Opinion
No. B164813.
11-4-2003
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MEJIA, Defendant and Appellant.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, William T. Harter and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
Anthony Mejia appeals from the judgment entered following a jury trial resulting in his conviction of attempted willful, deliberate, and premeditated murder, with findings that he personally used a firearm, he intentionally discharged a firearm proximately causing great bodily injury, he intentionally inflicted great bodily injury, he intentionally inflicted great bodily injury by discharging a firearm from a motor vehicle, and he committed the crime for the benefit of a criminal street gang. (Pen. Code, §§ 664, 187, subd. (a), 12022.53, subds. (b), (c), and (d), 12022.7, 12022.55, 186.22, subd. (b)(1).) He contends that (1) the evidence is insufficient to support the finding that the attempted murder was deliberate and premeditated, (2) the trial court erred by failing to give a sua sponte jury instruction on a lesser included offense of attempted voluntary manslaughter, (3) the trial court abused its discretion by admitting two photographs, exhibits 24 and 25, into evidence, (4) the trial court coerced a verdict and denied him his Sixth and Fourteenth Amendment rights to an impartial jury and a unanimous verdict, and (5) the trial court improperly imposed and stayed several inapplicable enhancements pursuant to section 12022.53, subdivision (f), in lieu of striking those enhancements.
All further statutory references are to the Penal Code unless otherwise indicated.
We find merit in appellants last contention, and we will modify the judgment to strike the enhancements previously imposed and stayed pursuant to section 12022.53, subdivision (f), and section 654. However, we reject appellants other contentions, and after striking the inapplicable enhancements as defined by section 12022.5, subdivision (f), we will affirm the judgment as modified.
FACTS
1. The Peoples Case-in-chief
On July 1, 2000, A.M. was sitting in front of E.A.s residence in Valinda. A car drove up and its right front passenger leaned across in front of its driver. The passenger discharged a handgun at A.M., wounding her in the neck and back. Paramedics took A.M. to the hospital, and months apart, she had surgeries to remove the bullets.
A.M. was not a gang member. She was married to a Little Hill gang member with the moniker of "Spanky." On the day of the shooting, Spanky was in prison. E.A. was a friend of Spankys and a Little Hill gang member. The evidence was conflicting as to whether E.A. was sitting on the porch with A.M. at the time of the shooting.
On July 5, 2000, A.M. told Los Angeles County Deputy Sheriff Steven Mills, a gang investigator, that Townsmen gang members had committed the shooting. She told him that "Bandit" drove the car, "Dreamer" was riding in its rear seat, and "Youngster" was the right front passenger and her assailant. During six-pack identification procedures, she identified Youngster as appellant and Bandit as Miguel Guerrero. At trial, she testified that she had a prior run-in with Bandit. Months before the shooting, she was filling her car with gasoline at a local Arco station. Bandit drove into the gas station with two female passengers. He told his passengers that A.M. had been driving Little Hill gang members around in her car. The women attacked her, but she avoided injury.
Mills was well acquainted with the Valinda street gangs. He knew that "Youngster" was appellant and that "Bandit" was Miguel Guerrero. The youths were members of the Townsmen street gang.
At trial, C.C., a cohort of appellants, testified that on the afternoon of July 1, 2000, he was beaten up by Little Hill gang members. He claimed that afterwards, in retaliation, he committed the instant shooting and acted alone. He subsequently pled guilty to participating in the shooting.
The People impeached C.C.s trial testimony with a videotape of the extrajudicial statement that C.C. made for the prosecution at the time of his plea. On the videotape, C.C. claimed that he was beaten up by four youths from the Little Hill gang. After the beating, he happened to see Bandit, appellant, and a third youth, who were driving around in a stolen car. Earlier in the week, appellant had asked C.C. to keep a handgun at C.C.s residence, and C.C. had agreed. After C.C. told the youths about his beating, Bandit and appellant told C.C. to get into the car. They drove to C.C.s residence, and C.C. retrieved the handgun and handed it to appellant. The youths, with Bandit driving and appellant in the front seat with the handgun, went looking for C.C.s assailants. When they were unable to find any Little Hill gang members, Bandit slowed the car in front of E.A.s residence. C.C. observed A.M. and a man sitting in front of the residence. Bandit said something to appellant about A.M. being "Spankys old lady." Bandit and appellant had a conversation. C.C. looked at A.M. and assumed that the man with A.M. was the Little Hill gang member named Spanky. Appellant leaned in front of Bandit and discharged his firearm at A.M. through the drivers window of the car, wounding A.M. After the shooting, they drove off in the car.
Mills testified that C.C.s postarrest statement to him was identical to the statement C.C. made on the videotape. Mills gave his opinion that C.C. was not a Townsmen gang member, but he was a Townsmen gang associate.
Subsequent to the shooting, sheriffs deputies were unable to locate appellant and Guerrero. At the time of the trial, Guerrero was still at large. On a fluke, on May 22, 2002, Mills found appellant standing in the driveway of an El Monte residence. Appellant gave Mills a false name, ran, and hid to avoid arrest.
At trial, Mills testified as a gang expert. He said that the Townsmen and the Little Hill gangs were long-term rivals. Both gangs claimed that one area of Valinda where A.M. was shot. The overlapping territory led to friction, and the gangs had engaged in acts of violence against one another. He gave his opinion that the shooting was motivated by gang rivalry and was precipitated by C.C.s beating earlier that afternoon. Mills explained that the Townsmen committed the shooting because the gang culture demands retaliation for such acts; also, committing the shooting was putting in work for the gang and protecting its reputation. Engaging in such a shooting in broad daylight enhanced the gangs reputation for violence and intimidated community members. Mills opined that it was common for more involved gang members to use less involved associates to carry or hold firearms.
2. The Defense
In defense, appellant, age 23, testified and claimed mistaken identification. He acknowledged that he had been an active Townsmen gang member since he was age 14 and that his moniker was "Youngster." He explained that he was arrested two years after the shooting, and thus, he could not account for his whereabouts at the time of the shooting. He probably was staying at his mothers residence in Palmdale as he had been ostracized from the Townsmen for being a "rat" after a Baldwin park gang shooting. His implicit claim was that he could not be the assailant as at the time, no Townsmen would associate with him. During cross-examination, he testified that there was no way to work your way back into the gang after ratting. He claimed that no Townsmen would have "st[u]ck up" for C.C. as he was not a Townsmen. He readily admitted that he would have "back[ed] up" his "close home boys."
Appellant presented some third-party culpability evidence. He called his girlfriend, J.H., as a witness. She testified that she ran into C.C. subsequent to the shooting. C.C. told her that he had been beaten up and that he and another Townsmen, a youth named F.H. with the moniker of "Spanky," had "already taken care of that." Appellant testified that he and the Townsmen Spanky looked alike: they both had light complexions.
In rebuttal, Mills challenged appellants claim that there was no way to work your way back into a gang. Mills gave an example of a Puente gang member who had done just that by putting in work for his gang.
DISCUSSION
1. Sufficiency of the Evidence
Appellant requests this court to reduce his conviction to simple attempted murder because the evidence is insufficient to support a finding of deliberation and premeditation. We reject the contention.
A. Relevant Law
"Review on appeal of the sufficiency of the evidence supporting the finding of [attempted] premeditated and deliberate murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation. . . . Settled principles of appellate review require us to review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt." (People v. Perez (1992) 2 Cal.4th 1117, 1124.)
There are three basic categories of evidence that will sustain a finding of premeditation and deliberation: (1) planning activity; (2) motive; and (3) manner of the killing. (People v. Anderson (1968) 70 Cal.2d 15, 26-27; accord, People v. Perez, supra, 2 Cal.4th at p. 1125.) "`Analysis of the cases will show that this court sustains [findings of deliberation and premeditation] typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3). . . . [These] factors, while helpful for purposes of review, are not a sine qua non to finding [of deliberation and premeditation], nor are they exclusive." (People v. Perez, supra , 2 Cal.4th at p. 1125.)
Premeditation can occur rapidly; the test is not "duration of time as much as it is the extent of the reflection." (People v. Thomas (1945) 25 Cal.2d 880, 900.)
B. Analysis
The Attorney General cites two cases which are dispositive.
In People v. Sanchez (2001) 26 Cal.4th 834 (Sanchez), the defendant and a youth named Gonzalez were convicted of a first degree willful, deliberate, and premeditated murder of a bystander to a gang shooting. The trial evidence established that the defendant and Gonzalez were each members of rival gangs, that there was evidence of previous shootings between the gangs, and that the defendants car had been involved in a previous drive-by shooting of a cohort of Gonzalezs. During the incident in question, the defendant drove with several companions into the rival gangs neighborhood and made several passes in their car in front of Gonzalezs residence. On the pass preceding the shooting, the defendant, who came armed with a handgun, assumed a position at the open passenger window of the car. The rival gang members also had a firearm stashed in the residences front yard. As the defendants car made its last pass by the residence, the defendants gang and the rival gang threw gang hand signs at one another. The car in which the defendant was riding slowed in front of Gonzalezs residence. The defendant shot, the rival gang members returned fire with their gun, and the defendant and his companions sped off in the car. An adult male bystander who was working in the driveway of another residence on the street was shot and killed by a stray bullet. (Id . at pp. 840-842, 849-850.)
The Sanchez court said that "[a]lthough the actual shooting here may have been almost spontaneous, the mutual planning of one anothers murder supports a finding of premeditation as to both defendant and Gonzalez." (Sanchez, supra, 26 Cal.4th at p. 850.) The court explained: "`Premeditation and deliberation can occur in a brief interval. "The test is not time, but reflection. `Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly." [Citation.] Premeditation can be established in the context of a gang shooting even though the time between the sighting of the victim and actual shooting is very brief. [Citation.] `A studied hatred and enmity, including a preplanned, purposeful resolve to shoot anyone in a certain neighborhood wearing a certain color, evidences the most cold-blooded, most calculated, most culpable, kind of premeditation and deliberation. [Citation.]" (Id. at p. 849.)
In People v. Villegas (2001) 92 Cal.App.4th 1217 (Villegas ), the defendant was convicted of the attempted willful, deliberate, and premeditated murder of a rival gang member by the name of Mercado. Mercado had used his truck during an earlier gang confrontation with the defendant. On the day in question, the defendant, armed with a firearm, was on foot and ran into Mercado, perhaps by chance. The defendant threw a gang sign at Mercado, and Mercado got out of the truck to fight him. Mercado then retreated as the defendant drew a firearm. The defendant may not have planned to kill Mercado before running into him, but once he recognized Mercado, he threw the gang sign, yelled his gang name, and opened fire at Mercado. The two gangs were enemies, and the People produced testimony from an officer who was a gang expert that there was an ongoing feud between the gangs and, in the experts opinion, the shooting was a retaliatory gang shooting. The expert also testified that the exchange of gunfire showed that the crime benefited the gang. The shooting would create fear in the rival gang that it was a gang to be reckoned with, and word in that small town would travel fast about the shooting. Even if Mercado were not a gang member, the shooting promoted the aggressor gang because it spread intimidation among all the residents of the area. Furthermore, the obvious motive for the shooting was Mercados previous fight with a fellow member of the defendants gang. (Id. at pp. 1222, 1224.)
The Villegas court concluded that because the defendant was armed, the evidence showed planning activity. (Villegas, supra , 92 Cal.App.4th at p. 1224.) Even if there was no planning before the defendant arrived on the shooting scene, the defendant need not have planned to kill Mercado before he saw him that day. However, once he recognized Mercado, his conduct indicated that he thought about it before he fired. There was also evidence of a gang rivalry motive for the shooting. The court concluded that such evidence was ample in showing the deliberation and premeditation necessary to prove the offense. (Ibid.)
Appellant argues that in the instant case, the evidence of deliberation and premeditation is insufficient because (1) there was a complete lack of evidence to show planning or a mode of killing indicative of a preconceived plan, (2) there was no clear evidence of motive, and (3) the evidence demonstrated a spontaneous outburst of violence, not a deliberate or planned attempt at homicide.
We reject appellants argument. The trial evidence was highly persuasive that the youths had engaged in planning activity: the youths retrieved a handgun and drove around the neighborhood looking for Little Hill gang members. As in Sanchez, apart from persuasive evidence of planning well before the shooting, there was evidence that appellant and Guerrero commented on A.M.s relationship to Spanky and discussed whether she was an appropriate target for retaliation. Further, there was additional evidence of gang rivalry and that the shooting was in retaliation for C.C.s beating. The evidence that A.M. was wounded during a retaliatory gang shooting is sufficient to support appellants conviction of attempted willful, deliberate, and premeditated murder. (Sanchez, supra, 26 Cal.4th at pp. 849-850; Villegas, supra, 92 Cal.App.4th at pp. 1224-1225.)
2. Sua Sponte Jury Instruction on Attempted Voluntary Manslaughter
Appellant contends that he was entitled to a sua sponte jury instruction on attempted voluntary manslaughter. We disagree.
A. Relevant Law
"When a killer intentionally but unlawfully kills in a sudden quarrel or heat of passion, the killer lacks malice and is guilty only of voluntary manslaughter." (People v. Lasko (2000) 23 Cal.4th 101, 104, italics omitted.) Attempted voluntary manslaughter is a lesser included offense of attempted willful, deliberate, and premeditated murder. (People v. Van Ronk (1985) 171 Cal.App.3d 818, 822-825.) For a finding of attempted voluntary manslaughter under the sudden quarrel or heat of passion theory, both provocation and heat of passion must be demonstrated. (Cf. People v. Rios (2000) 23 Cal.4th 450, 460-461;People v. Lasko, supra, 23 Cal.3d at p. 108; People v. Lee (1999) 20 Cal.4th 47, 58-59.)
A trial court has a sua sponte obligation to instruct on general principles of law that are closely and openly connected with the facts presented at trial. This obligation extends to lesser included offenses when "the evidence raises a question as to whether all of the elements of the charged offense have been proven and there is evidence that would justify a conviction of the lesser included offense." (People v. Lopez (1998) 19 Cal.4th 282, 287-288; People v. Breverman (1998) 19 Cal.4th 142, 154-155; People v. Barton (1995) 12 Cal.4th 186, 194-195.)
B. Analysis
With these principles in mind, we turn to appellants argument that the trial court improperly failed to instruct on attempted voluntary manslaughter because the evidence shows that appellant acted in the heat of the anger and rage generated by C.C.s beating by rival gang members. His argument fails for two reasons. First, it is settled that the provocation which incites the killer to act in the heat of passion must be caused by the victim or reasonably believed by the accused to have been caused by the victim. (People v. Lee, supra, 20 Cal.4th at p. 59 (lead opn. of Baxter J.).) A.M. was not a gang member, and there was no evidence the assailants believed that she was involved in C.C.s beating. Appellant and Guerrero were well aware that the victims connection to the Little Hill gang was only one of marriage. Second, the provocation must be such as to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. (People v. Lee, supra , 20 Cal.4th at p. 59; People v. Barton, supra, 12 Cal.4th at p. 201.) The appropriate standard for determining if there is provocation is that for a reasonable man — gang members are not permitted to set up a separate standard of reasonableness. We are not concerned with whether a reasonable gang member would have been provoked into a homicidal rage in the circumstances. No ordinarily prudent person would have acted rashly in response to the earlier beating. (Villegas, supra, 92 Cal.App.4th at p. 1225.)
At trial, there was no evidence of provocation, and thus the trial court was under no obligation to instruct the jury as to attempted voluntary manslaughter.
3. The Photographs
Appellant complains that the trial court abused its discretion by admitting into evidence two photographs of "Chuco." The trial court properly exercised its discretion by admitting the photographs into evidence.
A. Facts
The prosecutor introduced the photographs, exhibits 24 and 25, into evidence. One photographs showed appellant sitting with an older man, purportedly the man named Chuco. The other photograph was on the front of a pamphlet apparently prepared for a memorial service upon the October 29, 1998 death of Chuco. The photographs were proffered as they tended to establish that appellant was a dedicated and a highly involved Townsmen gang member. Previously, the People had introduced into evidence another photograph, exhibit 20, showing a gang tattoo of appellants, which said, "In loving memory, Chuco, TSM." During his testimony, Mills testified that the initials, "TSM" in the tattoo were an abbreviation for the Townsmen gang and that "Chuco" was a man named Louie Lopez, who was a veteran Townsmen gang member. Mills said that Lopez may have been related to appellant, and Lopez had passed away in 1998.
B. Relevant Law
"Evidence is relevant if it has any tendency in reason to prove or disprove a disputed fact at issue." (People v. Mayfield (1997) 14 Cal.4th 668, 749.) In evaluating the admissibility of photographs, the applicable rule is simply one of relevance, and the trial court has broad discretion in determining such relevance. (People v. Gurule (2002) 28 Cal.4th 557, 624.) Evidence Code section 352 vests the court with broad discretion to weigh the prejudicial effect of proffered photographs against their probative value. A trial courts decision to admit photographs pursuant to Evidence Code section 352 will be upheld on appeal unless the prejudicial effect of the photographs clearly outweighs their probative value. A prosecutor is not obliged to prove his case with evidence solely from live witnesses; the jury is entitled to see demonstrative evidence to determine if the evidence supports the prosecutors theory of the case. (See People v. Gurule, supra, 28 Cal.4th at p. 624.)
C. Analysis
Appellant argues that the photographs of Lopez had no probative value and that they were at best cumulative because appellant admitted gang membership, that a photograph of his gang tattoos had previously been shown to the jury, and that Mills testified that he knew that appellant was a gang member. Appellant complains that the use of the photographs, in conjunction with evidence about his tattoo, invited the jury to speculate that Lopez was killed in some sort of violent gang altercation with the Little Hill gang and that the current gang shooting was committed in retaliation for Lopezs death.
i. Relevance
At the time of the proffer, the prosecutor and trial court did not know that in defense, appellant would fully acknowledge that he was an active Townsmen gang member. Thus, when the photographs were identified during the Peoples case-in-chief and Mills testified to what was depicted, they had a tendency to provide independent corroboration of appellants gang membership, which was relevant to prove appellants identity as the assailant and his motive in committing the shooting. Also, one component of appellants defense was a claim that he was ostracized by the gang when the shooting occurred. The photographs had a tendency to rebut that claim by showing how dedicated and gang-involved he was from an early age. The photographs of appellant standing with Lopez demonstrated that his strong family and social connections to the gang made it more likely that he would be accepted back into the gang after he cooperated with the authorities. They also demonstrated that he had a strong motive for putting in work to reinstate himself in the gang.
The trial court did not abuse its discretion by finding that the photographs were more probative than prejudicial. The photographs were highly relevant to the issues in the case. Because the jury was well aware of appellants gang status from other properly admitted evidence, using the gang photographs was not unduly inflammatory. C.C. testified that the beating was the event that precipitated the shooting. Thus, the photographs were not likely to have misled the jury. Given C.C.s explanation for the shooting, the jury would not have gone so far afield as to speculate that Lopez had a violent death and that that his violent death precipitated the shooting. The photographs were not cumulative of other gang evidence because they tended to prove appellants dedication to the gang. The trial court properly exercised its discretion by admitting the photographs into evidence and by finding that they were more probative than prejudicial.
Furthermore, even if the photographs were only marginally relevant or cumulative, the evidence of guilt is so overwhelming that the use of the photographs was nonprejudicial. (People v. Watson (1956) 46 Cal.2d 818, 836.)
4. Alleged Jury Coercion
Appellant contends that the trial court coerced the verdict under California law, and further, that the coercion amounted to a violation of the Sixth Amendment and the federal due process clause. We reject his contention.
A. Facts
At 2:58 p.m. on December 16, 2002, the jury began its deliberations. The following day, the jury asked twice for the rereading of testimony, and the trial court had the requested testimony reread. During the morning of the third day of deliberations, on December 18, 2002, the jury foreman sent a note to the trial court which said: "We have been at an impasse for a while. It appears a juror is not following along in the jury instructions in regards to preforming a judgment and not basing his/her decision on the evidence."
On Monday, December 9, 2002, the parties answered they were ready for trial and gave the calendar court a four-day estimate. At about 9:30 a.m. that morning, jury selection commenced. Midmorning on December 10, 2002, the prosecutor commented the trial with his opening statement. The trial was not in session on Friday, December 13, 2002.
During the trial courts discussion of the note with counsel, the clerk commented that Juror No. 8 had asked the clerk if he could be excused to go on vacation. Trial counsel observed that it was no surprise that they were running into difficulties as the trial had lasted longer than expected. The prosecutor said that Christmas was the following week. The trial court secured counsels comments on how to proceed, then questioned the jury foreman about the note out of the presence of the other jurors.
i. The Questioning of the Jury Foreman
The trial court gingerly determined from the foreperson that the same individual who had the vacation (Juror No. 8) was the subject of the complaint of misconduct. It was the foremans opinion that the juror had made up his mind during the first day of deliberations and that the juror was concerned about being able to leave on a vacation. The foreman said after some deliberation, the juror had taken a fixed position and had announced that he was "going to hold to that position." The other jurors had attempted several approaches with him. At first, they were able to engage him in discussions. Today, however, the juror had said very little and indicated there was nothing to discuss. He was now refusing to discuss the case. The trial court returned the jury foreman to the jury room with an admonition not to discuss the events of the hearing with the other jurors.
Trial counsel argued that nothing the foreman had described established misconduct: the juror was simply being steadfast once he had reached a decision about the credibility of some testimony in the case. The prosecutor asked the trial court to replace the juror with an alternate as the juror was not deliberating, but he wanted the trial court to question Juror No. 8 before ruling.
ii. The Questioning of Juror No. 8
Out of the presence of the other jurors, the trial court made an inquiry of Juror No. 8. Through careful questioning, the trial court ascertained that the juror was concerned because he had vacation plans. The juror explained that he had given both the juror coordinator and the clerk notice of his planned vacation. He showed the trial court an envelope, which presumably contained an airline ticket, and said he had purchased it on September 27, 2002. He explained that his flight departed the following morning at 6:00 a.m. He was returning from vacation on Monday, December 30, 2002.
The trial court asked Juror No. 8 if he had been "participating in the discussions this morning with all of the jurors," and Juror No. 8 replied, "Not this morning." The trial court said: "And why is that? [¶] First of all, let me say this. I dont want you to reveal what your position is — [¶] . . . [¶] on this case. All right? Under no circumstances are you to do it. Im in no position to say that you are right or wrong. [¶] . . . [¶] The only thing I want to know is this morning have you participated in discussions with the other jurors?" The juror said, "Lets say we are in the same position from yesterday, and we dont talk about it."
The trial court reiterated that it did not want to know the jurors position with regard to the issues or verdict in the case. It again asked Juror No. 8 if he had participated in discussions that morning. The juror made several ambiguous responses, then said, "Let me clear that [up]." He said that they had talked a little bit, and the other jurors had decided to send the note to the trial court. The trial court asked if the juror had told the other jurors that he "did not want to discuss the case anymore." The juror said, "No." The trial court inquired, "What is it that you told them?" The juror replied, "Well, I keep my position, and — the foreman decided to send that paper to you."
During trial court questioning, the juror explained that the other jurors had tried to persuade him, and he either responded or listened to them. He did not have "any difficulty with the law," and he did not tell the other jurors that he failed to understand the law. He did not think it would be helpful if the trial court explained the law to him.
The trial court asked if the juror had formed his opinion early before deliberating. Juror No. 8 replied, "Yes and no." The trial court ascertained that the juror had formed an opinion subsequent to commencing deliberations: the juror said, "One day before, after we started, yes." The trial court asked the juror to continue to discuss "this matter with your other jurors today," and asked the juror if the juror had any questions about the trial courts directions. The juror explained: "You know, my situation from my vacation have nothing to do with that, you know. [Sic] I told them I going on vacation. [Sic] Everybody know. I say I dont — dont have nothing to do with that. [¶] I dont know what way I going to change my mind." The trial court asked the juror to return to the jury room and to refrain from discussing the trial courts inquiry with the other jurors.
The trial court asked for comments from counsel. Trial counsel said that he was "concerned" that Juror No. 8 would decide to make sure he was going on vacation by agreeing with the other jurors, regardless of his honest opinion in the case. The trial court said that trial counsel was faced with a dilemma. If the trial court asked Juror No. 8 to further deliberate, the juror might cave in. If the trial court replaced the juror with an alternate, there was no way of knowing what an alternates viewpoint would be. The trial court said, from its inquiry, it had no reason to believe that the juror was not deliberating or that he had prejudged the case. The trial court questioned whether on the current record it could excuse Juror No. 8 from the jury.
The trial court told counsel that an inquiry of other jurors would consume more time and "make [the jurors] departure even of greater concern to [the defense]." The trial court suggested that one option was to delay deliberations until December 30, 2002, to ensure that the jurors vacation did not interfere with jury deliberations.
The prosecutor objected to postponing deliberations. He suggested that the foreman and Juror No. 8s comments were in conflict, and he said the only way to resolve whether Juror No. 8 was refusing to deliberate was to conduct a further inquiry. Trial counsel observed that Juror No. 8s testimony was ambiguous about when he made up his mind. Trial counsel reiterated that he was in a dilemma because six hours from now, he did not want to agree to having the juror excused when it was likely he was the sole dissenting juror to a guilty verdict.
The trial court warned counsel that they were in a dangerous area, and the trial court mentioned an unpublished court of appeal opinion arising from a Torrance case where the trial court erred by removing a minority juror from a case and former jeopardy prevented a retrial. The trial court observed that Juror No. 8 had not unequivocally refused to participate in deliberations, and the trial court did not want to rely upon the subjective assessment of the other jurors about whether or not Juror No. 8 was participating in deliberations. The trial court agreed to the prosecutors request for an inquiry of one additional juror.
iii. The Questioning of Juror No. 1
The trial court questioned juror No. 1. Before asking the juror any questions, the trial court emphasized that it was not interested in hearing about the jurors positions on the issues. It only wanted to know the jurors observations about what was going on in the jury room. Juror No. 1 indicated that no juror had refused to deliberate or expressed that he or she had prejudged the verdict. She said that one juror said that he did not believe the testimony, he would not change his mind, and he did not want to talk about it further. The trial court asked if the juror was mute or said, "I dont believe a particular piece of evidence or testimony?" Juror No. 1 indicated that the juror in question just kept telling them, "I said it before three or four times. How many times do you want to hear it? Youre not going to change my mind." The trial court concluded, "So the person has participated in deliberations earlier, but again the jurys gone over the same thing?" The juror answered in the affirmative.
Juror No. 1 revealed that while the juror had not participated in deliberations that morning, he had done so on previous days. Trial counsel inquired if the juror had commented on which witnesses he believed and how much weight should be attached to the trial testimony. Juror No. 1 replied that was exactly what he had done, and the juror also had articulated his opinion about the case. The trial court excused Juror No. 1 with an admonition not to discuss the inquiry with the other jurors.
Trial counsel suggested that the trial court should declare a mistrial because the jury foreman said that the jury had been at an impasse for some time; the prosecutor wanted the trial court to excuse Juror No. 8 and replace him with an alternate.
iv. The Further Directions for Juror No. 8
The trial court had Juror No. 8 return to the courtroom. It told the juror that he was not to concern himself about his vacation; the trial court would release him at 2:30 p.m. that afternoon so he could prepare to leave. However, in the meantime, he was to return to the jury room and to listen and to discuss his viewpoints with the other jurors. The trial court said that the juror was not to misunderstand the trial courts direction — the trial court was not telling the juror which way to vote. All it was ordering was that the juror participate in a two-way discussion with the other jurors. It wanted the juror to articulate and to explain his position to the other jurors so as to share his point of view. The trial court suggested that if he did so, the other jurors might realize that he was correct and might change their views.
The trial court asked Juror No. 8 if he understood the trial courts directions, and the juror relied, "I understand. This not have [sic] to do nothing with what happened inside there." The juror again explained that he had given adequate notice about his vacation and that he had things to do before he left. When he earlier had raised his vacation with court personnel, they told him not to worry about it.
The trial court reassured the juror that it would excuse him no later than 2:30 p.m. that day. The court said: "You know, I dont know if Im going to put this deliberation over to when you return, but I dont want you to be concerned about that, but I am going to ask you to remain at least until 2:30 today and would like to assure the others that you are participating in the discussion."
The trial court addressed counsel at the bench. The prosecutor commented that based on Juror No. 8s nonverbal conduct, the juror really did not want to participate further in deliberations. The trial court replied that it understood that, but there were no grounds for excusing the juror.
The trial court returned Juror No. 8 to the jury room with an admonition that he refrain from discussing the trial courts inquiry with the other jurors.
The jury continued its deliberations. At 2:42 p.m. that afternoon, it returned a verdict of guilty.
B. Relevant Law
Section 1140 provides: "Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree."
"`The determination whether there is reasonable probability of agreement rests in the discretion of the trial court. [Citations.] The court must exercise its power, however, without coercion of the jury, so as to avoid displacing the jurys independent judgment "in favor of considerations of compromise and expediency." [Citations.] The question of coercion is necessarily dependent on the facts and circumstances of each case. [Citation.]" (People v. Sandoval (1992) 4 Cal.4th 155, 195-196; accord, People v. Gurule, supra, 28 Cal.4th at pp. 648-649.)
C. Analysis
i. The Claim of Jury Coercion
Appellant concedes that the trial court made no "expressly coercive remarks." Nevertheless, he asserts that the trial courts comments to the jury during its inquiry were coercive because the trial court "gave that juror a short deadline to reach a verdict that day after which he was free to go, with the express possibility of being recalled to deliberate after his trip was over." He argues that Juror No. 8 was a hold-out juror for not guilty, and the juror simply acceded to the will of the majority because he feared causing the entire jury to return in 10 days following the completion of his vacation.
Appellant relies on the comments of the court in People v. Rodriguez (1986) 42 Cal.3d 730, 775 (Rodriguez) that "[c]oercion has been found where the trial court, by insisting on further deliberations, expressed an opinion that a verdict should be reached." The Rodriguez court further explained that where a trial is relatively short and the issues relatively simple, orders requiring further deliberation to ensure that the jury understands the evidence are unnecessary and asking the jury to deliberate longer may be understood by the jury as intended to coerce the minority into joining the majoritys views of the case. (Ibid.) Appellant also cites People v. Carter (1968) 68 Cal.2d 810, 813 (Carter), and People v. Crowley (1950) 101 Cal.App.2d 71, 75 (Crowley ), as being relevant to his contention. These cases were also discussed in the decision in Rodriguez.
In Carter, following a day and a half of trial, the jury deliberated from 11:45 a.m. all afternoon to 6:00 p.m. The jury told the trial court that further deliberations might yield a verdict, and the trial court sent the jury to dinner with instructions to deliberate thereafter. At 8:45 p.m., the jury returned to the courtroom. A trial judge other than the original judge presided. The jury foreman told the trial court that it could reach a verdict possibly within two or three hours. The trial court refused to remain there that long and gave the jury another half hour to deliberate, telling the jury it would "hate to lock you up tonight." (Carter, supra, 68 Cal.2d at pp. 813-814 & fn. 1.)
The Carter court found coercion because during the discussion with the foreman about the possibility of reaching a unanimous verdict, a lone dissenting juror was singled out in discussing whether the jury understood the law. Immediately thereafter, the trial court inquired about the possibility of an agreement and had the jurors make a show of hands as to how many believed agreement was possible. The trial court observed to the jury that the trial, having taken only one day, was not "`complicated." (Carter, supra, 68 Cal.2d at p. 820.) The trial court then expressed that it was not willing to remain for the two or three hours it would take to finish deliberations, and couched "almost in terms of a threat," that the jurors would be locked up if a verdict was not reached in a half hour. (Id. at pp. 819-820.)
In Crowley, supra, 101 Cal.App.2d 71, after four and a half hours of deliberations, at 4:22 p.m. in the afternoon, the jury informed the trial court that it could not agree. Without knowing the numerical division of the jury, the trial court commented that the case was a simple one, said the evidence was "plain and clear" despite a conflict in the testimony, and gave an Allen-type charge to the jury. (Id. at p. 74; see Allen v. United States (1896) 164 U.S. 492, 501 [approved a jury charge that urged the minority to consider the views of the majority and ask themselves whether their own views were reasonable under the circumstances]; People v. Gainer (1977) 19 Cal.3d 835, 848-849 [judicially declared rule of procedure disapproving the use of the controversial Allen charge in California].) The court then told the jury to retire again and to see if it could come up with a decision. The trial court ordered the bailiff to "lock up the jury for the night" if the jury did not reach a verdict by 5:00 p.m. (Crowley, at p. 74.) The jury returned a verdict at 4:59 p.m. (Id. at pp. 74-75.)
The principle from Rodriguez does not apply here. The issues in this case were not difficult, but the trial was considerably more complex than the trials in Carter and Crowley. This is not a case where the jury indicated that it was hopelessly deadlocked; the note and the trial courts inquiry disclosed that the impasse possibly had occurred because one juror was not engaging in discussions with the other jurors. Questioning Juror No. 8, who turned out to be a lone dissenting juror, the foreman, and Juror No. 1 did not reveal a clear picture about whether Juror No. 8 was being unreasonably stubborn in refusing to discuss further issues with the jury or he had reached a conclusion in the case and was remaining steadfast in his opinion about guilt or innocence. The trial court thus properly exercised its discretion by engaging in only a minimal inquiry into the possible misconduct, by determining there was no misconduct, and by asking Juror No. 8 to engage in further, short deliberations until the trial court excused him at 2:30 p.m. that afternoon to make his flight. (See People v. Engelman (2002) 28 Cal.4th 436, 443-446 [refusal to deliberate may subject a juror to discharge]; People v. Cleveland (2001) 25 Cal.4th 466, 475-485 [a trial court must investigate reports of juror misconduct to determine whether cause exists to replace a juror, but it should take care in inquiring lest the sanctity of jury deliberations too readily be undermined].)
The trial court placed no undue pressure on Juror No. 8 to agree with the majority. It leaned over backwards to admonish Juror No. 8 that it was not concerned with the numerical count of the jury and Juror No. 8s individual vote. It told the juror that the it was not telling him how to vote. The trial court made no coercive comments equivalent to ordering the jury locked up if it did not reach a timely verdict or to suggesting that the jury should reach a verdict. We do not think that accommodating Juror No. 8s vacation and commenting that the trial court might recommence deliberations subsequent to his vacation, created undue pressure on the dissenting juror in this case in the same way as the intemperate comments and the threats of overnight sequestration did in Carter and Crowley.
Furthermore, the facts in Rodriguez support our conclusion that the trial court properly exercised its discretion. In Rodriguez, the California Supreme Court found no coercion of the verdict in a complex case where (1) the trial court returned the jury to further deliberate after it had sent the trial court a note stating that it was hopelessly deadlocked, (2) the note was the jurys fourth claim of deadlock, (3) the jury was in its 18th day of deliberations, and (4) 11 days had passed since the substitution of an alternate juror for a juror on the original panel. (Rodriguez, supra, 42 Cal.3d at pp. 775-777.)
ii. Due Process Claim
Appellants claim that he was denied federal due process is also to no avail.
In support of his claim of a denial of federal due process, appellant cites Jiminez v. Myers (9th Cir. 1993) 40 F.3d 976, 979 (Jiminez). At 40 F.3d at page 979, the Jiminez court said, "A defendants due process right to an impartial jury and fair trial turns upon whether `the trial judges inquiry would be likely to coerce certain jurors into relinquishing their views in favor of reaching a unanimous decision." After four and a half hours of deliberation, the jury sent a note to the court indicating that it was hopelessly deadlocked. The trial court ascertained that the jury had taken several votes and there was "movement" toward unanimity. (Id . at p. 979.) The trial court told the jury to deliberate for the rest of the day and they would see where they were "at" then. (Ibid.) Trial counsel objected that if there was one hold-out juror, sending the jury for further deliberation would amount to coercion. There were two hours until the end of the day, and the jury returned its verdict an hour and 48 minutes later. The defendant raised coercion on appeal in the California courts, and the judgment was affirmed. Later, he filed a petition for a writ of habeas corpus in the federal courts. The Ninth Circuit agreed that the verdict was coerced and reversed the judgment. (Id. at p. 981.)
The decision in Jiminez is not binding on this court. (People v. Zapien (1993) 4 Cal.4th 929, 989.) Nor is it factually apposite. The Ninth Circuit itself distinguished Jiminez in Rodriguez v. Marshall (9th Cir. 1997) 125 F.3d 739. It said the judgment in Jiminez was reversed because, in returning that seemingly hopelessly deadlocked jury for further deliberations, the trial court had failed to remind the jurors that they were not to surrender their sincerely held beliefs. The court said that the lack of such an admonition, when considered with the trial courts comments indicating that it wished the jury to return a unanimous verdict, amounted to coercion. (Id. at p. 750.)
On other grounds, Payton v. Woodford (9th Cir. 2002) 299 F.3d 815, 829, fn. 11, and 827, overruled and criticized the decision inRodriguez v. Marshall, supra, 125 F.3d 739.
In this case, we are not faced with similar comments. Our trial court repeatedly told Juror No. 8 such things as, "Im in no position to say that you are right or you are wrong," "I dont want you to misunderstand that I am telling you which way to vote," and "I just want to make sure that theres a two-way discussion." Jiminez fails to persuade us that appellant was denied due process. (Jiminez, supra, 40 F.3d at p. 981.)
5. Section 12022.53 Enhancements
Appellant does not dispute the length of his sentence. His claim is that the proper disposition for the inapplicable enhancements as determined pursuant to section 12022.53, subdivision (f), was to strike the surplus enhancements, not to order them stayed. We agree.
This issue may be resolved in People v. Oates (2002) 97 Cal.App.4th 1172, review granted July 24, 2002, S106796. In Oates, the California Supreme Court will address whether more than one enhancement (§ 12022.53, subd. (d)) may be imposed for a firearm use where only one of multiple victims suffers great bodily injury.
A. Facts
The jury made the following findings of an enhancement attendant to its verdict on the underlying offense: of the use and the discharge of a firearm pursuant to section 12022.53, subdivisions (b), (c), and (d), of the infliction of great bodily injury pursuant to section 12022.7, subdivision (a), and of the infliction of great bodily injury by discharging a firearm from a motor vehicle pursuant to section 12022.55, as well as of a gang enhancement, pursuant to section 186.22, subdivision (b)(2).
At sentencing, the trial court imposed a term of life with the possibility of parole for the attempted murder. It imposed enhancements of 25 years to life for the discharge of a firearm proximately causing great bodily injury or death (§ 12022.53, subd. (d)) and of 10 years for committing a crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(2)). The trial court ordered the additional enhancements stayed pursuant to section 12022.53, subdivision (f), and section 654.
B. Statutes
Section 12022.53, subdivision (f), provides as follows: "Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An enhancement involving a firearm specified in Section 12021.5, 12022, 12022.3, 12022.4, 12022.5, or 12022.55 shall not be imposed on a person in addition to an enhancement imposed pursuant to this section. An enhancement for great bodily injury as defined in Section 12022.7, 12022.8, or 12022.9 shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d)."
Subdivision (h) of section 12022.53 provides: "Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section."
C. Analysis
There is no viable claim here that the findings amount to multiple punishment pursuant to section 654. Section 12022.53, subdivision (f), permits the use of only one enhancement for a firearm use or its discharge or for the infliction of great bodily injury. Thus, we are not concerned with the use of two different enhancements with the same or similar elements amounting to multiple punishment for the same conduct. Appellant makes no claim that the section 12022.53, subdivision (d), and the section 186.22 enhancements are cumulative within the meaning of section 654, so that we must order one of two imposed enhancements stayed. Further, the case cited by the Attorney General, People v. Kramer (2002) 29 Cal.4th 720, is not on point. It addresses whether the term of the enhancement is added to the term for the underlying offense in determining the "longest potential term of imprisonment" within the meaning of that language in section 654. Kramer does not address what to do with surplus or inapplicable enhancements. We also are not concerned with the rule that an enhancement is stayed with its underlying term pursuant to section 654 when the underlying offense violates the ban on multiple punishment. (See, e.g., People v. Smith (1985) 163 Cal.App.3d 908, 914.)
We also note, to date, the cases from court of appeal are split on the applicability of section 654 to offense-related enhancements, and the California Supreme Court has declined to address that issue in several cases. (See People v. Walker (2002) 29 Cal.4th 577, 592 & fn. 5; People v. Jones (1993) 5 Cal.4th 1142, 1152.)
Section 654 provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
We now turn to People v. Bracamonte (2003) 106 Cal.App.4th 704 (rev. den.) (Bracamonte), the only case we discovered that is on point.
TheBracamonte court construed the limitation on the imposition of enhancements found in subdivision (f) in conformity with the language in subdivision (h) and reached the following conclusions. With regard to the non-section 12022.53 enhancements enumerated there, the statutes plain language requires that these enhancements "not be imposed." In accord with section 12022.53, subdivision (f)s statutory language and the earlier authority on the issue of whether it is appropriate to impose or stay inapplicable enhancements, the court concluded that the "better rule" is that these enhancements are stricken. (People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1114-1115, 1121-1124; in accord People v. Jones, supra, 5 Cal.4th at pp. 1149-1153 [where the section 667, subdivision (a), and section 667.5, subdivision (b), enhancements arise from the same conviction, only the greatest applies, and the proper remedy is to strike the section 667.5 enhancement]; People v. Haykel (2002) 96 Cal.App.4th 146, 151 [enhancement imposed or stricken, not stayed]; People v. Jones (1992) 8 Cal.App.4th 756, 758 [enhancements stricken]; contra, People v. Vergara (1991) 230 Cal.App.3d 1564, 1568-1569 [permanent staying of enhancement equivalent to striking enhancement].) Accordingly, Bracamonte would require that we strike the section 12022.7 and the section 12022.55 enhancements. (Bracamonte , supra, 106 Cal.App.4th at p. 712.)
However, Bracamonte treated the inapplicable or surplus section 12022.53 findings addressed in subdivision (f) in a different fashion. That court concluded that there was a conflict between the provisions of subdivisions (f) and (h). It said that the only construction that seemed plausible was to treat the enumerated and the section 12022.53 enhancements differently. It reads subdivision (h) as removing from the trial court the discretion to strike the inapplicable or surplus section 12022.53 findings.
We agree with the decision in Bracamonte with regard to the enumerated non-section 12022.53 enhancements and that they are to be stricken, not stayed. However, we think the plain language of subdivision (h) requires that we also strike the inapplicable or surplusage section 12022.53 findings, rather than stay them. Subdivision (h) requires that no trial court shall "strike . . . a finding bringing a person within the provisions of this section." Where subdivision (f) makes a section 12022.53 finding inapplicable, it is no longer "within the provisions" of section 12022.53, and should be stricken.
Further, even if we found that the provisions in subdivisions (f) and (h) were inconsistent, we would construe subdivision (h) to require that the inapplicable or surplusage section 12022.53 findings be stricken. Our role in construing a statute is to ascertain the Legislatures intent so as to effectuate the purpose of the law. (Hunt v. Superior Court (1999) 21 Cal.4th 984, 1000.) We are not required to give statutory language a literal meaning if doing so would result in absurd consequences that the Legislature could not have intended. (People v .Ledesma (1997) 16 Cal.4th 90, 95.) We think it defies common sense that the Legislature intended to treat the two classes of inapplicable or surplusage enhancements in subdivision (f) differently. The limitation in subdivision (h) was enacted to guarantee that where one or more section 12022.53 enhancements is found true, the trial court is required to impose only one and the greatest section 12022.53 enhancement, and it may not strike or stay the greater enhancement and use a lesser enhancement or no enhancement so that the defendant avoids the greatest potential punishment for the use or discharge of a firearm.
In conformity with our conclusion, we hold that the trial court imposed unauthorized terms by ordering the terms for the inapplicable enhancements stayed pursuant to section 12022.53, subdivision (f), and section 654. Accordingly, we will order the inapplicable enhancements stricken, in lieu of the previous order staying those terms.
DISPOSITION
We reverse that part of the judgment imposing and staying the terms for the surplus or inapplicable enhancements described in section 12022.53, subdivision (f); here, sections 12022.53, subdivisions (b) and (c), 12022.55, and 12022.7, subdivision (a)). In lieu thereof, the findings of the following enhancements are stricken: the use and discharge of a firearm enhancements imposed pursuant to section 12022.53, subdivisions (b) and (c), and pursuant to section 12022.55, as well as the enhancement for the infliction of great bodily injury imposed pursuant to sections 12022.7, subdivision (a). As modified, the judgment is affirmed.
The superior court shall cause its clerk to amend the abstract of judgment as provided above and to send the amended abstract of judgment to the California Department of Corrections.
We concur: DOI TODD, J. and ASHMANN-GERST, J.