People v. Echavarria

Filed 8/3/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E065257
v. (Super.Ct.No. FVI1102762)
MOSES MANUEL ECHAVARRIA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata,
Judge. Reversed.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Xavier Becerra, Attorneys General, Gerald A. Engler, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha
Cortina and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
1
A jury found defendant and appellant Moses Manual Echavarria, guilty of
(1) first degree murder (Pen. Code, § 187, subd. (a))1; and (2) assault with a firearm
(§ 245, subd. (a)(2)). The jury found true the allegations that, during the murder,
defendant personally and intentionally discharged a firearm causing death (§ 12022.53,
subd. (d)); and personally used a firearm (§ 12022.5, subd. (a)). The jury also found
true the allegation that, during the assault, defendant personally used a firearm.
(§ 12022.5, subds. (a) & (d).)2
Defendant moved the trial court for a new trial due to alleged juror misconduct.
(§ 1181.) The trial court denied defendant’s motion. The court sentenced defendant to
prison for a determinate term of two years six months, and an indeterminate term of 50
years to life.
Defendant raises four issues on appeal. First, defendant contends the trial court
erred by denying his motion for a new trial. Second, defendant contends the prosecutor
erred by arguing the intent required for premeditated first degree murder is akin to
choosing a beverage or a meal. Third, in the alternative, defendant asserts his trial
counsel was ineffective for failing to object to the prosecutor’s argument about intent.
Fourth, defendant asserts the trial court erred when it concluded the assault sentence
must be served consecutive to the murder sentence. We reverse the judgment.
1All subsequent statutory references will be to the Penal Code unless otherwise
provided.
2 The foregoing verdicts were rendered during defendant’s second trial. At
defendant’s first trial, the jury deadlocked on the murder and assault charges and the
trial court declared a mistrial.
2
FACTUAL AND PROCEDURAL HISTORY
A. PROSECUTION’S CASE
Donald Allen Woodward, Sr., was defendant’s mother’s boyfriend. Woodward
had a construction business—he performed stucco work. On one occasion, Woodward
worked as a subcontractor for defendant’s construction company. Woodward and
defendant agreed Woodward would perform stucco work on a house in Barstow for
$2,200. Woodward expected to be paid approximately one week after he completed his
work, but he was not paid.
Woodward called defendant once or twice per week to ask about the payment.
On one occasion, defendant’s wife called Woodward and asked for receipts for material
and labor expenses. Approximately three weeks after the stucco work was completed,
defendant paid Woodward $1,000.
At Thanksgiving, Woodward spoke to defendant in person. Defendant told
Woodward that defendant was paid $1,600 for the stucco work. Defendant was unsure
if or when Woodward would receive the remaining $1,200. Woodward offered to work
out a payment plan with defendant. The conversation ended in a friendly manner.
After the Thanksgiving conversation, Woodward continued calling defendant
approximately once per week to collect the $1,200. On December 3, 2011, Woodward
went to the home in Barstow where the stucco work had been performed to speak to the
homeowner. On December 4, Woodward spoke to the homeowner’s son on the
telephone. Woodward asked the son if Woodward’s stucco work was unsatisfactory.
3
The son explained that the stucco work was acceptable and that he believed the bill had
been paid in full.
After the conversation ended, when Woodward was on his way home, he saw his
friend, Andrew Battaglia, who lived on the same street as Woodward. Battaglia was in
front of his (Battaglia’s) house. Battaglia also performed construction work.
Woodward stopped to speak with Battaglia. While Woodward was at Battaglia’s home,
defendant called Woodward. Woodward spoke to defendant on speakerphone, and
Battaglia was nearby.
Defendant was “ranting and raving” about Woodward contacting the Barstow
homeowner and son directly. Defendant said Woodward “violat[ed defendant’s] job
site.” Woodward explained he contacted the homeowner to find out why the bill had
not been paid in full. During the phone call, defendant faulted Woodward for not giving
him an invoice for the stucco work.
Defendant told Woodward to meet him at Hesperia Lake. Defendant told
Woodward to come alone. Woodward refused because it was dark outside. Woodward
suggested the two meet at a well-lit public place because “[n]obody is going to do
nothing stupid there.” Defendant continued to demand Woodward meet him by himself
at Hesperia Lake. Ultimately, defendant, who was angry, told Woodward to come to
defendant’s house. Woodward agreed to meet defendant at defendant’s house.
Woodward believed he was meeting defendant in order to give defendant an invoice.
Battaglia had an invoice book in his truck. Battaglia retrieved a blank invoice for
Woodward. Woodward completed the invoice. Eric Brabant arrived at Battaglia’s
4
house for the purpose of having dinner with Battaglia. Woodward, Battaglia, and
Brabant left Battaglia’s house. The three stopped and picked up Lee Keohi, who was
Battaglia’s friend.
The four men stopped at a liquor store where Woodward purchased an 18-pack
of beer. The men then continued to defendant’s apartment; they did not drink the beer
while driving to defendant’s apartment. The men’s car was parked across the street
from defendant’s apartment, which is on a two-lane road. When the men arrived,
Woodward saw defendant exiting the apartment. Defendant said to Woodward, “‘I told
you to come alone, mother fucker.’” Woodward responded that he was alone, because
he was the only person exiting the car.
As Woodward walked toward defendant, while Woodward was in the middle of
the street, defendant pointed a gun at Woodward. Defendant said he would “blow
[Woodward’s] fucking head off.” Woodward had not noticed a gun when he initially
saw defendant exiting the apartment. Woodward believed defendant must have been
holding the gun behind him as he exited the apartment.
Woodward did not believe defendant would shoot anyone. Woodward continued
walking toward defendant in order to give defendant the invoice. Defendant struck
Woodward with the gun. Woodward fell to the ground. When Woodward fell,
Battaglia exited the vehicle and ran toward Woodward. Brabant and Keohi remained in
the vehicle. When Battaglia reached Woodward, he squatted, grabbed Woodward’s
shirt, and attempted to move Woodward away from defendant.
5
“[A]ll of a sudden,” after Battaglia crouched down, defendant shot Battaglia.
Battaglia stood up, then fell to the ground. “Seconds” passed between Battaglia
squatting down and defendant shooting Battaglia. Defendant went inside his apartment.
Battaglia died due to the gunshot. The bullet entered Battaglia’s chest, near his
shoulder, and traveled in a downward trajectory in Battaglia’s body. Such a trajectory
was possible if the shooter was standing and the victim was crouching down at the
shooter’s knees and bending forward at the waist. There was no gunpowder on
Battaglia’s shirt, which indicated Battaglia was more than three feet away from
defendant when defendant shot him.
B. DEFENDANT’S CASE
Defendant testified at his trial. Defendant spoke to Woodward on December 4 at
6:08 p.m. Woodward was angry during the phone call. Woodward told defendant “he
was going to get his money one way or another, even if he had to kill [defendant].”
Defendant suggested Woodward meet him at Hesperia Lake in order for Woodward to
give defendant an invoice. Defendant planned to go to Big Bear with his family on the
evening of December 4 followed by fishing at Hesperia Lake, in order to celebrate
defendant’s birthday, thus defendant and his family would be at the lake if Woodward
stopped by.
Woodward declined meeting at Hesperia Lake. Woodward suggested meeting at
a local restaurant. Defendant declined. Defendant suggested meeting at the sheriff’s
station, but Woodward declined. Defendant suggested meeting at defendant’s house.
6
No time was scheduled for the meeting. Defendant did not recall telling Woodward to
come to the meeting alone.
Defendant stayed home on December 4; he did not go to Big Bear or Hesperia
Lake due to the situation with Woodward. After Woodward and defendant spoke on the
telephone, defendant noticed three vehicles drive by his house. Defendant lived on a
street with a lot of traffic. The first vehicle lingered for a while, drove by defendant’s
house slowly, and the driver looked at defendant suspiciously. The second vehicle
belonged to a friend of Woodward. The third vehicle stopped in front of defendant’s
driveway, the driver lowered a window and then stared at defendant.
Defendant was alarmed and scared due to the phone call from Woodward and the
people driving by his house. When Woodward arrived at defendant’s house at
approximately 8:00 p.m., defendant placed his gun in his back pocket. It was dark
outside when Woodward arrived, but defendant could see Woodward was with other
people.
Defendant exited his house, and walked toward Woodward. Woodward grabbed
the back of defendant’s shirt and said, “Let’s do this, mother fucker.” Defendant struck
Woodward with his hand—defendant was not holding the gun. Woodward fell to the
ground. A third person then punched defendant’s face. Multiple people surrounded
defendant and proceeded to punch and kick defendant. Defendant was punched and
kicked all over his body.
Defendant could hear his daughter screaming. Defendant feared for his life and
the lives of his wife and children. Defendant removed the gun from his pocket, and in
7
the process of moving it, the gun fired. Defendant was not aiming the gun when it fired
and he did not intend to shoot anyone when it fired. After the gun fired, everyone
dispersed. Defendant went inside his apartment. Defendant bled “pretty good” from his
nose, mouth, and lips as a result of the beating. Defendant did not wash his face prior to
law enforcement arriving at his house. A photograph of defendant did not show any
blood from a nose injury. Defendant had blood on his boot.
C. PEOPLE’S REBUTTAL
San Bernardino County Sheriff’s Sergeant Johnson spoke with defendant at the
sheriff’s station on December 4. Defendant was asked about injuries he sustained.
Defendant complained of a bloody nose, bloody lip, and sore wrist. Sergeant Johnson
noticed “one small dot or mark on [defendant’s] upper lip.” During the booking
process, defendant lifted his shirt to reveal his tattoos. At that time, Sergeant Johnson
did not see any bruises, scratches, or redness on defendant’s arms, back, torso, or face.
After defendant was transported to jail, Sergeant Johnson observed defendant change
clothes. Defendant did not have any bruises, scratches, or marks on his legs.
DISCUSSION
A. MOTION FOR NEW TRIAL
1. PROCEDURAL HISTORY
a) Motion
Defendant filed a motion for new trial. In the motion, defendant asserted the jury
committed misconduct by considering extraneous information about punishment when
deciding whether the killing constituted first or second degree murder.
8
A declaration by Juror-123 was attached to the motion. Juror-12 declared that,
on the second day of deliberations, a juror, possibly Juror-3, said she had worked in a
prison and that defendant “could ‘walk tomorrow’ with time served” if he were
convicted of second degree murder, but he “would be far less likely to get time served
on a conviction for first degree murder.” A different juror, possibly Juror-2, responded
by saying, “‘I don’t want that.’” In the next vote, the juror who had said, “‘I don’t want
that,’” changed his vote to select first degree murder. Juror-12 told his/her fellow jurors
that information about defendant receiving credit for time served had not come from the
court, and therefore should not be considered. Later that morning, four or five more
jurors changed their votes to first degree murder.
b) Opposition
The People opposed defendant’s motion. The People asserted Juror-12’s
declaration lacked information about what occurred between Juror-3’s statement and
fellow jurors changing their votes. The People noted that on the second day of
deliberations, the jury asked for testimony to be read back, viewed an exhibit, and
continued deliberating throughout the day and into a third day. The People contended
Juror-12 was speculating that Juror-3’s statement caused the jurors to change their
votes.
3
In the record, jurors are identified by both their juror numbers and their seat
numbers. In this opinion, we use the jurors’ seat numbers when identifying the jurors.
9
c) Hearing
The trial court held a hearing in which all 12 jurors testified.4 All the jurors
denied having said defendant would not be sufficiently punished unless he were
convicted of first degree murder.
Juror-1 recalled that another juror, during deliberations, said defendant might not
be sufficiently punished unless he were convicted of first degree murder. Juror-1 did
not hear another juror say the information should not be considered. Juror-2 did not
recall hearing anyone say defendant might not be sufficiently punished unless he were
convicted of first degree murder. Juror-3, Juror-4, Juror-5, Juror-6, Juror-7, Juror-8, and
Juror-9, denied hearing anyone say defendant would not be sufficiently punished unless
he were convicted of first degree murder.
Juror-10 said the jury discussed punishment during their deliberations. Juror-10
believed a fellow juror may have estimated the length of the prison terms for first
degree murder and second degree murder. The juror who spoke about prison terms said
a second degree murder conviction could cause defendant to have “a short sentence
compared to first degree.” Juror-10 recalled that another juror said the jury was not to
consider information that came from outside the court.
Juror-11 heard a fellow juror, during deliberations, say defendant may not be
sufficiently punished if defendant were convicted of second degree murder. Juror-11,
4 We exclude from our presentation of the facts statements that relate solely to
the mental processes of the jurors because such information cannot be considered.
(People v. Danks (2004) 32 Cal.4th 269, 302; In re Stankewitz (1985) 40 Cal.3d 391,
402 (Stankewitz); People v. Nesler (1997) 16 Cal.4th 561, 584.)
10
who was the jury foreperson, immediately responded that the jury should not consider
information from outside the court.
Juror-12 heard a fellow juror, during deliberations, say defendant may not be
sufficiently punished if defendant were convicted of second degree murder. Juror-12
did not hear another juror say such information should not be considered.
The trial court said it believed, based upon the evidence, “there was some
discussion” during the jury’s deliberations—implying the court found the jury did
discuss the length of possible prison terms. The court said the next issue is “what does
that mean?” The court suggested the attorneys submit supplemental points and
authorities.
d) Supplement to Defendant’s Motion
Defendant submitted a supplement to his motion. A declaration by defendant’s
wife (Wife) was included in the supplement. Wife declared that she was sitting in the
courthouse hallway when the jurors were being examined. Wife saw one of the jurors,
one of the first to be examined, exit the courtroom. The juror then told the other jurors
“‘just say no’ to the questions.” Wife did not realize the importance of this statement
until she spoke to defendant’s attorney at a later date. A declaration by defendant’s
sister was also attached to the supplement. Defendant’s sister was also present in the
hallway and heard the juror tell the other jurors to respond “‘no’” to the court’s
questions. Defendant asserted the declarations showed the jurors who denied hearing a
statement about punishment during deliberations may not have been honest.
11
e) Supplement to Opposition
The prosecutor submitted a supplement to the opposition. The prosecutor
asserted any misconduct was not prejudicial. The prosecutor asserted “only a few
jurors” recalled hearing a comment about punishment, and both Juror-11 and Juror-12
said they told their fellow jurors such outside information should not be considered.
The prosecutor asserted that under these facts prejudice was not shown.
f) Hearing
The trial court held a hearing on defendant’s motion. Defense counsel asserted
the juror who told the other jurors to respond “no” to the court’s questions was the same
juror who stated defendant would not serve prison time if convicted of second degree
murder. The prosecutor asserted there was nothing sufficiently identifying the juror(s)
who made the complained-of remarks. The trial court found defendant received a fair
trial and denied defendant’s motion. The trial court did not state its reasons for
concluding defendant received a fair trial.
2. ANALYSIS
a) Contention
Defendant asserts the trial court correctly found the jurors discussed the length of
defendant’s possible prison terms, but the trial court erred by concluding the trial was
fair. The People concede juror misconduct occurred, but assert the presumption of
prejudice was successfully rebutted.
It is unclear whether the trial court found misconduct occurred. The trial court
found a discussion about sentencing took place amongst the jurors and the court
12
concluded defendant’s trial was fair. It is possible the court found the discussion did not
rise to the level of misconduct. It is also possible the court found the discussion
constituted non-prejudicial misconduct. Because the People concede misconduct
occurred, we will focus our analysis on the issue of prejudice.
b) Law
The law concerning prejudice lacks clarity. In some cases, there is a focus on the
presumption of prejudice that arises when misconduct is found. In those cases, the
analysis concerns whether the prosecutor has successfully rebutted the presumption of
prejudice. (In re Malone (1996) 12 Cal.4th 935, 964 [“The People have successfully
rebutted the presumption of prejudice”]; Stankewitz, supra, 40 Cal.3d at p. 402 [the
People’s rebuttal “falls far short of the mark”]; In re Hitchings (1993) 6 Cal.4th 97, 123
(Hitchings)[“presumption of prejudice that stands unrebutted”]; People v. Weatherton
(2014) 59 Cal.4th 589, 600 [prosecutor must rebut the presumption].)
Yet, in other cases, the focus is on the need for a showing of substantial prejudice
and whether it has been shown the prejudice was sufficiently substantial. (People v.
Mendoza (2000) 24 Cal.4th 130, 167 [“Nor has he shown that if such a discussion
occurred, he suffered prejudice”]; People v. Ramos (2004) 34 Cal.4th 494, 521 (Ramos)
[“We find no substantial likelihood that the article influenced the jury negatively”].)
Our understanding of the law is as follows: Juror misconduct raises a
presumption of prejudice. The People may rebut the presumption by showing no
prejudice actually resulted from the misconduct. (Hitchings, supra, 6 Cal.4th at p. 118.)
If the People fail in their rebuttal, then prejudice exists. The appellate court must then
13
examine the entire record to determine if “‘“there is a reasonable probability of actual
harm to the [defendant] resulting from the misconduct.”’” (Id. at p. 119.) If the
reviewing court finds there is not a substantial likelihood of harm then there is no need
for a new trial. (People v. Hardy (1992) 2 Cal.4th 86, 174 [reviewing court examines if
there is a substantial likelihood of harm].)
The prejudice analysis raises mixed questions of law and fact. The trial court’s
factual findings are accepted if they are supported by substantial evidence. The trial
court’s ultimate finding concerning prejudice is reviewed de novo. (Ramos, supra, 34
Cal.4th at p. 520.)
c) Rebuttal of the Presumption
The “presumption of prejudice ‘“may be rebutted by an affirmative evidentiary
showing that prejudice does not exist.”’” (Hitchings, supra, 6 Cal.4th at p. 119; People
v. Jackson (2016) 1 Cal.5th 269, 332.) In regard to the amount of affirmative evidence
that is needed, the amount appears to vary depending on the specific facts of the case—
the greater the misconduct, the more affirmative evidence that must be shown to rebut
the presumption of prejudice.
On the far end of the scale, where there is no misconduct and no rebuttal
evidence is needed, our Supreme Court has written that juror comments speculating on
punishment are “an inevitable feature of the jury system,” and are not misconduct.
(People v. Dykes (2009) 46 Cal.4th 731, 812 (Dykes); see also People v. Schmeck
(2005) 37 Cal.4th 240, 306-307, abrogated on other grounds in People v. McKinnon
(2011) 52 Cal.4th 610, 636, 642.)
14
In Dykes, during death penalty deliberations, the jurors commented on instances
they had heard of where people had been sentenced to life without the possibility of
parole, but were ultimately released from prison. Some jurors “‘said that if they gave
[the defendant] the death penalty, it was possible that he would never get executed, but
it would certainly be harder for him to get out of jail and certainly a harder
punishment.” (Dykes, supra, 46 Cal.4th at p. 808, fn. 21.) One juror told the other
jurors it was inappropriate to consider those ideas and they should treat the death
penalty as possibly resulting in the defendant being executed within a short period of
time. (Ibid.) The court found the jury did not engage in misconduct because
discussions about penalties are “an inevitable feature of the jury system.” (Id. at p.
812.)
Moving toward the middle of the scale are cases where the discussion of
extraneous information constituted misconduct, but the misconduct was determined to
be nonprejudicial. (People v. Loker (2008) 44 Cal.4th 691, 750; People v. Tafoya
(2007) 42 Cal.4th 147, 193.) In Loker, the jurors discussed the cost to taxpayers for a
sentence of life in prison without the possibility of parole versus the cost of the death
penalty. The foreperson reminded the jury not to consider such ideas. The jury’s
discussion constituted misconduct, but it was not prejudicial because the discussion was
brief and the foreperson admonished the jury. (Loker, at p. 750.)
Moving to the far/other end of the scale there are cases where the misconduct has
been found to be prejudicial. (Stankewitz, supra, 40 Cal.3d 391; People v. Honeycutt
(1977) 20 Cal.3d 150, 158.) In Stankewitz, one juror, on several occasions, advised his
15
fellow jurors “that he had been a police officer for over 20 years; that as a police officer
he knew the law; that the law provides a robbery takes place as soon as a person
forcibly takes personal property from another person, whether or not he intends to keep
it; and that as soon as [the defendant] took the wallets at gunpoint in this case he
committed robbery, whether or not he intended to keep them.” (Stankewitz, at pp. 396,
400.)
The Supreme Court explained the presumption of prejudice is “stronger when, as
here, the misconduct goes to a key issue in the case.” (Stankewitz, supra, 40 Cal.3d at
p. 402.) The court concluded the People failed to rebut the presumption of prejudice
because the People did not provide affirmative evidence that the jurors’ deliberations
were not affected by the misconduct. (Id. at pp. 402-403.)
Our review of the foregoing cases leads us to the following understanding. The
gravity of the misconduct correlates with the amount of proof necessary to rebut the
presumption of prejudice. The seriousness of the misconduct can be evaluated by
looking at (1) whether the jury was discussing an issue within the scope of their duties,
e.g., discussing sentence information during penalty deliberations or during guilt
deliberations; (2) whether the extraneous information appeared to come from a person
with authority, e.g., a police officer; (3) whether it was an abstract discussion or if the
defendant was discussed directly, e.g., an abstract discussion about the cost of
imprisonment versus a discussion about imprisoning the defendant; and (4) the length of
the discussion concerning the extraneous information.
16
First, in the instant case, extraneous information about sentencing was discussed
during the guilt phase of the proceedings. In the context of this case, that factor raises
the seriousness level of the misconduct because at least one juror was using irrelevant
sentencing information to determine guilt. Second, the extraneous information was
presented by a person who appeared to have some authority on the subject. The juror
claimed her knowledge was derived from experience working in a prison.5 This also
raises the seriousness level of the misconduct.
Third, the discussion was personal to defendant. The juror said “[Defendant]
could ‘walk tomorrow’ with time served,” if he were convicted of a crime less than first
degree murder. It was not an abstract discussion about prison credits. This factor also
increases the seriousness level of the misconduct. Fourth, the discussion appears to
have been brief. The juror made the statement about punishment. Another juror
responded, “‘I don’t want that.’” Then the foreperson and/or Juror-12 reminded the
jurors not to consider such information. The brevity of the discussion lessens the
seriousness level of the misconduct.
The People contend they successfully rebutted the presumption of prejudice. The
People assert the jury was instructed to base its verdict only on the evidence received at
trial, and that when the comment about punishment was made, the jury foreperson
immediately reminded the jurors not to consider extraneous information. “[J]ury
5 During voir dire, Juror-3 said she had worked at the Victor Valley Medium
Correctional Facility. Juror-3 explained that the facility is a level-3/level-4 private
prison in Adelanto.
17
misconduct raises a presumption of prejudice; and unless the prosecution rebuts that
presumption by proof that no prejudice actually resulted, the defendant is entitled to a
new trial.” (People v. Pierce (1979) 24 Cal.3d 199, 207.)
The problem with the People’s evidence is that Juror-1 heard the statement about
punishment, but did not hear anyone say such information should not be considered.
Given the seriousness of the misconduct, the People need to provide more evidence to
affirmatively show no prejudice occurred. Reliance on an admonition that was not
heard by all the jurors is insufficient.
The People also rely on the instruction given by the trial court informing the
jurors that they are not to consider punishment. The People’s reliance on this
instruction is problematic. The People have conceded misconduct occurred. Thus, the
People have conceded the jurors violated this instruction. Pointing to the instruction
that was violated as proof that prejudice did not arise from the violation is unpersuasive
because, since the People concede there was misconduct, the jurors did not follow the
instruction.
The People rely on People v. Leonard (2007) 40 Cal.4th 1370, to support their
position. In Leonard, during penalty deliberations, the jurors discussed the premise that
it is more expensive for taxpayers to keep a person in prison for life than to sentence the
person to death. The foreperson reminded the jurors that it was improper to consider
such a premise. The high court, without an explanation, concluded that if the comments
were improper, the error was harmless. The implication is that the foreperson’s
admonition cured any harm. (Id. at p. 1426.)
18
The instant case is distinguishable from Leonard. In Leonard, the jury was
discussing sentencing during penalty deliberations. In the instant case, the jury was
using sentencing information to decide issues of guilt. In Leonard, the jury had an
abstract discussion about the cost of life imprisonment versus the death penalty. In the
instant case, the jury discussed how defendant, in particular, would not serve a prison
term if he were convicted of anything less than first degree murder. Also, in the present
case, the information about sentencing came from a person who claimed to have
knowledge of the subject based upon experience working in a prison.
The seriousness of the misconduct in the present case is greater than in Leonard.
As a result, an admonition by the foreperson is not sufficient to rebut the prejudice in
this case, especially when the admonition was not heard by all the jurors who heard the
statement about punishment.
The problem the People are confronting on appeal is that the prosecutor did not
elicit sufficient information to rebut the presumption of prejudice. The prosecutor
perhaps should have asked questions about timing of the votes. For example, was the
statement about punishment made within five minutes of the next vote when the juror
who said, “‘I don’t want that’” changed his vote, or was it two hours later. The lack of
evidence offered by the People means there has not been a rebuttal of the presumption
of prejudice.
d) Substantial Prejudice
We now examine whether the prejudice is substantial. There are two methods
for measuring prejudice: (1) inherent prejudice, and (2) actual bias. If either test shows
19
substantial prejudice, then the judgment must be reversed. (Danks, supra, 32 Cal.4th at
p. 303.)
i) Inherent Prejudice
The first test concerns inherent prejudice. It examines whether “‘the extraneous
information was so prejudicial in context that its erroneous introduction in the trial itself
would have warranted reversal of the judgment.’” (Danks, supra, 32 Cal.4th at p. 303.)
“In a criminal case, improper reference to penalty or punishment is generally
held reversible because such references are irrelevant, the jury is likely to be misled in
determining the issue of guilt or innocence upon the basis of such improper
considerations, and, if permitted, it would lead to involvement in collateral matters the
probative value of which, if any, would be far outweighed by the prejudicial effect
thereof.” (People v. Allen (1973) 29 Cal.App.3d 932, 936-937; see also People v.
Allison (1989) 48 Cal.3d 879, 892 [“A defendant’s possible punishment is not a proper
matter for the jury’s consideration in determining guilt or innocence”]; see also Shannon
v. U.S. (1994) 512 U.S. 573, 579 [“providing jurors sentencing information invites them
to ponder matters that are not within their province, distracts them from their factfinding
responsibilities, and creates a strong possibility of confusion”].)
If, during trial, it had been said that only a conviction for first degree murder
would result in a prison sentence of any significance, admission of the statement would
be error because the statement would cause the jury to consider the irrelevant issue of
punishment when determining guilt or innocence. In other words, the evidence would
be prejudicial because it risks the jury confusing its task of fact-finding with the court’s
20
task of sentencing defendant. The evidence would have no probative value because the
jury is not tasked with sentencing defendant. Accordingly, it would have been error to
admit such a statement.
When a court errs by admitting evidence that is more prejudicial than probative
(Evid. Code, § 352), we examine whether the error is harmless. Because the error in
this case ultimately concerns defendant’s right to an impartial jury, we apply the federal
standard. (People v. Gonzales (2011) 51 Cal.4th 894, 924.) In applying that standard,
we examine whether, beyond a reasonable doubt, the error did not contribute to the
conviction. (Chapman v. California (1967) 386 U.S. 18, 24.) Stated differently,
whether, beyond a reasonable doubt, the error was not substantially likely to have
influenced a juror. (See People v. Jackson, supra, 1 Cal.5th at p. 332 [“substantially
likely”]; see also In re Carpenter (1995) 9 Cal.4th 634, 653 [the test “is analogous to the
general standard for harmless error analysis”].) We limit our harmless error analysis to
the trial portion of the record—excluding the posttrial record. (Danks, supra, 32 Cal.4th
at p. 303 [review the trial record].)
The prosecutor argued defendant premeditated the killing of Battaglia by arming
himself with a gun, taking the gun from his pocket, pointing the gun at Battaglia, and
firing the gun. The prosecutor did not argue transferred intent, i.e., it was not argued
that defendant premeditated the murder of Woodward and accidentally shot Battaglia.
(See People v. Shabazz (2006) 38 Cal.4th 55, 62-63 [transferred intent].) The
prosecutor asserted defendant premeditated the murder of Battaglia.
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The theory of premeditation as it relates to Battaglia is weak. “‘A verdict of
deliberate and premeditated first degree murder requires more than a showing of intent
to kill. [Citation.] “Deliberation” refers to careful weighing of considerations in
forming a course of action; “premeditation” means thought over in advance.’” (People
v. Casares (2016) 62 Cal.4th 808, 824.)
There is no evidence indicating defendant knew Battaglia would be coming to
defendant’s house, such that defendant was preparing to kill Battaglia or reflecting on
killing Battaglia prior to Battaglia’s arrival at the house; the theory of premeditation is
that it occurred in the moment.
The most favorable evidence for premeditation and deliberation is Keohi’s
testimony that from the time Battaglia exited the car, until the time that defendant shot
Battaglia, “a couple of minutes” passed. In interpreting the evidence in a manner
favorable to finding premeditation and deliberation, one can infer that as Battaglia was
running toward Woodward, defendant continued to strike or attempted to strike
Woodward; when Battaglia arrived to Woodward’s side, Battaglia pushed defendant
away; Battaglia crouched down, and defendant shot Battaglia. Brabant estimated that
seconds passed between Battaglia crouching down and defendant shooting Battaglia.
Within that sequence of events, there is little evidence demonstrating a moment
of reflection—where defendant paused and reflected upon killing Battaglia. The
evidence reflects an intent to kill, but the evidence of premeditation and deliberation is
weak. Due to the weak evidence concerning premeditation and deliberation, we cannot
conclude the evidence is overwhelming, such that the erroneous admission of
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information about sentencing is harmless beyond a reasonable doubt. In other words,
given the weak evidence of deliberation and premeditation, it is possible the sentencing
information caused a juror to vote for first degree murder—not the evidence.
The statement about punishment, if it had been introduced at trial, would have
necessitated reversal of the judgment. As a result, the misconduct is inherently
prejudicial.
ii) Actual Bias
As explained ante, there are two methods for measuring prejudice. If either test
results in a finding of substantial prejudice, then the judgment must be reversed.
(Danks, supra, 32 Cal.4th at p. 303.) For the sake of thoroughness, we address the
second test: actual bias. (Ramos, supra, 34 Cal.4th at p. 519.)
Under the actual bias test, a court examines whether “from the nature of the
misconduct and surrounding circumstances, it is substantially likely a juror ‘was
actually biased’ against the defendant.” (Ramos, supra, 34 Cal.4th at p. 519.) “[A]ctual
bias supporting an attack on the verdict is similar to actual bias warranting a juror’s
disqualification.” (People v. Nesler, supra, 16 Cal.4th at p. 581.) “The term ‘actual
bias’ may include a state of mind resulting from a juror’s actually being influenced by
extraneous information about a party.” (Ibid.) A juror is actually biased by extraneous
information when s/he is unable to put aside the extrajudicial information and render a
verdict based solely upon the evidence received at trial. (Id. at p. 583.) “[A] conviction
cannot stand if even a single juror has been improperly influenced.” (People v. Pierce,
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supra, 24 Cal.3d at p. 208.) We review the entire record when analyzing the issue of
actual bias. (People v. Danks, supra, 32 Cal.4th at p. 303.)
A juror, possibly Juror-3, said during deliberations that she worked in a prison
and therefore knew that if defendant were convicted of a crime less than first degree
murder then he “could ‘walk tomorrow’ with time served,” but if defendant were
convicted of first degree murder then he “would be far less likely to get time served.”
Another juror, possibly Juror-2, immediately said, “‘I don’t want that.’” In the next
round of voting, the juror who said, “‘I don’t want that’” changed his vote to first degree
murder.
If the juror who made the statement about punishment were not influenced by her
experience working in a prison, then she would not have shared the punishment
information with jurors. Juror-12 felt there was hostility toward “anyone not signing up
for first degree murder.” One juror, possibly Juror-2, said “‘I don’t want that’” and
changed his vote to first degree murder following the statement about punishment.
Thus, it can be inferred that the statement about punishment was made in an attempt to
convince other jurors to vote for first degree murder. It can reasonably be concluded
that the information about punishment was shared to ensure defendant would receive the
greatest amount of punishment, regardless of guilt. Therefore, there was exhibited bias
against defendant.
The record reflects a substantial likelihood that the juror who made the statement
about punishment was actually influenced by her experience of working in a prison,
which caused her to be unable to render a verdict based solely upon the evidence
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received at trial, given that she shared the sentencing information with other jurors. The
juror wanted to ensure defendant received the greatest possible sentence, which required
a conviction for first degree murder, regardless of the evidence. (See People v. Nesler,
supra, 16 Cal.4th at p. 583 [juror would not have used extraneous information to
influence other jurors if the juror were not influenced by the extraneous information
herself]; see also People v. Hord (1993) 15 Cal.App.4th 711, 728 [“For example, if a
juror were to say, . . . ‘[W]e will have to find the defendant guilty of the greatest charges
to ensure he will be adequately punished,’ . . . [s]uch [a] comment[ is] more likely to
influence that juror and other jurors”].) In sum, actual bias has been shown.
e) Summary
The People concede there was juror misconduct. The People failed to rebut the
presumption of prejudice. The prejudice is substantial because it is inherent and reflects
actual bias. Accordingly, the trial court erred by denying defendant’s motion for a new
trial. Due to the jury misconduct, all of defendant’s convictions and enhancements must
be reversed. (See People v. Weatherton, supra, 59 Cal.4th 589, 590, 601 [all
convictions reversed due to juror misconduct].)
B. REMAINING CONTENTIONS
Defendant asserts (1) the prosecutor committed misconduct; (2) if the
prosecutorial misconduct issue was forfeited, then his trial counsel was ineffective; and
(3) the trial court made a sentencing error. We have concluded ante that the judgment
must be reversed. As a result, we can provide defendant no further relief by examining
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the remaining issues. The remaining issues are moot. (People v. Travis (2006) 139
Cal.App.4th 1271, 1280.)
DISPOSITION
The judgment is reversed.
CERTIFIED FOR PUBLICATION
MILLER
J.
We concur:
McKINSTER
Acting P. J.
SLOUGH
J.
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