pretrial identification should have been suppressed because it resulted from an unreliable and unduly suggestive identification procedure; (2) the trial court erred by refusing to instruct the jury with CALCRIM No. 315 concerning eyewitness identification; (3) the trial court erroneously denied Emanuel's request for probation with a multi-year jail term based on a mistaken belief about the relevant law; and (4) Emanuel's sentence of 25 years to life is grossly disproportionate to his individual culpability and thus violates state and federal prohibitions on cruel and unusual punishment.
Whitley separately argues that this court should remand his case to permit the trial court to exercise its discretion to strike the section 12022.53 firearm enhancement under the recent amendment to section 12022.53, subdivision (h) (Sen. Bill No. 620 (2017-2018 Reg. Sess.)).
We group appellants' claims according to the stage of the trial to which they relate—namely, trial, jury deliberations, and sentencing.
I. CLAIMS OF ERROR DURING TRIAL
A. Eyewitness Identification
Emanuel contends that Amini's pretrial identification of him should have been suppressed because it resulted from an unduly suggestive and unreliable identification procedure. The Attorney General counters that there was no suggestiveness or substantial likelihood of misidentification under the totality of the circumstances and, regardless, any error was harmless.
1. Background
Emanuel moved in limine to suppress Amini's pretrial identification of him and to preclude any in-court identification. Emanuel argued that the pretrial identification procedure was "unnecessarily suggestive and conducive to irreparable mistaken identification" and "[a]ny subsequent in-court identification by [Amini] will be tainted by the unconstitutional pretrial identification and rendered inadmissible at trial." Emanuel called lead detective Jimenez as his sole witness at the hearing on the motion.
Detective Jimenez interviewed Amini at the police station on December 13, 2012. Jimenez testified that, under the San Jose Police Department's policy for photographic-lineup identifications, a witness who does not know the suspect should be given an admonition and shown six photographs sequentially—if possible, by a detective who is unfamiliar with the case. If, however, a witness already knows the suspect, the practice within the department is to use other identification procedures in lieu of a lineup, including the display of a single photograph or video footage of the suspect. In addition, the department's policy does not require that an admonition be given to such a witness.
The admonition includes telling the witness that the suspect "may or may not look like what they did at the time" of the witness's observation and "the person may or may not be the person responsible for the crime, [and that] it's [just as] important to free innocent people just as it is to convict guilty."
During the police interview and before Jimenez showed Amini any photographs or video, Amini said that he had met Emanuel and Whitley previously at least three times. Amini estimated that the first meeting occurred three weeks before the police interview, and the last two meetings occurred at Panda Express one week before the interview. Amini also drove with Emanuel and Whitley for some distance from the restaurant to a drug supplier's house. Amini said he had suspected that Emanuel and Whitley might rob him and Cody. Amini accurately described Emanuel as a black male, around five feet, six or seven inches tall, and 120 to 130 pounds, with short, black dreadlocks and a light complexion. Amini said Emanuel had an accent and described what Emanuel wore, including glasses.
Because Amini "had ample opportunity to observe, describe, [and] talk with" Emanuel and had described Emanuel accurately, detective Jimenez decided not to show Amini a photographic lineup or formally admonish him about the identification procedure. Instead, Jimenez showed Amini three photographs and asked Amini if he recognized the people depicted. The first photograph was of Amini himself, the second was of Whitley, and the third was of Emanuel. Amini looked over the second photograph and identified Whitley, saying, "That's Louis. [Short pause.] I think. Yeah, I'm pretty sure that's Louis." Amini, however, was not able to identify Emanuel in the third photograph. Upon viewing the photo of Emanuel, Amini said, "I have no idea who that is." And when subsequently asked follow-up questions about the photograph of Whitley, Amini said he "ha[d] no idea" if the person in the photo was "Louis," remarking that he wanted to say "yeah" but did not want to "lie."
As mentioned above, Whitley had introduced himself to Amini as "Louis," and Emanuel identified himself as "Louis's cousin."
After showing the photographs to Amini, Jimenez told him that Cody had been killed. Amini became upset and cried. When Amini was subsequently left alone in the interview room, Amini said to himself, "Homey, I'm going to get them."
Jimenez and fellow detective Brian Spears decided to show Amini a video of Emanuel that had been recorded on the preceding day. Jimenez and Spears believed that the photo they had shown to Amini was not "a very good representation of how [Emanuel] looked at the time." Jimenez testified that he did not presently know when the photograph of Emanuel had been taken. The date of the photograph, however, was memorialized in a database, and Jimenez said he might have known the date at the time of Amini's interview. Jimenez believed Emanuel appeared heavier in the photograph than he was presently.
Jimenez did not have another photograph of Emanuel and, therefore, could not properly create a six-photograph lineup for Amini using a different photo of Emanuel. Although the police could have waited for Emanuel to "come[] into custody for another reason and then [gotten] a more current photograph," Jimenez decided to use the video of Emanuel to avoid "wast[ing] a lot of time getting things done" and "to get the person who perpetrated violent crimes in custody as soon as possible."
Approximately two hours after informing Amini of Cody's death, Jimenez and Spears showed the video of Emanuel without telling Amini anything about who was depicted. The video showed Emanuel in a police interview room with a pair of handcuffs on the table, but Emanuel was not handcuffed.
Detective Spears told Amini that he was "going to show [him] a picture of somebody" and displayed the video to Amini on a laptop computer. Spears asked, "Who is that?" and Amini immediately said, "That's him." In response to follow-up questions, Amini clarified, "That's Louis' cousin." Amini continued to view the video for about 20 seconds, and then detective Jimenez asked Amini if he wanted to hear the person talk. Amini said he did. When the sound was turned on, Amini immediately said, "There you go. There you go. That's him, right there." Amini reiterated that the person depicted was "Louis's cousin."
When asked how sure he was that the person was "Louis's cousin" rather than "Louis," Amini said he was "pretty sure" and could tell by his "accent" and "voice." His face looked familiar when coupled with the voice. Detective Jimenez asked if "[t]hose dreads are the dreads [Amini was] talking about" earlier. Amini responded affirmatively saying, "Like I said, short dreads." Amini said further that Emanuel wore glasses, and Emanuel and Whitley both wore Hollister clothing and bright shoes. Jimenez testified that Amini did not equivocate and was confident in his identification of Emanuel.
About an hour and a half later, police asked Amini, " 'What do you want to happen to the dude that shot your boy?' " Amini responded that he "wanted to see" the person and that he " 'wanted him to die.' "
The trial court denied Emanuel's motion to suppress Amini's pretrial identification of him. The trial court noted the multiple contacts that Amini had with Emanuel prior to the identification procedures and the detailed description of Emanuel that Amini had provided to police. The court found a "qualitative difference between the appearance of Mr. Emanuel in the photo and the appearance of Mr. Emanuel in the video." The court noted that the video depicts "some body language" and concluded that, although the photo and video were similar in certain respects, the video was not suggestive and showing it was not suggestive or unreliable. The court "[took] into account" that Amini was "in a different state of mind after having been told that Cody was dead." But the court found that when Amini was shown the photographs and the video, he made his identifications quickly and in a consistent manner.
2. Legal Principles
" ' "In deciding whether an extrajudicial identification is so unreliable as to violate a defendant's right to due process, the court must ascertain (1) 'whether the identification procedure was unduly suggestive and unnecessary,' and, if so, (2) whether the identification was nevertheless reliable under the totality of the circumstances." ' " (People v. Gonzalez (2006) 38 Cal.4th 932, 942 (Gonzalez).) When making this determination, the court takes "into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification." (People v. Cunningham (2001) 25 Cal.4th 926, 989 (Cunningham) [citing, among other cases, Manson v. Brathwaite (1977) 432 U.S. 98, 104-107, 114 and Neil v. Biggers (1972) 409 U.S. 188, 199-200].)
The defendant bears the burden of demonstrating the existence of an unduly suggestive and unreliable identification procedure. (People v. Avila (2009) 46 Cal.4th 680, 700; Gonzalez, supra, 38 Cal.4th at p. 942.) "Only if the challenged identification procedure is unnecessarily suggestive is it necessary to determine the reliability of the resulting identification." (People v. Yeoman (2003) 31 Cal.4th 93, 125.) "[T]here must be a 'substantial likelihood of irreparable misidentification' under the ' " 'totality of the circumstances' " ' to warrant reversal of a conviction on this ground." (Cunningham, supra, 25 Cal.4th at p. 990.)
Appellate courts review deferentially the trial court's findings of historical fact and review independently the trial court's ruling regarding whether, under those facts, a pretrial identification procedure was unduly suggestive and the identification itself was unreliable. (Gonzalez, supra, 38 Cal.4th at p. 943; People v. Kennedy (2005) 36 Cal.4th 595, 609 (Kennedy), disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459; People v. Chavez (2018) 22 Cal.App.5th 663, 675.)
3. Analysis
We independently review the record here to determine whether Amini's identification of Emanuel was reliable under the totality of the circumstances, considering such factors as those identified by the United States Supreme Court. (Neil v. Biggers, supra, 409 U.S. at p. 199.) We have examined the photograph of Emanuel the detectives originally showed Amini, the video they then showed him, and the videotape of the detectives' interview of Amini in which they showed him the photograph and video. For the reasons explained below, we conclude that Amini's identification of Emanuel was reliable. Therefore, we do not address Emanuel's argument that the identification procedure was unduly suggestive. (See People v. Clark (2016) 63 Cal.4th 522, 557.)
Emanuel argues that Amini's identification of him was unreliable because Amini had a "limited opportunity to observe him" and "was under the influence of marijuana during at least one of the three meetings"; Amini provided only a general description of Emanuel; Amini's confidence in the identification process does not correlate with accuracy; Amini was shown a photo of Emanuel followed by a video in which Emanuel appeared solo in a police interview room; Amini was emotional about Cody's death; and Amini had personal motives to identify the killer and believed himself to be under suspicion for marijuana sales.
We are not persuaded by these arguments. Amini had three substantial opportunities to interact with Emanuel over extended periods within three weeks of the pretrial identification, including twice within days of the identification. During the police interview, Amini provided a relatively detailed and accurate description of Emanuel. Once shown the video of Emanuel, Amini readily identified Emanuel based on his appearance and his voice and speech pattern. Amini did not look at the officers' faces when shown the photos or videos—instead, he focused on the photo and the video shown on the screen. Similarly, the detectives did not appear to use any body language or gestures to indicate to Amini that the video showed one of the people who had killed Cody.
The trial evidence established that the three meetings lasted, respectively, 30 minutes, 20 minutes, and at least 30 minutes.
Further, Emanuel looks somewhat different in the video when compared to the photograph initially shown to Amini. The video was recorded the day before it was shown to Amini and was therefore close in time to the occasions on which Amini interacted with Emanuel. We agree with the trial court that there is a "qualitative difference" in Emanuel's appearance in the two media.
That the police told Amini that Cody was killed before showing him the video—causing Amini to become emotional and say he was "going to get them"—does not render the identification unreliable. The police played the video of Emanuel almost two hours after telling Amini that Cody was dead. By the time he viewed the video, Amini was no longer visibly emotional.
Amini was told by police that he would be shown "a picture of somebody" and he was simply asked, "Who is that?" Amini answered immediately and then studied the video further. He reaffirmed his initial identification after hearing Emanuel's voice. Amini said he was "pretty sure" when pressed by the police about his understanding of the identity of "Louis" versus "Louis's cousin." Amini's identification of Emanuel and his responses to questions are consistent with his behavior when he was initially shown the photographs of himself, Whitley, and Emanuel.
Amini was matter of fact and straightforward in his non-identification from the photograph of Emanuel and in his identification of Emanuel from the video. For these reasons, we reject Emanuel's argument that Amini's identification is unreliable because he was "under the influence of strong emotion at the time, having just learned of his close friend's death and having immediately vowed his revenge."
The failure of the police to deliver an admonition to Amini does not alter our conclusion concerning the reliability of the identification. An admonition is not required for an identification to be reliable. (People v. Lucas (2014) 60 Cal.4th 153, 237, overruled on other grounds in People v. Romero and Self (2015) 62 Cal.4th 1, 43.) In addition, the police did not tell Amini anything about the identity of the people in the photographs and video or suggest that Whitley and Emanuel were responsible for killing Cody. For these reasons, and in light of the other circumstances of the identification, we also conclude that the use of a solo depiction of Emanuel and the fact that handcuffs were on the table in the video do not create a substantial likelihood of misidentification. (See People v. Clark (1992) 3 Cal.4th 41, 136-137, overruled on other grounds in People v. Pearson (2013) 56 Cal.4th 393, 462; see also People v. Ochoa (1998) 19 Cal.4th 353, 426 "[T]here is nothing inherently unfair about a single-person showup."]; People v. Contreras (1993) 17 Cal.App.4th 813, 820-821.)
In sum, based on our consideration of the totality of the circumstances, we conclude Amini's pretrial identification of the person in the video as Emanuel was reliable. (See Kennedy, supra, 36 Cal.4th at pp. 609-611.) Because the pretrial identification was reliable, its use did not violate Emanuel's constitutional due process rights, and the trial court did not err by admitting evidence of the identification at trial and in allowing Amini to identify Emanuel in court.
B. Lack of Instruction with CALCRIM No. 315
Emanuel argues that the trial court violated his Sixth and Fourteenth Amendment rights to instructions regarding his defense theory by refusing to instruct the jury with CALCRIM No. 315 on eyewitness identification.
1. Background
Based on Amini's identification of Emanuel during the police interview, Emanuel requested that the trial court give CALCRIM No. 315. The prosecutor "point[ed] out that this instruction applies to instances where you have an eyewitness to the crime itself. We have no eyewitnesses in this case." He argued further that CALCRIM No. 226, regarding witness credibility and believability, was "perfectly appropriate as being given."
CALCRIM No. 315 states: "You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. [¶] In evaluating identification testimony, consider the following questions: [¶] • Did the witness know or have contact with the defendant before the event? [¶] • How well could the witness see the perpetrator? [¶] • What were the circumstances affecting the witness's ability to observe, such as lighting, weather conditions, obstructions, distance, [and] duration of observation[, and <insert any other relevant circumstances>]? [¶] • How closely was the witness paying attention? [¶] • Was the witness under stress when he or she made the observation? [¶] • Did the witness give a description and how does that description compare to the defendant? [¶] • How much time passed between the event and the time when the witness identified the defendant? [¶] • Was the witness asked to pick the perpetrator out of a group? [¶] • Did the witness ever fail to identify the defendant? [¶] • Did the witness ever change his or her mind about the identification? [¶] • How certain was the witness when he or she made an identification? [¶] • Are the witness and the defendant of different races? [¶] • [Was the witness able to identify other participants in the crime?] [¶] • [Was the witness able to identify the defendant in a photographic or physical lineup?] [¶] • [<insert other relevant factors raised by the evidence>.] [¶] • Were there any other circumstances affecting the witness's ability to make an accurate identification? [¶] The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find the defendant not guilty."
The trial court declined the instruction, ruling that Amini "did not place [Emanuel and Whitley] at the scene. There was no one who placed either defendant at the scene. [¶] And so from the Court's standpoint the eyewitness identification of [Emanuel] is not a pivotal issue here by Mr. Amini. The events leading up to the shooting, yes. Those are pivotal. But that's not an eyewitness identification." The court explained further, "I do agree that you would be able to parse out whatever parts of [CALCRIM No.] 315 you wish to and argue those. That's the state of the law. I can't -- I don't want to give [CALCRIM No.] 315 because I think it's confusing to the jurors, and I don't think it's applicable. But I would not stop you. And I don't think [the prosecutor] would stop you from arguing that these are the types of issues that one would look at in terms of identification of anyone. And that's in addition to [CALCRIM No.] 226."
2. Analysis
A defendant is entitled, on request, to an instruction that pinpoints a defense theory. (People v. Wharton (1991) 53 Cal.3d 522, 570.) A court, however, is not required to give a pinpoint instruction that is argumentative, duplicative, or not supported by the evidence. (People v. Bolden (2002) 29 Cal.4th 515, 558-559.) Regarding an instruction on eyewitness identification, CALCRIM No. 315 "should be given when requested in a case in which identification is a crucial issue and there is no substantial corroborative evidence." (People v. Wright (1988) 45 Cal.3d 1126, 1144 (Wright); see also People v. Johnson (1992) 3 Cal.4th 1183, 1230.) We review independently whether the trial court improperly refused a proposed pinpoint instruction. (People v. Johnson (2010) 180 Cal.App.4th 702, 707.)
Both parties assert this court should apply de novo review to the trial court's decision not to give the pinpoint instruction. Because we would find any such error harmless, we do not consider whether the trial court's ruling should instead be reviewed for abuse of discretion. (See People v. Mora and Rangel (2018) 5 Cal.5th 442, 497.)
Emanuel argues that the trial court should have given CALCRIM No. 315 because the "case law recognizes no distinction between eyewitness testimony which places the defendant at the crime scene and eyewitness testimony which connects him to the crime's key precursor events." He claims that the "issue, quite simply, is whether identity is a 'crucial issue' which is in dispute - and, if so, whether there is substantial corroborating evidence." He asserts that Amini's identification was critical because Emanuel's attendance at the three meetings with Amini established that "Emanuel shared Whitley's intent and helped him carry out the robbery of [Cody]."
The Attorney General counters that the requested instruction was properly refused because "there was no eyewitness to the crime, so eyewitness identification was not at issue," and CALCRIM No. 315's references to an " 'eyewitness' " and " 'the perpetrator' " would have confused the jurors. Further, the Attorney General asserts that any error was harmless because it is not reasonably probable that Emanuel would have obtained a different result had the trial court provided the instruction.
We agree with Emanuel that Amini's identification of Emanuel was a critical piece of evidence that established Emanuel's involvement and actions during the preparatory meetings and circumstantially linked him to the killing of Cody. That Emanuel was part of these pre-crime meetings was important to the prosecution's theory that Emanuel knew Whitley intended to take the marijuana and Emanuel aided and abetted the commission of the robbery. In addition, the trial evidence did not otherwise substantially corroborate Emanuel's participation in the events leading up to the killing.
We acknowledge that some of the questions in CALCRIM No. 315 relate specifically to a scenario in which an eyewitness observed the crime itself. We are not persuaded, however, that the instruction applies only when the witness's identification of the defendant relates to the actual crime, as opposed to any relevant probative events leading up to it. (See Black's Law Dict. (10th ed. 2014) p. 707, col. 2 [defining "eyewitness identification" as a "naming or description by which one who has seen an event testifies from memory about the person or persons involved"].) Applying the instruction as narrowly as the Attorney General suggests would unduly restrict its purpose. (See Wright, supra, 45 Cal.3d at p. 1141.)
Although we agree with Emanuel that the evidence supported giving CALCRIM No. 315 to the jury, we do not reach the question whether the trial court erred in failing to do so because it is not reasonably probable that he would have received a more favorable result had the instruction been given. (See Wright, supra, 45 Cal.3d at p. 1144 [applying People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)].) The evidence demonstrating that Emanuel participated in the pre-crime events and the crime itself was strong. Amini identified Emanuel in court and testified about Emanuel's appearance during their interactions before the crime. Amini obtained Emanuel's phone number, and Emanuel's phone was used to communicate with Amini and Cody about the marijuana sale. Emanuel's phone traveled to and from the crime scene. Emanuel made inculpatory statements to Santos in the aftermath of the killing. He put himself at the crime scene with Whitley, and he said that they were there to " 'get some weed' " from a guy who refused to give it up and Whitley hit and shot him. Santos also detailed Emanuel's post-crime efforts to cover up his involvement.
We reject Emanuel's suggestion that the error impinged on his federal constitutional rights. Emanuel was not precluded at trial from fully challenging Amini's identification of Emanuel. Thus, his right to present a defense was not compromised. (See Eberhardt v. Bordenkircher (6th Cir. 1979) 605 F.2d 275, 276 fn. 1; see also Delaware v. Fensterer (1985) 474 U.S. 15, 21-22.) Moreover, Emanuel does not make any specific argument for the application of a different harmless error analysis.
In addition, defense counsel rigorously challenged Amini's identification. Counsel cross-examined Amini about his identification of Emanuel and presented testimony from detective Jimenez about the identification process. Counsel also argued to the jury that Amini's identification of Emanuel was unreliable. Further, the trial court instructed the jury with CALCRIM No. 226 regarding factors relevant to witness credibility.
For these reasons, we conclude that it is not reasonably probable that Emanuel would have received a more favorable result had the trial court given the requested instruction, and therefore any error in the trial court's failure to instruct the jury with CALCRIM No. 315 did not prejudice him.
C. Prosecutorial Misconduct
Emanuel argues that the prosecutor committed prejudicial misconduct by repeatedly appealing to the jury's sympathies and passions during opening statement and closing arguments. Whitley joins Emanuel's argument in full.
1. Legal Principles
" ' "A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] In other words, the misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.' [Citation.]" ' [Citation.] Even when the misconduct does not attain that level, it may be error under state law, but ' " 'only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.' [Citation.] When a claim of misconduct is based on the prosecutor's comments before the jury, . . . ' "the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." ' [Citation.]" ' [Citation.] Generally, ' "[t]o preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument." ' [Citation.] A failure to 'object and request an admonition will be excused if doing either would have been futile, or if an admonition would not have cured the harm.' [Citation.] '[T]he absence of a request for a curative admonition does not forfeit the issue for appeal if "the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request." [Citations.]' " (People v. Mendoza (2016) 62 Cal.4th 856, 905.)
Prosecutorial misconduct that violates state law is harmless unless it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. (People v. Wallace (2008) 44 Cal.4th 1032, 1070-1071; see also Watson, supra, 46 Cal.2d at p. 836.) Federal constitutional error is harmless if, beyond a reasonable doubt, the error did not affect the outcome of the trial. (People v. Cook (2006) 39 Cal.4th 566, 608; see also Chapman v. California (1967) 386 U.S. 18, 24.)
"[A]n appellate court reviews a trial court's ruling on prosecutorial misconduct for abuse of discretion." (People v. Alvarez (1996) 14 Cal.4th 155, 213; People v. Peoples (2016) 62 Cal.4th 718, 792-793.) Similarly, "we review a ruling on a motion for mistrial for an abuse of discretion, and such a motion should be granted only when a party's chances of receiving a fair trial have been irreparably damaged." (People v. Ayala (2000) 23 Cal.4th 225, 283.)
2. Analysis
a. Opening statement
The prosecutor moved in limine to use certain photographs during the trial, "including autopsy photos and other collateral photos." In light of the motion, the parties agreed that the prosecutor could use a photo depicting Cody prior to his death.
During his opening statement, the prosecutor displayed—in a personal picture frame—an enlarged portion of the agreed-upon photo of Cody. The prosecutor began his opening statement by telling the jurors that, although they would see Whitley, Emanuel, and counsel for the parties each day, they would not see Cody except in pictures. The prosecutor remarked, "Many of those pictures will be pictures of him after he was killed, but I thought it was important for you to also have an opportunity to see a picture of Cody in life."
In addition, the prosecutor described Cody as a young man "looking for a direction in life" who wanted to "go into the armed services and serve his country." The prosecutor suggested that during the course of this trial, the jurors would "come to realize that the most important piece of evidence in this case is not necessarily the death of [Cody], but rather the life of [Cody]. What it was and, frankly, what it could have been. [¶] But whatever future was in store for [Cody], whatever great adventures life held for him, whatever children he may have had --" Whitley's defense counsel then interrupted the prosecutor and asked to approach the bench, where an off-the-record discussion took place.
The next day, the trial court gave defense counsel a chance to "memorialize" the issues that had arisen during opening statements. Whitley and Emanuel's counsel moved for a mistrial. Defense counsel objected to the prosecutor's use of the modified, framed photograph without providing notice to the defense. Defense counsel also argued that the prosecutor improperly appealed to jurors' sympathies by stating the case "isn't about Cody's death, it's about Cody's life, or this case is about Cody's life," by making "statements like he was going into the military to serve his country," and by referring to "the children Cody would never have."
The trial court denied the motion for a mistrial but said it would provide a "curative instruction admonishment" to the jury. The trial court also told the prosecutor, "[w]hile the Court is not prepared to make a finding at this point that there has been misconduct on your part, at some point in the future the Court may have to consider any cumulative [e]ffect of the decisions that you are making, and make a determination as to whether the cumulative [e]ffect of your decision[s] may rise to [the] level of misconduct."
The court subsequently admonished the jury, stating: "I remind you again that the comments of counsel are not evidence. The purpose of the opening statement is to allow the attorneys to give you an overview of what they believe the evidence will show. You are all again reminded that you are not permitted to let bias, sympathy, prejudice, or public opinion to influence any decision that you may make in this case."
We find no error in the trial court's ruling denying the mistrial motion. We agree with Emanuel, however, that the prosecutor's display of an enlarged portion of Cody's photograph in a frame and his references to Cody's life, forestalled future, and absence from the trial amounted to misconduct. The prosecutor's conduct was at least comparable to that found to be misconduct by the California Supreme Court in People v. Kipp (2001) 26 Cal.4th 1100, 1129-1130 (Kipp). There, the court held that the following argument was an improper appeal for sympathy for the victim: " 'So when you think about the elements of the offense of murder, as you will when you go back to deliberate, and as we, perhaps in somewhat of a legal abstract sense, the element satisfied a human being was killed. [¶] If you would, think for a moment about what it means. A living, breathing human being had all of that taken away." (Id. at p. 1129.)
The Attorney General contends that the defense forfeited any claim of misconduct related to the prosecutor's statements about Cody's age or "adventures" because the defense did not specifically object to those statements. As we conclude below that Emanuel and Whitley did not suffer any prejudice from the prosecutor's statements, we assume without deciding that the defense objection at trial sufficiently encompassed their contentions here.
Nevertheless, the prosecutor's conduct here does not warrant reversal. A photograph of Cody was subsequently admitted into evidence. The remarks in question were brief and made at the beginning of a lengthy opening statement that otherwise focused on the upcoming evidence. Further, the trial court specifically admonished the jury in response to the mistrial motion. In addition, the court instructed the jurors—at the beginning and end of the trial—that the remarks of counsel were not evidence, and the jurors must not let bias, sympathy, prejudice, or public opinion influence their decisions. We presume the jurors followed those instructions. (See People v. Martinez (2010) 47 Cal.4th 911, 957 (Martinez).)
For these reasons, we see no reasonable probability that the jury would have reached a different result absent the prosecutor's actions and perceive no significant unfairness that amounts to a denial of a fair trial. For the same reasons, Emanuel and Whitley have not shown that the trial court abused its discretion in denying their motion for a mistrial. (See People v. Williams (2006) 40 Cal.4th 287, 323 (Williams).)
b. Closing argument
During his initial closing argument, the prosecutor addressed Santos's interactions with Emanuel and Whitley after the crime. The prosecutor argued that "these two defendants are panicked. And their panic is not, 'Oh my God, we just killed this kid.' Their panic is, 'Uh-oh, what do we do now? What is going to happen to us?' At no point during the evidence in this trial has there been one shred of evidence to indicate one single scintilla of remorse on the part of these defendants. Everything has been self-interest."
Emanuel and Whitley's defense counsel objected, and the trial court asked to "see counsel" and took a recess. After the recess, the court told the jury to disregard the prosecutor's comments about remorse and not consider them for any purpose.
The prosecutor then continued: "So, ladies and gentlemen, there was evidence in this case that in this conversation in [Emanuel's] bedroom after [Santos] had arrived, there was some, that I characterize, whining and sniffling on the part of the defendants, 'What am I going to do? What am I going to do? We know what is going to happen. I can't believe this. What am I going to do?['] That was not remorse. That was self-serving, self-centered self pity. That was concern about what was going to happen to them."
Whitley's defense counsel objected to this argument. The trial court sustained the objection and told the juror to disregard the prosecutor's comments and that the comments were not evidence. The prosecutor then reiterated: "Suffice it to say, they whined and whined and whined about what was going to happen to them. And that is what the evidence showed what was going to happen to them."
Emanuel argues here that the prosecutor improperly appealed to the jurors' passions by commenting on Emanuel's and Whitley's lack of remorse. He claims that the lack of remorse had no relevance to any fact in dispute and had "significant capacity to mislead" the jury.
We need not decide whether the prosecutor's comments regarding remorse were misconduct because we are not persuaded that Emanuel and Whitley suffered any harm under the state or federal standard for determining prejudice. Although the prosecutor's statements about remorse were not relevant to whether the evidence showed beyond a reasonable doubt that appellants had committed murder on a theory of felony murder, the trial court sustained the defense objections to the prosecutor's comments and instructed the jury to disregard them. "When a trial court sustains defense objections and admonishes the jury to disregard the comments, we assume the jury followed the admonition and that prejudice was therefore avoided." (People v. Bennett (2009) 45 Cal.4th 577, 595.)
We note that the "[a]bsence of remorse is irrelevant to prove that a defendant committed a homicide, but it may be relevant, because it sheds light on the defendant's mental state, in determining the degree of the homicide or the existence of special circumstances." (People v. Michaels (2002) 28 Cal.4th 486, 528.) These circumstances do not apply here.
c. Rebuttal argument
Near the end of his rebuttal argument, the prosecutor displayed Cody's picture to the jury and said, "This is how I want you to remember Cody." Whitley's defense counsel objected to this statement as an "appeal to sympathy." The trial court overruled the objection. The prosecutor continued, "That's how I want you to remember Cody. Not as a body laying on a slab in a morgue with rods running through it. That is how I want you to remember Cody. He was a young man. He was imperfect. He made mistakes. But he was a young man entitled to live out his life. He wanted to join the Marine Corps. Never got that opportunity because that man, Jacob Whitley, put a bullet through his neck."
The prosecutor then argued: "But that's [Cody]. You're here, ladies and gentlemen, as representatives of your community. You're here to determine what happened. And as representatives of your community you are here to bring justice. This case is not simply about two defendants on trial. They have a right to a fair trial. They have a right to quality representation. They have enjoyed that right throughout the course of this trial. You've seen them every single day. You've seen them as living, breathing human beings. But were it not for the fact that [Cody] is in the ground because of their actions, we wouldn't be here. So Cody is entitled to some representation here as well." Whitley's defense counsel objected. The trial court said, "Yes. We're going to move into a different area please."
The prosecutor continued: "And you ladies and gentlemen, as representatives of your community are empowered to do the right thing. You are empowered to bring justice to this courtroom. Remember this [Cody], not the body on the slab. Remember that smiling face." Whitley's defense counsel objected. The court said, "Anything additional [prosecutor]?"
The prosecutor concluded: "As representatives of your community, tell these defendants through your verdict of guilty that such conduct is unacceptable; that it will not be tolerated. [¶] I ask you to determine the facts during the course of discussions with your fellow jurors, apply only the facts as you find them, not as I have represented to you, or as they have been represented to you by [Emanuel's defense counsel] or [Whitley's defense counsel], but the facts that have been produced in evidence in this trial. [¶] And when you do, I have no doubt that you will do the right and just thing. You will find both of these men guilty of first degree felony murder, and you will find true the allegation that Jacob Whitley is the man who put the bullet in Cody's neck. With that, I want to thank you. It's been a long day. I appreciate your patience. And that is all that I have."
These concluding remarks are not challenged in this appeal.
Immediately after the prosecutor finished his rebuttal argument, the trial court admonished the jurors: "The first [admonition] is that I remind you that the arguments of counsel are not evidence. The arguments of counsel are not evidence. Second, you are not to assume that something is true just because an attorney has said it is true. Remember, you are the independent judges of the facts and of the evidence. . . . [¶] And please do not let bias, sympathy, prejudice, or public opinion influence your decision. Those are really just reiterating many of the instructions that you've already heard me go over."
Later, the trial court said, "I did not rule on [defense counsel's] last objection. I'm going to overrule the last objection. However, I gave a number of admonitions at the end to address what the Court thought might be helpful for the jurors." Whitley's and Emanuel's defense counsel said they had nothing more to put on the record.
Emanuel argues on appeal that the prosecutor improperly appealed to jurors' sympathies in his rebuttal argument by displaying Cody's photo; telling jurors to remember him; characterizing the jurors as " 'representatives of your community' "; arguing that Cody was entitled to the same representation from the jury that Emanuel and Whitley received; and urging the jurors to " 'bring justice' " and " 'do the right thing.' "
The Attorney General contends that Emanuel forfeited these claims by failing to object below, and the record does not demonstrate that an objection would have been futile. Regardless, the Attorney General argues that the prosecutor's comments did not constitute misconduct or prejudice Emanuel and Whitley.
Turning first to forfeiture, the requirement of an objection or request for admonition will be excused if either would be futile. (People v. Hill (1998) 17 Cal.4th 800, 820.) In light of the trial court's rulings on the three objections made by Whitley's defense counsel and the court's postargument admonition, joinder by Emanuel's defense counsel in the objections was not needed to bring the error to the court's attention. We therefore conclude that Emanuel did not forfeit his claims for appeal. (See People v. Zambrano (2004) 124 Cal.App.4th 228, 237; People v. Hamilton (1989) 48 Cal.3d 1142, 1184, fn. 27; see also Civ. Code, § 3532; People v. Anderson (2001) 25 Cal.4th 543, 587.)
In turn, we do not reach Emanuel's alternate argument that his defense counsel was constitutionally ineffective for failing to object to the misconduct challenged on appeal.
As to the merits of Emanuel's claims, although we agree that the trial court erred when it overruled the defense objections, we find no prejudice from those errors. " 'As a general rule, a prosecutor may not invite the jury to view the case through the victim's eyes, because to do so appeals to the jury's sympathy for the victim.' " (People v. Leon (2015) 61 Cal.4th 569, 606; see also People v. Vance (2010) 188 Cal.App.4th 1182, 1192-1193 & fn. 8.) Moreover, "inviting the jury to reflect on all that the victim had lost through her death [is] an appeal for sympathy for the victim, and therefore it [is] improper." (Kipp, supra, 26 Cal.4th at p. 1130.)
Nonetheless, we conclude Emanuel and Whitley were not prejudiced under any standard. The prosecutor's complained-of arguments were not extensive when considered against the entire closing argument. The trial court also repeatedly admonished the jurors that the arguments were not evidence and they were not to yield to bias, sympathy, prejudice, or public opinion. We presume the jurors followed the trial court's consistent instructions that they should disregard the extraneous arguments.
Further, as discussed above, the evidence of Emanuel's guilt was strong. Amini identified Emanuel. Emanuel's phone was used to communicate about the marijuana deal and traveled to and from the crime scene. Emanuel inculpated himself to Santos after the crime. The evidence of Whitley's guilt was strong as well. Amini identified Whitley as one of the two men he and Cody intended to sell marijuana to on the day of the crime. Whitley admitted his involvement in a robbery and shooting to Kindle. Santos told police that Whitley said he had "shot a white boy" at Cherry Park and admitted disposing of the gun and his clothing. Whitley's DNA was found in saliva at the crime scene.
On this record, there is no reasonable probability that the jury would have reached a more favorable verdict in the absence of the prosecutor's arguments and actions. (See People v. Medina (1995) 11 Cal.4th 694, 759-760.) The trial, too, was not infected with such unfairness as to violate Emanuel's and Whitley's constitutional rights. (See People v. Seumanu (2015) 61 Cal.4th 1293, 1345.) Thus, we will not reverse the judgment based on the prosecutor's actions and rhetoric in his opening statement and closing arguments.
II. CLAIMS OF ERROR DURING JURY DELIBERATIONS
A. Dismissal of Juror No. 88
Emanuel argues that the trial court erred by dismissing what he describes as a "holdout juror" (Juror No. 88) for failing to deliberate. He asserts specifically that "[t]he record does not establish Juror 88's failure to deliberate as a 'demonstrable reality.' " Whitley joins Emanuel's argument in full.
The Attorney General argues that the evidence overwhelmingly shows that Juror No. 88 failed to deliberate.
1. Background
The jurors began deliberating on Thursday, May 14, 2015. They deliberated for about an hour before recessing until Monday, May 18. Around 2:00 p.m. on May 18, the jury asked for a readback of Sergeant Davies's testimony regarding Santos's statements to police. At 4:30 p.m., the jury requested a readback of testimony regarding Cody's text message to Emanuel's phone about doing the marijuana deal without Amini and asked for Emanuel's phone number and phone records. The jury deliberated all day on Tuesday, May 19.
On the morning of Wednesday, May 20, the jurors deliberated for 44 minutes, took a 17-minute break, and then deliberated for another 39 minutes before taking a break at 11:19 a.m. During the second period of deliberations, at 10:53 a.m., the jury sent a note (Jury Note #3) stating, "We have a juror that is requesting to leave early. Jurors are not being able to express their complete thoughts or sentences. [Name redacted.]" Another jury note sent two minutes later said, "I feel we shouldn't be cutting deliberations short for one person[.] We have a job to do. This is stressing me out."
The record indicates that Juror No. 88 wrote the second sentence. The jury note was also signed by the foreperson.
This note appears to have been signed by a juror (although the juror's number does not appear in the record on appeal), in addition to the foreperson.
The trial court convened the jurors in the courtroom and asked the foreperson (Juror No. 50), with all jurors present, about the situation. The foreperson said, "There is one juror that feels it is necessary for a break for the rest of the day, and would like the rest of the jurors to come back in the morning to continue and finish deliberation." When asked about the juror's reason for wanting a break, the foreperson said, "It is not an emergency. I do believe . . . that maybe someone is tired and would like more time to think on their own."
The trial court asked Juror No. 88 about her statement in Jury Note #3. Juror No. 88 said "[t]he general thinking is not being allowed to express one's thought pattern. And being coerced into someone else's thought process, and not allowing you to view what your process is trying to speak upon. . . . And when speaking, being cut off. And not allowing others to express themselves, and for us to be able to view the other opinions." When the court asked the foreperson about the jury's communication, the foreperson said she "believe[d] everyone has had an opportunity to express their thoughts and their thought process. There may have been times where one -- a few times where people were speaking over each other, and other people did not feel that they were being heard."
The trial court read a modified version of the standard jury instruction on continuing deliberations (CALCRIM No. 3551) to the entire jury. The foreperson suggested breaking for lunch and continuing deliberations thereafter, but a juror noted "a disagreement" about when to return. The court sent the jurors to the deliberation room to "talk about it once more." After some discussion, the jurors resumed deliberations at 1:20 p.m. Just over 20 minutes later, they asked again for a response to their earlier jury notes.
The trial court again convened the jurors in the courtroom at 1:50 p.m. The foreperson said that the court's earlier inquiry and instruction were not "enough" and asked if the jurors should continue deliberating. The foreperson suggested that the court "direct all of us as a group to continue deliberations until everyone has come to a clear and concise conclusion. If that cannot be done then, of course, we would go and come back and tell you as a group what's going on." When asked by the court if there was "difficulty with everyone participating in deliberations," the foreperson said, "No." The court ordered the jurors to continue deliberations, reread modified CALCRIM No. 3551 to the entire jury, and directed the bailiff to escort the jurors back to the jury room.
Instead of returning to the jury room, Juror No. 88 walked out of the courtroom. The trial court asked the bailiff to escort Juror No. 88 back to the jury room, which the bailiff did. The jury deliberated for approximately an hour and a half before recessing for the day.
The next morning, Thursday, May 21, the jurors deliberated for just over an hour before taking a break. At that time, the jury requested a readback of some of the statements about Emanuel that Santos had made to the police and of Cody's text message to Emanuel's phone about doing the marijuana deal without Amini. After their break, the jury deliberated for about another 45 minutes—during which time the requested testimony was read back. As the jurors left for lunch, they sent another jury note requesting a readback of the statements about Whitley that Santos had made to the police. In addition, the foreperson told the bailiff that she wanted to speak to the court about an issue with respect to one juror's "competence."
The parties agreed that no readback would be provided in response to this jury note.
The trial court convened the parties outside the presence of the jury to discuss the foreperson's request. Summarizing the events of the preceding day (May 20), the court noted that Juror No. 88 had walked out of the courtroom when ordered to continue deliberations and "indicate[d] she went to the restroom" before returning to the jury room. The court explained, "The idea that someone would choose, without communicating a word, to walk the other way and walk outside the courtroom is truly an affront to the Court." The court also mentioned that Juror No. 88 arrived 10 minutes late for deliberations on May 21. The court stated it had a duty to investigate the foreperson's competence concern. Emanuel's and Whitley's defense counsel objected and disagreed with the court's characterization of Juror No. 88's departure from the courtroom.
The trial court then questioned the foreperson with the parties present but outside the presence of the other jurors. When asked why she raised the issue of incompetence, the foreperson said that a few jurors raised concerns about "one juror who is being rude to other jurors, has been bullying other jurors, as well, as to the point where they don't feel comfortable to speak. When they do try and engage, this juror has made some discriminatory comments that has made the other jurors shut down." The foreperson said that some jurors asked her to seek direction from the court regarding the situation. Juror No. 88 had said to four male jurors (Juror Nos. 20, 84, 116, and 124) something like, "Those -- [you] men down there are prejudice[d], so I'm not going to take what you have to say."
The record indicates that the foreperson (Juror No. 50) and Juror No. 88 were black women, and Jurors Nos. 20, 84, 116, and 124 were white men.
The foreperson said no other jurors had made inappropriate comments during the deliberations. The foreperson explained that Juror No. 88 said "she feels as if she's being interrupted and not being able to speak her mind. But when other people have the floor and they are making their comments about what is going on, she has oftentimes interrupted them or made . . . disparaging comments to shut that person down so that they don't feel comfortable to continue in their conversation."
In addition, the foreperson explained that "there may be a disconnect with this juror in understanding the law and the direction that has been given." As an example of this lack of understanding, the foreperson said "the juror has requested information that has either been answered before or is requesting feedback of information that has already been read back." Regarding Juror No. 88's repeated requests for readbacks, the foreperson said there had not been any discussion of the reasons for the requests, and the foreperson felt the jurors were "going to get a reaction if [they] don't do as . . . [Juror No. 88] requests. [Juror No. 88] will immediately go into bullying and yelling and being obtuse."
When asked by the trial court if she believed Juror No. 88 was participating in the deliberations, the foreperson said, "Yes. Her participation has been right there from the very beginning. She has participated fully."
The trial court questioned Juror No. 88 with the parties present but outside the presence of the other jurors. Juror No. 88 said she felt she had been participating in the deliberations and that the communication was "going well now." As for earlier communication difficulties, Juror No. 88 said there had "[n]ot necessarily [been] difficulties. . . . [I]t just takes time to process information, so one should be given a chance to do so." Juror No. 88 felt she had been given a chance to process information. Regarding any communication difficulties between herself and some of the male jurors, Juror No. 88 said, "The only thing that I had sensed before was just to allow individuals to complete their sentences and their thought process." Juror No. 88 said she had allowed everyone to express their thoughts.
When asked if she said that some male jurors might be prejudiced, Juror No. 88 said she spoke "upon being respectful to defendants and the deceased." Juror No. 88 said that she "had asked people to be respectful and not speak derogatory names." The names used included "[l]ike sleaze ball" and "similar to like scum of the earth or some sort." Juror No. 88 said further that there also "ha[d] been disrespectfulness toward jurors." She "[could] not give an example, but there has been one male gentleman [Juror No. 84] that is verbally outloudish [sic] and abusive." Juror No. 88 explained, "Each time when it was basically his turn to speak or talk, he lashed out at the foreman before, sometime last week. And kind of his mannerism when he's talking in general. That's his demeanor." Juror No. 88 said "maybe a lot of the problem is the foreperson," because she cut people off when they were talking.
Juror No. 88 also complained that Juror No. 124 and the foreperson were "the biggest hindrance . . . within situations." Juror No. 88 said that Juror No. 124 had extraneous information about Cherry Park (the arranged location for the marijuana deal), and he and the foreperson had discussed Cherry Park outside deliberations.
After questioning the other jurors, the trial court concluded that there was no evidence demonstrating that such a conversation had occurred.
Juror No. 88 did not think that she made a statement that could have been interpreted "along the lines that you might not listen to certain men on the jury because they were prejudice[d]." When asked if she ever made such a statement, Juror No. 88 asked to inform the trial court of the "context of the conversation" and explained that she was "a strong-minded, strong-willed individual and . . . not a follower of others." Juror No. 88 denied saying "[a]nything along [the] lines" of "you men down there are prejudice[d] so I'm not going to take what you have to say." She admitted saying, "it is important that everyone have a fair trial and that no one should display any prejudice toward anyone, but to hear everything and all evidence before making decisions and not to throw your decision on another individual. And that is what was trying to be done."
The trial court asked Juror No. 88 about her request to go home early the previous day. After a three- to four-minute pause, Juror No. 88 said "I think a lot of it was still because I hadn't come to a decision as yet and . . . I think I was kind of feeling the flushing [sic] of being pressured to make a decision without being able to process more information." She later added that she has a spine injury which was bothering her, but which she did not care to talk about. Regarding leaving for the restroom when ordered to continue deliberating, Juror No. 88 said, "I thought you dismissed us." She added that she has "problems hearing from [her] left ear."
Juror No. 88 said she felt "discriminatory or derogatory comments" were made to her, but she could not provide an example. Rather, she said Juror No. 84 "has been extremely disruptive," and pointed to "his demeanor. His mannerisms. Pointing fingers. Raising hands." Juror No. 84 displayed this behavior to the foreperson, too. Juror No. 88 said no juror had called anyone names, Juror No. 88 said she was willing to continue deliberating.
At the request of Emanuel's and Whitley's defense counsel, the trial court interviewed all of the jurors individually, including the foreperson and Juror No. 88 again. Several jurors confirmed that Juror No. 88 had, that morning, accused certain male jurors of discriminatory behavior. Jurors reported that Juror No. 88 had refused to speak and wanted to go home the preceding day, but had reengaged somewhat in deliberations with some of the jurors that morning. Many jurors acknowledged that communication difficulties and tensions between Juror No. 88 and some of the male jurors were affecting the deliberations.
The trial court re-interviewed Juror No. 88 after speaking to the other 11 jurors. Juror No. 88 said that "now" all the jurors were being given the opportunity to express themselves, and there were no communication difficulties since the court instructed the jury to deliberate. When asked again whether she said other jurors were prejudiced, Juror No. 88 said, "I made a statement. I said that I did not want to be involved with people who if they make decisions, and they may have like a prejudice attitude of some sort." Juror No. 88 said the "intent [of her statement] was not directed" at any particular jurors.
The next day, Friday, May 22, the prosecutor moved to discharge Juror No. 88 for refusing to speak to or engage with the four male jurors. Emanuel's and Whitley's defense counsel opposed the discharge.
The trial court found, "based upon the statements of the vast majority of the jurors[,] that [Juror No. 88] was refusing to deliberate on Wednesday[, May 20] and, in fact, wanted to go home. Jurors reported [Juror No. 88] refusing to speak and to participate in the deliberations even after the Court ordered her to do so." The court "did not find [Juror No. 88] credible when she responded to the Court's question about why she wanted to go home on Wednesday." The court found that, on Thursday, May 21, Juror No. 88 "re-engaged in deliberations with some of the jurors, but not all." "A vast majority of the jurors were strikingly consistent in reporting to the Court that the prejudice comment was made and that the comment was directed to the four male jurors." The court found Juror No. 88's denial of the comment and denial of a refusal to deliberate with the four jurors lacked credibility. The court noted that several jurors reported "having to be very careful with what they said during deliberations, and how they said it, for fear of making [Juror No. 88] mad. Some jurors stated that they were intimidated and chose not to say anything at times to avoid an argument." The court concluded that Juror No. 88's repeated reevaluation of the evidence meant this situation was not one in which "the majority simply wanted to get this done and were pressuring the hold-out."
The trial court rejected Juror No. 88's explanation for leaving the courtroom on May 20. The court found that Juror No. 88 "was being defiant and making a statement to the balance of the jurors, or she is presently unable to listen to and follow directions." The court also noted "some concerns about [Juror No. 88's] current functioning" based on her "current behavior" that was inconsistent with the court's observations during the trial.
The trial court found that Juror No. 88, "by action, by word, has impeded the free flow of communication in the jury room. Her method of communication has caused the jury deliberations to focus on managing [her] rather than keeping the focus on the issues that are being presented to the jury for consideration." Juror No. 88's "actions have had the effect of bullying and intimidating other jurors which has caused significant disruption with the jury deliberation process and has caused the process to be inconsistent with [CALCRIM] instruction 3550, which addresses the respectful manner in which jury deliberations are to proceed." The trial court found that "[n]o juror reported any misconduct by any other juror." The court observed: "It's clear to the Court that the jury deliberations have been, for lack of a better term, hijacked by one juror, [Juror No. 88]. And that time and effort that should been spent deliberating has been spent trying to cajole [Juror No. 88] to participate in the deliberations process."
The trial court concluded that Juror No. 88 "refused to deliberate on Wednesday, wishing to go home, and refused to deliberate with three to four jurors on Thursday advising those jurors that they were prejudiced and she was not going to consider what they had to say." The court discharged Juror No. 88 and replaced her with an alternate juror, who began deliberating with the jury on May 26.
The trial court never characterized Juror No. 88 as a "holdout"; nor did the trial court elicit any information from the jurors about whether they had taken any votes or made any other conclusions about the evidence in the case.
When the parties reconvened on Tuesday, May 26, the trial court denied a defense motion to reconsider the discharge. The trial court also denied Emanuel's and Whitley's motion to inquire into racial bias amongst the jurors or, alternatively, for a mistrial. In addition, the trial court denied a defense request to discharge Juror No. 116, an issue we discuss in Part II(B), post.
After being discharged on May 26, Juror No. 88 spoke to Whitley's father outside the presence of the parties and counsel and without their knowledge. Whitley's father sent an e-mail later that morning to Whitley's defense counsel about the conversation, which was the first time any counsel learned about the conversation. In the e-mail, Whitley's father reported that Juror No. 88 said a vote was taken on Wednesday and "she was the one [juror] for innocent." Juror No. 88 also said that "other jurors look [sic] at similar cases and [the prosecutor] on [G]oogle and discussed their findings in the jury room."
The newly constituted jury deliberated on May 26 for approximately two hours and 10 minutes before informing the bailiff at 1:42 p.m. that it had reached a verdict. Thereafter, Emanuel's and Whitley's defense counsel asked the trial court to inquire into Juror No. 88's allegation that jurors looked at information regarding similar cases and the prosecutor. The trial court conducted an inquiry of the jurors. We detail this inquiry in Part II(C), post.
On Wednesday, May 27, the trial court received the jury's verdicts.
2. Legal Principles
"A trial court may discharge a juror at any time during trial if the court finds that the juror is 'unable to perform his or her duty.' [Citation.] A juror who refuses to deliberate may be removed 'on the theory that such a juror is "unable to perform [her] duty" within the meaning of Penal Code section 1089.' " (People v. Armstrong (2016) 1 Cal.5th 432, 450 (Armstrong).)
Section 1089 states in relevant part: "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors."
"A refusal to deliberate consists of a juror's unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views. Examples of refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury. The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge. A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views." (People v. Cleveland (2001) 25 Cal.4th 466, 485 (Cleveland).)
"Removing a juror is, of course, a serious matter . . . While a trial court has broad discretion to remove a juror for cause, it should exercise that discretion with great care." (People v. Barnwell (2007) 41 Cal.4th 1038, 1052, fn. omitted.) "Although [an appellate court] reviews for abuse of discretion a court's ruling discharging a juror pursuant to section 1089 [citation], we have made clear that such review involves a 'heightened standard [that] more fully reflects an appellate court's obligation to protect a defendant's fundamental rights to due process and to a fair trial by an unbiased jury.' [Citations.] Specifically, the juror's 'inability to perform' his or her duty 'must appear in the record as a demonstrable reality.' " (Armstrong, supra, 1 Cal.5th at p. 450.)
"Under the demonstrable reality standard, a reviewing court's task is more 'than simply determining whether any substantial evidence in the record supports the trial court's decision.' " (Armstrong, supra, 1 Cal.5th at p. 450.) Instead, " 'the demonstrable reality test entails a more comprehensive and less deferential review. It requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that [good cause for removing the juror is] established.' " (Id. at pp. 450-451.) " '[A] reviewing court does not reweigh the evidence under either test. Under the demonstrable reality standard, however, the reviewing court must be confident that the trial court's conclusion is manifestly supported by evidence on which the court actually relied. [¶] In reaching that conclusion, the reviewing panel will consider not just the evidence itself, but also the record of reasons the court provides.' " (Id. at p. 451.)
3. Analysis
Applying this heightened "demonstrable reality" standard and based on our review of the record, we conclude that the trial court did not abuse its discretion in discharging Juror No. 88 because of her refusal to deliberate.
Emanuel acknowledges that the "record did show that Juror 88 clashed with the four male jurors - eventually reaching the point where, according to some jurors, she refused to engage them at all." Emanuel argues, however, that "there is a big difference between a juror who refuses to engage her colleagues from the get-go and a juror who engages them at great length but eventually gives up because of what she perceives as insoluble differences." Emanuel argues further that "it is impossible to separate Juror 88's personal differences with the four male jurors from their differences about the case and about how to assess the evidence." Emanuel asserts that Juror No. 88 "was 'strong-willed' " and adamantly believed that "guilt could not be determined without additional discussion about the evidence." The differences "about the underlying evidence . . . informed Juror 88's view that some of her fellow jurors had prejudged the defendants' guilt and were engaging in discrimination." Comparing this case to Cleveland, supra, 25 Cal.4th 466, Emanuel claims that "Juror 88 cut off meaningful discussion with some jurors because she believed they had closed their minds to the possibility of persuasion."
Emanuel asserts that "the dynamics between individual jurors are immaterial to this court's analysis." He argues that, although "a handful of jurors opted for silence, rather than risk an unpleasant exchange with Juror 88," this "might well be indicative of the latter's abrasive personality. But it is not indicative of her failure to deliberate." Emanuel also claims that "it is immaterial that Juror 88 left the courtroom and went to the restroom after the court instructed the jury to continue deliberating on May 20" because she "simply used the restroom in the hall, then returned to the jury room for deliberations."
We are not persuaded by Emanuel's arguments that the record lacks evidence of a "demonstrable reality" that Juror No. 88 was unable or unwilling to perform her duty. As the trial court noted, several jurors reported that Juror No. 88 refused to deliberate on Wednesday, May 20, despite being ordered to do so. Juror No. 88 wanted to go home rather than engage in the deliberative process. The next day, Juror No. 88 would not listen to or engage with four male jurors. Juror No. 88 admitted that she "did not want to be involved with people who if they make decisions, and they may have like a prejudice attitude of some sort." In addition, Juror No. 88 said that, as of Wednesday, she "hadn't come to a decision as yet" and, on Thursday, she said she was willing to continue deliberations. Juror No. 88 did not report that she had made a decision about the evidence or assert that her conflicts with the other jurors arose from their refusal to accept her final conclusion about the evidence.
The circumstances here are not like those in Cleveland, supra, 25 Cal.4th 466. In that case, the California Supreme Court held that the trial court abused its discretion in discharging a juror, concluding that "it became apparent under questioning that the juror simply viewed the evidence differently from the way the rest of the jury viewed it." (Id. at p. 486.) The court explained that "[i]t is possible that [the discharged juror] employed faulty logic and reached an 'incorrect' result, but it cannot properly be said that he refused to deliberate. [The discharged juror] participated in deliberations, attempting to explain, however inarticulately, the basis for his conclusion that the evidence was insufficient to prove an attempted robbery, and he listened, even if less than sympathetically, to the contrary views of his fellow jurors." (Ibid.) In contrast to the discharged juror in Cleveland, the record here supports the trial court's conclusion that Juror No. 88 refused to deliberate with four of her fellow jurors and that her actions impeded communication among the jurors.
People v. Armstrong also is distinguishable from the present case. In Armstrong, the California Supreme Court was "not confident . . . that the trial court's determination that [the discharged juror] refused to deliberate 'is manifestly supported' by [the] evidence." (Armstrong, supra, 1 Cal.5th at p. 451.) The court noted a lack of evidence suggesting that the discharged juror "entered deliberations with a fixed conclusion about the case and declined to consider the views of other jurors." (Id. at p. 452.) The court agreed that "a juror who reads a book or looks at messages on a cell phone during deliberations may be attempting to separate herself from the other jurors, and [] such conduct may reflect a refusal to deliberate," but the trial court's conclusion in that case was "not manifestly supported by the evidence." (Ibid.) "[D]e minimis references [by the discharged juror] to a book and cell phone do not support a determination that [the discharged juror] was refusing to deliberate." (Ibid.)
Regarding the discharged juror's examination of the trial evidence, the California Supreme Court explained that "significant evidence in the record shows that the foreperson's testimony regarding the manner in which [the discharged juror] was deliberating amounted to complaints, first, that she was not weighing the evidence in the way that he and the other jurors thought to be objective and, second, that her assessment of the evidence was different from theirs." (Armstrong, supra, 1 Cal.5th at p. 453.) The court concluded that, although some of the jurors were frustrated with the discharged juror, "the record indicates that the source of that frustration was her disagreement with their view of the prosecution's evidence. . . . Also apparent from the record is that while deliberating with the other jurors, [the discharged juror] reached a conclusion regarding the strength of the prosecution's case and refused to change her mind." (Ibid.)
Although Juror No. 88 had deliberated for more than two days before Jury Note #3 was sent on Wednesday morning, May 20, the record demonstrates that Juror No. 88 shifted to a position of not wanting to deliberate on Wednesday afternoon and again did not engage with the four male jurors on Thursday morning. The record therefore contains substantial evidence of Juror No. 88's refusal to deliberate.
In contrast to Armstrong, the record here also supports the trial court's conclusion that Juror No. 88 had not reached a conclusion about her verdict. As the trial court found, this was not a "situation where the majority simply wanted to get this done and were pressuring the hold-out."
Based on the evidence in the record of a "demonstrable reality" that Juror No. 88 was unable to perform her duty as a juror and having reviewed the reasons given by the trial court, we are confident that the trial court did not abuse its discretion when it discharged Juror No. 88. Thus, we find no error.
B. Inquiry Regarding Juror No. 116
Whitley argues that the trial court erred by failing to discharge or, in the alternative, question Juror No. 116 further based on his alleged dishonest answers to the court's inquiries about the deliberations. Emanuel joins Whitley's argument.
The Attorney General argues that there were no grounds to discharge Juror No. 116 or inquire further about his answers, and there was no prejudice because there is no evidence that Juror No. 116 was biased.
1. Background
As noted above, Emanuel's and Whitley's defense counsel requested that the trial court discharge Juror No. 116 for committing misconduct during the court's inquiry into the foreperson's concerns about Juror No. 88's behavior. Specifically, Emanuel's defense counsel argued that Juror No. 116 (who was one of the four identified male jurors) was deliberately dishonest when, "in contradiction to all the other jurors, [he] expressed that there were no problems in the jury room with respect to deliberations."
When asked by the trial court if "everyone [was] being given an opportunity during the deliberation process to express themselves and to be heard," Juror No. 116 said, "Yes, ma'am." Asked whether he had "perceived any difficulties with" "[h]ow jurors are speaking to one another," Juror No. 116 said, "No, ma'am, we haven't." He reported that there had not been "any name-calling" between jurors and he had "[a]bsolutely not" "observed any jurors making any discriminatory comments to other jurors during the deliberations." When asked if "the words or conduct of any juror affected [his] ability to contribute to the deliberation process," Juror No. 116 said, "Again, no." Finally, when the trial court said, "So everything is just hunky-dory?" Juror No. 116 responded, "Everything is hunky-dory."
The trial court denied the defense request to discharge Juror No. 116. The court reasoned that Juror No. 116 is "entitled to his opinion and his perception. And I am not going to impute a motive of dishonesty to that." The court contrasted Juror No. 116's responses with Juror No. 88's denials regarding her unwillingness to deliberate with the four jurors who she said were prejudiced, which were contradicted by "what nearly all other jurors said." The court reiterated, "{Juror 116}'s perspective may be {Juror 116}'s perspective. . . . I don't find dishonesty as the motive there."
2. Analysis
Whitley challenges that trial court's refusal to discharge Juror No. 116 by pointing out that Juror No. 116 was identified by other members of the jury as one of the four male jurors with whom Juror No. 88 would not engage. He argues that "[i]f the trial court's reasons for dismissing Juror #88 are credited, . . . then Juror #116 cannot have been telling the truth in answering the trial court's questions." Whitley disputes the trial court's conclusion that Juror No. 116 was simply answering the court's questions from his perspective. Whitley claims "the record allows no other conclusion" than Juror No. 116 was "lying and concealing material information." Whitley contends that the appropriate remedy here is reversal of the judgment.
Whitley argues, alternatively, that, if this court does not agree that Juror No. 116 should have been discharged, the trial court was required to conduct further inquiry to determine whether Juror No. 116 "lied in his responses and was thus incompetent to remain as a juror." He contends that the record at least "raises a serious question" regarding juror misconduct and a remand for inquiry is the "least remedy necessary to safeguard the defendant's state and federal constitutional jury guarantees."
We are not persuaded that the trial court erred by refusing to discharge Juror No. 116 based on his answers to the court's questions or by failing to inquire further into his responses.
"In construing [section 1089], [our Supreme Court has] held that ' "[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." ' " (Martinez, supra, 47 Cal.4th at p. 941.) " '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." ' " (Id. at p. 942.) " ' "[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 duties and would justify his removal from the case." ' " (Ibid.)
We do not accept the Attorney General's argument that Whitley and Emanuel forfeited their argument that further inquiry of Juror No. 116 was warranted by failing to request such at trial. "The duty to conduct an investigation when the court possesses information that might constitute good cause to remove a juror rests with the trial court whether or not the defense requests an inquiry, and indeed exists even if the defendant objects to such an inquiry." (People v. Cowan (2010) 50 Cal.4th 401, 506 (Cowan).) Moreover, the Attorney General's citation to People v. Foster (2010) 50 Cal.4th 1301, 1341 is unavailing. There, the trial court "questioned the jurors, invited counsel to question them, and admonished them. . . . [but] [a]t no time did defense counsel propose additional questions, object to any juror's continued service, or request a mistrial on the ground of juror misconduct." (Ibid.)
The California Supreme Court has "long recognized that, except when bias is apparent from the record, the trial judge is in the best position to assess the juror's state of mind during questioning." (People v. Clark (2011) 52 Cal.4th 856, 971.) "We defer to the trial court's credibility assessments 'based, as they are, on firsthand observations unavailable to us on appeal.' " (People v. Williams (2015) 61 Cal.4th 1244, 1262.)
The trial court here did not abuse its discretion by either failing to conduct further inquiry or in deciding not to discharge Juror No. 116. The trial court's questions and Juror No. 116's answers do not indicate that he was lying or concealing information from the court. The trial court's determination that Juror No. 116's answers reflected his subjective perspective—not deliberate dishonesty—is supported by the record. As detailed above, Juror No. 116 was asked generally about whether jurors had been given an opportunity to express themselves and be heard. He also was asked if he "perceived any difficulties" and whether his "ability to contribute to the deliberation process" was being affected by any juror.
That Juror No. 116 articulated, in response to the court's questions, a personal perception regarding the nature of the deliberations that was different from other jurors does not amount to lying to the court. (See People v. Wilson (2008) 44 Cal.4th 758, 823.) Further, Juror No. 116's stated perspective on the deliberations did not indicate that he was unable to continue performing his duty as a juror. (See id. at pp. 823-824; see also People v. McPeters (1992) 2 Cal.4th 1148, 1175.)
We therefore find no error in the trial court's denial of the defense motion to discharge Juror No. 116 and conclude that no further inquiry by the trial court into Juror No. 116's answers was required.
C. Inquiry Regarding Juror No. 55
Whitley argues that the trial court failed to conduct a required inquiry into Juror No. 55's corroborated admission that he discussed in deliberations extraneous information related to Whitley's saliva found at the crime scene. Whitley asks this court to reverse the judgment because, in his view, the trial court erred when it denied a defense mistrial motion before the verdict was returned and recorded. Alternatively, Whitley argues that the cause should be remanded to the trial court for further proceedings regarding Juror No. 55's alleged misconduct. Emanuel joins Whitley's arguments.
The Attorney General argues that the trial court's inquiry was adequate and demonstrated that Juror No. 55 did not commit misconduct, and, regardless, any presumption of prejudice is amply rebutted on this record.
1. Background
Potential misconduct by Juror No. 55 came to light during the trial court's inquiry into Juror No. 88's allegation that jurors had looked at and discussed information about similar cases and the prosecutor. Regarding Juror No. 88's allegation, the trial court decided to individually ask the jurors two questions: "whether or not other jurors looked at similar cases and Googled [the prosecutor], and whether or not that was discussed in the jury deliberation room." By the time the trial court commenced its inquiry on the afternoon of Tuesday, May 26, 2015, the jury had already informed the trial court that it reached a verdict, although the trial court had not yet recorded it.
After receiving negative responses to similar questions about "Googling this case, or similar cases, or [the prosecutor]" from Juror Nos. 6, 69, and 55, the trial court questioned Juror No. 25. The court asked whether any juror had "Googl[ed] anything [to] do with this case?" Juror No. 25 responded, "I think one of the jurors looked up a word or something. Mentioned it in the deliberation today." Juror No. 25 said that he could not recall what was "looked up" but thought it was Juror No. 55 who "did the Googling."
The trial court recalled Juror No. 55 and asked, "Did you do any Googling in the jury room this morning?" Juror No. 55 responded, "Not this morning. When I said that I did research, it was when it was [sic] during school." Upon further questioning by the court, Juror No. 55 said he had done this research while in school, "which was last year," "[a]bout like a specific type of science lab that we were doing." Juror No. 55 then reconfirmed that he did the science lab research before he knew about this case.
The parties appear to agree that the reporter's transcript incorrectly asserts that "Juror No. 25" is answering the trial court's questions, but the context makes it clear that the speaker is, in fact, Juror No. 55.
After obtaining this reconfirmation, the trial court said, "And then you talked about that in the jury room this morning. Okay. So you didn't look anything up this morning?" Juror No. 55 answered, "No." Juror No. 55 said the "science lab issue" "was like bio chem. It was about like saliva, and how long it would last for the day until it dries up." Juror No. 55 answered "No" to the question, "you didn't look anything up for this case on that issue?" When the court asked finally, "So this was something that you had learned, part of your experience before you came to this case?" Juror No. 55 said, "Yes."
After obtaining these answers, the trial court continued its inquiry with the remaining jurors. The next three jurors (Juror Nos. 124, 50, and 20) gave negative responses to the court's original two questions regarding whether they were aware of any jurors Googling this case, similar cases, or the prosecutor and whether there was any discussion during the deliberations about any juror having conducted such Google searches.
When the trial court asked Juror No. 84 if there had been any discussion during deliberations about looking up this case, similar cases, or the prosecutor, Juror No. 84 reported that "[t]here was something, and I'm trying to recall what it was. It wasn't on this case. Somebody had mentioned that they had done some research on to [sic] a subject that I can't recall what it was." Juror No. 84 said this conversation took place that day. The court then re-asked whether there had been any discussion during jury deliberations about anyone Googling or looking up anything about this case, any similar case, or the prosecutor. Juror No. 84 said "No."
The remaining jurors (Juror Nos. 116, 90, 73, and 34) were then questioned and gave negative responses to the trial court's two questions.
Emanuel and Whitley's defense counsel moved for a mistrial. They argued that Juror No. 55 violated the trial court's instructions by introducing extra-record information that was beyond "the realm of common sense and experience." They contended the information could have influenced Juror No. 55's decision and that of the other jurors on a key issue in the case, i.e., "how long it took saliva to dry up." The trial court recessed for the day to consider the mistrial motion.
The next day (May 27, 2015), the trial court announced that it had received a voicemail message on the previous evening from Juror No. 34, the alternate juror who had replaced Juror No. 88. In the message, Juror No. 34 said that during the deliberations, "[o]ne of the jurors said that he had researched how long it takes spit to dry in the pavement. And when he said that, I thought that he had meant he had researched it before the trial. He actually never really said when he researched it, so I just wanted to make sure that the Judge and the lawyers knew about this." The voicemail message did not contain any information about whether Juror No. 55 had provided any substantive information about the topic or merely stated that he had previously researched it.
After further argument, the trial court denied the mistrial motion. The court explained that a verdict had been reached by the jury before the inquiry into Juror No. 88's allegation of misconduct and "granting a mistrial when a verdict could be an acquittal is a problem, from [the] Court's perspective." The court said further, "So the analysis of the Court is very different pre-verdict and post-verdict. But you still have remedies post-verdict. So I'm not making any judgment about when this was brought to the attention of the Court, other than to say it deeply affects how [the] Court is going to manage the problem."
The trial court said there was "no way the Court is going to be able to do [an] analysis [of what the jury considered in reaching its decision] based upon the information that it has. And again, pre-verdict and post-verdict, from the Court's perspective, are very different. The mistrial option may be available. The Court does not believe it's the correct option. And, again, I wish that I had different options, but I don't." When asked by the prosecutor if it denied the mistrial motion as to Juror No. 55's actions, the trial court said, "Yes, but it is not res judicata. I am denying it, really, because I feel procedurally—again, I would have preferred that I had the information prior to a verdict being in, as opposed to being provided with the information after the verdict has been -- after we've been advised the jury has reached a verdict."
The trial court then received and recorded the jury's verdict finding Emanuel and Whitley guilty.
Emanuel and Whitley subsequently moved for a new trial based on Juror No. 55's alleged prejudicial misconduct for introducing extrajudicial information on his "specialized knowledge regarding the rate at which saliva evaporates to the jury in violation of [section] 1181, subdivision 3."
At a hearing on the motion, and in response to the prosecutor's argument that the record did not demonstrate misconduct by Juror No. 55, Emanuel's defense counsel noted that "the court does have discretion to conduct an evidentiary hearing if it's unclear as to what exactly was said" by Juror No. 55. However, defense counsel explained that he did not "think it is necessary . . . [because] we have enough information here based upon the rate of evaporation, and what [Juror No. 55] talked about the expected rate of evaporation. Once that information is there, that's a misconduct. And the issue in this particular case is, is there sufficient evidence into [sic] the record to rebut that presumption."
The trial court said, based on its understanding of the record, it "did not receive any evidence that this juror discussed rates of evaporation with the other jurors during deliberations. [¶] I'm not clear that the court would find that to be any kind of specialized knowledge, but I don't think I need to reach that issue because the record did not reflect that. The record reflected that there was some kind of lab, you can look again, [Emanuel's defense counsel], to verify, because I don't want to misstate. But I understood from his answer that he talked about some scientific lab. That could have been the extent of it. But I didn't see anything in the record where he said that he talked about rates of evaporation with the jurors. If I'm mistaken, you definitely can push back."
Emanuel's defense counsel said that "that specific question was not even discussed with the jurors, [and] was not inquired upon [Juror No. 55]. If the court has an issue with that, I would request the court to conduct an evidentiary hearing with respect to that issue."
The trial court "decline[d] the request for an evidentiary hearing," saying "it may be for a reason that none of you expects. [¶] When I'm looking at these motions, I'm not only really looking at the technical aspect of the motion, what was said, how it was said, the [Evidence Code section] 1150 issues, all of those types of issues, but I'm also doing a gut check as to what I perceived and what I picked up from what the jurors were saying." The court continued: "But to me it is a gut check about whether or not the integrity of the trial and the deliberation process was somehow interfered with by the conduct of a juror."
The court then denied the motion for new trial. In response to a defense question as to whether the court was "making a finding that there was no misconduct," the court said that it did not have to make such a finding and it was simply denying the motion "hav[ing] considered all of the issues raised in the moving and responsive pleadings, as well as, the arguments today."
Emanuel and Whitley subsequently moved the trial court to reconsider its ruling or conduct an evidentiary hearing into Juror No. 55's alleged misconduct. Emanuel's defense counsel claimed that the trial court had a duty to inquire further as to the information Juror No. 55 provided to the other jurors regarding the evaporation rates of saliva and whether that information was prejudicial.
The court denied the motion on procedural and substantive grounds. As to the procedural ground, the court said that the motion did not contain "newly discovered evidence . . . or an explanation as to why the issues were not raised earlier." Regarding the substance, the court said the reconsideration motion is "a rehash of the issues that were raised in the original motion," and the court "did conduct an inquiry, and the Court is satisfied with the inquiry that it did conduct. It does not believe that the inquiry fell short of what should have been done. And it adequately protected the constitutional rights of both defendants and the integrity of the jury deliberation process."
2. Legal Principles
"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." ' " (In re Hamilton (1999) 20 Cal.4th 273, 293-294.)
"A juror's receipt or discussion of evidence not submitted at trial constitutes misconduct." (People v. Dykes (2009) 46 Cal.4th 731, 809 (Dykes); see also In re Lucas (2004) 33 Cal.4th 682, 696 (Lucas). " 'It is misconduct for a juror to consider material [citation] extraneous to the record. [Citations.] Such conduct creates a presumption of prejudice that may be rebutted by a showing that no prejudice actually occurred.' " (Williams, supra, 40 Cal.4th at p. 333.)
However, "[i]t is not improper for a juror, regardless of his or her educational or employment background, to express an opinion on a technical subject, so long as the opinion is based on the evidence at trial. Jurors' views of the evidence, moreover, are necessarily informed by their life experiences, including their education and professional work. A juror, however, should not discuss an opinion explicitly based on specialized information obtained from outside sources. Such injection of external information in the form of a juror's own claim to expertise or specialized knowledge of a matter at issue is misconduct." (In re Malone (1996) 12 Cal.4th 935, 963 (Malone).)
When a trial court is put on notice that good cause to discharge a juror for misconduct may exist, the court has a duty to make whatever inquiry is reasonably necessary to determine whether the juror should be discharged. (Martinez, supra, 47 Cal.4th at p. 941; see also People v. Virgil (2011) 51 Cal.4th 1210, 1284 (Virgil).)
"[N]ot every incident involving a juror's conduct requires or warrants further investigation." (Cleveland, supra, 25 Cal.4th at p. 478.) " 'Although courts should promptly investigate allegations of juror misconduct 'to nip the problem in the bud' [citation], they have considerable discretion in determining how to conduct the investigation.' " (Virgil, supra, 51 Cal.4th at p. 1284.) " '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 duties and would justify his removal from the case.' " (People v. Manibusan (2013) 58 Cal.4th 40, 53; see also People v. Engelman (2002) 28 Cal.4th 436, 442 (Engelman).)
[W]hen misconduct involves the receipt of information from extraneous sources, the effect of such receipt is judged by a review of the entire record, and may be found to be nonprejudicial. The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. [Citations.] Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. [Citation.] The judgment must be set aside if the court finds prejudice under either test." (In re Carpenter (1995) 9 Cal.4th 634, 653 (Carpenter).)
"Failure to conduct a hearing sufficient to determine whether good cause to discharge the juror exists is an abuse of discretion subject to appellate review." (People v. Burgener (1986) 41 Cal.3d 505, 520, overruled on another ground in People v. Reyes (1998) 19 Cal.4th 743, 755-756.) "The trial court is vested with broad discretion to act upon a motion for new trial. [Citation.] When the motion is based upon juror misconduct, the reviewing court should accept the trial court's factual findings and credibility determinations if they are supported by substantial evidence, but must exercise its independent judgment to determine whether any misconduct was prejudicial." (Dykes, supra, 46 Cal.4th at p. 809.)
"The trial court has the discretion to conduct an evidentiary hearing to determine the truth or falsity of allegations of jury misconduct, and to permit the parties to call jurors to testify at such a hearing. [Citation.] [The] defendant is not, however, entitled to an evidentiary hearing as a matter of right. Such a hearing should be held only when the court concludes an evidentiary hearing is 'necessary to resolve material, disputed issues of fact.' [Citation.] 'The hearing should not be used as a "fishing expedition" to search for possible misconduct, but should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred. Even upon such a showing, an evidentiary hearing will generally be unnecessary unless the parties' evidence presents a material conflict that can only be resolved at such a hearing.' " (People v. Avila (2006) 38 Cal.4th 491, 604 (Avila).) The appellate court reviews for an abuse of discretion the trial court's denial of a defendant's postverdict request for an evidentiary hearing on allegations of juror misconduct. (Ibid.)
3. Analysis
We begin by examining whether the trial court abused its discretion by failing to conduct a reasonably necessary inquiry into the potential misconduct of Juror No. 55. As we explain, we discern no abuse of discretion by the trial court.
Whitley asserts that the "current record does not make clear precisely what Juror #55 said about his prior research [during the deliberations], or anything else on what was said or heard about it." Whitley faults the trial court for an "inadequate investigation" in Juror No. 55's conduct but argues, nevertheless, that the record shows Juror No. 55 committed misconduct when he "mentioned extraneous specialized information in the jury room." In addition, Whitley claims that the trial court's rationale for denying the mistrial motion and not inquiring further—i.e., that a verdict had been reached and it might have been an acquittal—lacked any legal basis.
The Attorney General counters that "it was clear from the court's inquiry that Juror No. 55 did not commit misconduct," and, thus, the trial court did not abuse its discretion by failing to inquire further than it did into Juror No. 55's behavior. The Attorney General argues that "Juror No. 55's statement that he once researched how long saliva would last before it 'dries up' did not convey any outside information, let alone 'highly technical' or expert information, to the jury." The Attorney General further asserts that the three jurors who recalled something about what Juror No. 55 said only had vague recollections about it, so "they could not have been influenced by any extraneous information" and "there was no indication that Juror No. 55 ever revealed the product of his past research to the jury."
Our review of the record leads us to conclude that the trial court was not required to conduct further inquiry into whether Juror No. 55 may have discussed information extraneous to the evidence during the deliberations.
After the trial court learned from Juror No. 25 that Juror No. 55 mentioned "look[ing] up a word or something," the court brought Juror No. 55 back into the courtroom and asked if he did "any Googling in the jury room" that morning. Juror No. 55 said he had not, but he admitted to telling his fellow jurors "that [he] did research" as part of a school science lab. After this admission, the trial court said, "And then you talked about that in the jury room this morning. Okay." Juror No. 55 did not verbally respond or otherwise attempt to correct or clarify the trial court's statement that he told the other jurors about having done research. Juror No. 55 then explained that the subject of the science lab research was "saliva, and how long it would last for the day until it dries up."
Juror No. 55 did not say that he told his fellow jurors about the substance of his science lab research. Although the trial court did not specifically ask Juror No. 55—or any other juror—if he shared any substance from his research, the reports of the other jurors corroborate that the substance was not discussed.
In addition to the report from Juror No. 25, Juror No. 34 stated that "[o]ne of the jurors said that he had researched how long it takes spit to dry in the pavement." Juror No. 84 similarly reported that "[s]omebody had mentioned that they had done some research on to [sic] a subject that I can't recall what it was." Notably, none of these jurors reported that Juror No. 55 had communicated an opinion based on this research or otherwise disclosed any substantive information about it.
In other words, none of the information provided by any of the jurors suggested that Juror No. 55 had committed juror misconduct either by discussing information not in evidence or by expressing an opinion based on specialized information obtained from outside sources. Therefore, even if the trial court found it was true that Juror No. 55 had stated that he had done research into the topic of how long saliva takes to dry (which Juror No. 55 admitted he had said), this fact would not constitute "good cause" to remove him from the jury. (See Malone, supra, 12 Cal.4th at pp. 963-964; see also People v. Steele (2002) 27 Cal.4th 1230, 1266 (Steele).)
"We will not presume greater misconduct than the evidence shows." (Carpenter, supra, 9 Cal.4th at p. 657.) Although the reports of all three jurors resulted from questions asked by the trial court concerning the alleged misconduct reported by discharged Juror No. 88, based on the information provided by the jurors, it was not unreasonable for the trial court to forgo further specific questioning of Juror No. 55 or the other jurors about the mention of research into how saliva dried.
Although Whitley's and Emanuel's defense counsel moved the trial court for a mistrial based on Juror No. 55's alleged misconduct, defense counsel did not request any further inquiry of Juror No. 55 or any other juror at the time of the mistrial motion. The defense also did not request that the trial court discharge Juror No. 55 for his alleged misconduct. Although the defense's failures do not forfeit the current claim on appeal (see Cowan, supra, 50 Cal.4th at p. 506), they do suggest that defense counsel considered the trial court's inquiry to be reasonable. Moreover, this is not a case where the trial court did nothing in response to possible misconduct. (Cf. People v. Hem (2019) 31 Cal.App.5th 218, 229 ["[D]efense counsel in this case pressed the trial court to ascertain exactly how far the misconduct extended, but the court refused to inquire. That did not satisfy the court's duty to ensure the deliberations were proceeding properly."].)
We acknowledge that the trial court apparently thought that, because the jury had reached a verdict, it could not properly grant a mistrial. The court also explained that the procedural posture of the case meant "there is just no way the Court is going to be able to do th[e] analysis [of how the jurors reached their verdicts] based upon the information that it has."
The trial court was correct to be concerned about delving too deeply into the jurors' deliberations. "[A]n important element of trial by jury is the conduct of deliberations in secret, free from ' " 'intrusive inquiry into the sanctity of jurors' thought processes.' [Citation.]" ' " (Engelman, supra, 28 Cal.4th at p. 442; see also Steele, supra, 27 Cal.4th at p. 1265; Evid. Code, § 1150.) However, while the California Supreme Court has "recognized the importance of secrecy in deliberations, [it has] also recognized that such secrecy may give way to reasonable inquiry by the court when it receives an allegation that a deliberating juror has committed misconduct." (Engelman, at p. 443, italics omitted.)
More importantly, even though the jury had informed the trial court that it had reached a verdict, the court could have granted the mistrial motion had the allegations of juror misconduct been substantiated because the verdict had not yet been returned and recorded. (See People v. Hendricks (1987) 43 Cal.3d 584, 597; People v. Green (1995) 31 Cal.App.4th 1001, 1009-1010; see also People v. Batts (2003) 30 Cal.4th 660, 679-680 ["[T]he general rule is that the defendant's request for a mistrial constitutes consent that waives any double jeopardy claim, and hence there is no bar to retrial."].)
Despite the trial court's misapprehension concerning the propriety of granting a mistrial, we are not persuaded by Whitley's assertion that the trial court "made no effort to investigate Juror [No.] 55's alleged misconduct" and relied on a legally invalid "rationale for doing nothing in the face of a clear misconduct issue." On the contrary, the trial court acted immediately when it learned of Juror No. 55's possible misconduct. It brought Juror No. 55 back for questioning. In addition, the court continued questioning the jurors about Juror No. 88's allegation of misconduct and included the substituted juror (Juror No. 34) in the inquiry, stating that it "broadened the scope" of the inquiry. Thus, Whitley's assertions that the trial court did nothing based on its legal misapprehension are belied by the record. Rather, the trial court addressed Juror No. 55's possible misconduct (along with Juror No. 88's allegation) and properly exercised its " 'considerable discretion in determining how to conduct the investigation.' " (Virgil, supra, 51 Cal.4th at p. 1284.)
Whitley argues further that the trial court's inquiry was inadequate because the court did not place Juror No. 55 under oath, pursuant to section 1120, when it questioned him. Whitley contends that, because of this failure, Juror No. 55's answers to the trial court's questions "cannot lawfully be considered." We agree with the Attorney General that this claim was not properly preserved for appellate review because it was not raised in the trial court. (See Evid. Code, § 353; see also People v. Carreon (1984) 151 Cal.App.3d 559, 579 ["if a witness is permitted to testify without having taken the appropriate oath, the defect must be timely noted and failure to do so constitutes a waiver"].) In any event, section 1120 was inapplicable because the information Juror No. 55 said he shared in deliberations about having done research did not evidence any personal knowledge of "a fact in controversy" or "a fact that could be evidence" in the case. (§ 1120.)
Section 1120 states: "If a juror has any personal knowledge respecting a fact in controversy in a cause, he or she must declare the same in open court during the trial. If, during the retirement of the jury, a juror declares a fact that could be evidence in the cause, as of his or her own knowledge, the jury must return into court. In either of these cases, the juror making the statement must be sworn as a witness and examined in the presence of the parties in order that the court may determine whether good cause exists for his or her discharge as a juror."
For these reasons, we also conclude that the trial court did not abuse its discretion when it denied the defense's posttrial requests for an evidentiary hearing and that the court properly denied the defense motions for a new trial and reconsideration. Neither Whitley nor Emanuel provided any additional information concerning Juror No. 55's conduct in support of their hearing requests or motions. They did not identify any material disputed issues of fact and did not adduce further evidence that demonstrated a strong possibility of prejudicial misconduct by Juror No. 55. Thus, the defense requests and motions were properly denied. (See Avila, supra, 38 Cal.4th at pp. 604-605.)
In short, the trial court adequately inquired into the alleged misconduct of Juror No. 55, and the record does not demonstrate that misconduct occurred.
D. Lack of Instruction on Penal Code Section 1120
Section 1120 provides in relevant part, "If a juror has any personal knowledge respecting a fact in controversy in a cause, he or she must declare the same in open court during the trial. If, during the retirement of the jury, a juror declares a fact that could be evidence in the cause, as of his or her own knowledge, the jury must return into court."
Whitley claims that the trial court erred by failing to instruct sua sponte on the requirements of section 1120. Emanuel joins Whitley's argument. The Attorney General argues that the trial court did not have a duty to instruct under section 1120, and Whitley's failure to request such instruction forfeited his appellate claim. In addition, the Attorney General contends that it is not reasonably probable that the instructional omission affected the verdict.
Whitley's claim on appeal is novel, and his defense counsel at trial did not request an instruction based on section 1120. Although an instruction based on section 1120 may be beneficial for relating to jurors how they should conduct themselves, we are not persuaded that the trial court had a sua sponte duty to instruct under section 1120. Therefore, the trial court did not err.
In criminal cases, " ' "even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." ' " (People v. Breverman (1998) 19 Cal.4th 142, 154.) The evidence in this case did not require an instruction with section 1120.
Section 1120 also does not include an explicit requirement that the trial court instruct the jury on its contents. We recognize that the statute uses mandatory language when directing that a juror who has "any personal knowledge respecting a fact in controversy in a cause . . . must declare the same in open court," and the "jury must return into court" "[i]f, during the retirement of the jury, a juror declares a fact that could be evidence in the cause, as of his or her own knowledge." (§ 1120.) However, the Legislature did not direct that jurors be instructed on the substance of section 1120. In section 1122, the Legislature set forth certain mandatory jury admonitions. Section 1120 is not included on section 1122's list. "Unless the trial court is required by statute or case law to give a jury instruction, it does not have to do so." (People v. Hall (2011) 200 Cal.App.4th 778, 782.) Neither appellant cites any case law requiring a trial court to instruct on section 1120 sua sponte.
Because we conclude that the trial court did not have a duty to instruct on section 1120, Whitley's instructional error claim otherwise is forfeited by his failure to request an instruction at trial. (See People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1246, overruled on another ground by People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
Regardless of Whitley's forfeiture, even if the trial court should have instructed the jury under section 1120, Whitley has not demonstrated any prejudice. As discussed above, the trial court conducted an appropriate inquiry into the alleged misconduct of Juror No. 55, and no misconduct was demonstrated. In addition, the jury was admonished with CALCRIM No. 101 at the beginning of trial and instructed on their duties, including the duty to decide the facts based only on the evidence presented in the trial. For these reasons, we conclude there is no reasonable probability that the trial court's failure to instruct the jury with section 1120 affected the verdict. (See People v. Boyce (2014) 59 Cal.4th 672, 716.)
E. Cumulative Error
Emanuel and Whitley contend that the cumulative effect of prejudice from the claimed errors during the trial and jury deliberations require reversal.
" 'The "litmus test" for cumulative error "is whether defendant received due process and a fair trial." ' " (People v. Poletti (2015) 240 Cal.App.4th 1191, 1217.) The only errors we discern in this appeal relate to prosecutorial misconduct based on certain actions during opening statement and closing argument. We determined that these errors were not prejudicial. Even considering the errors collectively, the errors were no more prejudicial together. Neither Emanuel nor Whitley has been deprived of a fair trial. Accordingly, we reject their claims of cumulative error.
III. CLAIMS OF SENTENCING ERROR
A. Denial of Probation for Emanuel
Emanuel claims that the trial court abused its discretion by denying his request for probation with a jail term of 10 to 12 years. Specifically, Emanuel contends that the trial court mistakenly believed that Emanuel could not waive section 19.2's one-year cap on the time he could serve in the county jail as a condition of probation.
Section 19.2 provides in relevant part: "In no case shall any person sentenced to confinement in a county or city jail . . . as a condition of probation upon conviction of either a felony or a misdemeanor . . . be committed for a period in excess of one year."
1. Background
In a sentencing memorandum and at the sentencing hearing, Emanuel asked the trial court to grant him "probation and give him a significant jail sentence, somewhere in the area of ten years or more." Emanuel offered to waive any custody credits and his rights under section 19.2, citing People v. Bailey (1983) 140 Cal.App.3d 828 (Bailey).
Emanuel appended to his memorandum: (1) a letter Emanuel wrote to the trial court apologizing for Cody's death, describing hardships he endured growing up, and his stating his plan to "use [a grant of probation] for good"; (2) a posttrial psychological evaluation that discussed Emanuel's mental status, psychosocial history, psychological test results, and diagnostic formulations, and concluded that Emanuel had "significant mental health problems, many of which have their origins in his exposure to traumatic, violent events during his childhood, including personality features that make him vulnerable to maladaptive decisions . . . . [¶] [and] note[d] that Mr. Emanuel does not have a psychopathic orientation to life, which supports the conclusion that he is not at an elevated risk for criminal recidivism"; (3) several letters written by family and friends; and (4) a copy of an amicus curiae brief filed in Roper v. Simmons (2005) 543 U.S. 551.
The reported mental disorders include posttraumatic stress disorder, major depressive disorder, substance use disorders, attention deficit/hyperactivity disorder, learning disorders, and personality disorder.
The prosecutor acknowledged that Emanuel was eligible for probation. He argued, however, that he "kn[e]w of no legal mechanism that would permit the Court to ignore the limitation of a one year county jail sentence as a part of the felony probation" and such a sentence would "necessarily be unlawful." The prosecutor argued further, "There is simply no authority for the proposition that the Court can select any number that the Court feels comfortable selecting and impose that as a state prison sentence. [¶] The legislature has taken the responsibility of determining what the sentencing range should be . . . In this case, . . . it's 25 years to life."
The prosecutor emphasized, "[t]his is an all or nothing proposition. If the Court grants probation, then the defendant is limited to one year in the county jail. . . . If [the] Court denies probation, he goes to prison for 25 years to life." Alternatively, the prosecutor urged that, even if there were a legal mechanism by which the trial court could impose probation with a multi-year county jail term, it would not be an appropriate sentence, given the facts of this case.
The trial court, too, acknowledged that Emanuel was eligible for probation. The court said preliminarily, "The complication here is there's no middle ground. [¶] I am not sure that [section] 19.2 can be waived. . . . I am not clear that [] is a mechanism that is available, number one. Number two . . . [¶] I think this is a prison case, but it's black and white."
After hearing the presentations and arguments of the parties, the trial court explained that "the evidence shows that both defendants made choices and were responsible for the planning and participation in this robbery," and that the "results [were] horrible." The court said the evidence "supports the fact [Whitley] pulled the trigger on the gun" and "suggests that [Emanuel] may have attempted to get [Whitley] to leave" the scene, but neither did and they did not summon help for Cody after he was shot.
The trial court noted that Emanuel's sentence was subject to its discretion and said it "spent a great deal of time reading the materials presented by" defense counsel and "thought long and hard about this." After mentioning details of Emanuel's background and the crime, the court explained: "The Court concurs with the People that this is an all or nothing proposition with respect to [Emanuel]. Either he is sentenced to probation and one year in the county jail or he is sentenced to 25 to life. One year is not enough for [Emanuel's] participation in this tragic event in which someone lost his life. Thus, the Court does intend to impose the indeterminate sentence of 25 to life."
The trial court ultimately denied probation, addressing the criteria and circumstances under California Rules of Court, rules 4.414 and 4.421. The court added that it had "set[] forth its position with respect to why it does not believe probation is appropriate in this case in its initial statement at the commencement of this hearing."
2. Analysis
Emanuel argues that the trial court misunderstood the governing law when it denied probation. He claims that the trial court did not believe Emanuel could waive the one-year limit in section 19.2 and asserts that "Bailey squarely refutes the trial court's belief." Further, Emanuel contends that the trial court's misapprehension of its discretion was key to its decision to impose a 25-years-to-life sentence instead of probation with a significant county jail term.
The Attorney General counters that the trial court was aware of Bailey but apparently and correctly disagreed with it as wrongly decided or found it was inapplicable. Alternatively, the Attorney General argues that Bailey should be limited to its facts and deemed inapplicable to Emanuel's case.
"The decision whether to grant or deny probation is reviewed under the abuse of discretion standard. [Citations.] 'An order denying probation will not be reversed in the absence of a clear abuse of discretion. [Citation.] In reviewing the matter on appeal, a trial court is presumed to have acted to achieve legitimate sentencing objectives in the absence of a clear showing the sentencing decision was irrational or arbitrary.' " (People v. Ferguson (2011) 194 Cal.App.4th 1070, 1091.)
" 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, . . . the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' " (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez).) "Where . . . a sentence choice is based on an erroneous understanding of the law, the matter must be remanded for an informed determination." (People v. Downey (2000) 82 Cal.App.4th 899, 912 (Downey).)
"Remand for resentencing is not required, however, if the record demonstrates the trial court was aware of its sentencing discretion. [Citations.] Further, remand is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion. Error may not be presumed from a silent record. [Citation.] ' "[A] trial court is presumed to have been aware of and followed the applicable law." ' " (People v. Brown (2007) 147 Cal.App.4th 1213, 1228-1229 (Brown); see also Gutierrez, supra, 58 Cal.4th at p. 1390.)
We agree with the Attorney General that the trial court was aware of Bailey in that Emanuel's sentencing memorandum referenced Bailey, and the trial court read the memorandum in advance of sentencing. In addition, Emanuel's defense counsel specifically cited Bailey during the sentencing hearing and described the case's holding. But we do not agree that the trial court sub silentio made an "apparent decision not to follow Bailey" because it disagreed with Bailey or found it inapplicable.
Instead, the trial court agreed with the prosecutor's statement that, as a matter of law, "[t]his is an all or nothing proposition. If the Court grants probation, then the defendant is limited to one year in the county jail. . . . If [the] Court denies probation, he goes to prison for 25 years to life." Indeed, the trial court echoed the prosecutor's words when it stated, "the Court concurs with the People that this is an all or nothing proposition with respect to [Emanuel]. Either he is sentenced to probation and one year in the county jail or he is sentenced to 25 to life." The trial court's comments make clear that it misunderstood the scope of its discretion under Bailey. (See Downey, supra, 82 Cal.App.4th at p. 912.) Furthermore, the trial court was compelled to accept Bailey as a correct statement of law. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In Bailey, the defendant pleaded no contest to auto theft and endangering the life or health of a child. (Bailey, supra, 140 Cal.App.3d at p. 830.) The trial court sentenced the defendant to three years in prison. (Ibid.) The defendant had requested probation with a three-year county jail commitment, but the trial court rejected the request concluding that such jail term was "jurisdictionally barred" by the one-year cap in former section 19a (now section 19.2). (Ibid.) The Fifth District Court of Appeal reversed, concluding that the defendant could waive the one-year statutory restriction because "the available history of section 19a makes clear that the provision was enacted solely for the benefit of the defendant and 'not to satisfy any other overriding social, political or fiscal purpose.' " (Bailey, supra, 140 Cal.App.3d at p. 831.)
The court said further, "This permits the sentencing court at least to consider whether the defendant merits a grant of probation in those cases where a one-year term of local confinement seems inappropriately brief and a prison commitment unduly harsh." (Bailey, supra, 140 Cal.App.3d at p. 831.) The court explained that its holding "ensures the sentencing court's authority to formulate a sentence which fits the crime and the criminal." (Id. at p. 832.) The court also noted that "the sentencing court is not required to act upon defendant's waiver. It remains within the trial court's discretion whether the circumstances of the case justify a departure from the established one-year limitation on county jail commitment." (Ibid.)
The Attorney General urges us to affirm the trial court's sentence by concluding that Bailey was wrongly decided. We decline to do so. Bailey and its precursor, People v. Johnson (1978) 82 Cal.App.3d 183 (Johnson), have been cited with approval by other courts. (See People v. Burks (1998) 66 Cal.App.4th 232, 234; People v. Ambrose (1992) 7 Cal.App.4th 1917, 1924; People v. Otterstein (1987) 189 Cal.App.3d 1548, 1551.) Furthermore, we agree with Emanuel that Bailey's core holding—that a trial court may at least "consider whether the defendant merits a grant of probation in those cases where a one-year term of local confinement seems inappropriately brief and a prison commitment unduly harsh" (Bailey, supra, 140 Cal.App.3d at p. 831) and may accept in appropriate cases the defendant's waiver of section 19.2's one-year limit—is sound.
The Johnson court held that "a defendant who has served one year in jail as a condition of probation and who thereafter violates probation may be sentenced to an additional period of up to one year in jail if he knowingly and intelligently waives the provisions of Penal Code section 2900.5." (Johnson, supra, 82 Cal.App.3d at pp. 184-185.)
We have confidence that trial courts will exercise their discretion appropriately in considering whether to grant probation and in determining the appropriate conditions of probation (including any jail term) in light of each defendant's individual history and the circumstances of his or her crime. (See Cal. Rules of Court, rule 4.414.) We emphasize that trial courts need not agree to impose a jail term longer than one year if the defendant waives section 19.2, and we suspect that they will rarely do so. Bailey simply holds that the trial court would not thereby violate the Penal Code.
"A failure to exercise discretion is an abuse of discretion." (People v. Orabuena (2004) 116 Cal.App.4th 84, 99; see also Paterno v. State of California (1999) 74 Cal.App.4th 68, 85.) We conclude that is what happened here. The trial court misapprehended the full scope of the discretion vested in it as a result of Emanuel's willingness to waive section 19.2. Therefore, the trial court did not exercise informed discretion when it denied probation and sentenced Emanuel to 25 years to life in prison. Further, the record does not clearly indicate that the trial court would have reached the same conclusion even if it had understood the scope of its discretion.
Accordingly, we shall reverse the judgment against Emanuel and remand this matter to the trial court so that it may consider whether to exercise its discretion under Bailey to impose probation with a jail term that may exceed one year or 25 years to life in prison. We do not express any opinion about how the trial court should exercise its discretion.
Because we reverse Emanuel's sentence, we need not address Emanuel's claim that 25 years to life is grossly disproportionate to his individual culpability and thus violates state and federal prohibitions on cruel and unusual punishment.
B. Resentencing Whitley Under Section 12022 .53, Subdivision (h)
In a supplemental brief, Whitley argues that this court should remand his case to permit the trial court to exercise its discretion to strike the section 12022.53, subdivision (d) firearm enhancement under the posttrial amendment to section 12022.53, subdivision (h). (Sen. Bill No. 620 (2017-2018 Reg. Sess.) The Attorney General concedes that the statutory revision is retroactive but asserts that remand is unwarranted. The Attorney General argues that the record clearly indicates the trial court would not have stricken the firearm enhancement and intended to impose the maximum sentence on Whitley.
Senate Bill No. 620 amended section 12022.53, subdivision (h), which now reads: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." Senate Bill No. 620 took effect on January 1, 2018, while Whitley's appeal was pending. Prior to its passage, trial courts did not have the discretion to strike or dismiss firearm enhancements imposed under section 12022.53.
We agree with the parties that section 12022.53, subdivision (h), applies to Whitley's case. (People v. McDaniels (2018) 22 Cal.App.5th 420, 424-425 (McDaniels).) Although the amendment is retroactive, remand is not automatic. We must determine whether a remand is required or if it would be an " 'idle act.' " (People v. Gamble (2008) 164 Cal.App.4th 891, 901.) "Generally, when the record shows that the trial court proceeded with sentencing on the . . . assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing." (Brown, supra, 147 Cal.App.4th at p. 1228.) There is an exception to this rule, however, where " 'the record shows that the trial court would not have exercised its discretion even if it believed it could do so,' " in which case, " 'remand would be an idle act and is not required.' " (Gamble, supra, at p. 901.)
In McDaniels, supra, 22 Cal.App.5th 420, the appellate court addressed the appropriate standard to "apply in assessing whether to remand a case for resentencing in light of S.B [No.] 620." (Id. at p. 425.) Relying on People v. Gutierrez (1996) 48 Cal.App.4th 1894, which dealt with reconsidering three strikes sentencing in light of the California Supreme Court's decision in People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), McDaniels determined that a "remand is required unless the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a firearm enhancement." (McDaniels, supra, at p. 425.)
McDaniels held that the salient question is whether the trial court "express[ed] its intent to impose the maximum sentence permitted." (McDaniels, supra, 22 Cal.App.5th at p. 427.) "When such an expression is reflected in the appellate record, a remand would be an idle act because the record contains a clear indication that the court will not exercise its discretion in the defendant's favor." (Ibid; see also People v. Almanza (2018) 24 Cal.App.5th 1104, 1110-1111.)
The Attorney General argues remand is not required because the trial court's denial of Whitley's Romero motion and rejection of his argument that a sentence of 75 years to life was cruel and unusual punishment clearly indicate that the trial court would not have stricken the firearm enhancement. We are not persuaded by this contention.
When ruling on the Romero motion, the trial court said it was "mindful of the case law that states over and over and over again, that circumstances must be extraordinary in order for a defendant to fall outside the spirit of the Three Strikes Law." (See People v. Williams (1998) 17 Cal.4th 148, 161.) The court remarked, in conclusion, that the motion "allowed the Court to really think a lot about this issue and it gave [the Court] a lot to think about. It was not an uncomplicated decision. So [Whitley's defense counsel] and [the Court] agree that it was a very complicated decision." The court continued, "But at the end of the day I have to look at the law. And I don't think I can start with the number of years and then work my way backwards. I don't think the law allows that. I think I have to do the true Romero analysis and then let the number of years fall where they fall. That's a scheme set up by the legislature, and a discussion for a different day."
At the sentencing hearing, the trial court said Whitley's sentence "is not the subject of discretion on the part of the Court. . . . [and] decline[d] to adopt the cruel and unusual punishment argument advanced by [defense counsel]." Further, the court stated that it "will run [the section 12022.53, subdivision (d) enhancement] consecutive because I believe the law requires me to."
Although the trial court noted Whitley's significant role in this tragic crime, along with his life challenges and failure to accept help from family and make good decisions, the record does not clearly indicate that the trial court would have declined to strike the firearm enhancement had it had the power to do so. The court acknowledged that its discretion was limited and did not clearly evince an intent to impose the maximum sentence.
Therefore, we conclude remand for resentencing is necessary for the limited purpose of allowing the trial court to consider whether it should strike Whitley's firearm enhancement pursuant to section 12022.53, subdivision (h).
DISPOSITION
The judgment against Emanuel is reversed and the matter is remanded for resentencing so the trial court may exercise its discretion whether to impose probation with a term of confinement that may exceed one year in the county jail or a sentence of 25 years to life in prison. Emanuel's conviction is otherwise affirmed.
The judgment against Whitley is reversed, and the matter is remanded to the trial court for the limited purpose of exercising its discretion under section 12022.53, subdivision (h), to determine if Whitley's firearm enhancement should be stricken in the furtherance of justice. If the trial court strikes Whitley's firearm enhancement, it shall resentence Whitley accordingly. If the court declines to strike the firearm enhancement, the trial court shall reinstate the original sentence. Whitley's conviction is otherwise affirmed.
/s/_________
DANNER, J.
I CONCUR:
/s/_________
GREENWOOD, P.J.
BAMATTRE-MANOUKIAN, J., Concurring and dissenting.
I concur with my colleagues' resolution of Whitley's claims and with their resolution of all but one of Emanuel's claims. I respectfully dissent from their conclusion that the trial court abused its discretion when it denied Emanuel's request for probation.
Relying on People v. Bailey (1983) 140 Cal.App.3d 828 (Bailey), Emanuel contends that the trial court abused its discretion when it denied his request for probation coupled with a 10- or 12-year county jail sentence. The majority agrees, holding that "[t]he trial court misapprehended the full scope of the discretion vested in it as a result of Emanuel's willingness to waive [Penal Code] section 19.2," which bars probationary jail sentences in excess of one year. (Maj. opn., p. 72.) The majority remands the matter for the trial court to "consider whether to exercise its discretion under Bailey to impose probation with a [county] jail term that may exceed one year or [to impose] 25 years to life in prison." (Maj. opn., p. 72.)
Further statutory references are to the Penal Code.
I believe that Bailey applies, if at all, only where the defendant is willing to waive section 19.2 and the trial court determines that "a one-year term of local confinement seems inappropriately brief and a prison commitment unduly harsh." (Bailey, supra, 140 Cal.App.3d at p. 831.) Bailey does not apply where the trial court has determined that the matter "is a prison case" or the trial court simply believes the length of the state prison punishment prescribed for the offense is too long.
In Bailey, the defendant was willing to waive section 19a (section 19.2's predecessor) and requested that he be granted probation with a three-year term in county jail. (Bailey, supra, 140 Cal.App.3d at p. 830.) The defendant faced a three-year prison commitment for child endangerment. (Ibid.) "The sentencing court stated it was 'inclined to grant probation, three years in county jail' but was persuaded by the prosecutor's argument that a three-year term of local confinement was jurisdictionally barred by section 19a." (Ibid.) The Court of Appeal held that when a defendant waives section 19a, the sentencing court may "at least . . . consider whether the defendant merits a grant of probation in those cases where a one-year term of local confinement seems inappropriately brief and a prison commitment unduly harsh." (Bailey, supra, 140 Cal.App.3d at p. 831, italics added.)
Here, Emanuel was convicted of first degree murder and faced a prison sentence of 25 years to life. He was also probation eligible. Emanuel stated his willingness to waive section 19.2 and requested he be granted probation with a county jail sentence "somewhere in the area of ten years or more." The trial court "concur[red] with the People that this is an all or nothing proposition with respect to [Emanuel]. Either he is sentenced to probation and one year in county jail or he is sentenced to 25 to life." The trial court also stated it was "not sure that [section] 19.2 can be waived," and it believed "this is a prison case, but it's black and white." The trial court observed that while "this situation was a tragedy for all concerned," the robbery was planned, "[t]he results [were] horrible" and "predictably tragic," and Emanuel did not endeavor to help the victim or seek aid for him after he left the scene. The trial court determined that one year in county jail was "not enough," weighed the criteria under California Rules of Court, rules 4.414 and 4.421, stated that "it does not believe probation is appropriate," and sentenced Emanuel to 25 years to life in prison.
Bailey is inapplicable because nothing in the record suggests that the trial court determined that "a prison commitment [would be] unduly harsh." (Bailey, supra, 140 Cal.App.3d at p. 831.) Moreover, although the record indicates that the trial court believed it could not sentence defendant to more than one year in county jail as a condition of probation even if section 19.2 were waived, the record also shows that the court concluded a prison sentence was appropriate under the California Rules of Court.
Further, I believe the separation of powers doctrine and section 12 precluded the trial court's imposition of defendant's requested 10- to 12-year jail sentence given the court's determination that this was "a prison case." The legislative branch defines crimes and prescribes punishments. (In re Foss (1974) 10 Cal.3d 910, 917, overruled on another ground in People v. White (1976) 16 Cal.3d 791, 796, fn. 3; People v. Navarro (1972) 7 Cal.3d 248, 258; see also Harmelin v. Michigan (1991) 501 U.S. 957, 998.) "It is well settled that the sentencing court has no inherent authority to devise ad hoc penalties for crimes." (People v. Montano (1992) 6 Cal.App.4th 118, 123, superceded by statute on another point.) "The definition and classification of public offenses and the punishment therefor are legislative matters. [Citations.] If charges have not been dismissed pursuant to the authority granted by the Legislature, the court must pass sentence as prescribed by statute [citation] and may not impose any sentence other than that prescribed." (People v. Sidener (1962) 58 Cal.2d 645, 649-650, overruled on another ground in People v. Tenorio (1970) 3 Cal.3d 89, 91, 95.)
Section 12 mandates that "[t]he several sections of this code which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the court authorized to pass sentence, to determine and impose the punishment prescribed." Thus, "[a] sentencing court has no discretion to deviate from the punishment prescribed by statute." (People v. Lara (1984) 155 Cal.App.3d 570, 574; see also In re Sandel (1966) 64 Cal.2d 412, 415 ["[u]pon conviction it is the duty of the court to pass sentence on the defendant and impose the punishment prescribed"].)
By finding an abuse of discretion on this record, where the trial court determined state prison was warranted, the majority authorizes trial courts to fashion county jail sentences in lengths of their choosing in every case with a probation-eligible defendant, so long as the defendant waives section 19.2 and the court's chosen sentence is below the statutory maximum.
While the majority states that Bailey has been "cited with approval by other courts," each of the referenced cases is distinguishable. (Maj. opn., p. 71, citing People v. Burks (1998) 66 Cal.App.4th 232, 234 (Burks), People v. Ambrose (1992) 7 Cal.App.4th 1917, 1924 (Ambrose), and People v. Otterstein (1987) 189 Cal.App.3d 1548, 1551 (Otterstein).) In Burks, the court held that "when a defendant agrees to waive custody credits after violating probation, the waived credits may not be recaptured when probation is violated again, unless the agreement expressly reserves that right." (Burks, supra, at p. 234.) In Ambrose, the court determined that the trial court did not err when it required the defendant to waive the right to future custody credit for the time spent in a residential treatment program as a condition of probation. (Ambrose, supra, at p. 1920.) Finally, in Otterstein, the court concluded that the defendant could be lawfully sentenced to three years in prison for the crime of battery with serious bodily injury plus an additional three years for a great bodily injury enhancement, despite the statutory prohibition against the enhancement's application where the infliction of great bodily injury is an element of the offense, based on the terms of his plea agreement. (Otterstein, supra, at pp. 1550-1552.) None of these cases addresses the issue presented here: whether a defendant's waiver of section 19.2 permits a trial court to sentence a probation-eligible defendant to a county jail term in excess of one year absent the court's determination that a prison sentence would be "unduly harsh" or is otherwise unwarranted. (Bailey, supra, 140 Cal.App.3d at p. 831.)
I fully support trial courts' discretion to formulate fair and equitable sentences within the confines of the law. For example, trial courts routinely accept waivers of section 2900.5 custody credits in order to reinstate probation on the condition that the offender serve additional jail time. (People v. Salazar (1994) 29 Cal.App.4th 1550, 1553.) A trial court may also accept a defendant's waiver of section 2900.5 credits "for past and future days in custody" in order to condition probation on the completion of a residential treatment program. (People v. Johnson (2002) 28 Cal.4th 1050, 1055; see id. at pp. 1054-1055.) However, I believe that Bailey applies, if at all, only where a trial court finds that a prison sentence is not warranted.
For the reasons stated above, I conclude that the trial court properly exercised its discretion when it determined this was "a prison case," denied Emanuel probation, and imposed the statutorily prescribed sentence of 25 years to life in prison. I respectfully invite the California Supreme Court to provide guidance on the very important issues raised by Bailey, namely, whether section 19.2 can be waived and, if so, under what circumstances a trial court may sentence a defendant to probation with a county jail term in excess of one year.
/s/_________
BAMATTRE-MANOUKIAN, J.