Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Candace J. Beason, Judge, Los Angeles County Super. Ct. No. GA059992
Law Offices of Allen G. Weinberg and Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Carlos Palma.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant Julian Raoul Martinez.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
This appeal arises out of an incident on December 30, 2004, in which Carlos Pinon was fatally shot and Juan Beltran was seriously wounded while standing next to Jose Morales. Defendants Julian Martinez and Carlos Palma were charged with murder in violation of Penal Code section 187, subdivision (a) (count 1), attempted willful, deliberate, and premeditated murder in violation of sections 664 and 187, subdivision (a) (counts 2 and 3), and shooting at an inhabited dwelling in violation of section 246 (count 4). It was alleged as to all counts that defendant Palma personally and intentionally fired the handgun to cause the great bodily injuries and death to the victims (§ 12022.53, subds. (b)-(d)), and that the offenses were committed by defendants for the benefit of a criminal street gang (§ 186.22, subd. (a)). The jury found defendants guilty of the murder of Pinon, fixing the offense as murder in the first degree; the lesser included offense of attempted voluntary manslaughter of Beltran; and the offense of shooting at an inhabited dwelling. As to the attempted murder of Morales, the jury acquitted defendants of both the charged and the lesser included offenses. The jury found the special firearm allegations true as to defendant Palma, but found the gang allegations not true as to both defendants.
All further statutory references are to the Penal Code, unless indicated otherwise.
The information also named Richard “Richie” Garcia, Jr., as an additional defendant in each count, but he was neither a defendant nor a witness in the underlying trial.
In his timely appeal, defendant Martinez contends: (1) there was constitutionally insufficient evidence to support his convictions because there was no substantial evidence that he aided and abetted the shooter in committing the crimes; (2) juror misconduct during deliberations mandates reversal; (3) the trial court’s denial of the defense motion to disclose juror identification information violated his state and federal constitutional rights to a fair trial, an impartial jury, and effective assistance of counsel; and (4) the abstract of judgment must be corrected to conform with the trial court’s imposition of direct victim restitution jointly and severally as to both defendants. Defendant Palma raises essentially the same claims concerning the alleged jury misconduct and the restitution order. Defendants join in each other’s issues to the extent they might prove beneficial. (Cal. Rules of Court, rule 8.200(a)(5).)
We modify the abstracts of judgment as requested but otherwise affirm the judgments in all other respects.
The prosecution and both defendants presented testimony from gang experts. However, as the jury rejected the gang allegations, we discuss gang evidence only to the extent it bears significantly on the issues raised on appeal.
Prosecution
Tania Espinosa, the 15-year-old girlfriend of Beltran, knew defendant Martinez as a gang member with the moniker “Shy Boy.” On December 30, 2004, at approximately 8:00 p.m., she went to a party at the upstairs apartment of Natalie Torres on Lake and Justin Streets in Glendale. Espinosa received a phone call from defendant Martinez and told him about the party. She went downstairs and met defendant Martinez, who had arrived on Justin Street in his silver Mitsubishi Lancer with his friend Richie Garcia (also known as “Little Eastside”) in the passenger seat. Defendant Martinez parked around the corner near a tunnel. Espinosa walked over and talked to the occupants of the car, as defendant Martinez unsuccessfully tried to persuade Garcia to vandalize the tunnel with a can of spray paint. Garcia, however, got out of the car and stood next to it, leaving Espinoza and defendant Martinez alone together.
A white Cadillac that Espinoza recognized drove by, apparently on the way to the party. It stopped and reversed beside the Lancer. Five or six males, including Beltran and Morales, exited the vehicle. Beltran asked defendant Martinez where he was from. As Espinoza understood it, the question was a gang-related challenge. Defendant Martinez replied that he was “Shy Boy” from “Echo Park” and asked, “Where are you guys from”? Beltran responded that he was from the “Westside” gang and asked what defendant Martinez was doing in the neighborhood. Defendant Martinez said he “was stopping at the party.” Beltran, who had heard of “Shy Boy” from Espinoza, asked defendant Martinez if his given name was Julian. Defendant Martinez denied that was his name, but Beltran insisted. Espinoza complied with Beltran’s order that she get out of the car. Beltran told defendant Martinez and Garcia “they better leave,” and they immediately drove away. Beltran walked Espinoza to the party and told her not to hang out with other guys.
It was disputed whether defendant Martinez was referring to the Echo Park gang or to the locality.
A short while later, Espinoza was hanging out in the alley beside Torres’s apartment building with Beltan and some other friends, including Morales, Pinon, and Catrina Flores. Flores received three or four calls from defendant Martinez on her cell phone, asking for Espinoza. Flores told him that she was outside the apartment “with some friends.” Defendant Martinez asked if those friends were from the Westside gang. Flores told Espinoza that defendant Martinez was calling her cell phone and asking to speak with her, but Espinoza would not take the phone. Shortly thereafter, defendant Martinez returned in his car. Flores was on her cell phone with him at the time; he was looking for Espinoza. He passed in front of Torres’s apartment building, continued toward Lake Street, and stopped at the intersection of Justin and Lake Streets.
Beltran asked her if the car was the one defendant Martinez had driven earlier that evening. Espinoza said she did not know, but Flores said it was. Beltran, Morales, and Pinon began to walk quickly toward the Lancer, as Espinoza followed behind at a distance. She tried to call Beltran back because she was “afraid that the people in the car was [sic] going to start some trouble.” Through her cell phone, Flores could hear Beltran’s voice, but could not make out most of his words. She could see Beltran standing next to the passenger side of defendant Martinez’s car. When Espinoza looked toward the intersection, she heard gunshots from the direction of defendant Martinez’s car, which was turning right onto Lake Street. Beltran was lying on the ground. According to Flores, the Lancer was stopped when the first shot was fired and “more than a few” shots were fired in quick succession. Espinoza remembered that the gunshots began before the car turned the corner and continued after it made the turn.
Beltran received two nonfatal gunshot wounds. Pinon, however, was killed by a gunshot wound to his back, piercing his lung and heart. He had also been shot in the right heel, the bullet having been recovered from his sock.
Morales testified that he was not a member of the Westside Locos, but Pinon, Alfonso Venegas, and Beltran were members of that gang. He drove Pinon, Beltran, and Venegas to the party in his Cadillac. The passengers told him to stop alongside a car parked on Justin Street; they seemed “alarmed.” They got out of the Cadillac, while Morales parked nearby and walked over to join them. Morales’s friends talked to Espinoza and two other persons (defendant Martinez and Garcia), who drove away just as Morales approached. Morales and his companions went to the party. Morales and Pinon sat outside the apartment building on the stairs. Within 20 minutes, the Lancer drove by and stopped at the corner of Justin and Lake Streets. Beltan walked toward it, with Morales and Pinon following.
Beltran had an unfriendly conversation with the car’s occupants. Defendant Martinez was in the driver seat and defendant Palma was in the back seat. Beltran was standing three to four feet from the car, asking defendant Martinez “what he was doing there”? Defendant Martinez answered that he wanted to see his friend Flores. Defendant Palma interrupted and said, “What’s up, fool,” pulled out a handgun, and began to shoot. Pinon ran away from defendant Martinez’s car. Morales heard a bullet whistle past his ear. According to Beltran, the car was stopped while the shots were fired. The car drove off, turning right in the same direction Pinon had fled.
Beltran admitted being a member of the Westside Locos. The party was in Westside territory, but there was no rivalry between the Westside and Echo Park gangs. When they initially drove past defendant Martinez’s car, they stopped because it seemed suspicious to see a male standing outside the car and two persons inside. Beltran got out and told the driver to roll down his window. He identified himself as being from Westside Locos. When the driver said he was “Shy Boy” from Echo Park, Beltran “put everything together”—he was Flores’s cousin and Espinosa’s friend. He looked inside the car and saw Espinoza in the passenger seat. Beltran became angry and ordered her out of the car. She complied and Beltran admonished her for being with them, rather than with him at the party. Beltran told defendant Martinez and his friend to leave, and they drove away. Beltran and Espinoza walked to the party, while his companions parked the car.
Defendant Martinez’s car drove by 10 to 15 minutes later, as Beltran sat outside the apartment building with Espinoza, Morales, and Pinon. When the Lancer passed them a second time, Beltran began walking toward it. The car stopped at the intersection of Justin and Lake Streets. Beltran was offended by the fact that defendant Martinez had returned after having been told to leave. He approached the passenger side of the car and asked the driver why they came back. Defendant Martinez, who was “was flipping through his phone” said, “Well, I wanted to talk to [Flores].” Beltran invited defendant Martinez to get out of the car to talk to her. The backseat passenger, defendant Palma, said, “What’s up, fool?” pointed a handgun at Beltran, and began shooting. Two bullets struck Beltran, one in the middle of his chest and one in his lower ribs. Beltran “went numb” and did not hear any other shots or notice what happened to his companions. He spent two weeks in the hospital.
Hellen Guevara was defendant Martinez’s fiancée. She was pregnant with his child at the time of the shooting. She and defendant Martinez lived with his mother. On the night of the shooting, he initially left the house with Garcia. He returned later with Garcia and defendant Palma. Defendant Martinez was especially affectionate to her and she “had a feeling something was wrong.” Within 30 minutes, they went to bed and she fell asleep. In the morning, defendant Martinez got up for work at his usual time. He was unusually quiet.
Defendant Palma’s mother, Margarita Guillen, testified that her son lived with her at the time of the shooting. That night between 8:30 and 9:00 p.m., he asked for a ride to his girlfriend’s house. As they were about to leave, defendant Palma received a telephone call and told his mother that a friend was taking him to his girlfriend’s house. She did not see him again until the following day.
Officer Charlton Vidal testified that when he participated in the arrest of defendant Palma on the evening of December 31, 2004, he permitted defendant Palma to leave the patrol car and say goodbye to his mother. In Spanish, defendant Palma repeatedly admonished his mother: “Remember, I was home all night.” When defendant Martinez was arrested, he was a passenger in the Lancer, with his mother driving.
Officer Ian Grimes took part in the crime investigation, arriving at the scene 30 minutes after the shooting incident. He found ten 9-millimeter caliber Luger shell casings, manufactured by PMC, for a semiautomatic handgun. One had struck the side of a residence and fell inside the bedroom wall; another pierced the outer wall of the Lake Street residence. Four of them were in close proximity to each other on Justin Street, one was on a lawn. A fifth casing was in the crosswalk. Those were likely fired from the car while it was stopped at the intersection. Four other expended shells were found along Lake Street, indicating those shots had been fired after the car made a right turn from Justin Street. Pinon’s dead body was found lying face down on a grassy area on Lake Street. There was a bullet wound in his heel, which was also consistent with shots having been fired from the Lancer while it was on Lake Street.
Ballistics analysis by the sheriff’s department showed that eight of the 9-millimeter Luger expended cartridge cases and the two fired bullets recovered from the shooting scene, along with the bullet recovered from Pinon’s body, were all fired from the same weapon. A live .25 caliber bullet and a live 9-millimeter bullet were recovered from defendant Martinez’s bedroom.
Defense
Defendant Palma testified on his own behalf. He disclaimed any gang membership, but admitted to being a member of a “tagging crew” for nine months. He never committed acts of violence for the crew and “gave up tagging” before the shooting incident. He worked the entire day of the Pinon/Beltran shooting. At lunchtime, he made plans to go out with his girlfriend Jeanette that night. After work, he went to defendant Martinez’s house. Before defendant Palma left for his own house, they had a short discussion about whether defendant Palma would purchase a car from an auction at defendant Martinez’s place of work.
When defendant Palma arrived at home, he greeted his mother and “jumped straight into the shower.” After he dressed, his mother agreed to drive him to his girlfriend’s house, and defendant Palma prepared dinner for himself. He telephoned defendant Martinez to confirm the price and availability of the car he wanted to buy, and to request a ride to his girlfriend’s house. Defendant Martinez agreed and told him to “be ready.” Shortly after defendant Palma told his mother about the change in plans, defendant Martinez arrived with Garcia. Defendant Palma got into the car, but when defendant Martinez appeared to take a route away from Jeanette’s house, defendant Martinez explained that he wanted to stop by Espinoza’s house first. On the way, defendant Martinez tried unsuccessfully to contact Espinoza and Flores with his cell phone. Eventually, defendant Martinez found out where Espinoza and Flores were, and drove there.
Defendant Palma did not know where they were going but on the way, while in the vicinity of the intersection of Justin and Lake Streets, Garcia reached over from the front seat and handed a gun to defendant Palma, who was seated behind him on the passenger side. Defendant Palma tapped Garcia’s shoulder and asked, “What the fuck is this for?” Garcia did not answer. Defendant Palma had never fired a gun before. They stopped at an intersection. Three “dudes” ran to the car’s passenger side, one of whom was Beltran, who angrily demanded, “What the fuck are you guys doing back here?” Defendant Martinez, who was on his cell phone, looked up and told them he was looking for Espinoza or Flores. Beltran replied, “Well, then why don’t you want to get off the car and talk to her. She’s right over there.”
At that moment, defendant Palma saw one of the two males standing next to Beltran reach “for his waistband.” Defendant Palma picked the gun up from the car floor. When defendant Palma looked up, he saw one of them begin to pull a gun out of his waistband. Defendant Palma saw the gun’s handle and fired at him in panic—but he hit Beltran instead. As defendant Martinez began to drive away, defendant Palma saw one of the three males (Pinon) “[r]unning across the yard towards the car.” Defendant Martinez turned the corner in that direction onto Lake Street, and defendant Palma intentionally fired two shots at Pinon. The confrontation between defendant Martinez and Beltran lasted approximately 30 to 40 seconds, before defendant Palma began shooting. The shooting incident lasted less than 10 seconds.
Defendant Martinez drove home after the shooting. Defendant Palma left the gun in the car. Defendant Martinez’s mother drove defendant Palma to Jeanette’s home, where he spent the night. When arrested, defendant Palma told his mother to call Jeanette and have her say he was at her house “the whole night.” Defendant Palma lied to the police throughout his interview, telling them (among other things) that he was at Jeanette’s house at the time of the shooting.
Defendant Palma’s mother testified that she regularly cleaned her son’s bedroom and never found any weapons or ammunition. When he had a BB gun, she took it away. Defendant Palma’s longtime neighbor, Rufina Luna, testified that defendant Palma was a good friend of her son. She knew nothing about defendant Palma that would indicate gang membership or a violent character.
Officer Joshua Wofford took part in the search of Morales’s Cadillac. A small baseball bat was found in the front seat.
Daniel Stormer testified that he had known defendant Martinez since approximately 1994, when he coached defendant Martinez on a number of baseball teams and observed him when he played on other teams. Defendant Martinez attended team parties at Stormer’s house. There was a significant potential for violence at league games, particularly with regard to “smack talking” during games and fights breaking out afterwards. Stormer observed defendant Martinez to be nonaggressive and consistently “one of the politest, sweetest . . . nicest kids” he ever met. Stormer noticed nothing suggestive of gang involvement. Defendant Martinez’s participation in the organized baseball league ended approximately two years before the Pinon/Beltran shooting.
Mitchell Glen, a representative of a wireless phone company, testified concerning billing records of calls made and received by Flores, Espinoza, and defendant Martinez on the day of the shooting incident. Flores received approximately ten calls from 9:12 to 9:36 p.m., including a final call from defendant Martinez at 9:36 p.m., less than a minute after she made her final 9-1-1 call.
Billing records for Espinoza’s cell phone showed that she received her first call that day from defendant Martinez’s phone at 4:41 p.m.; it lasted nearly 50 minutes. At 5:33 p.m., she made a 12-minute call to defendant Martinez’s phone. There was another call at 8:27 p.m., lasting 36 seconds. Two short calls from defendant Martinez at 9:11 and 9:28 p.m. were picked up by her voicemail. Starting at 9:39 p.m., two short calls were placed from Espinoza’s cell phone, followed by four calls from the home of defendant Martinez to Espinoza.
In addition to those calls, the billing records for defendant Martinez’s cell phone showed incoming calls from Garcia’s residence at 7:47 p.m., the first of which was not answered. Defendant Palma called defendant Martinez’s voicemail at 9:04 p.m. Defendant Martinez attempted to return the call, but reached voicemail. At 9:07 p.m., there was a 26-second call from defendant Palma to defendant Martinez, followed two minutes later by a call from defendant Martinez to Espinoza. Those calls were followed by five calls to Flores, from 9:12 to 9:22 p.m. Three minutes later, there was a two-minute call to Flores (followed by the 9:28 p.m. call to Espinoza) and another to Flores at 9:32 p.m. When defendant Martinez placed the calls to Espinoza and Flores between 9:11 and 9:36 p.m., he blocked the caller identification features.
DISCUSSION
Sufficiency of the Evidence Claim
Defendant Martinez contends there was constitutionally insufficient evidence to support his convictions for murder, attempted voluntary manslaughter, and shooting at an inhabited dwelling because there was no reasonable, credible, and solid evidence that he aided and abetted the shooter. As we explain, the prosecution presented reliable evidence from which the jury could reasonably infer that defendants arrived at the intersection of Justin and Lake Streets with the shared criminal purpose of engaging in an armed confrontation with Beltran and his Westside gang associates and with the commonly held intent of using deadly force against them, and that defendant Martinez facilitated all three offenses by helping to supply the firearm and chasing Pinon as the victim attempted to escape. While defendant Martinez presents a version of the facts in which he had no knowledge that defendant Palma would shoot at the victims, the jury had a reasonable evidentiary basis for drawing contrary inferences.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) . . . The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.)” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Ibid., citing Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)
In light of defendant Martinez’s arguments, it must be emphasized: “Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. Citation. Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness issufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’ [Citation.])” (People v. Perez (1992) 2 Cal.4th 1117, 1124.)
It was undisputed at trial that defendant Palma was the shooter and defendant Martinez’s liability was premised on his being an aider and abettor. “Under California law, a person who aids and abets the commission of a crime is a ‘principal’ in the crime, and thus shares the guilt of the actual perpetrator. (§ 31.) [¶] Accomplice liability is ‘derivative,’ that is, it results from an act by the perpetrator to which the accomplice contributed. [Citation.].” (People v. Prettyman (1996) 14 Cal.4th 248, 259.) As our Supreme Court has explained, “[t]o prove that a defendant is an accomplice, . . . the prosecution must show that the defendant acted ‘with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.’ [Citation., emphasis in original].) When the offense charged is a specific intent crime, the accomplice must ‘share the specific intent of the perpetrator’; this occurs when the accomplice ‘knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.’ [Citation.] Thus, . . . an aider and abettor is a person who, ‘acting with (1) knowledge of the unlawful purpose of the perpetrator; (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense; and (3) by act or advice aids, promotes,encourages or instigates,the commission of the crime.’ [Citation.]” (Ibid.)
As background, we set forth the mental state required for each of the convictions with regard to defendant Palma as the perpetrator. With regard to the murder of Pinon, the jury was correctly instructed that a finding of first degree murder could be premised either on premeditation and deliberation or on an intentional murder by shooting out of a vehicle with intent to kill. (§ 189 [“any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree”]; see People v. Rodriguez (1998) 66 Cal.App.4th 157, 164.) Under the latter aspect of first degree murder, there is no requirement of premeditation, but “a specific intent to kill is required. And, as is well established, proof of an unlawful intent to kill is the functional equivalent of express malice.” (People v. Chavez (2004) 118 Cal.App.4th 379, 386-387.) Attempted voluntary manslaughter, which is a lesser included offense of attempted murder, consists of an attempted killing upon a sudden quarrel or heat of passion or in an actual, but unreasonable, belief in the need to defend against imminent death or great bodily injury. (See People v. Williams (1988) 199 Cal.App.3d 469, 475.)
With regard to the crime of shooting at an inhabited dwelling, “Section 246 provides: ‘Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle . . . is guilty of a felony . . . .’ Section 246 is a general intent crime.” (People v. Overman (2005) 126 Cal.App.4th 1344, 1356.) Liability “is not limited to the act of shooting directly ‘at’ an inhabited or occupied target. Rather, the act of shooting ‘at’ a proscribed target is also committed when the defendant shoots in such close proximity to the target that he shows a conscious indifference to the probable consequence that one or more bullets will strike the target or persons in or around it. The defendant’s conscious indifference to the probability that a shooting will achieve a particular result is inferred from the nature and circumstances of his act.” (Id. at pp. 1356-1357, fn. omitted.) “In other words, the statute does not require a specific intent to achieve a particular result (e.g., strike an inhabited or occupied target, kill or injure). [Citation.] Instead, the statute only requires a shooting under facts or circumstances that indicate a conscious disregard for the probability that one of these results will occur.” (Id. at p. 1357, fn. omitted.) “The offense of shooting at an occupied motor vehicle can be committed without personally using a firearm—e.g., when the defendant has aided and abetted the shooter.” (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1531.)
Proceeding chronologically with regard to the shooting incident, we first examine the attempted voluntary manslaughter of Beltran. Defendant Martinez asserts the record cannot support the reasonable inference that he either intended defendant Palma to fire at Beltran or that he did anything to facilitate the nonfatal shooting. He, however, overlooks the strong evidence of defendant Martinez’s motive to retaliate against Beltran and his associates—Beltran had humiliated defendant Martinez in front of Espinoza by ordering her out of defendant Martinez’s car and ordering him to leave the vicinity of the party. Within minutes, defendant Martinez responded by picking up another person who could help even the odds, defendant Palma. Defendant Martinez’s friend, Garcia, who was sitting next to him in the Lancer’s front seat, reached over the seat to hand the firearm to defendant Palma, presumably in view of defendant Martinez. As defendant Martinez drove back to the party, he used his cell phone to establish that Espinoza, Beltran, and his Westside associates were in front of the apartment. Additionally, while calling Espinoza and Flores from his car on the way back to the apartment, defendant Martinez blocked the caller identification features, tending to show that he wanted to insure that Beltran would not discover that he was on his way to the party location. Defendant Martinez drove past the apartment and stopped at the corner with the engine running and waited as Beltran and his friends approached the Lancer. As Espinoza testified, it would have been obvious that defendant Martinez’s return would be considered an affront to Beltran. When confronted by Beltran, defendant Martinez did not leave the scene, but engaged in an angry colloquy until defendant Palma made a threat and began firing at Beltran.
It is well established that motive and planning activity are factors supporting an inference of premeditation and deliberation. (E.g., People v. Perez, supra, 2 Cal.4th at p. 1125.) From the facts described above, the jury could reasonably infer that defendant Martinez intended to initiate a violent confrontation with Beltran, further intending to have defendant Palma provide the deadly firepower, if needed. In asserting that defendant Martinez returned to the apartment merely to see Espinoza, defendant Martinez does no more than point to a version of the facts the jury was entitled to reject. Similarly, while the jury could have found defendant Martinez was exhibiting the peaceable character attested to by Stormer when he declined Beltran’s challenge to get out of the car, there is another reasonable inference to be drawn. After all, defendant Martinez declined the peaceable option of driving away in favor of drawing out the confrontation and giving defendant Palma the opportunity to fire on Beltran. Thus, viewed in the light most favorable to the judgment, the record supports the reasonable inference that defendant Martinez sought out Beltran and his Westside associates, confronted them, and carried out a plan of violent retribution for being humiliated in front of Espinoza. (See People v. Halvorsen (2007) 42 Cal.4th 379, 421-422.)
Defendant Martinez also argues the jury’s rejection of attempted murder in favor of attempted voluntary manslaughter amounted to an inconsistent verdict because a finding that defendant Palma shot Beltran due to sudden provocation or in unreasonable self-defense could not be reconciled with an inference that both defendants shared an intent to commit the shootings. We disagree. It would have been perfectly consistent for the jury to infer that defendant Martinez initiated the confrontation with Beltran with the shared understanding that defendant Palma would use the firearm either to ambush Beltran or to provide armed “cover” for defendant Martinez in the event Beltan or his Westside associates chose to attack. In any event, “[i]t is well settled that, as a general rule, inherently inconsistent verdicts are allowed to stand.” (People v. Lewis (2001) 25 Cal.4th 610, 656; see also United States v. Powell (1984) 469 U.S. 57, 66 [“We also reject, as imprudent and unworkable, a rule that would allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them. Such an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury’s deliberations that courts generally will not undertake”].)
The evidence of defendant Martinez’s active complicity in the Pinon murder is even stronger. The record shows that defendant Palma shot Beltran at the corner of Justin and Lake Streets. Instead of fleeing the scene, defendant Martinez drove the Lancer in the same direction as the retreating Pinon, as defendant Palma continued to fire from the vehicle as it followed Pinon onto Lake Street. Accordingly, the jury was justified in finding that defendant Martinez knowingly and intentionally facilitated Pinon’s murder. We acknowledge that defendant Martinez points to evidence that would permit an inference that Pinon was shot while the Lancer was stopped at the corner, but continued to run onto Lake Street where he finally collapsed. However, in light of the uncontested evidence that Pinon was shot in the back and in the heel, the strong inference is that he was felled by a shot from inside the Lancer as it pursued him onto Lake Street.
It was uncontested that defendant turned from Justin Street onto Lake Street and that Pinon’s dead body was found on a grass area on Lake Street. Defendant Martinez points to testimony by defendant Palma that defendant Martinez drove back to defendant Martinez’s house “after the shooting.” Such testimony is ambiguous as to whether defendant Martinez drove directly home after the Beltran/Pinon shooting. In any event, it does not undercut the evidence that defendant Martinez drove in the same direction as the fleeing Pinon after defendant Palma shot Beltran.
The prosecution’s medical examiner testified that it would have been humanly possible for Pinon to have run 50 to 75 feet after receiving the chest wound. The expert, however, was not asked about the effect of a bullet wound to the heel.
Of course, the evidence that defendant Martinez pursued the fleeing Pinon down Lake Street as defendant Palma continued to fire in the general direction of the residences that lined the street provides ample support for his section 246 conviction as an aider and abettor. (See People v. Overman, supra, 126 Cal.App.4th at pp. 1356-1357 [the statute only requires a shooting under facts or circumstances that indicate a conscious disregard for the probability that one of the proscribed results will occur]; People v. Blackburn, supra, 72 Cal.App.4th at p. 1531 [aiding and abetting liability].)
In sum, there was reasonable, credible, and of solid evidence on which a reasonable trier of fact could find defendant Martinez guilty beyond a reasonable doubt of murder in the first degree, attempted voluntary manslaughter, and shooting at an inhabited residence. (People v. Johnson, supra, 26 Cal.3d at p. 578; Jackson v. Virginia, supra, 443 U.S. at pp. 317-320.)
Claims Regarding Jury Misconduct Allegations
In closely related claims, defendants, joining in each other’s appellate briefing, contend (1) the jury committed misconduct, as described in the new trial motions, in violation of defendants’ state and federal constitutional rights to a fair trial and impartial jury; (2) the trial court abused its discretion and violated those same constitutional rights by denying the motion to disclose confidential juror information, and denial of that motion caused defense counsel to render constitutionally ineffective assistance of counsel in conducting a post-trial investigation of jury misconduct; and (3) the court abused its discretion in failing to conduct an evidentiary hearing to investigate possible jury misconduct. We find none of these contentions persuasive because, among other things, the supporting juror declarations fail to show a reasonable likelihood of juror misconduct and there was no showing of good cause for disclosure of juror identities or further investigation.
As we discuss infra, only defendant Martinez brought the underlying motion below. Defendant Palma therefore forfeits the claim on appeal.
“Juror misconduct raises a presumption of prejudice, and unless the prevailing party rebuts the presumption by showing the misconduct was harmless, a new trial should be granted. [Citations.] This does not mean that every insignificant infraction of the rules by a juror calls for a new trial. Where the misconduct is of such trifling nature that it could not in the nature of things have prevented either party from having a fair trial, the verdict should not be set aside.” (Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 507 (Enyart); Bandana Trading Co., Inc. v. Quality Infusion Care, Inc. (2008) 164 Cal.App.4th 1440, 1445 (Bandana Trading Co.).) “In reviewing the trial court’s ruling on a motion for new trial, we accept the trial court’s credibility determinations if supported by substantial evidence. (People v. Nesler (1997) 16 Cal.4th 561, 582.)” (Enyart, supra, 76 Cal.App.4th at pp. 507-508, fn. omitted.)
“Subject to the restrictions of Evidence Code section 1150, a juror’s affidavit may be used to impeach a verdict. Evidence Code section 1150 states in relevant part: ‘(a) 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. 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.’ Evidence Code ‘section 1150 properly distinguishes between “proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved, . . .”’ (Krouse v. Graham (1977) 19 Cal.3d 59, 80, italics added.)” (Enyart, supra, 76 Cal.App.4th at p. 506; see also Bandana Trading Co., supra, 164 Cal.App.4th at p. 1446 [“A jury verdict cannot be impeached by evidence of the jurors’ mental processes and reasoning, or by evidence that the jury failed to make findings on some matters”].)
A trial court’s denial of a petition to disclose juror identification information pursuant to Code of Civil Procedure sections 206 and 237 is reviewed for abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 317.) To demonstrate good cause for the release of juror identification information pursuant to Code of Civil Procedure section 237, subdivision (b), a defendant must, among other things, “set forth a sufficient showing to support a reasonable belief that jury misconduct occurred.” (People v. Rhodes (1989) 212 Cal.App.3d 541, 552; accord, People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322.) Furthermore, the misconduct alleged must be “‘of such a character as is likely to have influenced the verdict improperly.’” (People v. Jefflo, supra, at p. 1322.) A petition to disclose juror identification information must be supported by more than mere speculation and may not be used as a “‘fishing expedition[]’ by parties hoping to uncover information to invalidate the jury’s verdict.” (People v. Rhodes, supra, at p. 552.)
Our review of the record shows the jury was released to begin deliberations at the end of the day on Tuesday, March 27, 2007. Deliberations continued for four full days, during which the trial court, in consultation with the parties, responded to numerous jury requests for direction and readback of testimony. The court and counsel also conducted extensive questioning of Juror No. 11, before the court released the juror to resume deliberations after admonishing the juror not to engage in speculation based on information the juror had learned at a weekend Amnesty International human rights convention. In so doing, the court overruled both the prosecutor’s request to dismiss the juror and defendant Martinez’s objection to the court’s admonition. At no time did the Juror No. 11 express any concerns about the manner in which the deliberations were being conducted.
On Wednesday, April 4, 2007, the jury indicated it had reached verdicts on all counts. In the presence of counsel, defendants, and the jury, the trial court verified with the foreperson the accuracy of the jury’s submitted communications to the court and the court’s responses. After the clerk had read the verdicts on count 1 and begun to read the count 2 verdict, the court realized the jury had reached verdicts on lesser included offenses as to counts 2 and 3 without signing verdict forms on the charged offenses. It therefore ordered the jury to return to deliberations. In response to another submission from the jury concerning the necessity of additional not guilty verdict forms, the court agreed to provide such forms for both defendants as to counts 2 and 3. In the meantime, the court ordered the jury sequestered over the lunch hour. When the matter resumed after lunch, the jury presented the newly signed verdict forms to the clerk. The reading of the verdicts was completed, and the jurors were polled separately for each defendant and verdict, affirming all verdicts and findings.
Defendants moved for a new trial based on allegations of jury misconduct, based on nearly identical declarations by Jurors Nos. 9 and 10. As relevant to the appellate contentions, the jurors declared that the foreperson, Juror No. 1, maintained possession of the jury’s single set of instructions. On most occasions, when jurors had questions about the applicable law, the foreperson would consult the instructions and provide answers to the jurors. In “rare” instances, other jurors consulted the instructions themselves. Juror No. 9 added that on one occasion, he or she requested to consult the instructions directly, but the foreperson retrieved the instructions to answer another juror’s question before Juror No. 9 completed reviewing them.
The two jurors further declared that when deliberations commenced, while the jurors discussed whether to organize deliberations by count or by defendant, the foreperson told the jurors “that, according to the instructions, whatever [defendant Palma] got[, defendant Martinez] would have to get. No one challenged this statement.” During deliberations, “we never specifically discussed the instructions relating to aiding and abetting, as it related to [defendant Martinez].”
The first ballot by the jury was equally divided between guilt and innocence as to both defendants on all the counts. Ensuing deliberations “became very contentious.” Those favoring guilty verdicts would often raise their voices to challenge those with whom they disagreed. The declarants and the “other jurors who were voting not guilty, were repeatedly told by the jurors voting guilty that we had to prove that the [sic] we ‘had to prove to us why the defendants are innocent.’” After the first ballot, the foreperson asserted “there was no way [he or she] was going to let the defendants get away with murder.” The foreperson “repeated this several times during the deliberations.”
Toward the end of deliberations, “several of the jurors complained that they were physically and mentally tired.” They urged the jurors to “get it over with and reach a verdict.” Some jurors said their paid leave had expired. “At one point, Juror No. 5 who had been voting not guilty, said we should tell the judge that the jury was hung.” Those who favored guilty verdicts “became very loud and angry.” Juror No. 8 announced ‘these guys are not going to walk, I’m not going to let that happen’.” The foreperson “said that having a hung jury was the last thing he would do.”
In denying the defense motions, the trial court found no evidence of juror misconduct. The court noted the jury was properly instructed and given the option of asking for an additional set of instructions. The declarants’ statements appeared to reflect the emotionally charged nature of deliberations in such cases.
On appeal, defendants contend the declarations show the jury committed prejudicial misconduct by failing to follow the trial court’s instructions. Of course, a jury commits misconduct by violating a trial court’s specific instructions. (See, e.g., People v. Williams (2001) 25 Cal.4th 441, 463 [recognizing “the basic rule that jurors are required to determine the facts and render a verdict in accordance with the court’s instructions on the law. A juror who is unable or unwilling to do so is ‘unable to perform his [or her] duty’ as a juror (§ 1089) and may be discharged.”].) However, the actions described in the juror declarations do not rise to the level of misconduct. Contrary to defendants’ assertions, the foreperson’s statement that “according to the [jury] instructions, whatever [defendant Palma] got[, defendant Martinez] would have to get” did not amount to substantial evidence that the foreperson substituted the correct instruction on aiding and abetting liability with an erroneous one to the effect that a guilty verdict for the perpetrator legally required a guilty verdict for the aider and abettor.
The declarations make it clear the context of the statement was not the standard for assessing aiding and abetting liability on any particular count, but rather the preliminary decision of whether to approach deliberations on a count-by-count or a defendant-by-defendant basis. As all four counts alleged liability as to each defendant, and as liability for defendant Martinez would necessarily be derivative, the foreperson’s statement made good sense and entailed no legal error. As such, the vague and indeterminate statements concerning the foreperson’s tendency to hoard the written instructions add nothing substantial to defendants’ argument. The declarations did not establish that the foreperson misstated any instruction or that any juror was actually prevented from consulting the instructions—much less that any juror was misled into applying an erroneous legal standard. Moreover, to the extent defendants seek to rely on the declarations to show the jurors “were discouraged from asking questions, and were rushed into deciding on a verdict,” such arguments contravene the restrictions on verdict impeachment under Evidence Code section 1150. (Bandana Trading Co., supra, 164 Cal.App.4th at p. 1446.)
Defendants’ second argument is similarly misguided. They assert some jurors disregarded the standard proof-beyond-a-reasonable-doubt instruction based on the declarants’ statement that the jurors who favored voting not guilty were repeatedly told they had prove to those who favored voting guilty “‘why the defendants are innocent.’” Read in context, however, the challenged statement did not purport to assert an alternative to the proper burden of proof, but rather a demand that the opposed jurors articulate a persuasive basis for their contrary position. Neither declarant states that he or she understood the statement in the manner asserted on appeal. Rather, it appears Jurors Nos. 9 and 10 considered the statement to be evidence of the manner in which jurors favoring guilt placed what they felt was excessive pressure on those who disagreed with them. The court properly disregarded those statements. (See Bandana Trading Co., supra, 164 Cal.App.4th at p. 1446.)
Finally, defendants assert the foreperson committed misconduct by refusing to inform the court that the jury was deadlocked in response to another juror’s request. However, the mere fact that one juror suggested telling the court the jury was “hung,” while others vehemently disagreed, hardly tends to prove the jury had actually reached a deadlock, much less that the foreperson violated any instruction. Conduct based on declaration statements that one juror “discouraged other jurors from asking questions, intimidated other jurors by rushing them to complete the special verdict form” does not rise to the level of prejudicial misconduct. (Bandana Trading Co., supra, 164 Cal.App.4th at p. 1446.) Alternatively, defendants improperly seek to rely on the declarations to show the jurors “were discouraged from asking questions, and were rushed into deciding on a verdict.” (Ibid.)
Defendants’ authorities are unavailing. In each case on which they seek to rely, there was evidence the jurors reached a verdict based on extraneous information. For instance, in People v. Honeycutt (1977) 20 Cal.3d 150, 154-158, misconduct was found where a deliberating juror consulted an outside attorney on legal questions involved in the case. In re Stankewitz (1985) 40 Cal.3d 391, 399 found misconduct where a juror “violated the court’s instructions and ‘consulted’ his own outside experience as a police officer on a question of law. Worse, the legal advice he gave himself was totally wrong.” In People v. Perez (1992) 4 Cal.App.4th 893, 908, the court assumed that all the jurors violated the court’s instructions by discussing and considering the defendant’s failure to testify on his own behalf. As we have explained, here, there was no evidence that the jurors violated the court’s instructions or agreed to do so. As in Bandana Trading Co., supra, 164 Cal.App.4th at page 1447, the two juror declarations provided no evidence that any juror “decided the case based on extraneous evidence.”
Apart from the juror declarations, nothing in the record tends to indicate misconduct or prejudice. “In reviewing the record to independently determine whether the act of jury misconduct, if it occurred, was prejudicial to appellant’s right to a fair trial, we consider (1) the strength of the evidence that misconduct occurred, (2) the nature and seriousness of the misconduct, and (3) the probability that actual prejudice may have ensued.” (English v. Lin (1994) 26 Cal.App.4th 1358, 1368.) Here, the court had numerous opportunities to observe the jury after it began deliberations, including a detailed voir dire of Juror No. 11 and the polling of each juror on each verdict and finding. At no time did the court perceive anything suggestive of misconduct. Moreover, despite the juror declarations concerning supposed refusals to accept defense verdicts, the jury acquitted both defendants of the attempted murder of Beltran (finding a lesser offense instead) and the attempted murder of Morales. The jury also rejected all gang allegations.
We turn to the claim that the trial court abused its discretion and violated defendants’ constitutional rights to a fair trial and impartial jury by denying defendant Martinez’s motion to disclose confidential juror information, and the derivative claim that denial of the motion violated his Sixth Amendment right to counsel. As we noted ante, only defendant Martinez brought the motion and, in so doing, did not raise any issue concerning his Sixth Amendment right to counsel. Accordingly, defendant Palma has forfeited both claims by failing to raise them below; defendant Martinez forfeited the Sixth Amendment component. (See People v. Ledesma (2006) 39 Cal.4th 641, 667, 729; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19.)
In any event, the claims fail on their merits because they are premised on a finding that the juror declarations showed a likelihood of juror misconduct. As we explained, defendants failed to present evidence to support a reasonable belief that prejudicial jury misconduct occurred. Nor was there any showing that further investigation had a reasonable likelihood of uncovering such juror misconduct. (See People v. Rhodes, supra, 212 Cal.App.3d at p. 552; People v. Jefflo, supra, 63 Cal.App.4th at p. 1322.) Finally, with regard to the claim that the trial court abused its discretion in not conducting an investigation into juror misconduct, it follows that the trial court’s failure to conduct such an investigation “was equally harmless.” (People v. Leonard (2007) 40 Cal.4th 1370, 1425.)
Restitution Award
Defendants Martinez and Palma contend, and the Attorney General concedes, the abstracts of judgment must be modified to reflect the trial court’s order that each defendant be jointly and severally liable for the direct restitution award to the victim’s family, as well as the award to the Victim’s Compensation Board. We agree. The record makes it clear the trial court intended to impose that term; to the extent the abstract is ambiguous on that point, we resolve that ambiguity in accordance with the trial court’s stated intent. (People v. Blackburn, supra, 72 Cal.App.4th at pp. 1533-1535.)
DISPOSITION
The abstracts of judgment against defendants Martinez and Palma are ordered modified to expressly provide that both defendants are jointly and severally liable for the direct victim restitution. The judgments as modified are affirmed. The trial court is directed to amend the abstracts of judgment to reflect these modifications and forward certified copies of the amended abstracts to the Department of Corrections and Rehabilitation.
We concur: TURNER, P. J., MOSK, J.