People v. Smith CA2/1 ( 2021 )

Filed 4/26/21 P. v. Smith CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B303508
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA472892)
v.
DENZEL SMITH, et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Curtis B. Rappe, Judge. Affirmed.
Christine M. Aros, under appointment by the Court of
Appeal, for Defendant and Appellant Denzel Smith.
John F. Schuck, under appointment by the Court of Appeal,
for Defendant and Appellant Kirby Dearlle Allen.
Spolin Law, Aaron Spolin and Jeremy Cutcher for
Defendant and Appellant Deshon Markeist Wright.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and J. Michael Lehmann,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
Denzel Smith, Kirby Dearlle Allen, and Deshon Markeist
Wright (collectively Defendants) took over $400 and a gold chain
necklace from a man at gunpoint. A jury convicted them of
second degree robbery. They jointly appeal the conviction,
arguing that the trial court erred in denying a motion for new
trial based on juror misconduct. Because Defendants failed to
present credible evidence of any misconduct, we affirm.
FACTUAL BACKGROUND
On January 16, 2018, Shaquille Brown cashed his paycheck
at a liquor store in Los Angeles. The clerk gave him
approximately $415.
Shortly after leaving the store, Brown called 911. He told
the dispatcher that “somebody just robbed me,” “they just robbed
me at gunpoint.” He said that three men in a car “ran up on” him,
and “took [his] chain” and “cash, like 400 and something dollars in
cash.” Brown described the men as Black, with one wearing a red
hoodie and one wearing “red over red.” He reported that the
suspects were driving a 2017 black Chevrolet Impala with paper
license plates, and gave an approximation of their route.
The dispatcher gave this information to a Los Angeles
Police Department helicopter. The flight officer quickly located
the Impala and coordinated with officers on the ground to
apprehend Defendants.
An officer arrested Smith shortly after he was dropped off
in a nearby alley. At the time of his arrest, he had $105 on his
person. Soon afterwards, the Impala turned into a parking lot.
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The flight officer observed Allen and Wright exiting the car and
entering a laundromat. Wright was wearing red pants and a red
shirt. Officers arrested the pair as they left the laundromat.
Allen had $162 on his person, and Wright had $140.
The keys to the Impala were found in the laundromat,
where they had been discarded behind a row of washing
machines. The Impala’s paper plates were covering the car’s true
license plates. Officers found another $115,1 a broken gold chain
necklace, and a red sweatshirt in the car. Each of Defendants’
fingerprints were present on the doors of the Impala.
PROCEDURAL BACKGROUND
A. The Trial
Defendants were each charged with one count of second
degree robbery in violation of section 211 of the Penal Code.2
On July 18, 2019, the last day of Defendants’ trial,3 Wright
told his counsel that he had overheard a group of jurors,
including Juror No. 3, talking during the lunch break. Wright’s
counsel informed Judge Ronald Coen4 that Wright told him that
during the recess Wright observed Juror No. 3 and several other
jurors “talking about something.” Counsel admitted that “[w]e
1The total amount of money discovered in Defendants’
possession at the time of their arrests was $522.
2 Subsequent undesignated citations are to the Penal Code.
3 The jury deadlocked in Defendants’ first trial, resulting in
a mistrial.
4Judge Coen was sitting in that day for the trial judge,
Judge Curtis B. Rappe. For purposes of this opinion, we refer to
both judges as “the trial court.”
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don’t know what it was.” He asked for the opportunity to
question Juror No. 3 about the conversation. Allen’s and Smith’s
attorneys joined the request.
Judge Coen denied the request for two reasons. First, he
cited People v. Bell (2019) 7 Cal.5th 70, for the proposition that
mere speculation of juror misconduct is not sufficient to support
further investigation with members of the jury. Second, he cited
People v. Peoples (2016) 62 Cal.4th 718, as holding that a hearing
on juror misconduct should be held only when necessary to
resolve a disputed issue of material fact, not as a fishing
expedition to find possible juror misconduct. Judge Coen told
counsel that his request sounded like “a fishing expedition”
rather than a legitimate basis for juror inquiry. Neither Wright
nor the other attorneys provided additional details to support the
request for further inquiry.
Immediately thereafter, the jury returned and delivered
guilty verdicts for all Defendants on count 1.
B. The Motion for a New Trial
On August 16, 2019, Allen’s counsel filed a motion for new
trial alleging juror misconduct. The motion included a
declaration by Allen’s counsel that, one month after the trial, on
August 12, 2019, counsel learned additional information
regarding the activity Wright had observed on July 18. Counsel
claimed that Wright’s girlfriend, Ramonda Shakir, had overheard
a group of jurors saying that “Defendants were [B]lack and how
[the jurors] needed to get . . . [Defendants] off the streets before
they did this to someone else,” and “the need to convince the
other jurors to find Defendants guilty.” Smith and Wright joined
the motion.
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On December 11, 2019, the trial court conducted an
evidentiary hearing on the motion for new trial. Defendants
produced a declaration by Shakir, confirming the details recited
in the declaration of Allen’s counsel. Shakir also appeared as the
sole witness for the defense. Her declaration was admitted as her
direct testimony.
On cross-examination, Shakir testified that during the
lunch recess on July 18, she was sitting on a bench across the
hall from the group of jurors. She repeatedly confirmed that
Wright was in the bathroom at that time, but also claimed that
he overheard the conversation. She recalled hearing Juror No. 35
tell three other jurors that Defendants “were Black and [the jury]
had to basically get them off of the street before they did this to
anyone else, and that they are criminals, and that they were
guilty, and that [the group] needed to convince the rest of the
jurors that [Defendants] were guilty,” or words to that effect.
Shakir testified that she told Wright’s attorney about the
conversation before the end of the recess. She also told Allen’s
counsel that same day.
The trial court held that Shakir’s testimony was “not
credible.” The court found that Shakir’s testimony that she told
both counsel for Allen and Wright about the content of the
conversation on the final day of trial was contradicted by the
statement by Wright’s counsel in court the same day, advising
that he learned the jurors were “talking about something. We
5 Shakir’s testimony describes Juror No. 3 as “an
alternate.” The juror in question had been an alternate but was
seated as Juror No. 3 when the original juror was dismissed for
health reasons.
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don’t know what it was.” Furthermore, the court expressed doubt
that Shakir had provided the details of the juror’s statement to
counsel because if she had, it was likely that counsel would have
immediately brought it to the attention of the trial judge.
Accordingly, the trial court concluded that her account, which he
characterized as “an after-the-fact attempt to make up a story to
extricate her boyfriend and others from the conviction,” did not
establish juror misconduct.
Defendants timely appealed. They subsequently joined
their appeals pursuant to rule 8.200(a)(5) of the California Rules
of Court.
DISCUSSION
A criminal defendant has the fundamental right to trial by
impartial jurors “that consider[ ] only the evidence admitted in
court.” (People v. Stanley (1995) 10 Cal.4th 764, 836; see also
U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 16.) A
new trial may be granted “[w]hen the jury has . . . been guilty of
any misconduct by which a fair and due consideration of the case
has been prevented.” (§ 1181, subd. (3).) Misconduct occurs
when a juror renders a verdict on the basis of racial animus.
(Pena-Rodriguez v. Colorado (2017) ___ U.S. ___ [37 S.Ct. 855,
869] [holding that an evidentiary hearing regarding potential
juror misconduct is proper “where a juror makes a clear
statement that indicates he or she relied on racial stereotypes or
animus to convict a criminal defendant”].) Misconduct also
occurs when a group of jurors discusses the case outside the
presence of all the jury members and outside the jury
deliberation room. (People v. Hem (2019) 31 Cal.App.5th 218, 229
[where a group of jurors discussed the case in the hallway outside
the courtroom, their discussion constituted juror misconduct].)
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Defendants claim that the group of four jurors committed
misconduct by discussing the case during the recess, and, in the
case of Juror No. 3, by expressing racial bias to sway other jury
members. Defendants identify two errors made by the trial court
regarding this alleged misconduct. First, they argue the trial
court should have investigated Wright’s allegations of juror
misconduct. Second, they argue the court erred by denying the
subsequent motion for new trial.
A. Request to Investigate Alleged Misconduct During
Trial
During a criminal trial, “ ‘[t]he law is clear . . . that the
court must investigate reports of juror misconduct to determine
whether cause exists to replace an offending juror with a
substitute.’ [Citation.]” (People v. Mora and Rangel (2018) 5
Cal.5th 442, 483.) However, not every complaint regarding a
juror’s conduct warrants investigation. “[A] hearing is required
only where the court possesses information which, if proven to be
true, would constitute ‘good cause’ to doubt a juror’s ability to
perform his duties and would justify his removal from the case.”
(People v. Ray (1996) 13 Cal.4th 313, 343.) Mere speculation
about possible juror misconduct does not justify further inquiry.
(People v. Bell, supra, 7 Cal.5th at p. 120.)
We review the trial court’s refusal to conduct a juror
investigation for abuse of discretion. (People v. Cleveland (2001)
25 Cal.4th 466, 478 [“ ‘The decision whether to investigate the
possibility of juror bias, incompetence, or misconduct—like the
ultimate decision to retain or discharge a juror—rests within the
sound discretion of the trial court’ ”].)
We conclude the trial court acted well within its discretion
when denying Defendants’ request to investigate potential juror
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misconduct. Defendants premised their request solely on
Wright’s observation of a group of jurors conversing during a
recess. The three defense counsel were not able to provide any
information about the subject of the jurors’ conversation. Indeed,
Wright’s counsel frankly admitted, “[w]e don’t know what it was.”
Defendants’ only basis for questioning the jury was Wright’s
suspicion that the jurors might have been talking about the case.
Such speculation is an insufficient basis for investigation.
(People v. Bell, supra, 7 Cal.5th at p. 120; see also People v.
Peoples, supra, 62 Cal.4th at p. 777 [a hearing on juror
misconduct “ ‘ “should not be used as a ‘fishing expedition’ to
search for possible misconduct, but should be held only when the
defense has come forward with evidence demonstrating a strong
possibility that prejudicial misconduct has occurred” ’ ”].) Under
these circumstances, Defendants’ assertion that the trial court
“failed to conduct an adequate inquiry into the claim of jury
misconduct” is without merit.
B. Denial of Motion for New Trial
If a defendant seeks a new trial based on jury misconduct,
he must provide admissible, credible evidence of the alleged
misconduct. (People v. Perez (1992) 4 Cal.App.4th 893, 906 [“The
court must first determine whether the [evidence] supporting the
motion [is] admissible. [Citation.] If the evidence is admissible,
the court must then consider whether the facts establish
misconduct”].) The “trial court has broad discretion” to
determine whether a criminal defendant has produced admissible
evidence establishing misconduct, and “its rulings will not be
disturbed absent a clear abuse of discretion.” (Ibid.)
We conclude the trial court did not abuse its discretion in
denying Defendants’ motion for new trial. At the hearing,
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Defendants presented one witness, Shakir, who provided
additional details about the incident that she and Wright
observed on July 18. The trial court rejected Shakir’s testimony
after determining that she was “not credible.”
Indeed, Shakir’s testimony contradicted several points
raised in Defendants’ argument and the record. Most critically,
Shakir testified that she told both Wright’s counsel and Allen’s
counsel what she had heard on the day of the incident. Yet when
Wright’s counsel brought the incident to the court’s attention, he
stated that Wright, not Shakir, had told him about the incident,
but counsel did not know what the jurors had been discussing.
When the trial court denied Defendants’ request to question the
jury, neither counsel advised the court that Shakir, who was
present in court, had additional information about the incident.
Allen’s counsel later filed a declaration stating that she first
learned about Shakir’s information on August 12, contradicting
Shakir’s claim that she first told Allen’s counsel on the final day
of trial one month earlier.
These inconsistencies provide ample justification for the
trial court’s credibility finding. Since Defendants offered no other
evidence, the trial court reasonably concluded they had not
adduced admissible evidence establishing juror misconduct, and
properly denied their motion for new trial.
Defendants challenge the trial court’s conclusion on four
grounds. First, they insist that Shakir’s testimony was credible
evidence of juror misconduct. This ignores the trial court’s
express finding that Shakir was not credible. On appeal, we
must “ ‘accept the trial court’s credibility determinations . . . if
supported by substantial evidence.’ [Citation.]” (People v.
Verdugo (2010) 50 Cal.4th 263, 308.) Defendants contend the
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trial court’s credibility finding is not supported by substantial
evidence, arguing that the inconsistencies in Shakir’s testimony
could have been resolved in other ways and that other elements
of Shakir’s testimony are supported by the record. However, the
fact the trial court could have made a contrary finding does not
fatally undermine its actual finding. As we outlined above, the
court’s finding as to Shakir’s credibility in this case is amply
supported by the record. (See also People v. Barnwell (2007) 41
Cal.4th 1038, 1053 [“we afford deference to the trial court’s
factual determinations, based, as they are, on firsthand
observations unavailable to us on appeal”].)
Second, Defendants argue that Shakir’s credibility is
irrelevant because, even if her testimony was unreliable, the
alleged misconduct still could have occurred. This argument
disregards Defendants’ burden to produce evidence of juror
misconduct, rather than assertions based on speculation.
Defendants cite a number of cases in an attempt to support their
argument. These cases, however, do not concern speculative
assertions of misconduct, and thus they are inapposite. (People v.
Lavender (2014) 60 Cal.4th 679, 691-693 [remanding where the
prosecution conceded there were unresolved material disputes of
fact regarding allegations of juror misconduct]; People v. Hem,
supra, 31 Cal.App.5th at p. 225 [remanding for further
proceedings where there was undisputed evidence of juror
misconduct]; People v. Bryant (2011) 191 Cal.App.4th 1457, 1470-
1471 [remanding where the trial court erred in considering
unsworn juror declarations as a basis for an allegation of juror
misconduct]; People v. Perez, supra, 4 Cal.App.4th at p. 908
[remanding for further proceedings where the facts assumed to be
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true by the trial court supported an allegation of juror
misconduct].)
Third, Defendants argue the prosecution failed to prove
that the alleged misconduct was not prejudicial, as required by
constitutional standards. However, the question of prejudice
does not arise until the defense produces admissible, credible
evidence of juror misconduct. (People v. Perez, supra, 4
Cal.App.4th at p. 906 [only when the defendant demonstrates
juror misconduct does the court turn to the question of whether
that misconduct was prejudicial].) In this case, Defendants failed
to satisfy this threshold requirement.
Lastly, Defendants argue the trial court should have at
least attempted to corroborate the allegations of racial bias raised
by the defense. Defendants cite our Supreme Court’s recent
statement “condemn[ing] racism in all its forms” and calling on
all state courts to “confront the injustices that have led millions
to call for a justice system that works fairly for everyone.” We
agree wholeheartedly with this statement, and with established
constitutional precedents denouncing the evil effects of racial bias
in the law. (Pena-Rodriguez v. Colorado, supra, 137 S.Ct. at
p. 868] [“[D]iscrimination on the basis of race, ‘odious in all
aspects, is especially pernicious in the administration of justice.’
[Citation.] . . . Permitting racial prejudice in the jury system
damages ‘both the fact and the perception’ of the jury’s role as ‘a
vital check against the wrongful exercise of power by the
State’ ”].) However, our obligation to remedy racial injustice does
not require us to infer that racial bias infected a jury’s verdict
based solely on Defendants’ conjecture. Without a reason to
question the trial court’s credibility finding as to Defendants’ sole
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witness, we have no grounds to order further investigation of the
jury in this case.
Defendants failed to meet their burden to present credible
evidence of juror misconduct. For that reason, we must affirm.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
FEDERMAN, J.*
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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