People v. Morris CA4/1

Filed 9/16/14 P. v. Morris CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D062824
Plaintiff and Respondent,
v. (Super. Ct. No. SCD214650)
TAMOYIA DUSHAWN MORRIS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, David M.
Gill, Judge. Affirmed in part, reversed in part.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood, A. Natasha
Cortina and Kelley A. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury found Tamoyia Dushawn Morris guilty of first degree murder (Pen. Code,
§ 187, subd. (a))1 and attempted premeditated murder (§§ 664, 187, subd. (a)) in
connection with a gang-related drive-by shooting in 1995. The jury found true
allegations Morris personally used a gun in the commission of both crimes within the
meaning of sections 12022.5, subdivision (a), and 12022.55.
The court sentenced Morris to 25 years to life for murder, and life with the
possibility of parole for attempted murder plus 20 years based on two 10-year
enhancements for personal gun use in both crimes (§ 12022.55). The court also imposed
a $10,000 restitution fine, along with other fees and fines. The court awarded actual
custody credit for time served, but did not award local conduct credit based on section
2933.2.
Morris contends on appeal: (1) the court abused its discretion in denying his
motion for new trial based on juror misconduct and in declining to order an evidentiary
hearing on the issue; (2) the court erred in admitting evidence Morris fled from police
when stopped approximately one month after the drive-by shooting incident and in
excluding evidence of other police contacts in subsequent years where he did not flee; (3)
the jury instructions for murder and attempted murder confused the jury on the necessary
mental state for attempted murder; (4) the jury instructions regarding consciousness of
guilt (CALCRIM Nos. 371-372) violate due process because they embody an
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
unreasonable permissive inference; (5) the trial court's imposition of the victim restitution
fine denied Morris's constitutional rights to due process and a jury; and (6) the court erred
in failing to award presentence conduct credit for crimes predating the enactment of
section 2933.2. The People concede the last point. Accordingly, we remand for
determination of local conduct credits. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Shooting
On the evening of December 9, 1995, 20-year-old Galindo "Dino" Villarreal and
several neighborhood friends were hanging out in Villarreal's front yard on Guthrie Way
in San Diego, talking and drinking after playing basketball. Guthrie Way is within the
territory of a Blood street gang called Skyline Piru (Skyline). However, Villarreal was
not a gang member.2
Villarreal's mother and sister had just pulled into the driveway in separate cars
after being out of town and were unloading their cars when Villarreal's sister noticed a
small Chevy-type sedan coming up the street. Since it was dark, she could see the car
lights. Initially, the car drove up the hill fast and then slowed as it neared the house. As
2 A detective in the San Diego Police Department gang unit testified Skyline and
Lincoln Park are two of the biggest gangs in southeast San Diego based on the number of
members, and are the most actively violent gang sets in San Diego. The two sets have
shot and killed each other for years after a feud erupted in March 1994 when members of
Skyline and an allied gang, O'Farrell Park, were suspected of killing a respected Lincoln
Park member in a Lincoln Park neighborhood. Days later, Lincoln Park gang members
retaliated by shooting an O'Farrell Park gang member in O'Farrell Park territory. Three
months later, O'Farrell gang members fired into a Lincoln Park high school graduation
party, killing a star athlete. These incidents spurred a continuing gang war.
3
she walked toward the house, she heard gunshots. Villarreal's sister yelled for their
mother to get down. The sister saw two or three young men in the car with at least one
leaning out of an open passenger window with his arm out.
Villarreal's mother also noticed the car driving slowly up the street in the direction
of their home as she was unloading her luggage. She heard a "pop" noise and then heard
her daughter yelling, "Duck, mom. There's a gun." Villarreal's mother ran toward the
front of her vehicle and hid. She saw three young African-American males in the moving
car reaching out of the car with guns and shooting in the direction of her son and the boys
in front of the house. She recalled the front passenger leaning against the door and
moving his arm left to right as he was shooting. The driver and another passenger in the
back seat fired over the car. She saw three guns firing in the direction of the boys in front
of her house and heard, "pop, pop, pop, pop."
Alicia Hopkins, a neighbor who was in her garage across the street, saw a
hatchback Chevette come up the street slowly behind the Villarreal car. She heard
gunshots as it got to the Villarreal house. Hopkins jumped up to see what was going on
because she knew her brother and some friends were out there. She saw the right front
passenger leaning out of the window shooting while another passenger on the left sat on
the windowsill shooting over the roof of the car.
Hopkins' brother, A.M., was then 17 years of age and was one of the young men
hanging out after playing basketball. A.M. was a member of the Skyline gang. A.M. saw
a car with florescent plates circle the block twice. The second time around the shooting
4
started. A.M. dropped to the ground when he heard gunshots and saw African-American
males shooting at them.
After the car left, Villarreal's mother heard her son say, "I think I've been shot."
He touched his chest and fell into her arms and those of her daughter.
After the shooting stopped, A.M. noticed his friend Shaun Theobalds lying on the
ground next to him. He was not moving or talking and was holding onto his chest or
stomach. When A.M. checked on Villarreal, he did not look good and there was blood on
his shirt.
The first San Diego police officers to respond to the scene found two victims.
Villarreal, who was lying near the front door, was still breathing, but it was very labored.
The first officer checked Villarreal's vitals and radioed for paramedics. Once the
paramedics arrived, they worked on Villarreal "for a long period of time" but were unable
to save him.
Theobalds was found lying at the street on the sidewalk with at least two gunshot
wounds, one in his lower right back and one in his right knee next to an artery.
Theobalds was taken to the hospital.
B. The Investigation
Responding officers secured the scene and began collecting evidence including
interviewing witnesses, taking photographs, and retrieving expended bullets. Evidence of
missile strikes were found in the Villarreal's home, as well as that of a neighbor, in
5
surrounding trees, and on the sidewalk. The police recovered five .25-caliber shell
casings from the street in front of the Villarreal's home.3
Donald McCoy, a 22-year-old who lived on the neighboring street of Cahill,
discovered a blue 1987 Chevy Nova, which turned out to be stolen, abandoned on Cahill
near the entrance to a canyon. McCoy, who heard gunshots and screaming followed by a
police cruiser driving past his house at a high rate of speed approximately 15 to 20
minutes after the gunshots, rode his bicycle to the scene to see what was going on. As he
rode up Cahill, he noticed an empty car with the windows down and the parking lights
on. He thought, "Nobody does that." After learning what happened, McCoy stopped at
the car on his way home and took another look. Deciding he "had to tell an officer just in
case [the car] was involved in whatever happened," McCoy found an officer, took him to
the car and pointed out a pathway to the canyon.
The police secured the Chevy Nova. The car had its parking lights on and the
hood was warm, indicating it was recently operated. The rear right window was broken
and the ignition was punched for hot wiring, which is the standard way to steal a car. The
police found a .25-caliber shell casing in the car, the same caliber as the shell casings
found in front of the Villarreals' home. When police escorted Hopkins to the car, she said
she was 99 percent sure it was the car used in the shooting.
3 The missile is the part of a bullet that leaves the gun when fired. The shell casing
is the part left behind. In a revolver, the casing remains in the gun until physically
unloaded whereas a semiautomatic weapon kicks out the casing.
6
The stolen car was photographed and processed for finger prints. The prints were
not initially tied to Morris because his prints were not in the law enforcement database in
1995. Ultimately, however, the prints found on the front passenger window were
matched with Morris's. They were consistent with him being inside the car and extending
his right arm out the open window.
At trial, a San Diego Police Department detective and gang expert opined the
drive-by shooting on Guthrie Way was a "textbook" gang-related shooting. He explained
a drive-by shooting in an opposing gang's neighborhood by multiple gang members
would elevate their status within the gang. He also explained gangs frequently use stolen
cars to commit a crime and then abandon the car to avoid detection.
C. Morris's 1996 Police Encounter and Flight
On January 13, 1996, 35 days after the Guthrie Way drive-by shooting, police
officers received a call regarding substantial gunfire and another call to look for an
African-American male dressed in white near El Cajon Boulevard. The officer and his
partner spotted Morris, an African-American male, dressed all in white, running out of an
alley. The officer exited his car and ordered Morris to stop. Morris stopped and put his
hands out on a car as instructed. However, once the officer caught up to Morris and tried
to put Morris's hands behind his back to detain him and to pat him down for weapons,
Morris pulled away and ran. The officer gave chase. As Morris scaled a fence, the officer
grabbed Morris's shirt. When Morris went over the fence, he pulled the officer with him.
After falling, the officer was not able to continue the foot chase.
7
Another officer, who was finishing the initial call regarding gunfire and vehicles
in an alley three blocks away, continued the pursuit after learning Morris was now
driving a white Cadillac. The officer saw the white Cadillac traveling eastbound on El
Cajon Boulevard. Its lights were out and Morris was traveling about 60 miles per hour.
The officer followed Morris as he headed southbound on 56th Street. Morris was driving
about 70 miles per hour in a residential neighborhood. The officer activated his lights
and siren and put out a call of a failure to yield. As they approached Trojan Avenue, the
officer observed Morris lose control of his car and hit the south curb line. Morris,
however, continued driving westbound on Trojan Avenue. He increased his speed to
about 90 miles per hour, ran a red light and then ran through a four-way stop sign at a
high rate of speed. Morris again lost control after his car came to a hump in the road,
flew off the road, crashed violently down onto the roadway and then hit an electric pole.
Morris attempted to flee on foot again, but officers apprehended and arrested him.
D. The Subsequent Investigation and Identification of Morris
When the evidence technician who lifted the prints from the stolen Chevy Nova in
1995 became a latent print examiner in 1997, he ran the set of prints through the law
enforcement database of prints to determine whether there were any possible matches.
This time, Morris came up as a possible match. The examiner confirmed the
identification by comparing the prints with known prints. Later, a comparison of the
known prints used to identify Morris in 1997 with a set of Morris's known prints obtained
in 2008 further confirmed the identifiable fingerprints found on the car were Morris's.
Six sets of Morris's prints were found on the vehicle: inside and outside of the front
8
passenger window and on the door, a palm print on the trunk of the car and a palm print
between the door window frame and windshield on the driver's area.
After Morris's prints were identified on the stolen Chevy Nova, detectives
interviewed Morris at the Chino State Prison regarding the Guthrie Way drive-by
shooting. Morris admitted he was a Lincoln Park gang member in 1995. He also
acknowledged Lincoln Park and Skyline were feuding at the time.
However, when Morris was shown photos of the fingerprints on the car used in the
shooting and the officer's hand placement, Morris denied knowing anything about the
Chevy Nova. He said, "I can't explain it. I don't know how. You sure those are mine?"
The interviewing detective assured Morris they were his prints. In response Morris
briefly equivocated saying, "Well, I don't know. Could have. Anything could happen."
Morris then remarked, "I don't know how my fingerprints got on that car. Nothing." He
continued to deny being in the car even when the detectives suggested perhaps the car
belonged to a friend. Morris denied knowing anyone with a Chevy Nova and said he had
never been in a Chevy Nova saying he had a Cadillac in 1995. He also said, "I don't get
in stolen cars in . . . '95."
E. Defense Case
The defense called a police officer who interviewed the owner of the Chevy Nova,
who reported the vehicle stolen. When the owner was interviewed in the early morning
following the shooting, he advised the officer he last drove the car on December 7, 1995.
He believed it disappeared somewhere between the hours of 4:00 p.m. on December 9,
1995 and 1:00 a.m. on December 10, 1995.
9
Regarding the 1996 flight incident, the defense called a witness who lived in the
area of the shooting. After he heard shots fired, he looked out his window and saw a non-
Black man standing by the driver's side of a dark 280z who got in the car and drove
away.
The parties stipulated Morris was under parole supervision of California
Department of Youth Authority at the time of the 1996 incident. The conditions of such
supervision required him to obey all laws and ordinances, not to be a substantial danger
to himself or to the person or property of another and not to knowingly associate with
negative peers or gang members and not to participate in gang activity. The defense
argued a reasonable explanation for why he ran on January 13, 1996, was because he was
near a crime scene where shots had been fired and he did not want to go to jail for
violating his parole conditions.
F. Jury Verdict
The jury found Morris guilty of murder in the first degree of Villarreal and of
attempted premeditated murder of Theobalds. The jury also found Morris personally
used a firearm and discharged a firearm from a motor vehicle in connection with both
crimes. The jury found Morris was not convicted in this proceeding of more than one
offense of murder, within the meaning of section 190.2, subdivision (a)(3). The jury
hung on several charges related to a separate double murder and robbery, which took
place in 2005 and was referred to as the "Velma Terrace" counts. The trial court declared
a mistrial as to those counts and they are not relevant to this appeal.
10
G. Motion for New Trial
Morris moved for a new trial asserting, in part, juror misconduct. One juror used
her own car to duplicate how Morris's fingerprints could have been left on the vehicle.
Another juror allegedly conducted an Internet search regarding a witness in the case as
well as Michael Mason's pending case regarding the Velma Terrace murders and learned
Mason was going to trial after the Morris trial concluded.
After the trial concluded, Juror No. 3 told another juror and two defense attorneys
she used her own vehicle at home during deliberations to try to replicate how the
defendant's fingerprints were left on the vehicle found near the scene of the crime. Based
on her recollection of the photographic exhibits presented during trial and available in the
jury room, Juror No. 3 put her hands in the position she believed the defendants prints
were located. She explained how she had to contort herself to make the prints and said
her husband, who came out to the garage, called her "crazy." Juror No. 3 did not discuss
this event with the other jurors during deliberations.
Juror No. 5 saw Mason, another suspect identified in exhibits from the Morris
case, and a prosecutor from the Morris trial in another courtroom. According to Juror
No. 6, Juror No. 5 said she searched the Internet regarding a witness in the case as well as
Mason's pending case related to the Velma Terrace murders and learned Mason was
going to trial shortly after the Morris trial concluded. Juror No. 6 stated she told Juror
No. 5 she should stop and Juror No. 5 responded she probably would. There was no
indication Juror No. 5 shared information about an Internet search with any other jurors.
11
Defense counsel attempted to conduct a similar search and presented the results of his
search in an effort to demonstrate prejudice.4
The trial court denied the motion for new trial. The court found no basis for new
trial based on the alleged Internet search. The court ruled there was no admissible
evidence of what the juror may have seen in her search other than Mason was awaiting
trial and declined to consider the attorney's attempt to recreate the search as speculation.
Even if there was admissible evidence, the juror did not receive new evidence and the
court could not invade the mental process of the juror by speculating about the effect of
the search.
The court ruled there was no likelihood an Internet search about Mason influenced
the verdict on the Guthrie Way charges and noted there was no verdict on the Velma
Terrace charges. The court also ruled the alleged fingerprint reenactment did not provide
a basis for a new trial. The jury had the photographs of the detective's reenactment as
part of the evidence and Juror No. 3's actions did not generate new evidence.
H. Sentence
The court sentenced Morris to consecutive indeterminate terms of 25 years to life
for murder and life with the possibility of parole for attempted murder plus a determinate
term of 20 years, based on 10-year enhancements for personal gun use in both crimes.
(§ 12022.55.) The court also imposed fines and fees, including a restitution fine of
4 Although Juror No. 5 signed a declaration regarding an unrelated issue, she denied
conducting Internet searches related to the Morris case.
12
$10,000. The court awarded actual custody credit of 1557 days for time served but did
not award local conduct credit based on section 2933.2.
DISCUSSION
I
Juror Misconduct Allegations
We independently review the denial of a motion for new trial based on alleged
juror misconduct. (People v. Ault (2004) 33 Cal. 4th 1250, 1261-1262.) "We first
determine whether there was any juror misconduct. Only if we answer that question
affirmatively do we consider whether the conduct was prejudicial. [Citation.] In
determining misconduct, '[w]e accept the trial court's credibility determinations and
findings on questions of historical fact if supported by substantial evidence.' " (People v.
Collins (2010) 49 Cal. 4th 175, 242 (Collins).) Where the facts are essentially undisputed,
we independently review the legal question of "whether those facts constitute
misconduct." (Ibid.)
A. Juror Fingerprint Analysis
Morris contends Juror No. 3 committed misconduct by using her own vehicle to
place her hand in positions consistent with the photographs of Morris's fingerprints. He
argues this was an out of court experiment resulting in new evidence because her vehicle
was most likely dissimilar to the vehicle involved in the shooting and she did not have
precise details about the position of the seats in the car, the measurements of the door
height or how many inches the window was down. We are not persuaded.
13
1
Jurors are not permitted to conduct their own investigation outside the courtroom.
(People v. Conkling (1896) 111 Cal. 616, 628.) However, " '[n]ot every experiment
constitutes jury misconduct. "[J]urors must be given enough latitude in their
deliberations to permit them to use common experiences and illustrations in reaching
their verdicts." ' " (People v. Bogle (1995) 41 Cal. App. 4th 770, 778 (Bogle).) Jurors may
use an exhibit " 'according to its nature to aid them in weighing the evidence which has
been given and in reaching a conclusion upon a controverted matter.' " (Collins, supra,
49 Cal.4th at p. 243, quoting Higgins v. L.A. Gas & Electric Co. (1911) 159 Cal. 651,
656.)
In Collins, supra, 49 Cal.4th at pages 243 through 247, the Supreme Court
analyzed a number of cases involving appropriate jury examination. One such case was
Taylor v. Commonwealth (1893) 90 Va. 109 [17 S.E. 812] in which a murder defendant
introduced his rifle and four empty shells fired from it to show evidence presented by the
prosecution of expended cartridges from such a rifle could not have come from his rifle.
During deliberations, the jury disassembled the rifle and, after examining the firing pin,
determined it had been tampered with. The Supreme Court concluded the jury's
examination of the gun was proper. "The jury examined the rifle to weigh the evidence
that had been given. The question of whether defendant's rifle had fired the shells
recovered at the scene was squarely raised. Their examination of the gun did not invade
a new field and fairly fell within the scope and purview of the evidence received."
(Collins, at p. 244.)
14
The court in Collins, supra, 49 Cal. 4th 175 also described Bogle, supra,
41 Cal. App. 4th 770, as an example of proper jury experimentation. In Bogle, the trial
court found the jury's use of two exhibits, the defendant's set of keys and the murder
victims' safe, was not a prohibited jury experiment. The trial court compared that
situation "to one in which a jury is given a picture and sees something in the picture that
adds insight into the case but was not pointed out during testimony." (Bogle, at p. 778.)
Since the set of keys and the safe were introduced into evidence, "the jury was entitled to
determine, from the evidence it was given, the character and extent of the defendant's
relationship to the safe. Trying the keys on the safe was an exercise in that pursuit, not a
foray into a new field." (Id. at p. 780.) A jury can reexamine "the evidence in a slightly
different context" than was presented at trial, to assist it in reaching a verdict. (Id. at
p. 781.)
Similarly, there was no misconduct in a case where a jury reenacted testimony and
a demonstration about how police officers observed the defendant toss a shiny object
onto a lawn about 15 feet away, where a bag of heroin was recovered. " 'The jurors
simply repeated the officer's reenactment. Nothing requires that the jury's deliberations
be entirely verbal, and we would expect a conscientious jury to closely examine the
testimony of the witnesses, no less so when that testimony takes the form of a physical
act.' " (Collins, supra, 49 Cal.4th at p. 245, quoting People v. Cooper (1979) 95
Cal. App. 3d 844, 854.)
After comparing cases involving appropriate jury investigation to those where jury
examination was inappropriate, the Collins court distilled several principles: "Not every
15
jury experiment constitutes misconduct. Improper experiments are those that allow the
jury to discover new evidence by delving into areas not examined during trial. The
distinction between proper and improper jury conduct turns on this difference. The jury
may weigh and evaluate the evidence it has received. It is entitled to scrutinize that
evidence, subjecting it to careful consideration by testing all reasonable inferences. It
may reexamine the evidence in a slightly different context as long as that evaluation is
within the ' "scope and purview of the evidence." ' " (Collins, supra, 49 Cal.4th at
p. 249.)
Applying these principles, the Collins court determined the jurors' use of a string,
a protractor and a juror assuming various positions to reconstruct and demonstrate bullet
trajectory did not go beyond the record in evaluating the evidence presented at trial.
(Collins, supra, 49 Cal.4th at pp. 250-252.) "Their evaluation critically considered the
evidence presented. It did not invade a new field." (Id. at p. 252.)
Additionally, the Collins court concluded a juror's use of his home computer to
diagram the bullet trajectory based on his recollection of the evidence was not
misconduct. This was "simply his permissible thinking about the evidence received, and
was not an experiment resulting in the acquisition of any new facts." (Collins, supra,
49 Cal.4th at p. 252.) "He drew the diagram to test his own view of the evidence, which
allowed him to argue his position to the jury. Making the diagram did not exceed the
boundaries of proper conduct." (Id. at p. 255.) Nor was it impermissible for the juror to
analyze the evidence outside the presence of other jurors because a juror is "not limited to
thinking about the case in the deliberation room." (Id. at p. 253.)
16
In People v. Engstrom (2011) 201 Cal. App. 4th 174, 188 the Court of Appeal
followed Collins, supra, 49 Cal. 4th 175 and concluded it was not misconduct for jurors to
revise a factor in a defense expert's formula to determine a defendant's marijuana garden
yield and to recalculate the potential yield based on that revision. The court concluded
the jurors undertook a reasonable interpretation of the formula and applied the evidence
admitted at trial to recalculate the yield. This was not juror misconduct "so long, as here,
no extrinsic evidence came into play." (People v. Engstrom, supra, at p. 188)
2
Here, Juror No. 3's placement of her hands on her car based on her recollection of
the fingerprint and photographic evidence did not go beyond the scope and purview of
the evidence. The evidence included testimony and numerous photographs illustrating
where Morris's fingerprints were found on the vehicle along with photographs of a
detective demonstrating various hand positions consistent with where the prints were
found. The People presented testimony about how the print cards were placed on the
vehicle in the location from which the prints were collected and how the detective placed
his hands to match the prints from various positions. The detective was able to match his
left hand to the prints on the passenger window from the front passenger's seat in a
comfortable, relaxed position. However, he could not match the prints as comfortably
when attempting to do so by standing outside the car, either with the door open or closed.
Juror No. 3 repeated the detective's photo demonstration as a permissible critical
analysis of the evidence. Her conduct was part of her individual contemplation of the
evidence after the matter was submitted to the jury. (Collins, supra, 49 Cal.4th at p. 256.)
17
The facts here are distinguishable from those in People v. Conkling (1896) 111
Cal. 616, 627 (Conkling), where a critical issue involved the distance between the
defendant and the deceased victim and the victim's clothes showed no powder burns. The
jurors in that case fired a similar rifle to determine "at what distance powder marks would
be carried by the fire." (Ibid.) The court held the juror's desire to get to the truth of the
matter was too zealous because jurors are required to decide the case based upon the
evidence introduced at trial. (Id. at p. 628.) Similarly, misconduct was found in People
v. Castro (1986) 184 Cal. App. 3d 849, 854 (Castro), where a juror used binoculars to see
if a correctional officer could identify an inmate as participating in arson 50 to 100 yards
away using binoculars because the experiment enabled the juror to receive evidence
outside the presence and knowledge of the defendant. The Collins court distinguished
both of these cases as creating "extraneous evidence not admitted at trial." (Collins,
supra, 49 Cal.4th at p. 256.)
Finally, the facts here are distinguishable from People v. Vigil (2011) 191
Cal. App. 4th 1474, 1486 (Vigil), where a juror "crossed the line into misconduct" by
conducting an experiment outside the courtroom to determine if the driver of a vehicle
knew in advance another defendant was going to commit a drive-by shooting. The juror
used a broomstick to simulate a rifle and did not take into account certain variables in
evidence such as the interior of the car, the height and weight of the driver or the shooter.
He assumed, without evidentiary support, the shooter was right-handed and had to roll
down the window of the vehicle before shooting. The juror then reported his experiment
to the other jurors. (Ibid.) The appellate court found this scenario more similar to the
18
facts of Conkling, supra, 111 Cal. 616 and Castro, supra, 184 Cal. App. 3d 849 than to
cases "that merely involve careful examination of exhibits or conducting a test or
demonstration that did not stray beyond the admitted evidence." (Vigil, supra, at
p. 1486.) The court noted the jury could have used the actual rifle admitted into evidence
to reenact the shooting for purposes of debate, but it did not. Instead, the juror's
"homemade experiment produced new evidence ' "without the knowledge of either party,
evidence which it is not possible for the party injured to meet, answer, or explain." ' "
(Id. at p. 1487.)
In this case, Juror No. 3's replication of the detective's fingerprint demonstration
falls within the line of cases permitting careful examination of the evidence presented at
trial. It did not produce extraneous evidence and did not constitute misconduct.
B. Internet Search
1
Jurors are not permitted to conduct independent research, including electronic or
Internet research, on any subject connected with the trial. (§ 1122, subd. (a)(1)-(2);
People v. Hamlin (2009) 170 Cal. App. 4th 1412, 1466.) " '[W]here a verdict is attacked
for juror taint, the focus is on whether there is any overt event or circumstance . . . which
suggests a likelihood that one or more members of the jury were influenced by improper
bias.' [Citation.] A juror who 'consciously receives outside information . . . or shares
improper information with other jurors' commits misconduct. [Citation.] Jury
misconduct 'raises a rebuttable "presumption" of prejudice.' " (People v. Tafoya (2007)
42 Cal. 4th 147, 192 (Tafoya).)
19
"We assess prejudice by a review of the entire record. 'The verdict will be set
aside only if there appears a substantial likelihood of juror bias. Such bias can appear in
two different ways. First, we will find bias if the extraneous material, judged objectively,
is inherently and substantially likely to have influenced the juror. [Citations.] Second,
we look to the nature of the misconduct and the surrounding circumstances to determine
whether it is substantially likely the juror was actually biased against the defendant.
[Citation.] The judgment must be set aside if the court finds prejudice under either test.' "
(Tafoya, supra, 42 Cal.4th at p. 192.)
However, before we set aside a unanimous verdict, we must determine the
likelihood of bias is substantial. " '[T]he criminal justice system must not be rendered
impotent in quest of an ever-elusive perfection. The jury system is fundamentally
human, which is both a strength and a weakness.' " (People v. Danks (2004) 32 Cal. 4th
269, 304.)
"In an extraneous-information case, the 'entire record' logically bearing on a
circumstantial finding of likely bias includes the nature of the juror's conduct, the
circumstances under which the information was obtained, the instructions the jury
received, the nature of the evidence and issues at trial, and the strength of the evidence
against the defendant." (In re Carpenter (1995) 9 Cal. 4th 634, 654.) "In general, when
the evidence of guilt is overwhelming, the risk that exposure to extraneous information
will prejudicially influence a juror is minimized." (Tafoya, supra, 42 Cal.4th at p. 192.)
Further, "[a]n admonition by the trial court may also dispel the presumption of prejudice
arising from any misconduct." (Tafoya, at pp. 192-193.)
20
2
In this case, based on the entire record, we conclude there is no substantial
likelihood of bias. Presuming Juror No. 5 conducted an Internet search as reported, the
only evidence of what she learned was from another juror's statement who said Juror
No. 5 reported Mason would go to trial for the Velma Terrace murders shortly after the
Morris trial concluded.5 Mason was identified during the trial as a suspect in the Velma
Terrace murders and at least one photograph of Mason was admitted during the Morris
trial. Evidence regarding Mason's DNA being found at Velma Terrace was also before
the jury. However, the court instructed the jury they were not to speculate about whether
other defendants would be tried. Therefore, information about Mason going to trial was
not inherently and substantially likely to have influenced the juror as to Morris.
The record shows the jury reached a unanimous verdict against Morris on the
Guthrie Way charges fairly quickly, but did not reach a verdict against Morris on the
Velma Terrace charges. Thus, there is no indication information about Mason facing
charges related to Velma Terrace had a substantial impact on the juror in question or the
jury's deliberation regarding Morris's conviction for the Guthrie Way shootings.
Therefore, we conclude there was no substantial likelihood of actual bias.
5 Evidence Code section 1150 prohibits our consideration of evidence "to show the
effect of" conduct outside the jury room "upon a juror either in influencing him to assent
to or dissent from the verdict or concerning the mental processes by which it was
determined."
21
C. Denial of Evidentiary Hearing
Morris contends the trial court abused its discretion in denying an evidentiary
hearing on the issue of juror misconduct. Morris contends two jurors engaged in "highly
questionable conduct" and the court should have inquired "into the extent and precise
nature of the behavior cited in the new trial motion." We disagree.
"The trial court has discretion to determine whether to conduct an evidentiary
hearing to resolve factual disputes raised by a claim of juror misconduct. [Citation.]
'Defendant is not, however, entitled to an evidentiary hearing as a matter of right. Such a
hearing should be held only when the court concludes an evidentiary hearing is
"necessary to resolve material, disputed issues of fact." [Citation.] "The
hearing . . . should be held only when the defense has come forward with evidence
demonstrating a strong possibility that prejudicial misconduct has occurred. Even upon
such a showing, an evidentiary hearing will generally be unnecessary unless the parties'
evidence presents a material conflict that can only be resolved at such a hearing." '
[Citation.] The trial court's decision whether to conduct an evidentiary hearing on the
issue of juror misconduct will be reversed only if the defendant can demonstrate an abuse
of discretion." (People v. Dykes (2009) 46 Cal. 4th 731, 809-810.)
Here, Morris presented declarations from two jurors and an attorney and an
investigator about statements made by two other jurors, all of which were based on
hearsay. "[O]rdinarily a trial court does not abuse its discretion in declining to conduct
an evidentiary hearing on the issue of juror misconduct when the evidence proffered in
support constitutes hearsay." (People v. Dykes, supra, 46 Cal.4th at p. 810.)
22
The trial court considered the request for a hearing. It was not persuaded to
require jurors who were reluctant to sign declarations to come into court to testify about
their out of court statements and conduct because to do so could compromise the justice
system.
In People v. Cox (1991) 53 Cal. 3d 618, the Supreme Court cautioned against the
use of evidentiary hearings in such instances: "A criminal defendant has neither a
guaranty of posttrial access to jurors nor a right to question them about their guilt or
penalty verdict. . . . [¶] . . . [R]equiring testimony under such circumstances is
tantamount to [a] 'fishing expedition' . . . . Either a juror is willing to come forward and,
at least on a preliminary basis, sign an affidavit or not. Unless the reticence results from
impermissible interference by the court or prosecutor, the reasons therefor should not be
subject to further inquiry." (Id. at pp. 698-699, overruled on another point in People v.
Doolin (2009) 53 Cal. 3d 618, 661-662.) " 'To grant this kind of power to the losing
attorney would open the door to harassment of jurors and . . . ultimately damage the jury
process and the administration of justice.' " (People v. Cox, supra, at p. 699.)
We see no reason to depart from the general rule in this case. Morris did not
present a factual dispute about what misconduct was alleged to have occurred. Although
the juror accused of conducting an Internet search denied doing so in an unsworn
statement, the trial court presumed for purposes of analysis both jurors did what was
reported, but found no prejudicial misconduct. Under these circumstances, we conclude
the trial court acted within its discretion in deciding the motion for new trial without
holding an evidentiary hearing. (People v. Davis (2009) 46 Cal. 4th 539, 625.)
23
II
Evidentiary Rulings
Morris contends the trial court abused its discretion and deprived him of a fair trial
when it admitted evidence of his 1996 flight from law enforcement arguing the evidence
was not probative for consciousness of guilt, did not demonstrate a common plan or
scheme under Evidence Code section 1101, subdivision (b), and was more prejudicial
than probative under Evidence Code section 352. Morris also contends the court abused
its discretion in excluding evidence of other police contacts after 1996 where he did not
flee.
"We review claims regarding a trial court's ruling on admissibility of evidence for
abuse of discretion. [Citations.] Specifically, we will not disturb the trial court's ruling
'except on a showing the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v.
Goldsmith (2014) 59 Cal. 4th 258, 266.) Applying this standard, we conclude the court
did not err either in admitting evidence of the 1996 flight or in excluding evidence of
subsequent police encounters where Morris did not flee.
A. No Abuse of Discretion In Admitting The 1996 Flight Evidence
All relevant evidence is admissible, except as otherwise provided by law. (Evid.
Code, § 351.) Relevant evidence is evidence "having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action."
(Evid. Code, § 210.) The court has discretion to exclude relevant evidence "if its
probative value is substantially outweighed by the probability that its admission
24
will . . . create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury." (Evid. Code, § 352, subd. (b).)
In People v. Mason (1991) 52 Cal. 3d 909 the Supreme Court held the trial court
did not abuse its discretion in admitting evidence the defendant led sheriff deputies on a
high-speed automobile chase four weeks after a murder to show consciousness of guilt.
(Id. at pp. 924, 941-942.) "Common sense . . . suggests that a guilty person does not lose
the desire to avoid apprehension for offenses as grave as multiple murders after only a
few weeks. Nor do our decisions create inflexible rules about the required proximity
between crime and flight. Instead, the facts of each case determine whether it is
reasonable to infer that flight shows consciousness of guilt." (Id. at p. 941.) The
Supreme Court rejected the defendant's argument the admission of the evidence was
prejudicial because it required him to admit uncharged crimes to explain the flight. The
court stated, "the existence of other crimes which may explain the defendant's flight goes
to the weight, not to the admissibility, of evidence." (Id. at p. 942.)
Here, weeks after the Guthrie Way drive-by shooting, Morris was seen running out
of an alley near where gunshots were fired. After initially stopping for police, he pulled
away from an officer attempting to detain him and led officers on a foot chase followed
by a high-speed vehicle chase in which Morris's car became airborne and crashed into a
pole. When the vehicle came to rest, Morris again attempted to run until he was
apprehended by officers.
This was circumstantial evidence for the jury to consider along with other
evidence connecting Morris to the Guthrie Way shootings. The jury could consider
25
evidence of this extensive chase along with more direct evidence such as Morris's
fingerprints on the vehicle used in the Guthrie Way shootings, his denial of knowledge of
the vehicle in spite of the fingerprint evidence, Morris's admitted affiliation with the
Lincoln Park gang and the violent rivalry between the Lincoln Park gang and the Skyline
gang (whose territory encompassed Guthrie Way). A reasonable inference from the
totality of the evidence is Morris fled based on consciousness of guilt related to the
Guthrie Way shootings, which had occurred only weeks before.
That does not have to be the only inference to permit admission of the evidence.
The defense argued alternative reasons why Morris could have run, such as because he
was on parole with CYA conditions or because he was near the scene of an incident
involving substantial gunfire and wanted to avoid detention for a parole violation or for
the immediate shooting incident. However, other possible motives for fleeing, either
separately or in combination, go to the weight, not the admissibility, of the evidence.
Although " 'evidence [of flight] does not specifically and directly evidence consciousness
of guilt of the [charged crime] . . . any more than it evidences consciousness of guilt of
[the uncharged offenses],' nevertheless '[i]t [is] for the jury to determine the weight, if
any, against defendants of such evidence.' " (People v. Mason, supra, 52 Cal.3d at
p. 942.)
The evidence of the January 1996 flight was not more prejudicial than probative.
The court did not allow extensive testimony about the incident and, at the request of
defense counsel, precluded evidence the officer who chased Morris was seriously injured
after falling off an embankment during the pursuit. The testimony from the two officers
26
regarding the 1996 flight incident took less than 45 minutes out of a trial lasting more
than a month.
The prosecution did not emphasize the flight evidence or use it to "dirty" Morris as
Morris argues. Evidence the flight from police occurred near a shooting incident did not
come out until cross-examination. After the officers testified about the flight, based on
agreement of counsel, the court instructed the jury regarding the limited purpose of the
evidence pursuant to CALCRIM No. 303 and gave a modified CALCRIM No. 372
instruction regarding consciousness of guilt. With respect to consciousness of guilt, the
court stated: "[I]f you find that in fact Mr. Morris fled the scene of the 13 January '96
incident or incidents that we've heard about here, . . . you maykey word there is
'may'find that that conduct on his part shows that he was aware of his guilt of the
Guthrie crimes. The key word there is 'may.' Because if you find that he fled from that
January situation, . . . you have to decide the significance of that evidence in terms of the
Guthrie incident. [¶] And . . . you may or may not find that that shows some
consciousness of guilt on his part. That's entirely for you to decide. That's a question of
fact and you [are] the judges of the fact. [¶] However, evidence that he did flee from the
January incident . . . certainly cannot by itself prove guilt of the Guthrie incident." The
prosecution did not argue the flight as evidence of consciousness of guilt until rebuttal
argument, after defense counsel raised the issue.
Under these circumstances, we cannot conclude the trial court abused its discretion
or deprived Morris of his constitutional due process rights by admitting evidence
regarding the 1996 flight as evidence relevant to consciousness of guilt or in determining
27
the evidence was more probative than prejudicial under Evidence Code section 352,
subdivision (b). Given our conclusion, we do not reach the issue of whether the evidence
was admissible under Evidence Code section 1101, subdivision (b), as evidence of a
common plan.
B. No Abuse of Discretion in Excluding Subsequent Police Contact Evidence
Morris sought to introduce evidence of more than 30 police contacts with Morris
between October 1997 and February 2008 asserting he did not run during these contacts.
Morris contends on appeal this information was necessary to rebut the inference
consciousness of guilt caused Morris to flee during the 1996 contact as opposed to other
explanations for his flight, such as because he was on parole. We are not persuaded and
conclude the trial court did not abuse its discretion in excluding evidence of subsequent
police contacts with Morris, which occurred years after the Guthrie Way shooting.
Our high court has consistently held "evidence that the defendant did not flee from
a crime scene is inadmissible to show consciousness of innocence, even though such
evidence has 'some "tendency in reason" to prove this fact.' " (People v. Cowan (2010)
50 Cal. 4th 401, 472 (Cowan).) As the Supreme Court explained, "inferences arising from
evidence of the absence of flight are ambiguous because 'there are plausible reasons why
a guilty person might also refrain from flight,' such as fear of recapture or confidence that
flight will be unnecessary because there is no strong proof of guilt. [Citations.]
Moreover, such evidence also creates a 'substantial danger "of confusing the issues, or of
misleading the jury." ' [Citations.] Because 'the absence of flight is so ambiguous, [and]
so laden with conflicting interpretations . . . in all cases the scales tip so heavily against
28
admission of evidence of absence of flight that it must be excluded as a matter of law.' "
(Id. at pp. 472-473.) The Cowan court applied the same reasoning to a defendant's offer
to speak to the police. The court observed there are many reasons a guilty person might
cooperate with police, the defendant "may desire to appear innocent, or he may desire to
lie to the police to deflect suspicion from himself or to present a false alibi." (Id. at
p. 473.) The slight probative value of such evidence is outweighed by the strong risk of
confusing the issues or prolonging the trial by requiring the prosecution to explain the
circumstances of the offer and to present evidence negating an inference of innocence.
(Ibid.)
The Cowan court rejected an argument this rule offends notions of due process
and fairness because it treats consciousness of guilt and consciousness of innocence
evidence disparately. Since a defendant is entitled to explain any evidence of prearrest
lack of cooperation, the court perceived no unfairness in refusing to allow a defendant to
present evidence of instances of cooperation with police. (Cowan, supra, 50 Cal.4th at
p. 474.) In so holding, the court noted " '[s]ince flight and the absence of flight are not on
similar logical or legal footings, the due process notions of fairness and parity . . . are
inapplicable.' " (Ibid., quoting People v. Williams (1997) 55 Cal. App. 4th 648, 653.)
Although recognizing this general rule prohibiting evidence of lack of flight,
Morris argues evidence of his subsequent police encounters and his failure to flee in those
instances should have been admitted, not as evidence of consciousness of innocence, but
to rebut an inference of consciousness of guilt based on the 1996 flight. Morris
analogizes this to sexual offense cases where a defendant may present evidence of
29
specific instances of good conduct to rebut prosecution evidence of prior uncharged sex
offenses under Evidence Code section 1108 to show a propensity to commit sex offenses.
(People v. Callahan (1999) 74 Cal. App. 4th 356, 378, 379 (Callahan).)
The analogy is inapt. Evidence Code section 1108 itself is an exception to the
general rule prohibiting character evidence in the form of specific acts. (Evid. Code,
§ 1101; Callahan, supra, 74 Cal.App.4th at p. 367.) In enacting Evidence Code section
1108, " 'the Legislature "declared that the willingness to commit a sexual offense is not
common to most individuals; thus, evidence of any prior sexual offenses is particularly
probative and necessary for determining the credibility of the witness." ' " (Callahan, at
p. 367.) In those instances, where the prosecution presents evidence of other sexual
offenses to place in issue a character trait of the defendant, i.e. a propensity to commit
sexual offenses, courts have permitted a defendant to rebut this character evidence by
introducing "any or all of the three types of character evidence—opinion evidence,
reputation evidence, and evidence of specific incidents of conduct." (Id. at pp. 378-379.)
The prosecution in this case did not introduce evidence of the 1996 flight as
character evidence of Morris's propensity to run or not to run. It introduced evidence of
the 1996 police encounter and the flight as evidence having some tendency to prove he
fled on that one occasion based on consciousness of guilt related to the Guthrie Way
shooting, which occurred just weeks before. When defense counsel asked for "leeway" to
rebut the consciousness of guilt inference from the 1996 flight, the court stated, "[t]he
leeway you have . . . is to show the other reasonable explanations of why he ran; that he
30
was on juvenile parole and that, ah, he just inadvertently got injust happened to be in
the wrong place at the wrong time."
This complies with the well-established law and we see no reason to depart from
the general rule in this case. Given the minimal probative value of evidence of police
encounters two to 12 years after the Guthrie Way shootings and the likelihood the
introduction of such evidence would confuse the issues and prolong an already lengthy
trial, we conclude the trial court properly excluded the evidence. (People v.
Cowan, supra, 50 Cal.4th at p. 473.)6
III
Jury Instructions
Morris asserts two instructional errors. First, Morris contends the instructions for
murder and attempted murder confused the jury regarding the necessary mental state for
attempted murder. Second, he contends the instructions regarding consciousness of guilt
based on either suppression of evidence or flight (CALCRIM Nos. 371-372) violate due
process because they embody an unreasonable permissive inference.
6 We note the trial court precluded the People from putting on evidence regarding a
February 2008 incident in the South Bay courthouse, which they contended suggested
consciousness of guilt. Detectives, who had received information about a possible DNA
match with Morris related to the Velma Terrace incident, attempted to talk to Morris as
he left a courtroom after an appearance in an unrelated criminal proceeding. Morris
informed the officers he did not want to talk to them, went down an escalator quickly and
essentially jogged out of the courthouse. The court ruled this evidence was not
admissible under Evidence Code section 352 because the probative value was very slight.
This is one of the incidents Morris sought to introduce as evidence of lack of flight. If
the court had allowed evidence of these subsequent contacts, it is very likely substantial
time would have been necessary for both sides to explain the events and it would have
confused the issues for the jury.
31
"When considering a claim of instructional error, we view the challenged
instruction in the context of the instructions as a whole and the trial record to determine
whether there is a reasonable likelihood the jury applied the instruction in an
impermissible manner." (People v. Houston (2012) 54 Cal. 4th 1186, 1229.)
A. Murder and Attempted Murder Instructions
The " 'mental state required for attempted murder has long differed from that
required for murder itself. Murder does not require the intent to kill. Implied malice—a
conscious disregard for life—suffices. [Citation.]' [Citation.] In contrast, '[a]ttempted
murder requires the specific intent to kill and the commission of a direct but ineffectual
act toward accomplishing the intended killing.' " (People v. Smith (2005) 37 Cal. 4th 733,
739.)
Morris concedes the court's use of pattern instructions for murder (CALCRIM No.
520) and for attempted murder (CALCRIM No. 600) correctly set forth the elements of
the respective crimes. However, he argues the instructions were inconsistent when read
in combination and were likely to confuse the jurors as to the mental state necessary for
attempted murder. We disagree.
In People v. Beck (2005) 126 Cal. App. 4th 518, 522, an attempted murder case, the
court gave the pattern jury instruction for attempted murder, which the appellate court
determined expressed with "sufficient clarity the requirement that attempted murder
requires the specific intent to kill." However, immediately after the attempted murder
instruction, the court gave an instruction introducing the concept of implied malice and
informing the jury "either express or implied malice would 'establish the mental state of
32
malice aforethought.' " (Id. at p. 523.) The prosecutor complicated the problem by
arguing implied malice was sufficient to find attempted murder. (Id. at pp. 523, 525.)
The appellate court concluded the instructional error was not harmless and reversed.
(Id. at p. 525.)
In this case, the court gave the pattern jury instructions for murder (CALCRIM
Nos. 520-521) with respect to three counts of murder, including the count regarding the
murder of Villarreal. It also gave the pattern jury instruction for the attempted murder of
Theobalds (CALCRIM No. 600.) Reading the instructions as a whole, along with oral
clarifications by the court, we conclude there was no error or a reasonable likelihood the
jury misapplied the instructions.
As to murder, the court instructed as follows: "To prove a person guilty of the
crime of murder, the People must prove that: [¶] [t]he accused committed an act that
caused the death of another person; and, [¶] [w]hen he acted, he had a state of mind
which the law defines as malice aforethought. [¶] So the basic, generic, fundamental
definition of murder is the unlawful killing of one human being by another with malice
aforethought.
"There are two kinds of malice aforethought: Express malice and implied malice.
And proof of either one is sufficient to establish the essential element of traditional or
basic murder, killing of one human being by another with malice aforethought. [¶] An
accused acts with express malice if he unlawfully intended to kill another human being.
So that's the specific intent to kill another human being."
33
Before discussing implied malice, the court reiterated the difference between
express and implied malice saying: "Again, express malice, the intent to kill." (Italics
added.)
The court then defined implied malice, "you intentionally commit an act—you
willfully, purposely, knowingly; not unintentionally or inadvertently—commit an act that
the natural and probable consequences of that act were dangerous to human life; [¶] [a]t
the time you acted, you knew of that danger to human life. You knew that that was an act
which was dangerous to human life. [¶] So you intentionally do the act. The act itself is
dangerous to human life. [¶] And you knew, you appreciated, you understood that the
act was dangerous to human life and you deliberately committed the act . . . with
conscious disregard for that human life and that danger to that human life.
"If all those elements are proved beyond a reasonable doubt, then you are said to
have acted with implied malice as opposed to express malice. [¶] And eithereither
form satisfies the requirement of malice aforethought as the basic, generic definition of
murder."
After giving the general definition of murder, the court explained murder in the
second degree does not require premeditation, whereas murder in the first degree does.
After explaining the prosecution would be asking the jury to find first degree murder for
count 1 regarding Villarreal and for the murder counts related to Velma Terrace, the court
gave the pattern first degree murder instruction (CALCRIM No. 521), which identifies
three theories under which murder in the first degree may be found. In addition to
generic premeditation, the court explained murder by shooting a firearm from a motor
34
vehicle might apply to Guthrie Way to elevate a murder to first degree and the felony
murder rule might apply to elevate the Velma Terrace murder charges to first degree.
Expanding on the pattern instruction for first degree murder, the court explained
premeditation. "[L]et's look then at what I just referred to a moment ago of murder in the
first degree on sort of a traditional or basic, generic definition. And that's adding to the
unlawful killing with malice aforethought deliberation and premeditation. So, by
definition, for that murder, the first degree, we're dealing with express malice. There has
to be an intent to kill. And that intent has to be the result of premeditation and
deliberation. [¶] So for murderfinding of guilty of murder under the first degree,
under that theory, the People must prove to you beyond a reasonable doubt that [Morris]
acted willfully, deliberately and with premeditation. [¶] He acted willfully if he intended
to kill. So that's the express malice." (Italics added.)
The court explained the elements for discharge from a vehicle includes "[f]irst,
that he in fact shot a firearm from a motor vehicle; [¶] [t]hat he intentionally shot at a
person who was outside the vehicle; and, lastly, [¶] [t]hat he intended to kill that person."
(Italics added.) The court then gave the felony murder instruction regarding the Velma
Terrace counts.
The court next gave the pattern jury instruction for attempted murder (CALCRIM
No. 600) for count 2, attempted murder regarding Theobalds: "Attempted murder.
We've already talked about murder. And under our law, an attempt to commit
a . . . crime is itself a crime. [¶] To prove guilt of attempted murder as alleged in Count
2, the People must proveagain, beyond a reasonable doubt. That's the constant, that's
35
always the burden, beyond a reasonable doubtthat: [¶] [Morris] took at least one direct
but ineffective step towards the killing of another person; and, [¶] [t]hat he intended to
kill that person. [¶] A direct step requires more than merely planning or preparing to
commit a crime—in this case, murder—or even obtaining or arranging for something
needed to commit the murder. [¶] So a direct step is something that goes beyond
planning or preparation and shows that the person is actually putting his plan into action.
[¶] A direct step indicates a definite and unambiguous intent to kill. It's a direct
movement towards the commission of the crime after preparations are made. It's an
immediate step that puts the plan in motion so that the plan would have been completed
in some circumstances outside the plan and not interrupted the attempt." (Italics added.)
In contrast to Beck, supra, 126 Cal. App. 4th 518 the prosecutor's closing argument
in this case explained, "for attempted murder, although we have it here, there isn't an
implied malice type of thing. You have to have the intent to kill for attempt murder. And
you have to take a step toward killing." (Italics added.)
The court clarified several times the difference between express and implied
malice and noted if they found Morris acted willfully, deliberately and with
premeditation, they would find express malice. The court's differentiation regarding the
counts and victims for murder and attempted murder, as well as the separation between
the general murder instruction and the attempted murder instruction sufficiently avoided
possible confusion. In addition, the prosecutor's argument emphasized an express intent
to kill is necessary for attempted murder.
36
The jury found Morris guilty of the first degree murder of Villarreal, meaning
under either the theory of willfulness and premeditation or the theory of discharge of a
firearm, the jury found an intent to kill, i.e. express malice. The jury also found Morris
guilty of the attempted murder of Theobalds and that the attempted murder was "willful,
deliberate and premeditated." Therefore, as defined, the jury found express malice for
the attempted murder of Theobalds.
Considering the entire record and reading the instructions as a whole, we see no
reasonable likelihood the jury could have been confused over the requirements for the
mental state necessary to prove attempted murder. Nor is there any indication the jury
was confused or applied the instructions in an impermissible manner.
B. CALCRIM Nos. 371 and 372
Morris also contends the court's use of CALCRIM No. 371 (suppression or
fabrication of evidence as consciousness of guilt) and CALCRIM No. 372 (flight
instruction) allowed the jury to make an irrational permissive inference of guilt and
lowered the prosecution's burden in violation of due process. We are not persuaded.
In People v. Mendoza (2000) 24 Cal. 4th 130 (Mendoza), the Supreme Court
rejected a similar challenge to the predecessor flight instruction (CALJIC No. 2.52) in
which the defendant argued the instruction created an unconstitutional permissive
inference. (Mendoza, supra, at p. 179.) Observing there must be "a relationship between
the permissively inferred fact and the proven fact on which it depends" to conform with
the due process requirements of the federal Constitution (U.S. Const., 5th & 14th
Amends.), the court stated a permissive inference still requires the prosecution "to
37
convince the jury that the suggested conclusion should be inferred based on the predicate
facts proved." (Mendoza, at p. 180.) " 'A permissive inference violates the Due Process
Clause only if the suggested conclusion is not one that reason and common sense justify
in light of the proven facts before the jury.' " (Ibid.)
Applying this standard, the Mendoza court held the predecessor flight instruction
did not violate due process because it permits "a jury to infer, if it so chooses, that the
flight of a defendant immediately after the commission of a crime indicates a
consciousness of guilt." (Mendoza, supra, at p. 180, italics added.) "The instruction
informs the jury that it may consider flight in connection with all other proven facts,
giving the fact of flight the weight the jury deems appropriate." (Id. at pp. 180-181.)
Morris argues the phrase "aware of his guilt," used in the CALCRIM instruction
Nos. 371 and 372, equates suppression of evidence or flight with guilt rather than
suggesting "a mere consciousness of guilt," as described by the Supreme Court in
Mendoza.7 Morris argues a person "could have a vague, generalized consciousness of
guilt, akin to a guilty conscience, without having a specific awareness of his guilt in a
particular matter" whereas the phrase " 'aware of his guilt' leaves no room for a
conclusion that the defendant was not guilty." We do not agree.
The appellate court in People v. Hernandez Rios (2007) 151 Cal. App. 4th 1154,
1159 (Hernandez Rios) relied on Mendoza, supra, 24 Cal. 4th 130 to reject an identical
argument with respect to CALCRIM No. 372. After analyzing the definitions of
7 The phrase "consciousness of guilt" does not appear in CALJIC No. 2.52, but
comes from Mendoza. (See Mendoza, supra, 24 Cal.4th at p. 180.)
38
"awareness" and "consciousness," the court concluded they are essentially the same for
constitutional purposes. "[T]he special awareness that Mendoza, [supra, 24 Cal. 4th 130]
allows a jury to infer from a flight instruction is . . . 'consciousness of guilt' . . . ."
(Hernandez Rios, supra, at p. 1159.) Since the inference in the predecessor instruction
passed constitutional muster, so does the inference in CALCRIM 372. (Hernandez Rios,
at p. 1159.) We agree with the reasoning in Hernandez Rios and apply it equally to both
CALCRIM Nos. 371 and 372.
Even if the pattern instructions could be viewed as containing impermissible
inferences, any error was harmless because there was no reasonable likelihood the jury
applied the instructions in an impermissible manner. (People v. Jennings (2010) 50
Cal. 4th 616, 677.) Using pattern instructions CALCRIM No. 371 for suppression of
evidence the court instructed the jury as follows: "If you find—and 'if you find,' of
course, that emphasizes you have to do the fact finding based solely on the evidence—but
if you find that [Morris] tried to hide evidence or discouraged someone from testifying
against him, that conduct may, may show that he was aware of his guilt. [¶] If you
conclude that he made such an attempt, it's up to you to decide the meaning and
importance of that finding, that evidence, your conclusions in that regard. But evidence
of such an attempt cannot by itself prove guilt of the crime or the truth of an allegation.
"If he tried to create false evidence or obtain false testimony, that conduct may
likewise show that he was aware of his guilt. It may. May not. That's a question of fact
for you to decide. But if you conclude that he made such an attempt, again, it's up to you
to decide the meaning and importance of that effort on his part.
39
"But, again, that's not enough to prove guilt or prove the truth of the allegation that
someone other than [Morris] tried to create false evidence, provide false testimony, or
hide or destroy evidence. Again, that conduct may show that he was aware of his guilt;
but, only if he was either present or knew about that conduct, or if not present, authorized
the other person's actions.
"Again, it's up to you to decide the importance and significance of whatever that
evidence might be. But, again, that sort of conduct by itself cannot prove his guilt."
(Italics added.)
Using CALCRIM No. 372, the court instructed regarding defendant's flight as
follows: "If you find that . . . Morris fled immediately after a crime was committed, that
conduct may show that he was aware of his guilt. [¶] Again, if you conclude that he did
flee, it's up to you to decide the meaning and importance of that conduct. Again, that
conduct alone cannot prove his guilt."
The court's slight modifications of the instructions clarified the duty of the jury to
make findings of fact based on the evidence and to decide the significance, or lack
thereof, of any evidence of suppression or flight. In addition, the court gave the pattern
instruction for reasonable doubt informing the jury to consider "all the evidence" when
deciding if the prosecution proved its case beyond a reasonable doubt, meaning the
evidence left them "with an abiding conviction that the charge is true." (CALCRIM
No. 220.) It also instructed the jury, if it could draw two or more reasonable conclusions
from the circumstantial evidence, one pointing to innocence and one pointing to guilt, it
must accept the one pointing to innocence. (CALCRIM No. 224) Taking the instructions
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and the record as a whole, we conclude any error was harmless beyond a reasonable
doubt. (People v. Harris (1994) 9 Cal. 4th 407, 428-429.)
IV
Restitution
Morris contends the trial court's imposition of a $10,000 restitution fine in
accordance with section 1204.4, subdivision (b)(1), violated his Sixth and Fourteenth
Amendment as described in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi)
because the fine is based on facts found by the trial court, rather than facts reflected in a
jury verdict. We do not agree.
In Apprendi, the United States Supreme Court held: "Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt."
(Apprendi, supra, 530 U.S. at p. 490.) "[T]he 'statutory maximum' for Apprendi purposes
is the maximum sentence a judge may impose solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant." (Blakely v. Washington (2004) 542 U.S.
296, 303, italics omitted.) "[T]he rule of Apprendi applies to the imposition of criminal
fines." (S. Union Co. v. United States (2012) 567 U.S. ___ , ___ [132 S. Ct. 2344, 2357,
183 L. Ed. 2d 318].) However, "nothing in [the common law and constitutional history]
suggests that it is impermissible for judges to exercise discretion—taking into
consideration various factors relating both to the offense and offender—in imposing a
judgment within the range prescribed by statute." (Apprendi, at p. 481.)
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As part of sentencing, section 1202.4, subdivision (a)(3), requires the court to
impose a restitution fine on a criminal defendant. For offenses committed before 2012,
the statutory minimum restitution fine was $200 and the maximum was $10,000. (People
v. Kramis (2012) 209 Cal. App. 4th 346, 349, fn. 2 (Kramis).) In Kramis, the Second
District concluded Apprendi, supra, 530 U.S. 466 does not prohibit a court from
exercising its discretion to impose a $10,000 restitution fine because it was within the
statutory range. We agree with the Kramis rationale.
The trial court here imposed a $10,000 restitution fine. Because the court
exercised its discretion within the range authorized by statute on the basis of facts
reflected in the jury's verdict, i.e. defendant's felony conviction, the fine is proper under
Apprendi, supra, 530 U.S. 466 and its progeny. (See Kramis, supra, 209 Cal.App.4th at
p. 351.)
Morris also contends section 1202.4 sets a statutory maximum of $200, unless
additional factual findings are made by the jury regarding the defendant's ability to pay.
We are not persuaded. Section 1202.4 contemplates an exercise of discretion by the
judge regarding factors relating to the offense and the offender in setting a fine within the
prescribed range, as permitted by Apprendi. (See Apprendi, supra, 530 U.S. 466 at
p. 481.) The court may determine the fine by multiplying the minimum fine by number
of years of imprisonment the defendant is ordered to serve and multiplying again by the
number of felony counts of which the defendant is convicted. (§ 1202.4, subd. (b)(2).)
Using this formula, the restitution fine based on Morris's convictions would be
substantially in excess of the $10,000 statutory maximum. Subdivisions (c) and (d) of
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section 1202.4 describe factors the court either may or must take into account in setting a
fine "in excess of the minimum fine." One such factor is the defendant's inability to pay.
Other factors include "the seriousness and gravity of the offense and the circumstances of
its commission," "the extent to which any other person suffered losses [pecuniary or
intangible] as a result of the crime, and the number of victims involved in the crime."
(§ 1202.4, subd. (d).) The court is not required to conduct a separate hearing regarding
the fine and is not required to make express findings as to the factors bearing on the
amount of the fine. (Ibid.)
To read the statute as Morris suggests—as requiring a court to have the jury make
factual findings about the defendant's ability to pay an amount above the statutory
minimum—is incompatible with both the plain language of the statute and prior appellate
authority rejecting the notion Apprendi, supra, 530 U.S. 466 limited the trial court's
discretion to select a fine within the range prescribed by section 1202.4, subdivision
(b)(1). (See Kramis, supra, 209 Cal.App.4th at p. 351.) Accordingly, we conclude the
trial court did not err in exercising its discretion to impose a $10,000 restitution fine
within the confines of the statute.
Finally, we observe section 1202.4, subdivision (d) provides, "defendant shall bear
the burden of demonstrating his or her inability to pay." In this case, there is no
indication Morris raised inability to pay as a factor the court should consider in exercising
its discretion in setting the amount of the fine. As such, even if we could construe the
statute as Morris contends, he did not meet his burden of proof.
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V
Local Conduct Credits
The trial court declined to award conduct credits based on section 2933.2, which
provides that persons convicted of murder shall not accrue any work time credits in state
prison, nor shall they earn any local credits pursuant to section 4019. As the People
concede, the court erred because the statute does not apply to offenses committed prior to
the law's effective date of June 3, 1998. (§ 2933.2, subd. (d); People v Chism (2014) 58
Cal. 4th 1266, 1336, citing People v. Hutchins (2001) 90 Cal. App. 4th 1308, 1317.)
Because Morris committed the Guthrie crimes in December 1995, before the effective
date of the statute, we remand with directions to the trial court to calculate and award
Morris appropriate presentence conduct credits as provided by law. (Hutchins, supra, at
p. 1317.)
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DISPOSITION
We reverse the judgment to the extent it denies appellant presentence conduct
credits pursuant to section 2933.2 and remand for calculation and award of presentence
conduct credit in accordance with the law in effect at the time of the offenses. In all other
respects, the judgment is affirmed.
MCCONNELL, P. J.
WE CONCUR:
HALLER, J.
MCINTYRE, J.
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