People v. Henderson ( 2021 )

Filed 9/9/21
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C088883
Plaintiff and Respondent, (Super. Ct. No. 17FE008447)
v.
KEJHONNE M. HENDERSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Sacramento County, Stacey
Eurie Boulware, Judge. Affirmed.
Byron C. Lichstein, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A.
Hokans, Supervising Deputy Attorney General, Timothy L. O’Hair, Deputy Attorney
General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of Parts III – VIII and the dissenting opinion.
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Defendant Kejhonne M. Henderson shot and killed J.P. at a house party in the
North Highlands neighborhood of Sacramento. Upset that music of a local rapper
disparaging his neighborhood’s gang was being played, defendant exchanged heated
words with the party’s host. When J.P. intervened, he and defendant agreed to step
outside. On their way to the door, defendant pulled a handgun out of his waistband and,
when they got outside, shot J.P. multiple times in the head and chest. A.J., one of the
party goers tackled defendant and knocked the gun out of his hand. Defendant regained
possession and shot A.J. multiple times before fleeing. J.P. died before emergency
services arrived at the scene, but A.J. survived.
A jury found defendant guilty of one count of second degree murder (Pen. Code,
§ 187)1 and one count of attempted murder (§§ 664/187) and found true enhancement
allegations that defendant personally discharged a firearm causing great bodily injury or
death (§ 12022.53, subd. (d)) as to each count. The trial court sentenced defendant to
serve an aggregate determinate term of seven years plus an aggregate indeterminate
prison term of 65 years to life.
On appeal, defendant contends: (1) the trial court prejudicially abused its
discretion and violated his federal constitutional right to a jury drawn from a
representative cross-section of the community by excusing two African-American
prospective jurors for cause based on their stated belief that the criminal justice system
treats African-Americans unfairly and because they were sympathetic towards defendant;
(2) the trial court abused its discretion in dismissing a sitting juror during trial for
dishonesty; (3) the prosecutor violated defendant’s federal constitutional rights by
intentionally obtaining privileged and confidential information from the Director of the
Conflict Criminal Defenders about defense counsel’s attempts to obtain expert witness
1 Undesignated statutory references are to the Penal Code.
2
funding; (4) the trial court prejudicially abused its discretion and further violated
defendant’s constitutional rights by allowing the prosecutor to present assertedly
misleading testimony and argument regarding the defense’s ability to perform an
independent forensic analysis; (5) the trial court prejudicially erred by improperly
instructing the jury regarding circumstantial evidence; (6) the cumulative prejudicial
impact of the foregoing asserted errors requires reversal; (7) the trial court abused its
discretion by not considering reducing the 25 years to life firearm enhancements to lesser
included firearm enhancements; (8) the trial court erred by imposing a restitution fine
without an ability to pay hearing in violation of People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas); and (9) trial counsel provided constitutionally ineffective assistance of
counsel by not submitting a Franklin2 package for future youthful offender parole
consideration.
In the published portion of this opinion, we conclude that a trial court may not
excuse for cause African-American prospective jurors solely because of their belief that
the criminal justice system treats African-Americans unfairly, but reject defendant’s
assertion that the two African-American prospective jurors here were excused for that
reason. They were excused because the trial court concluded that, based on the voir dire
evidence, they could not be impartial because of their bias and sympathy for defendant.
On this record, we cannot conclude the court’s ruling was an abuse of discretion; nor was
defendant’s constitutional right to a jury drawn from a representative cross-section of the
community violated.
We further conclude the trial court erred in excusing a seated juror under section
1089, because the record does not demonstrate to a demonstrable reality that the juror
2 People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
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could not perform his duties. However, applying the harmless error standard in People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson), we conclude the error was harmless.
In the unpublished portion of this opinion, we reject defendant’s other claims of
error.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Shooting
On May 5, 2017, defendant’s girlfriend S.S. drove him to the house party.3 The
host of the party was one of S.S.’s former friends, M.L. When S.S. pulled up, she saw “a
crowd of people like outside” the party location, including M.L.’s mother. S.S. walked
up with defendant and gave M.L.’s mother a hug before continuing into the house.
Inside the house, M.L. was playing music. When S.S. walked in with defendant, a
song by Mozzy was playing. As the prosecution’s gang expert testified, Mozzy is a
rapper and validated member of the Fourth Avenue Bloods from Oak Park. His lyrics
disparage rival Del Paso Heights Bloods gang members, and people from “the Heights”
do not like his music.
S.S. spoke to M.L. in the living room while defendant exchanged words with
another young man who was also in the living room. As M.L. explained in her police
3 At trial, defendant’s defense was misidentification, but he does not challenge the
sufficiency of the evidence as to his identity as the shooter on appeal.
Regarding how defendant got to the party, it is undisputed he was with S.S. earlier in
the evening. He was with her at her house and then went out to dinner with her, her
mother and younger brother, V.S. They arrived at the restaurant about 9:00 p.m. and
returned to S.’s house about 11:30 p.m. Although S.S. denied bringing defendant to the
party, as we describe post, multiple witnesses told the police they saw them together at
the party. They also left the party at the same time, after defendant shot the two victims.
And according to a statement S.S.’s brother gave to the police, they arrived back at S.S.’s
house together later that night. We also note S.S. testified that defendant did not drive.
A reasonable inference from all of the evidence is that S.S. drove defendant to the party.
4
interview, while she could not hear what was being said between defendant and the other
young man, there “was clearly a problem.”4
Defendant then turned his attention to M.L., saying “turn that sucka shit off” and
“strictly twos Del Paso Heights.” M.L. understood this to mean he wanted her to change
the Mozzy song that was playing. As she did so, defendant “just kept talking, talking
about stupid twos, strictly the Heights, da-da-da-da-da, one Del Paso, this and that sucka
shit.”5
While defendant was confronting M.L. over the music, her close friend, J.P.,
entered the living room from the kitchen and asked her if she was okay. J.P. then
confronted defendant, who responded: “ ‘What are you tryin’ to do? Let’s step
outside.’ ” J.P. agreed. As they turned to step outside, defendant pulled a handgun out of
his waistband and held it by his side. One of J.P.’s friends, J.M., saw defendant pull out
the gun and walked out of the house ahead of defendant and J.P. Defendant opened fire
on J.P. as soon as they got outside, shooting J.P. multiple times including the back of the
head.6 As J.M. described in his statement to police: “He didn’t even give him a chance.”
J.M. ran away after the first couple rounds were fired, but not before seeing defendant
shoot his friend in the head and lower back. A different witness to the shooting explained
4 Much of the evidence in the trial consisted of prior statements to the police of
witnesses who had denied making those statements or had failures of recollection when
they testified.
5 As discussed, ante, these statements were things Del Paso Heights Bloods say.
6 A forensic pathologist testified J.P. was struck by at least seven rounds. One round
entered the back of J.P.’s head on the left side. Two rounds entered in the back and one
entered the right buttock. Rounds also entered J.P.’s right nostril, his chin area, and his
chest. J.P. also sustained gunshot wounds to both arms, but it was not clear whether these
wounds were caused by separate additional rounds, or by two of the rounds that caused
the other wounds.
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in her statement to police that three rounds were fired while J.P. was standing. Five or
six additional rounds were fired after J.P. fell to the ground.
When defendant stopped firing, another of J.P.’s friends, A.J, chased defendant
and tackled him to the ground, knocking the gun out of his hand. Defendant managed to
pick up the gun and then shot A.J. three times before running away. M.L.’s mother, who
was still outside when the shooting occurred, was also hit in the calf by one of the rounds
fired by defendant. She and A.J. survived their injuries. J.P. died before emergency
services arrived at the scene.
Gang Evidence
As noted, while complaining about the music prior to the shooting, defendant
refenced “stupid twos” and “strictly twos Del Paso Heights” while demanding that the
party hosts “turn that sucka shit off”. A gang expert testified that members of the Del
Paso Heights Bloods often use a gang sign meant to display the letter H, which “stands
for The Heights.” This gang sign involves extending the pointer and pinky finger up.
Referring to this gang sign, Del Paso Heights Bloods often verbally claim membership in
the gang by saying some variation of: “Twos Up, stupid twos, It’s all about the twos.”
The term “Su[c]ka” is a derogatory term for rival gang members. The expert
further opined that if a Mozzy song was playing at a party in Sacramento and a person
said, “ ‘Shut that suc[k]a off,’ ” that would indicate that person was affiliated with a rival
gang.
Identification Evidence
Although witnesses who previously identified defendant did not do so at trial,
proof of defendant’s identity as the shooter was nevertheless strong. Both J.M. and M.L.
identified him out of a photo lineup. J.M. also described defendant as being a “dark
skinned” African-American male, 5 feet 9 inches to 5 feet 10 inches in height, and about
170 to 180 pounds. He further explained that defendant was wearing a blue hooded
jacket when he walked into the party with a girl that generally matched S.S.’s description.
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The host described defendant as being, “probably like six-three, six-four,” and bigger in
build, “maybe like 230,” but confirmed he was wearing a “navy blue” hooded sweatshirt
with a “yellow Polo symbol” and also identified S.S. as the person he was with when they
arrived at the party. Another witness, who did not identify defendant, described the
shooter as being a “dark skinned” African-American male, 5 feet 11 inches to 6 feet in
height, and wearing a “dark blue” hooded sweatshirt.
From M.L.’s position inside the house, she was able to see S.S.’s response to the
shooting. As M.L. explained, when the shooting started outside, “everyone was trying to
get in” except for S.S. She pushed through the crowd of people coming inside and left
the house. M.L. assumed she was leaving with defendant. This assumption turned out to
be correct. As S.S.’s little brother, V.S., explained to a detective, he was playing video
games at his home with a friend until around 2:00 a.m. At some point that night, S.S. and
defendant “come in the door.” V.S. asked “where they were at” and “they just said that
they had went to this person’s party.” Around this time, M.L. sent the following message
to S.S. on Instagram: “I’m not stupid. You walked in with that nigga and got off with
that nigga. My fucking bro gone. He was trippin cause the music I was playing.”
Defendant was arrested at S.S.’s house later in the morning. A “blue zip-up”
hooded sweatshirt was found during a search of the house. This sweatshirt had a yellow
Polo symbol as witnesses described. DNA matching defendant’s profile was extracted
from the sweatshirt. Gunpowder residue was also found on a sample collected from the
right front cuff of the sweatshirt.
DISCUSSION
I. African-American Prospective Jurors Excused for Cause
Defendant contends the trial court prejudicially abused its discretion and violated
his federal constitutional right to a jury selected from a fair cross-section of the
community by excusing two African-American prospective jurors for cause, based on
their belief that the criminal justice system treats African-Americans unfairly and because
7
they were sympathetic towards defendant. As we shall discuss, the trial court excused the
two prospective jurors because it concluded they could not be impartial. Their voir dire
testimony supported a finding that they could not decide the case solely on the evidence
without regard to sympathy to defendant. On this record, we cannot conclude the court
abused its discretion. Nor was defendant’s constitutional right to a jury drawn from a fair
cross-section of the community violated.
A. Additional Background
During voir dire, defense counsel asked the panel of prospective jurors whether
anyone had any negative experiences with law enforcement. Prospective Juror No. 1
responded: “I have a concern with law enforcement in general.” She continued:
“Especially in this day and age, and particularly because I have two young adult sons and
two young adult stepsons. So I’m concerned daily for any interaction that they might
come in contact with law enforcement officers.” Defense counsel followed up: “Okay.
And I don’t want to politicize my conversation with you or the rest of the group. But
acknowledging that, the real issue is — is will that not allow you to be fair to — let’s say
if an officer gets on the stand?” Prospective Juror No. 1 answered: “I feel like I could be
fair.”
Defense counsel then asked if there was anything else she thought the court and
parties should know. Prospective Juror No. 1 answered: “I would say that just recently I
was at — not participating but just observing a demonstration. And there was — and I’m
sure it was probably their job, but there was just a standoffish type of environment
between the people who were demonstrating and the officers. And they just — they
didn’t seem approachable. And like I say, I wasn’t participating. I was only observing.
But even from an — from my perspective, they just seemed not . . . approachable.”
Defense counsel asked whether she would be less likely to believe a police officer’s
testimony if the officer “appear[ed] standoffish on the stand.” She responded: “I may
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think that I might not like him just on a first appearance type of thing, but that doesn’t
mean that I would think that he wouldn’t be credible or believable.”
In response to these answers, defense counsel stated: “It sounds like you’re
guarded about law enforcement as it relates to your young people in your life, the four
young African-American males.” Prospective Juror No. 1 responded: “Concerned more
than guarded, yes.” Following up, defense counsel asked: “So my client is African-
American and he appears to be young. Is that going to — everything that we’ve just kind
of talked about, do you think you would be swayed to be more sympathetic to
[defendant]?” She answered: “Probably, because he’s probably about my children’s
age. So it’s possible.” Defense counsel responded, “And I appreciate that. That’s why
we’re here. We’re trying to — this may not be the best trial for you, right, because of
everything. And that’s fine. So that’s the question for you. Counsel then asked: “If
everything was equal, at the end of this trial, let’s just say that, and the evidence and the
presentation and all that sort of thing, is the fact that he reminds you of your boys going
to sway you to vote our direction and that being the only reason that you would vote for
us?” Prospective Juror No. 1 answered: “All things being equal, I can’t say that it would
sway me, but it would be something that I would consider.” (Italics added.)
Defense counsel thanked Juror No. 1 for her answers and then asked the panel if
anyone else had similar concerns. Prospective Juror No. 5 responded: “I would have the
same feelings just — and concern.” Defense counsel responded that having those
concerns was fine, but asked: “Is that going to keep you from being fair to [the
prosecutor] in her presentation, to the witnesses that she puts on, will that sway your
opinion of that evidence at all towards my presentation, my evidence, with [defendant]
just sitting there?” She answered: “I don’t think that it will.”
During the prosecution’s voir dire, the prosecutor picked up this line of
questioning, telling the panel: “Something that [Prospective Juror No. 1] said. She
brought up something that is very political in the current society right now. A young
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[B]lack male. We are not blind. We know that [defendant] — what his race is. You can
also kind of guess about how old he may be. And she was honest enough to say she has
some concern. I believe [Prospective Juror No. 5] said she also had some concerns.”
The prosecutor then asked if anyone else felt the same.
Prospective Juror No. 9 answered: “I do. Yes.” She explained: “Just because the
defendant also is about — around — probably around the same age as my half-brother.
And also, too, I have concerns as well too about the stuff that’s going on right now, being
able to be swayed one way or the other.” The prosecutor asked: “Do you feel that that
would enter into your deliberations if you were to sit as a juror?” She responded: “I do
believe so. Yes.” The prosecutor followed up: “If the defendant was of a different race
or ethnic background, would you have those same concerns?” Prospective Juror No. 9
answered: “Probably not.” (Italics added.)
The prosecutor then asked the same question of Prospective Juror No. 5. She said
she would have similar concerns about “police brutality in the community” if defendant
was Hispanic, or any race or ethnicity other than White, but not if defendant was White.
Turning to Prospective Juror No. 1, the prosecutor asked: “You said that if you
were chosen as a juror and you were sitting in the jury deliberation room, that that might
enter into your deliberations. You might be swayed. [¶] What if the defendant were of a
different race or ethnic background? Or specifically, let’s say if the defendant were
[W]hite.” Prospective Juror No. 1 answered: “For me personally, it would be different
because I wouldn’t be able — I wouldn’t as easily be able to identify with that, someone
who was [W]hite, reminding me of my children, as I am with — in this current situation.
[¶] So it would still have an impact because I would see it as a young life. But I
wouldn’t see — I wouldn’t as easily — I wouldn’t be able to as easily visualize my child
in that situation.” (Italics added.) The prosecutor followed up with, “So because you
have children who may be of similar age, that’s what your concern is?” Prospective
Juror No. 1 replied: That’s part of it, yes.” (Italics added.)
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The prosecutor challenged all three prospective jurors for cause based on their
statements regarding what the prosecutor referred to as “the current state of affairs as
relates to law enforcement and the perception about interactions with African-American
males.”
Defense counsel responded, “all three of those persons are African-American or of
African descent,” and argued: “I think that people expressing their political concerns in
an honest manner, precluding them from being on a jury or — or participating in jury
service appears to be very dangerous. In other words, if you can’t agree with law
enforcement or like law enforcement to some extent, because there’s been some
perceived bad interactions with your racial group or your group, then you’re precluded
from participating in the justice system. That’s how I immediately perceived it.”
Defense counsel then specifically addressed Prospective Juror No. 1, arguing the
potential for her to relate more with defendant because his race and age were similar to
her own sons and stepsons would not support a challenge for cause. Turning to
Prospective Juror No. 5, counsel argued there was even less support for a challenge for
cause with respect to her because “she stated she could be fair and it wouldn’t be an
issue.” Counsel also opposed removing Prospective Juror No. 9 just because she
expressed concerns about law enforcement abusing their power in relation to young men
of color.
After hearing additional arguments from the prosecutor, the trial court excused
Prospective Juror No 1, but not No. 5: “The Court finds sufficient basis to excuse Juror
Number One for cause. The Court finds that she has expressed a potential bias and an
inability to be impartial as relates to her duties as a selected juror. So Juror Number One
is excused for cause. [¶] As relates to Juror Number Five, I agree with [the prosecutor’s]
representation in terms of Juror Number Five’s characterization about having concern
about anybody who would be of color. However, she did indicate that she would not be
swayed. And so I do find thus far she has been able to demonstrate that she would be
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able to keep extraneous matters outside of the jury deliberation room should she be
selected. So that one is denied.”
As for Prospective Juror No. 9, the trial court brought her back into the courtroom
for further questioning. She had responded to this issue only during the prosecution’s
voir dire, and defense counsel requested “further interaction” with her. The court
questioned her first: “I wanted to take just a couple of moments to follow up on certain
questions and answers that you gave. One question in particular was relative to have [sic]
some thoughts about [defendant] being the same age and race as your half-brother . . .
And indicating it would enter into your mind during deliberations.” Prospective Juror
No. 9 responded: “Yes, it would.” The court then asked: So my question for you is:
Does that mean you would not be able to limit your deliberations to only what was
presented in this courtroom, or would you be considering other facts and circumstances,
including the presentation of [defendant] and how he may appear to be like your half-
brother? Do you think you can separate the two and focus deliberations only on what’s
presented in this courtroom, or do you think otherwise?” She answered: “I think
otherwise.” In response to follow-up questioning, Prospective Juror No. 9 also stated: “I
would feel uncomfortable knowing that [defendant’s] life would rest on my decision and
what the jurors say, and I don’t think I could live with that.” (Italics added.)
Defense counsel was then permitted to follow up. He asked: “I’m just going to be
blunt. You don’t want to be part — if you had to convict [defendant], you don’t want to
be part of that process?” Prospective Juror No. 9 responded: “That is correct. Yes.”
(Italics added.)
The trial court ultimately excused Prospective Juror No. 9 for cause.
B. Analysis
On appeal, defendant asserts that because African-Americans have an unfavorable
opinion about the treatment of African-Americans in the criminal justice system and will
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sympathize with African-American men being prosecuted, excluding African-American
prospective jurors who express such sympathy results in a nonrepresentative jury.
1. Challenges for Cause and Standard of Review
A prospective juror may be excused for cause based on actual bias. (Code Civ.
Proc. § 225, subd. (b)(1).) Actual bias includes: “the existence of a state of mind on the
part of the juror in reference to the case, or to any of the parties, which will prevent the
juror from acting with entire impartiality, and without prejudice to the substantial rights
of any party.” (Code Civ. Proc. § 225, subd. (b)(1)(C), italics added; People v. Horning
(2004) 34 Cal.4th 871, 898.)
“ ‘[W]hat constitutes “actual bias” of a juror varies according to the circumstances
of the case.’ ” (In re Manriquez (2018) 5 Cal.5th 785, 799, quoting People v. Nesler
(1997) 16 Cal.4th 561, 580 (Nesler).) The Attorney General points out the California
Supreme Court has noted there is no particular constitutional test guiding what constitutes
impartiality. He points to the following observation of our state’s high court: “[i]n
assessing whether a juror is ‘impartial’ for federal constitutional purposes, the United
States Supreme Court has stated: ‘Impartiality is not a technical conception. It is a state
of mind. For the ascertainment of this mental attitude of appropriate indifference, the
Constitution lays down no particular tests and procedure is not chained to any ancient and
artificial formula.’ ” (Nesler, at p. 580, quoting United States v. Wood (1936) 299 U.S.
123, 145-146 [81 L.Ed. 78].) But much has transpired since our high court’s
acknowledgment in Nesler in 1997 of the Wood court’s observation from 1936 about
there being no particular constitutional test. In the context of the selection of jurors in
death penalty cases, a well-settled constitutional standard has evolved, which seems
equally applicable in non-capital cases: a juror may be constitutionally excused for cause
if the juror’s views would “ ‘prevent or substantially impair’ the performance of the
juror’s duties as defined by the court’s instructions and the juror’s oath.” (People v.
Armstrong (2019) 6 Cal.5th 735, 750 (Armstrong), citing Wainwright v. Witt (1985) 469
13
U.S. 412 [83 L.Ed.2d 841]and Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d
776] (Witherspoon).) The duties of a juror include the duty to set aside personal feelings
and opinions and decide the case based solely on the evidence and instructions provided
by the court. (Nesler, at pp. 580-581, citing Irvin v. Dowd (1961) 366 U.S. 717, 722-723;
See also CALCRIM No. 200.) And one of the standard instructions given here and
provided to all jurors in criminal cases contains the well-settled admonition not to let bias
or sympathy influence their decision. (CALCRIM Nos. 101, 200; See also People v.
Hawthorne (1992) 4 Cal.4th 43.)
Ultimately, assessing juror qualifications falls within the trial court’s broad
discretion, and on appeal, reviewing courts “ ‘will uphold the trial court’s decision if it is
fairly supported by the record, and accept as binding the trial court’s determination as to
the prospective juror’s true state of mind when the prospective juror has given conflicting
or ambiguous statements.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 669.) In other
words, “ ‘ “ ‘[o]n review of a trial court’s ruling, if the prospective juror’s statements are
equivocal or conflicting, that court’s determination of the person’s state of mind is
binding.’ ” ’ ” (People v. Clark (2011) 52 Cal.4th 856, 895 (Clark); see also, People v.
Soloman (2010) 49 Cal.4th 792, 830 (Soloman); People v. Weaver (2001) 26 Cal.4th 876,
910 (Weaver).) We afford this deference to trial courts out of recognition “ ‘that a trial
judge who observes and speaks with a prospective juror and hears that person’s responses
(noting, among other things, the person’s tone of voice, apparent level of confidence, and
demeanor), gleans valuable information that simply does not appear on the record.’ ”
(People v. Avila (2006) 38 Cal.4th 491, 529 (Avila); See also Uttecht v. Brown (2007)
551 U.S. 1, 9 [167 L.Ed.2d 1014].)
2. Defendant’s Constitutional Challenge
“[T]he right to trial by a jury drawn from a representative cross-section of the
community is guaranteed equally and independently by the Sixth Amendment to the
federal Constitution and by article I, section 16, of the California Constitution.” (People
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v. Wheeler (1978) 22 Cal.3d 258, 272 (Wheeler) [unconstitutional use of peremptory
challenges], reversed on other grounds, Johnson v. California (2005) 545 U.S. 162 [162
L.Ed.2d 129]; see also People v. Burgener (2003) 29 Cal.4th 833, 855 [constitutional
challenge to the jury pool].) “The American tradition of trial by jury, considered in
connection with either criminal or civil proceedings, necessarily contemplates an
impartial jury drawn from a cross-section of the community. [Citations.] This does not
mean, of course, that every jury must contain representatives of all the economic, social,
religious, racial, political and geographical groups of the community; frequently such
complete representation would be impossible. But it does mean that prospective jurors
shall be selected by court officials without systematic and intentional exclusion of any of
these groups.” (Thiel v. Southern Pac. Co. (1946) 328 U.S. 217, 220 [90 L.Ed. 1181]
(Thiel).) Defendant cites Thiel in making the claim that the trial court’s “procedure . . .
rendered [defendant’s] jury non-representative by systematically excluding a cognizable
class from jury service.”
In Thiel, the representative cross-section mandate was violated, and reversal was
required, where the clerk of the court and the jury commissioner “deliberately and
intentionally excluded from the jury lists all persons who work for a daily wage.” (Thiel,
supra, 328 U.S. at p. 221.) The vice in Theil was a “blanket exclusion” of all daily wage
earners based solely on the assumption that all such prospective jurors would claim
financial hardship. (Id. at p. 224.) The high court recognized, however, there is no
constitutional violation when a judge excuses a daily wage earner after determining that
individual has a financial hardship. (Ibid.)
There is, similarly, no constitutional violation where a court determines a
prospective juror cannot be impartial, for whatever reason. Under both the state and
federal Constitutions, an accused is guaranteed the right to be tried by an impartial jury.
(Cal. Const., art. I, § 16; U.S. Const., 6th & 14th Amends.) But there is no constitutional
right to a jury consisting of jurors who are partial or biased in the accused’s favor.
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Defendant, however, argues “the superior court’s procedure involved striking
African-American jurors for cause if they said they might be influenced by their
experiences and opinions regarding the harshness of the criminal justice system toward
African-Americans.” Such prospective jurors form a cognizable group, he maintains,
because “many African-Americans . . . believe the criminal justice system treats African-
Americans too harshly.” Defendant reasons: “a procedure that strikes prospective jurors
for cause based on such beliefs will necessarily result in striking many, if not most,
African-American prospective jurors. Such a result is intolerable if the goal is to produce
a racially and ideologically representative jury.”
In making this argument, defendant relies primarily on a case from the District of
Columbia Court of Appeals, Mason v. United States (2017) 170 A.3d 182 (Mason).
While we agree with aspects of the Mason court’s decision, Mason is factually distinct
and does not help defendant.
In Mason, in response to the trial court’s voir dire question about immediate
family or close friends that had been arrested for, charged with, or convicted of a crime, a
prospective juror stated her brother had such an experience in Texas. She said the family
suspected it was the result of racial profiling, and he had been treated unfairly. (Mason,
supra, 170 A.2d at p. 185.) When asked whether her views about her brother would
affect her ability to be impartial in the case, she responded: “I mean I think I can be
impartial. I mean I think it’s shaped my view of the world. But I don’t know the details
of this case. I don’t think I would see my brother in it. His situation is different. But I
definitely, that’s my experience with the system.” (Ibid. italics added.) When the
prosecutor asked if she thought African-American men were treated unfairly in D.C., the
juror responded she thought they were, and “things are tilted in the wrong direction.” On
the prosecution’s motion, the trial court excused the prospective juror for cause. (Ibid.)
Mason held this was error. (Id. at p. 187.)
16
As defendant here points out, the court in Mason took note of a 2013 study
indicating “68% of [African-Americans] believed that [they] are treated less fairly than
[W]hites in the courts.” (Mason, supra, 170 A.3d at p. 185) The court also noted
“concern about the racial fairness of the criminal-justice system” has been “repeatedly
expressed” by “courts and other official bodies.” (Id. at p. 186.) It concluded the
improper exclusion of a prospective juror solely because of such a belief required
reversal, notwithstanding the general rule that reversal is not required for the erroneous
excusal of a prospective juror so long as the jury ultimately seated is fair and impartial.
(Id. at p. 188.) In so concluding, the court relied in part on Supreme Court authority
requiring reversal of a judgment of death where “capital-sentencing jurors were
erroneously disqualified on the basis of their views about the death penalty.” (Id. at
p. 189; citing Witherspoon supra, 391 U.S. 510, 521-522.)
The Mason court articulated a rule with which we agree: “Standing alone, the
belief that the criminal-justice system is systemically unfair to blacks is not a basis to
disqualify a juror.”7 (Mason, supra, 170 A.3d at p. 187, italics added.) The Mason court
explained: “[T]hat belief is neither uncommon nor irrational. Moreover, there is no basis
for an inference that potential jurors holding that belief are necessarily unable to be
impartial. To the contrary, potential jurors who hold that belief might well be particularly
attentive to making sure that they perform their function impartially.” (Id. at p. 187.) We
7 We note this rule is consistent with new provisions concerning peremptory challenges
in Assembly Bill 3070 (Stats. 2020, ch. 318, §§ 1-3), enacted in 2020 and operational
January 1, 2022. Under Civil Code of Procedure section 231.7, subdivision (e)(1)-(3),
“[e]xpressing a distrust of or having a negative experience with law enforcement or the
criminal legal system,” “[e]xpressing a belief that law enforcement officers engage in
racial profiling or that criminal laws have been enforced in a discriminatory manner,” and
“[h]aving a close relationship with people who have been stopped, arrested, or convicted
of a crime” are presumptively invalid reasons for exercising a peremptory challenge
against a prospective juror who is a member of a cognizable group.
17
agree with that as well. But we also agree with the Mason court’s observation: “It is
possible that a potential juror who believes that the criminal-justice system is unfair to
blacks might respond to that belief by having difficulty being impartial. Where a trial
judge makes that finding based on an adequate record, the potential juror can
appropriately be disqualified for cause.” (Id. at p. 187.) We conclude that is what
happened here.
Prospective Juror No. 9 was unequivocal about her inability to be impartial. In
addition to her general concerns about law enforcement, she indicated the fact that
defendant reminded her of her half-brother would influence her decision making. When
asked if her thoughts about defendant being the same age as her half-brother “would enter
into her mind during deliberations,” she responded: “Yes, it would.” The court sought to
clarify: “Does that mean you would not be able to limit your deliberations to only what
was presented in the courtroom, or would you be considering other facts and
circumstances, including the presentation of [defendant] and how he may appear to be
like your half-brother? Do you think you can separate the two and focus deliberations
only on what’s presented in this courtroom, or do you think otherwise?” She responded:
“I think otherwise.” In response to further questions, she stated: “I would feel
uncomfortable knowing that [defendant’s] life would rest on my decision and what the
jurors say, and I don’t think I could live with that.” And when asked, “if you had to
convict [defendant], you don’t want to be part of that process?” Prospective Juror No. 9
responded: “That is correct. Yes.” These responses support the trial court’s conclusion
that Prospective Juror No. 9 could not be impartial in this case.
A second reason also supported the prosecutor challenge to Prospective Juror No.
9 for cause: she stated she would not be able to look at graphic photographs. The
prosecutor asked the panel about unpleasant photographs during the prosecution’s voir
dire, and defense counsel asked about it when Prospective Juror No. 9 was brought back
into the courtroom. Immediately after responding to defense counsel’s question, the trial
18
court excused her.8 In short, sustaining the challenge as to Prospective Juror No. 9 was
not a close call.
Prospective Juror No. 1 provided more equivocal responses regarding her ability
to be impartial. After expressing “a concern with law enforcement in general,” adding
“particularly because I have two young adult sons and two young adult stepsons,” she
nevertheless stated that she felt she “could be fair” to any police officer who took the
witness stand. She then described her experience at a demonstration, where police
officers appeared “standoffish.” But she indicated this would not make her less likely to
believe an officer’s testimony. Still, she acknowledged her concern for the young
African-American men in her family regarding their interactions with law enforcement
and further acknowledged she would “probably” be swayed to be more sympathetic to
defendant because, as she put it, “he’s probably about my children’s age.”
At this point, after acknowledging “this may not be the best trial for you,” defense
counsel asked: “If everything was equal, at the end of this trial … is the fact that he
reminds you of your boys going to sway you to vote our direction and that being the only
reason that you would vote for us?” Prospective Juror No. 1 answered: “All things being
8 During the prosecution’s voir dire, the prosecutor asked the panel whether any of them
were concerned about looking at unpleasant or graphic photographs that would be part of
the evidence the jury would be required to consider. After two other jurors expressed
such a concern, Prospective Juror No. 9 responded: “The same. Pretty queasy when I
look at gross stuff.” The prosecutor asked: “Understanding that you’re queasy, will you
be able to follow your obligation to look at the evidence if that was part of the evidence?”
Prospective Juror No. 9 answered: “Probably not, no.” When she was brought back into
the courtroom for additional voir dire, after asking about her not wanting to be part of the
process of convicting defendant, defense counsel asked: “There are going to be
photographs — or there will be photographs of something that may be shocking. [¶] And
is it your position that you can’t even for 30 seconds look at them?” Prospective Juror
No. 9 responded: “No.” Counsel began to follow-up: “—digest them and then move
on?” She responded: “No, not at all.” It was then that the trial court excused Juror No.
9.
19
equal, I can’t say that it would sway me, but it would be something that I would
consider.” (Italics added.) The prosecutor later asked: “You said that if you were
chosen as a juror and you were sitting in the jury deliberation room, that that might enter
into your deliberations. You might be swayed. [¶] What if the defendant were of a
different race or ethnic background? Or specifically, let’s say if the defendant were
[W]hite.” Prospective Juror No. 1 answered: “For me personally, it would be different
because I wouldn’t be able — I wouldn’t as easily be able to identify with that, someone
who was [W]hite, reminding me of my children, as I am with — in this current situation.
[¶] So it would still have an impact because I would see it as a young life. But I
wouldn’t see — I wouldn’t as easily — I wouldn’t be able to as easily visualize my child
in that situation.” (Italics added.) When the prosecutor followed up with, “So because
you have children who may be of a similar age, that’s what your concern is?” She
replied: “That’s part of it, yes.” (Italics added.)
Prospective Juror No. 1 did not explicitly state that she would be swayed to vote to
acquit defendant either because of her concerns about the treatment of young men of
color in the criminal justice system or because defendant reminded her of her children,
but she did state the latter reason would “probably” sway her to be more sympathetic
towards him. And as noted, she expressly stated the fact defendant reminded her of her
family members “would be something that I would consider” and later stated the fact that
she had children of a similar age was “part of” her concern. A decision based on such
considerations would not be one based solely on the evidence and instructions. Indeed,
such a decision would not be consistent with the instruction not to be influenced by bias
or sympathy in decision making. (CALCRIM Nos. 101, 200)
On this record, we cannot say the trial court abused its discretion in excusing
Prospective Juror No. 1. At no point did Prospective Juror No. 1 assure the court her
ultimate decision would not be swayed by her bias toward people who reminded her of
her loved ones or sympathy. Indeed, Prospective Juror No. 1 stands in contrast to
20
Prospective Juror No. 5, the African-American the trial court refused to excuse for cause.
When asked whether her general concerns about how African-Americans are treated by
the justice system would keep her from being fair to the prosecutor or sway her opinion
about the evidence towards defendant, Prospective Juror No. 5 said, “I don’t think that it
will.” The trial court, being present in the courtroom and observing Prospective Juror
No. 5’s demeanor and presentation when she gave that response, must have credited the
juror’s assessment of her state of mind, because the court denied the prosecution’s
challenge for cause.
Likewise, the trial court could also observe Juror No. 1’s demeanor and
presentation. Additionally, the court heard her tone of voice and was in a position to
glean her level of confidence from what the court observed and heard. (Avila, supra, 38
Cal.4th at p. 529) With these advantages over us, the trial court found that Juror No. 1
could not impartial. We defer to the court’s determination under these circumstances,
because the trial court is in the best position to determine the potential juror’s true state of
mind. (Uttecht, supra, 551 U.S. at pp. 7-10 [“Deference is owed regardless of whether
the trial court engages in explicit analysis regarding substantial impairment; even the
granting of a motion to excuse for cause constitutes an implicit finding of bias”]; Clark,
supra, 52 Cal.4th at p. 895; Avila, at p. 529.) And, as our high court’s well-settled rule
mandates, if the prospective juror’s statements are ambiguous, equivocal or conflicting,
the trial court’s determination of the prospective juror’s state of mind is binding. (Clark,
at p. 895; Soloman, supra, 49 Cal.4th at p. 830; Ledesma, supra, 39 Cal.4th at p. 668;
Weaver, supra, 26 Cal.4th at p. 910.)
Nevertheless, it bears noting that, “[o]ther than voting, serving on a jury is the
most substantial opportunity that most citizens have to participate in the democratic
process.” (Flowers v. Mississippi (2019) ___ U.S. ___ , ___; 139 S.Ct. 2228, 2238 [204
L.Ed.2d 638].) African-American prospective jurors have an equal protection right not to
be excused from jury service based on the assumption they will be biased towards an
21
African-American defendant. (Foster v. Chatman (2016) 136 S.Ct. 1737, 1741-1742
[addressing discriminatory peremptory challenges]; Batson v. Kentucky (1986) 476 U.S.
79, 97-98 [90 L.Ed.2d 69] [same].) Trial courts should be careful to ensure that jurors’
equal protection rights to participate in our democracy are not violated. Still, when a
prospective juror’s state of mind would prevent or substantially impair the performance
of his or her duties as a juror in accordance with the instructions and oath (see Armstrong,
supra, 6 Cal.5th at p. 750; Clark, supra, 52 Cal.4th at p. 895), the juror may be
constitutionally excused for cause. The record here supports a finding that Prospective
Jurors No. 1 and No. 9 were substantially impaired by their bias and sympathy.9 Giving
the deference to the trial court our high court has said we must give, we conclude the trial
court did not abuse its discretion by excusing them, and defendant’s constitutional right
to a jury drawn from a representative cross-section of the community was not violated.
II. Dismissal of a Seated Juror During Trial
Defendant contends the trial court prejudicially abused its discretion in
discharging a sitting juror for dishonesty during trial. We conclude the trial court erred as
the juror’s inability to perform his duty does not appear in the record as a demonstrable
reality. The error, however, was harmless.
A. Additional Background
On the tenth day of trial, before bringing in the jury for the afternoon session, the
trial court stated that an interaction between a juror and a colleague of defense counsel
needed to be placed on the record. That colleague, attorney Steven Taxman, was present
in the courtroom. Taxman explained that he went to a coffee shop near the courthouse
9 Likewise, the record also supports a finding under Code of Civil Procedure section
225, subdivision (b)(1)(C), that Prospective Jurors No. 1 and No. 9 had a “state of mind”
which would have prevented them “from acting with entire impartiality, and without
prejudice to the substantial rights of any party.” (Italics added.)
22
early that morning to do some work before going to court. A person Taxman later
realized was Juror No. 2 was also doing some work at the coffee shop.10 Taxman
described the interaction to the trial court.
Taxman said he sneezed and the man said, “ ‘God bless you.’ ” Taxman said he
thanked the man and told the court the following transpired: “I just chatted with him for
a second. And I said, ‘You like working here? It’s a great place to work.’ And he goes,
‘Oh, yeah, I’m just working here because I’m on jury duty.’ And I’m like, ‘Oh.’ And I
didn’t identify myself as an attorney. I said, ‘Well, I hope you have a really nice
experience doing that. It was nice talking with you.’ And he said, ‘Well, yeah, it’s nice,
but I’m looking forward to it being over.’ And that was it.” (Italics added.) Taxman said
once he heard the man was a juror, there was no reason to talk to him. When Taxman left
the coffee shop, he told the man, “ ‘Have a nice day.’ ”
The court asked Taxman follow-up questions about his chat with the juror.
Changing his rendition slightly, Taxman said: “I asked him if he liked working here
because he was working on his computer and so was I. So we were both kind of working
away. And then that was the extent of the discussion until I sneezed. I sneezed. And he
said, ‘God bless you.’ And I said, “Thank you.” And I said, ‘Do you like working here?’
And that’s when he told me what he did and the reason why he was working there was
because he was on jury duty. And then when I heard that, I didn’t talk to him any more
about anything, other than I just said, ‘I hope you enjoy your experience. It should be a
rewarding experience.’ And he said ‘I’m looking forward to it being over.’ ” (Italics
added.)
10 Taxman explained that he realized the person was Juror No. 2 when he came to court
later in the day and saw him coming out of one of the courtrooms with the rest of the
jury. He then notified defense counsel about the interaction.
23
The trial court noted that many jurors “for a variety of reasons look forward to
their jury service being over” and asked for comments from the prosecutor and defense
counsel. The prosecutor asked to have Juror No. 2 discharged noting “two occasions
where Mr. Taxman approached [defense counsel] while the jury was [in the courtroom]”
and engaged in “friendly interaction,” which would have indicated to the jury “that they
were either friendly, or associated, or something to that effect.”11 In response, defense
counsel acknowledged, “Mr. Taxman did come and approach me — I think maybe it was
upwards of three times — while I was at counsel’s table. And I do remember him putting
his hand on my shoulder once. Whether or not the jurors saw something, I don’t know.”
Defense counsel argued the “coincidental” interaction between Taxman and Juror No. 2
at the coffee shop, coupled with the possibility jurors saw Taxman and defense counsel
were friendly colleagues, while “a little awkward,” did not support removal of the juror.
The trial court decided to hear from Juror No. 2 and asked counsel if there was any
objection. Both the prosecutor and defense counsel said they had none. Defense counsel
noted Juror No. 2 might not even remember the interaction.
11 The prosecutor said her request to discharge Juror No. 2 was being made “In
conjunction with everything that happened this morning.” At the beginning of the
morning session, Juror No. 2 volunteered to the court that he was acquainted with S.S.’s
father from their work in separate non-profits. He explained he did not know her father
personally, their non-profits had only interacted three times, and he had not recognized
S.S.’s name from the witness list because when the name was read, it had been
mispronounced. He said when he realized he knew S.S.’s father, his reaction was “I gotta
tell somebody.” He, however, indicated his acquaintance would not affect how he
evaluated S.S.’s testimony. The prosecutor stated a preference to excuse Juror No. 2, but
acknowledged the matter did not rise to the level of cause. The court stated: “I found
[Juror No. 2’s] responses to be candid and thoughtful” and I don’t think it rises to the
level of cause.” It then ruled: “I find that he will be able to faithfully perform his duties,
assess the facts, and apply the law as I give it to him. So I’m going to allow him to
remain.
24
The trial court asked the juror: “I understand you had a brief interaction with
some person over at the cafe, restaurant, little deli over on G Street this morning. Do you
recall that, sir?” Juror No. 2 answered: “Nothing other than ‘hello’ or ordering my
food.” The trial court then asked: “Do you recall making any comments to any of the
other persons inside the [coffee shop] about looking forward to this trial being over?”
(Italics added.) Juror No. 2 answered: “No.” The trial court then asked: “Do you recall
interacting with another male patron who was working on his computer and may have
sneezed? To that question, Juror No. 2 responded: “I do.” Asked what he recalled about
that, Juror No. 2 explained: “I think we were both on our laptops. And he said it’s a
good place to get work done. And I said, ‘Yeah, I come here in the morning.’ I’ve been
there every morning to get my work done before I go to the courthouse.” Asked whether
he recalled “anything else being said,” the juror answered: “No.”
After questions about whether he was wearing his juror badge, the court asked:
“Anything else that you recall about that interaction, that exchange, what he may have
said to you or what you might have said to him, sir? The juror responded: “No. I had
my headphones on. And I was — I actually wasn’t on the phone but I was — I leave the
headphones on so people don’t talk to me. And I remember he said something and I took
the headphones off and we talked about it being a good place to get work done.” The
court asked, “Do you remember how the conversation ended, parting words? Juror No. 2
responded: “I said ‘have a good rest of your day.’ ” The court concluded, “And that’s all
you recall?” to which the juror responded, “That’s all I recall.” Neither counsel had
additional questions.
After Juror No. 2 was excused from the courtroom, the trial court asked for
additional comments from counsel. The prosecutor responded: “What concerns me is
that we have a differing account. Mr. Taxman represented that he specifically said that
he was looking forward to the trial being over. I’m not certain why he would make that
up. So I would tend to believe him. I can’t see why he would draw that and bring this up
25
as an issue. [Juror No. 2] is denying. That was a direct question from the Court, and he
specifically denied that. That concerns me.” The trial court asked the prosecutor: “What
if [Juror No. 2] denied it because it was so insignificant he simply didn’t recall it?” The
prosecutor expressed disbelief of that conclusion and pointed to the fact Juror No. 2
remembered other particulars of the conversation — the sneezing, being on his laptop,
the conversation about the coffee shop being a good place to work and having his
headphones on. The prosecutor added: “But the one thing that he should not be doing is
talking about anything regarding — jury duty is the one thing he says he does not
remember.”
The trial court then heard from defense counsel: “It just appeared to me, for what
it’s worth, that he was a little startled and had a little bit of memory recall problems at the
beginning of your conversation — with you being the Court — in what seemed innocent,
and he slowly started to recall the more that came out. [¶] I’m submitting, your Honor. I
think it’s harmless.” Neither the court, nor the prosecutor disagreed with counsel’s
observation regarding the juror’s gradual memory recall.
After a brief recess, the trial court stated it probably should have taken Taxman’s
statement under oath and perceived the need to do that. The court then shared its
tentative thinking, stating there was no reason to believe Taxman was lying about his
interaction with the juror, “[a]nd if that’s the case, then I have a record that suggests this
juror is not being truthful. And the Court, I think, is forced into a scenario where there
would be cause to excuse him.” (Italics added.)
Later, when Taxman returned to the courthouse, he was placed under oath. The
court asked Taxman to “reiterate [his] interaction” with Juror No. 2. Taxman gave a
slightly different rendition this time. He stated after he got to the coffee shop, he went to
a table where Juror No. 2 was seated. Taxman explained: “He had all his things out on
the table, doing computer work, and so was I. So I was doing computer work. He was
doing computer work. I was minding my own business. He was minding his own
26
business. I didn’t see a juror badge. [¶] So I sneezed. And he said, “ ‘God bless you.’ ”
Taxman said he was impressed that a stranger would say that so he felt obligated to talk
to him. Taxman continued: “And I said, ‘Oh, do you like working here, too?’ And he
goes, ‘Yeah, I like working here, but I’m on jury duty.’ He said ‘jury duty.’ And I said to
him, ‘Oh, are you on a panel? Are they selecting, or are you on a case?” And he said,
‘I’m on a case.’ And when I heard him say, ‘I’m on a case,’ I’m like — I cut off the
conversation. I didn’t want to have anything more to say to him and I didn’t say
anything. I think I went back to computing. And I said something like, ‘Well, I hope you
really enjoy your experience. It should be very rewarding.’ And he said something like,
‘Yeah, I’m looking forward to it being over.’ And I said, ‘Have a nice day. It was nice
talking to you.’ And then I left and went to court. And that was it.” (Italics added.)
After Taxman was excused, the court ruled, stating: “Based on the information
provided by Mr. Taxman, particularly under oath, this Court finds that there are
questions regarding the truthfulness of Juror Number Two. The Court is going to thank
and excuse Juror Number Two from the jury.” (Italics added.)
B. Analysis
1. Excusing Seated Jurors for Cause
Penal Code section 1089 authorizes a trial court to discharge a seated juror, “If at
any time, whether before or after the final submission of the case to the jury, a juror dies
or becomes ill, or upon other good cause shown to the court is found to be unable to
perform his or her duty.” (Italics added.) Thus, before excusing a seated juror, the trial
court must find there is good cause to believe the juror is unable to perform his or her
duty.
“[A]n appellate court’s review of the decision to remove a seated juror is not
conducted under the typical abuse of discretion standard, but rather under the
‘demonstrable reality’ test.” (People v. Fuiava (2012) 53 Cal.4th 662, 711.) The
demonstrable reality test “requires a ‘stronger evidentiary showing than mere substantial
27
evidence.’ ” (People v. Wilson (2008) 44 Cal.4th 758, 821, citing People v. Cleveland
(2001) 25 Cal.4th 466, 488 (Cleveland), conc. opn. of Werdegar, J.) Our high court in
Wilson emphasized: “ ‘To dispel any lingering uncertainty, we explicitly hold that the
more stringent demonstrable reality standard is to be applied in review of juror removal
cases. That heightened standard more fully reflects an appellate court’s obligation to
protect a defendant’s fundamental rights to due process and to a fair trial by an unbiased
jury.’ ” (Wilson, at p. 821.)
In Armstrong, our high court further clarified the demonstrable reality test,
contrasting it to the substantial evidence test: “ ‘A substantial evidence inquiry examines
the record in the light most favorable to the judgment and upholds it if the record contains
reasonable, credible evidence of solid value upon which a reasonable trier of fact could
have relied in reaching the conclusion in question. . . . [¶] The demonstrable reality test
entails a more comprehensive and less deferential review. It requires a showing that the
court as trier of fact did rely on evidence that, in light of the entire record, supports its
conclusion that [good cause for removing the juror is] established. It is important to
make clear that a reviewing court does not reweigh the evidence under either test. Under
the demonstrable reality standard, however, the reviewing court must be confident that
the trial court’s conclusion is manifestly supported by evidence on which the court
actually relied. [¶] In reaching that conclusion, the reviewing panel will consider not just
the evidence itself, but also the record of reasons the court provides.” (Armstrong, supra,
1 Cal.5th at pp. 450-451.)
We distill the following summary from our high court’s explanation of the
demonstrable reality test set forth above: (1) The demonstrable reality test is a
heightened standard requiring a stronger evidentiary showing than the substantial
evidence test, which looks at the evidence in a light most favorable to the judgment; (2)
however, like the substantial evidence test, reviewing courts do not reweigh the evidence;
(3) but a reviewing court must look only to the evidence upon which the trial court
28
actually relied in determining whether the trial court’s decision is supported by the
evidence; thus reviewing courts may not base their decision on evidence upon which the
trial court did not actually rely; (4) in addition to the evidence upon which the trial court
relied, a reviewing court must consider the reasons the trial court gives for its ruling; (5)
because a reviewing court must consider “the record of the reasons the trial court
provides,” reviewing courts cannot imply findings the trial court did not expressly make;
and (6) because a reviewing court cannot imply findings, the trial court should expressly
state its reasons for discharging the juror, including demeanor-based reasons and
credibility findings. As to this last point, our high court said some time ago: “A trial
court facilitates review when it expressly sets out its analysis of the evidence, why it
reposed greater weight on some part of it and less on another, and the basis of its ultimate
conclusion . . . In taking the serious step of removing a . . . juror the court must be
mindful of its duty to provide a record that supports its decision by a demonstrable
reality.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1053 [removal of sitting juror for
deliberation misconduct].)
2. Propriety of the Trial Court’s Investigation
Defendant first argues the trial court abused its discretion by inquiring into Juror
No. 2’s ability to continue to serve on the jury because “a hearing is required only where
the court possesses information which, if proven to be true, would constitute ‘good cause’
to doubt a juror’s ability to perform his [or her] duties,” citing People v. Ray (1996) 13
Cal.4th 313, 343 (Ray). According to defendant, Taxman’s summary of his coffee shop
conversation with Juror No. 2 was insufficient to justify the juror’s removal and thus, the
court’s investigation was improper.
This argument is forfeited. Defense counsel was asked whether he objected to the
trial court questioning Juror No. 2 and answered: “No.” The failure to object forfeits the
assertion that the questioning itself amounted to a prejudicial abuse of discretion. (See
29
People v. Wilson (2008) 43 Cal.4th 1, 25, abrogated on another point as stated in People
v. Johnson (2018) 6 Cal.5th 541, 587.)
And even if preserved, we would conclude the trial court did not err by conducting
an investigation. As our high court noted in Ray, “[t]he decision whether to investigate
the possibility of juror bias, incompetence, or misconduct . . . rests within the sound
discretion of the trial court.” (Ray, supra, 13 Cal.4th at p. 343.) And as the trial court
noted here, jurors might look forward to their jury duty being over for a “variety of
reasons.” It was within the court’s discretion to determine whether Juror No. 2 had
outside life circumstances that might make it difficult to perform his duty such that there
would be good cause to discharge him under section 1089. But that is not the direction
the investigation took. In any event, defendant has not forfeited his assertion the trial
court abused its discretion in discharging Juror No. 2, so we turn to that ruling.
3. Demonstrable Reality Analysis
The Attorney General acknowledges that the demonstrable reality test applies
here. He notes that a lack of candor during voir dire may lead to discharge of a juror
under section 1089 when the false or misleading nature of voir dire statements comes to
light during trial. (See People v. Johnson (1993) 6 Cal.4th 1, 22, abrogated on another
point in People v. Rogers (2006) 39 Cal.4th 826, 879; In re Hitchings (1993) 6 Cal.4th
97, 110-114 (Hitchings).) He further argues “[t]here is no reason to treat a juror’s
untruthful answers given during a mid-trial hearing any differently.”
On the contrary, there is good reason to treat this situation differently. As our high
court explained in Hitchings, a prospective juror who conceals material facts or gives
false answers during voir dire deprives both sides of the right to intelligently exercise for-
cause and peremptory challenges and undermines the integrity of the jury trial process.
(Hitchings, supra, 6 Cal.4th at pp. 110-112.) That is not a concern in the instant context.
Moreover, even in the context of voir dire statements, the law accounts for failure
to recall and innocent mistakes. “[M]ere inadvertent or unintentional failures to disclose
30
[during voir dire] are not accorded the same effect [as intentional concealment]. ‘[T]he
proper test to be applied to unintentional “concealment” is whether the juror is
sufficiently biased to constitute good cause for the court to find under [section 1089] that
[the juror] is unable to perform his [or her] duty.’ ” (People v. McPeters (1992) 2 Cal.4th
1148, 1175, superseded by statute on another point as stated in People v. Boyce (2014) 59
Cal.4th 672, 707.)
Here, the purported failure to disclose related to a statement the juror made to a
stranger about jury duty before court one morning. Contrary to the prosecutor’s
statement to the trial court, and the trial court’s second question to Juror No. 2, the juror
never said he was looking forward to “the trial” being over. Juror No. 2 said he was
looking forward to his “jury duty” being over. In his first rendition of the conversation,
Taxman told the court Juror No. 2 said, “ ‘I’m on jury duty,’ ” to which Taxman replied,
“ ‘Well, I hope you have a really nice experience doing that,” and Juror No. 2 responded,
“ ‘Well, yeah, it’s nice, but I’m looking forward to it being over.’ ” Taxman told the
court, “that was it.” (Italics added.) In his second and third renditions of the
conversation, which were slightly different from the first, Taxman told the court that at
some point after Juror No. 2 said he was on “jury duty,” he said something like, “ ‘Well, I
hope you really enjoy your experience. It should be very rewarding,’ ” to which Juror
No. 2 “said something like, ‘Yeah, I’m looking forward to it being over.’ ” In the context
of Taxman’s renditions, the “it” in Juror No. 2’s statement referenced “jury duty.”
Taxman never said Juror No. 2 stated he was looking forward to the “trial” being over.
The nuance between “trial” and “jury duty” may seem unimportant, but it must be
taken into account when evaluating Juror No. 2’s response to the trial court’s questions,
which the Attorney General argues was dishonest. The second question the trial court
asked Juror No. 2 was: “Do you recall making any comments to any of the other persons
inside the [coffee shop] about looking forward to this trial being over?” (Italics added.)
The evidence does not establish that his response of “No” was untrue.
31
First, the questioning took place during the afternoon session, after Juror No. 2 had
been focused on the morning’s testimony. And this particular question was posed before
the trial court refreshed Juror No. 2’s recollection about the morning conversation by
providing some of the circumstances, namely the reference to the person working on his
computer and the sneeze. Indeed, defense counsel predicted Juror No. 2 might not
remember the conversation and later told the court he thought Juror No. 2 was having
“memory recall problems at the beginning,” that “seemed innocent” and that “he slowly
started to recall the more.” There is no evidence in the record indicating the juror should
have immediately remembered the conversation he had with Taxman when the court
asked the first two questions. To the contrary, Juror No. 2 had been in a coffee shop, he
had his headphones on, and was working on his computer — his usual morning routine
during the trial — when he had an innocuous conversation with a stranger.12 It is not at
all clear that Juror No. 2 truly did remember the conversation when the court asked him
whether he recalled it in its first two questions. And innocent misrecollection is not
concealment or dishonesty.
Second, even assuming Juror No. 2 had recalled his specific conversation with the
stranger when, in the second question, he was asked whether he recalled making a
statement “about looking forward to the trial being over,” no evidence establishes that he
ever made that statement. He made a comment about looking forward to his “jury duty”
being over. Thus, if he did not make the statement he was asked about, there was no
reason for him to recall it, and it was not untrue for him to say he did not recall it.13
12 Taxman himself called the conversation “very innocuous.”
13 The decisional law suggests precision in questioning jurors during voir dire is
important and a juror does not commit voir dire concealment misconduct when questions
are imprecise. (See People v. Majors (1998) 18 Cal.4th 385, 418-419 [juror did not
commit voir dire concealment misconduct when he answered “no” to questionnaire
question, “Are you or any close friend or relative associated with any federal, state or
32
Moreover, the trial court never asked Juror No. 2 whether he, in fact, was looking
forward to the trial or his jury duty being over. Such a question would have revealed how
the juror was feeling as opposed to his memory of what had been said and could have
resulted in an answer that might justify his dismissal under section 1089. Indeed, the
court posed no questions that would have revealed if Juror No. 2 might have been
distracted by outside life circumstances that might cause him to be unfocused during the
testimony or deliberate more quickly than he might have otherwise.
As noted, the prosecution argued in the trial court that deception could be inferred
from Juror No. 2’s ability to remember conversation particulars but failed to recall the
statement he is alleged to have made. The Attorney General makes the same argument
on appeal. But the trial court did not base its decision on this inference, and under the
demonstrable reality test, we do not evaluate the evidence in the light most favorable to
the trial court’s decision and accept all inferences that support that decision.14
local law enforcement agency or other governmental office such as . . . the Department of
Corrections,” because the people he later referred to as “buddies” who worked for
Corrections were actually only acquaintances and not “close friends”; juror did not
commit misconduct when he answered “no” to question, “Do you know anyone whom
you believe to be a drug user or seller?” because although his wife sold cocaine when she
was a teenager, he did not know her at the time and he understood the question to related
to present use or sale of drugs]; People v. Dyer (1988) 45 Cal.3d 26, 58-59 [juror did not
commit misconduct by giving answer to an ambiguous question she believed to be true];
People v. Blackwell (1987) 191 Cal.App.3d 925, 929 [voir dire concealment misconduct
turns in part on whether the question posed was unambiguous; voir dire questions must
be “sufficiently specific to elicit the information which is not disclosed, or as to which a
false answer is later shown to have been given”]; Cabe v. Superior Court (1998) 63
Cal.App.4th 732 [partially responsive, but “literally true” response to a compound
question cannot serve as the basis for a perjury charge against a juror related to alleged
voir dire concealment].) Just as precision is important in formulating voir dire questions,
precision is also important in formulating juror misconduct investigation questions.
14 Moreover, the record more persuasively demonstrates that Juror No. 2 did not
immediately recall the conversation in the coffee shop earlier that day, and it was the
court’s reminder of those details in its third question that refreshed his recollection.
33
(Armstrong, supra, 1 Cal.5th at pp. 450-451) Rather, our focus must be on the evidence
upon which the trial court actually relied and the reasons the trial court gave for the
decision. (Ibid.)
The only reasons the trial court gave for its ruling related to a perceived conflict
between the accounts of Taxman and Juror No. 2 and the lack of evidence indicating
Taxman had a motive to lie. Prior to having Taxman return to the courtroom, the court
noted there was no reason to believe Taxman was lying, and then stated: “[a]nd if that’s
the case, then I have a record that suggests this juror is not being truthful. And the Court,
I think, is forced into a scenario where there would be cause to excuse him.” (Italics
added.) Ultimately the court ruled: “Based on the information provided by Mr. Taxman,
particularly under oath, this Court finds that there are questions regarding the
truthfulness of Juror Number Two.” (Italics added.) But the court merely ruled there
were “questions” regarding Juror No. 2’s truthfulness; it did not rely upon the inference
the prosecutor argued and it never found that Juror No. 2 had lied or was dishonest.
The court’s reluctance to specifically find that Juror No. 2 lied is understandable
given the circumstances discussed ante. And without an express finding that Juror No. 2
was dishonest or concealed information, supported by evidence upon which the court
actually relied, good cause to discharge him is not established to a demonstrable reality.
At best, the evidence established that Juror No. 2 was looking forward to his jury
duty being over, a sentiment that does not strike us unusual for jurors in a lengthy trial,
especially when trying to juggle work and perform their civic duty at the same time.
Furthermore, the record demonstrates Taxman’s recall was not perfect either, as his three
renditions were not one hundred percent consistent. Juror No. 2 was given only one
opportunity to explain what happened that morning. In conducting a misconduct
investigation regarding conversations, trial courts must be sensitive to the fact that human
beings are not digital recorders and should not be expected to replay a conversation
verbatim out of the blue, especially when the circumstances suggest the juror probably
never thought he would be required to remember the conversation, let alone exactly what
was said.
34
Such a feeling did not signal that the juror could not perform his duty or was biased; nor
did his failure to recall making such a statement establish he was unable to perform his
duties.15 Indeed, separate from the issue of his credibility, the statement Juror No. 2 is
said to have made was not material to either the case or his ability to serve.16 It appears
the trial court presumed the worse of Juror No. 2. But as this court has recognized, under
15 Nor did the fact that Juror No. 2 mentioned he was on jury duty to Taxman indicate he
was unable to perform his duties. It is true that “[i]n appropriate circumstances a trial
judge may conclude, based on a juror’s willful failure to follow an instruction, that the
juror will not follow other instructions and is therefore unable to perform his or her duty
as a juror.” (Ledesma, supra, 39 Cal.4th at p. 738.) But contrary to the Attorney’s
contention, Juror No. 2 did not violate the trial court’s pretrial admonitions. Prior to the
opening statements, the trial court instructed with the standard pre-trial instruction,
CALCRIM No. 101. That instruction told the jurors: “During the trial, do not talk about
the case or about any of the people or any subject involved in the case with anyone.” In
the mind of a layperson, a statement telling someone you are on jury duty but looking
forward to it being over might not fall into the prohibition of talking about the case, the
people in the case or a subject involved in the case. And unless a juror’s conduct violates
an express admonition, there is no misconduct. “A lay juror cannot be expected to
conform to standards of behavior of which [they have] not been informed.” (In re
Hamilton (1999) 20 Cal.4th 273, 305.)
16 The conversation with Taxman was de minimus and did not establish good cause for
his discharge under section 1089 based on an inability to perform his duty. (See
Armstrong, supra, 1 Cal.5th at p. 452 [“de minimis references” to juror reading a book or
looking at a cell phone “one or two times” during deliberation insufficient to support a
finding juror was refusing to deliberate]; People v. Stewart (2004) 33 Cal.4th 425, 509-
511[Juror’s misconduct was “trifling” and non-prejudicial when during break in penalty
phase of death penalty trial, juror, while in the restroom, spoke to defendant’s ex-
girlfriend, telling her, “I know we’re not suppose[d] to have any contact but I just wanted
to tell you’re a very nice looking lady’’]; People v. Hardy (1992) 2 Cal.4th 86, 175
[juror’s unauthorized contact with prosecution police witness was improper, but was de
minimis under the circumstances of the case]; People v. Salinas-Jacobo (2019) 33
Cal.App.5th 760, 779 [even if the juror had brought up the issue of punishment during
deliberations, there is insufficient evidence that any consideration of it by him was any
more than de minimis, and was not a basis to discharge him for misconduct].)
35
the demonstrable reality test, courts may not “ ‘presume the worst’ of a juror.” (People v.
Bowers (2001) 87 Cal.App.4th 722, 729 (Bowers).)
In this regard, the circumstances here are reminiscent of an earlier case where the
California Supreme Court discussed the demonstrable reality standard. In People v.
Compton (1971) 6 Cal.3d 55, the trial court conducted a jury misconduct hearing
concerning a statement an alternate juror made to his barber during the weekend. The
barber testified that the alternate disclosed his connection with the trial and said that
certain older women had been rejected as prospective jurors “ ‘because they would be
hard to keep an open mind on a case such as this and what the people that selected the
jury didn’t know, that he felt the same way,’ ” and that “ ‘he didn’t like to be on a case
like this because it was hard to keep an open mind.’ ” The trial court never asked the
alternate about his statement before discharging him. (Id. at p. 59.) Our high court
concluded the statements were equivocal: “[T]hey could have signified that [the
alternate] was incapable of ‘acting with entire impartiality’ [Citation], but they could also
have meant only that he found the facts of the case distasteful and would be compelled to
make a special effort to remain objective, although he was capable of doing so. Yet the
trial court did not question the person most likely to know that meaning, [the alternate]
himself.” (Id. at pp. 59-60.) Regarding the requirement in section 1089 of “good cause”
to find the juror is “unable to perform his or her duty,” our high court explained:
“inability must appear in the record as a demonstrable reality. Here the ambiguity in [the
alternate’s] remarks was never resolved by proof, and the court was not entitled to do so
by presuming the worst. Such a presumption, however well motivated, does not furnish
the ‘good cause’ required by the governing statutes.” (Id. at p. 60, italics added.) Thus,
the trial court erred in excusing the alternate.17
17Apparently believing it could not proceed without an alternate, the trial court in
Compton declared a mistrial. (Compton, supra, 6 Cal.3d at p. 58.) Apart from the error
36
Here, while the trial court asked Juror No. 2 a series of questions, most of the
questions were prefaced with “do you recall.” And from his response that he did not
recall making the statement the trial court had asked about, the court presumed the worst
by discharging Juror No. 2, finding there were “questions about his truthfulness.” This
was error. We conclude the juror’s inability to perform his duties does not appear in the
record as a demonstrative reality. (Armstrong, supra, 1 Cal.5th at p. 450.)
4. Harmless Error
This brings us to the question of prejudice. Applying the standard in Watson,
supra, 46 Cal.2d at page 836, this court has held that an abuse of discretion in
discharging a juror under section 1089 “requires reversal only if it is reasonably probable
that a result more favorable to the defendant would have been reached but for the error.”
(Bowers, supra, 87 Cal.App.4th at p. 735.)
In People v. Abbott (1956) 47 Cal.2d 362 (Abbott), a seated juror was discharged
before deliberations began because it came to light that he worked in the same office as
the defendant’s brother. Our high court, after holding the trial court did not abuse its
discretion in discharging the juror under section 1089, also held “there is no showing [the
defendant] was prejudiced.” The court explained there was no prejudice because the
defendant “was not entitled to be tried by a jury composed of any particular individuals,”
“[t]he juror who was substituted for [the discharged juror] was examined fully by both
sides on voir dire, accepted as a qualified alternate and served as such from the start of
the trial until seated as a regular juror,” and “[t]here is no claim that he was unable to
render a fair verdict.” (Id. at pp. 371-372.)
in discharging the alternate, our high court, as a secondary reason for its reversal,
concluded that since the jury of 12 was still intact, the trial court could have proceeded
without the alternate and there was no legal necessity to declare a mistrial. (Id. at pp. 60-
61.)
37
By contrast, in People v. Hamilton (1963) 60 Cal.2d 105, 127 (Hamilton),18 our
high court held the trial court prejudicially abused its discretion in discharging a juror
during the presentation of the penalty phase evidence of a capital trial after erroneously
concluding the juror committed misconduct. On the question of prejudice, the court
observed that its previous decisions in Abbott and People v. Howard (1930) 211 Cal. 322“turned upon the fact that no prejudice had been shown.” (Hamilton, at pp. 126-127.) In
Abbott, there was no showing the discharged juror “would have been more favorable to
one side or the other,” and in Howard, “the discharged juror had expressed a prejudice
against two defense witnesses” and therefore “substitution of an alternate in his place was
favorable to the defense.” (Hamilton, at p. 127.) But in Hamilton, the prosecution
moved to discharge the juror in question “on the stated ground that she ‘had disclosed her
opposition to a verdict imposing the death penalty.’ Thus, her disqualification could only
be beneficial to the prosecution and prejudicial to the defense.” (Id. at p. 128.) Our high
court held: “This error alone could well be held to have been prejudicial and to require a
retrial of the penalty issue. Certainly, when considered with the other errors . . . the
cumulative effect of such errors must be held to be prejudicial.” (Ibid.) Thus, it is clear
from these older cases, that our high court requires a showing of prejudice when a trial
court erroneously discharges a sitting juror under section 1089.
Defendant relies on Cleveland, supra, 25 Cal.4th 466 and Armstrong, supra, 1
Cal.5th 432, where our high court held the trial courts abused their discretion in
discharging a juror during deliberations for refusing to deliberate because the record did
not support such a conclusion as a demonstrable reality. (Cleveland, at p. 485;
Armstrong, at pp. 450-454.) Citing Hamilton, without further analysis, the Cleveland
18 Hamilton was overruled in part on another point in People v. Morse (1964) 60 Cal.2d
631, at pages 637-638 and footnote 2, and disapproved on a different point in People v.
Daniels (1991) 52 Cal.3d 815, at pages 864-866.
38
court concluded the trial court’s error in discharging the juror under section 1089 was
prejudicial and required reversal of the judgment. (Cleveland, at p. 486.) Citing
Cleveland, without further analysis, the Armstrong court concluded the error in that case
was prejudicial and required reversal. (Armstrong, at p. 454.)
But as should be apparent from the Cleveland court’s citation to Hamilton, our
high court relied on Hamilton’s discussion of prejudice in support of its conclusion the
discharge of the juror was prejudicial. The fact that the Cleveland court did not
specifically analyze prejudice does not imply a conclusion that prejudice need not be
shown. To the contrary, the prejudice was obvious because, similar to Hamilton, the trial
court in Cleveland discharged the only juror who disagreed with his fellow jurors
regarding the defendant’s guilt. As in Hamilton, his disqualification “could only be
beneficial to the prosecution and prejudicial to the defense.” (Hamilton, supra, 60 Cal.2d
at p. 128; see also Bowers, supra, 87 Cal.App.4th at pp. 735-736 [discharged juror “was
the lone holdout juror who steadfastly held to his belief defendant was not guilty
throughout the course of deliberations and until he was discharged”].) The same thing
happened in Armstrong. The prejudice involving the discharge of the deliberating juror
in that case was similarly obvious because the record disclosed the erroneously excused
juror was leaning in defendant’s favor. Accordingly, defendant’s reliance on Cleveland
and Armstrong is misplaced.19
19 Moreover, neither Cleveland nor Armstrong overruled this court’s holding in Bowers,
supra, 87 Cal.App.4th at page 735, applying the Watson standard to the erroneous
discharge of seated jurors under section 1089. Neither case stated reversal is always
required when the trial court erroneously discharges a juror under section 1089. Had our
high court intended to hold that such an error is per se prejudicial, we are confident it
would have expressly done so. It is well-established that cases involving per se prejudice
involve structural errors. (People v. Singh (2015) 234 Cal.App.4th 1319, 1330 (Singh).)
A structural error is a “ ‘ “defect affecting the framework within which the trial proceeds,
rather than simply an error in the trial process itself.” ’ ” (People v. Mil (2012) 53
Cal.4th 400, 410.) Such errors “ ‘deprive defendants of “basic protections” without
39
Here, defendant has failed to demonstrate the discharge of Juror No. 2 was
prejudicial under the Watson standard. Juror No. 2 was discharged before deliberations,
and there is no indication he was leaning one way or the other on the question of
defendant’s guilt from statements he made during the presentation of the evidence as the
juror did in Hamilton, supra, 60 Cal.2d at pages 123, 127-128. Nor is there any other
prejudice that can be gleaned from the record. And, as in Abbott, “[t]he juror who was
substituted for [Juror No. 2] was examined fully by both sides on voir dire, accepted as a
qualified alternate and served as such from the start of the trial until seated as a regular
juror. There is no claim that he was unable to render a fair verdict.” (Abbott, supra, 47
Cal.2d at pp. 371-372; See also, People v. Tate (2010) 49 Cal.4th 635, 672 [“ ‘ “[T]he
general rule [is] that an erroneous exclusion of a juror for cause provides no basis for
overturning a judgment.” . . . Defendant has a right to jurors who are qualified and
competent, not to any particular juror’ ”].) As noted, defendant had a right to an
impartial jury. That is what he got.
Applying the Watson standard as this court did in Bowers, supra, 87 Cal.App.4th
at page 735, we conclude the record here does not establish it is “reasonably probable that
a result more favorable to defendant would have been reached but for the error” in
discharging Juror No. 2.
which “a criminal trial cannot reliably serve its function as a vehicle for determination of
guilt or innocence.” ’ ” (Ibid.) As this court has previously noted: “Under the California
Supreme Court’s approach, structural error exists only in a very limited class of cases
(generally involving an impingement on the right to counsel or self-representation, bias
on the part of the court or jury, a defective instruction on reasonable doubt, the denial of a
public trial, and an erroneous denial of a Wheeler–Batson motion) in which the error has
the effect of rendering the factfinding process unreliable, or causing the trial to be
fundamentally unfair. [Citation.]” (Singh, at p. 1330, citing Mil at p. 410.) The
erroneous discharge of Juror No. 2 did not render the factfinding process here unreliable;
nor did it render defendant’s trial fundamentally unfair.
40
III. Prosecutorial Misconduct
Defendant asserts the prosecutor violated his federal constitutional rights by
intentionally obtaining privileged and confidential information from the Director of the
Conflict Criminal Defenders (CCD) about defense counsel’s attempts to obtain expert
witness funding. As we explain, this contention is forfeited and defendant has not
established ineffective assistance of counsel.
A. Additional Background
Trial was originally set for September 27, 2018. On September 18, defense
counsel moved to continue the trial. In his declaration in support, he stated he had been
unable to focus on defendant’s case for the past 60 days due to three other cases he was
handling. Defense counsel cited several items that needed to be completed before he
could competently represent defendant at trial, stating: “Defense has not completed [its]
discovery and investigation because of time availability. However, more importantly,
actual resources in the form of money to execute basic investigation / other services are
currently not available to the defendant or my office.” Defense counsel indicated he
would be filing “an ancillary request for funding based on [defendant’s] apparent current
indigent status” if defendant or his family were unable to provide funding by the end of
the following week.
The prosecution filed a written opposition to the continuance motion. In it, the
prosecutor addressed the request for ancillary funding, noting “an email from the Director
of the [CCD] on Friday, September 14, 2018, stated that [defense counsel] only recently
applied for ancillary services; however, he did not comply with their policies and
procedures. Due to a previous request for ancillary funding, [defense counsel] is familiar
with CCD’s policies and procedures.”
At the hearing on the motion, the prosecutor explained that she contacted the CCD
Director and received an email response indicating a request for ancillary funding had
been received, but because “the proper policy and procedures were not followed . . .
41
nothing had even been started as of Friday.” In response, defense counsel stated he was
“very concerned about [the prosecutor’s] interaction with the indigent panel” and added:
“I’m putting on the record that is supposed to be ex[ ]parte and confidential. I have no
understanding why the conflict panel is sharing that with [the] prosecution. Generally
those motions are required to be done by law sealed in camera, and it was not.”
The trial court noted that was a separate issue from the motion for continuance,
adding: “[Defense counsel], you may make a motion regarding that. If you want to ask
the court regarding that I would discuss that with you at that time.” After further
argument on the continuance motion, the trial court asked defense counsel for a guarantee
as to when he would be able to proceed to trial. Defense counsel responded: “I would
like to have interaction with the panel before I make that guarantee.” The trial court
indicated that would be fine and continued the hearing until the following week.
In the meantime, the matter was transferred to a different department by order of
the presiding judge. Trial was set to begin in the new department on October 22, 2018.
Trial ultimately proceeded as scheduled, though defense counsel made several additional
motions for continuances.
After the trial and prior to the sentencing hearing, defense counsel filed another
motion for continuance. In response to the prosecutor’s argument in opposition to the
motion, defense counsel stated: “Let’s start with [the prosecutor’s] unconstitutional
irreverence for my client’s due process in that she unilaterally, without any authority
approached [the CCD Director] . . . and had ex parte communications, presumably,
according to her, which I can’t fathom is true.” The trial court interrupted defense
counsel and explained “this is not the time and place to reiterate arguments that you’ve
previously made in connection with other continuances.” Defense counsel stated he
understood and indicated he would “put it on paper and file.” After further argument, the
details of which will be set forth during our discussion of defendant’s Franklin issue, the
42
trial court granted the requested continuance. Defense counsel did not file a motion
seeking redress for the prosecutor’s communication with the CCD Director.
B. Forfeiture
Defendant argues “the prosecutor interfered with [his] right to counsel by
intentionally obtaining privileged and confidential information from the [CCD].” This
prosecutorial misconduct, defendant argues, is also “governmental behavior that ‘shocks
the conscience’ [and] violates [his] due process rights,” requiring reversal of his
convictions.
Generally, “[t]o preserve a misconduct claim for review on appeal, a defendant
must make a timely objection.” (People v. Davis (2009) 46 Cal.4th 539, 612; People v.
Gamache (2010) 48 Cal.4th 347, 370-371.)
Defense counsel complained that he was “very concerned about [the prosecutor’s]
interaction with the indigent panel,” noting defense requests for ancillary services are
“supposed to be ex[ ]parte and confidential.” But this complaint was registered in
connection with defendant’s motion for a continuance. The trial court noted this was a
separate issue and invited defense counsel to “make a motion regarding that.” He never
did. After the matter was transferred to a different department, effectively giving the
defense the continuance initially sought, defense counsel requested a further continuance
and complained about the denial of certain ancillary funding. But it was not until after
defendant’s conviction, at the time set for sentencing, that defense counsel again brought
up the prosecutor’s communication with the CCD Director, calling it “unconstitutional
irreverence for my client’s due process,” again in connection with a motion for
continuance. When the trial court stated it was “not the time and place” for that
argument, counsel stated he understood and indicated he would “put it on paper and file.”
He never did.
Thus, the trial court was never called upon to decide whether or not the prosecutor
engaged in misconduct, let alone whether that misconduct amounted to “governmental
43
behavior that ‘shocks the conscience’ ” in violation of defendant’s due process rights.
The claim is therefore forfeited.20 (People v. Low (2010) 49 Cal.4th 372, 393, fn. 11 [due
process challenge to defendant’s conviction based on claim of outrageous government
conduct forfeited where not raised at trial].)
C. Alternative Claim of Ineffective Assistance of Counsel
Anticipating forfeiture, defendant argues in the alternative that defense counsel
provided constitutionally deficient assistance by failing to adequately preserve this claim
for review. We are not persuaded.
We discuss the legal principles related to claims of ineffective assistance of
counsel, post. Suffice it to say here, we conclude defendant has not shown the
prosecutor’s inquiry to CCD and the information she obtained prejudiced defendant
under the applicable standards, i.e., that there is a reasonable probability that had counsel
raised the claim in the trial court defendant would have obtained a more favorable result.
IV. Asserted Evidentiary Error and Prosecutorial Misconduct
Defendant contends the trial court prejudicially abused its discretion and further
violated his constitutional rights by allowing the prosecutor to present misleading
testimony and argument regarding the defense’s ability to perform its own expert forensic
analysis. We disagree.
A. Additional Background
Defendant moved in limine to prevent the prosecutor from arguing to the jury that
he “could have obtained an independent scientific test” or “could have independently
analyzed the scientific evidence,” arguing: “The need for this request is compounded by
the denial of funding and lack of funding provided for this case to the indigent defendant”
by the CCD.
20 Our resolution of this issue on forfeiture grounds should not be viewed as an
indication we condone the prosecutor’s conduct.
44
At the in limine hearing, defense counsel elaborated: “There are all sorts of things
that I believe need to be done in this case but because of [defendant’s] indigence and the
lack of funding or perceived lack of need for funding per my requests those have not
currently been given. I continue to work and advocate and find those funds. And as that
evolves I’ll let everyone know. [¶] Here is my concern: I have a duty to investigate. . . .
[¶] I am diligent in investigating and I have diligently found a need for duplicity of
things that I think need to be done in this case, especially a homicide case, attempted
homicide case and great bodily injury, assault. With that said, I am in a terrible position.
Because if I start to talk about: Well, you didn’t test for this, did you? The immediate
response potentially could be: Well, the defense had access to that but did not. And
therefore, there is a negative inference associated because we’re trying to hide something
or my client is guilty.” Defense counsel argued such an argument would amount to “an
unfair, unconstitutional shifting of the burden [of proof] . . . beyond a reasonable doubt as
to guilt” from the prosecution to the defense.
The prosecutor responded: “I would object to that. I don’t have anything to do
with the defense’s timeliness or lack of ancillary funding. That is between him and
whatever county official he’s been in contact with. It has nothing to do with me or my
office. There is a plethora of case law as to a failure to call logical witnesses. And if
there is some sort of argument regarding that, I will intend to address that. [¶] I will put
on the record that counsel perfectly knows that he can ask me to do testing. In fact, in
this case he asked me to do DNA testing and I did. So his argument rings hollow to me,
and I will bring that up.”
The trial court denied the motion.
Towards the end of trial, the prosecution witness who tested the blue sweatshirt for
gunpowder residue testified about the samples she collected from the sweatshirt and the
testing she performed. During cross-examination, defense counsel focused on the testing
she did not perform, including defendant’s pants and shoes. On redirect, the prosecutor
45
asked the witness: “Now, if the defense wants analysis for any other types of items not
requested by the prosecution, you do those analyses, correct?” The witness answered:
“Correct.” The prosecutor followed up with: “Now, counsel asked you something about
pants. [¶] Were you ever asked to do any sort of analysis on pants?” The witness
answered: “No, I was not.”
Defense counsel objected to this line of questioning. The trial court sustained the
objection and invited counsel to discuss the matter at sidebar. Later, the court explained,
the prosecutor would be allowed to ask the witness “about the defense’s access to the
evidence and that they could do their own testing.” But the prosecutor would be
precluded from asking questions about whether the defense could, instead of conducting
its own testing of the evidence, ask the prosecutor to conduct additional testing. This
ruling was made under Evidence Code section 352 because that line of questioning was
potentially confusing and misleading for the jury. The trial court also noted at sidebar
that “the defense was playing both sides of the coin” because “the defense did ask for the
DNA testing,” which was provided by the prosecution, but nevertheless excluded such
questioning.
When questioning resumed, the prosecutor asked: “[I]n your experience at the
crime lab, if the defense wants access to the evidence or any other evidence for testing,
they have access to the evidence as well. Fair to say?” The witness answered: “Yes.”
On recross, defense counsel asked the witness whether there would be a fee for such
testing and how much it would be. The witness stated there would be a fee, but she did
not know the amount.
During closing argument, the prosecutor argued: “Counsel has gone over and over
it’s my burden of proof and that’s absolutely right. But the truth of the matter is
everybody has access to the evidence equally. A lot of folks think it’s my evidence. It is
not. It is just the evidence. Both sides have access to the evidence. You can’t sit back
. . . and Monday-night-quarter backing; when you see what happens on Sunday night and
46
you come back and criticize . . . . Well, this isn’t a game. It isn’t a game. We’re not
sitting back to pounce on everything that was done wrong. You consider the evidence
that’s presented.”
B. Analysis
On appeal, defendant argues the trial court abused its discretion under Evidence
Code section 352 and “unconstitutionally shifted the burden to the defense, suggesting
the defense had an obligation to present evidence.” As for the prosecutor’s conduct in
response to those rulings, defendant argues the prosecutor unfairly took advantage of the
rulings by presenting misleading testimony and argument, specifically, “that the defense
had equal access to the evidence and could have facilitated its own testing.” We address
and reject each argument in turn.
A prosecutor’s question asking whether the defense had the opportunity to
independently test evidence is not improper. (People v. Cook (2006) 39 Cal.4th 566, 607
(Cook) [prosecutor’s question to ballistics expert whether defense could have subjected
the evidence to testing by an independent laboratory did not shift the burden of proof].)
Nor need the question have been precluded under Evidence Code section 352,
which provides: “The court in its discretion may exclude evidence if its probative value
is substantially outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” “Evidence is not inadmissible under section 352 unless
the probative value is ‘substantially’ outweighed by the probability of a ‘substantial
danger’ of undue prejudice or other statutory counterweights. Our high court has
emphasized the word ‘substantial’ in section 352. [Citations.] [¶] Trial courts enjoy ‘
“broad discretion” ’ in deciding whether the probability of a substantial danger of
prejudice substantially outweighs probative value. [Citations.] A trial court’s exercise of
discretion ‘will not be disturbed except on a showing the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner that resulted in a
47
manifest miscarriage of justice.’ ” (People v. Holford (2012) 203 Cal.App.4th 155, 167-
168 (Holford).)
The trial court did not abuse its discretion in finding the probative value of the
challenged testimony was not substantially outweighed by a substantial danger of undue
prejudice or any other Evidence Code section 352 concern. The evidence tended to rebut
the suggestion, inherent in defense counsel’s questions, that potentially exculpatory
evidence might have been uncovered had additional testing been performed. To the
extent that it also suggested the defense possessed the means to either perform its own
testing or pay the fee associated with having the prosecution witness perform the
additional tests, we conclude this suggestion did not substantially prejudice the defense.
Nor was any prejudice unfair in light of the fact that it was defense counsel who opened
the door for this line of questioning by suggesting additional items of clothing should also
have been tested for gunpowder residue.
Nor did this evidentiary ruling improperly shift the burden of proof to the defense.
(Cook, supra, 39 Cal.4th at p. 607.) Nothing in the witness’s answer suggested defendant
had the burden of proving anything. The jury was fully and correctly informed about the
burden of proof. And the prosecutor acknowledged during her closing argument that the
burden of proof was hers to carry.
Finally, we reject defendant’s argument that the prosecutor unfairly took
advantage of the trial court’s rulings to elicit the above-described evidence and argue to
the jury that the defense had equal access to the evidence. In making this argument, he
relies on People v. Varona (1983) 143 Cal.App.3d 566 and People v. Daggett (1990) 225
Cal.App.3d 751, each of which “involved erroneous evidentiary rulings on which the
prosecutor improperly capitalized during his closing argument.” (People v. Lawley
(2002) 27 Cal.4th 102, 156, italics added.) The trial court’s ruling was not erroneous
here. Moreover, the prosecutor merely pointed out the physical evidence was not hers
48
and that both sides have access to it. There was nothing inappropriate about this
argument.
We conclude the trial court did not abuse its discretion or violate defendant’s
constitutional rights by allowing the prosecutor to elicit the testimony set forth above; nor
did the prosecutor engage in misconduct by eliciting the evidence or arguing the defense
had equal access to the evidence.
V. Circumstantial Evidence Instructional Error Claim
Defendant contends the trial court prejudicially erred by improperly instructing the
jury regarding their evaluation of circumstantial evidence. Again, we disagree.
The jury was instructed with CALCRIM No. 225 regarding their evaluation of
circumstantial evidence proving defendant acted with a particular intent or mental state.
The instruction provided: “The People must prove not only that the defendant did the
acts charged, but also that he acted with a particular intent and/or mental state. The
instruction for each crime and allegation explains the intent and/or mental state required.
[¶] An intent and/or mental state may be proved by circumstantial evidence. [¶] Before
you may rely on circumstantial evidence to conclude that a fact necessary to find the
defendant guilty has been proved, you must be convinced that the People have proved
each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you
may rely on circumstantial evidence to conclude that the defendant had the required
intent and/or mental state, you must be convinced that the only reasonable conclusion
supported by the circumstantial evidence is that the defendant had the required intent
and/or mental state. If you can draw two or more reasonable conclusions from the
circumstantial evidence, and one of those reasonable conclusions supports a finding that
the defendant did have the required intent and/or mental state and another reasonable
conclusion supports a finding that the defendant did not, you must conclude that the
required intent and/or mental state was not proved by the circumstantial evidence.
49
However, when considering circumstantial evidence, you must accept only reasonable
conclusions and reject any that are unreasonable.”
As the bench notes for CALCRIM No. 225 explain, this instruction is appropriate
“when the defendant’s intent or mental state is the only element of the offense that rests
substantially or entirely on circumstantial evidence.” (Judicial Council of Cal. Crim. Jury
Instns. (2017) Bench Notes to CALCRIM No. 225, p. 909.) But where “other elements
of the offense also rest substantially or entirely on circumstantial evidence,” the trial
court should instead instruct the jury with CALCRIM No. 224. (Ibid.)
CALCRIM No. 224 provides: “Before you may rely on circumstantial evidence to
conclude that a fact necessary to find the defendant guilty has been proved, you must be
convinced that the People have proved each fact essential to that conclusion beyond a
reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the
defendant guilty, you must be convinced that the only reasonable conclusion supported
by the circumstantial evidence is that the defendant is guilty. If you can draw two or
more reasonable conclusions from the circumstantial evidence, and one of those
reasonable conclusions points to innocence and another to guilt, you must accept the one
that points to innocence. However, when considering circumstantial evidence, you must
accept only reasonable conclusions and reject any that are unreasonable.”
At the jury instruction conference, defense counsel asked the trial court to instruct
the jury with CALCRIM No. 224, arguing defendant’s identity as the shooter rested
substantially on circumstantial evidence. The trial court disagreed and, relying on People
v. Malbrough (1961) 55 Cal.2d 249 (Malbrough), instructed the jury with CALCRIM No.
225.
Although circumstantial evidence was admitted to prove his identity as the
shooter, such as gunpowder residue found on the sweatshirt recovered from S.S.’s house
and defendant’s DNA found on that sweatshirt, CALCRIM No. 224 “should not be given
where circumstantial evidence is incidental to and corroborative of direct evidence.”
50
(People v. Samaniego (2009) 172 Cal.App.4th 1148, 1171; Malbrough, supra, 55 Cal.2d
at pp. 250-251.) Here, defendant’s identity as the shooter was primarily established by
direct evidence, specifically the eyewitness identifications to the police. As our Supreme
Court has stated in People v. Anderson (2001) 25 Cal.4th 543, “by introducing
circumstantial evidence merely to corroborate an eyewitness, the prosecution did not
substantially rely on such evidence.” (Id. at p. 582.) Accordingly, the trial court’s
decision to instruct with CALCRIM No. 225 rather than CALCRIM No. 224 was proper.
VI. Cumulative Prejudice
Defendant further asserts the cumulative prejudicial impact of the asserted errors
requires reversal. However, there being no error to accumulate with the error related to
discharging Juror No. 2, defendant’s assertion of cumulative prejudice also fails.
VII. Sentencing Claims
Defendant brings two sentencing matters to this court’s attention. We address
each in turn, and find no merit.
A. Reduction of Defendant’s Firearm Enhancements
Defendant first argues the matter must be remanded so the trial court may exercise
its discretion with respect to whether to reduce defendant’s firearm enhancements under
section 12022.53, subdivision (d) to lesser firearm enhancements under subdivisions (a),
(b), or (c), or under section 12022.5, subdivision (a). In support, defendant points to
People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison), a recent decision from the
First Appellate District, holding that a court exercising its discretion to strike an
enhancement under section 1385 can instead opt to impose a lesser enhancement in the
interest of justice. Defendant notes that People v. Tirado (2019) 38 Cal.App.5th 637,
review granted Nov. 13, 2019, S257658 (Tirado), a decision from the Fifth Appellate
District, has taken a contrary position, but urges us to adopt the Morrison approach. We
conclude Morrison was wrongly decided and reject defendant’s claim on that basis.
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“On October 11, 2017, Governor Brown signed Senate Bill No. 620 (2017-2018
Reg. Sess.), which amended sections 12022.5 and 12022.53 to provide trial courts with
the discretion to strike a firearm enhancement or finding. [Citation.] Senate Bill No. 620
added the following language to both statutes: ‘The court may, in the interest of justice
pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement
otherwise required to be imposed by this section. The authority provided by this
subdivision applies to any resentencing that may occur pursuant to any other law.’ ”
(Morrison, supra, 34 Cal.App.5th at pp. 221-222, italics added.) This was added to
section 12022.53 as subdivision (h).
“ ‘Section 12022.53 sets forth the following escalating additional and consecutive
penalties, beyond that imposed for the substantive crime, for use of a firearm in the
commission of specified felonies, including . . . murder [and attempted murder]: a 10-
year prison term for personal use of a firearm, even if the weapon is not operable or
loaded (id., subd. (b)); a 20-year term if the defendant “personally and intentionally
discharges a firearm” (id., subd. (c)); and a 25-year-to-life term if the intentional
discharge of the firearm causes “great bodily injury” or “death, to any person other than
an accomplice” (id., subd. (d)). For these enhancements to apply, the requisite facts must
be alleged in the information or indictment, and the defendant must admit those facts or
the trier of fact must find them to be true.’ [Citation.] Section 12022.53, subdivision (f)
provides, ‘Only one additional term of imprisonment under this section shall be imposed
per person for each crime. If more than one enhancement per person is found true under
this section, the court shall impose upon that person the enhancement that provides the
longest term of imprisonment . . . .’ ” (Morrison, supra, 34 Cal.App.5th at p. 221.)
As in this case, the jury in Morrison found true only the enhancement allegation
under section 12022.53, subdivision (d). (Morrison, supra, 34 Cal.App.5th at p. 221.)
After the trial court in Morrison recalled the sentence to exercise its discretion as
provided in section 12022.53, subdivision (h), the court declined to strike the firearm
52
enhancement. (Morrison, at p. 220.) On appeal, the defendant argued the “case should
be remanded for resentencing because the court did not understand the scope of its
discretion” given its failure to consider whether to modify the enhancement to a “ ‘lesser
included’ enhancement under section 12022.53, subdivision (b) or (c), which carry lesser
terms of 10 years or 20 years, respectively.” (Id. at p. 221.)
The First Appellate District agreed with the defendant, citing case law providing
“the court may impose a ‘lesser included’ enhancement that was not charged in the
information when a greater enhancement found true by the trier of fact is either legally
inapplicable or unsupported by sufficient evidence.”21 (Morrison, supra, 34 Cal.App.5th
at p. 222.) Like our colleagues at the Fifth Appellate District, we do not find this analysis
persuasive. (Tirado, supra, 38 Cal.App.5th at p. 644.)
We agree with the statutory interpretation set forth in Tirado. (Tirado, supra, 38
Cal.App.5th at p. 643.) The plain language of sections 1385 and 12022.53, subdivision
(h) authorizes the trial court to either dismiss or strike an enhancement; “[t]here is
nothing in either statute that conveys the power to change, modify, or substitute a charge
or enhancement.” (Tirado, at p. 643.) The Tirado court’s comparison of the language in
section 1385 with language in other statutes permitting a court to modify a charge or
enhancement (e.g., §§ 1260 & 1181, case (6)) aptly demonstrates this point. (Tirado, at
p. 643.)
Accordingly, we conclude the trial court properly understood the scope of its
discretion when it considered whether to strike defendant’s enhancement under section
12022.53, subdivision (d).
21 Neither of these circumstances is present in this case. The section 12022.53,
subdivision (d) finding was supported by sufficient evidence and defendant does not
argue otherwise.
53
B. Dueñas Claim
Second, defendant asserts that we must stay the $10,000 restitution fine because it
was imposed without a determination of his ability to pay in violation of his
constitutional rights. In making this claim, defendant relies on Dueñas, supra, 30
Cal.App.5th 1157, for the premise that such a determination is constitutionally required.
But for reasons explained more fully elsewhere, we are in agreement with the line of
cases concluding Dueñas was wrongly decided and reject defendant’s claim on that
basis.22 (See People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019,
S258946; People v. Kingston (2019) 41 Cal.App.5th 272, 279-281; People v. Aviles
(2019) 39 Cal.App.5th 1055, 1068-1069; People v. Caceres (2019) 39 Cal.App.5th 917,
927.) Stated simply, the strands of precedent relied upon by the Dueñas court in
expanding due process protections to require an ability to pay determination before
imposing a mandatory fine, fee, or assessment do not support, and indeed run contrary to,
such an expansion. Imposition of the challenged financial obligations has not deprived
defendant of access to the courts. Nor has defendant been incarcerated because of his
inability to pay. Rather, he was incarcerated because of his crimes.
Nor has defendant persuaded us that imposition of the fines and fees in this case
violated his Eighth Amendment right against excessive fines, as that right was recently
described by the United States Supreme Court in Timbs v. Indiana (2019) ___ U.S. ___
[203 L.Ed.2d 11]. That case is so manifestly inapposite we decline to discuss it at all.
Instead, we simply note defendant has cited us to no authority, nor have we discovered
22 Our Supreme Court is poised to resolve this question, having granted review in People
v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, which
agreed with the court’s conclusion in Dueñas that due process requires the trial court to
conduct an ability to pay hearing and ascertain a defendant’s ability to pay before it
imposes court facilities and court operations assessments under section 1465.8 and
Government Code section 70373, but not restitution fines under section 1202.4. (Kopp,
at pp. 95-96.)
54
any on our own, supporting the position that the restitution fine imposed in this case is
excessive in relation to either the gravity of defendant’s offenses or his economic
situation. (Id. at p. ___ [203 L.Ed.2d at p. 17].)
VIII. Ineffective Assistance of Counsel Claim Related to Franklin Materials
Defendant argues his trial counsel provided constitutionally deficient assistance by
failing to submit a packet of mitigation materials under Franklin, supra, 63 Cal.4th 261.
We conclude defendant has not carried his burden to establish ineffective assistance of
counsel in this direct appeal and that the matter is more appropriately addressed in a
habeas corpus proceeding.
A. Additional Background
The jury returned their verdict in November 2018. Defense counsel asked for
sentencing to be set about 60 days out, “because of the nature and potential litigation
packages, the Franklin packet and all those sorts of things.” The trial court agreed,
setting the hearing for January 11, 2019.
On that date, defense counsel stated he had not been provided a copy of a
probation report and the court indicated that a memo containing victim impact statements
had just been provided from the probation department that morning. Defense counsel
requested a continuance so defendant’s grandfather, who was out of state, could attend
sentencing and be heard on defendant’s behalf. Counsel also wanted to obtain the
probation report and go over it with defendant. Counsel suggested the sentencing hearing
could start that day with the victim’s family addressing the court and asked “that the
defense’s ability to put on any kind of information and/or references or commentary from
the family be put over to a secondary date.”
The prosecutor objected, arguing the defense had “no right to make commentaries
or speak at a judgment and sentencing,” and while defendant had the right under Franklin
to present materials for purposes of an eventual youth offender parole hearing, defense
counsel had previously asked for the current date for that purpose. The prosecutor argued
55
Franklin materials had no bearing on the judgment and sentencing, and further argued the
two-day notice she had been provided regarding the request for a continuance was unfair
to the victim’s family. As for the appearance of the grandfather, the prosecutor asserted,
“There is no right for a continuance for family members to be present at the judgment and
sentencing.” The prosecutor asked the court to proceed with sentencing. She had stated
in her written opposition, however, that the prosecution did not oppose “the defense filing
its Franklin materials with the court within a specified period of time as long as copies
were provided to the People.”
Defense counsel responded by requesting more time to create the Franklin
package, again suggesting the sentencing hearing could begin, and asserted there was no
reason to cut defendant’s ability to participate in his sentencing and speak. The trial court
put the matter over to the afternoon so defense counsel could review the probation report
and then go over it with defendant. When the parties returned, the trial court indicated it
had further considered defendant’s motion and granted a continuance of judgment and
sentencing to February 8, 2019.
Prior to adjourning, defense counsel explained to the court he had had difficulty up
to that point regarding the Franklin packet. After expressly noting defendant’s family
was present in the courtroom at that time, he explained that getting information from
them had been difficult. He explained he had requested materials from defendant’s
mother that could be provided to a psychiatrist to “create a baseline.” He also had
conversations with defendant’s mother about funding for a psychiatrist and was trying to
work with her and the grandfather to come up with the necessary funds. He noted that
funds from the county had not been forthcoming. Counsel told the court that if he could
not get funds, another continuance might be requested. He complained if he could not
get funding from the county or the family, he would be “stuck, hamstrung, and with both
my hands literally and figuratively tied behind my back to provide what I need to do for
[defendant].” He then said: “I’m looking directly at the mother now — hopefully, to
56
work with her to get the letter and photographs, other baseline materials or baseline
evaluations of [defendant’s] intellectual and emotional and psychological maturity
baseline to help the Court understand that baseline per Franklin and to create an
encapsulized [sic] factual finding and bases for later parole hearings.”
On February 8, 2019, defense counsel still had not submitted a Franklin packet.
He again moved for a continuance. The central thrust of the request was the lack of
resources to retain an expert and prepare a psychological evaluation; a request for
funding had been made and denied. He informed the court “[t]he family does not have
the funds” and added, “[t]hey’re not responsible for [defendant’s] funding. [Defendant]
is indigent.” Counsel had obtained juvenile records and planned to provide those to
whomever would do the social history or psychiatric evaluation. The prosecution argued
that although section 3051 makes reference to psychological evaluations, the defense has
no right to one.
The trial court tentatively denied the continuance, pending an in camera hearing
related to a statement defendant wanted to make to the court confidentially. In tentatively
denying the continuance, the court stated: “the defense has in fact had every reasonable
opportunity and incentive to make an adequate record for [defendant’s] eventual Youth
Offender Parole hearing.” The court noted the defense had been given three months to
prepare and collect information relevant to an eventual youth offender parole hearing.
When the trial court resumed the public proceedings, it denied the request for a
continuance and proceeded with sentencing. When the court asked defense counsel if
defendant was waiving arraignment for judgment and sentence, defendant told the court,
“I want to get the sentencing over with. Sentence me today.”
Defense counsel informed the court he had received “indicia” from defendant’s
mother that would be made part of the “societal history” in a Franklin submission.
Counsel asked the court to allow defendant’s mother, aunt, and one or two of his brothers
to speak on defendant’s behalf, counsel’s express intent being to “lay the foundation for
57
[a] societal history,” which he indicated would be subsequently submitted. The
prosecutor objected, arguing: “They can absolutely submit statements in writing as part
of the Franklin packet, but there is no right to give a verbal statement as to the defendant.
This is the time for victim impact statements. It is the time for the victims to finally be
heard.”23 The prosecutor also complained that the statement from defendant’s mother
defense counsel referenced had not been turned over to the prosecution.
The court responded: “The law does not currently authorize such statements in
support, or whether they’re mitigation or Franklin to be made in the way that you have
suggested.” The court then asked whether there was additional comment, and at that
point, defendant stated: “I don’t even want no Franklin. Just get this sentence over with.
I don’t need no Franklin. I don’t need any of that. If the family gonna speak, let the
family speak. Get it over with.” Defense counsel then stated: “I will file a subsequent
packet, Your Honor, on that. But I will and am absolutely reserving to do that, despite
[defendant’s] statement on the record.” The trial court then sentenced defendant. No
Franklin packet was ever filed by defense counsel.
B. Analysis
On appeal, defendant argues his trial counsel “repeatedly acknowledged the
Franklin procedure, and repeatedly expressed his intention to file Franklin materials,”
and his “failure to follow through on his intention to file Franklin materials constitutes
deficient performance.” For the reasons we shall discuss, we cannot find ineffective
assistance of counsel on this record, but note such a record could be developed in a
habeas corpus proceeding.
23 As discussed post, a trial court is, in fact, authorized to hear testimony from a
defendant’s family members at a Franklin hearing.
58
1. Legal Principles Related to Ineffective Assistance of Counsel Claims
To prevail on a claim of ineffective assistance of counsel, a defendant must show
(1) counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms, and (2) the deficient performance prejudiced defendant.
(Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 [80 L.Ed.2d 674, 693-694,
696] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).)
“ ‘Surmounting Strickland’s high bar is never an easy task.’ ” (Harrington v. Richter
(2011) 562 U.S. 86, 105 [178 L.Ed.2d 624, 642] (Richter), quoting Padilla v. Kentucky
(2010) 559 U.S. 356, 357 [176 L.Ed.2d 284, 297].)
To establish prejudice, “[i]t is not enough ‘to show that the errors had some
conceivable effect on the outcome of the proceeding.’ ” (Richter, supra, 562 U.S. at
p. 104.) A defendant must show a reasonable probability that he would have received a
more favorable result had counsel’s performance not been deficient. (Strickland, supra,466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
(Strickland, at p. 694; accord, Ledesma, at p. 218.) The likelihood of a different result
must be substantial, not just conceivable. (Richter, at p. 112.) Stated slightly differently,
a defendant must prove prejudice that is a ‘ “demonstrable reality,” not simply
speculation.’ [Citation.]” (People v. Fairbank (1997) 16 Cal.4th 1223, 1241, italics
added.)
“It is particularly difficult to prevail on an appellate claim of ineffective
assistance. On direct appeal, a conviction will be reversed for ineffective assistance only
if (1) the record affirmatively discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a reason and failed to provide one,
or (3) there simply could be no satisfactory explanation. All other claims of ineffective
assistance are more appropriately resolved in a habeas corpus proceeding.” (People v.
Mai (2013) 57 Cal.4th 986, 1009, italics omitted.)
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2. Preserving Information for Future Youthful Offender Parole Hearings
To bring juvenile sentencing in California into conformity with United States
Supreme Court Eighth Amendment cases pertaining to juveniles, the Legislature enacted
Senate Bill No. 260 (2013-2014 Reg. Sess.), effective January 1, 2014, adding sections
3051 and 4801, subdivision (c), to the Penal Code. “These provisions require the Board
of Parole Hearings (Board), with certain limited exceptions, to conduct a youth offender
parole hearing no later than a juvenile offender’s 25th year of incarceration (and at earlier
points depending on the offender’s ‘controlling offense’) (§ 3051, subd. (b)) and, when
considering parole eligibility for these youth offenders, to ‘give great weight to the
diminished culpability of juveniles as compared to adults, the hallmark features of youth,
and any subsequent growth and increased maturity’ (§ 4801, subd. (c)).” (People v.
Sepulveda (2020) 47 Cal.App.5th 291, 298 (Sepulveda).)
“In directing the Board to ‘give great weight to the diminished culpability of
juveniles as compared to adults, the hallmark features of youth, and any subsequent
growth and increased maturity of the prisoner’ ([Pen. Code,] § 4801, subd. (c)), the
statutes also contemplate that information regarding the juvenile offender’s
characteristics and circumstances at the time of the offense will be available at a youth
offender parole hearing to facilitate the Board’s consideration.” However, assembling
information about the individual before the crime, the Franklin court explained, “is
typically a task more easily done at or near the time of the juvenile’s offense rather than
decades later when memories have faded, records may have been lost or destroyed, or
family or community members may have relocated or passed away. . . . Consideration of
‘subsequent growth and increased maturity’ implies the availability of information about
the offender when he was a juvenile.” (Franklin, supra, 63 Cal.4th at pp. 283-284.)
Accordingly, our high court in Franklin authorized a post-sentencing trial court
proceeding in which “the [trial] court may receive submissions and, if appropriate,
testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California
60
Rules of Court, and subject to the rules of evidence. [The defendant] may place on the
record any documents, evaluations, or testimony (subject to cross-examination) that may
be relevant at his eventual youth offender parole hearing, and the prosecution likewise
may put on the record any evidence that demonstrates the juvenile offender’s culpability
or cognitive maturity, or otherwise bears on the influence of youth-related factors.”
(Franklin, at p. 284, italics added.)24
Here, we cannot conclude that trial counsel was incompetent in not submitting a
Franklin package without further development of the factual record, including, testimony
from counsel as to why. Reviewing courts are not permitted to find ineffective assistance
on the basis of speculation there was evidence that would have been helpful to the
defense that counsel did not provide – here, evidence that demonstrated a diminished
level of culpability related to youth, cognitive immaturity, or any information concerning
youth-related factors.
Our dissenting colleague calls the fact that trial counsel did not submit a Franklin
package “inexplicable.” (Dis. opn. post, at p. 4.) The dissent goes on to state: “there is
no indication that counsel believed there was no relevant information to provide,” and the
fact that counsel asked the trial court to allow family members to speak, “suggests they
had something relevant to say in this regard.” (Id. at p. 7.) Further, the dissent notes
counsel said he would provide a Franklin package even after defendant declared, “I don’t
need no Franklin . . . .” (Ibid.) Yet, he did not do so.
24 Contrary to implications of the prosecutor’s argument, a trial court is authorized to
hear from a defendant’s family members at Franklin hearing in the form of testimony.
Accordingly, the family could have provided testimony here. Of course, they would have
then been under oath and subject to cross-examination. (Franklin, supra, 63 Cal.4th at
pp. 284; See also In re Cook (2019) 7 Cal.5th 439, 446-447 [allowing defendants whose
convictions became final prior to Franklin to make a Franklin record under section
1202.01].) Defendant does not challenge the trial court’s ruling on this issue in this
appeal.
61
But in our view, our dissenting colleague’s belief that there must have been
something helpful defense counsel could have submitted is grounded on speculation, and
point in fact, the record suggests potential explanations why a Franklin package was not
submitted. There were funding issues that impeded production of a social-psychological
evaluation. Additionally, there was an apparent lack of cooperation by the family.
Indeed, regarding counsel’s request to have the family address the court at sentencing, it
may be, with them all present at one time in the same place, counsel saw this as a last
opportunity to put something on the record that might be helpful, without really knowing
it would be helpful. And while our dissenting colleague places weight on the absence of
anything in the record indicating “that counsel believed there was no relevant information
to provide” (Dis. opn. post, at p. 7), we would not expect counsel to articulate such a
belief while in the process of determining whether there might be something to offer.
As for not providing a submission after the sentencing, for all we know, defendant
may have told his family not to provide any statements or otherwise cooperate and they
complied with his request. This is certainly plausible given his insistence he did not want
a Franklin package submitted. Or perhaps the “indicia” defendant’s mother provided
before the sentencing hearing (whatever that was) and statements that may have been
collected post-sentencing (if there were any) did not show immaturity or other youth-
related factors. It is also possible that if counsel obtained statements post-sentencing,
those statements hurt defendant, and defense counsel made a tactical decision not to
submit them. And it could be that counsel thought the prosecution might object to the
written statements from the family without the ability to cross-examine them in an effort
to develop information that might be helpful to the prosecution at a youthful offender
parole hearing. As our dissenting colleague acknowledges, “we do not know what
defendant’s family members would have said regarding his youth and immaturity at the
time of the offense.” (Dis. opn. post, at p. 7.) While the information might have been
helpful, it might also have hurt defendant’s interests.
62
Of course, this too is speculation — but the point is we simply do not know
whether there was information defense counsel could have submitted that would have
been helpful at a future parole hearing or whether there were tactical reasons for not
submitting whatever information counsel had obtained. Our dissenting colleague and
appellate counsel might ultimately be proven correct in their perception that trial counsel
simply dropped the ball here. But we cannot speculate that is what happened. “ ‘[I]f the
record ‘ “sheds no light on why counsel acted or failed to act in the manner challenged,” ’
we must reject the [ineffective assistance of counsel] claim ‘ “unless counsel was asked
for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation.” ’ ” (Sepulveda, supra, 47 Cal.App.5th at p. 301, italics added.)
Here, there could be satisfactory explanations.
Accordingly, we reject defendant’s claim of ineffective assistance of counsel on
this direct appeal. His claims should be raised in a petition for habeas corpus. (See
Sepulveda, supra, 47 Cal.App.5th at pp. 299-302 [rejecting defendant’s claim of
ineffective assistance of counsel related to counsel’s decision to stipulate to submission
of written Franklin materials; noting counsel could have determined defendant would
benefit more by a stipulated agreement to have the Franklin memorandum presented
without contemporaneous challenge or contradiction from the prosecution; and
concluding defendant’s claim of ineffective assistance should be presented in a petition
for writ of habeas corpus so counsel could explain his decision to stipulate].)
*****
63
DISPOSITION
The judgment is affirmed.
/s/
MURRAY, J.
I concur:
/s/
HULL, Acting P. J.
64
HOCH, J., Dissenting.
The majority concludes defendant has not established that his trial counsel’s
failure to submit a packet of mitigation materials under People v. Franklin (2016) 63
Cal.4th 261 (Franklin), amounted to ineffective assistance of counsel. I disagree and
therefore dissent from that portion of the opinion. In all other respects, I concur with my
colleagues in the majority and join in the remainder of the opinion.
A.
Background
The majority provides a thorough recitation of the background facts. I highlight
the following:
The jury returned their verdict in this case on November 16, 2018. Defense
counsel asked for sentencing to be set about 60 days out so that he would have sufficient
time to put together a “Franklin packet.” The trial court agreed and set the sentencing
hearing for January 11, 2019.
On that date, defense counsel requested a continuance, arguing among other things
that defendant’s grandfather wanted to attend the sentencing and be heard on defendant’s
behalf, but he was out of state. Defense counsel suggested starting the sentencing hearing
so that the victim’s family could be heard, but then continuing the hearing to a later date
to hear from defendant’s family. The prosecutor objected, arguing the defense had “no
right to make commentaries or speak at a judgment and sentencing,” and while defendant
had the right under Franklin to present mitigation materials for purposes of an eventual
youth offender parole hearing, defense counsel “specifically asked for a time beyond the
statutory period to do the work necessary for the Franklin materials,” but for whatever
reason failed to do so. The trial court granted the continuance over the prosecutor’s
objection and set a new date for sentencing, February 8, 2019.
On that date, defense counsel still had not put together a Franklin packet. He
again moved for a continuance. The trial court denied the motion, explaining “the
1
defense has in fact had every reasonable opportunity and incentive to make an adequate
record for [defendant’s] eventual Youth Offender Parole hearing.” Defense counsel then
asked for the court to allow defendant’s mother, aunt, and one or two of his brothers to
speak on defendant’s behalf. The prosecutor objected.
Before ruling on defense counsel’s request to allow defendant’s family to present
oral statements on his behalf, the trial court indicated its tentative conclusion was that the
law authorized it to consider the probation report, comments from defendant, if he chose
to make a statement under oath, and victim impact statements, but not statements from
defendant’s family offered orally at the hearing.1 When the trial court asked for
additional comment, defendant stated: “I don’t even want no Franklin. Just get this
sentence over with. I don’t need no Franklin. I don’t need any of that. If the family
gonna speak, let the family speak. Get it over with.” Defense counsel then stated: “I
will file a subsequent packet, Your Honor, on that. But I will and am absolutely
reserving to do that, despite [defendant’s] statement on the record.” The trial court then
sentenced defendant. No Franklin packet was ever filed by defense counsel.
B.
Ineffective Assistance of Counsel
A criminal defendant has the right to the assistance of counsel under both the Sixth
Amendment to the United States Constitution and article I, section 15, of the California
Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right “entitles the
defendant not to some bare assistance but rather to effective assistance. [Citations.]
Specifically, it entitles him to ‘the reasonably competent assistance of an attorney acting
as his diligent conscientious advocate.’ [Citations.]” (Ibid.) The burden of proving a
claim of ineffective assistance of counsel is squarely upon the defendant. (People v.
1 I agree with the majority’s conclusion that the trial court was indeed authorized to
hear from defendant’s family at a Franklin hearing.
2
Camden (1976) 16 Cal.3d 808, 816.) “ ‘In order to demonstrate ineffective assistance of
counsel, a defendant must first show counsel’s performance was “deficient” because his
“representation fell below an objective standard of reasonableness . . . under prevailing
professional norms.” [Citations.] Second, he must also show prejudice flowing from
counsel’s performance or lack thereof. [Citation.] Prejudice is shown when there is a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” ’ ” (In re Harris (1993) 5 Cal.4th
813, 832-833, disapproved on another point in Shalabi v. City of Fontana (2012) 11
Cal.5th 842, 855; Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674,
693].)
In Franklin, supra, 63 Cal.4th 261, our Supreme Court held that an offender like
defendant, who will be entitled to a youth offender parole hearing in the future, must be
given “sufficient opportunity to make a record of information relevant to his eventual
youth offender parole hearing.” (Id. at p. 284.) Because Penal Code section 4801,
subdivision (c) directs the Board of Parole Hearings (the Board) to “give great weight to
the diminished culpability of youth as compared to adults, the hallmark features of youth,
and any subsequent growth and increased maturity of the prisoner,” the court explained
that the statutory scheme also “contemplate[s] that information regarding the [youth]
offender’s characteristics and circumstances at the time of the offense will be available at
a youth offender parole hearing to facilitate the Board’s consideration.” (Franklin, at
p. 283.) Assembling such information “is typically a task more easily done at or near the
time of the [defendant’s] offense rather than decades later when memories have faded,
records may have been lost or destroyed, or family or community members may have
relocated or passed away.” (Id. at pp. 283-284.) Thus, the trial court must provide a
youth offender with a sufficient opportunity to do so.
3
Defendant argues his trial counsel “repeatedly acknowledged the Franklin
procedure, and repeatedly expressed his intention to file Franklin materials,” and his
inexplicable “failure to follow through on his intention to file Franklin materials
constitutes deficient performance.” The majority responds by speculating as to possible
reasons defense counsel may have reasonably decided not to file Franklin materials.
Perhaps there simply was no “evidence that would have . . . demonstrated a diminished
level of culpability related to youth, cognitive immaturity, or any information concerning
youth-related factors” for counsel to have provided on defendant’s behalf. (Maj. opn.
ante, at p. 61.) The majority concludes that because “ ‘the record on appeal sheds no
light on why counsel . . . failed to act in the manner challenged,’ ” and because there is a
potentially “ ‘satisfactory explanation’ ” for counsel’s failure to file a Franklin packet in
this case, defendant’s “claim of ineffective assistance is more appropriately made in a
habeas corpus proceeding,” where defense counsel will be able to explain his reasons for
not filing the packet. (People v. Wilson (1992) 3 Cal.4th 926, 936.)
I am unpersuaded by the majority’s reasoning on this issue. The potentially
satisfactory explanation relied on by the majority is essentially a perfect storm of
imagined impediments. These include a lack of funding, unhelpful family members,
obstruction by defendant himself, a lack of any relevant and helpful information relating
to defendant’s youth, as well as fear on the part of defense counsel over a potential
evidentiary objection that might have been made by the prosecution had counsel followed
through with submitting the Franklin materials he promised to submit.
I acknowledge support in the record for the first two, i.e., apparent funding issues
and initial difficulty getting information from defendant’s family, specifically his mother,
for purposes of preparing a baseline psychological assessment. But defense counsel
expressed these problems at the conclusion of the January 11 proceeding. The trial court
granted a continuance to February 8 to allow counsel more time to prepare the Franklin
packet. Then, on that date, still having filed no Franklin materials, counsel asked for
4
another continuance, again noting the lack of funds for a psychological evaluation. But
counsel also indicated he had obtained juvenile records he planned to provide to the
person who would be performing such an evaluation and that defendant’s mother had
given him “indicia” that he expected would be submitted as part of an eventual Franklin
packet. As set forth in greater detail above, further continuance was denied, defense
counsel sought to present testimony from defendant’s family on the Franklin issue, which
was also denied, and then counsel promised to file a subsequent Franklin packet. He
never did so.
While the funding issues raised by the majority might well explain why defense
counsel could not submit a psychological evaluation as part of a Franklin packet, they do
not explain counsel’s failure to submit anything at all. And while counsel’s apparent
initial difficulty obtaining information from defendant’s family might explain his
inability to prepare Franklin materials by January 11, this does not explain why he was
unable to put something together by February 8, especially considering the fact that
counsel indicated he had at least some information from defendant’s mother that he
intended to include as part of a Franklin packet. He also indicated that he was in
possession of juvenile records that he believed would be helpful to defendant in the
preparation of a psychological evaluation. Thus, the record suggests defense counsel had
at least some information that was relevant and helpful to defendant on the Franklin
issue. This conclusion is bolstered by the fact that after the trial court denied the
requested continuance, counsel sought to have defendant’s family members testify at a
Franklin hearing. Stated simply, if funding issues prevented defense counsel from
obtaining the psychological evaluation he wanted, counsel should still have filed
whatever information he did have. Indeed, he acknowledged as much when he promised
to file a Franklin packet after sentencing.
In an attempt to transform defense counsel’s failure to file the promised Franklin
packet into a rational tactical decision, the majority speculates that “defendant may have
5
told his family not to provide any statements or otherwise cooperate and they complied
with his request,” or “perhaps the ‘indicia’ defendant’s mother provided before the
sentencing hearing (whatever that was) and statements that may have been collected post-
sentencing (if there were any) did not show immaturity or other youth-related factors,” or
“possib[ly] . . . if counsel obtained statements post-sentencing, those statements hurt
defendant, and defense counsel made a tactical decision not to submit them,” or “it could
be that counsel thought the prosecution might object to the written statements from the
family without the ability to cross-examine them in an effort to develop information that
might be helpful to the prosecution at a youthful offender parole hearing.” (Maj. opn.
ante, at p. 62.) I find this to be implausible for several reasons.
First, in support of the plausibility of defendant’s imagined directive to his family
not to cooperate with defense counsel, the majority reads defendant’s “I don’t even want
no Franklin” statement to indicate that he did not want a Franklin packet filed on his
behalf. The majority and I simply disagree as to the meaning of defendant’s statement.
Viewed in context, I do not read defendant’s statement to indicate either that he believed
his family did not have relevant and helpful information relating to his youth that might
assist the Board in its consideration of his release during a future youth offender parole
hearing, or that he did not want them to share such information with defense counsel.
Instead, defendant was obviously frustrated and wanted his sentencing to be “over with.”
As stated previously, defense counsel successfully delayed sentencing for almost three
months in order to put together a Franklin packet and then unsuccessfully sought a
further continuance because he still had not done so. It was after that continuance request
was denied, and after the trial court indicated that it was tentatively denying counsel’s
additional request to allow defendant’s family to provide Franklin-related testimony, that
defendant stated “I don’t even want no Franklin. Just get this sentence over with.” While
I agree this statement indicated that defendant did not want the Franklin issue to further
6
delay his sentencing, it in no way indicated he did not want any Franklin materials filed
at all, let alone that he believed his family had no helpful information to provide.
Second, while there is no support in the record for the majority’s speculation that
the information defense counsel received from defendant’s mother was actually not
relevant to the Franklin analysis, or that other information turned out to be harmful, the
record does support what I believe to be the more plausible explanation for defense
counsel’s failure: he simply neglected to do what he repeatedly said he would do. As set
forth in greater detail above, defense counsel successfully requested to put off sentencing
for 60 days so that he could put together a Franklin packet. He did not do so. Whether
he tried to do so during that time is unclear, but there is no indication that counsel
believed there was no relevant information to provide. Indeed, he asked for and received
another continuance to put together the materials. He again did not do so. And again, he
asked for a further continuance. This continuance was denied. However, far from
indicating that he had no information to present, defense counsel asked the trial court to
allow defendant’s mother, aunt, and siblings to provide this information orally. The
prosecution objected, and the trial court denied this request, so we do not know what
defendant’s family members would have said regarding his youth and immaturity at the
time of the offense. But the fact that defense counsel wanted them to testify suggests
they had something relevant to say in this regard. Moreover, even after defendant stated
“I don’t need no Franklin,” defense counsel again indicated he was “absolutely” going to
“file a subsequent packet.” Once again, counsel did not do so. After all of this, I find it
baffling that the majority is willing to speculate that defense counsel might have had a
reasonable explanation for filing nothing at all.
I would hold defense counsel’s failure to file any Franklin materials in this case,
after receiving two continuances for the purpose of doing so, and after explicitly stating
on the record that he would file a Franklin packet after the sentencing hearing, amounted
to deficient performance. The only reasonable explanation for filing nothing would be
7
that defense counsel, after conducting a thorough investigation into the matter, was truly
unable to uncover any information suggesting defendant’s youth and immaturity played a
role in his commission of these offenses. I acknowledge it is theoretically possible that
youthful immaturity had nothing to do with defendant’s decision to bring a loaded
handgun to a house party and then use it to shoot the victim to death over a rap song. But
unlike my colleagues in the majority, I find that theoretical possibility to be too
implausible to require defendant to resort to habeas procedures to secure the relief he
seeks.
With respect to prejudice, it should be obvious that a defendant who is entitled to
have information regarding his youth and circumstances at the time of the offense
considered by the Board at a future youth offender parole hearing is prejudiced by the
complete failure to file such information. As the Franklin court stated, this “is typically a
task more easily done at or near the time of the [defendant’s] offense rather than decades
later when memories have faded, records may have been lost or destroyed, or family or
community members may have relocated or passed away.” (Franklin, supra, 63 Cal.4th
261 at pp. 283-284.) The Attorney General also concedes that if deficient performance is
established, “the prejudice prong would be satisfied” and “remand would be warranted to
allow [defendant] an opportunity to present Franklin materials.”
For the foregoing reasons, I would remand the matter for the limited purpose of
affording defendant an opportunity “to make a record of information relevant to his
eventual youth offender parole hearing.” (Franklin, supra, 63 Cal.4th 261 at p. 284.)
Defendant additionally requests that we issue an order directing the trial court to appoint
8
counsel to assist defendant in filing Franklin materials. I would grant that request as
well.
/s/
HOCH, J.
9