People v. Elmore CA3 ( 2015 )

Filed 12/2/15 P. v. Elmore 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NOT TO BE PUBLISHED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
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C072454
Plaintiff and Respondent, (Super. Ct. No. 09F07932)
v.
DOUGLAS ELMORE,
Defendant and Appellant.
Defendant Douglas Elmore appeals following conviction for the murders of
Tammula Robbins (Tammy) and her boyfriend Shawn Cope (Pen. Code, § 187; unless
otherwise set forth, statutory references that follow are to the Penal Code), with personal
use and discharge of a firearm (§ 12022.53, subds. (b)-(d)), a multiple-murder special
circumstance (§ 190.2, subd. (a)(3)), and a prior burglary conviction in 2004 for
sentencing under the three-strikes law (§ 667, subds. (b)-(i)). Defendant contends (1) the
trial court improperly excluded evidence of a witness’s history of “bizarre behavior”; (2)
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the court failed to instruct the jury to view defendant’s pre-offense statement with
caution; (3) defense counsel was ineffective in failing to request a jury instruction that a
third party’s suppression of evidence can be imputed to the defendant only if he knew
and authorized the conduct; (4) the prosecutor in closing argument improperly
commented on defendant’s in-court demeanor laughing at his mother’s distress during
her videotaped interview with police; (5) the trial court improperly removed a juror
during deliberations; and (6) the asserted errors were cumulatively prejudicial. We
affirm the judgment.
FACTS AND PROCEEDINGS
The victims were found to be absent from their Sacramento residence on Sunday
morning, October 11, 2009, and were found dead 12 days later, on October 23, 2009, in
garbage cans near the house.
The 39th Street house was also occupied by defendant’s mother (Rita Rose),
Tammy’s mother (Joleen Robbins), and a wheel-chair bound man (“Junior”) who was
almost never there and was not there during the time in question. Tammy and Cope slept
on a mattress on the living room floor. About three weeks before the victims’
disappearance from the home, defendant came to stay with his mother while his fiancée’s
house was being worked on and his fiancée and children were staying in Fairfield.
Defendant slept in his mother’s bed (at her insistence), and she slept on the bedroom
floor.
Tammy was her mother’s in-home care worker, but defendant’s mother considered
Tammy’s performance “[n]ot up to par.”
Tammy and Cope were close friends with Bernardo Quiroz and his wife Marlene
Keola. On the evening of Saturday, October 10, 2009, the four smoked marijuana and
watched a movie at the 39th Street house. The visitors left, but Quiroz later returned with
his father-in-law to sell marijuana to Tammy -- a fact Quiroz omitted in his first police
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interview but supplied in his second interview. When Quiroz returned, defendant was in
the front yard with his girlfriend and children. Defendant’s mother, Tammy’s mother,
and the victims’ friend Laurie Clark were also in the yard. Quiroz testified this happened
on Saturday night, but Clark said it was Friday. During his trial testimony Quiroz was
hostile toward defendant; he stared fixedly at defendant, said defendant was ugly and
“better hope I don’t ever go to jail.” The court admonished Quiroz several times.
Quiroz went to the 39th Street house around 11:00 a.m. Sunday, October 11,
asking for Tammy and Cope. Defendant’s mother said they were gone. The next day,
Tammy’s mother found Tammy’s cell phone in the house.
On Tuesday, October 13, a sheriff’s deputy came to the house and took a missing
person’s report. The deputy returned to the house later that day, after Quiroz found blood
on the living room couch and two bloody pillows and a blanket in the back yard.
Tammy’s mother attributed the stains to Tammy’s “female issues.” Defendant’s mother
told the deputy she had not noticed anything unusual, and Tammy and Cope sometimes
take off without telling anyone.
Quiroz found the police response lacking and put up fliers with the missing
couple’s photograph. He checked the house’s outside garbage cans but saw only tree
clippings.
Soon after the victims’ disappearance, David Satyna and girlfriend Michelle
Schortgen moved into the 39th Street home. Satyna had visited on prior occasions. On
one prior occasion, Quiroz knocked Satyna unconscious after learning Satyna had been
exposing himself to a neighbor’s child.
About a week after the disappearance, a bad smell developed around the house.
Sheriff’s deputies noticed the smell when they went to the house on the evening of
October 22, 2009, in response to a call from Tammy’s mother about finding a suspicious
jacket. The deputies did not consider the jacket suspicious but did notice the foul odor.
It appeared to come from the side of the house, where the deputies found a pile of clothes
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and debris. They poked at the pile with a stick. Using a flashlight in the dark, they lifted
lids off two trash cans and saw only lawn and tree clippings. They told the occupants to
clean up the yard.
Defendant’s mother was the person who generally took the trash cans to the curb
on Monday mornings. On the two Mondays after the victims disappeared, no one took
the trash cans to the curb.
On October 23, 2009, neighbor Sandra Cardenas noticed defendant’s mother and
two other women putting black plastic trash bags in a car. They drove off and returned
10 minutes later. Around 3:00 p.m., Cardenas saw Satyna standing near the garbage cans
that were now in front of defendant’s mother’s residence. Satyna looked around in all
directions, as if checking to see whether anyone was watching him. He grabbed one of
the cans and ran to a nearby field, wheeling the can behind him. He came running back a
few minutes later without the garbage can, ran into the house, came out with a bag, and
rode off on his bike. Neighbor Denise Abbott saw and found suspicious Satyna’s
conduct outside the house, hunching over with his hands on his knees and breathing
heavily before he entered the house.
Sheriff’s deputies responded to a call about a man pushing a trash can into a field.
In the field they found an overturned trash can, a corpse, a tarp, some bedding, yard
debris, and household trash. They learned Satyna had taken the garbage can to the field
to dump it, and the dead body fell out of the can. In another garbage can in front of the
victims’ home, deputies found the other corpse covered by yard clippings and household
trash. Defendant’s mother directed deputies to a nearby dumpster, where they retrieved
two torn trash bags containing bedding and pillows.
The pathologist estimated the female victim weighed about 250 pounds when she
died, and her decomposed corpse weighed 140 pounds when found. The male weighed
between 120 and 150 when alive and 51 pounds when found. Tammy had three gunshot
wounds. One bullet -- a medium caliber consistent with a nominal .38 caliber -- entered
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the left side of her forehead, just above her left eye, traveled in a downward trajectory,
and lodged on the right side of the skull by the neck. Decomposition of the body
prevented a determination of the distance from which the gun was fired. Another bullet
entered her left shoulder blade and exited out the right breast, in a horizontal trajectory.
The third gunshot wound passed through her right arm near the biceps and moved in
downward trajectory toward her right elbow. The third wound could have been re-entry
of the second bullet if she had her arm folded up by the breast. Thus, the forensic
evidence was consistent with her having been shot while lying on her side or stomach.
Cope had a single, fatal gunshot wound. The bullet entered the middle of his
forehead, traveled from front to back, a little bit left to right and downward, and lodged at
the back of the skull. Cope would have been facing the shooter. Cope also had fractured
bones, some caused by blunt force trauma to the bone between the nose and teeth.
Defendant’s mother testified she saw nothing and knew nothing and claimed she
must have been hallucinating from her mental illness when she told police the opposite in
videotaped interviews, portions of which were played for the jury.
The day the bodies were found, defendant’s mother told police she had no
knowledge what happened, and it was common for the victims to disappear for a few
days without telling anyone.
The next day, Detective Paul Belli was at the house for further investigation.
Defendant’s mother approached him, said she had more to tell him, and invited him to
her room, where she had an open Bible. She said her son killed the victims. She agreed
to be interviewed at the sheriff’s department.
In her first videotaped interview, on October 24, 2009, defendant’s mother said
she heard gunshots on the night in question, went into the living room and saw defendant
with a gun in his hand looking out the window. Defendant looked at her with a “scared
stare.” Defendant’s mother saw the victims laying on their bed and thought they were
sleeping but also said she thought they were dead. Cope was on his back with a bloody
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nose, and Tammy was “[l]ike on her side or on her stomach” (which turned out to be
completely consistent with the forensic evidence presented at trial). Defendant’s mother
did not know what to think. His mother was scared and retreated to her bedroom. She
heard but did not see defendant moving around the house and outside. She went to use
the bathroom and saw a lot of blood and the victims’ bed pillows and blanket in the
bathtub. She again returned to her bedroom.
In the second recorded police interview on November 5, 2009, defendant’s mother
gave the same information as on October 24 and added that, when defendant later left the
house, she asked him what she should do, and he said, “You never [saw] me. I wasn’t
here.” After defendant left, his mother went into the bathroom and saw the bathtub was
now clean.
In her trial testimony, defendant’s mother made every effort to recant her
statements to police as the hallucinatory ravings of a lunatic. She repeatedly described
herself as mentally ill. When she made the statements to police, she had been off
psychiatric medications for at least three years. She later resumed seeing a psychiatrist
and was taking Prozac for depression, Lorazepam for anxiety attacks, and Risperdal. On
cross-examination by her son’s attorney, defendant’s mother recounted her extensive
mental health history, including holds at mental health facilities under Welfare and
Institutions Code section 5150. In 2003 or 2004, she assaulted a neighbor after
hallucinating that the neighbor stole documents to get defendant in trouble. Doctors
prescribed medications, but defendant’s mother did not take them. Defendant’s mother
was placed on another hold in March 2005, was prescribed antipsychotic medication, but
did not take it.
Laurie Clark testified she was friends with the victims and went to grade school
with defendant. After the victims disappeared, defendant’s mother told Clark not to let
the police know that defendant had been at the 39th Street house. Quiroz testified
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defendant’s mother also wanted Quiroz to agree that defendant was not there because she
did not want him to get in trouble.
In closing argument, defendant’s trial counsel attempted to point the finger at
Quiroz and even insinuated that maybe defendant’s mother was the murderer, with no
involvement by defendant.
During jury deliberations, the trial court conducted a hearing about one juror’s
reported refusal to deliberate. The court found the juror had intentionally concealed
negative experiences with law enforcement during voir dire. The court replaced the juror
with an alternate.
The jury found defendant guilty on both murder counts and found true the firearm
and multiple-murder allegations. The trial court found true the prior serious felony
allegation -- a 2004 burglary conviction. The court sentenced defendant to life in prison
without possibility of parole and a consecutive term of 50 years to life for the two firearm
enhancements.
DISCUSSION
I
Exclusion of Evidence of Prior “Bizarre Behavior”
Defendant complains the trial court excluded testimony by a property manager of
apartments previously occupied by defendant’s mother, that she engaged in bizarre
behavior in 1998 and 2006. Defendant contends the ruling was an abuse of discretion
and a violation of his constitutional right to present a defense. In a distinct argument
improperly briefed under the same heading (Cal. Rules of Court, rule 8.204(a)),
defendant claims the prosecutor committed misconduct by taking advantage of the error
in closing argument, and any failure to object to the prosecutorial misconduct is
attributable to ineffective assistance of defense counsel.
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A. Background
Defendant moved in limine to introduce testimony from property manager Cliff
Livens that in 1998, when defendant’s mother was a tenant at the apartment complex he
managed, she “made up affairs that different individuals within the apartment complex
were supposedly having and behav[ed] in a very loud and bizarre manner in making these
accusations in public locations.” Defense counsel said, “basically similar things”
happened in 2006 at a different apartment complex, but counsel did not have specifics.
The trial court excluded the evidence because it was remote in time in relation to
defendant’s mother’s police interview in November 2009 (which the court misstated as
“2010”) and it did not shed light on whether defendant’s mother was hallucinating when
she spoke with police at that time. The court observed that maybe people were having
affairs. In the court’s view the property manager’s testimony would have been
cumulative to other evidence about defendant’s mother’s mental health issues including
her own anticipated testimony that she hallucinates and has mental health issues. The
trial court rejected the defense’s proposal that the court hold an Evidence Code section
402 hearing.
The trial court also excluded defendant’s mother’s psychiatric records, which
defense counsel agreed were inadmissible. He provided them to the prosecution only to
demonstrate he had a good faith basis to explore the subject when he cross-examined
defendant’s mother.
In closing argument to the jury, the prosecutor argued defendant’s mother had
exaggerated her mental health issues “to try and seem worse,” and “It was intensely
obvious when she couldn’t remember the answers to questions when I asked them, but
she remembered the answers to all of the questions when [defense counsel] asked.
Because she thought that [defense counsel] was trying to help her son, so she wanted to
help him. She didn’t need to try to play out and exaggerate her symptoms at that point.”
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Defense counsel argued to the jury that defendant’s mother was like
mathematician John Nash as portrayed in the movie “A Beautiful Life [Mind]” in that
both were in and out of hospitals and battled hallucinations but could come to their senses
with medication.
In rebuttal argument, the prosecutor said, “We know for a certainty that she’s had
no mental health hospitalizations since 2005. We don’t actually know much about any
mental health hospitalizations in 2005 because all that was produced on that was Rita
Rose saying that she had mental health hospitalizations and her saying that she had
issues.” The defense objected this misstated the evidence, and the court reminded the
jurors they were the fact finders. The prosecutor continued: “There’s been no proof,
there’s been no one who come in and talk about any stays that Rita Rose has had at a
mental hospital about anything like that. There was no one that talked about any issues
that Rita Rose had with reality other than Ms. Rose, right? The people who knew Ms.
Rose, the people who would have witnessed any kind of problems that she had with
reality, those people came into court and all said that she was fine. There wasn’t a single
witness who said anything different other than Ms. Rose trying to accentuate, oh, the
voices inside my head and things like that, right?”
B. Analysis
Defendant argues the trial court was wrong in excluding the property manager’s
testimony as remote. Defendant analogizes to admissibility of remote prior convictions
where a defendant has not led a legally blameless life. Defendant argues the court was
wrong in excluding the evidence as cumulative, because it was corroborating evidence
that would rebut the inference urged by the prosecution that defendant’s mother’s
admission of her own mental illness was an exaggeration designed to recant her
statements to police. Defendant argues the exclusion of the evidence deprived him of the
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federal constitutional right to present a defense challenging the credibility of defendant’s
mother’s statements to police.
The constitutional right to present a defense is subject to established evidentiary
rules designed to assure fairness and reliability in the ascertainment of guilt and
innocence. (Holmes v. South Carolina (2006) 547 U.S. 319, 324 [164 L. Ed. 2d 503];
Chambers v. Mississippi (1973) 410 U.S. 284, 302 [35 L. Ed. 2d 297]; People v. Lawley
(2002) 27 Cal. 4th 102, 155 [ordinary rules of evidence do not impermissibly infringe on
constitutional right to present a defense].) The trial court has discretion to impose
reasonable limits, and the reviewing court will not disturb the judgment absent a showing
that the trial court abused its discretion. (People v. Rodrigues (1994) 8 Cal. 4th 1060,
1124-1125.)
Implicit in the trial court’s ruling was that the property manager’s testimony would
require undue consumption of time on a collateral matter, because perhaps defendant’s
mother was right about people having affairs, in which case she was just obnoxious, not
hallucinatory. On this record, it does not appear the property manager could have
testified that no one was having an affair.
Moreover, even assuming defendant’s mother hallucinated in 1998 or even in
2006, such evidence would only be marginally probative, if at all, to show she
hallucinated in her police interview in November 2009. In making that determination,
the jury was aware that her descriptions to police about the location of wounds and the
positioning of the victims’ bodies matched the forensic evidence exactly and the jurors
were able to observe for themselves her demeanor during the videotaped police
interviews. A lay witness’s opinion about her demeanor years ago, an opinion that could
not be corroborated, added little if anything to the question whether she was hallucinating
when she talked to the police after the murders here at issue.
We conclude there was no evidentiary error, and we therefore need not address
defendant’s other arguments that evidentiary error was prejudicial.
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As to defendant’s claim of prosecutorial misconduct (improperly presented under
the heading of evidentiary error excluding the property manager’s testimony), defendant
argues the prosecutor committed misconduct by arguing there was no proof that
defendant’s mother had “ever” been in a mental hospital or had mental health problems,
when the prosecutor knew about the hospitalizations. However, the prosecutor did not
deny hospitalizations but said, “she’s had no mental health hospitalizations since 2005.”
Defendant complains the prosecutor went on to refer to absence of hospital records
that the trial court had found inadmissible. Specifically the prosecutor said to the jury:
“We don’t actually know much about any mental health hospitalizations in 2005 because
all that was produced on that was Rita Rose saying that she had mental health
hospitalizations and her saying that she had issues.” The defendant’s attorney then
objected based on the fact that the argument misstated “the evidence.” The trial court did
not expressly rule on the objection, but only reminded the jury that the jury was the
ultimate finder of facts and the jury should “rely upon [what the jury had] heard and [the
jury’s] evaluation of the evidence.
As noted earlier, defense counsel agreed the records were inadmissible and said he
provided them to the prosecution only to demonstrate a good faith basis to explore the
subject when he cross-examined defendant’s mother.
Contrary to defendant’s contention, his objection that the prosecutor was
misstating the evidence did not preserve an objection on the ground of prosecutorial
misconduct in commenting about evidence that existed but could not be presented.
Defense counsel’s objection that the prosecutor was misstating the evidence was not
sustainable because the prosecutor’s argument was an accurate statement of the evidence.
If defendant had objected on the grounds of prosecutorial misconduct (as he does here),
that objection could have been discussed and resolved in the trial court. (People v.
Thomas (2012) 54 Cal. 4th 908, 937-938 [claim forfeited where objection in the trial court
was not on the specific ground of prosecutorial misconduct raised on appeal].)
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Defendant cites People v. Scott (1978) 21 Cal. 3d 284, 290, for the proposition that
an objection may be deemed preserved where the record shows the court understood the
true objection despite “inadequate phrasing.” We find nothing in the record to suggest
that the trial court understood that defendant’s objection was in fact one based on
prosecutorial misconduct.
Defendant argues if he forfeited the objection, it is his trial counsel’s fault.
However, defendant fails to show the prejudice element of ineffective assistance of
counsel. To prevail on a claim of ineffective assistance of counsel, defendant must
demonstrate his trial counsel’s representation fell below an objective standard of
reasonableness and the defect prejudiced defendant in that there is a reasonable
probability that, but for the deficiency, defendant would have obtained a more favorable
result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L. Ed. 2d 674]
(Strickland); People v. Williams (1997) 16 Cal. 4th 153, 215 (Williams).)
Defendant argues he was prejudiced because his mother’s statements to police
were the only evidence of defendant’s guilt. However, defendant does not argue the
hospital records should have been admitted. Assuming defense counsel had made the
objection, the trial court would, at most, have merely reminded the jurors not to speculate
about matters not in evidence, as they learned from the jury instructions. There was no
prejudice under any standard.
We conclude there is no merit to any of defendant’s multi-faceted arguments,
improperly combined in violation of the obligation to present each argument under a
separate heading (Cal. Rules of Court, rule 8.204).
II
Failure to Instruct Jury to View Defendant’s Statements with Caution
Defendant argues the trial court erred by failing to instruct the jury sua sponte with
CALCRIM No. 358, to view with caution his words to his mother as she recounted to the
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police: “You never [saw] me. I wasn’t here.” Defendant argues omission of the
instruction was critical because without the instruction the jury likely believed his mother
lied when she told people defendant had left before the weekend. We conclude any error
was harmless.
CALCRIM No. 358 states: “You have heard evidence that the defendant made
[an] oral or written statement (before the trial/while the court was not in session). You
must decide whether the defendant made any [such] statement, in whole or in part. If you
decide that the defendant made such [a] statement, consider the statement, along with all
the other evidence, in reaching your verdict. It is up to you to decide how much
importance to give to the statement. [¶] [Consider with caution any statement made by
[the] defendant tending to show [his] guilt unless the statement was written or otherwise
recorded.]”
“When the evidence warrants, the court must instruct the jury sua sponte to view
evidence of a defendant’s oral admissions or confession with caution. [Citations.]”
(People v. Dickey (2005) 35 Cal. 4th 884, 905.) The standard of review for error is
whether it is reasonably probable the jury would have reached a result more favorable to
the defendant had the instruction been given. (Ibid.) Failure to give this instruction is not
one of the narrow categories of error that render a trial fundamentally unfair for federal
due process purposes. (Ibid.) The purpose of the instruction is to assist the jury in
determining if the statement was in fact made. (Ibid.) Courts examining prejudice in
omission of the instruction examine the record to see if there was any conflict in the
evidence about the exact words used, their meaning, or whether the admissions were
repeated accurately. (Ibid.) Where there was no such conflict, but simply a denial by the
defendant that he made the statement, courts have found the failure to give the instruction
harmless. (Id. at p. 906.)
Here, there was no conflicting evidence, or even a denial by defendant.
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Defendant argues he was prejudiced because, apart from his mother’s testimony
that defendant told her to deny he had been at the house, her account was just as
consistent with herself being the murderer with no involvement by defendant. Defendant
argues the mere fact that his mother lied about defendant’s whereabouts, and that
defendant told her to do so, would be enough to support an inference that she was lying at
his behest; and that inference would not have been possible had the court instructed with
CALCRIM No. 358 and had the jury found defendant never made the statement in the
first place. However, defendant simply assumes the jury would have found he never
made the statement. Defendant cannot show prejudice by assuming prejudice. It is not
reasonably probable the jury would have reached a different result had the instruction
been given.
For the same reason, we reject defendant’s contention that trial counsel was
deficient in failing to request the cautionary instruction. Defendant argues there could be
no tactical reason not to ask for the instruction, but he fails to show the requisite
prejudice.
III
Omission of CALCRIM No. 371C
Defendant argues his trial counsel was ineffective in failing to ask the court to
instruct the jury with CALCRIM No. 371 Alternative C, that a third party’s concealment
of evidence is not attributable to the defendant unless he was present or authorized the
concealment. Defendant claims there was evidence his mother hid evidence (by cleaning
the blood from the bathroom and by throwing trash bags with bloody bedding into the
dumpster) and Satyna tried to hide evidence (by dumping the trash can in the field).
Defendant fails to show ineffective assistance of counsel.
The court instructed the jury with CALCRIM No. 371 Alternative A: “If the
defendant tried to hide evidence or discourage someone from testifying against him, that
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conduct may show that he is aware of his guilt. If you conclude that the defendant made
such an attempt, it is up to you to decide its meaning and importance. However, evidence
of such an attempt cannot prove guilt by itself.”
The prosecutor argued to the jury that defendant tried to suppress evidence in two
ways: (1) He hid the bodies and cleaned up the bloody evidence, and (2) he told his
mother to say he was not there.
Defense counsel suggested to the jury that maybe defendant’s mother committed
the murders because she was mentally ill, was angry that Tammy was not doing her job,
and maybe she had people (other than defendant) willing to do things for her such as
stashing dead bodies in garbage cans.
The defense did not ask the court to instruct the jury with CALCRIM No. 371
Alternative C: “If someone other than the defendant tried to create false evidence,
provide false testimony, or conceal or destroy evidence, that conduct may show the
defendant was aware of (his/her) guilt, but only if the defendant was present and knew
about that conduct, or, if not present, authorized the other person’s actions. It is up to
you to decide the meaning and importance of this evidence. However, evidence of such
conduct cannot prove guilt by itself.”
To prevail on a claim of ineffective assistance of counsel, defendant must
demonstrate his trial counsel’s representation fell below an objective standard of
reasonableness and the defect prejudiced defendant in that there is a reasonable
probability that, but for the deficiency, defendant would have obtained a more favorable
result. (Strickland, supra, 466 U.S. at pp. 687-688 [80 L. Ed. 2d 674]; Williams, supra,
16 Cal.4th at p. 215.)
Defendant claims the evidence at trial “irrefutably” showed that his mother and
Satyna tried to conceal evidence. He claims his mother and the other women loaded the
victims’ bloody bedding into the car and took it to a dumpster. His mother also told
police she had cleaned up the bathroom after finding those same bloody blankets and
15
linen in the bathtub. Defendant claims Satyna wheeled the garbage can to a nearby field
“in an apparent effort to prevent the discovery of one of the bodies.” Defendant claims
there was no evidence he was present or authorized his mother’s or Satyna’s
“unambiguous attempts to hide evidence.”
Defendant misrepresents the record. While the stench should have been a clue,
there was no unambiguous evidence that Satyna knew the garbage can contained a dead
body when Satyna wheeled the container to the empty field to dump it. His looking
around before taking the garbage can to the field was consistent with not wanting to be
observed engaging in illegal dumping. Satyna’s demeanor when he returned to the house
was consistent with being surprised in the field. Defendant’s mother testified she first
learned there was a dead body in the garbage can when Satyna went to dump the garbage
can in the field so they could proceed with their house-cleaning, and he came back
“freaked out” at finding a dead body in the can.
Further, there was no unambiguous evidence the defendant’s mother or the other
women knew there was bloody bedding in the trash bags they took to the dumpster.
Although two of the bags were split open when police retrieved them from the dumpster,
the neighbor who testified about the bags being loaded into the car did not say they were
split open at that time. Contrary to defendant’s insinuation, his mother did not tell police
she removed the bloody bedding from the bathroom. Rather, she told police she saw bed
pillows and a lot of blood in the bathtub and maybe a thin blanket. After defendant left,
she went in the bathroom, and the pillows and blanket were gone. She then cleaned the
bathroom.
Where the record on appeal sheds no light on why counsel acted or failed to act in
the manner challenged, we reject the claim of ineffective assistance of counsel, unless
counsel was asked for an explanation in the trial court and failed to provide one, or there
could be no satisfactory explanation. (People v. Stewart (2004) 33 Cal. 4th 425, 459.)
Defendant here fails to show deficient performance. The defense may have preferred not
16
to call additional attention to defendant’s mother’s efforts to protect her son, preferring
instead to insinuate that she concealed evidence to cover up her own crimes. While this
theory was farfetched, defense counsel had little to work with. Moreover, had the
instruction been given, the jurors may have inferred that defendant authorized his
mother’s concealment efforts by telling her, “I wasn’t here.” Even if they concluded
defendant’s mother acted on her own to protect her son, knowing he was guilty,
defendant would not have obtained a more favorable result.
We conclude defendant fails to show grounds for reversal in omission of
CALCRIM No. 371C.
IV
Prosecutorial Misconduct
Defendant argues the prosecutor committed misconduct in closing argument by
commenting that defendant laughed during trial as he watched his mother’s distress in the
videotaped police interview. Defendant forfeited the matter by failing to object in the
trial court (People v. Fierro (1991) 1 Cal. 4th 173, 212), but on appeal argues forfeiture
should be excused. We see no basis for reversal.
The prosecutor told the jury: “Something else that you may have noted when we
were playing clip five, that last clip in court for the first time. During those periods of
intense emotion when Ms. Rose started to cry, you heard coming from [defendant]
snickering sounds. It sounded essentially like laughter. And what that demonstrated to
you was how much regard [defendant] has for his mom or for anyone else for that matter,
and the answer would be not very much. Not very much.”
On appeal the People acknowledge it was improper for the prosecutor to comment
on defendant’s courtroom demeanor because (1) demeanor evidence is relevant only as it
bears on witness credibility; (2) the comment infringes on defendant’s right not to testify;
and (3) consideration of defendant’s behavior while not on the witness stand violates the
17
rule that criminal conduct cannot be inferred from bad character. (People v. Boyette
(2002) 29 Cal. 4th 381, 434.)
In an attempt to overcome his failure to object at trial, defendant claims on appeal
there is an “exception” to the forfeiture rule when the case is closely balanced and there is
grave doubt of the defendant’s guilt, and the prosecutorial misconduct contributed
materially to the verdict. However, what defendant describes is appellate courts’ power
to exercise discretion to review a forfeited claim. (People v. Williams (1998) 17 Cal. 4th
148, 161-162, fn. 6; People v. Alvarado (2006) 141 Cal. App. 4th 1577, 1585-1586.)
Defendant offers no reason for us to exercise such discretion in this case. He merely
asserts the comment bolstered the prosecution’s case because, if defendant was
contemptuous of his own mother, it would stand to reason he would be even more
contemptuous of virtual strangers like the victims. However, defendant himself
displayed his contempt for his mother in open court, for all the jurors to see. While it is
true the prosecutor commented on it improperly, a timely objection to the comment
would not have been futile, and timely admonition would have easily sufficed to avoid
any possible prejudice from the prosecutor’s comment. This is not an appropriate case to
excuse the forfeiture.
Defendant alternatively argues trial counsel’s failure to object in the trial court
constituted ineffective assistance of counsel. We have two answers to defendant’s
argument. First, his attorney may well have thought that objection to the prosecutor’s
comment was not a good tactical choice, risking as it would have further attention to
defendant’s conduct. Moreover, defendant cannot prevail because he fails to show
prejudice, i.e., a reasonable probability that, but for the deficiency, he would have
obtained a more favorable result. (Strickland, supra, 466 U.S. at pp. 687-688 [80
L. Ed. 2d 674]; Williams, supra, 16 Cal.4th at p. 215.)
Defendant argues our prejudice analysis should include his prejudice arguments
relating to exclusion of the property manager’s testimony. However, we concluded the
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trial court did not err in excluding that testimony. Therefore, defendant’s arguments
(e.g., that exclusion impaired defendant’s ability to challenge the reliability of his
mother’s statement to police) have no bearing on the prejudice analysis with respect to
the prosecutor’s comment about defendant snickering.
Defendant argues he was prejudiced by the prosecution pointing out his
snickering, because this was a close case and the prosecution’s improper character
inference was a powerful one that supplied an explanation for an otherwise unexplainable
killing, i.e. defendant killed the victims because he is a sociopath who lacks feeling or
empathy even for his own mother. This prejudice argument is a stretch. Moreover, any
inference would have come from defendant’s snickering, not from the prosecutor’s brief
mention of it.
V
Removal of Juror During Deliberations
Defendant argues the trial court abused its discretion and violated defendant’s
constitutional right to a jury trial by removing the last holdout juror during deliberations
on the ground he concealed his negative experiences with law enforcement during voir
dire. We reject the contention.
A. Background
During voir dire, the court asked prospective jurors including Juror No. 6: “Have
you, a family member or close friend ever had a negative experience with law
enforcement that didn’t necessarily result in an arrest, but it was still negative for you?”
No one responded. The court then asked Juror No. 6 about himself. He said he was self-
employed training school teachers and administrators and was a former principal of
Luther Burbank high school.
The jurors began deliberations on Monday, April 16, 2012. At 3:30 p.m. the next
day, the jury informed the court it was unable to reach a verdict. The jurors had voted
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three times; the results were 10-2, 11-1, and 11-1, on both counts. Over defense
objection, the court gave the jurors additional instructions, excused them for the day, and
ordered them to resume deliberations the next day. The next day, the jury sent the court a
note at noon asking, “What do we do when we have a juror who’s not following the
rules?”
The court told the parties it would conduct narrow questioning.
First up was the foreperson, Juror No. 12, who said Juror No. 6 within the first
hour of deliberations made comments that the other jurors would have to convince him.
He called the three police officers the Three Stooges. When the jurors wanted to go over
some evidence, he threw up his hands and said he was done.
The trial court questioned the other jurors, most of whom said Juror No. 6 made
up his mind early and was no longer engaging in deliberations. Some said he had a bias
against police officers or detectives.
The trial court asked Juror No. 6 if he had a bias and, if so, whether he had been
able to set it aside. The juror said, “I have been able to put any bias that I may have
aside.” The judge mentioned the voir dire question about bias against law enforcement.
The juror said he has had “both positive and negative relationships with police officers
over a period of time” and was “sure” he answered the question during voir dire. He
believed he was participating in deliberations. He understood the prosecution did not
have to prove motive. When the court asked if he was biased against law enforcement,
Juror No. 6 said, “I don’t have a bias. I think I understand the positive and the negatives
relating to the law enforcement.” He admitted referring to the police officers as the Three
Stooges.
The court did not recall Juror No. 6’s answer during voir dire to the question
whether the juror had any negative experiences with law enforcement officers. When the
court now asked Juror No. 6 about negative experiences with law enforcement, he said, “I
got a ticket for making an illegal right turn, and I took it to court I guess and I won.”
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“[T]he only thing negative about it was I was accused of doing something, and the officer
really didn’t have all of the information to . . . make a judgment in the first place.” He
also said, “as a high school principal probably, um, watching officers break up a fight a
little more heavily than I would have liked maybe. [¶] . . . [¶] Stopping the kids in front
of the school or those kind of issues, you know, but I had good relationships with the
captain, and I could call him and he would always straighten those kind of issues out for
me.” The juror said he had also known some good school resource officers (SROs). One
negative experience was that a new SRO “almost started a riot”; he was “walking around
excited about being on campus and started talking to students and conversation got out of
hand. And he didn’t understand where to go from when things got bad to worse so to
speak. We had to go and rescue him, that kind of thing. I mean we didn’t want our kids
to get shot or maced or anything like that. So we had to come to his assistance.” By the
time Juror No. 6 got there, the SRO was surrounded by 15 or 20 kids. Juror No. 6 got the
SRO replaced. “If you don’t have the kid skills, you don’t do well in that position.”
Another negative experience was that Juror No. 6’s child attends school in
Natomas, and the juror was part of the community organization making sure the school is
a place the parents can be proud of, and “[o]ne of the things we did not like was how, um,
police interacted with our kids.” “[T]hey were too quick to arrest. I mean they would
arrest for fighting. And the days that I went to school we never sent kids to jail for fights.
Just typical -- it just seemed we had -- and it was really one bad officer, and we had to
really work hard to get rid of him.” It took most of the year to get rid of him. This
happened a couple of years ago.
The juror said his own son “got stopped by the local security” four or five years
earlier, when the son was 11 years old. Paladin security stopped the child and “wasn’t
satisfied with his answers. And we’re talking I got the greatest kid in the world.” The
Paladin security person “decided that he needed more information from the kid. He
needed the color of law. So he held my . . . kid there when he was with his friend and
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called in Sac P.D. to come in. And I didn’t take kindly to that as a parent. And we had
all the officers, we had their bosses in my house explaining to me how that’s possible that
a Paladin person can stop my kid. Then a police officer will come in and intercede in my
community?” The juror said he was satisfied with the police response to the Paladin
situation. The police officer asked the child a couple of questions and let him go. The
juror had the meeting at his house because he wanted the police to explain how Paladin
had the right to stop his son.
The trial court then asked:
“Q Okay. During voir dire when we were questioning prospective jurors do
you remember me asking if you ever had a negative experience with law enforcement
that didn’t necessarily result in an arrest, but it was still negative for you? Do you recall
that question being asked by me?
“A You know, as you say that I do remember the question.
“Q Okay.
“A I do remember the question.
“Q Okay. Anything else, Counsel?
“A Well --
“Q I’m sorry. Go ahead.
“A I do remember the question. Go ahead. I don’t know where I was.
“Q Okay. I appreciate that.”
The trial court found Juror No. 6 committed misconduct by intentionally
withholding during voir dire a bias against law enforcement that, if it had been disclosed,
would most assuredly have resulted in a peremptory challenge. The prosecutor
confirmed he would have excused the juror. The court found the negative experiences
described by the juror were of such a nature that he could not have unintentionally
forgotten about them when he sat silent in response to the court’s question about negative
experiences with law enforcement. The court disbelieved the juror’s claim that he could
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be impartial. The court said the juror “did acknowledge that during initial voir dire at
least sort of -- and I put that in quotes -- sort of that he equivocated, but then he did
acknowledge, yes, he did recall being asked the question about negative experiences with
law enforcement.”
The court noted the other jurors said defendant appeared biased against law
enforcement during deliberations. The court noted that when it gave the jury additional
instructions in response to the deadlock, Juror No. 6 had his back turned to the judge for
half the instruction. The trial court rejected defense counsel’s spin attributing the juror’s
posture to a quest for comfortable accommodation of his six-foot-plus height.
After argument by counsel, the trial court reiterated its findings that the juror had
deliberately withheld information during voir dire. He had an agenda and was dishonest
with the court. He had a bias and prejudged the case. The court found the juror had not
deliberated in good faith but was not removing him for failure to deliberate.
B. Analysis
“If at any time, whether before or after the final submission of the case to the jury,
a juror . . . upon other good cause shown to the court is found to be unable to perform his
or her duty, . . . the court may order the juror to be discharged and draw the name of an
alternate, who shall then take [the discharged juror’s] place . . . .” (§ 1089.) A juror’s
failure to disclose bias against law enforcement is misconduct warranting discharge.
(People v. Wilson (2008) 44 Cal. 4th 758, 822-823 (Wilson); People v. Barnwell (2007)
41 Cal. 4th 1038, 1051 (Barnwell).)
On appeal, we determine whether the ground for disqualification appeared as a
“demonstrable reality,” which entails a more comprehensive and less deferential review
than the substantial evidence inquiry. (Barnwell, supra, 41 Cal.4th at pp. 1052-1053.)
Demonstrable reality requires a showing that the trial court, as trier of fact, did rely on
evidence that, in light of the entire record, supports its conclusion that bias was
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established. (Ibid.) Although we do not reweigh the evidence, in order to affirm we
“must be confident that the trial court’s conclusion is manifestly supported by evidence
on which the court actually relied.” (Ibid.) We limit our inquiry to the reasons actually
relied upon by the trial court and sufficiency of evidence to support those reasons.
(Wilson, supra, 44 Cal.4th at p. 821.) Where the evidence is in conflict, we afford
deference to the trial court’s firsthand observation of the “nuances attendant upon live
testimony” which are unavailable to us on appeal. (Barnwell, supra, 41 Cal.4th at
p. 1053.)
Here, the record as a whole, recounted above, clearly shows that the trial court’s
stated reasons for discharging the juror (withholding information during voir dire and
dishonesty) appeared as a demonstrable reality.
Defendant argues the incident about his traffic ticket was trivial, and he won in
court. But the juror expressly stated it was “negative” in that the officer accused him
without grounds. Moreover, defendant cites no authority that each incident must be
separately significant enough to generate bias, rather than bias developing from a
cumulative effect of several incidents.
Defendant argues the incident with the juror’s son was not a negative experience
with law enforcement but merely a negative experience with a private security company.
Not so. The juror made “all the officers” and their “bosses” come to the juror’s home to
explain how Paladin could “stop my kid. Then a police officer will come in and
intercede in my community?”
Defendant argues the juror was not required to disclose the other incidents during
voir dire because they were not negative experiences for the juror, his family members, or
close friends -- the only persons mentioned in the voir dire question. However, they were
negative experiences for the juror. Though he was not the target of the police conduct,
the question did not require that the juror be the target. Moreover, the totality of these
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incidents, together with the other incidents, obviously shaped the juror’s bias against law
enforcement.
Defendant’s reply brief takes issue with the People’s argument that the juror, by
stating, “I don’t know where I was,” admitted he had no good reason for failing to
respond to the question in voir dire. Defendant argues “it is clear that [the juror] simply
meant that he had lost his train of thought after the court interrupted him seconds earlier.”
We do not see it as “clear,” but in any event we do not rely on defendant’s answer to the
court’s question in finding no error in the court’s dismissal of this juror.
VI
No Cumulative Prejudicial Error
Having reviewed all of defendant’s contentions, we reject his argument that the
cumulative effect of errors call for reversal.
DISPOSITION
The judgment is affirmed.
HULL , Acting P. J.
We concur:
MAURO , J.
DUARTE , J.
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