People v. Lewis CA2/7 ( 2020 )

Filed 9/9/20 P. v. Lewis CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B296286
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA141321)
v.
DAIVON LEWIS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Patrick Connolly, Judge. Affirmed as
modified.
Marta I. Stanton, under appointment by the Court of
Appeal, for Defendant and Appellant Daivon Lewis.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Paul M. Roadarmel, Jr. and Stephanie A.
Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Daivon Lewis appeals from the judgment entered after a
jury convicted him of crimes arising from his participation in a
criminal street gang scheme to extort money from a marijuana
dispensary and a recycling center in south Los Angeles. We
affirm as modified.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Third Amended Information
Lewis was charged in a third amended complaint with two
counts of conspiracy to commit extortion (Pen. Code, § 182,
subd. (a)(1))1 (count 1, Eco Recycling; count 9, Kush Kingz);
one count of second degree robbery (§ 211) (count 4); one count of
assault with an assault weapon (§ 245, subd. (a)(3)) (count 6);
one count of assault with a semiautomatic firearm (§ 245,
subd. (b)) (count 7); two counts of false imprisonment (§ 236)
(counts 10 and 11); two counts of making criminal threats (§ 422)
(counts 12 and 13); and one count of extortion (§ 520) (count 17).
The information alleged all offenses had been committed for
the benefit of a criminal street gang (§ 186.22, subd. (b)); as to
counts 1, 4 and 17, a principal had been armed with a firearm
during the commission of the offenses (§ 12022, subd. (a)(1)); and,
as to count four, a principal had personally used a firearm
(§ 12022.53, subds. (b) & (e)(1)). It was further alleged Lewis had
suffered one prior conviction for a serious or violent felony within
the meaning of the three strikes law (§ 667, subds. (b)-(i), 1170.12)
and for a serious felony under section 667, subdivision (a), and had
served two prior separate prison terms for felonies (§ 667.5,
subd. (b)).
1 Statutory references are to this code unless otherwise
stated.
2
2. Trial Testimony
The East Coast Crips is a large criminal street gang with
approximately 1,000 members in Los Angeles. Its primary
activities include vandalism, theft, narcotics sales, weapons
possession, burglaries, robberies, assaults with firearms,
attempted murder and murder. Lewis, known as “Little
Hitman,” belonged to the Quetorius 102 subset of the East Coast
Crips (Q102’s), whose territory ranged at the time of trial from
103rd Street to the south, 99th Street or Century Boulevard to
the north, Stanford or McKinley Avenues to the east and Wall or
Main Streets to the west. Lewis’s younger brother, Justin Glen
Smith, was known as “Baby Hitman,” and another gang member,
Kobe Kincherlow, was known as “Big Sleep.” Smith and
Kincherlow were tried with Lewis and also convicted of multiple
crimes related to the Q102’s plan to extort, or “tax,”2 businesses
in south Los Angeles.3
a. The attempted extortion of the marijuana dispensary
In April 2016 several members of the Q102’s, including
Lewis, entered into a conspiracy to tax the Kush Kingz Medical
Dispensary on South San Pedro Street. Lewis knew the owner
and led the other gang members in discussions to tax the
2 According to the People’s gang expert, the term “taxing”
meant extortion. Gang members require individuals to pay
money to conduct business in the neighborhood without
interference from the gang. Sometimes, the gang also offers
protection in exchange for the money.
3 Smith and Kincherlow separately appealed their
convictions. (See People v. Smith et al. (Sept. 9, 2020, B290425)
[nonpub. opn.].)
3
dispensary.4 On April 30, 2016 Lewis and Chanel Grant, who
testified for the People pursuant to a negotiated plea agreement,
asked Martin Rodriguez, a security guard at Kush Kingz, if they
could speak to the owner. Rodriguez told them to come back that
night. They returned at 10:30 p.m. with several other gang
members and parked near the entrance of the dispensary. The
owner was not there. According to Rodriguez, Lewis and another
gang member threatened to “shoot up” the business if the owner
did not appear. Rodriguez and Dominique Netterville, another
employee, testified they were frightened because the gang
members were blocking the dispensary door, as well as
Rodriguez’s and Netterville’s cars, which were parked on the
street. Netterville, who believed Lewis had a gun, pretended to
call the owner but instead called the police. The police arrived,
surrounded the building and arrested the gang members. A
videotape from security cameras of the business was played for
the jury. No firearms were recovered from the people found
inside the dispensary.
b. Extortion at the recycling center
In July 2016 Lewis, Smith, Kincherlow and several of their
fellow gang members developed a plan to tax the business next to
Eco Recycling on South Main Street. Grant had seen people
moving equipment for growing marijuana into the building.
When Grant knocked on the door and asked what was going on, a
man threatened her with a gun and told her to mind her own
business. Grant told Lewis, Smith and Kincherlow about the
4 The jury heard an audiotaped police interview with Tyrone
Dunn, one of the gang members inside the dispensary, who
described Lewis’s comments about taxing the dispensary.
4
incident, and they accompanied her to the grow house. The man
who had threatened Grant was not there; but the gang members
learned the grow house was owned by the brother-in-law of
Hector Sanchez, the owner of Eco Recycling. Sanchez offered to
set up a meeting with his brother-in-law.
Sanchez, however, delayed in arranging the meeting with
his brother-in-law. After several days of watching the grow
house, Lewis and Kincherlow directly approached the owner, told
him an agreement would have to be reached for pulling a gun on
Grant and explained the gang intended to tax his business.
Lewis and Kincherlow reported to the other gang members the
owner had agreed to pay five pounds of marijuana and
$10,000 per month to compensate the gang and to continue to
operate in the neighborhood. Sanchez would handle the
agreement on behalf of the owner.
Sanchez again procrastinated, telling Lewis and
Kincherlow he did not have the money. Eventually he provided
Kincherlow with some money and marijuana on behalf of the
grow house, which was shared among the gang members. The
amount of money and marijuana was less than the amount
agreed upon, however, so Kincherlow returned to Eco Recycling.
Sanchez again put him off. The gang members concluded
Sanchez was taking a cut of the amount they were to be paid and
decided he would have to pay what was still owed or face
retaliation. Although Grant did not accompany Lewis,
Kincherlow and Smith when they again visited Sanchez at
Eco Recycling, they told her when they returned that Smith had
taken two guns, including an AR-15 assault weapon, from
Sanchez. They did not tell Grant they had taken cash from
Sanchez.
5
When Sanchez testified, he denied any knowledge of a grow
house next door. He had been approached in June 2016 by Lewis,
Kincherlow, Smith and Grant, who claimed she had been
threatened at gunpoint at the business next door. Kincherlow
told Sanchez he represented all Crips and, if Sanchez wanted to
stay in business, he would have to pay money. Sanchez denied
anyone associated with his business had pointed a gun at Grant
but agreed to talk to Kincherlow and Lewis the next day. The
next day Kincherlow and Lewis demanded $2,000 for the incident
with Grant and monthly payments of the same amount to operate
the recycling business. After that conversation Sanchez
purchased and installed security cameras outside the
Eco Recycling office.
Throughout the rest of June Sanchez resisted Kincherlow
and Lewis’s requests for money by inviting them to smoke and
drink with him while claiming he had not received money from
his brother-in-law. He testified he was afraid of the gang and
used a friendly demeanor to defuse the situation. Sometime in
July Kincherlow and Lewis told Sanchez he owed money for June
and July, as well as penalties, and demanded he pay $10,000.
On July 27, 2016, after having been rebuffed multiple
times, Kincherlow and Lewis entered the Eco Recycling office and
demanded money. Sanchez, feeling threatened, did not resist
when Lewis took approximately $7,100 from a desk drawer, put it
in a bag and left. Half an hour later, Lewis returned,
accompanied by Smith and another gang member, James
Thompson, and demanded another $3,000. Kincherlow followed a
few minutes later. Smith had a pistol, and Thompson had an
assault rifle he held down at his side. Smith threatened Sanchez
and pointed his pistol at Sanchez’s employee, Deandrey Perry.
6
Thompson stood behind Smith, blocking the door. Smith began
opening drawers and took a .40 caliber gun that belonged to
Sanchez. Kincherlow told Smith to calm down and not to take
the gun, but Smith refused to give it back. Kincherlow, Lewis
and Thompson left the office, but Smith continued to make
threats and told Sanchez he would need to pay $3,100 to get his
gun back. As Smith walked out of the office, he stumbled, turned
around and pointed two guns at the office doorway before leaving.
Sanchez believed Smith was waiting to shoot Perry and him if
they left the office.
Sanchez closed the recycling center after the incident. He
eventually reported the crime to the police and provided the video
surveillance footage, which was played for the jury. The video
showed, when entering the office, Smith had his hands in his
pockets as if he was concealing a weapon; and Thompson walked
stiffly. After leaving, Smith withdrew two semiautomatic
handguns from his pockets and aimed them at the door;
Thompson held an automatic rifle, which he then thrust down his
pant leg.
Los Angeles Police Detective Christian Mrakich testified
Lewis, Kincherlow, Smith and Thompson had been arrested after
being identified in the video by local officers familiar with the
Q102’s. Mrakich, who explained his investigation corroborated
Grant’s testimony, also stated Grant told him she had stolen a
stainless steel .44 caliber revolver in a house burglary, which she
then sold to Kincherlow. A stainless steel .44 caliber revolver
was later recovered from an unlocked storage shed associated
with Kincherlow’s apartment.5
5 The revolver was found in a black backpack along with
ammunition, a black ski mask, handcuffs, plastic gloves and a
7
c. Lewis’s testimony
Lewis was the only defendant to testify. Lewis admitted
he, Smith and Kincherlow were members of the East Coast Crips
Q102’s. According to Lewis, he was a patient at Kush Kingz and
had developed a business relationship with the owner,
purchasing large amounts of marijuana for resale. On April 30,
2016 he was turned away from the business when he could not
produce his medical certificate. Rodriguez, the security guard,
told him to come later when the owner was expected to be there.
When Lewis returned (with his fellow gang members), Rodriguez
told him he had not been able to reach the owner. While Lewis
waited for Rodriguez to call the owner again, the police arrived.
Lewis never threatened anyone and had only intended to buy
marijuana.
Addressing the robbery at Eco Recycling, Lewis testified he
became involved when Grant told him someone at the grow shop
had pulled a gun on her. Lewis and Kincherlow accompanied her
to speak with the owner of the shop. The owner told them to step
around to speak with his business partner (Sanchez) at
Eco Recycling. The grow shop owner explained the situation to
Sanchez, who invited Lewis and Kincherlow to come back the
next day to discuss amends. According to Lewis, no threats were
made; and the tone of the conversation was civil. The next day
Sanchez told them the security guard who had threatened Grant
would be fired and Sanchez and his business partner would sell
them marijuana at a cheap price. Soon after, Sanchez, who was
box of condoms. The same brand of condoms was found in
Kincherlow’s wallet when he was arrested. The revolver’s serial
number matched the serial number of the weapon reported stolen
in the burglary described by Grant.
8
friendly to them, shared samples of the marijuana as they
smoked and drank at the Eco Recycling office. Lewis bought
marijuana from Sanchez multiple times and sold it to his clients.
He arranged to buy a pound of marijuana for Smith and paid
Sanchez $1,600 in advance. Lewis and Kincherlow received the
marijuana from Sanchez; but, when Smith examined it, he told
Lewis the amount was short.
Lewis returned to the Eco Recycling office. Perry was
sitting near the door with a gun on his lap. Sanchez had a rifle,
and another handgun was on a desk. Lewis told Sanchez the
marijuana was short and asked to swap it for another bag sitting
on the table. Sanchez refused. Smith then walked in, visibly
angry, followed by Thompson (although Lewis did not see either
with a weapon). Perry, responding to Smith’s aggressive manner,
issued a gang challenge and announced he was a member of the
Pueblo Bishop Bloods. Sanchez told everyone to “chill” and “be
cool” and offered to ask the grow shop owner why the marijuana
was short. Kincherlow walked in, and Sanchez told him to get
control of his boys. Thompson asked why Perry and Sanchez had
weapons and if they were being set up. Sanchez denied it was a
setup and said he could not reach the grow shop owner. He
offered his M-15 rifle to Thompson to hold as collateral. Lewis
left and assumed his fellow gang members left with him.
3. Verdicts and Sentencing
The jury found Lewis guilty on all counts and found true
the special gang and firearm allegations (except for the firearm-
use allegation under § 12022.53, subds. (b), (e)(1)). Lewis
admitted he had suffered one prior serious felony conviction
within the meaning of the three strikes law and section 667,
subdivision (a), and had served two prior prison terms. The court
9
imposed what it described as an aggregate determinate state
prison term of 22 years plus four life terms. The sentence
consisted of a life term for conspiracy to commit extortion at
Eco Recycling (count 1), doubled as a second strike sentence to
14 years to life, plus five years for the prior serious felony
conviction; plus a consecutive life term for conspiracy to commit
extortion at Kush Kingz (count 9), doubled to 14 years to life; plus
a consecutive term of 12 years for assault with a semiautomatic
firearm (the middle term of six years, doubled) (count 7), plus
five years for the gang enhancement on that count. The court
imposed concurrent terms on the remaining counts and imposed
and stayed two one-year prior prison term enhancements under
section 667.5, subdivision (b). Finally, the court imposed $400 in
court operation assessments, $300 in court construction fees and
a restitution fine of $5,000.
CONTENTIONS
Lewis challenges as insufficient the evidence supporting
two of his convictions and contends the trial court’s decision to
replace a juror during deliberations was improper. In addition,
he argues certain aspects of his sentence are improper. Finally,
Lewis contends the court erred by imposing assessments, fees
and fines without first determining his ability to pay, as
discussed in this court’s decision in People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas).
10
DISCUSSION
1. Substantial Evidence Supports Lewis’s Conviction for
Robbery Under a Natural and Probable Consequences
Theory
The robbery charge was based on Smith’s theft of Sanchez’s
gun. Lewis argues he cannot be culpable for aiding and abetting
Smith’s crime because he was unarmed and did not participate in
taking the gun. Under the prosecutor’s theory of the case,
however, Lewis was guilty because the robbery was a natural and
probable consequence of the conspiracy to extort Eco Recycling.
“‘“‘Each member of the conspiracy is liable for the acts of any of
the others in carrying out the common purpose, i.e., all acts
within the reasonable and probable consequences of the common
unlawful design.’”’” (People v. Maciel (2013) 57 Cal.4th 482, 515,
citations omitted; see People v. Guillen (2014) 227 Cal.App.4th
934, 998 [“‘each member of a conspiracy is criminally responsible
for the acts of fellow conspirators committed in furtherance of,
and which follow as a natural and probable consequence of, the
conspiracy, even though such acts were not intended by the
conspirators as part of their common unlawful design’”].)
Under the natural and probable consequences doctrine, “an
aider and abettor is guilty not only of the intended crime, but also
‘for any other offense that was a “natural and probable
consequence” of the crime aided and abetted.’” (People v.
McCoy (2001) 25 Cal.4th 1111, 1117.) “‘The latter question is not
whether the aider and abettor actually foresaw the additional
crime but whether, judged objectively, it was reasonably
foreseeable. [Citations.] Liability under the natural and
probable consequences doctrine ‘is measured by whether a
reasonable person in the defendant’s position would have or
11
should have known that the charged offense was a reasonably
foreseeable consequence of the act aided and abetted.’”
(People v. Medina (2009) 46 Cal.4th 913, 920; accord, People v.
Robins (2020) 44 Cal.App.5th 413, 422.) “‘[T]o be reasonably
foreseeable “[t]he consequence need not have been a strong
probability; a possible consequence which might reasonably have
been contemplated is enough.” [Citations.] A reasonably
foreseeable consequence is to be evaluated under all the factual
circumstances of the individual case [citation] and is a factual
issue to be resolved by the jury.” (Medina, at p. 920; Robins, at
p. 422.) We review a jury’s finding for substantial evidence.6
6 In considering a claim of insufficient evidence in a criminal
case, “‘we review the whole record to determine whether any
rational trier of fact could have found the essential elements of
the crime . . . beyond a reasonable doubt. [Citation.] The record
must disclose substantial evidence to support the verdict—i.e.,
evidence that is reasonable, credible, and of solid value—such
that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citation.] In applying this test, we
review the evidence in the light most favorable to the prosecution
and presume in support of the judgment the existence of every
fact the jury could reasonably have deduced from the evidence.
[Citation.] “Conflicts and even testimony [that] is subject to
justifiable suspicion do not justify the reversal of a judgment, for
it is the exclusive province of the trial judge or jury to determine
the credibility of a witness and the truth or falsity of the facts
upon which a determination depends. [Citation.] We resolve
neither credibility issues nor evidentiary conflicts; we look for
substantial evidence. [Citation.]” [Citation.] A reversal for
insufficient evidence “is unwarranted unless it appears ‘that
upon no hypothesis whatever is there sufficient substantial
evidence to support’” the jury’s verdict.’” (People v. Penunuri
(2018) 5 Cal.5th 126, 142; accord, People v. Dalton (2019)
12
There is little question the jury could find the robbery of
the gun was a reasonably foreseeable consequence of the
conspiracy to extort Eco Recycling. Kincherlow and Lewis had
forced Sanchez to give up more than $7,000 in cash only half an
hour before Smith and Thompson entered the office armed and
ready to take the additional money the gang members believed
Sanchez owed them. Lewis and Kincherlow may have harbored
doubts about Smith’s aggressive approach and seizure of the gun;
but they had led the conspiracy to extort Eco Recycling, meeting
repeatedly with the reluctant Sanchez and pushing him to make
the payments they demanded.7
2. Substantial Evidence Supports Lewis’s Conviction for
Assault with an Assault Weapon
Lewis also contends insufficient evidence supported his
conviction for assault with an assault weapon because the
evidence failed to establish that Thompson pointed the rifle at
Sanchez or Perry or that the weapon was loaded and operational.
To prove a defendant committed assault with an assault
weapon pursuant to section 245, subdivision (a)(3), the
prosecution must establish the defendant willfully performed an
act with such a firearm with the present ability to apply force
7 Cal.5th 166, 243-244; People v. Zamudio (2008) 43 Cal.4th 327,
357.)
7 Lewis’s citation to cases standing for the limited
proposition that a defendant’s mere presence at the scene of a
crime is insufficient to sustain a conviction (see, e.g., People v.
Miranda (2011) 192 Cal.App.4th 398, 407) is misleading. The
court in Miranda affirmed a defendant’s conviction for aiding and
abetting a robbery on precisely the same grounds as present here.
(Id. at pp. 408-409.)
13
with that firearm. (§§ 240, 245, subd. (a)(3); see People v.
Williams (2001) 26 Cal.4th 779, 787.) It is enough for the
defendant to have had “only a general criminal intent and not a
specific intent to cause injury.” (Williams, at p. 782; accord,
People v. Chance (2008) 44 Cal.4th 1164, 1169.) “[A]ssault only
requires an intentional act and actual knowledge of those facts
sufficient to establish that the act by its nature will probably and
directly result in the application of physical force against
another.” (Williams, at p. 790.)
Certain purposeful acts have long been recognized as
assaultive conduct because of their inherent danger to others:
“‘Holding up a fist in a menacing manner, drawing a sword, or
bayonet, presenting a gun at a person who is within its range,
have been held to constitute an assault.’” (People v. Colantuono
(1994) 7 Cal.4th 206, 219, quoting People v. McMakin (1857)
8 Cal. 547, 548; see People v. Rivera (2019) 7 Cal.5th 306, 333
[intentional display of a firearm in a menacing manner may be
enough to establish assault].) As McMakin explains, “The
drawing of a weapon is generally evidence of an intention to use
it. Though the drawing itself is evidence of the intent, yet that
evidence may be rebutted when the act is accompanied with a
declaration, or circumstances, showing no intention to use it. But
when the party draws the weapon, although he does not directly
point it at the other, but holds it in such a position as enables
him to use it before the other party could defend himself, at the
same time declaring his determination to use it against the other,
the jury are fully warranted in finding that such was his
intention.” (McMakin, at p. 549; accord, People v. Chance, supra,44 Cal.4th at p. 1172 [assault does not require a direct attempt at
violence, “‘any indirect preparation towards it . . . such as
14
drawing a sword or bayonet, or even laying one’s hand upon his
sword, would be sufficient’”]; see People v. Raviart (2001)
93 Cal.App.4th 258, 263 [“[a]ssault with a deadly weapon can be
committed by pointing a gun at another person [citation], but it is
not necessary to actually point the gun directly at the other
person to commit the crime”].)
As to the operational capacity of the assault rifle at the
time of the offense, the Supreme Court has long allowed
fact finders to infer a firearm is operational and loaded from the
defendant’s conduct. (See People v. Rodriguez (1999) 20 Cal.4th
1, 12-13 (Rodriguez).) In Rodriguez the Supreme Court
overturned a court of appeal decision that had reversed an
assault conviction for the prosecutor’s failure to prove the firearm
was loaded. The Supreme Court reminded the appellate court it
was obligated to review the record in the light most favorable to
the judgment: “‘If the circumstances reasonably justify the trier
of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment.’”
(Id. at p. 11.) The Court declined to address the longtime rule
that “an assault is not committed by a person’s merely pointing
an (unloaded) gun in a threatening manner at another person”
(id. at p. 11, fn. 3), and instead focused on “the required quantum
of circumstantial evidence necessary to demonstrate present
ability to inflict injury and thus to sustain a conviction of assault
with a firearm” (ibid.). In the absence of direct evidence, the
Court concluded, “A defendant’s own words and conduct in the
course of an offense may support a rational fact finder’s
determination that he used a loaded weapon.” (Id. at p. 13.)
Because the defendant had pointed his gun in the face of the
15
victim and threatened to kill him as he had another victim the
preceding day, the Court affirmed the conviction, concluding it
could not find the jury had been unreasonable. (Ibid.)
Several courts have chafed at the Rodriguez Court’s refusal
to overrule the requirement of circumstantial evidence a firearm
was operational (see, e.g., People v. Lochtefeld (2000)
77 Cal.App.4th 533, 542, fn. 10 [calling the rule an “anachronism”
and urging the Supreme Court to reexamine it and discard it];
People v. Miceli (2002) 104 Cal.App.4th 256, 269 [citing
Lochtefeld]), but the Supreme Court has declined to do so.
(See People v. Penunuri (2018) 5 Cal.5th 126, 147 [acknowledging
the traditional rule, but following Rodriguez: “[T]he fact that the
gun was loaded may be inferred from circumstantial evidence,
and we will uphold an assault conviction if the inference is
reasonable”].)
In this case the evidence showed that Thompson followed
Smith into the Eco Recycling office, walking in a stiff-legged
manner, shortly after Lewis and Kincherlow had taken $7,100
from Sanchez. Thompson withdrew the assault rifle from his
pant leg and held it pointing at the floor while blocking the door,
preventing Sanchez and Perry from leaving. Smith, who was also
armed, threatened Sanchez and Perry, by stating he and his gang
members could just kill them unless they produced additional
cash. Sanchez and Perry each testified he was frightened by the
weapons and did not move when Smith opened the drawer and
removed Sanchez’s gun. Although there is no testimony
Thompson pointed the assault rifle at Sanchez or Perry, there
was ample evidence from which the jury could reasonably
conclude Thompson was prepared to use the rifle immediately if
necessary and it was fully operational. Under these
16
circumstances we may not second-guess the jury’s conclusion
Lewis was guilty of assault with an automatic weapon.
3. The Trial Court Did Not Abuse Its Discretion by
Discharging Juror No. 5
a. The jurors’ complaints and the removal of Juror No. 5
On the second day of deliberations the presiding juror sent a
note complaining that Juror No. 5 was allowing past experiences to
affect his decisions and did not seem to know the facts presented at
trial. The court informed counsel of the note and indicated its
intention to question the presiding juror and, possibly, other jurors.
The presiding juror, Juror No. 6, advised the court that Juror No. 5
had discussed an experience with a police officer and indicated his
belief police officers are not always truthful. Juror No. 6 also stated
Juror No. 5 had not paid attention to the evidence, was not familiar
with it and appeared confused. When the court explained it was
not concerned with whether Juror No. 5 believed or disbelieved
witnesses, Juror No. 6 stated Juror No. 5 was not considering the
evidence. The court determined no additional inquiry was needed.
The following day, the presiding juror sent a second note:
“Multiple jurors have concerns about Juror [No. 5]. We have
noticed he is not focused on the case. He has been observed not
following the case, falling asleep. He did not know which defendant
or attorney is which. He told us he had a son that was an officer
but later denied stating it. He also asked if we saw guns on the
videos. . . . He does not know what he is voting for.”
The court informed counsel it would again speak to the
presiding juror, as well as the other jurors who were having
concerns about Juror No. 5. The court also noted it had called a
recess during closing arguments because Juror No. 5 appeared to be
falling asleep.
17
Juror No. 6 told the court Juror No. 3 had written the note.
She expressed her own concerns that Juror No. 5 was falling asleep
during deliberations and was not paying attention to the videos.
He also told irrelevant, rambling stories and had admitted he did
not understand what issues jurors were voting on. She added that
Juror Nos. 2, 4 and 11 also had issues with Juror No. 5. Juror
No. 3, a nurse, repeated the same concerns about Juror No. 5. He
was not paying attention, did not know which defendant was which
or who the attorneys were: “We may be discussing something and
he’ll ask us, ‘What?’ And we have to repeat everything again. I feel
like I am personally explaining things to him child-like. And he
seems to be falling asleep.” She speculated he was suffering from
dementia and confirmed he had denied having a son who was a
police officer after saying he did.
Juror Nos. 2, 4 and 11 confirmed the views of Juror Nos. 3
and 6, noting their frustration when, after falling asleep, Juror
No. 5 would wake up and ask what had happened, forcing them to
start over. They also confirmed he did not know who was who, had
denied seeing guns in the video and had stated his son was a police
officer, only to deny it later. Finally, the court spoke with Juror
No. 5. When asked if he had been falling asleep during
deliberations, he said, “You know, you fall asleep and you don’t
know it,” but claimed he could still hear what was being said. He
denied telling the other jurors his son was a police officer.
The court then heard argument from defense counsel.
Kincherlow’s attorney argued Juror No. 5 had been deliberating but
the other jurors did not like his viewpoint. He, therefore, could not
be removed under section 1089. Smith’s attorney concurred,
pointing out being “slow or forgetful” was not a ground for dismissal
and these were simply normal problems in deliberation. The court
18
disagreed and removed Juror No. 5. The court based its decision on
Juror No. 5’s inconsistent statements about his son, his admission
of sleeping during trial and deliberations and his failure to pay
attention and participate in deliberations.
b. Governing law
Section 1089 provides, in part, “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, or if a juror
requests a discharge and good cause appears therefor, the court
may order the juror to be discharged . . . .” Lewis challenges the
trial court’s discharge of Juror No. 5 as improper, asserting other
jurors complained about Juror No. 5 because they disagreed with
his views, not because he had failed to perform his duty as a
juror.
“When a court is informed of allegations which, if proven
true, would constitute good cause for a juror’s removal, a hearing
is required.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1051.)
“‘[A] trial court’s inquiry into possible grounds for discharge of a
deliberating juror should be as limited in scope as possible, to
avoid intruding unnecessarily upon the sanctity of the jury’s
deliberations. The inquiry should focus upon the conduct of the
jurors, rather than upon the content of the deliberations.
Additionally, the inquiry should cease once the court is satisfied
that the juror at issue is participating in deliberations and has
not expressed an intention to disregard the court’s instructions or
otherwise committed misconduct, and that no other proper
ground for discharge exists.’” (Id. at p. 1054; see also People v.
Nelson (2016) 1 Cal.5th 513, 569 [“a trial court may intervene in
jury deliberations where it receives reports of juror misconduct or
19
in response to an impasse, but such interventions must be limited
and undertaken with the utmost respect for the sanctity of the
deliberative process”].)
A trial court’s decision to discharge a juror under
section 1089 is reviewed for abuse of discretion. (People v.
Armstrong (2016) 1 Cal.5th 432, 450.) However, in reviewing the
record we apply the more stringent “demonstrable reality
standard” of review rather than the more deferential substantial
evidence standard. (Armstrong, at p. 451.) This “‘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.’” (Id. at p. 450, quoting People v.
Barnwell, supra, 41 Cal.4th at p. 1052.)
c. The court properly removed Juror No. 5
The record supports the trial court’s decision to discharge
Juror No. 5. This is not a case like People v. Bowers (2001)
87 Cal.App.4th 722, 730 to 731, in which the reviewing court
reversed on the ground the isolated accusation of sleeping
occurred after the juror in question had made known his
disagreement with the view of the evidence shared by the
remaining jurors. The court here emphasized to the presiding
juror it was not interested in Juror No. 5’s perception of
witnesses or position on any particular issue; rather, the court
limited its inquiry to Juror No. 5’s conduct, which included
sleeping and failing to track issues discussed in deliberations. In
addition, the court did not rely only on the presiding juror; the
court also questioned Juror Nos. 2, 3 (the author of the
second note), 4 and 11, all of whom confirmed instances of Juror
No. 5’s falling asleep and his inability to focus or deliberate
constructively, as well as his misstatements of fact. While the
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Supreme Court has not hesitated to reverse when a trial court
fails to meet the demanding standard of “demonstrable reality”
(see, e.g., People v. Armstrong, supra, 1 Cal.5th at pp. 451-454
[trial court relied on only two jurors who had stated challenged
juror was refusing to deliberate; evidence showed limited
instances and failed to account for juror’s differing view of
evidence]; People v. Cleveland (2001) 25 Cal.4th 466, 485-486
[trial court abused its discretion by discharging juror whose view
of the evidence differed from that of other jurors; record failed to
establish demonstrable reality that juror had refused to
deliberate]), it has found ample cause for discharge when a juror
is seen sleeping from time to time during deliberations or trial.
(See People v. Williams (2015) 61 Cal.4th 1244, 1277-1278
[affirming discharge where six jurors described seeing challenged
juror sleeping during deliberations]; People v. Bonilla (2007)
41 Cal.4th 313, 350 [sleeping during trial constitutes good cause
for dismissal of a juror]; People v. Ramirez (2006) 39 Cal.4th 398,
456-457 [affirming discharge of juror for sleeping]; People v.
Johnson (1993) 6 Cal.4th 1, 21-22 [affirming trial court’s excusal
of juror for sleeping corroborated by “[t]he court, its two deputies,
and the prosecutor”].)
4. Lewis’s Sentence Requires Correction
a. The sentence for extortion (count 17) must be stayed
pursuant to section 654
Section 654 “expressly prohibits separate punishment for
two crimes based on the same act, but has been interpreted to also
preclude multiple punishment for two or more crimes occurring
within the same course of conduct pursuant to a single intent.”
(People v. Vargas (2014) 59 Cal.4th 635, 642; accord, People v.
Harrison (1989) 48 Cal.3d 321, 335.) As applicable here, under
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section 654 a defendant may not be punished for both the
conspiracy to commit a crime and the underlying crime when the
conspiracy had no objective apart from the underlying crime.
(People v. Dalton (2019) 7 Cal.5th 166, 247, citing People v. Lewis
(2008) 43 Cal.4th 415, 539; People v. Beman (2019) 32 Cal.App.5th
442, 446-447; People v. Vargas (2001) 91 Cal.App.4th 506, 570-
571.)
Lewis was convicted of conspiracy to commit extortion of
Eco Recycling (count 1), as well as the underlying crime of
extortion (count 17). The overt acts charged in the conspiracy
count were identical to the objective of the underlying crime: As
the prosecutor argued, “[T]he conspiracy is the plan; the extortion
is the actual taking of the money. Here, we have both.” The trial
court mistakenly ordered the sentence for count 17 (extortion of
Eco Recycling) to run concurrently to the sentence on count 9 (the
Kush Kingz conspiracy); but, as the Attorney General concedes,
the sentence, including any enhancements, should have been
stayed under section 654, as arising from the Eco Recycling
conspiracy specified in count 1.
b. The sentences for counts 10 through 13 should have
been stayed pursuant to section 654
For the same reason, the court erred in directing the
sentences on counts 10 through 13 (two counts each of false
imprisonment and making criminal threats) to run concurrently
with the sentence on count 9. As the Supreme Court has
explained, “Whether a defendant may be subjected to multiple
punishment under section 654 requires a two-step inquiry,
because the statutory reference to an ‘act or omission’ may
include not only a discrete physical act but also a course of
conduct encompassing several acts pursued with a single
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objective. [Citations.] We first consider if the different crimes
were completed by a ‘single physical act.’ [Citation.] If so, the
defendant may not be punished more than once for that act.
Only if we conclude that the case involves more than a single
act—i.e., a course of conduct—do we then consider whether that
course of conduct reflects a single ‘“intent and objective”’ or
multiple intents and objectives.” (People v. Corpening (2016)
2 Cal.5th 307, 311.) “‘“If all of the offenses were incident to one
objective, the defendant may be punished for any one of such
offenses but not for more than one.”’” (People v. Capistrano
(2014) 59 Cal.4th 830, 885, quoting People v. Rodriguez (2009)
47 Cal.4th 501, 507.)
The Attorney General concedes the crimes specified in
counts 10 through 13 were motivated by, and part of, the single
intent and objective of extortion at Kush Kingz, already punished
by a life sentence (14 years to life) for count 9. Accordingly, the
sentences on those counts must be stayed.
c. The one-year enhancements imposed pursuant to
section 667.5, subdivision (b), must be stricken
Former section 667.5, subdivision (b), in effect at the time
of Lewis’s sentencing, provided for an enhancement of one year
for each prior separate prison term served for “any felony.”
Pursuant to this section, the trial court imposed but stayed,
two additional one-year enhancements on Lewis (counts 1
and 17).
Effective January 1, 2020, the Legislature amended
section 667.5, subdivision (b), to limit the enhancement to prior
prison terms served for sexually violent offenses. (Stats. 2019,
ch. 590, § 1.) The Attorney General concedes this amendment
applies retroactively to all cases not yet final. (See People v.
23
Superior Court (Lara) (2018) 4 Cal.5th 299, 306-308; In re
Estrada (1965) 63 Cal.2d 740.) Accordingly, because Lewis’s
prior prison sentences were not for sexually violent offenses, we
strike the one-year prior prison enhancements imposed and
stayed on the two conspiracy counts.
5. Lewis Has Forfeited His Opportunity To Request an
Ability-to-pay Hearing
In sentencing Lewis the trial court imposed $400 in court
operation assessments, $300 in court construction fees and a
restitution fine of $5,000. Lewis contends the case should be
remanded to allow him the opportunity to demonstrate he is
indigent and unable to pay these sums under the decision in
Dueñas, supra, 30 Cal.App.5th 1157. In Dueñas this court found
it violates due process under both the United States and
California Constitutions to impose a court operations assessment
as required by Penal Code section 1465.8 or the court facilities
assessment mandated by Government Code section 70373,
neither of which is intended to be punitive in nature, without
first determining the convicted defendant’s ability to pay.
(Dueñas, at p. 1168.)
A restitution fine under section 1202.4, subdivision (b), in
contrast, is intended to be, and is recognized as, additional
punishment for a crime. Section 1202.4, subdivision (c), provides
a defendant’s inability to pay may not be considered a compelling
and extraordinary reason not to impose the restitution fine;
inability to pay may be considered only when increasing the
amount of the restitution fine above the minimum required by
statute. To avoid the serious constitutional question raised by
these provisions, Dueñas held, although the trial court is required
to impose a restitution fine, the court must stay execution of the
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fine until it is determined the defendant has the ability to pay it.
(Dueñas, at p. 1172.)
The Attorney General contends Lewis has forfeited his
right to an ability-to-pay hearing. We agree. Although we have
repeatedly observed that Dueñas announced a constitutional
principle that could not have been reasonably anticipated
(see, e.g., People v. Castellano (2019) 33 Cal.App.5th 485, 489),
the Dueñas opinion was filed January 8, 2019; and Lewis was not
sentenced until February 25, 2019, more than six weeks later.
Moreover, even if Lewis’s trial counsel was unaware of the
Dueñas decision at the time of sentencing, Lewis was on notice
and had every opportunity to raise an ability-to-pay objection in
connection with the $5,000 restitution fine. (See § 1202.4,
subds. (c) [court may increase restitution fine beyond $300
statutory minimum], (d) [defendant bears burden of
demonstrating his or her inability to pay restitution fine in excess
of statutory minimum].) Yet he failed to do so, forfeiting the
argument the court erred in imposing it without considering his
ability to pay. (See People v. Miracle (2018) 6 Cal.5th 318, 356
[“[b]ecause [the] defendant did not object to the [restitution] fine
at his sentencing hearing, he has forfeited his challenge”]; People
v. Avila (2009) 46 Cal.4th 680, 729 [“in not adducing evidence of
his inability to pay” a $10,000 restitution fine, the defendant
“forfeited the argument”]; People v. Gutierrez (2019)
35 Cal.App.5th 1027, 1033 [defendant “forfeited any ability-to-
pay argument regarding the restitution fine by failing to object”].)
Lewis’s failure to object to the $5,000 restitution fine, a
significantly larger amount than the $700 in court operations and
court facilities assessments he faced, leaves no doubt he also
would not have challenged those assessments even if he had been
25
aware he had a right under the recently filed Dueñas opinion to
request a hearing on his ability to pay the assessments. (See
People v. Smith (2020) 46 Cal.App.5th 375, 395 [defendant
forfeited challenge to assessments and fines because he “did not
object in the trial court on the grounds that he was unable to pay,
even though the trial court ordered him to pay the $10,000
statutory maximum restitution fine”]; People v. Gutierrez, supra,
35 Cal.App.5th at p. 1033 [“[a]s a practical matter, if [the
defendant] chose not to object to a $10,000 restitution fine based
on an inability to pay, he surely would not complain on similar
grounds regarding an additional $1,300 in fees”]; but see People
v. Taylor (2019) 43 Cal.App.5th 390, 400-401 [defendant did not
forfeit Dueñas challenge to court operations and facilities
assessments, even though he did not object to the maximum
$10,000 restitution fine, because the “defendant’s inability to pay
is just one among many factors the court should consider in
setting the restitution fine above the minimum”].)
For both these reasons, therefore, Lewis’s failure to request
a hearing or otherwise raise any question concerning his ability
to pay assessments or fines in the trial court forfeits the issue on
appeal.8
8 Because we do not know why Lewis’s trial counsel elected
not to request an ability-to-pay hearing, Lewis’s argument that
failure constituted ineffective assistance of counsel cannot be
addressed on direct appeal. (See People v. Mickel (2016)
2 Cal.5th 181, 198 [“we have characterized defendant’s burden as
‘difficult to carry on direct appeal,’ as a reviewing court will
reverse a conviction based on ineffective assistance of counsel on
direct appeal only if there is affirmative evidence that counsel
had ‘“‘no rational tactical purpose’”’ for an action or omission”].)
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DISPOSITION
We modify Lewis’s sentence (1) to stay the sentences on
counts 10 through 13 and 17, including any enhancements; and
(2) to strike the one-year sentences imposed under section 667.5,
subdivision (b). As modified, the judgment is affirmed. The
superior court is directed to prepare an amended abstract of
judgment and forward it to the Department of Corrections and
Rehabilitation.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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