Opinion
C083765
06-29-2018
THE PEOPLE, Plaintiff and Respondent, v. DAMIAN LAVELL PORTER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F03935)
A jury convicted defendant Damian Lavell Porter of second degree murder and assault on a child under eight years of age by means of force likely to produce great bodily injury, resulting in the child's death. The trial court sentenced defendant to 25 years to life on the assault count, plus a stayed sentence of 15 years to life on the murder count.
In his appellant's opening brief, defendant contends the trial court coerced the verdicts by denying his request for a mistrial and ordered the jury to continue deliberating after it indicated it was deadlocked. And in a supplemental brief, defendant claims that in light of the recent passage of Assembly Bill No. 1308, this matter must be remanded to the trial court so defendant can make a record of information relevant to a future youth offender parole hearing.
We will remand the matter for the limited purpose of providing defendant a sufficient opportunity to make a record of information that will be relevant to a future youth offender parole hearing. We will otherwise affirm the judgment.
BACKGROUND
In view of the limited issues raised on appeal, we only briefly summarize the underlying facts. Additional background relevant to defendant's constitutional claim is discussed post.
In late 2012, defendant met D.B. and began dating her. On January 24, 2013, D.B. gave birth to a son. D.B. and defendant were the child's primary caregivers, although others, including D.B.'s mother, cared for him on a few occasions.
On April 8, 2013, D.B. went to work. Defendant stayed home and watched the child the entire day by himself. Around 4:52 p.m., defendant called 911 after the child stopped breathing. The 911 call was played for the jury.
When paramedics arrived at defendant's residence, the child was not breathing and had no pulse. He was cold and his skin was turning blue due to lack of oxygenation. On the way to the hospital, a tube inserted down the child's throat to assist with breathing filled with fluid from his lungs, indicating congestive heart failure. An electrocardiogram test showed no electrical activity and the child's limbs were flaccid. Following further treatment at the hospital, the child was pronounced dead from cardiac arrest.
Autopsies and x-rays revealed numerous injuries, some of which were recent and some of which were weeks old. The injuries to the child's head were in two layers. The first layer likely occurred within 10 hours of his death while the second layer occurred weeks earlier. The recent injuries, which included brain injuries and injuries to the optic nerve in both eyes, were determined to be the likely cause of death. The injuries were consistent with the child suffering a severe rotational head injury caused by significant jostling of his head from vigorous shaking or impact with a hard object (e.g., a wall). A forensic pathologist, Stephany Fiore, M.D., opined that the child's recent injuries were indicative of child abuse.
Following the child's death, defendant was interviewed multiple times by law enforcement. Except for the first interview, all of the interviews were recorded and played for the jury. He mentioned the child falling off the bed, but he could not remember any other accidents involving the child, and he denied ever grabbing the child.
D.B. and defendant were charged with second degree murder (Pen. Code, § 187, subd. (a)) and assault on a child under eight years of age by means of force likely to produce great bodily injury, resulting in the child's death (§ 273ab). After a joint trial before separate juries, D.B. was found not guilty on both counts while defendant was found guilty on both counts. The trial court sentenced defendant to 25 years to life on the assault count, plus a stayed sentence of 15 years to life on the murder count. With respect to the assault count, the information alleged a sentence enhancement under section 12022.95. The jury found this allegation true as to defendant but the trial court struck it as unauthorized at sentencing.
Undesignated statutory references are to the Penal Code. --------
DISCUSSION
I
Defendant contends the trial court coerced verdicts on both counts in violation of his constitutional rights when it refused to declare a mistrial and ordered the jury to continue deliberating after the jury indicated it was deadlocked. We disagree.
A
The jury began deliberating in the late afternoon on Friday November 18, 2016. The jury deliberated for approximately one hour before recessing for the day. The following Monday (November 21, 2016) the jury resumed deliberations and requested a readback of D.B.'s mother's testimony and Dr. Fiore's testimony. On November 22, 2016, the jury continued deliberating. At 2:52 p.m., the jury notified the trial court that it was unable to reach a verdict on both counts.
Outside the presence of the jury, the trial court stated: "[T]his jury has been out really only two days, and because there's a lot of evidence in this case and a number of issues, it's my intention to give the Moore instruction, People v[.] Moore [(2002) 96 Cal.App.4th 1105]." Defense counsel opposed the instruction and asked the trial court to declare a mistrial. The trial court denied defendant's request and instructed the jury pursuant to Moore as follows:
"I have received your note, ladies and gentlemen, and I have further directions to give you.
"It has been my experience on more than one occasion that a jury which initially reported it was unable to reach a verdict was ultimately able to arrive at verdicts on one or more of the counts before it.
"To assist you in continuing deliberations, I am going to further instruct you as follows:
"Your goal as jurors should be to reach a fair and impartial verdict, if you are able to do so, based solely on the evidence presented and without regard for the consequences of your verdict, regardless of how long it takes to do so.
"It is your duty as jurors to carefully consider, weigh and evaluate all the evidence presented at the trial, to discuss your views regarding the evidence, and to listen to and consider the views of your fellow jurors.
"In the course of your further deliberations, you should not hesitate to reexamine your own views or to request your fellow jurors to reexamine theirs.
"You should not hesitate to change a view once held if you are convinced it is wrong or to suggest other jurors change their views if you are convinced they are wrong. Fair and effective jury deliberations require a frank and forthright exchange of views.
"As I previously instructed you, each of you must decide the case for yourself, and you should do so only after a full and complete consideration of all of the evidence with your fellow jurors.
"It is your duty as jurors to deliberate with the goal of arriving at a verdict on the charges, if you can do so without violence to your individual judgment.
"Both the People and the Defendant are entitled to the individual judgment of each juror.
"As I previously instructed you, you have the absolute discretion to conduct your deliberations in any way you deem appropriate. May I suggest that since you have not been able to arrive at a verdict, using the methods that you have chosen, you consider changing the methods you have been following, at least temporarily and try new methods.
"For example, you may wish to consider having different jurors lead the discussions for a period of time or you may wish to experiment with reverse role playing by having those on one side of an issue present and argue the other side's position and vice versa. This might enable you to better understand the others' positions.
"By suggesting you should [consider] changes in your methods of deliberations, I want to stress I am not dictating or instructing you as to how to conduct your deliberations. I merely suggest that you may find it productive to do whatever is necessary to insure each juror has a full and fair opportunity to express his or her views and consider and understand the views of the other jurors.
"I also suggest you reread instructions 200 and 3550. These instructions pertain to your duties as jurors and make recommendations on how you should deliberate.
"The integrity of a trial requires that jurors at all times during their deliberations conduct themselves as required by the instructions. Instructions 200 and 3550 define the duties of a juror.
"The decision the jury renders must be based on the facts and the law. You must determine what facts have been proved from the evidence received in the trial and not from any other source. A fact is something proved by the evidence or by stipulation.
"Second, you must apply the law as I state it to you to the facts as you determine them, and in this way arrive at your verdict. You must accept and follow the law as I state it to you, regardless of whether you agree with the law. If anything concerning the law said by the attorneys and their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions.
"Instruction 3550 defines the jury's duty to deliberate.
"The decisions you make in this case must be based on the evidence received in the trial and the instructions given by the Court. These are the matters this instruction requires you to discuss for the purpose of reaching a verdict.
"Instruction 3550 also recommends how jurors should approach their task. You should keep in mind the recommendations this instruction suggests when considering the additional instructions, comments and suggestions I have made in the instruction now presented to you. I hope my comments and suggestions are of some assistance to you.
"You are ordered to continue your deliberations when you resume at 9 o'clock on Monday morning.
"If you have other questions, concerns, requests or any communications you desire to report to me, please put those in writing on the form the bailiff has provided. Have them signed and dated by your foreperson, and then please notify the bailiff.
"If after further deliberations no progress is being made and you remain at an impasse, you may advise me of that."
After the trial court gave this instruction, the jury recessed for the remainder of the week for the Thanksgiving holiday. On Monday November 28, 2016, the jury resumed deliberations and requested a readback of a paramedic's testimony and Dr. Fiore's testimony. On November 29, 2016, the jury continued deliberating and indicated that it had reached a verdict at 4:10 p.m., after requesting a readback of the emergency room physician's testimony.
B
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 jury's independent judgment 'in favor of considerations of compromise and expediency.' [Citation.]" (People v. Breaux (1991) 1 Cal.4th 281, 319.) "The question of coercion is necessarily dependent on the facts and circumstances of each case." (People v. Sandoval (1992) 4 Cal.4th 155, 196.)
In People v. Moore (2002) 96 Cal.App.4th 1105 (Moore), this court expressly approved the supplemental jury instruction given by the trial court. In that case, we held that the instruction was a valid instruction because "[t]he trial court did not direct the jurors that 'the case must at some time be decided.' " (Id. at p. 1121.) Instead, "the court instructed that the 'goal as jurors should be to reach a fair and impartial verdict if you are able to do so based solely on the evidence presented and without regard to the consequences of your verdict [or] regardless of how long it takes to do so.' " (Ibid, original italics.) We continued: "Nothing in the trial court's charge was designed to coerce the jury into returning a verdict. [Citation.] Instead, the charge simply reminded the jurors of their duty to attempt to reach an accommodation. [¶] Additionally, the court directed the jurors to consider carefully, weigh and evaluate all of the evidence presented at trial, to discuss their views, and to consider the views of their fellow jurors. Finally, the court instructed that it was their duty as jurors to deliberate with the goal of arriving at a verdict on the charge 'if you can do so without violence to your individual judgment.' " (Ibid, original italics.) Several years after Moore, in People v. Whaley (2007) 152 Cal.App.4th 968, 974-977, 979-985, the Court of Appeal, Sixth Appellate District approved of the same instruction, citing Moore.
On appeal, defendant does not discuss Moore or Whaley. Instead, he argues that the supplemental jury instruction was coercive because it implied the jury would not be discharged until it reached a verdict on the charges. This court rejected a similar argument made by the defendant in Moore. In doing so, we explained: "Contrary to defendant's argument on appeal, the jury was never directed that it was required to reach a verdict, nor were any constraints placed on any individual juror's responsibility to weigh and consider all the evidence presented at trial. The trial court also made no remarks either urging a verdict be reached or indicating possible reprisals for failure to reach an agreement. In short, it is clear the trial court took great care in exercising its power 'without coercing the jury into abdicating its independent judgment in favor of considerations of compromise and expediency. . . . Nothing in the trial court's comment in the present case properly may be construed as an attempt to pressure the jury to reach a verdict. . . .' " (Moore, supra, 96 Cal.App.4th at p. 1121.)
We see no reason to depart from Moore. The trial court did not err in giving the supplemental instruction.
II
In a supplemental brief, defendant claims that in light of the recent passage of Assembly Bill No. 1308, this matter must be remanded to the trial court so defendant can make a record of information relevant to a future youth offender parole hearing. We agree.
On October 11, 2017, the Governor signed into law Assembly Bill No. 1308, which amended section 3051 to raise the age of those eligible for youth offender parole hearings from those who were under 23 years old to those who were 25 years of age or younger when they committed their controlling crime. (Stats. 2017, ch. 675, § 1 [eff. Jan. 1, 2018].) Under current law, a person who committed an offense when he was 25 years of age or younger for which the sentence is a term of 25 years to life is eligible for release at a youth offender parole hearing during his 25th year of incarceration. (§ 3051, subd. (b)(3).) At the hearing, the Board of Parole Hearings, in reviewing a prisoner's suitability for parole, must "give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law." (§ 4801, subd. (c).)
It is undisputed that defendant was 23 years old at the time he committed the offense for which he was sentenced to a prison term of 25 years to life. At the sentencing hearing in December 2016, there was no need to create a record of information relevant at a future youth offender parole hearing because, at that time, section 3051 only authorized youth offender parole hearings for those under 23 years of age when they committed their controlling crime. (Stats. 2015, ch. 471, § 1 [eff. Jan. 1, 2016].) In light of the recent amendment to section 3051, defendant asks us to remand this matter to the trial court so he can make a record of information that will be relevant at his future youth offender parole hearing.
We conclude a limited remand is warranted. The amendment to section 3051 enacted by Assembly Bill No. 1308 renders defendant eligible for a youth offender parole hearing on his "25th year of incarceration." (§ 3051, subd. (b)(3).) Felons eligible for youth offender parole hearings are entitled to a sufficient opportunity, preferably at or near the time of the offense, to assemble a record of information for their eventual hearings. (People v. Franklin (2016) 63 Cal.4th 261, 283-284.) Because defendant did not have the opportunity at sentencing to make such a record, we will remand for that purpose.
DISPOSITION
The matter is remanded for the limited purpose of providing defendant a sufficient opportunity to make a record of information that will be relevant at a youth offender parole hearing pursuant to section 3051. In all other respects, the judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
BUTZ, J.