Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Super. Ct.No. SWF023090 Mark E. Petersen, Judge. Affirmed.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P. J.
I. INTRODUCTION
Defendant Samuel Paul Morris appeals from his conviction of attempted second degree murder (Pen. Code, §§ 664, 187, subd. (a) – count 1) and assault with a firearm (§ 245, subd. (a)(2) – count 2). Defendant contends: (1) the evidence was insufficient to establish that he was the shooter; (2) his conviction for attempted murder must be reversed because there was insufficient evidence to establish that he had the specific intent to kill the victim; and (3) the trial court abused its discretion by discharging a juror during deliberations because the inability of the juror to perform his duties did not appear in the record as a demonstrable reality. We find no error, and we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTS AND PROCEDURAL BACKGROUND
In July 2007, defendant was staying with his girlfriend, Stephanie Barrera, at the home of Stephanie’s mother, Rhonda Barrera, in San Jacinto. The night of July 15, defendant’s friend, Roy Flores, and Flores’s girlfriend, Michelle Garcia, also spent the night at Rhonda’s apartment. Earlier that evening, someone had fired shots at Garcia’s house, which was about two blocks away from Rhonda’s house.
The morning of July 16, 2007, Garcia went home; Flores was still asleep on Rhonda’s couch. Flores woke up later, left Rhonda’s apartment to walk to his house, and began walking through a field across the street. He heard a noise, turned around, and was shot in the shoulder. The shooter was eight to 10 feet away, but Flores had been looking down and did not see the shooter’s face or who the shooter was. He could tell the person was fairly tall and had skin darker than defendant’s skin.
Flores testified that defendant was not the shooter. Flores had never had any problems with defendant, and they had never argued or fought. Flores could not think of any reason defendant would want to shoot him.
When Rhonda woke up that morning, the door to the bedroom where defendant and Stephanie were sleeping was closed, and Rhonda did not see Flores or Garcia in the apartment. Rhonda left the apartment, and when she was warming up her car, she heard a single gunshot. She pulled forward to get a better view and looked toward the field. She saw broken pieces of fence and the back of a man standing at the opening of the fence. She drove around the corner and saw Flores standing by the fence holding his chest. She did not see anyone else in the area. Flores ran up to her car and asked her to get Garcia and take him to the hospital. Flores did not respond when Rhonda asked who had shot him. Rhonda drove around the corner to Garcia’s house and picked up Garcia, and they took Flores to the hospital.
Garcia testified she had never discussed what had happened with Flores because she “didn’t want to talk to him about it.” Flores never told her who had shot him.
Rhonda’s daughter, Monica, testified she and her infant daughter had slept in the same room as defendant and Stephanie the night of July 15. When Monica woke up to feed her daughter at 4:30 or 5:00 a.m. on July 16, Stephanie and defendant were asleep. Later that morning, defendant woke up Stephanie and asked her if she wanted to go with him to his cousin’s house. They both walked out of the room. Later that day, defendant told Stephanie he had heard shots, and he was worried about police being in the area because there was a warrant out for his arrest.
Monica had earlier told an interviewer that defendant had come into the bedroom, grabbed Stephanie’s arm, and pulled her up and out of the room. Defendant said “let’s go, ” but Stephanie did not say anything.
Around 10:00 a.m. on July 16, David Kirby was getting into his van outside his home near Rhonda’s apartment. Defendant and Stephanie walked across the street and asked for a ride out of the area and then got into the van. Kirby, who knew defendant, told them he did not have the time or the gas to give them a ride. Defendant became upset and said, “I’m not playing. Get me out of here right now. Get me out of here right now. I’m not playing with you.” “‘Cause I just shot someone.” Defendant had his hand in his pocket, but Kirby never saw a gun. Kirby was scared and shaken up, so he took defendant and Stephanie to their destination. Defendant told him not to tell anyone where they had gone. At the preliminary hearing, Kirby testified defendant had said, “[S]omebody might have been shot.”
Stephanie testified she did not hear defendant tell Kirby he had shot someone. She also did not hear defendant tell Kirby not to tell anyone where he had taken them.
Flores was admitted to the hospital with a gunshot wound to his shoulder; the bullet had entered his chest. Flores told the emergency room physician that when he was walking, an unknown assailant had come up to him and shot him. The bullet appeared to be.32- or.38-caliber.
Detective James Campos and Deputy Holmes spoke to Flores on July 25, 2007. Flores said, “I’m not gonna rat no one out though.” Deputy Holmes said, “Well but if... I didn’t say a name and I said... its so and so without saying a name, you gonna tell me yes or no so we get a lead, I mean, you worried about this guy coming at you again?” Flores responded, “No, cuz I heard he was locked up, ” “[s]ay 3 days, 4 days ago.” Flores said he did not “have an ongoing beef with him, ” and Flores did not know why “he” had done this. Deputy Holmes asked, “Okay. Is it... one of the Barrera girl’s boyfriends?” and Flores responded, “Stephanie.” The following exchange occurred:
“HOLMES: What was the beef with him?
“FLORES: I don’t have beef with him. I’m cool with him[.]
“HOLMES: Was he just spun out?
“FLORES: Probably[.]
“HOLMES: Yeah, cuz he gets that way.
“FLORES: But I’m cool with him[.]
“HOLMES: Really? Did he say anything to you when he did this?
“FLORES: Just, I heard him say something but I don’t remember[.]
“HOLMES: You don’t remember what he said[.]
“FLORES: I think just to—, catch my attention. I turned around and I just got shot.” In previous interviews, Flores had denied knowing who the shooter was and denied it was defendant. Flores refused to identify defendant’s photograph in a photographic lineup.
The jury found defendant guilty of counts 1 and 2 and found true special allegations as to count 1, that defendant personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), and as to count 2, that defendant personally used a firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). Defendant admitted a prior prison term conviction. (§ 667.5, subd. (b).)
The trial court sentenced defendant to the upper term of nine years for count 1, a consecutive term of one year for the prior prison term enhancement, and a term of 25 years to life for the section 12022.53, subdivision (d) enhancement. The trial court imposed and stayed sentence for count 2 and the remaining enhancements under section 654.
III. DISCUSSION
A. Sufficiency of Evidence that Defendant Was the Shooter
Defendant contends the evidence was insufficient to establish that he was the shooter.
1. Standard of Review
When a criminal defendant challenges the sufficiency of the evidence to support his conviction, we “must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (Ibid.) We may not reweigh the evidence and substitute our own judgment for that of the jury. (People v. Ceja (1993) 4 Cal.4th 1134, 1139.) “Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the [substantial evidence] standard is sufficient to uphold the finding.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052 (Barnwell).) “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the... jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403.)
2. Analysis
Defendant argues that “the prosecution relied [on] an inconsistent statement by Kirby, and an ambiguous response by Flores, ” to support the theory that defendant was the shooter; however, other evidence and the testimony of other witnesses did not support that theory. The prosecution did rely principally on two items of evidence to establish that defendant was the shooter. First, when Deputy Holmes asked Flores if the shooter had been the boyfriend of one of the Barrera girls, Flores responded, “Stephanie.” Second, Kirby testified defendant had told him to drive defendant and Stephanie out of the area immediately because “I just shot someone.”
Defendant points out that Flores testified at trial he did not tell Deputy Holmes that Stephanie’s boyfriend had shot him. Rather, when Flores said, “Stephanie, ” to Deputy Holmes’s question, he was asking a question, not responding to one. However, the jury heard an audio version of the interview and could reasonably reject Flores’s explanation of his response.
Defendant also points out inconsistencies in Kirby’s testimony. At trial, Kirby testified that defendant had told him to get out of the area right now because “I just shot someone.” At the preliminary hearing, Kirby testified defendant had said that “[s]omebody might have been shot.” At trial, Kirby explained that Stephanie and Rhonda had been present at the preliminary hearing, and he had “felt intimidated” and nervous because of “the circumstances of where [he] lived and what ha[d] gone on there.” Kirby admitted he had given false testimony at the preliminary hearing because he was afraid of being labeled as a snitch. At the time of trial, he was willing to testify because he had moved out of the area. However, during cross-examination, he testified he had moved out of the neighborhood before the preliminary hearing. Nonetheless, despite the inconsistencies, the jury, as trier of fact, could reasonably accept Kirby’s trial testimony. (People v. Ceja, supra, 4 Cal.4th at p. 1139.)
In sum, defendant’s arguments hinge on his own interpretations of the evidence, the inferences to be drawn from the evidence, and the credibility of the witnesses. However, our task is not to reweigh the evidence or reevaluate the credibility of the witnesses. We therefore conclude substantial evidence supports the jury’s determination of defendant’s guilt. (People v. Maury, supra, 30 Cal.4th at p. 403.)
B. Sufficiency of Evidence of Intent to Kill
Defendant contends his conviction for attempted murder must be reversed because there was insufficient evidence to establish that he had the specific intent to kill the victim.
“Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citations.]” (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 7.) Thus, intent to kill is an essential element of the crime of attempted murder (People v. Scott (1997) 15 Cal.4th 1188, 1213), and implied malice is not sufficient. (People v. Lashley (1991) 1 Cal.App.4th 938, 945, fn. 4.)
An intent to kill is shown if the defendant either desires the death of the victim or knows to a substantial certainty that death will occur as the result of the defendant’s action. (People v. Smith (2005) 37 Cal.4th 733, 739.) There is rarely direct evidence of the defendant’s intent; rather, intent must be shown “from all the circumstances of the attempt, including the defendant’s actions. [Citation.]” (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.)
Our Supreme Court has stated that “‘[t]he act of firing toward a victim at a close, but not point blank, range “in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill....” [Citation]’ [Citations.]” (People v. Smith, supra, 37 Cal.4th at p. 741.) Moreover, “‘The fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. Nor does the fact that the victim may have escaped death because of the shooter’s poor marksmanship necessarily establish a less culpable state of mind.’ [Citation.]” (People v. Chinchilla, supra, 52 Cal.App.4th at p. 690; see also People v. Bolden (2002) 29 Cal.4th 515, 560-561 [evidence supported an inference of an intent to kill when the defendant inflicted to the back of a largely defenseless victim a single deep stab wound that penetrated his lungs and spleen].)
Here, defendant fired a single shot into Flores’s right shoulder from a distance of only eight to 10 feet. The lethal nature of the weapon and the short distance from which it was fired support an inference that defendant intended to kill. Moreover, defendant shot Flores in the shoulder, and the bullet entered Flores’s chest, causing a partially collapsed lung and a contusion to the lung, both of which were potentially life threatening. The treating physician testified that a gunshot wound at that entrance site could have caused immediate death through injury to the lung, bronchus, esophagus, or heart.
Defendant points out that no evidence showed motive; defendant and Flores were friends; and there had been no previous dispute, argument, physical altercation, or threats. However, “evidence of motive is not required to establish intent to kill, and evidence of motive alone may not always fully explain the shooter’s determination to shoot at a fellow human being with lethal force.” (People v. Smith, supra, 37 Cal.4th at p. 741.)
We conclude substantial evidence supports the finding of intent to kill.
C. Discharge of Juror
Defendant contends the trial court abused its discretion by discharging a juror during deliberations because the inability of the juror to perform his duties did not appear in the record as a demonstrable reality.
1. Additional Background
The jury began to deliberate at approximately 1:38 p.m. on August 21, 2008. At about 4:00 p.m., Juror No. 12 sent the trial court a note stating, “I would like to get off the case. It Becoming [sic] a problem with others [sic] Jurors on the case.” The jury adjourned for the day.
The next morning, the trial court informed counsel of the note and stated it intended to ask each juror if all the jurors were participating and deliberating and if anyone was refusing to do so. The trial court then called each juror individually.
Juror No. 1 stated everyone was participating and was willing to follow the court’s instructions. No one was refusing to deliberate or participate, and everyone was willing to follow the trial court’s instructions.
Juror No. 2 stated everyone was participating, and no one was refusing to participate or deliberate.[RT 608-609} When asked if everyone was willing to follow the trial court’s instructions, Juror No. 2 stated that Juror No. 12 had made up his mind before deliberations and was not willing to discuss it further. Juror No. 2 clarified that Juror No. 12 had participated and deliberated “a little bit” earlier, but by the end of the day, was not deliberating anymore.
Juror No. 3 stated that Juror No. 12 had not participated in deliberations “the entire time” and was refusing to do so. Juror No. 12 sat back with his feet up and had said little other than that he would not change his mind. When other jurors asked him to look at the evidence, he refused to do so.
Juror No. 4 stated he or she believed Juror No. 12 was not participating and was refusing to deliberate. Juror No. 4 described Juror No. 12 as “just leaning back in [his] chair with [his] hands behind [his] head and elbows out to both sides.” When he expressed his views, he discussed things that were not in evidence. Juror No. 4 did not believe Juror No. 12 was willing to follow the jury instructions.
Juror No. 5 stated Juror No. 12 was not participating in deliberations. Similarly to Jurors Nos. 3 and 4, Juror No. 5 described Juror No. 12 as “[s]itting back in the chair, not participating with our discussion. Kind of just in the corner.” Juror No. 12 had said he had made up his mind and did not want to participate in discussions, although other jurors had encouraged him to do so.
Juror No. 6 stated not all jurors were participating in the deliberations. Specifically, Juror No. 12 had announced how he intended to vote and refused to participate in discussions. Juror No. 6 stated Juror No. 12 had never participated in the discussions. Juror No. 12 saw the evidence differently from the other jurors, but he was not willing to discuss it with the other jurors.
Juror No. 7 stated all the jurors had participated in deliberations. Juror No. 12 had participated for the first 10 or 15 minutes, then said he had made up his mind. The other jurors unsuccessfully tried to bring Juror No. 12 into the discussions. Juror No. 7 explained, “Body language. Sits in the corner. As for responding in my own words, I have made up my mind. It doesn’t matter what you guys say. My mind is made up. You guys can sit here all day. In somewhat that verbiage.”
Juror No. 8 stated all the jurors were participating in the deliberations and all were “freely discussing it.”
Juror No. 9 stated Juror No. 12 was not contributing; he had made a few statements initially but then isolated himself in a corner and was not participating. When other jurors tried to bring Juror No. 12 into the discussions, he was “nonresponsive.”
Juror No. 10, the foreperson, stated everyone was participating but then stated Juror No. 12 was unwilling to deliberate: “He has made up his mind. He sits back and observes. He has stated how he is going to vote.” Juror No. 10 stated Juror No. 12 had participated in deliberations during the first hour and a half, including expressing his views about the evidence and discussing the evidence. Juror No. 12 had then stated how he was going to vote.
Juror No. 11 stated Juror No. 12 was refusing to participate in deliberations: “He is very opinionated, and has a definite opinion and has made a statement, it doesn’t matter what you say or do, that he has already made up his mind, and hasn’t really gone any further than that, other than to make statements that don’t have anything to do with it.” Juror No. 11 stated Juror No. 12 was [n]ot willing to participate” in discussions.
Juror No. 12 stated that everyone was participating in deliberations, but also that someone was refusing to deliberate or participate. He stated that the deliberation process was stressing him out because he “just [didn’t] believe in it.” He did not believe he could join in the discussions of the evidence because he believed the others would not listen to him. Juror No. 12 stated that at some point, he had stopped talking and deliberating. When asked if he “could follow the instructions on the case and keep an open mind when discussing the case with the other jurors, ” he responded, “I just don’t believe in it.”
Following argument of counsel, and over defense objection, the trial court found that “the all-around theme is that, at least, at this point in time, Juror No. 12 is refusing to deliberate.” The court stated that, even though Juror No. 12 had made up his mind, he would not express his views to the other jurors or continue to deliberate with them. The court stated that Juror No. 12 “has shut down completely, and... he is not performing his duty” to deliberate. The trial court found good cause to dismiss Juror No. 12 and replaced him with an alternate juror.
The trial court instructed the jury to disregard its earlier deliberations and begin anew. The jury began deliberating at 11:39 a.m. The jury sent the trial court a request for a read back of Kirby’s testimony. The jury reached its verdicts at 3:21 p.m.
2. Standard of Review
In reviewing the removal of a sitting juror, this court determines whether the ground for disqualification appeared as a demonstrable reality. “The demonstrable reality test entails a more comprehensive and less deferential review” than the substantial evidence inquiry. (Barnwell, supra, 41 Cal.4th at pp. 1052-1053.) Although we do not reweigh the evidence, we “must be confident that the trial court’s conclusion is manifestly supported by evidence on which the court actually relied.” (Id. at p. 1053.) We limit our inquiry to review of the reasons the trial court actually relied on and the sufficiency of the evidence to support those reasons. (People v. Wilson (2008) 44 Cal.4th 758, 821 (Wilson).)
3. Analysis
Section 1089 provides that “upon... good cause shown to the court, ” if a juror “is found to be unable to perform his or her duty, ” the trial court may discharge the juror and replace him or her with an alternate. “When a court is informed of allegations which, if proven true, would constitute good cause for a juror’s removal, a hearing is required. [Citations.]” (Barnwell, supra, 41 Cal.4th at p. 1051.) We must distinguish “between a juror who cannot fairly deliberate because of bias and one who, in good faith, disagrees with the others and holds his or her ground. ‘The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge. A juror who has participated in deliberations for a reasonable period of time may not be discharged for failing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views. [Citation.]’ [Citation.]” (Ibid.)
In People v. Thomas (1994) 26 Cal.App.4th 1328, the appellate court found no abuse of discretion in the dismissal of a juror who “failed to perform his duty to deliberate before reaching his decision. The juror did not answer the questions posed to him by other jurors, did not sit at the table with the other jurors during deliberations, acted as if he had already made up his mind before hearing the whole case, and did not look at the two victims in the courtroom.” (Id. at p. 1333.) Here, several jurors commented that Juror No. 12 isolated himself by his body language, sitting in a corner. One juror noted that Juror No. 12 refused to look at evidence when the other jurors asked him to do so. Another juror stated Juror No. 12 was “nonresponsive” when other jurors tried to engage him in deliberations.
In People v. Feagin (1995) 34 Cal.App.4th 1427, the appellate court found no abuse of discretion in the dismissal of juror who had been unwilling to participate in jury discussion, refused to explain her thoughts, stated she had already made up her mind and was not going to change it even with respect to issues the jury had not yet discussed, and stated she had prejudged the credibility of police officer witnesses. (Id. at pp. 1434-1437.) Here, similarly, Juror No. 12 refused to explain his views of the evidence. At least one juror stated Juror No. 12 had made up his mind before deliberations began.
In People v. Cleveland (2001) 25 Cal.4th 466, the Supreme Court listed examples of conduct that might constitute a refusal to deliberate justifying dismissal of a juror: “A refusal to deliberate consists of a juror’s unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views. Examples of refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury. The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge. A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views. [Citation.]” (Id. at p. 485.)
Here, Juror No. 12 conceded he was refusing to deliberate and stated it was because he did not believe in it. As noted, other jurors confirmed that he was physically isolating himself from the other jurors, through body language and by sitting in a corner. Nine jurors told the trial court that Juror No. 12 was not participating in the deliberations, although not all the jurors were asked how long Juror No. 12 had participated in the deliberations.
Under all the circumstances, we conclude the ground for the disqualification of Juror No. 12 appears as a demonstrable reality. (Barnwell, supra, 41 Cal.4th at pp. 1052-1053.) The trial court did not abuse its discretion in dismissing Juror No. 12.
IV. DISPOSITION
The judgment is affirmed.
We concur: MCKINSTER, J. KING, J.