People v. Kirkpatrick CA2/5 ( 2022 )

Filed 6/22/22 P. v. Kirkpatrick CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B303320
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. NA096371)
KELVIN KIRKPATRICK,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard R. Romero, Judge. Affirmed.
Jeralyn Keller, under appointment by the Court of Appeal,
for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, William H. Shin and
Roberta L. Davis, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted defendant Kelvin Kirkpatrick (defendant)
of the first degree murder of Richard Vidaurry (Vidaurry). The
trial court sentenced defendant to life in prison without the
possibility of parole. We are asked to decide whether the record
demonstrates the trial court had an improper ex parte
communication with the jury during deliberations. We also
resolve defendant’s claims of sentencing error, which were not
raised by objection in the trial court.
I. BACKGROUND
A. The Murder
On the morning of May 7, 2013, Ignacio Gonzales
(Gonzales) was waiting outside Bowtie Connection, an auto body
shop in the City of San Pedro. Gonzales was waiting for
Vidaurry, who also worked at the body shop, to arrive and open
the business.
At 8:20 a.m., Vidaurry drove up in a pick-up truck and
parked on the street in front of the shop. The truck belonged to
John Kennedy (Kennedy), Bowtie Connection’s owner, and he
lent the truck to Vidaurry for a month while Vidaurry’s car was
being repaired. Normally, Kennedy would use the truck to drive
to the shop.
As Vidaurry was parking, Juan Sanchez (Sanchez) was
leaving a market across the street from Bowtie Connection. After
Vidaurry exited the truck, Gonzales and Sanchez saw a man
wearing a hoodie-style sweatshirt, gloves, and a dust or dentist-
style mask approach Vidaurry from behind and shoot him once in
the head with a handgun. The shooter then fled the scene on
foot, and Sanchez called 911.
2
The coroner determined Vidaurry died at the scene and
characterized the gunshot wound to his head as a type that that
would be “rapidly” or “instantly” fatal. The coroner further
determined the fatal gunshot was a “contact” wound, meaning
the barrel of the gun was in contact with or in close proximity to
the back of Vidaurry’s head when the gun was fired.
B. Investigation of the Murder
Los Angeles Police Department detectives interviewed a
number of witnesses to the shooting, including Ryan Yasin
(Yasin). On the day of the shooting, he was sweeping the streets
and emptying trash cans in the neighborhood. At approximately
7:30 a.m., less than an hour before the shooting, Yasin saw a man
sitting at a bus stop near the market that was across the street
from Bowtie Connection. Yasin thought the man looked
“suspicious” because he was wearing a black hoodie with the hood
up, gloves, and a dust mask. Approximately 40 minutes later, as
he was cleaning another street, Yasin saw the same man running
“full force” away from the area near the bus stop.
Using witness statements about the direction in which the
shooter fled, detectives canvassed the area in search of
surveillance camera footage. Using recovered footage, detectives
were able to trace the gunman’s path from the scene of the
shooting. The gunman first ran through a parking lot toward an
alley, where the murder weapon was later found in a dumpster.
Ultimately, the gunman arrived at the apartment of Derrick
Breedlove (Breedlove), which was located approximately three
blocks from where Vidaurry was shot. From surveillance footage
inside Breedlove’s apartment building, police were able to
identify the gunman as defendant.
3
The police subsequently obtained records for defendant’s
and Breedlove’s cell phones. Roughly three weeks before
Vidaurry’s murder, Breedlove texted defendant that “a [s]ituation
came up and [there was] some money . . . attached to it [and] I
figured I[’]d run it by you.” Defendant, who had been recently
been released from prison, responded positively: “Fa show[.]
[W]hat’s da deal[?] I need some cash.” A few days after that,
defendant texted Breedlove, asking when an unidentified “cuz”
wanted the job done and “[h]ow much cuz try[ing] to pay me [for]
it?” On the evening of April 18-19, Breedlove responded,
“[$]3000. [H]e just want y[o]u t[o] p[o]p him below da waist a few
times but [yo]u d[o] w[ha]t [yo]u g[o]t t[o].” Defendant responded
he understood and asked whether he would be supplied with a
“burner,” i.e., a gun. Breedlove said he would and advised he
would learn the intended victim’s “r[o]utine” and provide aid by
monitoring police communications via a “scanner.”
C. Trial and Post-Trial Proceedings
The Los Angeles County District Attorney charged
defendant with murder and alleged two special circumstances
that made defendant eligible for a life in prison without parole
sentence: murder for financial gain and murder by lying in wait.1
The information against defendant further alleged defendant
personally and intentionally used and discharged a handgun in
the commission of the crime. The charges were tried to a jury.
1
Breedlove was charged with Vidaurry’s murder in the same
pleading. The trial court held a joint trial with separate juries
impaneled for each defendant. Breedlove’s jury found him guilty
of first degree murder.
4
1. Defendant’s testimony
After the prosecution’s case-in-chief, which produced the
evidence establishing the facts recited thus far, defendant
testified during the defense case. He explained that, shortly after
he was released from prison, he met with Breedlove (who he met
in prison) and a mutual friend Keon “Cuzzo” Collins (Collins).
Approximately one month before the shooting, in early April
2013, the three men devised a plan to sell marijuana outside of
California.
Defendant claimed that, unbeknownst to Breedlove, Collins
offered to pay defendant to injure Kennedy, the owner of Bowtie
Connection. Collins wanted Kennedy harmed because he was
upset over restoration work Kennedy had done on one of his
vehicles. According to defendant, Collins wanted defendant to
“beat [Kennedy] up badly to teach him a lesson.”
Defendant testified that a few weeks later, in late April,
Collins met with defendant. At that meeting, Collins showed
defendant a picture of Kennedy and described Kennedy’s pickup
truck, the route he drove to work, the time he usually arrived at
the shop, and the location of Bowtie Connection. In addition to
giving defendant a dust mask and latex gloves, Collins also
attempted to give defendant a handgun and said he wanted
Kennedy shot in the knees. Defendant claimed he refused to
shoot Kennedy but told Collins he would break his legs for a
smaller payment.
Defendant admitted he arrived at Breedlove’s apartment
hours before Vidaurry was shot. Defendant said he went to the
apartment to help pack up the marijuana he and Breedlove
planned to sell out of state. Defendant also admitted he was the
man seen in the surveillance videos wearing gloves and a mask
5
leaving Breedlove’s apartment at approximately 7:30 a.m. and
walking toward Bowtie Connection; defendant further conceded
that he waited at the bus stop for Kennedy to arrive at the auto
body shop.
According to defendant, his plan was to follow Kennedy
inside the shop and use his mixed martial arts training to assault
Kennedy. Defendant testified he was nervous because he was
violating the conditions of his parole and he became even more
nervous after two police cars drove past the bus stop where he
was waiting. At 8:15 a.m., just five minutes before Vidaurry was
shot, defendant testified he abandoned his plan after he saw a
third police car drive by.
Defendant denied he was the man seen on surveillance
video running away from the murder scene toward the alley
where the murder weapon was recovered. Defendant did admit,
though, that he was the person seen on surveillance footage
returning to Breedlove’s apartment at approximately 8:30 a.m.
Defendant claimed that the day after Vidaurry’s murder
defendant called Collins and told him he had not carried out the
planned assault on Kennedy due to police presence in the area.
Defendant said he would make another attempt before he left
California to sell marijuana elsewhere. According to defendant,
Collins said he suspected defendant was not fully committed to
the plan and “got someone else to take care of [Kennedy].”
2. The reporting and handling of jury questions
during deliberations
Immediately after the jury began its deliberations, the trial
court advised defense counsel and the prosecutor of its procedure
for jury requests. The court stated: “If there is a need for
6
readback, of course, I will contact both counsel and indicate what
the readback would be. My preference is [for] the readback [to be
performed] in the jury room with only the twelve jurors and the
reporter. Otherwise, it’s open court with everyone.” Defense
counsel stated his preference was to have any testimony read to
the jury in the courtroom with his client present. The court
acceded to that request. The jury concluded its first day of
deliberations without reaching a verdict.2
The following day, the jury resumed its deliberations at
10:11 a.m. At 11:34 a.m., the jury presented the trial court with
a written request submitted on a “jury request or question” form
that asked to hear a reading of the testimony from the only
witness called by the defense besides defendant: a woman who
testified she was working not far from Bowtie Connection at the
time of the shooting and saw a man in dark clothing and a
mask—who was not defendant. The jury also asked to view
People’s Exhibit 113, a video taken from a police car’s dash
camera retracing the shooter’s route following the murder. At
1:41 p.m., after the jury resumed its deliberations following its
noon recess, the trial court and counsel conferred regarding these
two jury requests. Then, in the presence of defendant and his
counsel in the courtroom, the requested testimony was read to
the jury and the jury was shown the dash camera recording. At
2
After proceedings were adjourned for the day, the court
discussed with counsel a request by an alternate juror to be
absent on certain days to attend a previously scheduled event.
Counsel stipulated that the alternative juror could be absent.
The colloquy between the court and counsel regarding the request
was not transcribed by the reporter.
7
1:58 p.m., the jury resumed its deliberations in the jury room.
The proceedings concerning the jury’s requests were
memorialized by both the court clerk and the court reporter.
Later that day at 3:31 p.m., according to a minute order in
the record, the jury informed the trial court it had a question.
According to the minute order, at 3:37 p.m., the trial court
prepared a written response to the jury’s question and returned
the answer to the jury without notifying counsel.3 The minute
order does not discuss the substance of either the jury’s question
or the court’s response, and the clerk’s transcript does not include
a copy of any question or any response thereto.4
At 3:51 p.m., 14 minutes after the clerk’s minute order
indicates the court responded to the question asked by the jury,
the jury advised it had reached a verdict. The jury found
defendant guilty of first degree murder. (Pen. Code,5 § 187, subd.
(a).) The jury also found true allegations that the murder was
carried out for financial gain (§ 190.2, subd. (a)(1)) and by means
of lying in wait (§ 190.2, subd. (a)(15)), plus various firearm use
allegations (§ 12022.53, subds. (b)-(d)).
3
The minute order indicates the court did not confer with
counsel because it states counsel returned to the courtroom only
after the jury informed the court it had reached a verdict.
4
On our own motion, we take judicial notice of the contents
of the superior court’s case file. Our review of the file indicates it
includes no further information about the jury question and court
response that are referenced in the aforementioned minute order.
5
Undesignated statutory references that follow are to the
Penal Code.
8
3. Defendant’s post-trial motions and sentencing
In October 2018, a month after defendant’s conviction,
defense counsel reviewed the court’s minute order for the court
day when the jury returned its verdict and saw the reference to a
jury question and response to which counsel had not been
alerted. A month after that, defendant moved to unseal the
jurors’ identifying information to enable contacting the jurors—
but counsel’s motion to unseal was not predicated on the question
and response disclosed in the minute order. Rather, the sole
ground asserted for discovering the jurors’ identifying
information was the conduct of Juror No. 10 during the reading of
the verdict. According to the supporting declaration by
defendant’s trial attorney, Juror No. 10 was “very upset and had
to be helped to her seat,” she cried during the reading of the
verdict, and when the jury was polled she “was so upset she could
not answer initially” and could only mouth the word “yes” when
she was asked if she shared in the other jurors’ verdict and
findings. According to defense counsel, such conduct was so
“completely out of the ordinary” that it suggested the possibility
of “coercion” or other juror misconduct.
At the hearing on the motion to unseal juror information,
defendant’s attorney argued the issue as briefed and did not
complain about (or otherwise raise) the jury question the court
apparently answered without alerting counsel. After hearing
argument, the trial court denied the defense motion to unseal
juror information. The court explained it had studied Juror No.
10 closely as she affirmed the verdict as her personal verdict
because it was “keenly aware” of the possibility that Juror No. 10
had been subject to pressure by the other members of the jury.
The court concluded from its observations that Juror No. 10’s
9
emotion was merely an “understandable” reaction to “the gravity
of what was going on.”
In January 2019, more than four months after the jury
rendered its verdict, defendant filed a motion for a new trial,
contending, among other things, that the trial court erred by not
alerting his attorney to the question raised by the jury just
minutes before it announced it had reached a verdict. Defendant
argued the trial court denied him due process by not giving his
attorney the opportunity to participate in crafting a response to
the jury’s question. The People opposed the motion for a new
trial, arguing defendant “failed to make the requisite showings
that the court misdirected the jury in a matter of law or erred in
the decision of any question of law arising during the course of
the trial.”
The trial court ruled on defendant’s new trial motion and
sentenced defendant at a hearing in December 2019 (some 14
months after the jury rendered its verdict). The court denied the
motion and found defendant had not established the court’s
response to the jury question referenced in the minute order
concerned anything of legal importance. The court stated: “I
have no recollection of th[e jury question or my response]. It’s my
practice, obviously, to disclose to counsel communications from
the jury. Anything significant I disclose to the attorneys.” The
court added: “It must have been something trivial, and I have no
idea what it was, but I can’t believe that if there were anything
touching on the issues of the case that I would not have told
counsel about it, but that may be speculation on my part.”
Proceeding to sentencing, the trial court heard defendant’s
allocution and victim impact statements from members of
Vidaurry’s family, one of his co-workers, and a friend. The court
10
sentenced defendant to life without the possibility of parole for
the special circumstance murder. As reflected in the reporter’s
transcript of the hearing, the trial court’s choice of language
suggested it might be staying a second sentence of 25 years to life
for the murder conviction: “The 25 to life [sentence] that would
normally be imposed is not imposed because of the special
circumstance allegations. So the 25 to life is stayed on the first
degree murder.” Notwithstanding the court’s reference to a 25
years to life sentence that was “stayed,” neither the clerk’s
minute order nor the abstract of judgment reference any stayed
additional punishment for the murder conviction beyond the life
without parole sentence.
With regard to the jury’s true findings on the section
12022.53 firearm enhancement allegations, the court imposed a
consecutive 25 years to life sentence for the subdivision (d)
finding and stayed the lesser sentences on the subdivision (b) and
(c) allegations. Defense counsel did not ask the trial court to
exercise its discretion to strike or dismiss any of the firearm
enhancements pursuant to section 12022.53, subdivision (h) or
otherwise object to the court’s sentencing on the firearm
enhancements.
II. DISCUSSION
Defendant claims he is entitled to reversal of his conviction
because the trial court had an improper ex parte communication
with the jury, that is, the unspecified question and answer just
before the jury’s verdict. The record we have establishes, at
most, that the court responded to a jury question without
informing counsel. That, however, is not improper in all
circumstances (e.g., when the question concerns non-substantive
11
matters like how and when to deliver verdict forms), and nothing
establishes the answer to the question at issue here was error
such that reversal is required.
Defendant also has not established the trial court
committed sentencing error. The court’s ambiguous remark
about a “stay” of a 25 year to life sentence on the murder
conviction does not indicate such a sentence was imposed but
stayed (as opposed to an unartful description of a sentence that
did not apply in this case even though it does in many other
murder cases)—particularly when viewed in conjunction with the
sentencing hearing minute order and abstract of judgment,
neither of which reflect an imposed but stayed 25 years to life
sentence. Defendant’s claim that the court should have stricken
the section 12022.53, subdivision (d) firearm enhancement in the
interest of justice is forfeited because he did not ask the trial
court to exercise its discretion and strike the enhancement at
sentencing.
A. Defendant Has Not Established the Trial Court
Improperly Responded to a Jury Question
A trial court’s communications with a deliberating jury
should generally occur in the presence of the parties. “A criminal
defendant has the right under the state and federal Constitutions
to be personally present and represented by counsel at all critical
stages of the trial.” (People v. Bryant, Smith and Wheeler (2014)
60 Cal.4th 335, 465 (Bryant); see also § 1138 [“the information
required [by the jury] must be given in the presence of, or after
notice to, the prosecuting attorney, and the defendant or his
counsel, or after they have been called”].) “For purposes of the
right to be present, a critical stage is ‘one in which a defendant’s
12
“‘absence might frustrate the fairness of the proceedings”
[citation], or ‘whenever his presence has a relation, reasonably
substantial, to the fullness of his opportunity to defend against
the charge.”’ [Citation.]” (Bryant, supra, at 465.)
“‘[N]ot every communication between the judge and jury[,
however,] constitutes a critical stage of the trial.’ [Citation.]”
(People v. Clark (2011) 52 Cal.4th 856, 987 (Clark).) For
example, a trial court’s ex parte offer to provide the jury with
additional instruction or information alone does not violate a
defendant’s constitutional rights. (People v. Mickle (1991) 54
Cal.3d 140, 174 [no error where trial court “simply offered to
provide further instruction in open court . . . . [and] [t]he offer
was not accepted”]; see also ibid. [“A statutory or constitutional
violation occurs only where the court actually provides the jury
with instructions or evidence during deliberations without first
consulting counsel”].) In addition, “a trial court properly may
engage in ex parte communications for ‘“scheduling,
administrative purposes, or emergencies that do not deal with
substantive matters . . . .”’ [Citations.]” (Clark, supra, 52 Cal.4th
at 987; accord, Bryant, supra, 60 Cal.4th at 466 [the defendant’s
constitutional rights were not violated when the trial court held
two in camera meetings with the jurors from which all parties
were excluded because the meetings were for administrative
purposes and did not deal with substantive matters]; see also
People v. Delgado (1993) 5 Cal.4th 312, 330 (Delgado) [“‘“[T]here
is scarcely a lengthy trial in which one or more jurors do not have
occasion to speak to the trial judge about something, whether it
relates to a matter of personal comfort or to some aspect of the
trial. The . . . conclusion that an unrecorded ex parte
communication between trial judge and juror can never be
13
harmless error ignores these day-to-day realities of courtroom life
and undermines society’s interest in the administration of
criminal justice.”’ [Citation]”], second alteration in original.)
On appeal, reviewing courts do not presume that any
communication with a jury that occurs outside the presence of the
parties was improper—indeed, the contrary is true. As our
Supreme Court has explained, “[w]hile we strongly reiterate the
proscription against ‘private communications between court and
jury,’ we do not infer from either the fact of the communication or
the absence of a contemporaneous verbatim record that a
prejudicial contact occurred.” (People v. Hawthorne (1992) 4
Cal.4th 43, 69.) To find a constitutional violation, the record
must show the trial court not only had an ex parte
communication with the jury, but also actually provided the jury
with instructions or evidence during deliberations without first
consulting counsel. (Id. at 67 [“The mere potential for
impropriety . . . cannot sustain an inference of misconduct”].)
This is so because, “[a]bsent an indication to the contrary, we are
required to presume a court was aware of, and followed, the
applicable law . . . .” (Peake v. Underwood (2014) 227 Cal.App.4th
428, 447; see also People v. Carter (2003) 30 Cal.4th 1166, 1214-
1215.)
That presumption controls here. Putting aside the question
of whether defendant waived his claim that there was improper
communication between the court and jury by failing to object in
the trial court at a point when a record of what occurred could
have been reconstructed,6 the record we do have does not show
6
To recapitulate, shortly after trial, the defense learned from
the pertinent minute order that the court had answered a jury
14
the communication concerned substantive matters such that the
parties should have been present (or informed about the jury’s
question before a response was prepared). Instead, all we know
looking solely at the pertinent minute order is that less than 15
minutes before the jury announced it had a verdict, the trial court
responded to a jury question. We also know from the reporter’s
transcript that the trial court responded to the jury’s earlier
request for a readback of testimony in open court and stated it
had a practice of disclosing to counsel any significant
communications from the jury. This, plus the presumption that
official duty was regularly performed (Evid. Code, § 664), compels
rejection of defendant’s naked assertion that reversal is required
because there was an improper communication with the jury.
B. The Trial Court Did Not Impose an Unauthorized
Stayed Sentence for Defendant’s Murder Conviction
Section 190, subdivision (a), sets forth three alternative
punishments for first degree murder: “[D]eath, imprisonment in
the state prison for life without the possibility of parole, or
imprisonment in the state prison for a term of 25 years to life.”
Here, after the trial court stated the “normal” 25 year to life
sentence was not available due to the jury’s special circumstance
finding, the court said the 25 years to life sentence “that would
question without the parties being present. The defense took no
immediate action to preserve and discover the memories and
notes of those present. Then, when the defense brought a motion
seeking juror identifying information, the motion still raised no
objection to the unreported question and answer.
15
normally be imposed is not imposed” and added “the 25 to life is
stayed on the first degree murder.”
Where there is a discrepancy between the oral
pronouncement of a sentence and the sentencing minute order or
abstract of judgment, the oral pronouncement ordinarily governs.
(People v. Price (2004) 120 Cal.App.4th 224, 242; see also People
v. Mitchell (2001) 26 Cal.4th 181, 185 [“An abstract of judgment
is not the judgment of conviction; it does not control if different
from the trial court’s oral judgment and may not add to or modify
the judgment it purports to digest or summarize”].) Under
certain circumstances, however, courts will “deem the minute
order and abstract of judgment to prevail over the reporter’s
transcript. [Citations.]” (People v. Cleveland (2004) 32 Cal.4th
704, 768.) For example, where a sentencing court misstates a
term but the minute order and abstract of judgment correctly
state the term, the court’s misstatement may be of “no effect” and
the minute order and abstract of judgment may control. (Ibid.
[trial court incorrectly referred to one-year term under § 667.5
but defendant was charged with and admitted only a prior
serious felony conviction under § 667 as accurately reflected in
the minute order and abstract of judgment].)
In view of the trial court’s recognition that the “normal”
sentence of 25 years to life was unavailable (due to the jury’s
special circumstance findings) and “not imposed,” we believe the
trial court’s additional, ambiguous statement about a stay is best
construed in light of the minute order and abstract of judgment.
No stayed term of 25 years to life was imposed, and no correction
of the judgment to delete any such stayed punishment is
required.
16
C. Defendant’s Firearm Enhancement Argument Is
Forfeited
Roughly two years before defendant was sentenced, the
Legislature gave trial courts discretion “in the interest of
justice . . . at the time of sentencing, [to] strike or dismiss an
enhancement otherwise required to be imposed by” other
provisions of section 12022.53. (§ 12022.53, subd. (h), as
amended by Stats.2017, ch. 682, § 2). Defendant did not ask the
trial court to strike the section 12022.53, subdivision (d)
enhancement or object to its imposition.
“As a general rule, only ‘claims properly raised and
preserved by the parties are reviewable on appeal.’ [Citation.]”
(People v. Smith (2001) 24 Cal.4th 849, 852.) Our Supreme Court
adopted this waiver rule “‘to reduce the number of errors
committed in the first instance’ [citation], and ‘the number of
costly appeals brought on that basis’ [citation].” (Ibid.) In the
sentencing context, our highest court has “applied the rule to
claims of error asserted by both the People and the defendant.
[Citation.] Thus, all ‘claims involving the trial court’s failure to
properly make or articulate its discretionary sentencing choices’
raised for the first time on appeal are not subject to review.
[Citations.]” (Ibid.)
Because defendant failed to object to the section 12022.53,
subdivision (d) enhancement or otherwise urge the trial court to
exercise its discretion under section 12022.53, subdivision (h),
defendant’s argument on that ground presented for the first time
on appeal is forfeited.
17
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
18