Opinion
A147186
06-18-2018
THE PEOPLE, Plaintiff and Respondent, v. KHALIF HUDSON, et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-142506-5)
Defendants Khalif Hudson and Terrique Woods appeal their convictions, following a jury trial, for assault by force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)). We reject their arguments that the trial court erred in denying their Batson/Wheeler motions, admitting certain evidence, and instructing the jury. We agree with the contention that appellants, who were minors at least 16 years of age at the time of their offenses, are entitled to relief under the Public Safety and Rehabilitation Act of 2016 (Proposition 57). Accordingly, we will conditionally reverse the judgments and remand to the juvenile court for a determination of appellants' fitness for treatment within the juvenile justice system. (Welf. & Inst. Code, § 707.)
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
PROCEDURAL BACKGROUND
In 2014, appellants and a third co-defendant were charged by information with assault by force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). The information also alleged that appellants inflicted great bodily injury which caused the victim to become comatose due to a brain injury (id., § 12022.7, subd. (b)); appellants committed the crime for the benefit of a criminal street gang (id., § 186.22, subd. (b)(1)); and appellants were minors at least 16 years of age at the time of the offense (Welf. & Inst. Code, § 707).
Following trial, a jury convicted appellants of the assault count and found true the allegations that appellants were minors at least 16 years old at the time of the crime. The jury deadlocked on the additional allegations and the court declared a mistrial as to them. Subsequently, Hudson admitted an allegation that he personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)), and Woods admitted the gang enhancement allegation. The court sentenced Hudson to an aggregate term of six years in state prison, and sentenced Woods to a three-year term.
The third co-defendant was also convicted and sentenced. Because he is not a party to this appeal, we omit background facts relating to him except where relevant to appellants' appeal.
FACTUAL BACKGROUND
On August 8, 2014, 16-year-old Cyrus B. was assaulted and severely injured after a house party. Cyrus testified at trial, as did three other witnesses: Cyrus's friend Deshawn J., Deshawn's brother Deonta J., and another friend of Cyrus and Deshawn, Rodney N. Deshawn and Rodney testified they had been threatened and harassed because of their cooperation with police and the prosecution.
At some point during the party, Cyrus got into an argument. Cyrus testified he was arguing with someone named "Khalif" (Hudson's first name), who he knew from school. In police interviews after the incident, Cyrus identified Hudson in a photographic lineup as the person he had argued with. However, at trial, Cyrus testified the person he argued with was not present in the courtroom. Deshawn also testified that Cyrus argued with someone named Khalif.
Separately, an argument broke out between two girls. An adult shut down the party. Cyrus, Deshawn, Deonta, and Rodney walked outside, where a crowd had gathered in front of the house. About 10 to 15 girls were fighting and a group of boys was acting "rowdy." Several people were calling out the name of a gang. Cyrus testified someone named Edward hit him and he fell down. The next thing he remembered was waking up in the hospital.
Deshawn testified he heard Hudson tell Cyrus, " 'I want your head.' " Someone punched Cyrus multiple times while appellants and others stood nearby. Then Hudson picked up Cyrus and slammed his head onto the ground. Deshawn knew Hudson from elementary and middle school and unequivocally identified him at trial as the person who did this. After Hudson slammed his head, Cyrus lay on the ground and multiple people kicked him. At the preliminary hearing, Deshawn testified that Woods kicked Cyrus three or four times, although at trial he testified that he did not know if this person was present in court. After hearing someone had a gun, Deshawn left with Deonta.
When Deshawn initially talked to police, he did not provide the police with names because he did not want to "snitch." After talking to his mother, he told police Hudson was the person who slammed Cyrus's head and Woods was one of Cyrus's attackers.
Deonta testified that a heavy-set African-American male picked Cyrus up and dropped him on his head on the concrete, and several people kicked Cyrus while he lay on the ground. In court, Deonta did not identify either appellant as Cyrus's attackers. However, in police interviews, Deonta identified Woods as a participant in the assault.
Rodney testified someone punched Cyrus, and then a heavy-set person body-slammed Cyrus. Rodney was not sure whether the body-slammer was Hudson. About 10 people surrounded Cyrus and kicked him as he lay on the ground. Rodney, who had met Woods previously, testified Woods was one of the people kicking Cyrus. Rodney dragged Cyrus to a nearby house to try and get help. Some boys—including the heavy-set person who body-slammed Cyrus—followed them and began to punch Cyrus again. Rodney eventually flagged down a police officer.
Rodney gave police Woods's name on the night of the assault, identifying him as one of the attackers, and identified him in a photographic lineup soon after the assault.
The police officer at the scene testified Cyrus's eyes were rolling in the back of his head and he was not responsive to questions. The responding neurosurgeon testified Cyrus was critically injured and comatose when he reached the hospital. He was in the hospital for about a month and a half.
Police interviewed Hudson in September 2014. Hudson initially denied any involvement in the assault. Police then told him, falsely, that there was a video of the incident and they did not think he was being honest. Hudson changed his story, saying Cyrus had been pushed into Hudson's arms, and Hudson pushed him back off but did not slam him. A probation officer testified that she interviewed Hudson in 2012 in connection with a sustained juvenile petition for grand theft. In that case, the police report stated Hudson tackled the victim while an accomplice went through the victim's pockets. Hudson denied hitting or robbing the victim, and said the victim fell into him.
The participating detective testified about the interview and a video of the interview was played for the jury.
The defense presented an expert in human perception and memory, who testified about the unreliability of eyewitness identifications.
DISCUSSION
I. Batson/Wheeler
Appellants argue the trial court erred in denying two Batson/Wheeler motions. Specifically, appellants contend the court erred in finding the prosecutor's race-neutral reasons to be genuine. We affirm.
A. Legal Standard
"Both state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based on their race or membership in a cognizable group. [Citations.] A three-step inquiry governs the analysis of Batson/Wheeler claims. 'First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.' " (People v. Winbush (2017) 2 Cal.5th 402, 433 (Winbush).)
" 'At the third stage of the Wheeler/Batson inquiry, "the issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible." ' " (Winbush, supra, 2 Cal.5th at p. 434.) This step "focuses on the subjective genuineness of the reason, not the objective reasonableness. [Citation.] . . . . To assess credibility, the court may consider, ' "among other factors, the prosecutor's demeanor; . . . how reasonable, or how improbable, the explanations are; and . . . whether the proffered rationale has some basis in accepted trial strategy." ' [Citation.] To satisfy herself that an explanation is genuine, the presiding judge must make 'a sincere and reasoned attempt' to evaluate the prosecutor's justification, with consideration of the circumstances of the case known at that time, her knowledge of trial techniques, and her observations of the prosecutor's examination of panelists and exercise of for-cause and peremptory challenges. [Citation.] Justifications that are 'implausible or fantastic . . . may (and probably will) be found to be pretexts for purposeful discrimination.' [Citation.] We recognize that the trial court enjoys a relative advantage vis-à-vis reviewing courts, for it draws on its contemporaneous observations when assessing a prosecutor's credibility." (People v. Gutierrez (2017) 2 Cal.5th 1150, 1158-1159 (Gutierrez).)
" 'We review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges " 'with great restraint.' " [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal." (Winbush, supra, 2 Cal.5th at p. 434.)
B. Prospective Juror Dr. B.
1. Background
Prospective juror Dr. B. was a high school math and statistics teacher. He requested a hardship excusal because his students had an advanced placement test coming up. The trial court invited the parties to argue the merits of the hardship request. The People expressed no opinion. All defense counsel argued Dr. B. should be retained, and the trial court denied the hardship request.
The prosecutor subsequently exercised a peremptory challenge to excuse Dr. B. Appellants made a Batson/Wheeler objection. Dr. B. was the third African-American prospective juror peremptorily excused by the prosecution; the prosecutor had also excused eight white prospective jurors and one Hispanic prospective juror. The trial court found a prima facie case made, and the prosecutor offered the following explanation: "Dr. [B.] is a teacher of individuals who are of similar age to the defendants as well as the testifying witnesses," and "he is in a profession which the People believe [is] going to be biased towards its case in this particular set of facts." She noted the People previously excused three white prospective jurors who taught high school or middle school.
Appellants did not object to the first African-American prospective juror excused by the prosecution, who said the idea of judging minors was "upsetting" and "would be difficult." Appellants objected to the second excusal, which the trial court denied as discussed below. Appellants do not challenge this denial on appeal.
The trial court found the reason race-neutral and credible: "I credit her description of her reasons. It is a rational concern that one who teaches children or younger people of the same age of the defendants on a daily basis might tend to be more sympathetic towards the defendants in this case. [¶] . . . It is supported by her other challenges as described, of the other teachers, and I think it is the true reason she struck [Dr. B.]."
2. Analysis
As appellants do not dispute, "[o]ccupation can be a permissible, non-discriminatory reason for exercising a peremptory challenge." (People v. Rushing (2011) 197 Cal.App.4th 801, 811 (Rushing).)
Appellants argue that a "comparative juror analysis" demonstrates the excusal was racially motivated. "When a court undertakes comparative juror analysis, it engages in a comparison between, on the one hand, a challenged panelist, and on the other hand, similarly situated but unchallenged panelists who are not members of the challenged panelist's protected group." (Gutierrez, supra, 2 Cal.5th at p. 1173; see also Winbush, supra, 2 Cal.5th at p. 442 [" 'The rationale for comparative juror analysis is that a side-by-side comparison of a prospective juror struck by the prosecutor with a prospective juror accepted by the prosecutor may provide relevant circumstantial evidence of purposeful discrimination by the prosecutor.' "].) Appellants do not identify any non-African-American teachers who were accepted by the prosecutor. Instead, appellants' comparative analysis focuses on the three white prospective jurors who were also teachers, who the prosecutor also challenged. Appellants argue there were additional reasons the prosecutor might have had to excuse these prospective jurors—for example, one had a graduate degree in "transformative studies" which, appellants contend, "might fairly indicate someone with a liberal bias"—and therefore, appellants argue, Dr. B.'s profession could not have been the reason for his excusal. Even assuming there were additional reasons to excuse the three white teachers (an issue the People dispute), appellants cite no authority that such a scenario renders the prosecutor's reliance on Dr. B.'s occupation suspect.
Appellants also rely on the prosecutor's argument in response to appellants' Batson/Wheeler objection in connection with a previous African-American prospective juror excused by the People, Mr. R. (see fn. 6, ante). During argument on whether a prima facie case had been made, the prosecutor pointed to the fact that she had excused a number of white prospective jurors, and also noted "the juror who is slated to take Mr. [R.]'s seat is an African-American male, Dr. [B.]." The trial court commented it was "a very close call," but "err[ing] on the side of caution" found a prima facie case. In explaining her reason for excusing Mr. R., the prosecutor pointed to statements that he was very concerned about the voluntary nature of incriminating statements to law enforcement officers made by juveniles, which was a concern for the People because the three defendants had made statements to the police. In a reasoned analysis, the trial court found the reason race-neutral and credible. The court also noted "the People are accurate in stating that by excusing Mr. [R.], they're placing Dr. [B.], who is another African-American male, in Mr. [R.]'s chair, so that is another factor to consider in whether the purpose of the challenge is to eliminate African Americans." Appellants now contend: "Clearly, the prosecution knew all along that she intended to excuse Dr. [B.]" and this should have been a "red flag" to the trial court. The assertion is speculative and, moreover, was raised below and implicitly rejected by the trial court. "We . . . give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses." (Winbush, supra, 2 Cal.5th at p. 434.) Appellants fail to demonstrate error.
C. Prospective Juror Mr. A.
1. Background
Mr. A. worked for the United States Postal Service. The prosecution excused Mr. A. and appellants raised a Batson/Wheeler objection. The prosecutor offered the following explanation: "Mr. [A.] was excused because he's a United States [P]ostal [S]ervice worker. It's the same as the People used for peremptory challenge number 18 on a white female. [¶] And as the Court recalls I think early in jury deliberations the Court commented when we excused another letter carrier of, 'You know what they say about postal workers.' So it's for that reason that she's [sic] been excused."
The trial court found the prosecutor's explanation race neutral and genuine, reasoning the prosecutor "has excused other postal workers who are not African-American," and noting, "what I view to be two African-American ma[le]s have been on the jury for some period of time and [the prosecutor] has not challenged either of those two African-American[] ma[le]s."
One of the defense attorneys stated she was "not sure what the racial identity is" for one of the jurors identified by the trial court as African-American.
2. Analysis
Appellants argue the prosecutor relied on the fact that Mr. A. was a letter carrier, when in fact he was a dispatcher. However, as the background above makes clear, the prosecutor relied on Mr. A.'s employment with the United States Postal Service, not on any particular position. Although she referred to a previously-excused juror as "another letter carrier," the entirety of her explanation makes clear that her underlying concern was with Mr. A.'s employment as a postal worker.
Appellants rely on Gutierrez's statement, "when it is not self-evident why an advocate would harbor a concern, the question of whether a neutral explanation is genuine and made in good faith becomes more pressing." (Gutierrez, supra, 2 Cal.5th at p. 1171.) Our Supreme Court has previously considered the validity of postal employment as a reason to excuse a prospective juror and implicitly rejected the notion that such a reason is not "self-evident." In People v. Trinh (2014) 59 Cal.4th 216, "[t]he prosecutor . . . explained that N.V.'s occupation as a postal worker made him 'not the type of juror I would keep.' The trial court expressed doubt about the wisdom of using occupations to exclude jurors but indicated that in its experience both this prosecutor and others in fact did so—that is, that the proffered explanation was bona fide, not a pretext. This was the issue for the trial court, and for us—the genuineness of the proffered basis, not its validity as a means of identifying preferable jurors. [Citations.] Whether a prosecutor's generalizations about a given occupation have any basis in reality or not, a prosecutor 'surely . . . can challenge a potential juror whose occupation, in the prosecutor's subjective estimation, would not render him or her the best type of juror to sit on the case for which the jury is being selected.' " (Id. at p. 242; see also Rushing, supra, 197 Cal.App.4th at p. 812 ["Courts which have directly addressed the issue of exercising peremptory challenges against postal workers have viewed this as a race-neutral reason."].)
Finally, appellants argue there were additional reasons to excuse the white postal worker excused by the prosecution. As with appellants' challenge to Dr. B.'s excusal, this argument is unavailing.
II. Admission of Hudson's Prior Similar Excuse
Hudson argues the admission of evidence regarding a prior similar excuse was an abuse of discretion under Evidence Code section 352. We reject the challenge.
All undesignated section references are to the Evidence Code.
A. Background
As discussed in the factual background above, Hudson told the police (after being falsely told there was a video of the assault) that Cyrus had fallen into him. During trial, the prosecutor sought to impeach this statement with a statement Hudson made after he was apprehended for a previous robbery, that the victim in that case fell into him.
Hudson's trial counsel objected under section 352, arguing the probative value was small and it would result in a mini-trial. The trial court overruled the objection, reasoning: "The extraordinary coincidence of those two victims accidentally falling into Mr. Hudson's arms is in my view quite compelling and therefore quite probative. [¶] The odds of that happening on both occasions are somewhat between small and none, so I think the particularly strong probative value of the statement to the probation officer is relevant and admissible to prove Mr. Hudson uses this excuse to avoid culpability, uses this false excuse to avoid culpability." The court concluded, "the probative value does outweigh the added time it would take the probation officer to testify to this added fact, the claim that the victim fell into his arms."
At trial, a probation officer testified that in 2012, she prepared a probation report for Hudson in connection with a sustained petition of two counts of grand theft. According to the police report, appellant tackled the victim while his accomplice went through the victim's pockets. However, Hudson told the probation officer that the victim had fallen into Hudson. The probation officer also testified about other thefts alleged in the petition. A police officer who interviewed Hudson at the time testified that he denied any involvement. The victim testified that in 2011, a heavyset African American male and four or five others tried to rob him. The victim ran away but the heavyset man tackled him from behind, knocking him to the ground.
The trial court instructed the jury with CALCRIM No. 375, including the following: "evidence that defendant Khalif Hudson committed other offenses that were not charged in this case, but le[d] to a juvenile finding of Grant Theft from a person," may be considered "for the limited purpose of deciding whether or not the defendant's alleged actions were the result of mistake or accident. [¶] . . . [¶] Do not consider this evidence for any other purpose except for the limited purpose of determining the credibility of defendant Khalif Hudson's prior statements. [¶] Do not conclude from this evidence that defendant Hudson has a bad character or is disposed to commit crime."
B. Analysis
As an initial matter, to the extent Hudson contests the admissibility of the evidence, we reject the challenge. Section 1202 provides that "evidence offered to attack or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness at the hearing." Section 1101, subdivision (c), provides that prior misconduct is not inadmissible when "offered to support or attack the credibility of a witness."
Hudson's primary challenge is the evidence's admission constituted an abuse of discretion under section 352. As Hudson does not appear to contest, the evidence was highly probative. People v. Millwee (1998) 18 Cal.4th 96 (Millwee) is instructive on this point. During his trial for murder, the defendant testified his "gun misfired and killed [the victim] as the result of a sudden 'jolt' in his leg." (Id. at p. 129.) In its rebuttal case, the prosecution introduced impeachment evidence that the defendant provided a similar excuse for a previous shooting. (Id. at p. 115.) The California Supreme Court rejected the defendant's section 352 challenge. (Millwee, at p. 131.) The court found the evidence "highly probative" of the defendant's credibility: The "defendant sought to avoid responsibility for both shootings by offering the same innocent explanation in each case. He testified in each proceeding that he was thinking about selling the gun, that he was holding it oddly by the trigger, and that a sudden distraction caused the gun to shift and discharge in the direction of an unintended victim." (Ibid.)
Hudson argues Millwee is inapposite because, unlike the defendant in that case, Hudson did not testify and was therefore not a witness. This distinction is immaterial: Hudson's hearsay statement to the police was admitted, and section 1202 provides that a hearsay declarant can be impeached in the same manner as if the declarant testified at trial.
Hudson's primary argument is the evidence was so inflammatory that the prejudice outweighed the probative value. In particular, Hudson argues the 2011 victim's testimony about the assault and the probation officer's testimony that Hudson and his accomplices had been charged with other thefts was especially inflammatory. In Millwee, while the California Supreme Court emphasized that "disclosure of uncharged offenses can be highly prejudicial" and "trial courts should use particular care in performing this weighing analysis," it found the highly probative value of the prior excuse not outweighed by the potential for prejudice. (Millwee, supra, 18 Cal.4th at p. 131.) As in Millwee, "the jury was expressly told that such evidence had no bearing on defendant's character or disposition." (Ibid.) Moreover, the evidence was less inflammatory than the testimony about the charged offense: the 2011 victim testified the assailant "tackled" him by "shov[ing] me against the fence like with his shoulder", and the other thefts alleged in the petition were not violent. In contrast, Deshawn testified Hudson picked up Cyrus and slammed his head into concrete. "The potential for prejudice is decreased . . . when testimony describing the defendant's uncharged acts is no stronger or more inflammatory than the testimony concerning the charged offense." (People v. Tran (2011) 51 Cal.4th 1040, 1047; see also Millwee, at p. 131 ["the nonfatal [prior] incident was less inflammatory than the [charged] capital crime"].) The trial court did not abuse its discretion in admitting the evidence.
Hudson does not argue he raised any objection specifically targeting this additional testimony below, and he does not contend on appeal this evidence lacks probative value.
III. Response to Jury Question About Group Beating
Appellants challenge the trial court's response to a jury question about group beatings. We reject the claim.
A. Background
Before beginning deliberations, the jury was instructed on assault with force likely to produce great bodily injury under CALCRIM No. 875, including the following: "the People must prove that: [¶] 1A. The defendant did an act that by its nature would directly and probably result in the application of force to a person; and [¶] 1B. The force used was likely to produce great bodily injury; . . ."
The jury was also instructed on the great bodily injury enhancement under CALCRIM No. 3161. This instruction included the following: "If you conclude that more than one person assaulted Cyrus B[.] and you cannot decide which person caused which injury, you may conclude that a defendant personally inflicted great bodily injury on Mr. B[.] if the People have proved that: [¶] 1. Two or more people, acting at the same time, assaulted Cyrus B[.] and inflicted great bodily injury on him; [¶] 2. The defendant personally used physical force on Cyrus B[.] during the group assault; and [¶] 3A. The amount or type of physical force the defendant used on Cyrus B[.] was enough that it alone could have caused Mr. B[.] to suffer great bodily injury; [¶] OR [¶] 3B. The physical force that the defendant used on Cyrus B[.] was sufficient in combination with the force used by the others to cause Mr. B[.] to suffer great bodily injury. [¶] The defendant must have applied substantial force to Cyrus B[.] If that force could not have caused or contributed to the great bodily injury, then it was not substantial."
During deliberations, the jury submitted the following note: "Can you give us a ruling on group beating? If we know someone participates and GBI was result does this mean everyone that participates is guilty?" The trial court's response stated the portion of CALCRIM No. 3161 quoted above "provides you with the instruction on the law as it relates to a group beating. You must apply these instructions in deciding your findings as to each defendant individually. Please read this instruction in conjunction with all of the instructions I have given you." The minute order provides the court "respond[ed] to [the jury note] with approval of all counsel."
B. Analysis
As appellants do not dispute, the identified portion of CALCRIM No. 3161 is a correct statement of law regarding the great bodily injury enhancement. (People v. Dunkerson (2007) 155 Cal.App.4th 1413, 1417-1418.) They argue instead the trial court's response told the jury to apply CALCRIM No. 3161's provision that the force "could" have produced great bodily injury to the substantive assault count, which requires the force used be "likely" to cause great bodily injury, and therefore lowered the burden of proof for the assault conviction.
The People contend appellant forfeited the claim by failing to object below. Because, as discussed post, we reject the claim on the merits, we need not decide the forfeiture issue.
" ' " ' " '[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. . . .' " ' " ' [Citations.] Moreover if a jury instruction appears ambiguous, ' "we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction." [Citations.] . . . The reviewing court also must consider the arguments of counsel in assessing the probable impact of the instruction on the jury.' " (People v. Stone (2008) 160 Cal.App.4th 323, 331.)
Assuming the instruction is erroneous if applied to the substantive assault count, we find it not reasonably likely the jury so understood the instruction. First, we are not persuaded the jury question addressed the substantive assault count. Appellants rely exclusively on the note's use of the word "guilty," but a lay jury might well refer to a true finding on an enhancement as a guilty verdict. Moreover, the jury note asks about a group beating where "GBI was result"—an irrelevant fact under the assault instructions, which provide "[n]o one needs to actually have been injured by defendant's act." That defense counsel did not object to the trial court's response suggests they also construed the jury note as referring to the enhancement, supporting our analysis.
Appellants' contention that the minute order is unclear "whether trial counsel approved the substance of the answer or merely the fact that an answer should be given" is unpersuasive. If counsel agreed an answer should be given but disagreed with the court's answer, it is very unlikely the minute order would only have reflected the former. --------
Second, the trial court's response to the jury note directed the jury to consider all previously provided instructions. These instructions included the assault instruction, which properly instructed the jury to find "[t]he force used was likely to produce great bodily injury . . . ." Appellants' arguments that this was insufficient rest on their assumption that the jury note referred to the substantive count, which we have rejected.
Finally, the prosecutor's closing argument repeatedly emphasized that, on the assault count, the People must prove appellants used force likely to cause great bodily injury. Appellants point to the prosecutor's reference to the "could have caused" standard near the beginning of her closing argument. This reference occurred when the prosecutor reminded the jury of her opening statement promise that "each of these defendants used enough force that could have caused Cyrus B[.] great bodily injury. [¶] I told you that the evidence will be clear that there should be at least another seven to ten defendants who are sitting there with their attorneys. And I told you that the evidence will show that no one to any medical certainty will ever be able to say what punch, what kick, what fall to the head, what stomp caused Cyrus B[.] to end up . . . fighting for his life." Shortly after these introductory remarks, the prosecutor turned to a "road map" for the jury, clearly stating that the jury must determine whether "each defendant use[d] force likely to cause GBI," before it turned to the question whether each defendant "use[d] enough force alone or in combination with others that he could have caused this coma?" After presenting this summary road map, the prosecutor discussed the jury instructions, reiterating the "likely to" standard applicable to the assault count, and only discussing the "could have caused" standard after turning to a discussion of the enhancement. The prosecutor's clear argument supports our conclusion that the jury was not likely to be confused by the challenged response.
IV. Jury Instruction About Courtroom Observations
Appellants argue the trial court erred in instructing the jury on in-court observations. We reject the claim.
A. Background
During deliberations, one of the jurors abruptly left the courthouse. The next morning, the trial court convened a hearing to determine whether the jury could keep deliberating. The foreperson stated emotions were high and "there is some body language that is being read wrong." The foreperson added, "I think that maybe you can help in terms of direction that you provided the juror that left [sic] things that he's observed in the courtroom into the discussion, and I think you should provide some counsel around you know what's appropriate. [¶] What I have said is you know, 'You've observed that. Keep that you know to yourself.' Maybe that's not appropriate. I think that has bothered a couple of the jurors very specifically. And I think that's what facilitated the juror leaving."
The trial court discussed the issue with counsel, who speculated on what the juror observed. As one defense counsel noted, "we don't know if it has anything to do with our clients or he didn't like the fact that I wore the same earrings two days in a row, or [the prosecutor]'s shoes didn't match her outfit or whatever." Another defense counsel noted that Cyrus's family had been seated near some of the jurors, and "there are a number of things that that juror could have observed or overheard." Counsel stated that during the preliminary hearing, Cyrus's relatives "were asked to go to another floor so that they would not be inserting themselves into the preliminary hearing process." Another defense counsel noted "[Cyrus's] family has apparently made it a practice to reappear shortly before the jurors generally take their evening recess and sit on the benches in the hallway while the jurors walk by."
The court then interviewed the juror who had left abruptly. The juror stated during deliberations he had "shared an observation that I had made in court that was corroborated by one of the witnesses in court" and that this observation had been "rather rudely debunked" by another juror.
The trial court subsequently issued the following instruction, without objection from counsel: "[T]here was an issue as to what is and is not something that a jury can consider as far as observation in the courtroom, and these are not intuitively obvious. Things -- they're not easy to make these distinctions, but I will make it as clear as I can. [¶] Anything that a juror observes in the courtroom during the trial is something a juror may consider. For example, anything observed in a witness, obviously body language and that sort of thing, observations of the parties in the case, and observations of anybody in the courtroom to the extent in your view it may affect a witness'[s] testimony or your evaluation of a witness'[s] testimony. [¶] That's to be distinguished from anything that happens outside of this courtroom including in the hallway, out on the street, in front of the building, or anywhere in the world other than in this room. [¶] That is not something that the jury can consider, as I've instructed a number of times, even if done or said by one of the parties or witnesses or attorneys or anybody else. [¶] So I'm hoping that distinction is clear. [¶] That doesn't mean that you all agree on the effect of anything that was observed, but that you all observed it. [¶] The point is that if a juror observes something that juror is permitted to consider it and comment on it if it occurred in the courtroom. [¶] And then each juror applies whatever they believe is appropriate in considering that observation or lack of observation."
B. Analysis
Appellants argue the instruction improperly informed the jury they could consider anything that happened inside the courtroom. As the People do not dispute, " 'one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on . . . other circumstances not adduced as proof at trial.' " (People v. Garton (2018) 4 Cal.5th 485, 499-500; see also People v. Heishman (1988) 45 Cal.3d 147, 197 (Heishman) ["In criminal trials of guilt, prosecutorial references to a nontestifying defendant's demeanor or behavior in the courtroom have been held improper on three grounds: (1) Demeanor evidence is cognizable and relevant only as it bears on the credibility of a witness. (2) The prosecutorial comment infringes on the defendant's right not to testify. (3) Consideration of the defendant's behavior or demeanor while off the stand violates the rule that criminal conduct cannot be inferred from bad character."], abrogated on another ground by People v. Diaz 60 Cal.4th 1176, 1190.)
The People argue, however, that the court's instruction as a whole informed the jury they could consider in-courtroom behavior to the extent it was relevant to the credibility of a testifying witness. Appellants do not contend such an instruction is an incorrect statement of law. (See Heishman, supra, 45 Cal.3d at p. 197 ["Demeanor evidence [of a nontestifying defendant] is cognizable and relevant only as it bears on the credibility of a witness."].)
We agree with the People it is not reasonably likely the jury misunderstood the trial court's instruction. While the instruction included overbroad statements that in-court observations were permissible, the court was attempting to draw a clear contrast with out-of-court observations, which were entirely impermissible. The court clarified the jury could consider "observations of anybody in the courtroom to the extent in your view it may affect a witness'[s] testimony or your evaluation of a witness'[s] testimony." (Italics added.) The entire instruction, reasonably read, informed the jury that nothing observed outside of the courtroom could be considered, and observations in the courtroom could be considered to the extent it affected the jurors' evaluation of a witness's testimony. We note that no defense counsel objected to the trial court's instruction. While the parties dispute whether appellants thus forfeited the challenge on appeal—an issue we need not decide—the fact that three defense counsel found the instruction unobjectionable supports our assessment of how the instruction was reasonably understood.
V. Proposition 57
Although appellants were juveniles when the offense was committed, the prosecutor directly filed the charges against them in adult court, as was permitted under former Welfare and Institutions Code section 707, subdivision (d). While this appeal was pending, California voters enacted Proposition 57, which requires all charges against juveniles to be initially filed in juvenile court. Under Proposition 57, the juvenile court is charged with deciding whether a transfer to adult court is appropriate and may order a transfer only after it holds a hearing to consider such factors as the minor's maturity, degree of criminal sophistication, prior delinquent history, and potential for rehabilitation. (Welf. & Inst. Code, § 707, subd. (a).)
In People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara), our Supreme Court concluded that Proposition 57's elimination of direct filing by the district attorney applies retroactively to cases not yet final on appeal. Lara approved the remedy of a conditional reversal and remand for the juvenile court to conduct a transfer hearing. (Lara, at pp. 310, 313.) " 'When conducting the transfer hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer [the] cause to a court of criminal jurisdiction. [Citation.] If, after conducting the juvenile transfer hearing, the court determines that it would have transferred [the defendant] to a court of criminal jurisdiction because he is "not a fit and proper subject to be dealt with under the juvenile court law," then [his] convictions . . . are to be reinstated. [Citation.] On the other hand, if the juvenile court finds that it would not have transferred [him] to a court of criminal jurisdiction, then it shall treat [his] convictions as juvenile adjudications and impose an appropriate "disposition" within its discretion.' " (Lara, at p. 310.) We will conditionally reverse and remand appellants' convictions accordingly.
DISPOSITION
The judgments are conditionally reversed and remanded to the juvenile court for hearings pursuant to Welfare and Institutions Code section 707 in which the court will determine each defendant's fitness for treatment within the juvenile justice system. If, at the transfer hearing for either defendant, the juvenile court determines it would not have transferred that defendant to a court of criminal jurisdiction, then that defendant's convictions and enhancements will be deemed to be juvenile adjudications as of that date, and the juvenile court will conduct a dispositional hearing.
If, on the other hand, the juvenile court determines it would have transferred that defendant to a court of criminal jurisdiction, that defendant's judgment shall be reinstated as of that date with regard to all convictions and enhancement findings.
In all other respects, the judgments are affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.