People v. Buttelo CA3 ( 2015 )

Filed 3/23/15 P. v. Buttelo 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,
Plaintiff and Respondent, C068381
v. (Super. Ct. Nos. 08F10072,
07F11996, 09F07953)
JOSEPH BUTTELO,
Defendant and Appellant.
Defendant Joseph Buttelo, a Norteño gang member, fired multiple .45-caliber
rounds into the side of a van, killing one of the occupants and wounding another. The
confrontation began when the van pulled up to defendant on the street and Gustavo
Lopez, a Sureño gang member seated in the front passenger seat, asked if he was a
“chapete,” a derogatory term used by Sureños to refer to their Norteño counterparts.
Defendant responded by asking Lopez if he was a “scrap,” a similarly derogatory term
for a Sureño. After a brief exchange of insults, Lopez appeared to grab an object, opened
the passenger door, and attempted to step out of the van, at which point defendant pulled
a handgun from his waistband. Lopez shut the door and said: “He has a gun. He has a
gun, go.” Defendant opened fire as the van drove away. One of the rounds struck Lopez
1
in the back. Another round struck Jonathan Gaeta, seated directly behind Lopez, in the
right leg. Lopez died of his injuries.
Charged with first degree murder (Count 1) and attempted first degree murder
(Count 2), defendant was convicted by jury of the lesser included offenses of voluntary
manslaughter and attempted voluntary manslaughter. (Pen. Code, §§ 192, subd. (a),
664/192, subd. (a).)1 The jury also found defendant personally used a firearm in the
commission of these offenses (§ 12022.5, subd. (a)), but did not commit these offenses
for the benefit of, at the direction of, or in association with a criminal street gang with the
intent to promote, further, or assist in criminal gang activity (§ 186.22, subd. (b)).2 The
trial court sentenced defendant to serve an aggregate determinate prison term of 23 years,
4 months (upper term of 11 years for voluntary manslaughter, plus a consecutive upper
term of 10 years for the firearm enhancement attached to that count, plus a consecutive
term of one year (one-third the middle term) for attempted voluntary manslaughter, plus a
consecutive term of one year, 4 months (one-third the middle term) for the firearm
enhancement attached to that count) and imposed other orders.3
1 Undesignated statutory references are to the Penal Code.
2 Defendant was acquitted of one count of attempted murder and of the lesser
included offense of attempted voluntary manslaughter (Count 3) and one count of
malicious and willful discharge of a firearm at an occupied motor vehicle (Count 4),
charged in relation to a separate shooting incident that occurred about two weeks before
the incident underlying Counts 1 and 2.
3 By order of this court, defendant’s notice of appeal in superior court case
No. 08F10072 (involving the above-described convictions) was construed to include case
Nos. 07F11996 (involving a conviction for possession of marijuana) and 09F07953
(involving a conviction for possession of a stabbing instrument while at the Sacramento
County Jail). Defendant was sentenced on each of those cases at the same sentencing
hearing. Sentences imposed in case Nos. 07F11996 and 09F07953 were ordered to be
served concurrently with the sentence imposed in case No. 08F10072. The facts
underlying case Nos. 07F11996 and 09F07953 are not relevant to the issues raised on
appeal and are not discussed.
2
On appeal, defendant contends: (1) the prosecutor engaged in prejudicial
misconduct during his closing argument to the jury by misstating the law regarding self-
defense; (2) the trial court coerced a verdict in violation of his rights under the federal
Constitution when it ordered the jury to continue deliberating after it indicated a deadlock
on Counts 1 and 2 without inquiring as to whether there was a reasonable probability the
jurors could agree on a verdict; and (3) the trial court erred in calculating defendant’s
entitlement to presentence custody credit.
We disagree with the first two contentions. While certain misstatements were
made by the prosecutor, in light of the entire closing argument, we conclude there is no
reasonable likelihood the jury misconstrued or misapplied the comments to lighten the
prosecution’s burden of proving its case beyond a reasonable doubt. We also conclude
the trial court did not coerce a verdict in this case. We partially agree with defendant’s
claim he is entitled to two additional days of presentence custody credit. As the Attorney
General concedes, defendant is entitled to the additional days of credit with respect to
case No. 07F11996. However, defendant appears to argue this credit must also be
applied to the sentence imposed in case No. 08F10072. Not so. He served the two days
solely on the charges brought in case No. 07F11996, over a year before he was arrested in
case No. 08F10072. Thus, the two days for which defendant seeks credit were
attributable solely to case No. 07F11996, and not to case No. 08F10072. Accordingly,
we modify the judgment to award the additional credit in case No. 07F11996 and affirm
the modified judgment. We also direct the trial court to correct the abstract of judgment
to reflect the years in which defendant’s crimes were committed.
FACTS
In October 2008, defendant was a member of the Norteño street gang. He began
associating with Norteño gang members when he was 14 or 15 years old and became
more entrenched in the gang lifestyle as he became an adult. He routinely wore red, the
color claimed by his gang, and threw up gang signs when he saw members of the rival
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Sureño street gang. By doing so, he was “representing” his gang and “disrespecting the
other side.” An exchange of gang signs by rival gang members, often accompanied by an
exchange of insults, could lead to anything from a fist fight to a more serious
confrontation involving weapons. Defendant began carrying a gun one or two months
before the shooting incidents involved in this case. Because only one such incident
resulted in conviction, we confine our factual recitation to that incident.
On October 31, 2008, around 8:30 p.m., defendant was heading to a friend’s house
on Lerwick Road in the Arden-Arcade area of Sacramento. Considering his destination
to be Sureño territory, defendant wore a red long-sleeve shirt beneath a black t-shirt and
carried a loaded .45-caliber handgun for protection. As defendant walked down Edison
Avenue towards Lerwick Road, he came across two friends, Jessica Orsie and Jimmy
Cromaty, who also lived at the house he intended to visit. Orsie and Cromaty were
walking to the liquor store to buy alcohol. Defendant joined them. On the way back
from the liquor store, defendant acted “nervous, paranoid a little bit,” and told Orsie: “If
something happens, just continue to go. Just keep walking.” The threesome reached
Lerwick without incident, but about four houses up the road, a green van passed them,
came to a stop, and after making a three-point turn, pulled up beside defendant and his
companions.
The driver of the van was Jerardo Chairez. Gustavo Lopez was seated in the front
passenger seat. Jonathan Gaeta and Humberto Barajas were seated in the back of the van.
Chairez and his passengers were trying to get to a Halloween party, the location of which
Lopez claimed to know. After telling Chairez to turn on Lerwick, Lopez realized they
were on the wrong street and told him to turn around. It was after the van turned around
that Lopez noticed defendant and his friends walking up the street. Lopez, a member of
the Sureño street gang, rolled down his window and told Chairez to slow down. When
Chairez pulled up, Lopez asked defendant: “Are you a chapete?” Lopez appeared to be
angry. Defendant responded: “Are you a scrap?” This initial exchange of accusatory
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questions turned into a brief, but heated argument, lasting only a few seconds. The
argument ended when Lopez appeared to grab an object from the floor board, opened the
passenger door, and started to get out of the van. Defendant took a step back and pulled
the handgun from his waistband. When Lopez saw the gun, he “jumped back in” the van
and said: “He has a gun. He has a gun, go.”
The first shot was fired before Chairez could press down on the gas pedal, and
when he did hit the gas, the tires spun on the wet roadway for about three seconds as
multiple bullets hit the van. When the van gained traction, Chairez drove away at a high
rate of speed. Defendant fired at least four rounds into the van. One of the rounds
penetrated the passenger side door and hit Lopez in the back as he turned away from
defendant. Another round penetrated the van’s sliding door and hit Gaeta, seated directly
behind Lopez, in the right leg below the knee. Orsie and Cromaty ran to their house as
the shooting started. Defendant followed as the van drove away. When defendant got to
the house, he went into a back room and hid the gun under his friend’s mattress.
Meanwhile, Chairez drove to a nearby gas station, went inside, and called 911. Barajas
stayed in the van with Lopez and Gaeta. Law enforcement and medical personnel arrived
a short time later. Lopez and Gaeta were transported to the hospital. Lopez died of his
injuries.
Defendant testified in his own defense. He admitted being a Norteño gang
member. He admitted carrying a loaded .45-caliber handgun the night of the shooting
because he was in a Sureño neighborhood. He admitted shooting into Chairez’s van after
engaging in a gang-related argument with Lopez. His defense was that he fired in self-
defense after he saw something in Lopez’s hand. He explained: “I saw something in his
hand and it looked like he was gripping it. It looked small to me. I can’t say with any
certainty what it was.” The fact Lopez appeared to grab an object inside the van was
corroborated by Orsie and Cromaty. Orsie testified the object looked like a “baton or
billy club.” Cromaty testified the object appeared to be “black and heavy.” In contrast,
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Chairez testified Lopez did not have anything in his hands when he opened the passenger
door and started to step out of the van. Chairez also testified there were no weapons in
his van the night of the shooting. Gaeta and Barajas each testified they could not see
whether Lopez grabbed anything prior to the shooting. A search of the van revealed no
gun, pipe, bat, rod, or baton. However, there was a red steering wheel lock bar.
DISCUSSION
I
Prosecutorial Misconduct
Defendant contends the prosecutor engaged in prejudicial misconduct during his
closing argument by misstating the law regarding self-defense. While we agree certain
misstatements were made by the prosecutor, viewed in light of the entire closing
argument and the jury instructions, we conclude there is no reasonable likelihood the jury
misconstrued or misapplied the comments to lighten the prosecution’s burden of proving
its case beyond a reasonable doubt.
A.
Additional Background
During his closing argument to the jury, the prosecutor argued: “So let’s talk
about self-defense as it applies to all charges, because [defendant] would have you
believe that he acted in self-defense on two separate occasions, 15 days apart, when he
shot at two separate cars killing one person. That he was but an innocent victim. A man
who[,] caught by circumstances[,] was forced to act with unfortunate results. [¶] What
are the requirements for you to find [defendant] acted in self-defense? He has to have an
honest belief in his own head in the need to use force to defend himself from immediate
harm, okay. [¶] That belief must be reasonable. Would a reasonable person, would
average Joe, believe the same thing? This is why we pick jurors from the community.
Twelve citizens with different back[grounds], different lifestyles, different experiences.
The twelve of you are the reasonable people. [¶] If [defendant] honestly believed he
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needed to defend himself, is that normal, reasonable? [¶] And you have to find that
[defendant] only used force that was reasonably necessary to defend himself against
danger. The example of that is, you know, if you and I agree to go after school to the
park and have a fight at 3 o’clock and I show up with a knife or a gun because I’m afraid
that you’re bigger than me and you are going to beat me up, that’s not reasonable force.
You can’t bring a knife to a fist fight. You can’t bring a gun to a knife fight. You can’t
use deadly force to protect yourself from non-deadly force.”
At this point, defense counsel objected: “You can bring a gun to a knife fight, it’s
deadly force.” Following a sidebar discussion, the trial court sustained the objection.
The prosecutor continued: “You can’t use deadly force to repel non-deadly force. That’s
the concept. Your use of force, if you have an honest reasonable belief in self-defense, it
has to be reasonably related.”
Turning to the Halloween shooting incident, the prosecutor argued the jury should
believe the testimony of Chairez, Gaeta, and Barajas over that of defendant, Orsie, and
Cromaty for a number of reasons. He then argued: “If you were to find honest and
reasonable belief, you have to find that the reaction is reasonably related to the danger.
The problem with that is a single occupant, if you believe that version, [Lopez] starting to
get out of the van is not deadly force. There’s nothing about that that presents such a
high level of danger that you have to shoot. [¶] A pipe, baton, bat on somebody’s lap,
it’s not deadly force. Again, even [Orsie] only assumed a fist fight and ran because she
can’t fight. There’s nothing about this that says four gunshots into a vehicle is
reasonable.” Discussing the bullet trajectory evidence, the prosecutor argued defendant
was not running away when he fired into the van, and stated: “He’s not running because
he’s not scared. He’s standing his ground and shooting at somebody who called him a
chapete, and he hits him in the back. [¶] There’s really no more cowardly way to kill a
person. There’s really no more cowardly way to act[,] to live a violent lifestyle, carry
loaded guns, and use any excuse to shoot at people.”
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After discussing defendant’s claim of self-defense with respect to the other
shooting incident, the prosecutor argued: “Self-defense and imperfect self-defense, some
additional thoughts. You don’t have the option of either if you provoke a quarrel with the
intent to use self-defense. And how that would apply is, if two people were to get into a
screw you, no screw you type of an argument and you’re provoking the fight and you’re
sort of part and parcel of this confrontation that’s starting to escalate, you don’t then get
to say, well, hang on, he threw the first punch. [¶] No. No. You were part of the quarrel
that was beginning, you don’t then get self-defense.” The prosecutor continued: “On the
31st, the chapete/scrap language, right? And the importance of this is -- you got the
instruction this morning on the idea of offensive words, right. . . . [¶] If you use
offensive words that you should expect to provoke a violent confrontation, which [the
prosecution’s gang expert] said chapete and scrap are it, you don’t get self-defense. It
doesn’t apply.”
At this point, defense counsel lodged another objection: “That misstates the law
depending on circumstances.” After the objection was overruled, the prosecutor
continued: “You also don’t have the option of self-defense or imperfect self-defense if
you agree to mutual combat, right. My school yard fight. If you agree to meet at
3 o’clock after school and fight, you don’t get to say, well, he punched me first, I get self-
defense. You don’t get to say he punched me first[,] so I pulled out a knife because he’s
bigger than me[,] so I get self-defense. [¶] No, you agreed to mutual combat. You don’t
get to escalate[,] certainly[,] the force. You don’t get self-defense at all. You’ve agreed
to the conflict.”
B.
Analysis
“Under the federal Constitution, a prosecutor commits reversible misconduct only
if the conduct infects the trial with such ‘ “unfairness as to make the resulting conviction
a denial of due process.” ’ [Citation.] By contrast, our state law requires reversal when a
8
prosecutor uses ‘deceptive or reprehensible methods to persuade either the court or the
jury’ [citation] and ‘ “it is reasonably probable that a result more favorable to the
defendant would have been reached without the misconduct” ’ [citation].” (People v.
Davis (2009) 46 Cal. 4th 539, 612.)
While prosecutors are given wide latitude during argument (People v. Wharton
(1991) 53 Cal. 3d 522, 567), “it is improper for the prosecutor to misstate the law
generally [citation], and particularly to attempt to absolve the prosecution from its prima
facie obligation to overcome reasonable doubt on all elements [citation].” (People v.
Marshall (1996) 13 Cal. 4th 799, 831.) Where the prosecutor’s comments are ambiguous,
the question is “whether there is a reasonable likelihood that the jury misconstrued or
misapplied” the comments. (People v. Clair (1992) 2 Cal. 4th 629, 663.)
Defendant argues the prosecutor’s comments amounted to misconduct because
there is a reasonable likelihood the jury would understand the comments to require them
to conclude “self-defense was not available to [defendant] with respect to his shooting
Lopez and Gaeta” solely because defendant “engaged in an exchange of offensive words
with Lopez . . . . The prosecution had the burden of proving that the killing and
attempted killing were not justified due to self-defense. [Citations.] Thus, the
argument’s effect is to misstate the law in a manner that has the effect of reducing the
prosecution’s burden of proving the absence of self-defense. Also, the argument was an
improper way to attack an essential part of [the] defense.”
Viewed in isolation, certain of the prosecutor’s comments, i.e., “[i]f you use
offensive words that you should expect to provoke a violent confrontation, . . . you don’t
get self-defense,” and “[y]ou also don’t have the option of self-defense . . . if you agree to
mutual combat,” are misstatements of law. As defendant correctly observes, “ ‘[w]here a
person seeks or induces a quarrel which leads to the necessity in his [or her] own defense
of using force against his [or her] adversary, the right to stand his [or her] ground and
thus defend himself [or herself] is not immediately available to him [or her], but, instead
9
he [or she] must first decline to carry on the affray, must honestly endeavor to escape
from it, and must fairly and clearly inform his [or her] adversary of his [or her] desire for
peace and of his [or her] abandonment of the contest unless the attack is so sudden and
perilous that he [or she] cannot withdraw. . . .’ [Citation.]” (People v. Quach (2004) 116
Cal. App. 4th 294, 302, italics omitted.) Thus, provoking a confrontation or agreeing to
mutual combat does not, by itself, preclude the use of force in self-defense, but rather
makes the propriety of using such force subject to additional requirements.
However, we do not view the prosecutor’s comments in isolation. (People v. Avila
(2009) 46 Cal. 4th 680, 714.) Immediately before the challenged comments, the
prosecutor stated: “You also don’t have the option of [self-defense] if you provoke a
quarrel with the intent to use self-defense.” (Italics added.) This is an accurate statement
of the law. Indeed, as the jury was properly instructed: “A person does not have the right
to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse
to use force.” (See People v. Frandsen (2011) 196 Cal. App. 4th 266, 278.) It was during
the prosecutor’s attempt to explain this concept of contrived self-defense that he made the
challenged comments. In context, we conclude the jury would have understood the
challenged comments to include the implied qualification, with the intent to create an
excuse to use force in self-defense.
Moreover, even if the jury was reasonably likely to misinterpret the challenged
comments to preclude defendant from using force in self-defense if he exchanged insults
with Lopez and thereby impliedly agreed to engage in mutual combat, the misconduct
would be harmless. The jury was fully and accurately instructed on principles of self-
defense, including the circumstances in which a mutual combatant may use force in self-
defense. “When argument runs counter to instructions given a jury, we will ordinarily
conclude that the jury followed the latter and disregarded the former, for ‘[w]e presume
that jurors treat the court’s instructions as a statement of the law by a judge, and the
prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’
10
[Citation.]” (People v. Osband (1996) 13 Cal. 4th 622, 717.) Nor is there any evidence in
the record supporting the view defendant tried to withdraw from the confrontation
between Lopez and himself, indicated to Lopez he wanted to withdraw, and gave Lopez a
chance to withdraw, or that Lopez’s attack on defendant was so sudden and perilous
withdrawal was not possible. Defendant’s own testimony was that he fired upon the van
as soon as he saw an unknown object in Lopez’s hand. Holding an unknown object does
not amount to a sudden and perilous attack. Furthermore, when defendant pulled out the
handgun, it was Lopez who indicated a desire to withdraw from the confrontation by
getting back in the van and telling Chairez to drive away. Instead of allowing the
withdrawal, defendant opened fire. Thus, in addition to presuming, as we must, the jury
followed the trial court’s instructions and disregarded any contrary statements made by
the prosecutor, we can also state with confidence that the jury likely rejected defendant’s
claim of self-defense, not because it believed a mutual combatant can never use force in
self-defense, but because defendant did not meet the additional requirements placed upon
a mutual combatant, as fully and accurately set forth in the instructions.
II
Coercion of a Verdict
Defendant contends the trial court coerced a verdict in violation of his rights under
the federal Constitution when it ordered the jury to continue deliberating after it indicated
a deadlock on Counts 1 and 2 without inquiring as to whether there was a reasonable
probability the jurors could agree on a verdict. We reject the contention.
A.
Additional Background
Presentation of evidence in defendant’s trial spanned nine court days. The jury
deliberated for less than two days before a juror was removed and replaced by an
alternate juror. Following the substitution, the trial court instructed the jury to begin their
deliberations anew.
11
During the first day of new deliberations, the jury requested and obtained playback
of a 911 call relating to the first shooting incident, supporting the charges brought in
Counts 3 and 4, of which defendant was acquitted. The jury also requested readback of
certain testimony relating to this shooting incident. Readback of the requested testimony
commenced the following morning. That afternoon, the jury announced it had reached a
verdict on Counts 3 and 4. The trial court instructed the jury to sign the verdict forms for
these counts and maintain possession of them until deliberations were complete for all
counts.
The following day, the jury requested and obtained readback of defendant’s
testimony regarding the Halloween shooting incident, supporting the charges brought in
Counts 1 and 2. The next day of deliberations, the jury requested clarification of the
definition of second degree murder and expressed confusion as to the difference between
second degree murder and voluntary manslaughter. The trial court referred the jury to
CALCRIM Nos. 500, 520-522, 570-571, and 640. The afternoon of the following day,
the jury announced it had reached a verdict on all counts. However, because the verdict
forms were internally inconsistent, the trial court informed the jury it could not accept
them.4 The jury was sent home early and ordered to return the following day. Upon their
return, the jury was re-instructed on filling out the verdict forms. About two hours later,
the jury announced it had reached a verdict on Counts 3 and 4, but could not agree on
Counts 1 and 2. That afternoon, the trial court accepted the jury’s verdict of not guilty on
Counts 3 and 4.
Immediately after accepting the verdict with respect to Counts 3 and 4, the trial
court informed the jury: “I have a single additional instruction to read to you this
4 For example, as the trial court explained on the record, “as to Count 1, there were
signed verdict forms for guilty and not guilty of first-degree murder, guilty and not guilty
of many of the lessers, all of which is obviously internally inconsistent.”
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afternoon. At the conclusion of this instruction, it’s my intention to send you home today
and bring you back tomorrow at 9:00. [¶] You all have had a long journey to this point.
I could see on your faces it’s not always been an easy journey to get here. I have
significant sympathy for you in your positions. I think an afternoon away from the
courthouse may have value for you.” The trial court also advised: “I also want you to be
thinking over the evening about anything additional I can provide you with relative to
your efforts on Counts 1 and 2. [¶] For example, is there additional read back of a
particular witness or witnesses that you think might be of value or assistance? [¶] Is
there an additional point of law that could be clarified? [¶] Under certain circumstances
I can even allow the lawyers to provide additional argument to you on a particular point if
you could identify it? And I would certainly be willing to consider that if it were [an]
appropriate issue upon which to address.”
The trial court then instructed the jury with the following instruction, which we
expressly approved in People v. Moore (2002) 96 Cal. App. 4th 1105 (Moore):
“What I’m going to do right now, ladies and gentlemen, is I have further
instructions and directions to give you as to this case.
“It has been my experience on more than [one] occasion that a jury which initially
reported it was unable to reach a verdict was ultimately able to arrive at a verdict.
“To assist you in your deliberations, I’m going to further instruct you as follows:
Your goal as jurors should be to reach a fair and impartial verdict if you are able to do so
based solely on the evidence presented and without regard for the consequences of your
verdict regardless of how long it takes to do so.
“It is your duty as jurors to carefully consider, weigh, and evaluate all of the
evidence, and to listen to and consider the views of your fellow jurors.
“In the course of your further deliberations, you should not hesitate to re-examine
your own views or to request your fellow jurors to re-examine theirs.
13
“You should not hesitate to change a view you’ve once held if you are convinced
it is wrong or to suggest other jurors[] change their views if you are convinced they are
wrong. Fair and effective jury deliberations require a frank and forthright exchange of
views.
“As I’ve previously instructed you, each of you must decide the case for yourself
and you should do so only after a full and complete consideration of all of the evidence
with your fellow jurors.
“It is your duty as jurors to deliberate with a goal of arriving at a verdict on a
charge if you could do so without violence to your individual judgment.
“Both the People and the defendant are entitled to individual judgment of each
juror. As I’ve previously instructed you, you have the absolute discretion to conduct your
deliberations in any way you deem appropriate.
“May I [suggest] that since you’ve been unable to arrive at a verdict using the
methods that you have chosen, that you consider changing the methods you have been
following at least temporarily and try new methods.
“For example, you may wish to consider having different jurors lead the
discussions for a period of time, or you may wish to experiment with reverse role playing
by having those on one side of [the] issue present and argue the other side’s position and
vice versa. This might enable you to better understand the other’s positions.
“By suggesting you should consider changes in your methods of deliberations, I
want to stress I am not dictating or instructing you as to how to conduct your
deliberations.
“You may find it productive to do whatever is necessary to ensure each juror has a
full and fair opportunity to express his or her views and consider and understand the
views of the other jurors.
“I also suggest you reread CALCRIM Instructions 200 and 3550. These
instructions pertain to your duties as jurors and make recommendations as to how you
14
should deliberate. The integrity of a trial requires that jurors at all times during
deliberations conduct themselves as required by these instructions. CALCRIM
Instructions 200 and 3550 define the duties of a juror.
“The decision the jury renders must be based on the facts and the law. You must
determine what facts have been proved from the evidence received in the trial and not
from any other source. The fact is something proved by the evidence or by stipulation.
“Second, you must apply the law I stated to you to the facts as you determine them
and in this way arrive at your verdict. You must accept and follow the law as I state it to
you regardless of whether you agree with the law.
“If anything concerning the law said by the attorneys in their arguments or at any
other time during the trial conflicts with my instructions on the law, you must follow my
instructions.
“CALCRIM Instruction 3550 defines the jury’s duty to deliberate. The decisions
you make in this case must be based [on] evidence received in the trial and the
instructions given by . . . the [C]ourt. These are the matters this instruction requires you
to discuss for the purpose of reaching a verdict.
“CALCRIM Instruction 3550 also recommends how our jurors should approach
their task. You should keep in mind the recommendations this instruction suggests when
considering the additional instructions, comments and instructions I have made in the
instructions now presented to you. I hope my comments and suggestions may have
[been] some assistance to you.”
The jury was then released for the day and ordered to return the following
afternoon to resume their deliberations. Immediately thereafter, defense counsel
requested a declaration of mistrial, noting “at least two jurors start[ed] to cry” when the
trial court ordered them to return the following day to resume their deliberations, and
expressing concern “that if there is a verdict it’s a product of coercion.” The prosecutor
responded by noting the jury “received only one read back from the [Halloween shooting
15
incident] and that was of the defendant. They have not requested any other read back or
any other clarification on issues other than their one clarification on the difference
between second [degree murder] and voluntary manslaughter where we rereferred them
to instructions they already had without clarifying anything.” The trial court denied the
request to declare a mistrial.
The following afternoon, the jury resumed their deliberations and requested
readback of defendant’s testimony regarding the Halloween shooting. The requested
readback occurred the next morning. The morning after that, the jury requested and
obtained readback of the testimony of Orsie and Cromaty. The following morning, the
jury announced it had reached a verdict on Counts 1 and 2.
B.
Analysis
Section 1140 provides: “Except as provided by law, the jury cannot be discharged
after the cause is submitted to them until they have agreed upon their verdict and
rendered it in open court, unless by consent of both parties, entered upon the minutes, or
unless, at the expiration of such time as the court may deem proper, it satisfactorily
appears that there is no reasonable probability that the jury can agree.”
“The determination whether there is reasonable probability of agreement rests in
the discretion of the trial court. [Citations.] The court must exercise its power, however,
without coercion of the jury, so as to avoid displacing the jury’s independent judgment
‘in favor of considerations of compromise and expediency.’ [Citation.]” (People v.
Breaux (1991) 1 Cal. 4th 281, 319.) “The question of coercion is necessarily dependent
on the facts and circumstances of each case.” (People v. Sandoval (1992) 4 Cal. 4th 155,
195-196.)
Defendant argues the trial court “abused its discretion in not questioning the jurors
as to the probability of agreement before ordering further deliberations.” We rejected the
same contention in Moore, supra, 96 Cal. App. 4th 1105. There, after one full day of
16
deliberations, the jury indicated it had reached a verdict on one of the counts, but could
not reach a unanimous decision as to the remaining count. After the trial court delivered
the same instruction given to the jury in this case, which we approved in Moore, the jury
deliberated for another afternoon and part of a morning before reaching a verdict on the
remaining count. (Moore, supra, at pp. 1118-1120.) Rejecting the defendant’s argument
that the trial court abused its discretion by “not ascertaining whether there was a
reasonable probability the jurors could agree on a verdict,” we explained: “[S]ection
1140 vests the trial court with discretion to determine whether there is a reasonable
probability of agreement among jurors who have reported an impasse. [Citations.] In
this case, and presumably because of the relatively brief duration of deliberations
conducted by the jurors before they announced they could not reach a verdict on count
one, the trial court concluded further deliberations might be beneficial without
questioning the jury regarding the impasse. The fact the jury was able to reach a verdict
relatively quickly after being further instructed reflects the court properly exercised its
discretion.” (Moore, supra, at pp. 1121-1122.)
Here, defendant argues: “Unlike Moore, in this case, at least two jurors exhibited
emotional distress by starting to cry when the court ordered further deliberations. [¶]
Also, unlike Moore, the jury had deliberated for more than five days, as opposed to only
one day, before declaring its impasse.” But, as defendant also observes, only three days
were “devoted solely to deliberations on counts 1 and 2.” Indeed, it appears the first two
days were devoted exclusively to Counts 3 and 4. While five days of deliberation―three
of which were devoted to Counts 1 and 2―is substantially longer than the one day of
deliberation that occurred in Moore, we agree with the trial court’s assessment this is “not
an extensively long time period given the length of this trial.” Defendant takes issue with
the trial court’s subsequent statement, “[w]e’ve been at this collectively for nearly a full
month,” noting that “due to delays in the proceedings, . . . [f]rom the beginning of the
opening statements until the jury commenced deliberations, there were only 10 days of
17
trial.” However, this observation does not diminish the trial court’s conclusion that
deliberations had not been extensively long. We also conclude the trial court
appropriately focused on the fact the jury requested only one readback relating to the
Halloween shooting incident. Defendant takes issue with this comment as well, pointing
out there were other requests regarding the Halloween shooting incident “prior to one of
the jurors being replaced.” However, because the deliberations were required to begin
anew when the juror substitution occurred, the trial court properly focused on post-
substitution deliberations. We also note, following the instruction, the jury requested
additional readback of testimony regarding the Halloween shooting incident and reached
a verdict relatively quickly. There was no abuse of discretion.
Nor are we persuaded by the fact certain jurors showed emotion when ordered to
return to their deliberations. Participating on a jury can be an emotional experience. (See
People v. Russell (2010) 50 Cal. 4th 1228, 1249.) In People v. Keenan (1988) 46 Cal. 3d
478, during penalty deliberations in a capital murder case, one of the jurors voting for
death issued a heated “diatribe” against the lone holdout juror, causing this juror to begin
“crying and shaking” and leave for the restroom, where she may have vomited. (Id. at
pp. 539-540.) The same day, the jury foreman sent two notes to the trial court. After the
first note, which “suggested a juror was deviating from assurances made during ‘jury
selection’ about ability to ‘vote for the death penalty’ ” (id. at p. 533) the trial court re-
instructed the jury on its sentencing powers and duties. (Id. at pp. 528-529.) After the
second note, which stated, “ ‘we have a juror who cannot morally vote for the death
penalty,’ ” the trial court informed the jury there would be an investigation into whether
one or more jurors were refusing to follow the law. The trial court then released the jury
for the weekend. The following Monday, the foreman was questioned and revealed
multiple jurors did not recall being informed during voir dire that they would be required
to vote on whether to impose the death penalty, but that had been resolved. Explaining
the resolution, the foreman stated: “ ‘There was an apology. “I needed the weekend.”
18
And that was it.’ ” The trial court ruled there would be no further investigation and
allowed deliberations to continue after again instructing the jurors on their general duties.
(Id. at pp. 529-531.) After rejecting the defendant’s argument that certain comments
made by the trial court in response to the foreman’s notes resulted in a coerced verdict
(id. at pp. 533-535), our Supreme Court also rejected the argument the holdout juror’s
“ ‘objective’ manifestations of stress, such as shaking, crying, and vomiting, may be
considered as proof the verdict was improperly affected” by misconduct on the part of the
juror who lost his temper and yelled at the holdout. (Id. at pp. 539-542.)
Similarly, here, having concluded the trial court did not abuse its discretion in
instructing the jury to resume deliberations without also inquiring as to the probability of
reaching a verdict, the fact certain jurors became emotional at the prospect of further
deliberations does not mean the resulting verdict was coerced.
Finally, defendant complains about the instruction itself, specifically: (1) it
“unduly focused the jury on matters other than the presumption of innocence”; (2) “the
jury was not instructed not to give the . . . instruction undue consideration;” and (3)
“although the . . . instruction admonished the jury that each juror must decide the case for
himself or herself, the goal was to arrive at a verdict if it could do so without violence to
their individual judgment, and that both the prosecution and defense were entitled to the
individual opinion of each juror, it did not instruct the jurors not to surrender
conscientiously held beliefs simply to secure a verdict.” In response to these complaints,
we reiterate that the instruction was expressly approved in Moore, supra, 96 Cal. App. 4th
1105, and we are not persuaded by defendant’s attempts to undermine it now.
III
Custody Credit
Finally, defendant claims entitlement to two additional days of presentence
custody credit. The Attorney General concedes defendant is entitled to two days of credit
with respect to case No. 07F11996, but not with respect to case No. 08F10072. We agree
19
with the Attorney General, modify the judgment to award the credit, and affirm the
modified judgment.
A.
Additional Background
With respect to case No. 07F11996, defendant was arrested on December 4, 2007,
for possession of a large quantity of marijuana and spent two days in the Sacramento
County Jail, at which point he was released on bond and then granted drug diversion on
January 9, 2008.
With respect to case No. 08F10072, defendant was arrested on December 12,
2008, for the crimes described in this opinion and spent 883 days in presentence custody.
Defendant was sentenced on both cases on May 13, 2011.5 As mentioned, he was
sentenced to serve an aggregate prison term of 23 years, 4 months in case No. 08F10072.
After reinstating criminal proceedings against defendant in case No. 07F11996, the trial
court sentenced him to serve a concurrent term of two years in state prison.
The trial court awarded defendant 883 days of credit for time spent in actual
custody and 132 days of conduct credit, for a total of 1015 days of presentence custody
credit, without specifying the case or cases to which this credit applied. The abstract of
judgment reflects this credit as applying only to case No. 08F10072, with no credit
applying to case No. 07F11996.
B.
Analysis
Section 2900.5 provides in relevant part: “(a) In all felony and misdemeanor
convictions, . . . when the defendant has been in custody, . . . all days of custody of the
5 As mentioned, defendant was also sentenced on a third case, case No. 09F07953,
involving possession of a stabbing instrument while at the Sacramento County Jail. He
makes no claim to presentence custody credit with respect to this case.
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defendant, . . . shall be credited upon his or her term of imprisonment . . . . [¶] (b) For
the purposes of this section, credit shall be given only where the custody to be credited is
attributable to proceedings related to the same conduct for which the defendant has been
convicted. Credit shall be given only once for a single period of custody attributable to
multiple offenses for which a consecutive sentence is imposed.”
“[T]he purpose of section 2900.5 is to ensure that one held in pretrial custody on
the basis of unproven criminal charges will not serve a longer overall period of
confinement upon a subsequent conviction than another person who received an identical
sentence but did not suffer preconviction custody.” (People v. Bruner (1995) 9 Cal. 4th
1178, 1183-1184 (Bruner).)
Where a defendant is arrested and charged with multiple crimes in the same
proceeding and concurrent sentences are ultimately imposed at sentencing, any
“presentence time is credited against the term imposed on each crime” and “it makes no
difference that the crimes were committed at different times. The credits become
effective ‘together’ on each crime at the time of sentencing.” (People v. Adrian (1987)
191 Cal. App. 3d 868, 875-876; Bruner, supra, 9 Cal.4th at p. 1192, fn. 9 [where
concurrent terms are imposed for multiple offenses in a single proceeding, “presentence
custody is credited against all”].)
In People v. Kunath (2012) 203 Cal. App. 4th 906 (Kunath), relied upon by both
defendant and the Attorney General, our colleagues at the Second Appellate District
extended this rule to the situation in which the defendant, who was arrested and charged
with separate crimes in separate proceedings, was sentenced to serve concurrent terms in
each case at the same sentencing hearing. The trial court declined the defendant’s request
to award presentence custody credits “in each case for the time he was simultaneously in
presentence custody.” (Id. at p. 909.) The Court of Appeal reversed. The court first
discussed our Supreme Court’s decision in Bruner, supra, 9 Cal. 4th 1178, in which the
defendant, during an arrest for parole violations, was found to be in possession of
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cocaine. His parole was revoked and a 12-month sentence was imposed, with credit for
time spent in custody following his arrest. Thereafter, while the defendant was serving
his parole revocation term, he was charged with cocaine possession, convicted, and
sentenced to serve a concurrent 16-month term for this crime. (Id. at p. 1181.) The trial
court found the defendant was not entitled to any additional presentence credit. Our
Supreme Court agreed, explaining: “[W]here a period of presentence custody stems from
multiple, unrelated incidents of misconduct, such custody may not be credited against a
subsequent formal term of incarceration if the prisoner has not shown that the conduct
which underlies the term to be credited was also a ‘but for’ cause of the earlier restraint.
Accordingly, when one seeks credit upon a criminal sentence for presentence time
already served and credited on a parole or probation revocation term, he [or she] cannot
prevail simply by demonstrating that the misconduct which led to his [or her] conviction
and sentence was ‘a’ basis for the revocation matter as well.” (Id. at pp. 1193-1194.)
Thus, because the defendant in Bruner “received credit for all presentence custody in his
parole revocation proceeding” and “failed to demonstrate that but for the cocaine
possession leading to his current sentence, he would have been free, or at least bailable,
during that presentence period,” he was “not entitled to duplicative credit against the
current sentence.” (Id. at pp. 1180-1181.)
Distinguishing Bruner, the Kunath court explained: “ ‘The purpose of section
2900.5 is to equalize the total time in custody between those who suffered presentence
custody on unproven charges and those who did not. [Citation.] That purpose is not
served where, as in Bruner, a defendant in post-sentence custody is charged with another
crime. In such a case, even if the defendant would otherwise be eligible for presentence
release on the unproven charge, he [or she] cannot avoid being in custody. [¶] As our
Supreme Court stated in Bruner: ‘[S]ection 2900.5 is intended to provide equitable
treatment for one held in pretrial custody on mere charges of crime, not to give credit for
time already being served and credited on another term or sentence for unrelated
22
violations. In this case, once defendant began serving a parole revocation term founded
upon multiple unrelated acts of misconduct, his custody was unavoidable on that basis
regardless of the fact that he was simultaneously awaiting trial on the single criminal
charge. [Citation.]’ [Citation.] [¶] Where, however, the defendant’s custody is solely
presentence on all charges and he is simultaneously sentenced on all charges to
concurrent terms, the policy behind section 2900.5 applies. Presentence custody credits
must apply to all charges to equalize the total time in custody between those who obtain
presentence release and those who do not.” (Kunath, supra, 203 Cal.App.4th at pp. 910-
911.)
Defendant argues: “Since [he] had not been sentenced to any custody time in
[case No.] 07F11996 before the concurrent sentences were ordered, Kunath supports that
[he] is entitled to the 2 days of credit.” We agree defendant is entitled to the two days of
credit, applied to case No. 07F11996. But he is not entitled to have these two days
applied to case No. 08F10072. Unlike Kunath, where the defendant was “simultaneously
in presentence custody” on the two cases (Kunath, supra, 203 Cal.App.4th at p. 909),
here, the two days of credit defendant seeks were attributable solely to case
No. 07F11996, having been earned more than a year before defendant was arrested in
case No. 08F10072. We do not read Kunath to hold all presentence custody credits
earned in each case must be applied to both cases, regardless of whether the custody was
attributable to both cases, because of the fortuity of a simultaneous sentencing hearing.
Stated differently, where a defendant is simultaneously in presentence custody on two
cases, as in Kunath, the custody can be said to be attributable to both cases, and where
concurrent sentences are imposed in a simultaneous sentencing hearing, such custody
must be credited against each sentence. Not so here, where two days were spent in
presentence custody solely on case No. 07F11996, more than a year before defendant was
arrested in case No. 08F10072.
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Accordingly, with respect to case No. 08F10072, the trial court correctly awarded
883 days of credit for time spent in actual custody. Conduct credit in the amount of 132
days was also properly awarded pursuant to the 15 percent limitation of section 2933.1,
subdivision (c), for a total of 1015 days of presentence custody credit. However,
defendant is entitled to two days of credit for time spent in actual custody in case
No. 07F11996. Defendant is not entitled to any conduct credit for time spent in
presentence custody in that case. (See People v. Ramos (1996) 50 Cal. App. 4th 810, 816-
817 [defendant entitled to greatest whole number of days that do not exceed 15 percent of
actual period of presentence confinement].)
IV
Omission in the Abstract of Judgment
In addition to modifying the judgment to award the custody credit described
above, for which an amended abstract of judgment must be prepared, we also direct the
trial court to include in that amended abstract of judgment the years defendant’s crimes
were committed, which the current abstract of judgment omits. Defendant’s convictions
in case No. 08F10072 are designated Counts 1A and 2A in the abstract of judgment.
These crimes were committed in 2008. His convictions in case Nos. 09F07953 and
07F11996, for which he was sentenced at the same time as case No. 08F10072, are
designated Counts 2B and 2C in the abstract of judgment. These crimes were committed
in 2009 and 2007, respectively.
DISPOSITION
In case Nos. 08F10072 and 09F07953, the judgments are affirmed. In case
No. 07F11996, the judgment is modified to award two days of credit for time spent in
actual custody, with no days of local conduct credit, for a total of two days of presentence
custody credit. As modified, the judgment in case No. 07F11996 is affirmed. The trial
court is directed to prepare an amended abstract of judgment reflecting the modification.
This amended abstract of judgment shall also include the years defendant’s crimes were
24
committed. The trial court is further directed to forward a certified copy of the amended
abstract of judgment to the Department of Corrections and Rehabilitation.
HOCH , J.
We concur:
RAYE , P. J.
BLEASE , J.
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