Filed 5/15/15 P. v. Jackson CA3
NOT TO BE PUBLISHED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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C074150
Plaintiff and Respondent, (Super. Ct. No. SF118777A)
v.
DAVON ARTHUR JACKSON,
Defendant and Appellant.
In July 2012, a jury found defendant Davon Arthur Jackson guilty of second
degree robbery of one victim (also finding he personally fired a gun during the
commission of a robbery), and of assault with a firearm of another victim (finding he
personally used a gun). After denying a motion for a new trial, the trial court sentenced
defendant to state prison in June 2013 to an aggregate term of 27 years four months (the
details of which we address in the Discussion). Defendant filed a timely appeal.
1
To reorder the contentions, defendant asserts the trial court committed reversible
error in reopening voir dire after swearing the jury and alternates; there is insufficient
evidence that he was the person who committed the offenses; the trial court erroneously
denied the motion for new trial based on juror misconduct; he did not fire a gun during
the commission of a robbery within the meaning of the enhancement statute; he cannot
be punished separately for both gun enhancements; and the trial court erred in imposing
sentence. The People concede the latter (though not defendant’s proposed remedy).
We shall affirm the convictions and remand for resentencing.
FACTUAL BACKGROUND
The facts underlying the offenses are straightforward. It is the identification
testimony on which we need to elaborate.
The robbery victim was at a park in Stockton in the late afternoon of August 28,
2011. He was sitting on a bench while his young daughter and niece played. Two young
men approached him. They wore T-shirts as masks over their lower faces. One stood in
front of him, placing a gun against the victim’s temple and demanding his wallet. The
other stood behind the victim. The victim stood up, saying he did not have any money.
The gunman and his companion wrestled the victim to the ground on his back. The
gunman pressed his weapon against the victim’s neck. The victim surrendered his wallet.
A cabinetmaker (the victim of the firearm assault) was working on his girlfriend’s
rental property near the park, when he heard the screams of young girls. He looked in
their direction and saw them running from the park, while two men were standing over a
man on the ground. The two men had T-shirts pulled over their heads, revealing their
torsos, and were rifling though the man’s pockets. The cabinetmaker thought one of the
men, who was wearing a dark T-shirt, was holding a knife to the victim’s neck. The
cabinetmaker grabbed a hammer and ran in their direction. The robbers ran off with him
2
in pursuit. The one who had held the object to the victim’s throat looked back at his
pursuer and fired a gun into the air.
The cabinetmaker ran over to the victim, who did not respond to his questions.
The cabinetmaker returned to the rental property and told his girlfriend to call the police.
He got into his truck and took off after the robbers. He caught sight of them walking
down the street, and followed from a half-block back. The gunman kept looking back at
him over his shoulder. After turning a corner, they started to run. The cabinetmaker
stopped his truck at the corner. From about 100 feet down the block, the gunman
stopped, turned around, and pointed the gun at the truck. He fired the gun, but did not hit
either the cabinetmaker or the truck. Eventually, the two jumped a fence and evaded
their pursuer.
The girlfriend gave her cell phone to the robbery victim to talk to 911. He
apparently told the dispatcher that he had not seen the robbers’ faces clearly because of
the T-shirt masks, one of which was dark (although he did not remember at trial what he
had said during the call).1 One of the responding officers spoke with the victim, who was
in a great deal of pain because the robbers had broken his elbow. Meanwhile, the other
responding officer went in search of the robbers; he had received a report that they were
both wearing white shirts. He saw two people resembling the description and made a
U-turn, at which point the two men started to run off. When the officer at the park heard
a report that the other responding officer was in pursuit of suspects, she left the park to
join him.
The two officers captured one of the suspects and put him in the back of the patrol
car. When the suspect heard a radio report of the description of another person under
pursuit—wearing a white shirt and khakis—the captured suspect blurted out defendant’s
1 More on this topic will be described later.
3
name, said he was defendant’s buddy, and offered to show the officers where defendant
was staying. The police did not find any other young men matching the description of
the robbers in the neighborhood.
The officers brought defendant’s buddy back to the park for an infield
identification; this was about 15 minutes after the robbery. The victim was certain the
buddy was the unarmed robber. Returning to the park, the cabinetmaker told the officer
that the gunman had braids about six inches long and was wearing a dark T-shirt. (The
officer wrote in her report that the cabinetmaker said it was the unarmed robber who was
wearing the dark T-shirt, which the cabinetmaker testified was wrong.) He also told the
officers that he had not paid much attention to the unarmed robber’s appearance and
could not identify defendant’s friend.2
In a police interview, defendant’s friend admitted he had been to the park earlier
in the afternoon, and defendant may have gone there separately as well before him. They
were walking down the street after buying cigarettes when they saw a police car make a
U-turn; defendant started running because he was a fugitive from his group home,3 and
the friend followed. The friend said defendant was staying with his (defendant’s) father,
and offered to provide the address.
In early October 2011, the cabinetmaker picked a short-haired picture of defendant
as the gunman after viewing a lineup for 10 seconds. He recognized the eyes, nose, and
shape of the face. The parties stipulated that defendant eventually was arrested later that
2 Because the cabinetmaker was unable to identify defendant’s friend in juvenile court,
delinquency allegations against him for the robbery were dismissed for insufficient
evidence; it does not appear the robbery victim's identification was part of the record
in that case. Defendant’s friend did not testify at defendant’s trial.
3 Defendant, who turned 16 the day after the robbery, was the subject of a delinquency
placement for being a minor in possession of a firearm (a fact not shared with the jury).
4
month (avoiding the disclosure that he was found in custody on yet another unrelated
charge).
At the preliminary hearing, the robbery victim identified defendant in court as the
gunman. He had been able to see only the face of the gunman, and had not noticed his
hair. He remarked several times on how similar defendant and his friend appeared,4 to
the point he was not now sure which one was the gunman. Both robbers had white
masks. The cabinetmaker described defendant (in identifying him in court) as “look[ing]
very similar” to the gunman, though with different hair.
At trial, the robbery victim again identified defendant as the gunman and his friend
(from a photo) as the other robber. However, he once again testified that he found it hard
to tell them apart. He was adamant both wore white shirts; if his 911 call had suggested
otherwise, he had misspoken or the translator misinterpreted his description of the
robbers as being dark. The cabinetmaker again identified defendant as the gunman. He
explained his description of defendant at the preliminary hearing as “similar” meant only
that his hair was different, “but the face . . . he’s the one I saw in the lineup.” He was
not sure if defendant was still wearing a dark T-shirt when he was following him in the
truck. He again admitted that he had not paid much attention to the unarmed robber with
the “lighter” T-shirt.
An employee at defendant’s group home had been transporting him to juvenile
hall three days before the robbery. Defendant fled the car; he did not have a cell phone
or any money with him. His hair for the two months he had been in the group home was
either the same length as or slightly longer than it appeared at trial. The employee
informed defendant’s probation officer (who filed a violation of probation with the court
4 The photos in the record demonstrate a general overall resemblance, both teens having
clean-shaven rounded faces, round eyes, short hair, and similar eyebrows. We note the
robbery victim was a middle-aged man of a different race.
5
the next day). Another group home employee estimated the length of defendant’s hair
when he was in the group home as a half-inch to an inch long, too short for braids or corn
rows.
A stylist, testifying as an expert for the prosecution, stated that in her 20 years of
experience she had never seen a man get “twisties” (short braids)—a popular trend—
made with anything other than their own hair, or get hair extensions. The latter can cost
$200 or more, take up to eight hours to attach, and need at least a half-inch of natural hair
as a foundation. In her opinion, the length of defendant’s hair at trial was too short for
extensions.
DISCUSSION
1.0 Defendant Is Foreclosed from Challenging the Error in Reopening Voir Dire
1.1 Background
After the jurors and the three alternates took their oath and left the courtroom, the
prosecutor stated, “I made the biggest brain fart. I meant to kick a [juror] off who said
she could not be fair. . . . I totally forgot to kick her off. I’m begging the court to let me
kick her off,” adding, “she was basically going to vote not guilty even if she found him
guilty.”5 The court responded that the prosecutor was “stuck with whoever you got at
this point,” because “[i]f we did that, we would have to do it for everyone every time they
decide, gee, I forgot,” acknowledging that “[the proposed juror] did have some answers.”
After a few minutes of discussion of procedural matters, the bailiff interjected,
“[B]efore we go off the record, I need to advise the bench—I meant to and forgot, it
slipped my mind—[that] . . . I’ve always referred to [Juror No. 9] as my niece. . . .
[She’s] not [a] blood relative[] or related to [me] in any manner . . . .” When the court
5 Surely on the record in front of a trial judge, counsel could have found a less puerile
metaphor for his dereliction.
6
asked if this gave either party “cause” to “reopen” (a nonexistent standard, as we shortly
explain) the prosecutor quickly responded affirmatively; defense counsel stated, “I don’t
have a problem with [that]” (it being unclear whether the antecedent was the relationship
with the bailiff or the prosecution’s request to reopen voir dire), adding that he wanted
the court to allow him to excuse anyone else on the jury as well. Pointing out that jury
selection would need to start over if the parties excused more jurors than the number of
available alternates (three), the court agreed to “reopen given the twist there.”
When the jury arrived for trial the next day, the court told them voir dire would
resume. After confirming her relationship with the bailiff, the prosecutor asked one
question of Juror No. 9: “[E]arlier you had said that you’d be inclined to vote not guilty
no matter what the evidence because of [defendant’s] age. I don’t want to reopen that
discussion, but what I’m wondering is would you be at all uncomfortable doing that,
knowing that a close friend of yours is going to find out about that?” She said “No.”
Defense counsel did not have any questions. The prosecutor then excused the juror.
Defense counsel thereafter excused two other jurors, before both parties passed for cause
and the newly constituted jury took its oath.
1.2 Analysis
Apparently the trial court and parties were unaware of People v. Cottle (2006)
39 Cal.4th 246, which confirmed that in 1989 the Legislature eliminated a trial court’s
statutory authority to reopen voir dire for any reason. (Id. at pp. 249, 255, 258-259, citing
Pen. Code, § 1089;6 Code Civ. Proc., §§ 226, 231, subd. (d), 233, 234 [therefore not error
to deny defendant’s request to reopen].)
On the merits, defendant asserts the reopening of voir dire was a structural error
implicating his protection from double jeopardy in some fashion and his right to a jury
6 Undesignated statutory references are to the Penal Code.
7
trial, which requires reversal without a showing of prejudice. He further contends he may
raise the issue on appeal because it was necessary to obtain his express personal waiver
of these rights, and because the trial court lacked jurisdiction to reopen voir dire. As we
disagree with the latter points, we conclude he is foreclosed from raising the merits of the
issue on appeal.
Not only did defense counsel not object to the reopening of voir dire, his conduct
affirmatively transformed a hearing on whether there was good cause to discharge a juror
(§ 1089) for refusal to perform her duty of applying the court’s instructions to the
evidence at trial (a standard here arguably satisfied as a matter of law)—into renewed
voir dire. Once defense counsel excused two other jurors for no reason at all, the
proceeding indisputably became renewed voir dire. A defendant cannot challenge any
defects in the process of selecting a jury that occurred through acquiescence or invitation.
(People v. Mata (2013) 57 Cal.4th 178, 185 [consent should be implied when party fails
to object and continues to participate in proceeding challenged on appeal (there, reseating
an improperly challenged juror)].) Defendant is also incorrect that trial counsel’s action
or inaction cannot forfeit his rights; requesting a mistrial, or choosing whether or not to
continue with a particular juror or jury, are not among the constitutional rights we deem
to be so fundamental that a defendant’s express personal waiver of these is necessary.
(Ibid.) Defendant completely disregards Mata, even after the People cited it in their
brief.7
Defendant’s reliance on Cowan v. Superior Court (1996) 14 Cal.4th 367 to
contend we must reach the issue because the trial court lacked jurisdiction is mistaken.
7 Defendant does, however, raise “the futility of objecting” in his reply brief for the first
time as an excuse from forfeiture/invited error. We do not give plenary attention to this
claim (People v. Elder (2014) 227 Cal.App.4th 1308, 1315, fn. 9), and thus observe only
that the facts do not support an assertion of this excuse.
8
Cowan involved a defendant who wanted to enter an express personal waiver of the
statute of limitations in order to enter a plea to a lesser offense. The question was not
whether the defendant’s express personal waiver was adequate, as defendant seems to
suggest. Rather, the court was focused solely on whether the statute of limitations
involves a trial court’s jurisdiction in the “fundamental” sense, i.e., the power to proceed
because it has both personal and subject matter jurisdiction (the latter of which the parties
cannot confer by consent). It concluded that the procedure in question was merely in
excess of the trial court’s jurisdiction, rather than one over which the trial court lacked
fundamental jurisdiction. (Cowan, at pp. 373-374.) The trial court in the present case
had fundamental jurisdiction over the parties and subject matter; its actions (to which
defense counsel gave at least implicit consent) were simply in excess of the trial court’s
statutory authority8 to conduct voir dire. As a result, defendant’s objection on appeal
to the erroneous procedure in the trial court is foreclosed and we do not reach the merits,
beyond advising the prosecutor to refrain from requesting to reopen voir dire (and the
trial court from granting such request) in the future for any reason after the jury has taken
its oath—if there is an objection from defense counsel, this will embed reversible error.
2.0 The Identification Evidence Is Not Insufficient as a Matter of Law
Defendant understandably takes issue with the sufficiency of the evidence of his
identity as the gunman, given the equivocal nature of the record. We conclude on close
examination that ultimately this was a question of the weight to be given to the evidence
of identity, rather than hold this to be one of the rare cases in which we may override a
verdict of guilt because it did not have a rational basis.
8 Although defendant complains of the lack of statutory authorization to reopen voir dire,
a proper example of a lack of fundamental jurisdiction on the basis of statute would be an
unlimited civil case brought in the wrong tribunal, or a limited civil case appealed to the
wrong tribunal. (See Ytuarte v. Superior Court (2005) 129 Cal.App.4th 266, 274-275.)
9
There are two steps in reviewing the sufficiency of the evidence. We first resolve
all explicit evidentiary conflicts in favor of the judgment, and presume all reasonable
inferences in its favor. We then determine whether the evidence thus assembled is
substantial. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627,
1632-1633 (Kuhn).) In the latter part of our review, we do not blindly seize any
supporting evidence to affirm the judgment; we do not exist merely to echo the findings
of the trier of fact. (Id. at p. 1633.) The ultimate question is whether a reasonable person
could have made the necessary finding of fact in light of the record as a whole. (Ibid.)
Although inferences may constitute substantial evidence in support of a finding,
they must be the probable outcome of logic applied to direct evidence, not speculation or
conjecture. (People v. Herrera (2006) 136 Cal.App.4th 1191, 1205; Kuhn, supra,
22 Cal.App.4th at p. 1633; People v. Berti (1960) 178 Cal.App.2d 872, 876.) Whether an
inference rationally flows from the evidence is a question of law. (California Shoppers,
Inc. v. Royal Globe Ins. Co. (1985) 175 Cal.App.3d 1, 44-45; Berti, supra, at p. 876.)
We begin with the red herring of defendant’s lengthy emphasis on the conflicting
evidence of white and black T-shirts. Though apparently the 911 transcription of his call
described dark shirts, the robbery victim testified at both the preliminary hearing and at
trial that the shirts were white, and that either he misspoke in attempting to convey that
the robbers were dark-skinned or the 911 operator did not correctly perceive him. As for
the Samaritan cabinetmaker, his perception of a dark shirt (regardless of whether the
police attributed his description to the correct robber) could also be rationally reconciled
with seeing the dark torsos of the two robbers in the heat of the moment. In any event,
defendant fails to demonstrate how the color of the T-shirts plays any material part in the
legal sufficiency of his identifications as the gunman. It is not as if either witness relied
on the color of defendant’s shirt to connect him with being the gunman in the crimes; this
10
was nothing more than a mere incidental detail to be considered in assessing the weight
of the identifications.
Although the robbery victim’s admitted inability to distinguish clearly defendant’s
appearance from that of his friend might in other circumstances fatally undermine any
reliance on his identification of defendant as the gunman, on the present record it only
confirms the accuracy of the identification. The victim had been focused only on the
gunman, and not the other person standing behind him. Nevertheless, he identified
defendant’s friend 15 minutes later as one of the robbers; to the extent his confusion had
any impermissible role, it was in incriminating the friend on the basis of his resemblance
to the face at which the victim had been staring. Defendant has not posited any scenario
under which the fact he resembles his friend renders insufficient as a matter of law the
victim’s subsequent identification in court of defendant as the face the victim had seen
during the robbery (and had reaffirmed by the infield identification with a similar face
shortly afterward). It is not as if there was an issue in this trial as to which of them was
the gunman.
As there is a single witness on whom the jury’s verdict can properly rest, we could
stop our analysis here. (See In re Marriage of Mix (1975) 14 Cal.3d 604, 614-615.)
However, we do not find that reliance on the other identification would be so irrational
that it would render the verdicts infirm, even if it were the sole basis for them.
The issue of hair extensions as an explanation for the cabinetmaker’s observation
of short braids was fair game for the jury’s consideration, even without the expert’s
opinion on the matter. The parties called this consideration to the attention of the jury.
An ability to alter one’s appearance is a rational inference, not improper speculation. If a
robber is described as having a mullet or a beard, a defendant lacking any similar
antecedent or subsequent hirsute attributes is not exonerated of guilt; it is for the jury to
decide the likelihood of disguise. It would only be where a change in appearance is so
11
unlikely to have been achieved under the circumstances that we would need to
disapprove such an inference as irrational.
Although the expert stylist did not think defendant’s hair at trial was long enough
for extensions, she admitted that only a half-inch of hair was needed to attach them, and
the witnesses from the group home established that defendant’s hair had been longer than
at trial, and in excess of this minimum. Furthermore, to the extent a woman of her
experience was unaware of men who used extensions (as opposed to teens in defendant’s
age group), defendant had absconded from his group home and thus had a motivation to
alter his appearance even if he were not inclined otherwise to do so. If defendant’s father
was willing to let him stay with him, it is rational to infer the father could also have
arranged for the extensions to help keep his son from returning to his group home. This
line of reasoning thus is a proper basis for crediting the cabinetmaker’s identification of
defendant with having longer hair at the time of the crimes.
In any event, the length of defendant’s hair—like the color of the shirts—is in the
end incidental to the weight of the identification. While the cabinetmaker distinguished
between the robbers on the basis of defendant’s hair length, he identified defendant as the
gunman on the basis of facial features. Therefore, even if he saw braids that were not
there, it is simply part of the jury’s evaluation of the extent to which they should credit
this identification.
We would not suggest this is the strongest quantum of evidence on the issue of
identity. However, it is sufficient to convince us a rational trier of fact could have based
a verdict of guilt on it. We therefore reject defendant’s argument.
3.0 Defendant Failed to Establish Jury Misconduct
3.1 Criteria for Evidence of Jury Misconduct
We lay out the criteria for evidence of jury misconduct at the threshold because
defendant largely overlooks them in his account of the record on this point. (Indeed, his
12
opening brief is replete with references to inappropriate evidence in the course of his
argument.) A motion for new trial that is premised on jury misconduct involves one of
the paradigmatic “three-step” analyses. The trial court must first determine the
admissibility of evidence submitted with the motion. Only then does it determine if the
facts in the admissible evidence establish a presumption of misconduct. Finally, it
evaluates whether this presumption is rebutted, i.e., if it is not prejudicial. (People v.
Vigil (2011) 191 Cal.App.4th 1474, 1483-1484.) Although ordinarily we review a trial
court’s determination on a motion for new trial for abuse of discretion, the finding of
error—whether a presumption of misconduct arose—and the finding of whether the
People rebutted it that underlie the ruling are the subject of our review de novo. (People
v. Collins (2010) 49 Cal.4th 175, 242 & fn. 31 (Collins); People v. Nesler (1997)
16 Cal.4th 561, 582 & fn. 5.)
With respect to the initial step, only otherwise admissible evidence of objectively
ascertainable overt acts is admissible as proof of jury misconduct; evidence of subjective
reasoning is not—indeed, it is without any substantive “jural consequence.” (People v.
Steele (2002) 27 Cal.4th 1230, 1261, 1264; People v. Hill (1992) 3 Cal.App.4th 16, 30
(Hill); Evid. Code, § 1150.) A trial court must be exacting in applying these criteria.
(Collins, supra, 49 Cal.4th at p. 249.)
We review the admission of evidence of misconduct for an abuse of discretion
(Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 345), which is established where a trial
court does not apply the law correctly (People v. Hume (2011) 196 Cal.App.4th 990,
995). While parties generally may waive evidentiary objections to documents, it is not
permissible to treat unsworn statements as though they had been made under penalty of
perjury in order to attack a jury verdict for misconduct. (People v. Bryant (2011)
191 Cal.App.4th 1457, 1470.) As for the evidence submitted in support of the motion, it
is not necessary for the prosecutor, as prevailing party, to obtain rulings on any objections
13
to evidence of subjective reasoning in order to renew them on appeal, given the absence
of any evidentiary value as a matter of law. (Hill, supra, 3 Cal.App.4th at p. 33, fn. 5.)
Regardless of the evidence presented in the trial court, it is proper for us to limit
our account of the record in this opinion to the admissible evidence. (Collins, supra,
49 Cal.4th at p. 250.)
3.2 Factual and Procedural Background
The jury deliberated for little more than one hour before tentatively announcing
that it had reached a verdict, but asking whether there was a typographical error in a
verdict form. (One of the enhancement verdict forms lacked the option of a negative
finding.) After the trial court convened with the parties a couple of hours later to correct
the form and resubmit it to the jury, the jury returned its verdicts within a few moments.
Defendant filed a motion for new trial premised on the following facts, in which he
contended there was misconduct during deliberations.
The prosecutor had introduced a photograph of defendant with a relative in which
it looked as if defendant were making hand gestures associated with gangs (though for all
it appears he could simply have been emulating a music video). The photograph includes
the caption “ATK Shit Bout Cheese” and defendant’s younger relative appears to be
holding fanned slices of cheese in his hand, as one might display dollar bills. The exhibit
was for the purpose of demonstrating defendant had short hair on September 5, 2011, just
days after the crimes. As part of the stipulation regarding the exhibit that he read to the
jury, the prosecutor admonished that “despite the hand gestures in there, there’s no
allegation of gang anything, no gang affiliation, no gang signs. . . . [I] didn’t want
anybody to think that there was any gang association at all with [defendant].”
A defense investigator spoke with Juror No. 2 after trial. In the investigator’s
unsworn statement attached to the motion relating hearsay statements, he said that during
a phone conversation with the juror, the latter had subjective misgivings about much of
14
the trial. Bringing up the issue of the exhibit, the investigator asked (impermissibly)
about any effect it may have had on the jury’s deliberations; the juror’s answer noted that
it had been the subject of discussion. The investigator met with the juror in person,
renewing the question about the exhibit. The juror again said “it was openly discussed by
the jury for a short time,” and added further subjective misgivings about finding
defendant guilty. The juror agreed to send a letter to defense counsel.
This unsworn letter once again expressed the juror’s subjective misgivings about
the fairness of the trial. He also expressed the belief (unconnected with overt statements)
that the exhibit “planted the seed . . . that [defendant] could indeed be a gang member” in
“the other jurors,” as well as himself.
The prosecutor filed written opposition to the motion. He asserted the evidence
submitted with the motion was inadmissible. He also represented that he (and perhaps
defense counsel) had spoken with all the jurors after trial to ask (impermissibly) about
whether the exhibit may have had any effect on deliberations, at which time everyone
shook their heads and the foreperson said that the jury had not considered it at all. For
this reason, the prosecutor asserted that the juror’s claim about discussing defendant’s
gang membership was not credible.
Six months later, the court held a hearing on the new trial motion. The trial court
allowed defense counsel to call the juror as a witness without addressing the admissibility
of the evidence submitted with the motion.
On the issue of any overt discussion of the exhibit (the sole cognizable element of
his testimony),9 the juror said, “it sort of like fueled the fire that [defendant] was a gang
9 The parties questioned the witness at length about subjective thought processes without
any objection from each other, or any intercession from the trial court. (Collins, supra,
49 Cal.4th at p. 249 [trial court must take great care in conducting hearing to keep within
confines of admissible evidence on this issue].)
15
member. I believe something was said about disregarding the hand gestures . . . , that
they . . . may or may not be gang [gestures].” He explained, “when I say, ‘Fueled the
fire,’ . . . jurors were talking like he . . . could have had gang members . . . help him put
dreadlocks on or take them off, or that was the discussion at the time, that most definitely
he was a gang member if he’s making gang signs, even though nobody said” (italics
added), indicating this was his interpretation of the other jurors’ comments. When
defense counsel asked if there had been more than one juror who stated defendant was a
gang member, the juror vaguely replied, “there was considerable . . . conversation.”
During his cross-examination (in which his evasiveness leaps from the reporter’s
transcript), the juror claimed to know what the other jurors were thinking on the subject
of gang membership because “we talked about it”; however he admitted he was
speculating that the other jurors voted guilty based on the photo exhibit, and “nobody
specifically said” that “ ‘I think he’s a gang member because I saw that photo.’ ” The
juror also conceded he did not say anything about this when speaking with the prosecutor
after trial. Finally, he mentioned that he learned during his face-to-face meeting with the
investigator that defendant was facing a 30-year sentence.
In a brief redirect examination, the juror indicated “there was talk about the hand
gestures, on what they were, what . . . they meant, what does the word ‘cheese’ mean. . . .
And there was a lot of discussion about the photo. And there was a lot of discussion
about what a good ploy [the admonition] was” as a means for pointing out that defendant
was a gang member “without specifically saying he was a gang member.” (The juror
likened it to telling someone not to think about pink elephants.) The parties then
stipulated that the investigator’s written statement was an accurate offer of proof of his
testimony, in lieu of continuing the hearing (again) to call him as a witness.
During argument, neither party discussed the issue of admissibility of evidence
(beyond the prosecutor, after focusing his argument on the juror’s lack of credibility,
16
adding that there was a need for a stronger “foundation” before tossing out a verdict). In
denying the motion, the court remarked, “I don’t think I’m going to overturn it on the
basis of what [the juror] has told,” alluding (in a link unclear to us) to the juror basing his
vote on the certitude of the other jurors (an inadmissible fact). The trial court then said,
“society the way it is now, it talks somewhat about gangs, but not be unusual [sic]. [¶]
We . . . I would be more concerned if we didn’t [give the admonishment with the
exhibit]. [¶] We did tell them that and I assume they followed the . . . instructions . . .
and didn’t speculate . . . .” The court did not expressly discuss the admissibility of the
submitted evidence, or the credibility of the juror’s testimony (which, if indeed credited,
would belie its reliance on the presumption jurors follow a court’s instructions). (People
v. Cissna (2010) 182 Cal.App.4th 1105, 1119 [evidence of disregard of one instruction
belies presumption otherwise].) However, given our de novo review of the issue, the
adumbrative nature of this reasoning need not concern us.
3.3 Analysis
A trial court should conduct an evidentiary hearing only if defense counsel has
produced “evidence demonstrating a strong possibility that prejudicial misconduct has
occurred.” (People v. Hedgecock (1990) 51 Cal.3d 395, 419.) The meager showing in
the unsworn and hearsay accounts submitted with the motion hardly seems to satisfy this
standard. “Unsworn statements cannot be used to establish juror misconduct” (People v.
Vallejo (2013) 214 Cal.App.4th 1033, 1043), nor can hearsay statements (ibid.; People v.
Williams (1988) 45 Cal.3d 1268, 1319 & fn. 5 [further suggesting in the footnote that a
trial court should not conduct an evidentiary hearing based on such evidence].) The trial
court thus arguably committed an error of law in basing its decision to hold a hearing on
the “evidence” before it, which accordingly was an abuse of discretion. Therefore, its
denial of the motion on the merits could not have prejudiced defendant.
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In any event, the overt evidence on the issue is limited to juror statements that
defendant was a gang member based on his appearance in the photo exhibit, and that
gang cohorts may have assisted him in disguising his usual appearance. But “prejudice”
from gang membership arises only where it is a basis for a finding of guilt in lieu of the
evidence at trial. (People v. Doolin (2009) 45 Cal.4th 390, 438-439.) Defendant failed
to supply any evidence to this effect. Indeed, as noted above, the juror admitted that
there was at least one comment heeding the admonition not to consider gang evidence
(“I believe something was said about disregarding the hand gestures”). As the trial court
appeared to be indicating, in the present day it is impossible to prevent some speculation
about gangs in the course of a criminal jury’s deliberations, but providing an admonition
is expected to counteract any casual conversations about the subject actually playing any
part in finding a defendant guilty. (People v. Avila (2009) 46 Cal.4th 680, 727 [transitory
discussion of impermissible subject generally innocuous, especially where reminders
from jurors of prohibition on discussion].) As for the jurors possibly discussing any
assistance from gang members as one possible explanation for the apparent change in
defendant’s appearance, this does not mean the jury premised its chain of reasoning on
this taboo topic; the evidence does not include any statements that only gang affiliation
could explain this inconsistency in the identification, as opposed to assistance from any
others in defendant’s circle, or the father with whom he was staying. Consequently, on
independent review of the limited amount of overt evidence in the equivocal testimony
of the penitent juror, we agree that defendant failed to establish prejudice.
4.0 Defendant Fired a Gun During the Commission of the Robbery
Just before closing arguments, the court granted the prosecutor’s motion to amend
the information to allege an enhancement pursuant to “section 12022.53[, subdivision]
(c)” for the count of robbery, and pursuant to “section 12022.5[, subdivision] (a)(1)” for
the count of firearm assault. The jury was accordingly instructed as to the former that,
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“you must . . . decide whether . . . defendant personally and intentionally [fired] a [gun]
during [a robbery] . . . . [¶] To prove this allegation, the People must prove that . . .
defendant personally [fired] a [gun] during the commission of the crime,” and that the
commission of a robbery continues until the robbers reach a place of temporary safety.
It received a verdict form asking it to “find that in the commission . . . of the above
offense, . . . defendant personally used a firearm . . . within the meaning of . . . section
12022.53[, subdivision] (c).” As noted above, the jury sustained this allegation.
On appeal, defendant concocts from whole cloth a requirement that firing a gun at
a pursuer does not occur “during the commission” of a robbery unless the pursuer has the
status of a victim with a possessory interest in the proceeds. This is not the law.
“A [gun] use enhancement attaches to an offense, regardless of its nature, if the
[gun] use aids the defendant in completing one of its essential elements.” (People v.
Masbruch (1996) 13 Cal.4th 1001, 1012.) A defendant can use a gun within the meaning
of one of the use enhancements against a person other than the victim of a robbery.
(People v. Fierro (1991) 1 Cal.4th 173, 226-227 [“immaterial” whether gun personally
used at time of taking or against actual robbery victim, thus fatal shooting of another to
facilitate escape is personal use during commission of robbery]; People v. Granado
(1996) 49 Cal.App.4th 317, 320-321, 330 [personal use of gun to keep one attempted
robbery victim frozen in place while cohort pursues other attempted victim occurs in the
commission of both attempted robberies], cited with approval in People v. Hajek and Vo
(2014) 58 Cal.4th 1144, 1197-1200 [personal use of knife enhancement applied to all
four counts of attempted murder regardless of whether victims actually saw knife, were
simply made aware of its use, or were unaware of it].)
Defendant’s untenable construction would lead to a result that would allow the
robbers fleeing from a bank to shoot at their police pursuers without fear of increased
punishment for personally firing their guns. Indeed, in his reply brief, defendant gives
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acknowledgement that at least Hajek and Vo is contrary to his analysis. We therefore
reject this argument.
5.0 Section 654 Does Not Apply to the Two Enhancements
Defendant argues the criteria of section 654 preclude his punishment for both of
the gun use enhancements, contending that they are both based on the same gunshots.
Whatever the merits to this claim in the abstract, it disregards controlling law antedating
his briefing.
“Section 654 precludes multiple punishment where an act or course of conduct
violates more than one criminal statute but a defendant has only a single intent and
objective.” (People v. McCoy (2012) 208 Cal.App.4th 1333, 1338.) If the statute applies,
the trial court must impose sentence but stay execution on all convictions except the one
carrying the longest sentence. (Ibid.) We review explicit or implicit factual resolutions
of the trial court for substantial evidence in the trial record, which the court may base on
any facts in the record without regard to the verdicts unless the verdicts foreclose the
consideration of them in some fashion. (Id. at pp. 1338, 1340.)
When applied to multiple enhancements of the same “aspect” of a single offense,
section 654 precludes punishment for more than one of them. (People v. Ahmed (2011)
53 Cal.4th 156, 163, 165.) However, if section 654 does not bar multiple punishment for
multiple underlying offenses, it cannot bar punishment for the enhancements attached to
each of the offenses even if they are of the same nature. (People v. Wooten (2013)
214 Cal.App.4th 121, 130.)
Defendant does not contend that section 654 precluded punishment for both a
firearm assault and a robbery of separate victims. The statute therefore does not apply to
the enhancements in this case, and we consequently do not need to consider the substance
of defendant’s application of its criteria to them. We thus reject this argument.
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6.0 The Trial Court Imposed the Wrong Enhancements
Unaccountably (without objection from either party), at sentencing the trial court
imposed the enhancements charged in the original information rather than as amended
(no doubt because almost a year had passed since the amendment). Thus, on the
principal term the court imposed an enhancement for personally firing a gun during a
firearm assault (§ 12022.53, subd. (c) [20 years]) rather the simple use enhancement that
the jury had sustained (§ 12022.5, subds. (a) & (d)), and an enhancement for personal use
of a gun during the commission of a robbery (§ 12022.53, subd. (b) [10 years]) instead of
personally firing a gun during the commission of a robbery for the subordinate term.10
The People properly concede that defendant correctly maintains there is a need to
remand for resentencing on the proper enhancement to the conviction for firearm assault
(defendant noting that the enhancement under section 12022.5, subdivision (a) involves a
sentencing triad, and the record does not give any indication about the term the trial court
would have selected had it been aware of this sentencing choice). As for the robbery
enhancement, defendant appears to assert that there is a defect in the verdict form that
limits it to personal use of a gun during a robbery rather than personally firing a gun
during a robbery. This latter point, even if not forfeited as a “lurking” argument
unrelated to the heading (see Imagistics Internat., Inc. v. Department of General Services
(2007) 150 Cal.App.4th 581, 593, fn. 10), is incorrect.
Defendant’s failure to raise an objection in the trial court to the form of the verdict
forecloses any argument on appeal premised on any purported defects. (People v. Jones
(2003) 29 Cal.4th 1229, 1259; People v. Bolin (1998) 18 Cal.4th 297, 330; People v.
Webster (1991) 54 Cal.3d 411, 446.) The verdict form for the enhancement did not
omit any element such that defendant could assert a violation of due process on appeal.
10 The clerk’s minutes and the abstract of judgment note the section numbers for the
correct enhancements, with the incorrect sentences.
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As long as the verdict form reflected the jury’s intention to sustain the enhancement
described in the statute (as alleged in the amended information) and defined in the
instructions, this was sufficient. (People v. Paul (1998) 18 Cal.4th 698, 706-707; People
v. Mackabee (1989) 214 Cal.App.3d 1250, 1256.) Accordingly, the trial court may
properly impose the mandated one-third of the 20-year enhancement of the subordinate
term on remand.
DISPOSITION
The convictions of guilt are affirmed. The sentence is vacated and remanded for
determination of the term for the proper enhancement to the conviction for firearm
assault. Upon resentencing, the trial court shall prepare an amended abstract of judgment
and forward a certified copy to the Department of Corrections and Rehabilitation.
BUTZ , J.
We concur:
NICHOLSON , Acting P. J.
RENNER , J.
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