Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. BA298800, Jose Sandoval, Judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson, Robert M. Snider, and E. Carlos Dominguez Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Appellant Jerome Canady was found guilty by jury verdict of second degree robbery. Two of his three arguments on appeal arose after the guilty verdict was entered but before the court commenced a bifurcated trial on his insanity defense and the prosecution’s prior conviction and prior prison time allegations. Appellant first argues the court erred in treating his request to discharge obtained counsel as a Marsden motion to discharge appointed counsel. Appellant also argues the court erred in failing to reconvene the jury to further deliberate his guilt after the court received a letter from Juror No. 9 stating that he gave a false guilty verdict. Appellant further argues the court erred in denying his motion for a new trial based on jury misconduct. We do not agree and affirm the conviction and true findings. Finally, appellant argues that one of the three prior prison enhancements must be stricken because the evidence showed he only served two separate prison terms within the meaning of Penal Code section 667.5, subdivision (b). Respondent concedes this issue but argues the court also erred in staying the three five-year prior serious felony conviction enhancements. We agree and remand the case with instructions to strike the one-year prior prison enhancement and to impose the three five-year prior conviction enhancements, to be served consecutively.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
All further statutory references are to the Penal Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of February 25, 2006, Joanne Kajiyama was at a gas station in Los Angeles. While she was pumping gas on the passenger side of the vehicle, appellant entered her vehicle through the driver’s side and grabbed her purse. Kajiyama reached for the purse but appellant ran away and she pursued him up over a fence. After continuing to chase appellant down an alley for a short while, Kajiyama stopped. At that time she heard a honk and turned around to see a truck driving in her direction. She evaded the truck and saw it chase appellant down the alley and out into the street. Attempting to evade the truck, appellant ran back towards Kayijama, returned the purse to her and continued running away from the truck.
Appellant was later apprehended and charged in an amended information with second degree robbery, in violation of section 211. It was alleged that he suffered three prior serious felony convictions within the meaning of section 667, subdivision (a)(1), and that he suffered 11 prior “strike” convictions within the meaning of sections 1170.12 and 667, subdivisions (b) through (i). It was further alleged that appellant had served three prior separate prison terms for those offenses.
Represented by private counsel, William McKinney, appellant pleaded not guilty and denied the enhancement allegations. Over a year later, on September 18, 2007, appellant entered a not guilty plea by reason of insanity in Department 100. The jury trial began on December 3, 2007, in Department 125. Kayijama and appellant testified at trial, giving largely consistent testimony concerning the incident. McKinney argued in closing that the facts supported a guilty verdict for petty theft, but not for second degree robbery.
On December 7, the jury returned a guilty verdict on the robbery charge. The court dismissed the jury but did not discharge them, informing them that they still had to rule on the enhancement allegations. Outside the presence of the jury, appellant notified the court for the first time that he had entered a not guilty plea by reason of insanity in Department 100 and had never withdrawn it. Accordingly, he requested trial on an insanity defense. The court ended the proceeding and stated the matter would be discussed the following Monday, December 10.
On December 10, McKinney told the court that he had previously advised appellant that insanity would not be a successful defense. McKinney believed they reached an agreement not to pursue the defense and was under the impression that a plea withdrawal was recorded in Department 100, but it was not. Counsel was not prepared to proceed on this issue, stating that “[a]ll things considered it might be more appropriate for [appellant] to have other counsel with regards to this insanity defense.”
During this discussion, the court informed the parties that it had received a letter from Juror No. 9 earlier in the day indicating that he had given a false guilty verdict. The juror wrote: “A few minutes later when polled in court, I stated that was my verdict, but it was not.”
The court ultimately granted appellant’s request for a trial on his insanity defense. The court called the jurors back into the courtroom and informed them that there would be a trial on appellant’s insanity defense and the enhancement allegations. The court ordered a recess until January 28, 2008. On January 14, appellant filed a motion for a new trial based on juror misconduct. The court addressed appellant’s motion when the proceedings resumed on January 28. The court denied the motion, finding that Juror No. 9’s actions did not constitute juror misconduct.
Appellant then requested a Marsden hearing. He made several complaints about his representation, including concern over McKinney’s stated unwillingness to pursue appellant’s insanity defense. The court denied the Marsden motion. Appellant then asked to represent himself for the remainder of trial. The court granted his request. Appellant asked for a continuance to prepare his insanity defense, but the court denied the request, finding it untimely. Appellant did not produce evidence that he suffered from mental illness on the day of the incident, and the court granted the prosecution’s section 1118 motion for a directed verdict on the insanity defense. The court proceeded with the trial on the priors allegations, and the jury found that appellant had suffered five prior felony convictions and served three prior prison terms for those convictions.
Appellant’s case was continued for several months to allow him to pursue a motion for a new trial. Appellant eventually obtained new counsel, Ronald White, who filed another motion for a new trial. Attorney White argued the motion in court on November 20, 2009, contending that the jury’s verdict was not complete at the time Juror No. 9 sought to withdraw his guilty verdict, and therefore, the court should have ordered the jury to further deliberate on the robbery charge. The court denied the new trial motion. It sentenced appellant to 25 years to life, and imposed but stayed all of the sentence enhancements. This timely appeal followed.
DISCUSSION
I
Appellant argues the directed verdict on his insanity defense and the true findings on the priors allegations must be vacated because the court erred in treating his implied request to discharge retained counsel as a Marsden motion.
As a preliminary matter, respondent contends that appellant did not adequately request that attorney McKinney be discharged. We do not agree.
Appellant requested a Marsden hearing on January 28, 2008. He lodged several complaints concerning attorney McKinney’s representation, stating that they had experienced a breakdown in communication. He also claimed McKinney was a witness to the robbery, thus influencing his representation. He then stated that McKinney told him that he was in possession of appellant’s medical records but that McKinney no longer possessed them. Appellant also claimed that he asked McKinney to file a Trombetta motion for the destruction of Kayijama’s purse. McKinney told appellant he had done so, but the motion was never heard. Finally, appellant claimed he personally interviewed the gas station attendant working on the day of the incident, who stated that he did not see any altercation between appellant and Kayijama. Appellant asked McKinney to call the gas station attendant as a witness but McKinney failed to do so. McKinney responded to the allegations, stating that he and a private investigator attempted to locate the witness but were unsuccessful. He admitted witnessing someone running away from the truck on the morning of the incident, but was unsure it was appellant at the time. Appellant never explicitly requested that counsel be replaced but reiterated that McKinney refused to continue with an insanity defense.
California v. Trombetta (1984) 467 U.S. 479.
The court denied the motion, finding that appellant’s allegations did not “reflect[] any lower standard of representation here.” The court concluded: “[Appellant] is free to appeal any post conviction on any claimed ineffective assistance of counsel for failure to call those witnesses and the effect that it may have had on his defense, but as regards [to] the Marsden motion, I’m going to deny the Marsden motion.” McKinney interjected: “[Appellant] has instructed me... that he doesn’t want me to participate anymore, to ask any questions of any of the witnesses that are going to be called by the people, so it puts me in a very bad position not to ask any questions that I think are probably relevant. But he’s requesting me as his attorney not to ask any questions.” The court stated McKinney was bound “not only by the attorney-client representation, but as an officer of the court, to offer the representation necessary for the limited purposes remaining in this trial. So we’re done on the Marsden motion.”
Appellant argues that while he never explicitly requested new counsel, he implicitly did so. We agree. People v. Lara (2001) 86 Cal.App.4th 139, is informative. In that case, when the court convened the trial proceedings, the defendant’s retained counsel immediately informed the court about a possible conflict between himself and his client. The prosecutor began to leave the courtroom in anticipation of a Marsden motion, but the court instructed the prosecutor to stay, and asked defendant’s counsel whether defendant was making a Marsden motion. (Id. at p. 157.) Defense counsel stated: “‘I don’t think [defendant] knows the name, but I have a feeling that is probably what it is.’” (Ibid.) The court asked defendant if he had “‘some question that you want the Court to respond to with regard to a disagreement between you and [counsel]?’” Defendant replied he did and the court conducted a closed Marsden hearing. Defendant stated that his counsel never spoke with him about the trial prior to that day and that they disagreed about certain witness strategies. (Id. at pp. 146-147.) The court found the conflict was a “‘tactical difference’” that did not constitute a fracture of the attorney-client relationship required under Marsden. (Id. at p. 148.) The trial proceeded and defendant was found guilty. (Ibid.)
On appeal, defendant argued the trial court erroneously handled his pretrial request to discharge his retained counsel as a Marsden motion. The appellate court first discussed whether defendant made such a request when he described the conflict between himself and counsel. The court held that while the trial court improperly conducted a Marsden hearing to discuss defendant’s retained counsel, “we may rely on the court’s factual interpretation of the situation as involving a request by appellant to discharge his defense attorney and obtain a new attorney to represent him in this matter. We thus conclude that appellant’s complaints about his defense counsel were sufficient to implicate his right to discharge his retained counsel, and either hire a new attorney or request the appointment of counsel.” (People v. Lara, supra, 86 Cal.App.4th at p. 158.)
Here, appellant affirmatively requested a Marsden hearing. He not only made numerous complaints about his dissatisfaction with McKinney’s representation but also expressed concern over McKinney’s unwillingness to pursue his insanity defense. McKinney himself expressed doubts as to whether he should continue to represent appellant in the insanity trial. The court held that appellant’s complaints did not rise to the level of attorney-client conflict necessary to sustain a Marsden hearing, and that any concern about McKinney’s willingness to pursue the insanity defense was mitigated by his obligation to effectively represent appellant. Moreover, when denying the Marsden motion, the court noted that appellant was free to pursue a post-trial ineffective counsel claim, further demonstrating that the court was evaluating a request to discharge McKinney, and not any other alternative motivation for a Marsden hearing.
Respondent cites People v. Lucky (1988) 45 Cal.3d 259, to support its contention that appellant did not effectively request the court to discharge McKinney. However, that case involved a court-appointed attorney and dealt with whether the trial court improperly refused to hold a Marsden hearing. Here, the court did conduct a Marsden hearing and evaluated appellant’s concerns. Thus, based on the rationale provided in People v. Lara, supra, 86 Cal.App.4th at page 158, we may rely on the court’s interpretation of the situation as involving an implicit request to discharge counsel.
Accordingly, appellant argues that the trial court never discussed timeliness when denying his Marsden motion, and therefore, the court erred in applying the Marsden standard to his request to replace privately obtained counsel. We do not agree.
A nonindigent criminal defendant has a due process right to discharge his retained attorney at any time, with or without cause. (People v. Ortiz (1990) 51 Cal.3d 975, 984 (Ortiz) [“While we do require an indigent criminal defendant who is seeking to substitute one appointed attorney for another to demonstrate either that the first appointed attorney is providing inadequate representation [citations], or that he and the attorney are embroiled in irreconcilable conflict [citation], we have never required a nonindigent criminal defendant to make such a showing in order to discharge his retained counsel.”].) However, a trial court may deny the request where it would significantly prejudice the defendant or if it is untimely and would result in an unreasonable “‘disruption of the orderly processes of justice.’” (Id. at p. 982.) When deciding whether to grant such a request, the court must balance the defendant’s interest in new counsel against the disruption that would result from the substitution. (People v. Turner (1992) 7 Cal.App.4th 913, 919.) In doing so, the court “must exercise its discretion reasonably: ‘a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.’” (Ortiz, supra, 51 Cal.3d at p. 984.) If such factors are not implicated in defendant’s motion to discharge his retained counsel, the trial court’s denial of defendant’s motion requires automatic reversal of the conviction. (Id. at p. 988.) On appeal, we do not balance the factors ourselves, even if the record would support a denial under Ortiz had the trial court considered the proper factors. (See People v. Hernandez (2006) 139 Cal.App.4th 101, 109 [“In this case, there appears to have been an adequate basis to deny appellant’s late request.... But... the trial court made no inquiry on the point and did not refer to it in its decision to deny appellant’s request. Instead, its decision appears to have been based entirely on the application of a Marsden analysis... [T]hat does not suffice in a case such as this, when the defendant is represented by retained counsel....”]; see also People v. Lara, supra, 86 Cal.App.4th at p. 163 [“[T]he prosecutor never objected to the supposed Marsden motion as being untimely. The trial court considered the supposed Marsden motion on its merits and did not make any findings as to the motion being untimely. We thus lack any factual findings that appellant’s motion was necessarily untimely or that it would have disrupted the orderly process of justice.”].)
Here, after the trial court denied appellant’s Marsden motion he asked to represent himself. The court initially denied the request as untimely, to which appellant responded that he was not asking for a continuance and was ready to proceed immediately. The court then granted the request, stating: “Based on current appellate authority, and based on the fact that you’re not asking for a continuance and you are ready to go right now, I think the court is in position to be required to permit you to represent yourself and we go forward right now.” Later, during the same proceeding, appellant said he was being forced to proceed with the trial. The court stated: “Your lawyer, Mr. McKinney, has had more than a month to get ready for a minimum trial on the insanity defense and priors. This is not an extensive case that requires tremendous discovery or anything.” Appellant persisted, arguing that he did not have the opportunity to conduct discovery on the insanity issue. The court responded: “Mr. McKinney had ample time... to prepare this. I gave the jury a month off.... There was an intervening discovery date that I set. I just wanted to make sure both counsel were okay. Both counsel signed off, said, yep, we are okay, we’re ready to go on the 28th. The jury is here, they’ve been here since 9:30, it is now 2:35. What can I tell you?” The court concluded: “[McKinney] had a month to do everything on this insanity plea, and I don’t see a basis for a continuance... A continuance is not going to give any information here that would be fruitful on these issues, as near as I understand it, based on everything that’s developed, and based on prior counsel, Mr. McKinney’s representation.”
Although the trial court did not discuss timeliness with respect to appellant’s Marsden motion, it did discuss it with respect to appellant’s request to represent himself and his request for a continuance to prepare his insanity defense. It can be assumed that a request to retain new counsel would have required a continuance as appellant gave no indication that he had already sought and obtained a replacement for McKinney, let alone that the replacement would be ready to proceed immediately. Therefore, the trial court’s discussion of a continuance with respect to appellant’s request for self-representation applies to his request for new counsel. The trial court discussed at length the reasons appellant’s request was untimely, stating that appellant and McKinney had over a month to prepare the insanity defense. The untimely nature of appellant’s request is accentuated by the fact that he did not raise the insanity defense until after the trial on his guilt was completed and the verdict was entered. The court also noted that appellant had an opportunity between December 7, 2007 and January 28, 2008 to request a continuance in court, but did not do so. Finally, the court expressed concern over the inconvenience a further delay would cause a jury that had already been asked to return to court over a month after rendering a guilty verdict. The court added that the jury had been waiting outside the courtroom for several hours. We conclude the trial court did discuss the timeliness of appellant’s request for a continuance, and therefore, did not err in rejecting his request to discharge retained counsel.
II
Appellant argues the court should have reconvened the jury to further deliberate his guilt after the court received a letter from Juror No. 9 stating that he gave a false verdict. We do not agree.
The jury’s guilty verdict was announced and read on a Friday. In taking the verdict, the court polled each juror to confirm that it was his or her own verdict. Every juror, including Juror No. 9, responded affirmatively. The following Monday, on December 10, the trial judge informed the parties in court that he had received a letter from Juror No. 9 earlier in the day in which that juror indicated he had given a false guilty verdict. The letter stated that throughout the deliberations Juror No. 9 insisted on a guilty verdict for petty theft, not second degree robbery, but that he ultimately relented due to perceived time constraints. The juror wrote: “A few minutes later when polled in court, I stated that was my verdict, but it was not.”
On January 14, appellant filed a motion for a new trial based on juror misconduct. The court addressed appellant’s motion when the proceedings resumed on January 28. The court found that Juror No. 9’s actions did not objectively constitute juror misconduct as “he was never coerced or pressured by the other jurors, ” and simply had “‘juror’s remorse.’” The court called in Juror No. 9 for a proceeding outside the presence of the rest of the jury. The court asked whether or not Juror No. 9 could fairly and impartially continue on the remaining portions of the trial. Juror No. 9 answered in the affirmative and the court asked him to rejoin the other jurors in the jury room.
“‘Every criminal defendant is entitled to a unanimous verdict. [Citations.] And to be valid a criminal verdict must express the independent judgment of each juror. [Citations].’” (See People v. Bento (1998) 65 Cal.App.4th 179, 186 (Bento).) As the Supreme Court stated in People v. Hendricks (1987) 43 Cal.3d 584, 597: “‘Once a “complete” verdict has been rendered per [section 1164]... and the jurors discharged, the trial court has no jurisdiction to reconvene the jury regardless of whether or not the jury is still under the court’s control [citation].’” However, a verdict is not complete if a juror dissents during polling (People v. Green (1995) 31 Cal.App.4th 1001, 1009-1010), the verdict does not resolve a count charged (People v. Hernandez (1985) 163 Cal.App.3d 645, 656-657), or the verdict does not make a required finding. (Gray v. Superior Court (1989) 214 Cal.App.3d 545, 549-552 [guilty verdict on murder charge incomplete when it did not specify degree of murder].)
Section 1163 provides: “When a verdict is rendered, and before it is recorded, the jury may be polled, at the request of either party, in which case they must be severally asked whether it is their verdict, and if any one answers in the negative, the jury must be sent out for further deliberation.” Section 1164 further provides: “(a) When the verdict given is receivable by the court, the clerk shall record it in full upon the minutes, and if requested by any party shall read it to the jury, and inquire of them whether it is their verdict. If any juror disagrees, the fact shall be entered upon the minutes and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury shall, subject to subdivision (b), be discharged from the case. [¶] (b) No jury shall be discharged until the court has verified on the record that the jury has either reached a verdict or has formally declared its inability to reach a verdict on all issues before it, including, but not limited to, the degree of the crime or crimes charged, and the truth of any alleged prior conviction whether in the same proceeding or in a bifurcated proceeding.” Sections 1163 and 1164, when read together, “describe a culminating formal procedure for verifying the unanimity of the jury in open court, and thus they define the moment of transition for when a juror may and may not withdraw his or her affirmation of the verdict.” (Bento, supra, 65 Cal.App.4th at p. 191.)
The facts here are similar to the factual situation in Bento, supra, 65 Cal.App.4th 179, which was decided by this court. In that case, defendants Bento and Johnson were charged with various crimes arising out of a gang shooting. (Id. at p. 187.) During trial, after four days of deliberations, the jury announced that it had reached a verdict on each count against Johnson, but only on counts 3 through 5 against Bento. The jury’s verdicts concerning Johnson were read in court. The jurors were polled and unanimously affirmed that the verdicts read were his or her own. The same was done for the verdicts on counts 3 through 5 against Bento. Minutes later, Juror No. 7 requested a conference with the trial court and disclosed that she was not sure beyond a reasonable doubt on counts 1 and 2 against Johnson. She stated she had been “‘going back and forth’” during polling and that she had thought the polling was on the verdicts against Bento. The trial court declined to reconvene the jury. (Ibid.)
On appeal, defendant Johnson argued that the verdicts were not complete because the jury was still obligated to resolve the remaining charges as to Bento. We first discussed whether the verdicts as to Johnson were complete under the meaning of section 1164. We found that “[h]ere, the verdicts resolved all requisite matters concerning Johnson, the jurors collectively and individually affirmed the verdicts in open court, and the trial court verified the verdicts and directed the clerk to record them. Throughout this sequence of events, the requirements of [sections 1163 and 1164] were followed in every detail, and the verdicts were free from procedural irregularities when recorded. The verdicts were therefore complete under section 1164.” (Bento, supra, 65 Cal.App.4th at p. 188.)
Noting that the trial court retained jurisdiction of the jury because it had not been discharged, we concluded that the trial court had the authority to reconvene the jury if it had chosen to do so. The question remained as to whether the trial court was required to reconvene the jury. (Bento, supra, 65 Cal.App.4th at p. 189.) This depended on whether the “‘last moment’ for a juror to express dissent expires when the verdict is complete, rather than when the trial court discharges the jury or otherwise loses its ability to shield the jury from outside influences.” (Id. at pp. 189-190.) Relying on federal cases and cases from other states, as well as the express language of sections 1163 and 1164, we concluded that “when, as here, the verdicts have been collectively and individually confirmed in open court pursuant to these sections and are complete in every detail, jurors are no longer empowered to dissent from the verdicts, and the trial court may not reconvene the jury for further deliberations on the basis of such dissent.... In this respect, sections 1163 and 1164 define the final moment of the jury’s deliberative process.” (Id. at p. 191.)
Here, the guilty verdict against appellant was read in open court, confirmed by all the jurors, and recorded three days before the court received Juror No. 9’s letter. Thus, the guilty verdict was complete pursuant to sections 1163 and 1164, and the moment for the jury to alter its verdict had passed by the time the court received the note the following Monday. Appellant argues the jury had yet to decide on appellant’s insanity defense or the prosecution’s allegations of prior convictions. Therefore, unlike in Bento, here the jury had not yet “resolved all requisite matters concerning” appellant when Juror No. 9 expressed his dissent. (Bento, supra, 65 Cal.App.4th at p. 188.) We find this distinction unavailing. Here, prior to receiving the note from Juror No. 9, the court bifurcated the guilt determination from the trial on the remaining issues, none of which related to whether appellant committed the charged offense. Thus, the jury’s verdict on appellant’s guilt stood alone. The other outstanding matters unrelated to guilt did not render the guilty verdict incomplete under sections 1163 and 1164.
Appellant relies on two cases in support of his position that the jury’s guilty verdict was incomplete because of the outstanding matters. Neither aids him. In People v. Kimbell (2008) 168 Cal.App.4th 904, the trial court discharged the jury after a verdict was entered on the underlying offense but before the bifurcated trial on the enhancement allegations began. (Id. at pp. 906-907.) Defendant argued that the court did not have jurisdiction to reconvene the jury, and therefore the sentence enhancements must be vacated. The appellate court affirmed the judgment, finding that while the court had verbally excused the jury, the jurors were still in the jury box. Thus, the jury had not been exposed to outside influences and was still under the control of the court. (Id. at p. 908.) Addressing the cases relied upon by defendant, the court stated: “In People v. Peavey [citation], after the verdict was received and recorded but the jury had not yet left the box, a juror indicated that she wanted to change her vote. The trial court properly found the verdict was complete within the meaning of [section 1164], and that it had no jurisdiction to reconvene the jury even though it retained control over it. [Citation.] Here, the verdict was incomplete, the jury was still within the court’s control and the court properly reconvened it.” The factual and procedural posture in People v. Kimbell is inapposite to the one presented here. The court in People v. Kimbell decided whether the court retained jurisdiction over the jury to try outstanding matters, not to allow the jury to change a verdict that had been entered and recorded.
Appellant also relies on People v. Lyons (1971) 18 Cal.App.3d 760. In that case, the defendant was charged with robbery and burglary, and pleaded not guilty by reason of insanity. The jury found defendant guilty as charged, but the insanity defense was never discussed. The trial court proceeded to impose a sentence. The appellate court vacated the sentence, finding: “It is well established that, where an insanity plea is joined with a plea of not guilty, the trial and the verdict are not complete, and the court cannot impose a sentence after a verdict of guilty until and unless the insanity issue is first tried and the defendant found to be sane at the time the offenses were committed.” (Id. at p. 780.) Again, the legal issue presented here is different from the one discussed in People v. Lyons, which did not involve a ruling on a complete verdict for the purposes of reconvening the jury for further deliberations.
Alternatively, appellant argues that the court erred in denying his motion for a new trial because of juror misconduct.
When ruling on a motion for a new trial based on jury misconduct, the trial court must conduct a three-step inquiry. (People v. Garcia (2001) 89 Cal.App.4th 1321, 1338.) “‘First, it must determine whether the affidavits supporting the motion are admissible. [Citation.] If the evidence is admissible, the trial court must determine whether the facts establish misconduct. [Citation.] Lastly, assuming misconduct, the trial court must determine whether the misconduct was prejudicial.’” (Ibid.) We review the court’s factual findings and credibility determinations for substantial evidence, but determine de novo whether any misconduct was prejudicial. (People v. Dykes (2009) 46 Cal.4th 731, 809.)
Evidence Code section 1150, subdivision (a) provides: “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or, conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly.” But, “no evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.” (Evid. Code, §1150, subd. (a).) Evidence of a jury’s “‘subjective collective mental process purporting to show how the verdict was reached’ is inadmissible to impeach a jury verdict.” (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1683.)
Here, Juror No. 9 wrote that he believed throughout the deliberation process that appellant was not guilty of robbery, and that he felt pressured by time constraints to conform to the verdict of the other jurors. It is undisputed that this portion of the letter is inadmissible under Evidence Code section 1150, subdivision (a). What remains is Juror No. 9’s statement that “‘[a] few minutes later when polled in court, I stated that was my verdict, but it was not.”’ Appellant argues that Juror No. 9 committed misconduct by lying to the court during polling. Nothing in the record supports the conclusion that Juror No. 9 actively misled the court when he was being polled. The trial court characterized Juror No. 9’s letter as a case of “‘juror remorse’” and found that the juror gave no indication that he was coerced into giving a false verdict. We believe the court’s factual finding is supported by the evidence and appellant presents no authority demonstrating that regretting or having second thoughts about a verdict constitutes prejudicial misconduct. (See People v. Sassounian (1986) 182 Cal.App.3d 361, 398 [conviction affirmed when a week after verdict was entered, trial court received note from juror asking to change her vote on special circumstance charge].)
III
Finally, appellant argues that one of three prior prison enhancements must be stricken because he only served two separate prison terms within the meaning of section 667.5, subdivision (b). Respondent concedes this point but also argues the court erred in staying the three five-year enhancements for prior serious felony convictions. We agree. Section 667, subdivision (a)(1), provides that “any person convicted of a serious felony who previously has been convicted of a serious felony... shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively.” (See also People v. Williams (2004) 34 Cal.4th 397, 405 [“[w]e conclude, that under the Three Strikes law, section 667(a) enhancements are to be applied individually to each count of a third strike sentence.”]; People v. Garcia (2008) 167 Cal.App.4th 1550, 1560.) Since the sentence as imposed is legally improper, partial reversal is required for its correction.
DISPOSITION
The conviction and true findings on the special allegation are affirmed and the judgment is affirmed in that regard. The case is reversed in part and remanded with instructions to strike the one-year prior prison enhancement and to impose three five-year prior serious felony convictions, to be served consecutively.
We concur: WILLHITE, J., MANELLA, J.