Opinion
G054239
08-23-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL NAYEF FARAG, Defendant and Appellant.
Belinda Escobosa Helzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16WF1345) OPINION Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed. Belinda Escobosa Helzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Michael Farag was convicted by jury of carrying a concealed dirk or dagger and possessing methamphetamine. On appeal, he contends the trial court erred by 1) denying his request for a mistrial after the jury may have been exposed to prejudicial information about him; 2) questioning the jurors about this issue in his absence; and 3) failing to give full and complete instructions on the weapons charge. Finding these contentions unmeritorious, we affirm the judgment.
FACTS
One afternoon, Police Officer Jesse Chartier noticed a pickup truck in the parking lot of a store in Costa Mesa. No one was near the truck, but because it matched the description of a vehicle the police were looking for, Chartier climbed onto the left front tire so he could get the VIN off the windshield. As he did so, he saw appellant approaching the area on foot. Appellant was wearing an untucked tank top that was hanging about six inches below the waistline of his shorts.
As appellant neared the truck, Chartier hopped down off the tire and asked him if the vehicle was his. After appellant said yes, Chartier visually scanned his waistline to see if he had any weapons. Seeing none, he had appellant take a seat on the curb. He then asked about weapons, and appellant said he had two knives, one in his pocket and one on his belt. Chartier had appellant stand up and placed his hands behind his back in preparation for a patdown search. At that point, Chartier still could not see the knife on appellant's belt. However, after seizing a pocket knife from appellant's right front pocket, he felt an object near the front of appellant's waistline. Upon lifting appellant's shirt, Chartier discovered the object was a five-inch, fixed blade knife. The knife was in a black sheath that was clipped to appellant's belt. While searching appellant, Chartier also discovered a small amount of methamphetamine inside his key chain holder.
Chartier arrested appellant and took him to the police station for questioning. After waiving his Miranda rights, appellant said he usually wears the fixed blade knife Chartier seized from him around his neck on a chain. However, the chain broke so he clipped the knife to his belt. When Chartier informed him it is illegal to carry a concealed weapon, appellant insisted, "I don't hide my knives, dude." But when Chartier told him the knife was not visible until he lifted up his shirt, appellant did not question this. In fact, he admitted his shirt may have been folded over the knife a "little bit."
Appellant was charged with carrying a concealed dirk or dagger, as well as possessing methamphetamine. The concealment charge was based on appellant's possession of the knife he had clipped to his belt. The only disputed issue at trial was whether the knife was actually concealed. On that point, appellant testified that although his shirt was not tucked in around his waist, it was tucked behind the knife, making it wholly visible to others. Appellant also took issue with Chartier's testimony that his shirt was hanging six inches below his waistline. While admitting his shirt was a little loose on him, he claimed it only came down to about his waist. To corroborate this claim, the defense played a videotape of appellant's patdown that was taken from the squad car of one of the backup officers who arrived on the scene. The video shows appellant's shirt hanging right around his waistline area.
As we have noted, appellant was also carrying a pocket knife. But it is not illegal to conceal a pocket knife on one's person so long as the blade is retracted. (Pen. Code, § 16470; In re George W. (1998) 68 Cal.App.4th 1208, 1214-1215.)
Speaking to that issue during his testimony, Chartier said that in the process of patting appellant down, he clutched appellant's shirt to make it easier for him to feel and see what he was carrying. Chartier suggested this may have affected how far down appellant's shirt was hanging in the videotape.
In the end, the jury convicted appellant as charged. After finding appellant had previously served time in prison, the trial court sentenced him to a three-year term, to be served in the Orange County jail.
DISCUSSION
Jury's Potential Exposure to Prejudicial Information
At the time of appellant's trial, he had another case pending that the jury was not supposed to know about. However, during a recess, the clerk of court mentioned the case while some of the jurors were in the courtroom. Appellant contends this warranted a mistrial, but upon questioning by the court, it became clear that none of the jurors had been exposed to prejudicial information about appellant. Thus, there was no basis for a mistrial.
The issue arose soon after the jurors were sworn in to hear the case. Because it was late in the day, the judge adjourned proceedings for the evening and told the jury to return the following morning for opening statements. While the jurors were filing out of the courtroom, the court clerk made a comment about appellant's other case. Having already left the courtroom, the judge did not hear the comment. However, he was immediately notified of it and promptly returned to the bench to discuss the matter with the parties.
Defense counsel said that after the proceedings were adjourned, he was gathering his things as the jurors were leaving the courtroom. The clerk then said to him something to the effect of, "Oh, yeah, we need to do something regarding his other case that is set for arraignment tomorrow." Because some of the jurors were still in the courtroom, defense counsel glared at the clerk to signal her to stop talking, and she did. However, defense counsel wasn't sure whether any of the jurors actually heard the comment, or what they understood from it.
Appellant told the judge that after commenting about his other case, the clerk offered up an apology. And as she was talking, a juror in the first row looked up and appeared to take note of what she was saying. In addition, there were several jurors in the row behind her who appeared to him to perk up their eyes and ears. Appellant said he was sure there were people in the jury box when the incident unfolded.
The court clerk also gave her version of events. Contrary to defense counsel's account, she said she never used the term "arraignment." Rather, she simply told defense counsel "we forgot to address . . . the other case from C5 - that's set for C5 tomorrow." Upon seeing defense counsel's reaction and realizing there were still some jurors in the courtroom, she then said, "Oh, my goodness. I'm sorry. I've never done that before and I apologize." At the time, there were two jurors walking out of the courtroom, and one juror was gathering her belongings in the jury box. However, that juror never looked up at the clerk or anyone else; she just picked up her things and walked out.
For her part, the prosecutor said she was not paying attention to the jury when the comment was made, but she agreed there were still a few jurors in the courtroom at that time. She also said, "I am very sure that the court clerk did not say 'arraignment,' but she did say, 'his other case in C5 tomorrow.' I remember that clearly."
In discussing the impact of the clerk's comment, defense counsel argued that if any of the jurors heard the comment and realized she was talking about appellant's other case, the court should discharge the jury and they should pick a new one. The judge agreed. He said that in order to determine what, if anything, the jurors heard, he was going to question them the following morning in chambers with counsel present. He said he intended to start out by asking the jurors in general terms if they had heard anything because he did not want "to plant seeds in anybody's mind." At that point, appellant chimed in and inquired whether simply asking that question would plant a seed of suspicion in the jurors' minds. Appellant urged the judge not to take a chance on that and to just start over with a new jury. The judge told him, "I'll probably get there, but I'm going to follow my steps." He then concluded the hearing.
The next morning, the judge met with counsel in chambers and solicited input from them about how to proceed and how to go about questioning the jury about the clerk's comment. Defense counsel's first suggestion was to "pick a new jury and not risk anything," which was tantamount to asking for a mistrial. His second suggestion was for the judge to talk to all of the jurors individually to find out if they heard anything, and then "see where it goes" from there. The judge took up the second suggestion. Believing it was premature to declare a mistrial, he decided to question the jurors one by one in his chambers with counsel present.
When the first juror was called in, the judge reminded him of his previous admonition that the jury was not allowed to receive any extrinsic evidence, meaning information outside of what happens "during the trial." Next, the judge asked, "[D]id you at any time hear any statements or anything outside of the courtroom related to this case or this defendant?" When the juror answered no, the judge thanked him and brought in the next juror.
The questioning of the remaining 12 jurors followed the same pattern. With each of the jurors, the judge reminded them of his previous admonishment regarding extrinsic evidence, and then he asked them if they had heard anything about appellant or the case. Because the judge did not commit the question to writing, he varied it slightly during the course of the questioning process. With the first juror, he asked if he heard anything "outside of the courtroom," and with the remaining jurors, he asked if they heard anything when the court was not "in session." No matter the phrasing, each of the jurors answered the question in the negative. Convinced none of them had heard the clerk's comment about appellant's other case, the judge denied appellant's request to pick a new jury and commenced the trial.
At the outset, the judge instructed the jurors, "Our system of justice requires that trial be conducted in open court with the parties presenting evidence and the judge deciding the law that applies to the case. It is unfair to the parties if you receive additional information from any other source because that information may be unreliable or irrelevant and the parties may not have had an opportunity to examine and respond to it. Your verdict must be based only on the evidence presented during the trial in this court and the law as I provide it to you." The judge also admonished the jurors to "disregard anything that you see or hear when the court is not in session" and to "not allow anything that happens outside of the courtroom to affect your decision unless I tell you otherwise." The judge spoke to these same points later on, when it instructed the jury at the close of evidence.
Appellant contends the clerk's comment about his other case warranted a mistrial because it suggested he was a repeat offender who had a propensity for criminal conduct. For the reasons explained below, we disagree.
"A defendant accused of a crime has a constitutional right to a trial by unbiased, impartial jurors. (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 16; [citations].)" (People v. Nesler (1997) 16 Cal.4th 561, 578.) "'"Because a defendant charged with a crime has a right to the unanimous verdict of 12 impartial jurors [citation], it is settled that a conviction cannot stand if even a single juror has been improperly influenced." [Citations.]' [Citations.]" (Ibid.)
It is also settled that "[w]hen a court perceives that the jury has been exposed to extraneous material, it is the court's duty to ascertain the nature of that evidence and its effect on the jurors's ability to deliberate impartially." (People v. Williams (1988) 44 Cal.3d 1127, 1156.) Although the trial court is required to investigate those issues, it has considerable discretion in terms of how to do so. (People v. Prieto (2003) 30 Cal.4th 226, 274.) Decisions pertaining to the manner in which the investigation is undertaken, like the court's ultimate decision to retain or discharge a juror, rest within the sound discretion of the court. (People v. Fuiava (2012) 53 Cal.4th 622, 702; People v. Ray (1996) 13 Cal.4th 313, 343.)
Obviously, if the court's investigation reveals that no one on the jury actually heard, saw or read the extrinsic evidence in question, the court's decision to retain the jury will not be disturbed on appeal. (See, e.g., United States v. Byrne (10th Cir. 1999) 171 F.3d 1231, 1236 [inadvertent submission to the jury of extrinsic material was not cause for reversal because during the court's investigation into the matter each of the jurors swore they did not read the material].) Even if the jury takes in information that was not part of the evidence admitted at trial, reversal is not always required. While there is a presumption of prejudice in that situation, the presumption is rebutted, and the verdict will not be set aside "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. [Citations.]" (In re Hamilton (1999) 20 Cal.4th 273, 296.)
In defending the court's decision not to declare a mistrial, respondent argues that even if some of the jurors did hear the clerk's comment, no prejudice would have arisen because they would not have understood she was talking about appellant's other case, as opposed to one of defense counsel's other cases with a different client. That's because under the clerk's version of events, she asked defense counsel about "the" other case in department C5. She did not ask defense counsel about "his," meaning appellant's, other case in that department. If this was the only evidence on this issue, respondent would have a stronger argument. However, according to defense counsel, the clerk asked about "his other case," an obvious reference to appellant's other case, and the prosecutor herself said she clearly remembered the clerk using that very same language. Considering the record as a whole, we cannot subscribe to respondent's position that "no juror would have understood the clerk's statement to have implicated appellant[.]"
Still, the trial court's decision to retain the jury was fundamentally sound because the record reveals that none of the jurors actually heard the clerk's comment. Appellant disagrees. In his view, the judge's questions to the jurors were "vague, confusing, and not tailored to uncover relevant facts to assess whether [he] was prejudiced by the [comment], and, if so, whether the prejudice was curable." However, despite being given ample opportunity to do so, defense counsel never voiced any concerns about how the questions were phrased. Rather, he sat by silently throughout the questioning process. Under these circumstances, appellant has no basis to complain about the effectiveness of the judge's questions. (People v. Pettie (2017) 16 Cal.App.5th 23, 79 [by not requesting a different course of action, the defendant forfeited his right to challenge the manner in which the trial court investigated the issue of juror bias].)
Moreover, we believe the judge's inquiry was reasonably designed to find out whether any of the jurors actually heard the clerk's comment. With respect to 12 of the 13 jurors questioned, the judge asked them if they heard anything about the case or appellant while the court was not "in session." Since the court was not in session when the clerk made the comment about appellant's other case, this phrasing alerted the jurors to the relevant time period without suggesting whether the comment reflected favorably or unfavorably upon appellant.
The only time the judge deviated from this phraseology is when he questioned Juror No. 160, the first juror to whom he spoke in chambers. Instead of asking that juror if he heard anything when the court was not in session, he asked him if he heard anything "outside of the courtroom." Since the clerk's comment occurred inside the courtroom, this was not, as respondent candidly admits, the best way to phrase the question. However, in questioning Juror No. 160, the judge also reminded him of his previous admonishment that the jury was not allowed to receive any information outside the trial, which would cover the clerk's comment about appellant's other case. This reminder provided valuable context and reasonably alerted Juror No. 160 to the relevant timeframe. Viewing the record as a whole, we are satisfied the judge investigated the issue adequately, and none of the jurors actually heard the clerk's comment about appellant's other case. There is substantial evidence in the record to support the judge's finding in that regard.
Even if we assumed otherwise, there would be no basis for reversal because even if one or more members of the jury understood the clerk was talking about appellant's other case, it is not substantially likely this affected their ability to be fair and impartial. Not only was the comment fleeting in nature, appellant admitted on cross-examination that he had previously suffered a felony conviction for resisting arrest. Thus, even had the comment not been made, the jury would have known appellant did not have a pristine criminal record at the time this case arose. (See In re Malone (1996) 12 Cal.4th 935, 964 [the presumption of prejudice arising from the jury's receipt of extrinsic evidence will be rebutted if the record shows such evidence was substantially the same as that presented at trial].) So the worst-case scenario here is that a juror or jurors knew appellant had had three run-ins with the law rather than two. That does not seem to be a substantial difference. In addition, the court repeatedly admonished the jury not to consider any extrinsic evidence in deciding the case. We presume the jury followed these instructions (People v. Waidla (2000) 22 Cal.4th 690, 725), which were sufficient to dispel any prejudice arising from the clerk's comment (People v. Pettie, supra, 16 Cal.App.5th at p. 78).
All told, we are satisfied the trial court took adequate measures to ensure the jury was fair and impartial. We do not believe the clerk's comment is cause for reversal.
Appellant's Absence from Juror Questioning
Appellant also asserts the trial court erred by excluding him from the in camera hearing during which the jurors were questioned about the clerk's comments. Again, we disagree.
A criminal defendant has the right to be present at all critical stages of his trial. (People v. Cunningham (2015) 61 Cal.4th 609, 633.) This right "'is guaranteed by the Sixth and Fourteenth Amendments of the federal Constitution, as well as by article I, section 15 of the California Constitution and by sections 977 and 1043 of the California Penal Code. [Citations.] A defendant, however, "does not have a right to be present at every hearing held in the course of a trial." [Citation.] A defendant's presence is required if it "bears a reasonable and substantial relation to his full opportunity to defend against the charges." [Citation.]' [Citations.] 'Sections 977 and 1043 do not require the defendant's presence, or a written waiver, unless that standard has been met. [Citations.]' [Citation.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1052.)
As a preliminary matter, the record is clear that appellant did not object to the court's decision to question the jurors in chambers without him being present. The court announced its intention to do so the previous day, while it was attempting to ascertain the factual basis for appellant's request to dismiss the jury. At that time, both appellant and his attorney were present and spoke to the court about the clerk's comment. However, neither one of them objected to the court's proposed course of action, which was to question the jurors "in camera with counsel present[.]" Nor did defense counsel object to appellant's absence the following morning when the questioning occurred. Under these circumstances, appellant has forfeited his right to challenge his exclusion from the hearing. (People v. Santos (2007) 147 Cal.App.4th 965, 972.)
Even if the issue had been preserved for purposes of appeal, appellant would not prevail on the merits. He contends his presence at the in camera hearing was imperative because, having personal knowledge of the event in question, he could have assisted his attorney and/or the court in ferreting out the issue of potential jury bias. However, the judge heard directly from appellant at the hearing the previous day. Not only was appellant allowed to give the judge a detailed factual account of what he perceived in the courtroom, he was also permitted to share his thoughts on how the judge should go about investigating the clerk's comment. Beyond that, we fail to see how appellant could have meaningfully contributed to the process. Therefore, his presence at the hearing was not required. (United States v. Gagnon (1985) 470 U.S. 522, 526-527 [in camera hearing to question a juror about potential bias was not a critical stage of the proceedings requiring the defendant's personal presence]; People v. Johnson (1993) 6 Cal.4th 1, 19 [same]; People v. Kelly (2007) 42 Cal.4th 763, 781-782 [holding similarly with respect to the questioning of prospective jurors].)
Moreover, assuming otherwise, the "[e]rroneous exclusion of the defendant is not structural error that is reversible per se, but trial error that is reversible only if the defendant proves prejudice." (People v. Perry (2006) 38 Cal.4th 302, 312, citing Rushen v. Spain (1983) 464 U.S. 114 and People v. Bradford (1997) 15 Cal.4th 1229, 1357; accord, People v. Johnson (2013) 221 Cal.App.4th 943, 949; People v. Santos, supra, 147 Cal.App.4th at p. 974.) The defendant must show his exclusion from the proceeding in question impaired his defense or infringed his fair trial rights. (People v. Bradford, supra, 15 Cal.4th at p. 1357; People v. Price (1991) 1 Cal.4th 324, 408.) Appellant has failed to make such a showing in this case. Indeed, because he had ample opportunity to address the court with regard to what he observed when the clerk commented about his other case, and because his attorney was present at the in camera hearing during which the jurors were questioned about the comment, we are convinced beyond a reasonable doubt that appellant's absence from the hearing was harmless. No cause for reversal has been shown.
Instructional Issue
Lastly, appellant contends the trial court erred in instructing the jury on the charge of carrying a concealed dirk or dagger. While conceding the offense is a general intent crime, appellant claims the instruction given was flawed because it did not require the jury to find that he knew the fixed blade knife in his possession was concealed. The claim is not well taken.
The subject offense is set forth in Penal Code section 21310. That provision states, "Except [in circumstances not present here], any person in this state who carries concealed upon the person any dirk or dagger is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170."
The trial court informed the jury that in order to prove appellant was guilty of violating that provision, the People had to establish he intentionally and knowingly carried a dirk or dagger on his person. In addition, the People had to prove it was substantially concealed and appellant knew it could readily be used as a stabbing weapon. (CALCRIM Nos. 250 & 2501.) The jury was also told a "knife carried in a sheath and worn openly suspended from the waist of the wearer is not concealed." (CALCRIM No. 2501.)
In People v. Rubalcava (2000) 23 Cal.4th 322 (Rubalcava), our Supreme Court held the crime of carrying a concealed dirk or dagger is a general intent offense because it does not require any intent or mental state beyond the willing commission of the proscribed act. (Id. at p. 328.) However, "to commit the offense, a defendant must still have the requisite guilty mind: that is, the defendant must knowingly and intentionally carry concealed upon his or her person an instrument 'that is capable of ready use as a stabbing weapon.' [Citation.]" (Id. at p. 332.)
Appellant takes that to mean the defendant must know the weapon is concealed. However, Rubalcava imposes no such requirement, and it would undermine the purpose of Penal Code section 21310 to read the statute in such a restrictive fashion.
The legislative intent behind Penal Code section 21310 is to protect people from the dangers associated with the concealment of weapons: "'If a weapon is not concealed, one may take notice of the weapon and its owner and govern oneself accordingly, but no such opportunity for cautious behavior or self-preservation exists for one encountering the bearer of a concealed weapon.' . . . [Citation.]" (People v. Mitchell (2012) 209 Cal.App.4th 1364, 1371.) These dangers exist regardless of the defendant's mental state. While Rubalcalva teaches the act leading to the concealment must be done knowingly and intentionally, meaning volitionally with knowledge the instrument in question can be used as a stabbing weapon, the knowledge requirement does not extend to the issue of concealment. (See People v. Mitchell, supra, 209 Cal.App.4th at pp. 1380-1382.) Instead, the law merely requires proof the defendant intentionally and knowingly carried a stabbing weapon that was in fact concealed. (Ibid.) Because the jury was properly instructed in that regard, appellant has no cause to complain. His instructional claim is without merit.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: IKOLA, J. THOMPSON, J.