Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC055504A
Ruvolo, P. J.
After a jury trial, appellant was convicted of assaulting two police officers; attempting to murder one of them; and possessing methamphetamine for sale. He contends that the trial court erred in: (1) admitting expert testimony regarding gunshot sounds; (2) admitting evidence of appellant’s prior assault on a different police officer; (3) denying a motion for mistrial; (4) refusing to instruct on accident or misfortune; (5) failing to inquire adequately into alleged juror misconduct; (6) denying a pretrial motion for release of exhibits for testing; (7) permitting the prosecution to amend the information, after the discharge of the jury, regarding the details of prior conviction allegations being tried to the court; and (8) treating one of appellant’s prior convictions as a “strike.” We reject all of these contentions, and affirm.
Facts and Procedural background
On May 12, 2003, Officer Brian Huynh of the South San Francisco Police Department saw a car that he believed was exceeding the speed limit. He followed the car to verify that it was speeding, and after a short distance, the driver of the car—appellant—pulled over to the curb and stopped. Appellant and his female passenger both got out of the car, and the woman walked away. Huynh told appellant to get back in the car, and asked for his identification. Appellant told Huynh that his identification was in the back of the car, which was cluttered with various objects, and he gave Huynh the name and birthdate of his stepbrother, Francisco Pena, instead of his own. Appellant testified that he did this because although both men were on parole, appellant was subject to an arrest warrant for a parole violation, but Pena was not. Appellant volunteered to Huynh that he was on parole, which Huynh understood to mean that appellant was under a court order requiring him to submit to being searched on request by any police officer.
Huynh told appellant he was going to give him a warning for speeding. Under local procedure, this required Huynh to fill out a written citation. Appellant, who was being polite and cooperative with Huynh to this point, told Huynh that he was suffering from diarrhea and badly needed to use a restroom. Appellant explained at trial that he did not in fact need to use the restroom, but was trying to get Huynh to give him an opportunity to dispose of the gun he had in his pocket.
Appellant testified that he and his wife, who was the passenger in his car, were moving out of their rented apartment that day, and that he had run across the gun while packing his clothes for the move, and stuck it in his pocket so as not to leave it behind, without even knowing whether or not it was loaded.
Huynh escorted appellant into a nearby restaurant to use the restroom. As he did so, another South San Francisco police officer, Michael Toscano, arrived to back up Huynh, since he had heard over his radio that Huynh had stopped a parolee for a traffic violation. Toscano followed Huynh and appellant into the restaurant.
When the three men arrived at the restroom, Huynh used his foot to stop appellant from closing the restroom door, and stood in the doorway so that he could watch appellant while he was inside. For Huyhn’s benefit, appellant successfully pretended that he had genuinely needed to use the restroom, and he continued to be cooperative with Huynh during the time they were in the restaurant. Appellant testified that Huynh’s insistence on keeping him under observation while in the restroom prevented him from disposing of the gun there.
After the officers and appellant left the restaurant, Toscano went to turn off the engine of Huynh’s police car, at Huynh’s request. While Toscano was about 20 feet away accomplishing this task, appellant asked Huynh to let him go, but Huynh explained he still had to give appellant a citation, and also told him that since he was on parole, Huynh wanted to search him for weapons. According to Huynh, appellant then began to act strangely. Huynh expected him to return to his car, but instead he walked in a different direction. As Toscano was returning from locking Huynh’s car, appellant began backing away from Huynh with his hands up, and then turned and ran. Appellant testified at trial that he ran away in order to try to dispose of the gun where the police would not see him do so, or could not recover it, so that he could avoid getting caught with it in his possession. He knew that if he were caught with a gun, it would mean he would go back to prison.
Huynh chased appellant, and Toscano lost sight of them and ran in another direction to try to cut appellant off. Huynh caught up with appellant and grabbed his shirt, but appellant struck Huynh with his elbow, causing Huynh to let go, and continued running. When Huynh caught up with appellant again, appellant knocked Huynh down, injuring him slightly. By this time, Toscano had arrived in a position from which he could see the two men, and he continued to come closer to them. During the ensuing events, Toscano, Huynh, and appellant moved around, but were always positioned so as to form three points of a triangle.
While Huynh was on the ground, both he and Toscano saw appellant put his hand deep into his pants pocket, which appellant had not done before during their encounter, and Huynh became concerned that appellant was reaching for a weapon. As Huynh pushed himself away, appellant drew out a .380-caliber Beretta pistol and aimed it directly at Huynh from eight to ten feet away.
Huynh and Toscano were both carrying .40-caliber guns of the model issued to all members of their police department. When appellant drew his gun, Huynh quickly got up, drew his own weapon, and ran toward some parked cars so as to put them between him and appellant’s gun. Meanwhile, Toscano stopped running towards the other two men, drew his own gun, and yelled, “Gun. Drop the gun.” Appellant was turning his body so that his gun pointed alternately at Huynh and Toscano. Appellant’s testimony was that he was not aiming at the officers, but was just turning his body because he was looking for an escape route, and needed to know where they were.
Appellant ran in another direction. As appellant was running away, Huynh heard a “pop” sound, but could not tell whether or not it was a gunshot. Toscano testified that he fired his own gun just before appellant ran, because he thought appellant was going to shoot Huynh. Toscano testified at trial that he remembered firing at least one shot at this point, but was “pretty sure” he fired a second shot very close to the first one.
Huynh chased after appellant, and Toscano fired his gun again, which was either the second or third time he fired. Toscano testified that he could not tell whether or not appellant had fired his own gun up to that point; his own first shot was the first one he heard. Both officers continued to chase appellant, and appellant continued to point his gun back at each of them alternately.
When appellant stopped and crouched behind a car with his gun pointed at Huynh, Toscano fired his gun a third time. After this, Toscano heard more than one “pop” sound. The “pops” sounded to Toscano like gunshots, but were not coming from his gun. He did not know who fired them, however. Toscano did not hear any shots after that.
Appellant then ran around a corner. When Huynh rounded the corner, he saw appellant, and told him to drop his gun. Instead, appellant brought his gun up and pointed it at Huynh. Huynh then shot at appellant, wounding him in the arm and side, and causing him to fall to the ground and drop his gun.
After appellant fell, Huynh went over to him, pointed his gun at him, and kicked appellant’s gun out of his reach. The gun was still in one piece when Huynh and Toscano arrived, although it was starting to come apart, but when Huynh kicked it, it broke apart into two pieces. Meanwhile, Toscano put appellant in handcuffs, and the officers summoned medical assistance for appellant’s gunshot wounds.
Huynh testified at trial that he thought he had only fired his own gun once during the incident, but the forensic evidence showed he had actually fired twice. Toscano only remembered firing two or three times, but acknowledged that he had since learned that he had fired as many as four times. In fact, the forensic evidence showed that Toscano had fired four times. Toscano testified that if he fired four times, the fourth shot was fired at about the same time and from about the same location as the third one.
Appellant testified that he did not fire his gun at any time during the encounter. He was unable to explain why a bullet from his gun was found at the scene. Huynh never actually saw appellant fire his gun, and did not actually recall, even right after the incident, whether or not appellant had done so, although he thought he had. He only remembered hearing two shots: the “pop” sound, and the sound of his own gun firing once. Toscano did not see either appellant or Huynh fire their guns. Neither Huynh nor Toscano ever saw appellant do anything that led them to believe appellant was trying to toss away his gun, however.
A surveillance camera at a gas station near the scene recorded appellant’s encounter with Huynh and Toscano. The resulting video was played for the jury at appellant’s trial. The confrontation between appellant and the officers was not visible on the video, but the gunshots were audible.
Edward Normandy, a South San Francisco Police Department officer who served as the department’s armorer and firearms instructor, testified as an expert witness for the prosecution regarding the gunshot sounds heard on the tape. He opined that the audio recording reflected the sound of seven distinct gunshots, of which the first four, and the last two, originated from the .40-caliber weapons used as standard duty weapons by officers of the South San Francisco Police Department.
After appellant’s confrontation with Huynh and Toscano, the police obtained a warrant to search his car. They found two scales, over 100 small plastic bags, a glass pipe of the type used for smoking methamphetamine, and 9.41 grams of methamphetamine – a quantity sufficient to indicate possession for sale.
Appellant was charged by information on January 27, 2004. An amended information was filed on March 29, 2004, charging appellant with six felonies. Counts one and two charged appellant with the attempted murder of Huynh and Toscano, respectively, alleging in each count that appellant knew or should have known that the victim was a peace officer engaged in the performance of his duty, and that in the commission of the crime, appellant personally and intentionally discharged a firearm. (Pen. Code, §§ 187, subd. (a); 664; 664, subd. (f); 12022.53, subd. (c).) Each count was alleged to have constituted a serious felony under section 1192.7, subdivisions (c)(7), (c)(8), (c)(9), (c)(22), and (c)(23).
All further references to statutes are to the Penal Code unless otherwise noted.
Counts three and four charged appellant with assault with a semiautomatic firearm on Officers Huynh and Toscano, respectively, repeating in each count the allegation regarding intentional personal discharge of a firearm, and adding an allegation that appellant used or attempted to use a deadly weapon in the commission of the offense. (§§ 245, subd. (d)(2); 1203, subd. (e)(2); 12022.53, subd. (c).) Each count was alleged to have constituted a serious felony under section 1192.7, subdivisions (c)(8), (c)(11), (c)(23), and (c)(31).
Count five charged appellant with possession of a semi-automatic pistol after having been convicted of various specified enumerated felonies. (§ 12021.1, subd. (a).) Count six charged appellant with possession of methamphetamine for purpose of sale, and also alleged that he was personally armed with a firearm in the commission of the offense, and had been previously convicted of various enumerated felonies. (Health & Saf. Code, § 11378; §§ 1203, subd. (e)(4); 12022, subd. (c).) The information also contained nine numbered paragraphs alleging prior convictions.
Two of the prior convictions alleged in count five were described using the same county and docket number, and the same Penal Code sections (in one instance, with a subsection reference added), but with different dates, as two of the prior convictions alleged in count six.
The prior conviction allegations are discussed in detail, post, in connection with the issues raised on appeal that relate to them.
The presentation of evidence in appellant’s jury trial began on May 10, 2004, and concluded on June 9, 2004. The jury returned its verdicts on June 15, 2004.
The jury found appellant guilty on counts one and three (attempted murder of, and assault on, Huynh), and found true the allegations that appellant knew or should have known that Huynh was working as a peace officer at the time of the attempted murder, and intentionally discharged a firearm during the assault. The jury found appellant not guilty on count two (attempted murder of Toscano), and, although it found appellant guilty on count four (assault on Toscano), it found not true the allegation that appellant discharged a firearm during that crime. The obvious implication of these verdicts is that the jury found that appellant brandished his gun at both officers, but only fired it at Huynh.
The jury also found appellant guilty on count five (possession of a firearm by a felon), but the trial judge later granted appellant’s motion for a new trial on this count, and dismissed it. Finally, the jury found appellant guilty on count six (possession for sale of methamphetamine), and found true the allegation that appellant was armed with a firearm during this crime.
On March 11, 2005, the court sentenced appellant to a total of 92 years to life in state prison, consisting of 25 years to life on count one; a consecutive sentence of 25 years to life on count four; and another consecutive sentence of 30 years to life on count six (i.e., 25 years to life, plus 5 years for the enhancement under section 12022, subdivision (c)); two additional consecutive 5-year terms for appellant’s prior serious felony convictions under section 667, subdivision (a), and two additional consecutive 1-year terms for appellant’s prison priors under section 667.5, subdivision (b). The sentences on count three, and on the enhancement for that count under section 12022.53, subdivision (c), were stayed pursuant to section 654. Appellant filed a timely notice of appeal on March 21, 2005.
Discussion
A. Admission of Expert Testimony on Gunshot Sounds
Appellant contends that Normandy should not have been permitted to testify as an expert regarding the interpretation of the gunshot sounds audible on the surveillance camera recording. He contends that while Normandy may have been an expert on firearms, he was not qualified as an expert on tape-recorded gunshot sounds. Moreover, he argues, Normandy’s testimony about the recording was not proper expert testimony because “Normandy was merely comparing sounds, [and] simply drawing upon inferences and conclusions which could be drawn as easily and intelligently by the trier of fact as by the witness.”
Under Evidence Code section 720, subdivision (a), “[a] person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” Witnesses do not necessarily need to be scientists or professionals to qualify as experts; any person who has special knowledge, skill or experience in any occupation, trade or craft may be qualified as an expert in that particular field. (People v. King (1968) 266 Cal.App.2d 437, 443.)
“It is fundamental that a trial judge has wide discretion to admit or reject opinion evidence, and that a court of appeal has no power to interfere with the ruling unless there is an obvious and pronounced abuse of discretion on [the judge’s] part . . . .” (People v. Clark (1970) 6 Cal.App.3d 658, 664.) “ ‘Such abuse of discretion will be found only where “ ‘the evidence shows that a witness clearly lacks qualification as an expert.’ ” ’ [Citation.]” (People v. Williams (1989) 48 Cal.3d 1112, 1136, italics omitted.)
Furthermore, “although ordinarily courts should not admit expert opinion testimony on topics so common that persons of ‘ “ordinary education could reach a conclusion as intelligently as the witness” ’ [citation], experts may testify even when jurors are not ‘wholly ignorant’ about the subject of the testimony. [Citation.] ‘[I]f that [total ignorance] were the test, little expert opinion testimony would ever be heard.’ [Citation.] [¶] Rather, the pertinent question is whether, even if jurors have some knowledge of the subject matter, expert opinion testimony would assist the jury. [Citations.]” (People v. Prince (2007) 40 Cal.4th 1179, 1222 [trial court did not err in admitting expert testimony, based on analysis of crime scene photographs and other forensic evidence, opining that a series of crimes were all committed by the same person].)
In this case, the trial court did not abuse its discretion in determining that Normandy had sufficient firearms expertise and experience to be qualified to testify that particular recorded sounds were identifiable as gunshots from a caliber of weapon with which he was intimately familiar. Gunshot sounds are sufficiently likely to be outside the realm of experience of the ordinary juror to make it reasonable for the trial court to conclude that expert testimony on the subject would be of assistance to the jury as the trier of fact.
Appellant objects that Normandy did not have experience specifically in interpreting the sound of gunshots on a tape recording. In our view, however, this limitation on his expertise, which was thoroughly explored by appellant’s trial counsel, went to the weight of his testimony, not to its admissibility. (See People v. Bolin (1998) 18 Cal.4th 297, 322 [“ ‘ “Where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than its admissibility.” ’ [Citation.]”]; People v. Chavez (1985) 39 Cal.3d 823, 827-829 [objections to qualifications of pathologist to testify regarding mental effect of alcohol consumption went to weight of opinion evidence, not its admissibility].)
Moreover, contrary to appellant’s argument, Normandy’s testimony did not amount to the improper expression of an opinion on the ultimate issue of appellant’s guilt or innocence. Appellant stresses that Normandy’s testimony implied that appellant’s gun was responsible for the fifth of the seven gunshot sounds on the tape, and that the evidence indicated that Huynh’s two shots, which were the ones that hit appellant, were the last two sounds on the tape. Thus, appellant contends that Normandy’s testimony induced the jury to conclude that appellant’s gun must have gone off before he was hit for the first time and dropped the gun.
This is a plausible reading of the evidence, but it does not mean that Normandy’s opinion required the jury to find that appellant fired his gun intentionally. If the jury had believed appellant’s testimony that he did not fire the gun, there was nothing to preclude the jury from finding that the gun went off accidentally before appellant dropped it. Thus, the jury could have believed Normandy’s testimony about the origin and nature of the gunshot sounds, and still believed appellant’s claim that he never aimed or fired his gun at the officers. (Cf. People v. Prince, supra, 40 Cal.4th at pp. 1226-1227 [expert’s testimony that all crimes were committed by same person did not constitute opinion on defendant’s guilt, or invade jury’s province, where expert did not testify that defendant was that person].)
For all of the foregoing reasons, we find no error in the admission of Normandy’s expert testimony regarding the gunshot sounds audible on the surveillance recording.
B. Admission of Evidence of Prior Assault on Police Officer
Under Evidence Code section 1101, subdivisions (a) and (b), evidence of uncharged criminal conduct is inadmissible to prove a criminal defendant’s conduct on a particular occasion, or disposition to commit a particular act, but is admissible for limited purposes, including motive, intent, and absence of mistake or accident. A trial court’s decision to admit such evidence is “essentially a determination of relevance,” and is therefore “reviewed for abuse of discretion.” (People v. Kipp (1998) 18 Cal.4th 349, 369.)
In the present case, the prosecution introduced evidence that 12 days before the events involved here, appellant had assaulted and seriously injured a San Francisco police officer, John Haggett, who stopped him for a traffic violation. Specifically, Haggett testified that he blocked appellant’s car with his own to prevent him from leaving the cul-de-sac into which he had followed appellant, and that appellant then intentionally drove his car directly at Haggett’s police cruiser, striking the door of the cruiser and pinning Haggett’s foot between the car door and the frame. This evidence was offered for the purpose of showing that when appellant fired his gun during his encounter with Huynh and Toscano, he did so with the motive and intent to kill them.
In his own testimony, appellant acknowledged that the incident with Haggett had occurred, and that he was “[t]rying to get away” from Haggett. He denied intending to hit Haggett with his car, however, contending that he was simply trying to drive out of the cul-de-sac via the only available route when he ran into Haggett’s car door, and that he was not aware he had injured Haggett when he drove away.
Appellant now contends that the admission of this evidence was error, because the uncharged crime was not sufficiently similar to the charged crime to be probative on the issue of intent, and because it was cumulative on the issue of appellant’s status as a parolee. We may dispose of the latter contention easily. The evidence was admitted not merely to show that appellant, as a parolee, had a motive to avoid arrest, but also to show that he was willing to assault and inflict injury on police officers in order to remain at liberty. As the prosecutor argued in the trial court, this evidence was relevant on the issue of intent, to rebut appellant’s contention that he drew his gun only in order to try to dispose of it, and that he did not intend to aim at, or shoot, Huynh and Toscano. For that purpose, the evidence clearly was not merely cumulative of the fact that appellant was on parole at the time of the charged crimes.
In the alternative, appellant contends that his trial counsel’s failure to argue that the challenged evidence should be excluded as merely cumulative constituted ineffective assistance of counsel. Respondent expressly concedes that appellant’s trial counsel’s objections were adequate to preserve this issue for appeal, so appellant’s alternative argument is moot.
The more substantive question is whether appellant’s assault on Haggett was sufficiently similar to the facts of the present case to make it probative on the issue of intent. On this issue, the parties agree that the relevant test is that set forth in People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt), superseded by statute with respect to sex crimes as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505-506. As Ewoldt explained, “[e]vidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. ‘In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.’ [Citation.] For example, in a prosecution for shoplifting in which it was conceded or assumed that the defendant left the store without paying for certain merchandise, the defendant’s uncharged similar acts of theft might be admitted to demonstrate that he or she did not inadvertently neglect to pay for the merchandise, but rather harbored the intent to steal it.” (Id. at p. 394, fn. 2, italics omitted.)
When evidence of uncharged misconduct is used to prove intent, the degree of similarity between the uncharged act and the charged offense is lower than when such evidence is used for other purposes. (Ewoldt, supra, 7 Cal.4th at p. 402; People v. Kipp, supra, 18 Cal.4th at p. 371.) This is because “ ‘[t]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .’ ” [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (Ewoldt, supra, 7 Cal.4th at p. 402 .)
Here, appellant’s assault on Haggett occurred less than two weeks before his encounter with Huynh and Toscano. Like the crimes charged in this case, it involved appellant’s desperate effort to escape from a police officer who had stopped him for a traffic violation. Given the low level of similarity required of uncharged crimes when admitted to prove intent, we cannot say that the trial court abused its discretion in concluding that the two assaults were sufficiently similar to meet the applicable test for admissibility.
In support of his argument that the challenged evidence should have been excluded, appellant cites Ewoldt’s companion case, People v. Balcom (1994) 7 Cal.4th 414 (Balcom). Balcom was a rape case, in which the defense was consent. The victim testified that the defendant had put a gun to her head and forced her to have intercourse with him; the defendant testified that their sexual contact had been consensual. (Id. at pp. 419-420.) In that situation, the Supreme Court held that evidence of the defendant’s having committed another rape two months later was not admissible on the issue of the defendant’s intent, although it was admissible on the issue of common design or plan. (Id. at p. 421.)
The court in Balcom explained that the victim’s and the defendant’s “wholly divergent accounts” of the relevant events “create[d] no middle ground from which the jury could conclude that defendant committed the proscribed act of engaging in sexual intercourse with the victim against her will by holding a gun to her head, but lacked criminal intent because, for example, he honestly and reasonably, but mistakenly, believed she voluntarily had consented. [Citation.] On the evidence presented, the primary issue for the jury to determine was whether defendant forced the complaining witness to engage in sexual intercourse by placing a gun to her head. No reasonable juror considering this evidence could have concluded that defendant committed the acts alleged by the complaining witness, but lacked the requisite intent to commit rape.” (Balcom, supra, 7 Cal.4th at p. 422.) Thus, the court concluded, “because the victim’s testimony that defendant placed a gun to her head, if believed, constitute[d] compelling evidence of defendant’s intent, evidence of defendant’s uncharged similar offenses would be merely cumulative on this issue. [Citation.] Accordingly, . . . the limited probative value of the evidence of uncharged offenses, to prove intent, [was] outweighed by the substantial prejudicial effect of such evidence.” (Id. at p. 423, fn. & italics omitted.)
In our view, Balcom, supra, 7 Cal.4th 414 is distinguishable on its facts. Here, there was a “middle ground” between appellant’s account of the events, and that testified to by Huynh and Toscano. The jury could have believed Huynh and Toscano’s testimony that appellant waved his gun at them, and the evidence that a bullet from appellant’s gun was found at the scene, but also believed, at the same time, that appellant was merely waving his gun around in a panic, and did not intentionally aim or shoot it at the officers. In other words, in Balcom, the defendant’s acts, as described by the victim, could only be interpreted to be consistent with the intent to commit the charged crime. Here, by contrast, the officers’ accounts of appellant’s actions were subject to more than one interpretation. Thus, there was a genuine issue of fact as to the intent behind appellant’s conduct, so that the evidence of appellant’s assault on another police officer only 12 days earlier was by no means merely cumulative on the issue of his intent. Accordingly, we see no abuse of discretion in the trial court’s decision to admit this evidence.
C. Denial of Mistrial After Normandy’s Improper Testimony
During the pretrial hearing regarding the admissibility of Normandy’s expert testimony, the trial court questioned Normandy as to what would be the exact nature of his testimony. Normandy confirmed to the court that he would testify that in reviewing the surveillance recording, he identified seven separate shots being fired, and that the sounds of all but the fifth shot were consistent with those made by a .40-caliber weapon. When arguing in favor of the admission of Normandy’s testimony, the prosecutor stressed that Normandy would not be testifying that the fifth shot came from a .380-caliber weapon, but only that it was not consistent with a .40-caliber weapon. Accordingly, that was the extent of the testimony that the trial court ruled was admissible. In keeping with this ruling, the trial judge expressly cautioned Normandy personally as to the limitations the court was placing on the scope of his opinion testimony.
When Normandy initially testified at trial, however, he went beyond the scope of that ruling. In the course of opining, as anticipated, that there were seven shots, of which all but the fifth were consistent with a .40-caliber weapon, Normandy also volunteered that the “fifth round, that tiny pop type of sound, I believe to be consistent with .380 caliber.”
To his credit, the prosecutor then immediately stopped questioning Normandy and asked for a bench conference. The jury was excused, and an on-the-record colloquy between the court and counsel followed. The prosecutor conceded that the testimony was improper. He represented to the court that he had reminded Normandy regarding the limitations on his testimony that very morning, but averred that Normandy had apparently misunderstood his instructions.
Appellant’s trial counsel requested a mistrial, or the dismissal of the attempted murder charges (counts one and two), contending that a curative instruction would not be sufficient to cure the prejudice caused by Normandy’s testimony. In response, the prosecutor pointed out that he intended to prove that a .380-caliber bullet, matching appellant’s gun, was found at the scene, in a place consistent with the prosecution’s theory as to where appellant was located when the shot was fired.
The trial judge indicated that although Normandy’s testimony clearly violated his pretrial order, he believed it was “an inadvertent mistake” on Normandy’s part. After due consideration, he denied the motion for mistrial or dismissal of the attempted murder charges. He struck Normandy’s answer from the record, however.
Appellant’s trial counsel later conceded that Normandy’s improper testimony did not result from “prosecutorial intent.” Respondent argues that this constituted a concession that it was inadvertent on Normandy’s part as well. Appellant disagrees, and the record is not sufficiently clear on this point for us to find that the issue was waived. Nonetheless, for the purpose of our review, the trial court’s finding that Normandy’s improper testimony was the result of inadvertence settles the question. In any event, the issue is not material to our resolution of the issue presented by the appeal.
The judge also indicated that appellant’s trial counsel would have “wide latitude” in his cross-examination, and agreed to schedule a break in the proceedings after Normandy’s direct examination in order to allow defense counsel to prepare for cross-examination. In addition, the prosecutor later stipulated that Normandy had not testified at the pretrial hearing that the fifth shot had come from a .380-caliber weapon. The trial judge agreed, and undertook efforts to obtain an expedited transcript of that hearing if possible.
After the jury returned to the courtroom, the trial judge instructed them that Normandy’s last answer had been stricken, and that they should “disregard it as if it had never occurred.” Normandy was then recalled to the stand, and testified, very briefly, that he had heard a total of seven shots on the recording, of which the first four and the last two were consistent with .40-caliber shots. Immediately after this testimony, the jury was excused for the day.
In addition, both prior to and at the conclusion of the trial, the jury was given the standard instruction not to “consider for any purpose . . . any evidence that was stricken by the court,” and to “treat it as though you had never heard of it.”
Appellant now contends that his motion for a mistrial should have been granted, because Normandy’s testimony irreparably damaged his case, and the trial court’s instruction to the jury to disregard it could not unring the bell. In reviewing the trial court’s decision to deny the motion for mistrial, we apply an abuse of discretion standard. (People v. Williams (1997) 16 Cal.4th 153, 210, 211-212.) Moreover, a “jury is presumed to have followed an admonition to disregard improper evidence particularly where there is an absence of bad faith. [Citations.] It is only in the exceptional case that ‘the improper subject matter is of such a character that its effect . . . cannot be removed by the court’s admonitions.’ [Citation.]” (People v. Allen (1978) 77 Cal.App.3d 924, 934-935.) A “trial court’s timely and specific admonition, which the jury is presumed to have followed, cure[s] any prejudice resulting from [a] witness’s inadvertent and improper statement. [Citations.]” (People v. Morris (1991) 53 Cal.3d 152, 194, overruled on another point by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
In the present case, appellant has not convinced us that the usual presumption should not apply. The admonition to disregard Normandy’s improper testimony was given promptly after it occurred, and the correct testimony was elicited in its place. Appellant contends the admonition was insufficient to “unring the bell,” but the case on which he relies, People v. Hill (1998) 17 Cal.4th 800, involved what the Supreme Court characterized as a “pervasive campaign to mislead the jury” and an “onslaught” of misconduct by the prosecutor, not a single, promptly corrected statement by a single witness on a single issue of fact. (Id. at p. 845.)
Appellant also relies on People v. Bentley (1955) 131 Cal.App.2d 687, 690-691, overruled on another ground by People v. White (1958) 50 Cal.2d 428, 430-431. Bentley was a prosecution for sexual molestation of a young girl, in which a police officer deliberately and improperly disclosed to the jury that the defendant had been a suspect in a similar case some years earlier. The prosecution’s evidence in that case was not overwhelming, and the point on which the officer improperly testified was far more prejudicial than it was here. We do not view Bentley as sufficient authority to persuade us to depart from the rule in more recent cases that a prompt admonition is sufficient to cure the problem in all but the exceptional case.
Moreover, Normandy’s improper testimony was not nearly as devastating to the defense case as appellant contends. A .380-caliber bullet fired by appellant’s gun was recovered from the crime scene, and appellant’s trial counsel did not dispute that appellant’s gun had gone off during his confrontation with Huynh and Toscano. Based on this evidence, even if Normandy had testified only that he heard seven shots, of which the first four and the last two were from .40-caliber weapons, the jury was still justified in drawing an inference that the fifth shot came from defendant’s .380-caliber gun. Accordingly, Normandy’s improper testimony added little to the evidentiary picture that was already before the jury, and does not constitute grounds for reversal of the judgment.
D. Refusal to Instruct on Accident or Misfortune
Appellant requested that the trial court instruct the jury with CALJIC No. 4.45, on the defense of accident or misfortune (the accident instruction), based on the theory that his gun went off by accident. The trial court refused the instruction, and appellant now contends this was error. Respondent argues that the accident instruction was not required, asserting that it applies only when the defendant is not engaged in other criminal activity at the time of the asserted accident. Appellant disputes this contention.
Appellant requested that CALJIC No. 4.45 be given as follows: “When a person commits an act or makes an omission through misfortune or by accident under circumstances that show no [sic] neither criminal intent nor purpose, nor criminal negligence, he she [sic] does not thereby commit a crime.” This instruction has now been superseded by CALCRIM No. 3404.
In support of this proposition, respondent relies on People v. Gorgol (1953) 122 Cal.App.2d 281. The holding of that case with respect to the trial court’s refusal to instruct on misfortune was that there was not substantial evidence to support it, because the “[d]efendant did not contend that he committed criminal acts through misfortune.” (Id. at p. 307; see also ibid. [“The court refused to instruct on the law of misfortune . . . . There is no evidence to support such an instruction.”].) The opinion does state that the term “ ‘[m]isfortune’ when applied to a criminal act . . . bears the connotation of accident while doing a lawful act” (id. at p. 308), but it does not go so far as to hold that the instruction should not be given when the criminal act asserted to have been the result of an accident was accompanied by any other criminal behavior.
We need not resolve this question, because we reject appellant’s claim of error on two other grounds. First, a trial court is required to give requested instructions on a defense to a criminal charge only if the defense is supported by substantial evidence in the record. (People v. Williams (1992) 4 Cal.4th 354, 361; People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1269-1270.) Appellant relies on People v. Gonzales (1999) 74 Cal.App.4th 382 for the proposition that the accident instruction was required here. In that case, a victim of domestic violence told relatives, and testified at the preliminary hearing, that her injuries came from the defendant hitting her accidentally with a door when opening it. The court held that the evidence of these statements constituted substantial evidence that defendant’s conduct was accidental, thus requiring the trial court to give the accident instruction sua sponte. (Id. at pp. 389-390.)
In the present case, however, appellant cites no equivalent evidence supporting a theory of accidental injury. Appellant’s trial counsel argued that the gun must have gone off accidentally, but appellant did not so testify. Rather, he testified repeatedly and unequivocally that he had never fired the gun, or, for that matter, pointed it at Huynh or Toscano, and disclaimed any knowledge of how a bullet from the gun came to be found in the vicinity of his arrest. In our view, given appellant’s explicit and unequivocal denial that he had fired the gun, there was not sufficient evidence of an accidental discharge to require the accident instruction.
Second, even if we were to assume, for the sake of argument, that the jury could infer an accidental discharge from the evidence in this case, we would still find no reversible error in the failure to give the accident instruction. The jury was expressly instructed that in order to return a true finding on the enhancement for deliberate discharge of a weapon, it had to find that appellant intentionally fired his gun. The jury then returned a true finding on that enhancement on count three (assault on Huynh). This verdict demonstrates that the jury simply did not believe appellant’s version of the events, and found that he had fired his gun on purpose. Given this finding, it is clear from the jury’s verdict that they would not have accepted appellant’s accidental discharge theory even if the accident instruction had been given.
As already noted, the jury acquitted appellant of attempted murder of Toscano (count two), and although it found him guilty of assaulting Toscano (count four), it found not true the intentional use of a firearm enhancement on that count. Contrary to appellant’s argument, the latter finding is not in the least inconsistent with the conclusion that even if the accident instruction had been given, the verdict would have been the same. Taken together, the verdicts clearly indicate that the jury concluded that appellant aimed his gun at both officers, and that he fired it intentionally, but only once, and only at Huynh. These findings are amply supported by the evidence, and appellant does not argue otherwise.
Under People v. Pulido (1997) 15 Cal.4th 713, 726 (Pulido I), a defendant cannot demonstrate prejudice from an asserted instructional error where the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In Pulido I, the substantive instructions erroneously permitted the defendant to be found guilty of felony murder based on his having aided and abetted a robbery only after the victim was killed. The California Supreme Court held that the error was harmless beyond a reasonable doubt, because the jury found as a special circumstance that the murder had been committed while the defendant was engaged in the robbery and in order to facilitate the robbery or the ensuing escape. (15 Cal.4th at pp. 726-727; see also People v. Landry (1951) 106 Cal.App.2d 8, 15 [in narcotics possession case, where defendant claimed he had found drugs while cleaning the floor of his nightclub, failure to give requested accident instruction was harmless error, because “the instructions as a whole made it clear that the defendant’s possession of narcotics must be intentional to warrant a conviction . . . .”].)
Appellant contends, however, that Pulido I, supra, 15 Cal.4th 713 is no longer good law on that point, given the Ninth Circuit’s recent opinion in Pulido v. Chrones (9th Cir. 2007) 487 F.3d 669 (Pulido II), affirming the grant of habeas corpus relief to the same defendant whose conviction was upheld in Pulido I. In Pulido II, the Ninth Circuit held, following its own prior opinion in Lara v. Ryan (9th Cir. 2006) 455 F.3d 1080, that an instructional error permitting a conviction on an invalid legal theory is “structural,” and thus cannot be considered harmless error unless the reviewing court can “ ‘determine with absolute certainty’ ” that the defendant was not convicted under an erroneous theory. (Pulido II, supra, 487 F.3d at p. 676.)
The alleged error in the present case involves the refusal of a defense instruction, rather than an instruction permitting the defendant to be convicted on an invalid legal theory. Because we find Pulido II distinguishable for other reasons, we need not address the question whether the same federal constitutional principles applied in Pulido II also constrain harmless error review of the refusal to instruct on an affirmative defense.
Applying this standard, the Pulido II court determined that an error in the jury instructions in that case was not harmless, because the special circumstance instruction also contained an error. Specifically, the instruction as given substituted the word “or” for the word “and,” so as to permit the jury to find the special circumstance to be true if the murder was committed either while the defendant was engaged in the robbery or in order to facilitate the robbery or the ensuing escape. (Pulido II, supra, 487 F.3d at p. 675.) Thus, the Ninth Circuit held that “the California Supreme Court’s conclusion that the jury ‘necessarily’ found the defendant guilty on a proper theory does not follow.” (Ibid.)
As appellant pointed out at oral argument, the instruction in the present case regarding intentional and personal discharge of a firearm (the firearm enhancement instruction) also contained a typographical error. The error appears only in one version, however. When the trial court instructed the jury orally, the pertinent parts of the firearm enhancement instruction, as reflected in the reporter’s transcript, correctly read as follows: “It is alleged in Count [sic] 1, 2, 3 and 4 that defendant Benjamin Dawson intentionally and personally discharged a firearm during the commission of the crimes charged. [¶] If you find the defendant Benjamin Dawson guilty of the crimes thus charged, you must determine whether the defendant Benjamin Dawson intentionally and personally discharged a firearm in the commission of those felonies. [¶] . . . [¶] The term ‘intentionally and personally discharged a firearm’ as used in this instruction, means that the defendant himself must have intentionally discharged it. . . .”
Any direct attack on the true finding on the enhancement based on this error would be precluded by appellant’s failure to object to it in the trial court. Nonetheless, given the fact that Pulido II was not decided until after appellant’s trial – and, indeed, after the close of briefing in this court – we do not find the objection waived insofar as it bears on the harmless error analysis regarding the trial court’s failure to give the accident instruction.
The same portion of the firearm enhancement instruction, in the version reflected in the clerk’s transcript and given to the jury on paper, was slightly different in one arguably significant respect. Its second paragraph read—incorrectly—as follows: “If you find the defendant Benjamin Dawson guilty of one or more of the crimes thus charged, you must determine whether the defendant Benjamin Dawson intentionally and personally discharged a firearm caused or [sic] in the commission of those felonies.” (Italics added.) The italicized language appears to have been included inadvertently in the written version.
CALJIC No. 17.19.5, from which the firearm enhancement instruction given was derived, includes optional language in its second paragraph, shown in brackets, as follows: “If you find the defendant[s] guilty of [one or more of] the crime[s] thus charged, you must determine whether the defendant[s] intentionally and personally discharged a firearm [and [proximately] caused [great bodily injury] [or] [death] to a person] [other than an accomplice] in the commission of [that] [those] [felony] [felonies].” (Italics added.) It appears that in adapting this form instruction to this particular case, the trial court inadvertently failed to delete from the written version of the second paragraph the inapplicable words “caused or” (italicized in the foregoing quotation).
Nonetheless, even under the test applied in Pulido II, we find the asserted error in refusing the accident instruction to be harmless. Even if we assume that the jury was more influenced by the written version of the firearm enhancement instruction, the error in that version at most introduced some confusion as to the connection the jury had to find between the firearm discharge and the charged felonies – an issue as to which there was no factual dispute or conflict in the evidence. In both the oral and written versions of the firearm enhancement instruction, it was absolutely clear that in order to find the enhancement true, the jury had to find “that the defendant himself must have intentionally discharged” the gun. Thus, even given the error in the firearm enhancement instruction, the record still permits us to determine “ ‘with absolute certainty’ ” (Pulido II, supra, 487 F.3d at p. 676) that the refusal of the accident instruction was harmless error.
E. Adequacy of Inquiry into Alleged Juror Misconduct
On June 9, 2004, the prosecutor gave his closing argument, and appellant’s trial counsel began his but did not finish it. At the start of the following day, the prosecutor informed the court outside the presence of the jury about an incident that had taken place on the previous day. Counsel reported that as the jury was leaving for the evening, Juror No. 9 remarked to him either “That was a nice argument,” or “That was a good argument.” These remarks were in violation of the trial court’s repeated instructions to the jury throughout the trial not to discuss the case with anyone, which had been repeated when the jury was dismissed at the end of the previous day. The prosecutor said he had felt obligated to report the matter to appellant’s counsel and to the court, because the juror had said something other a mere greeting, but indicated that he did not believe the juror should be removed or even questioned.
Appellant’s counsel noted that Juror No. 9 had been consistently the most “terse” with the defense of all the jurors, and had not greeted him as regularly as the others. Because of this context, he requested that the court either excuse Juror No. 9, or at least inquire into the matter. The court declined to excuse the juror, but agreed “out of an abundance of caution” to question him about his remark.
Juror No. 9 was then questioned on the record outside the presence of the other jurors. The juror acknowledged having heard the court’s admonition not to discuss the case, denied having prejudged it in any way, and assured the trial judge that he “could enter the deliberation process freely with an open mind and make sure [to] review the evidence and consult with the other jurors before reaching a conclusion.”
In response to questions from appellant’s counsel, the juror acknowledged commenting that “I thought [the prosecutor] had made a good argument.” Appellant’s counsel attempted to follow up with a question as to whether the juror’s opinion about the argument was “based more on form or . . . more like on substance,” but the trial court declined to allow counsel to “explore at this level.” The court also declined to allow appellant’s counsel to question the juror about his greeting the prosecutor but not appellant’s counsel. The trial judge asked the juror whether there was anything in his mind that would preclude him from weighing the evidence, participating in deliberations, or rendering a fair and impartial verdict. The juror responded that there was not, and added that he had “taken notes consistently throughout the trial for both sides,” and “intend[ed] to examine them thoroughly for both sides.” Over appellant’s counsel’s renewed objection, the trial judge declined to excuse the juror, indicating that after examining him, he “believe[d] he can render a fair and impartial verdict after the deliberation process.”
Appellant now contends that the trial court violated his due process right to a fair trial by failing to conduct an adequate inquiry into what he characterizes as juror misconduct. Our standard of review on this issue is highly deferential. “ ‘ “The decision whether to investigate the possibility of juror bias, incompetence, or misconduct . . . rests within the sound discretion of the trial court. [Citation.] The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial.” ’ [Citation.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1348.)
Similarly, “[t]he trial court’s decision whether or not to discharge a juror . . . is reviewed for abuse of discretion and will be upheld if supported by substantial evidence; to warrant discharge, the juror’s bias or other disability must appear in the record as a demonstrable reality. [Citations.] A juror’s misconduct creates a rebuttable presumption of prejudice, but reversal is required only if there is a substantial likelihood one or more jurors were improperly influenced by bias. [Citations.]” (People v. Holloway (2004) 33 Cal.4th 96, 124-125.) The trial court is in the best position to evaluate the juror’s comments in light of the juror’s demeanor and behavior during the trial as a whole, and to determine whether the presumption of prejudice has been rebutted. (See People v. Beeler (1995) 9 Cal.4th 953, 989.)
Appellant contends that in the present case the trial court failed to conduct an adequate inquiry into the juror’s behavior. We disagree. The facts as to what the juror said and did were not disputed by anyone. The issue was what, if anything, those facts implied regarding the juror’s impartiality. On that subject, the trial judge questioned the juror very directly, and permitted appellant’s counsel to do so as well. The questions that the judge did not permit appellant’s counsel to ask were tangential to the central issue, as well as intrusive on the juror’s privacy, and the judge did not abuse his discretion in declining to permit them. (See generally People v. Cleveland (2001) 25 Cal.4th 466, 480-485 [discussing need for trial courts to guard jurors’ right to privacy in their thought processes and deliberations when investigating allegations of juror misconduct during deliberations].)
We also do not agree with appellant’s characterization of the juror’s behavior as constituting serious misconduct. All the juror did was address an offhand compliment to the prosecutor regarding the quality of his closing argument. While this was a violation of the trial judge’s admonition not to engage in conversation with counsel that went beyond a simple greeting, it did not necessarily imply that the juror had formed or expressed an opinion about appellant’s guilt.
Juror No. 9’s remark to the prosecutor, although clearly improper, was nowhere near as serious as the misconduct involved in the cases on which appellant’s argument relies. In In re Hitchings (1993) 6 Cal.4th 97, for example, the juror whose conduct was at issue “intentionally concealed material information on voir dire” regarding her degree of knowledge about the facts (id. at p. 116), and had “midtrial conversations with [a nonjuror] about [the] case” (id. at p. 118), in which she expressed the opinion that the defendant “should be horribly mutilated for his crimes.” (Id. at p. 120.) Not surprisingly, the Supreme Court found that this misconduct warranted the issuance of a writ of habeas corpus vacating the defendant’s conviction.
The misconduct in this case is also less serious than that involved in People v. Loot (1998) 63 Cal.App.4th 694. In that case, a juror developed a romantic interest in the prosecutor. She asked a third party about the prosecutor’s marital status and whether he was “available,” and after the jury was excused, she gave the prosecutor a note with her name and telephone number. The court held that although these actions constituted juror misconduct, they did not require the trial court to grant a mistrial or a new trial. Because the trial court was satisfied, after interviewing the juror, that her attraction to the prosecutor had not influenced her deliberations, the presumption of prejudice from the misconduct was rebutted. (Id. at pp. 697-698.)
In cases of juror misconduct, “[a]mong the factors to be considered when determining whether the presumption of prejudice has been rebutted are ‘the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued.’ [Citation.]” (People v. Loot, supra, 63 Cal.App.4th at p. 698.) Given the extremely slight nature of the asserted misconduct in this case, and the trial court’s acceptance of the juror’s sincerity in declaring that he had not prejudged the case for either side, we cannot say that the trial court abused its discretion in declining to excuse the juror, nor do we find that appellant was denied due process or a fair trial by that decision.
F. Denial of Request to Release Firearms for Testing
On March 29, 2004, appellant’s trial counsel and the prosecutor filed a stipulation permitting the guns and bullets collected as evidence in the case to be released temporarily for testing by a ballistics expert hired by the defense. On April 8, 2004, the parties filed a similar stipulation so that the defense expert could examine any bullets that had been test fired by the prosecution’s expert.
On April 26, 2004, the prosecution filed a motion to admit the expert testimony by Sergeant Normandy that we have already discussed, ante. On the same date, appellant filed a motion in limine seeking the exclusion of Normandy’s proposed testimony on various grounds. The objections set forth in that motion did not mention anything about releasing the guns for further defense testing in the event Normandy’s proposed testimony was admitted.
As already noted, on the following day, April 27, 2004 (a Tuesday), the court held a hearing under Evidence Code section 402 regarding Normandy’s proposed testimony. At the conclusion of the hearing, the court ruled orally from the bench that the testimony would be admitted.
This ruling was confirmed by a formal written order filed on May 10, 2004.
Seven business days later, on May 6, 2004 (a Thursday), appellant made an oral motion that appellant’s gun, as well as a gun of the same model as those used by Huynh and Toscano on the day of the crime, be released to the defense a second time, in order to allow acoustic testing by a defense expert. This was the first time defense counsel had requested an opportunity to test the guns in light of Normandy’s testimony. By that time, jury selection was well under way, and opening statements were scheduled to begin within the next day or two.
The prosecutor opposed the motion on the ground that it was made too late. Appellant’s trial counsel countered that he had not learned of the substance of Normandy’s proposed testimony until the April 27, 2004 hearing. He acknowledged, however, that at the time of the preliminary hearing, which was held in December 2003 and January 2004, the prosecutor had told him that “he may call Sgt. Normandy to talk about sounds . . . from the video tape,” but averred that at the time, he “had no idea what the substance of his testimony was going to be, or specifics,” and that “it was a very vague kind of exchange.” Thus, he explained, the testing that the defense had already performed on the guns did not include the issue of what sounds they made when fired. He also emphasized that he believed he could complete the necessary testing without delaying the trial. The prosecutor responded that he had given appellant’s trial counsel Normandy’s “CV” in December 2003, and that “the issue of having a witness attempt to qualify for the purposes of identifying the shots that were fired on the audio and video was something [that was] known to [appellant’s trial] counsel back in December.”
On the afternoon of the following day, Friday, May 7, 2004, jury selection was completed, and the jury was sworn in and then excused for the day. The court then returned to the issue of the release of the guns for defense testing. The trial court and the prosecutor both acknowledged that if the motion had been made earlier, they would have had “no serious objection” to it.
Appellant’s trial counsel again emphasized that he had not been aware until April 27, 2004, that Normandy would testify specifically that the fifth shot audible on the recording was not from a weapon of the type used by Huynh and Toscano. He acknowledged, however, that he had had the audio recording of the shots in his possession for a long time, and that he and his experts had listened to it repeatedly since September 2003.
The prosecutor noted in response that he had written a letter to appellant’s trial counsel on April 14, 2004, which stated that he planned to call Normandy to “testify to what he hears and what caliber of gun can be heard” on the recording. Appellant’s trial counsel acknowledged receiving the letter no later than April 15, 2004, but stressed that it did not specifically explain that Normandy would testify that he heard seven shots on the recording, the fifth of which came from a different gun than those used by Huynh and Toscano.
The court then noted that Normandy’s testimony was not based on any testing of the guns involved, but only on his analysis of the sounds present on the recording. Based on that fact, and on the conclusion that the defense had had reasonable notice of the issue and had not made its motion promptly, the trial court denied the motion.
Appellant now contends that the denial of his motion denied him his constitutional rights to confront and cross-examine the witnesses against him and to present a defense, and constituted an abuse of discretion.
Even if we accept appellant’s trial counsel’s characterization of events, it is undisputed that he was aware of the substance of Normandy’s testimony no later than April 27, 2004. Despite the imminence of the trial, appellant’s trial counsel waited to request the release of the guns until seven business days (nine calendar days) later, by which time jury selection had already begun. Moreover, appellant’s defense expert had already conducted acoustic testing using virtually identical guns, and appellant was able to present to the jury that expert’s testimony that the sounds of the types of weapons used by appellant and the police officers were virtually indistinguishable on an audio recording. Under the circumstances, we are not persuaded that the trial court abused its discretion in denying the request, nor do we find the trial court’s action a violation of appellant’s due process rights, or his rights to confrontation and cross-examination.
G. Prior Convictions
Appellant raises two issues regarding the prior convictions that were relied upon by the trial court for sentencing purposes. The issues are unrelated, and we will analyze them separately, but for convenience, we will first set forth the facts and procedural history common to both.
The information contained nine numbered paragraphs alleging prior convictions. Each alleged prior conviction was identified by date, county, docket number, and a citation to the Penal Code section under which appellant was convicted.
Although there were nine paragraphs of prior conviction allegations, all but one of the prior convictions was alleged more than once, under different statutes. In addition, each of the prior convictions listed in the nine numbered paragraphs was also charged as a prior either in count five or in count six of the information, or in both.
First, appellant was alleged to have been convicted of aggravated assault (§ 245, subd. (a)(1)) in San Francisco County Superior Court case number 162429, on or about June 18, 1999 (the San Francisco assault conviction). The San Francisco assault conviction was alleged three times: as prior 1, a prior felony conviction under section 1170.12, subdivision (c)(2); as prior 4, a prior serious felony conviction under section 667, subdivision (a); and as prior 8, a conviction resulting in a prison term followed by a subsequent offense within five years, under section 667.5, subdivision (b).
In fact, it appears from the record that the San Francisco assault conviction, as well as the San Francisco battery conviction discussed in the next paragraph, stemmed from a crime committed in 1995, as to which appellant was convicted on May 21, 1997, and resentenced on June 12, 2000, retroactively to June 18, 1999.
As discussed post, the allegations regarding prior 8 were confusing, but in any event, the trial judge found prior 8 not to have been proven.
Second, appellant was alleged to have been convicted of aggravated battery (§ 243, subd. (d)), in the same San Francisco case and on the same date as in the first conviction (the San Francisco battery conviction). Like the San Francisco assault conviction, the San Francisco battery conviction was alleged both as a prior felony conviction under section 1170.12, subdivision (c)(2) (prior 2), and as a prior serious felony conviction under section 667, subdivision (a) (prior 5).
Third, appellant was alleged to have been convicted of dissuading or attempting to dissuade a witness (§ 136.1, subd. (c)(1)) in San Mateo County Superior Court case number SC46182A, on or about January 19, 2000 (the San Mateo witness conviction). As with the San Francisco assault conviction, the San Mateo witness conviction was alleged three times: as prior 3, a prior felony conviction under section 1170.12, subdivision (c)(2); as prior 6, a prior serious felony conviction under section 667, subdivision (a); and as prior 9, a conviction resulting in a prison term followed by a subsequent offense within five years, under section 667.5, subdivision (b).
Fourth, appellant was alleged, in prior 7, to have been convicted of petty theft after a prior offense (§ 666) in San Mateo County Superior Court case number C24383, on or about June 28, 1990 (the San Mateo petty theft conviction). As to this conviction, the information also alleged that it resulted in a prison term and was followed by a subsequent offense within five years.
While the jury was deliberating on the underlying substantive charges in the present case, appellant waived his right to a jury trial regarding the prior conviction allegations. Accordingly, after the jurors returned their verdict, the judge discharged them. The prior conviction allegations were then tried to the court.
At the trial on the prior convictions, the prosecution offered the testimony of one witness, a Department of Corrections employee who was an expert on the California prison system records commonly known as “969(b) packets.” (§ 969, subd. (b).) The witness identified and explained two 969(b) packets relating to appellant, both of which were admitted into evidence. The prosecution then rested its case without introducing any additional evidence. The trial court found that all of the priors had been proven except for prior 8.
The allegations regarding prior 8, which apparently intended to plead the San Francisco assault conviction as one resulting in a prison term followed by a subsequent offense within five years, contained an apparent typographical error as to the convicting court, which was listed as San Mateo rather than San Francisco. The docket number, date, and Penal Code section violated, however, were the same as those listed for the June 1999 assault conviction in San Francisco. In any event, the trial judge found prior 8 not to have been proven.
1. Amendment of Allegations After Jury Discharged
During the argument at the close of the trial on the prior convictions, defendant’s trial counsel complained that the conviction dates on the 969(b) packets did not match those pleaded in the information. Over defendant’s trial counsel’s objection, the judge permitted the prosecutor to amend the information to conform the dates of several of appellant’s prior convictions to those shown on the 969(b) packets.
Appellant now contends that the trial court lacked jurisdiction to permit an amendment to the information after the jury had been discharged, citing People v. Tindall (2000) 24 Cal.4th 767 (Tindall). In that case, the prosecutor amended the information after the jury had been discharged to add three new prior convictions that had not been included in the original information. The Supreme Court held that “although the prosecution may amend an information to add alleged prior convictions on the trial court’s order until sentencing [citation], the court may not permit such an amendment if the jury has been discharged, unless the defendant waives or forfeits the right to have the same jury try both guilt and priors. [Citations.]” (Id. at p. 776, fn. omitted.)
Tindall, supra, 24 Cal.4th 767 is distinguishable from the present case. In Tindall, the prosecutor added allegations as to prior convictions that were entirely different from the ones included in the original information. Thus, although the defendant in Tindall had waived his right to a jury trial on the priors originally included in the information, he had not thereby waived his right to a jury trial on the new and different priors added by the amendment.
Here, however, the number and identity of the prior convictions as to which appellant waived his right to a jury trial was not affected by the prosecution’s amendment. Only the specific dates on which the convictions were entered was changed. The validity of appellant’s jury trial waiver was not affected by the amendment of the information in this immaterial regard. (People v. Williams (1980) 106 Cal.App.3d 15, 19-20, superseded by statute on other grounds as stated in People v. Preston (1996) 43 Cal.App.4th 450, 454-455, 461 [amendment to information in welfare fraud case substituting “identification card” for “driver’s license” did not affect validity of defendant’s jury trial waiver]; People v. McQuiston (1968) 264 Cal.App.2d 410, 417-418 [amendment to information to correct prior conviction allegation as to date and name of court “did not change the nature of the offense charged” and therefore did not require that defendant be rearraigned].) Thus, the exception expressly authorized in Tindall applies here; by waiving his right to have any jury try the charged priors, appellant clearly also “waive[d] . . . the right to have the same jury try both guilt and priors. [Citations.]” (Tindall, supra, 24 Cal.4th at p. 776, italics added.)
Appellant does not argue that the difference in dates was in any way material to the purpose for which the prosecutor or the trial court relied on the convictions, or that his counsel’s ability to prepare for trial on the prior conviction allegations was in any way hampered by the confusion regarding the dates—a confusion that was easily dispelled by referring to the docket numbers. In the absence of any contention by appellant that he was prejudiced by the amendment, the trial court did not abuse its discretion in allowing it. (Cf. People v. Gil (1992) 3 Cal.App.4th 653, 658-659 [defendant not prejudiced by amendment to information, made after close of prosecution’s case, that “slightly extended the time ranges alleged in the information” but did not change substance of alleged crimes]; People v. McQuiston, supra, 264 Cal.App.2d at pp. 417-418 [amendment to prior conviction allegation to make a “mere change in the date and court does not encompass a requirement of additional time in which to prepare a defense unless defendant was actually misled or otherwise prejudiced by such change. [Citation.]”].)
2. Whether Prior Conviction Qualified as “Strike”
In sentencing appellant to terms of 25 years to life for the each of the felony counts of which he was convicted in the current case, the trial court relied on section 1170.12, subdivision (c)(2)(A)(ii). This statute requires increased sentences for current felony convictions when the defendant has two or more prior “strike” convictions of felonies defined either as “violent” by section 667.5, subdivision (c), or as “serious” by section 1192.7, subdivision (c). (§ 1170.12, subds. (b)(1), (c)(2)(A).) In the present case, the trial court found that appellant’s prior convictions included three separate strikes: prior 1, the San Francisco assault conviction; prior 2, the San Francisco battery conviction, and prior 3, the San Mateo witness conviction.
Appellant argued at the trial on the priors, and now reiterates on appeal, that the trial court could not properly treat the San Francisco battery conviction as a strike for purposes of section 1170.12, subdivision (c)(2), as alleged in prior 2, based purely on the face of the judgment and the 969(b) packet, and without considering any specific facts underlying the conviction. Appellant argues (and respondent does not disagree) that a conviction for aggravated battery can only count as a strike under the applicable statutes if it is a conviction for a “felony in which the defendant inflicts great bodily injury on any person other than an accomplice” (or in which the defendant used a firearm, which was not alleged to have occurred in connection with the San Francisco battery conviction). (§ 667.5, subd. (c)(8); see also § 1192.7, subd. (c)(8).) Appellant contends that the evidence before the trial court in this case did not establish that when he committed the acts leading to the San Francisco battery conviction, he inflicted great bodily injury on a person other than an accomplice.
We note that the trial court could have, and indeed was required to, sentence appellant under section 1170.12, subdivision (c)(2), even if the San Francisco battery conviction was not a strike, because it found that appellant had two other priors that qualified as strikes. Nonetheless, we will consider appellant’s argument regarding prior 2 on the merits, for two reasons. First, respondent does not contend that the existence of two other strikes moots appellant’s argument. Second, in the trial court, appellant made the same argument with respect to prior 1, the San Francisco assault conviction. Although he does not reiterate the argument on appeal with respect to that conviction, we are concerned that this omission, coupled with a failure on our part to reach the issue on the merits with respect to prior 2, could render appellant’s sentence subject to collateral attack. Accordingly, we find it preferable to reach the merits of the issue.
The statute under which appellant was convicted in the San Francisco battery conviction requires that the defendant must inflict “serious bodily injury” on the victim. (§ 243, subd. (d).) As appellant acknowledges, People v. Moore (1992) 10 Cal.App.4th 1868, 1871 held that this statutory requirement is “essentially equivalent” to the “great bodily injury” required for a strike. Appellant contends, essentially, that Moore was wrongly decided on this point.
Even if Moore had been wrongly decided, we would still reject appellant’s argument in this particular case. Close scrutiny of the record of appellant’s San Francisco battery conviction demonstrates that the trial judge did not err in treating it as a strike. The 969(b) packets admitted into evidence at the trial on appellant’s prior convictions included an amended abstract of judgment stemming from the San Francisco battery conviction. This document shows that the sentence for that conviction was stayed under section 654, which implies that it stemmed from the same occurrence as the San Francisco assault conviction, which is the only other conviction reflected on the same abstract of judgment, and which was evidently treated as the principal count for sentencing purposes. Moreover, the same abstract also shows that an enhancement allegation under section 12022.7 was found true as to the San Francisco assault conviction, and the sentence for that enhancement was also stayed.
As it read at the time of appellant’s conviction on the charges reflected in the abstract, section 12022.7 provided for enhanced sentences for persons who personally inflicted great bodily injury under various circumstances. Thus, the abstract of appellant’s San Francisco battery conviction reveals on its face that the conduct underlying that conviction involved the infliction of great bodily injury by appellant on his victim. Accordingly, the trial court did not err in treating that conviction as a strike.
We refer to the text of the statute in effect prior to December 31, 2000. Subsequent amendments have revised the statute in various respects, but have not changed the fact that it requires a finding that the defendant personally inflicted great bodily injury. Appellant’s counsel speculated at oral argument that appellant’s San Francisco battery conviction may have involved involved a group beating, and argued that this possibility precludes treating it as a strike on the basis of the current record. The California Supreme Court held in People v. Modiri (2006) 39 Cal.4th 481, 485-486, 498-499, however, that active participation in a group beating resulting in great bodily injury satisfies the requirement of personal infliction for the purposes of section 12022.7. Since section 667.5, subdivision (c)(8) defines as a strike “[a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in [s]ection 12022.7 . . .,” it follows that appellant’s San Francisco battery conviction would qualify as a strike under section 1170.12 even if it did arise from a group beating.
Disposition
By separate order filed today, we deny appellant’s related petition for habeas corpus in case number A116119.
We concur: Reardon, J., Sepulveda, J.