Opinion
F083610
07-12-2023
THE PEOPLE, Plaintiff and Respondent, v. JULIO JAY GARAY, Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County, No. MCR067092 Dale J. Blea, Judge.
Richard M. Oberto for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SNAUFFER, J.
In this especially tragic domestic violence case, appellant Julio Jay Garay sat parked in a borrowed pickup truck waiting for his estranged wife Calley and their young children to come out after a medical appointment. As Calley was securing the children in their car seats in the rear of a minivan, Garay got out, ran towards her, and began shooting into the van, hitting Calley seven times and killing her. E.D., an aide at the domestic violence shelter where Calley was then living, was sitting in the driver's seat while Garay repeatedly shot into the van, but miraculously both she and the three children were physically uninjured.
Although Calley shared her married surname with appellant and two of his testifying adult children, we refer to everyone other than appellant Garay by their given names to avoid confusion.
A jury convicted Garay of willful, deliberate, and premeditated first degree murder (Pen. Code, §§ 187, subd. (a) &189, subd. (a); count 1) and found it was committed by means of lying in wait (§ 190.2, subd. (a)(15)). He was also convicted of assaulting E.D. with a semi-automatic firearm (§ 245, subd. (b); count 2), and three counts of child endangerment and abuse (§ 273a, subd. (a); counts 3, 4, and 5). As to the murder, the jury found two enhancing allegations true: Garay intentionally discharged a firearm that caused great bodily injury or death (§ 12022.53, subd. (d)); and he personally used a firearm in the commission of a felony (§ 12022.5, subd. (a)). On the aggravated assault charged in count 2, a similar section 12022.5, subdivision (a) gun-use enhancement was also found true.
All undesignated statutory references are to the Penal Code.
The jury verdict forms for both section 12022.5, subdivision (a) enhancement findings instead refer to section "12022.5(a)(1)," as does the Probation Officer's Report. There is no such subdivision. Even so, we find no prejudice to Garay because the information correctly charged the section, as did the felony complaint, the holding order after the preliminary hearing, and the superior court's docket entries. However, the trial court's oral pronouncement of judgment and the determinate and indeterminate abstracts of judgment also repeat this error. We shall modify the judgment to correct these clerical errors and, upon issuance of the remittitur, direct the superior court clerk to prepare amended abstracts of judgment accordingly. (See § 1259.) Although it may seem to be of minor significance here, in a future case such an error may not be harmless. Prudent lawyers would be well-advised to prepare and read their proposed verdict forms more carefully.
On the murder, the trial court sentenced Garay to life without the possibility of parole (§§ 190, subd. (a) &190.2, subd. (a)), plus a consecutive indeterminate 25 years to life for the section 12022.53, subdivision (d) enhancement. A determinate 10-year term for the section 12022.5, subdivision (a) enhancement was imposed and stayed under section 654. For the aggravated assault on E.D., the court imposed a consecutive upperterm determinate-sentence of nine years and a stayed determinate 10-year term for the section 12022.5, subdivision (a) enhancement. Finally, for the three child abuse convictions, the court imposed three concurrent upper-term sentences of six years each.
Garay appeals, claiming:
(1) The trial court prejudicially erred by denying his request to excuse three jurors for misconduct;
(2) In the alternative, the court prejudicially erred by denying his related motion for a mistrial based on the alleged jury misconduct; and
(3) The court erred by imposing sentences for both the section 12022.53, subdivision (d) and the section 12022.5, subdivision (a) gun-use enhancements on the murder conviction. Instead, he contends the latter enhancement should have been stricken, not imposed and stayed.
FACTS
Because the underlying facts are not in dispute and Garay's appellate claims only involve the jury misconduct issues and his ultimate sentence, we need not lay them out in great detail. Nonetheless, we do so in the light most favorable to the judgment. (People v. Curl (2009) 46 Cal.4th 339, 342, fn. 3.)
Calley suffered almost eight years of extreme physical and emotional abuse from Garay until June 2020, when she and her three small children finally escaped and found refuge in a secure and confidential domestic violence shelter in Madera.
At the time, the children were ages six, four and one.
On July 6, 2020, Calley attended a related court hearing where the judge denied Garay visitation with the children. Afterward, Garay eyed Calley and began tapping his boot on the floor, which indicated to her that he was not pleased with her disobedience.
In what ended up being a horrific mistake, on July 13, 2020, a staff member at a local medical clinic called Calley's old phone number to confirm an appointment for 1:15 p.m. the following day. A man who identified himself as Calley's husband answered, said she was not there, but offered to take a message to remind her of when and where the appointment was.
In 2021, both houses of the Legislature unanimously enacted and the Governor approved "Calley's Law" in Calley's memory and to help provide additional protection for domestic violence victims and their children from having their records and information revealed to persons restrained by a domestic violence restraining order as Garay was here. (Stats. 2021, Ch. 129, § 1 ["This act shall be known and may be cited as Calley's Law."], enacting Fam. Code, § 6323.5.) At sentencing, the trial court recognized the newly enacted Calley's Law, and expressed its frustration that it was too late for Calley herself.
Early the next morning, Garay borrowed a pickup truck from a friend, which Garay returned to him later that same evening. A technician who worked in a business next to the clinic said that when he went on his morning break between 10:00 and 10:45 a.m. he noticed a man sitting in a parked pickup truck near the clinic. When he returned from his break at about 11:05 a.m., the man was still there.
At about 1:00 p.m., E.D., an aide at the shelter, drove Calley and the children to the clinic in a shelter-owned van. Following her appointment, Calley returned to the van and began to secure the children in their car seats in the rear of the van. E.D. said that a man then drove up, jumped out of a pickup, and ran towards the van. Calley turned, cried "No!," and the man shot her. Looking over her right shoulder from the driver's seat, E.D. froze, fearing she too would be shot as the man came closer and continued to fire more shots into Calley as she lay dying on the floor of the van.
The forensic pathologist testified seven individual gunshot wounds caused Calley's death.
When the shooter got back in the pickup and began to drive away, E.D. tried to get his license plate number, but the truck had no plates.
Surveillance video taken from the clinic's cameras recorded the shooting. A local police detective who had known Garay for 35 years identified Garay as the shooter in the video. Although he later recanted at trial, Garay's adult son Julio, Jr. also identified his father as the shooter when police showed him the video.
While he was shooting Calley, Garay leaned on and touched a window on the side of the van. Fingerprints and a palm print taken from the window were identified as Garay's. Degraded DNA found on the window was inconclusive, although Garay could not be eliminated as the source.
Later that same night, Garay was arrested at a motel three hours away in the small town of Marina in Monterey County. On the trip back to Madera, Garay told police that he knew they would eventually find him by tracking his cellphone. He was right; they did.
The next day, Garay's friend called police after he saw a news story about a murder involving the truck he had lent to Garay. When shown the surveillance footage depicting the murder, he identified the pickup as his. The friend said he found a pair of binoculars in the truck that did not belong to him, and that the screws holding his license plates were loosely attached after the truck was returned, which was unusual.
In the defense case, Garay's adult son Brandon and daughter Amanda both claimed they had never seen Garay abuse Calley or ever heard Calley complain of abuse. The parties stipulated that M.F., who was in the parking lot at the time and also witnessed the shooting, would testify that he was "not able to state that the person pictured in the [Madera Police Department's] Facebook post [after Garay's arrest] was the person he observed driving the white pickup truck or not." Garay chose not to testify.
DISCUSSION
I. The Defense Motion to Excuse Three Jurors
Garay first contends the trial court prejudicially erred by denying his motion to excuse Juror Nos. 2, 6, and 9 for misconduct. We have carefully reviewed the relevant record and are not persuaded.
The trial court initially empaneled 12 jurors and six alternates. During trial, alternate Juror No. 14 was excused due to illness and Juror No. 18 took her place. Towards the end of the trial, alternate Juror No. 13 was also excused, although no one formally took his place in that seat. That left the original 12 jurors and four alternates. In our discussion, we refer to them by their ultimate seat numbers: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, and 17.
A. Additional Background
i. Juror No. 15
After the prosecution rested but before the defense began its case, the trial court informed the parties that an alternate juror had reported that one of the other jurors had described defense counsel as "slick" but that there was so much evidence against Garay - including the video and fingerprint evidence - that he could not "possibly get off." The court explained it would question the alternate juror about what she had heard and that if a juror had violated the court's repeated admonitions not to express any opinions or to communicate about the case, then the court would excuse any such juror.
The court then proceeded to individually question the jurors. Juror No. 15, the alternate juror in question, was first:
"Juror No.15: Well, first off, I was reticent to say anything, but I - I know, it is my duty to[,] so I did. We have a juror, one of the twelve [sitting jurors], that has been very vocal about the defense attorney in a derogatory way, has questioned why we even need to continue with the defense because - even though this juror has never said that the defendant is guilty, he has said things like, 'There is so much evidence,' and 'It is so overwhelming, why even bother,' those kind of statements. [¶] So yesterday, he was going on and on and on, and I - I spoke up and said, 'I don't think you should even be saying any of those things.' So ...
"The Court: Did this juror say anything else?
"Juror No. 15: Yeah, he is always - he is always talking.
"The Court: I mean, specifically about the trial or . the participants in the trial?
"Juror No. 15: Well, he has a lot to say about the defense attorney that is very unkind. As I said, he never said the defendant - he never has come right out and said he is guilty, but everything else, he skirts around it, let's [sic] everyone know his mind is already made up without hearing evidence from the defense, and everyone deserves a defense, so we shouldn't be saying anything about it. [¶] And I am just an alternate, so - I mean, that is why I was reticent to even say anything because I'm probably not going to be involved in the trial anyway."
Juror No. 15 added that "[t]here is a group of four jurors that always congregate together and have these kind of conversations." "And they all, kind of, seem to be on that same boat. That is just my opinion. That is not a fact. I think it is unfair. I think it is unfair to the defendant. And actually, I think it is unfair to the People because this could actually change the entire thing, and it could be a mistrial because of that kind of conversation so it should not be happening." (Italics added.)
Juror No. 8 was soon identified as the chattering juror in question. When asked about the other three members of this so-called "group of four," Juror No. 15 described one of them as a man with a "big Santa Claus beard" and said that each of the supposed group was a generally older man in a" 'good ole boy' network." She emphasized that none of the comments she had heard would influence the way she viewed the evidence and that she felt she could still be fair to both parties.
When asked how long these types of statements had been going on, Juror No. 15 said they started "last week," but "were so blatant yesterday that . I finally spoke up to [Juror No. 8] and said, 'You need to stop talking like that,'" She added that when she told him that, "a couple other jurors said, 'I was just thinking the same thing,'" and added that "they were doing it this morning ... all four together this morning doing it."
ii. Juror No. 8
The court then examined Juror No. 8 and asked him about discussing the case with the other jurors. He said he "may . . . have talked a little bit about it, but, you know, nothing in general . . . but nothing specific." When asked what he may have said, he claimed: "Just, you know ... saying that they had their stuff together and all that. Just general conversation, nothing big." Asked whether he had expressed his opinion regarding the strength of the evidence, he claimed, "No, not really." When asked what that meant, he claimed, "I ... basically said . . . I think the evidence is good one way or the other, but no - no thought on how I'm going to express my vote." He denied having made up his mind or having expressed any opinions to anyone about the attorneys or the evidence that had been produced to that point.
When pressed, however, Juror No. 8 admitted that he had said that the prosecution's fingerprint expert "had his stuff together" based on his credentials and the "way he rounded them off." He still insisted he had not formed an opinion about the case, claiming, "I don't have an opinion. I haven't expressed one that I know of."
Juror No. 8 was excused and sent back to the jury assembly room. Soon after, the jury staff informed the court that when he returned to the jury assembly room, Juror No. 8 started talking about what had just happened at the in camera hearing. Without objection, the court excused Juror No. 8. Defense counsel remarked: "[W]e are either there or walking very close towards a mistrial at this point. I don't know who [Juror No. 8] is talking to downstairs and spreading rumors and lies . . .."
iii. Juror Nos. 2, 6, and 9
The court determined the "group of four" jurors that Juror No. 15 had mentioned also included Jurors 2, 6, and 9. Juror No. 8 had already been excused, so the court then individually inquired of the remaining three.
Juror No. 2 said he had not heard any jurors make comments about Garay, the attorneys, the witnesses, or the strength of the case. He said that he had heard a juror talk about "other cases . . . that he might have been to before," but it had "nothing to do with this case." He denied hearing anything that would cause him to feel "biased or influenced in evaluating the evidence in this case."
Juror No. 6 said he had not heard other jurors discuss the case or the witnesses, although he had heard a juror make an "off[-]hand comment" that one of the attorneys had hair that was "slicked down." He described the juror who made this remark as a "[h]eavyset" man in the front row, possibly Juror No. 2.
However, only Jurors 7 through 14 sat in the front row.
Juror No. 9 said he had heard Juror No. 8 "mumble" something to the effect of "grasping at straws" during testimony the day before. He added that he had said, "I liked that guy - like the professor's style," after the prosecution's fingerprint expert testified. He could not recall to whom he had made that remark, but noted that it "had nothing to do with what he was saying, the evidence or anything."
The court then moved on to the other jurors.
iv. Juror Nos. 1, 4, 12, 14, 16, and 17
Juror Nos. 1, 4, 12, 14, 16, and 17 all said they did not hear any jurors discuss the case or make any comments about the case.
v. Juror Nos. 3, 5, 7, 10, and 11
Juror No. 3 said he had heard "chuckles" after the fingerprint expert's peevish comment that he was trying to "dumb down" his testimony for the defense attorney's benefit, but nothing else.
At one point during cross-examination, the exasperated fingerprint expert lost his patience with defense counsel's repeated questioning why a computer could not do the expert's job, which the expert took offense to and denied, saying: "Okay .. I'm going to try and dumb this down a little bit." The court interrupted him, and the expert said: "My poor choice of words, I apologize. I'm trying ... to make this as simplistic as possible so we don't have to go back over this." The court agreed that it was "[a] much better way to put it," and the witness apologized the court.
Juror No. 5 said he overheard Juror No. 8 - while he was standing with a group of people - call defense counsel "slick" and remark that defense counsel seemed not to understand the fingerprint expert. When asked whether he had heard any jurors respond to Juror No. 8, Juror No. 5 said that an unspecified juror had said "You know we are not supposed to be ... talking about the case." He explained that he "was in the area, but not part of the discussion, but, you know I could tell [Juror No. 8 was] a very opinioned [sic] person," and that was why Juror No. 5 "shied away from [the] discussion." However, he said there was never "much of a back and forth conversation or anyone agreeing with [Juror No. 8], as far as I'm aware of." It was "mainly [Juror] Number 8 . . . talking about [defense] counsel."
Juror No. 7 also recalled hearing a juror say "something that was getting into some specifics of the case and another juror said, 'You know, we shouldn't be discussing this,' and I agreed with her." She admitted the culprit was Juror No. 8. She recalled it was "something about the fingerprints." When asked for more detail, Juror No. 7 said she was not really paying attention but thought that Juror No. 8's comment pertained to the fingerprint expert.
Juror No. 10 said she had heard two jurors, one of whom was Juror No. 8, briefly say that "[d]eliberations might be short." Although it was on different days, she said Juror No. 4 was the second juror to make this comment.
Juror No. 11 only recalled conversations among the jurors about the questions posed to them during voir dire, but nothing related to the case. However, while in a "group setting," one of the jurors had described Garay's friend who lent him his pickup truck as "lively," but nothing about what the witness had said.
vi. Further Examination of Juror Nos. 4, 6, 9, 10, and 15
The court wanted additional details and reexamined five of the jurors. Juror No. 4 returned and said he had heard an alternate juror ask whether the alternates would be held over for the deliberations. When asked if he had expressed any opinions about the case, Juror No. 4 explained that he lived in town, went home for lunch every day and, as the only smoker on the jury, he did not hear much of what the other jurors discussed because he usually went outside to smoke during the breaks. He said he had only communicated with Juror No. 8 when he said good morning or thank you after Juror No. 8 held the door open for him. He insisted he did not make any comments about the length of deliberations.
Juror No. 6 again said that one juror had made a comment that the defense attorney's "slicked down" hair was just like a typical defense attorney. The court and the parties agreed Juror No. 6 was referring to the ubiquitous Juror No. 8. Even so, Juror No. 6 said he was not involved in that conversation, and that Juror No. 8's comment was not directed at anyone in particular.
When re-examined, Juror No. 9 confirmed he had said he liked the fingerprint expert at some point after testimony. However, he said he had made the comment to himself, and he was unsure whether anyone had even heard it because no one responded. He also admitted he heard Juror No. 8 say something about "grasping at straws," but insisted that the comment did not influence him. He maintained he had not made up his mind about the case because he had not yet heard from the defense. When asked if any other juror's comments or actions had influenced him, he said, "No. I make up my own mind."
The court then re-questioned Juror No. 10, who confirmed she had heard Juror No. 8 and a different juror remark that the deliberations may be short, although the remarks were on different days. She said that as she was walking to her car one day after court, this other juror said something to the effect of "[d]eliberations will be short[,]" but she said "he followed it with 'but not like I'm talking about anything.'" Although Juror No. 10 could not identify this other juror, she believed he worked for the County. The court reviewed its jury selection notes and noted that Juror No. 4 worked for the City of Madera.
At that point, the court brought back Juror No. 15. She said Juror Nos. 2, 6, 8, and 9 usually sat together but that Juror No. 8 was "the most boisterous and vocal." However, she acknowledged she did not hear any comments she could specifically attribute to the other three. They were more "quiet[-]spoken," but she recalled one of them, although she could not remember whom, say "Yeah, right," as if in agreement, after Juror No. 8 had asked why the defense should even bother. She added that she heard Juror No. 8 make "those kind of comments" the previous week. She also now remembered that the day before, Juror No. 8 had said that "he wanted to see what [defense counsel] was going to pull out of his sleeve to . . . try to get [Garay] off." She insisted that Juror No. 8 was "just a very loud guy so people [could] hear him. I'm sure you interviewed everybody. I can't possibly be the only person that heard it." Nonetheless, based on what the other jurors said, she was.
vii. The Trial Court's Rulings
Defense counsel then moved to excuse four additional jurors: Juror Nos. 2, 4, 6, and 9. The court ruled:
"As for Juror Number 4 - Juror Number 10 was pretty adamant that there were two jurors who made statements that deliberations will be short - or may be short. The inference is that the evidence is such that it is not going to take long to reach a verdict. That was before the defense has had an opportunity to argue its case in chief - or present evidence in its case in chief. The concern that I have is being able to identify the juror who made the statement. She originally - Juror Number 10 indicated that it was - she believed it was Juror Number 4, described him as a slightly built Caucasian male with glasses. Juror Number 4 didn't appear to be slightly built. He is certainly not a large man, but he is a Caucasian male, and he does wear glasses. When she - when Juror Number 10 returned to the courtroom this afternoon, she further identified him as a person working for, I believe, she said, 'the County.' When I reviewed my notes from jury selection, it appeared that Juror Number 4 is a computer technician with the City of Madera.
"I don't like the inference that the deliberations will not take very long. There is a great deal of evidence to go through. I'm going to excuse Juror 4. Jurors 2, 6, and 9 were identified by Juror 15 as being part of the group that included Juror Number 8. I don't think that you can say that there is guilt by association. Juror Number 15 indicated this afternoon that - that Jurors 2, 8 - I'm sorry, 2, 6, and 9 were relatively quiet individuals. She didn't hear anything specifically from those jurors. They were just part of a group that Juror Number 8 associated with. Juror Number 9, this afternoon indicated that he really didn't associate with Juror Number 8, that 'only a couple of people did' was his - what he told us this afternoon. He really had no connection with [Juror No. 8] is what Juror Number 9 indicated.
"I don't believe there is enough to excuse [Juror No. 2], [Juror No. 6], or [Juror No. 9], simply because a juror says, Yeah, these four people were part of a group and one of those individuals was very boisterous and disobeyed the orders of the Court and the directions of the Court, I don't think that rises to the level of misconduct on the part of those other three jurors. They happen to be in the wrong place at the wrong time, and there is no indication that any of those jurors said anything, expressed any opinions.
"The jurors who did express opinions that 'Deliberations would be short' and all of the opinions expressed by Juror Number 8, those jurors are excused. So [Juror No. 4] and [Juror No. 8] are excused, and we will replace those jurors." Juror Nos. 14 and 17 were randomly selected to replace Juror Nos. 4 and 8.
Defense counsel then moved for a mistrial, which was denied, with the court concluding the motion was only "based in large part on speculation and [o]n conjecture."
B. Legal Background
In a criminal case, a defendant has an absolute right to be tried by an impartial and unbiased jury. (People v. Brooks (2017) 3 Cal.5th 1, 98 (Brooks); U.S. Const., Amends. VI &XIV; Cal. Const., art. I, § 16.) An impartial jury is one in which no juror has been improperly influenced, and every juror is capable and willing to decide the case based solely on the evidence presented at trial. (People v. Hensley (2014) 59 Cal.4th 788, 824.) "A deprivation of th[is] right can occur even if only one juror is biased." (Brooks, supra, 3 Cal.5th at p. 98.)
"Jurors 'conversing] among themselves, or with anyone else, ... on any subject connected with the trial' is juror misconduct. [Citation.] Juror misconduct' "raises a presumption of prejudice that may be rebutted by proof that no prejudice actually resulted."' [Citation.] A verdict must be reversed if the court '" 'finds a substantial likelihood'"' that the misconduct influenced the vote of one or more jurors. [Citation.] The presumption '" 'may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court's examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party.'"' [Citation.] The 'substantial likelihood' test is an objective standard." (People v. Jackson (2016) 1 Cal.5th 269, 332 (Jackson), italics added.)
" 'Our inquiry in this regard is a "mixed question of law and fact" subject to independent appellate review. [Citation.] But" '[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence.'" '" (Brooks, supra, 3 Cal.5th at p. 99.) In other words, "[w]e review a trial court's determination regarding juror bias for [an] abuse of discretion," (People v. Mataele (2022) 13 Cal.5th 372, 395 (Mataele)), and 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 (Williams).) However, whether prejudice arose from juror misconduct, "presents a mixed question of law and fact 'subject to an appellate court's independent determination.'" (People v. Tafoya (2007) 42 Cal.4th 147, 192 (Tafoya).)
The substantial likelihood test is both an objective and pragmatic standard that takes account of the" 'day-to-day realities of courtroom life'" and society's strong "interest in the stability of criminal verdicts." (In re Hamilton (1999) 20 Cal.4th 273, 296 (Hamilton).) It is "virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote." (Smith v. Phillips (1982) 455 U.S. 209, 217.) Jurors are not mindless automatons, shielded from their own humanity when thrust into their role as jurors. Indeed, that is the most fundamental precept of the Anglo-American jury system: a defendant is entitled to a trial by his or her peers, not by cloistered surrogates. Consequently," 'the criminal justice system must not be rendered impotent in quest of an ever-elusive perfection.... [Jurors] are imbued with human frailties as well as virtues. If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias.'" (Hamilton, supra, 20 Cal.4th at p. 296.)
"When a court is informed of allegations which, if proven true, would constitute good cause for a juror's removal, a hearing is required." (People v. Barnwell (2007) 41 Cal.4th 1038, 1051.)" 'A trial may proceed if the court, after considering factors such as the communication's nature, the jurors' responses, and the curative ability of instructions [citation], finds that the jury can (and will) remain impartial and render a verdict based solely on the evidence ..'" (People v. Harris (2008) 43 Cal.4th 1269, 1304 (Harris).)
Similarly, in determining whether a presumption of juror bias has been rebutted, a trial court may properly rely on the jurors' affirmations regarding their ability to maintain their impartiality. (Harris, supra, 43 Cal.4th at p. 1304.) Moreover, "[a]n admonition by the trial court may also dispel the presumption of prejudice arising from any misconduct." (Tafoya, supra, 42 Cal.4th at pp. 192-193.) Finally, jurors are generally presumed to follow the trial court's instructions to disregard any improper information. (People v. Zapien (1993) 4 Cal.4th 929, 996.)
C. Discussion
"We first determine whether there was any misconduct." (People v. Danks (2004) 32 Cal.4th 269, 302.) "If we conclude there was misconduct, we then consider whether the misconduct was prejudicial." (Id. at p. 303.)
There is no dispute here as to whether Juror No. 4 and Juror No. 8 committed misconduct. They did and they were properly excused. The question then moves to whether Jurors 2, 6, and 9 prematurely discussed the case with Juror No. 8, whether there was prejudicial misconduct on their part, and whether they too should have been excused.
After questioning all 14 remaining jurors, the trial court concluded that they either did not hear or simply ignored the two excused jurors and that nothing had affected their ability to be fair, impartial, and objective. As to Juror Nos. 2, 6, and 9 specifically, the court found that "[t]hey happen[ed] to be in the wrong place at the wrong time, and there is no indication that any of those jurors said anything, [or] expressed any opinions." These findings, which were based on the court's assessment of the credibility of all the jurors' responses to questions it posed to them, are supported by substantial evidence and nothing in the record demonstrates otherwise.
" '[A]ny presumption of prejudice is rebutted ... if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant.'" (People v. Stewart (2004) 33 Cal.4th 425, 510.) Accepting the court's credibility determinations as we must, finding its factual findings as substantially supported, and in light of the circumstances surrounding the misconduct and the record as a whole, we conclude there is no substantial likelihood that Juror Nos. 2, 6, or 9 themselves committed misconduct or that they were biased against Garay.
In his briefing, although he never actually states it as such, Garay seems to suggest that merely hearing another juror say something improper requires the listening or overhearing juror also to be excused for presumptive bias. That would entail that even if Juror No. 8 had been as loud and boisterous as Juror No. 15 claimed he was, all 16 of the other jurors should have been excused and Garay provides no authority for such a draconian remedy, especially in light of the other jurors' denials and reaffirmations of their duties, including at least one juror's apparent rebuke of Juror No. 8's blather. In any event, the trial court adequately inquired whether any of Juror No. 4's or Juror No. 8's comments had affected them in any way and, after assessing their answers and their credibility, it concluded they had not.
Any presumption of prejudice that resulted from Jurors No. 4 and 8's misconduct here was rebutted. Consequently, we reject Garay's contention that the trial court erred in denying his motion to excuse the additional three jurors. "In these circumstances, the trial court's decision not to dismiss the[se] juror[s] was not an abuse of discretion." (People v. Lopez (2018) 5 Cal.5th 339, 365 (Lopez); cf. Brooks, supra, 3 Cal.5th at p. 100.)
II. The Mistrial Motion
In the alternative, Garay claims the trial court erred by denying his mistrial motion because merely excusing Juror Nos. 4 and 8 was insufficient when Juror Nos. 2, 6, and 9 not only committed prejudicial misconduct by prejudging the case, but they had concealed their bias by "prevarication" and "endeavored to keep [their] bias hidden from the court" when they were examined. We again disagree.
A. Additional Facts
As discussed, after the trial court excluded Juror Nos. 4 and 8 and seated two new jurors, defense counsel moved for a mistrial because Juror No. 15 had said that an unknown juror had agreed with Juror No. 8 when he said something to the effect of "why should the defense bother" after the prosecutor rested his case. Thus, counsel argued, this unknown but apparently still-sitting juror had engaged in such pervasive misconduct that a mistrial was the only possible remedy.
The prosecutor acknowledged that Juror No. 15 had attributed certain comments to Juror No. 8, but he noted that she could not attribute any specific comments to any specific juror in Juror No. 8's so-called "group." Moreover, he argued that after questioning by the court, all the other jurors indicated that they could still be fair and impartial regardless of Juror No. 8's comments.
The court denied the mistrial motion, concluding that it was "based in large part on speculation and [o]n conjecture...."
B. Legal Background
A motion for a mistrial based on juror misconduct" 'should be granted only when" 'a party's chances of receiving a fair trial have been irreparably damaged.'" '" (People v. Bell (2019) 7 Cal.5th 70, 121 (Bell), italics added.)" 'We review a trial court's ruling on a mistrial motion for an abuse of discretion. [Citations.] A trial court should declare a mistrial only" 'if the court is apprised of prejudice that it judges incurable by admonition or instruction.'" [Citation.] "In making this assessment of incurable prejudice, a trial court has considerable discretion." '" (Ibid., italics added; see also People v. Johnson (2018) 6 Cal.5th 541, 581; People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 291-292.) Ultimately,"' "[w]hether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions." '" (People v. Lucero (2000) 23 Cal.4th 692, 714.) For the same reasons, "[t]he decision whether, and to what extent, investigation into possible juror bias is required' "rests within the sound discretion of the trial court." '" (Bell, supra, 7 Cal.5th at p. 120.)
C. Analysis
As discussed, the trial court questioned all the jurors about what they said, heard, or whether anything had affected their ability to remain unbiased. The court expressed its continuing concern that the other jurors remain impartial because of the incidents regarding Juror Nos. 4 and 8, and sought and received assurances from each of them that they remained undecided and unbiased.
Garay speculates that Juror Nos. 2, 6, and 9, and possibly others, were lying or dissembling when examined by the court. However, there is no substantial basis for that conclusion in the record. Moreover, to consider such a claim we would have to reweigh the evidence and reassess the individual jurors' trustworthiness when they were examined, which we cannot do. We must defer to the court's credibility determinations because it was in the best position to observe each of the jurors' demeanor and reliability. (Mataele, supra, 13 Cal.5th at p. 395.) We acknowledge that even though we do "not reweigh the evidence [we] 'must be confident that the trial court's conclusion[s] [are] manifestly supported by evidence on which the court actually relied.'" (Lopez, supra, 5 Cal.5th at p. 365.) We are.
As the trial court put it, Garay's "speculation" and "conjecture" did not require it to declare a mistrial. (Bell, supra, 7 Cal.5th at p. 120.) A juror's inability to perform his or her functions as a juror must appear as a" 'demonstrable reality'." (Williams, supra, 16 Cal.4th at p. 231, italics added.) We find nothing here to belie the trial court's conclusion that any possible bias on the part of the remaining 14 jurors was nothing more than speculation and conjecture, and was not a demonstrable reality. (See Lopez, supra, 5 Cal.5th at p. 365 [to warrant discharge, the juror's bias or other disability must appear "in the record" as a demonstrable reality, italics added]; see People v. Cochran (1998) 62 Cal.App.4th 826, 831 [statements by jurors, who knew victim's family members, that they could set aside this knowledge and fairly and impartially judge the case must be taken at "face value"]; cf. People v. McPeters (1992) 2 Cal.4th 1148, 1174-1175, superseded by statute on another ground as stated in People v. Boyce (2014) 59 Cal.4th 672, 707 [trial court did not err by refusing to dismiss juror who knew and "thought highly" of a witness because he affirmed his belief he could be fair and impartial].)
In sum, based on our examination of the entire record, we again conclude that after Juror Nos. 4 and 8 were excluded, and after the jurors were individually examined, repeatedly admonished after every break in the proceedings, and instructed thereafter, there is no substantial evidence that Garay's chances of receiving a fair trial had been irreparably damaged by any incurable prejudice. (Bell, supra, 7 Cal.5th at p. 121.) The trial court therefore did not abuse its discretion in also denying Garay's mistrial motion. (Jackson, supra, 1 Cal.5th at p. 334.)
Garay adds a claim that the denial of his mistrial motion violated his constitutional right to an impartial jury and a fair trial. However, no constitutional grounds were raised either in his mistrial motion or in an objection to the trial court's denial of that motion. "Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal. [Citations.] As the United States Supreme Court recognized in United States v. Olano [(1993) 507 U.S. 725, 731]' "[n]o procedural principle is more familiar to this Court than that a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." '" (In re Sheena K. (2007) 40 Cal.4th 875, 880-881.) To that extent, his newly minted constitutional claims were forfeited. Forfeiture notwithstanding, "[n]o separate constitutional discussion is required ... when rejection of a claim on the merits necessarily leads to rejection of any constitutional theory or 'gloss' raised for the first time [on appeal]." (People v. Scott (2011) 52 Cal.4th 452, 487, fn. 29; People v. Scott (2015) 61 Cal.4th 363, 394-395 [" 'Rejection of a claim on its merits necessarily disposes of the additional constitutional "gloss".' "]; People v. Loker (2008) 44 Cal.4th 691, 704, fn. 7; People v. Wallace (2008) 44 Cal.4th 1032, 1050, fn. 4.) Because we have resolved both Garay's jury impropriety claims against him on their merits, the additional constitutional claims must also fail.
III. The Two Firearm-Use Enhancements Imposed on the Murder Conviction
Lastly, Garay contends it was error for the trial court to impose sentences for both the section 12022.53, subdivision (d) and section 12022.5, subdivision (a) gun-use enhancements on his murder conviction. Instead, he insists section 12022.53, subdivision (f) required the court to strike, rather than stay, the section 12022.5, subdivision (a) enhancement. Not so.
As noted above, for the murder conviction the trial court sentenced Garay to life without the possibility of parole, plus a consecutive 25 years to life for the section 12022.53, subdivision (d) enhancement and a 10-year term for the section 12022.5, subdivision (a) enhancement, and it stayed the latter under section 654.
Garay relies on section 12022.53, subdivision (f), which provides in pertinent part: "Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An enhancement involving a firearm specified in Section ... 12022.5 ... shall not be imposed on a person in addition to an enhancement imposed pursuant to this section." (§ 12022.53, subd. (f), italics added.)
In People v. Gonzalez (2008) 43 Cal.4th 1118 (Gonzalez), however, our Supreme Court rejected this exact claim. (Id. at p. 1130.) In People v. Warner (2008) 166 Cal.App.4th 653, following Gonzalez, we too reached the same conclusion. (People v. Warner, at p. 659; see also People v. Alford (2010) 180 Cal.App.4th 1463, 1471 [the term" 'impose'" is "used loosely" in § 12022.53, subd. (f)].) In the intervening years, nothing has changed.
Thus, when construing section 12022.53, subdivision (f), the term "impose" "can mean impose and execute or impose and stay," and that "the proper way to handle multiplicative firearm enhancements is to impose sentence on each, and stay execution of sentence on all but one." (People v. Jones (2015) 236 Cal.App.4th 1411, 1417, fn. 6, italics added, citing Gonzalez, supra, 43 Cal.4th at pp. 1124-1130.)
In his reply brief, Garay argues that Gonzalez was "wrongly decided," although he did not mention the case in his opening brief. In any event, he must raise that contention in the Supreme Court, because we are bound by Gonzalez. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The trial court did not err by imposing both gun-use enhancements and staying the second under section 654.
DISPOSITION
The judgment is modified to impose and stay the 10-year sentence enhancements under section 12022.5, subdivision (a) on counts 1 and 2, and omit any references to section 12022.5, subdivision (a)(1). In all other respects the judgment is affirmed.
On issuance of the remittitur, the superior court clerk is directed to prepare amended abstracts of judgment correctly reflecting the section 12022.5, subdivision (a) enhancements, and forward certified copies to the Department of Corrections and Rehabilitation and any other necessary parties.
WE CONCUR: POOCHIGIAN, Acting P. J. DESANTOS, J.