Opinion
F059210 Super. Ct. No. VCF216475
03-23-2011
THE PEOPLE, Plaintiff and Respondent, v. ERICK DANIEL GONZALEZ, Defendant and Appellant.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Larenda Delaini, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Larenda Delaini, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury found defendant Erick Daniel Gonzalez guilty of first degree burglary and first degree murder with burglary-murder special circumstances. On appeal, Gonzalez contends that certain comments made by the prosecutor in his closing argument were improper, the trial court responded incorrectly to a jury question, and the trial court abused its discretion by denying Gonzalez access to a jurors identifying information. Gonzalez also raises two sentencing errors, which the People agree should be corrected. We reverse these parts of the sentence, direct the trial court to prepare an amended abstract of judgment, and affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL HISTORIES
Shortly before 11:00 p.m. on January 27, 2009, Tulare County deputy sheriffs and Dinuba police officers responded to a 911 call reporting a gunshot at the home of Roberto Alvarez, located just outside the Dinuba city limits. They found Roberto lying in the master bedroom. He had been shot in the head but was still alive. The bedroom appeared to have been ransacked, with drawers open and clothes everywhere. The officers found marijuana plants and several different types of ammunition.
In the living room, a large flat-screen television had been moved from an entertainment stand and was unplugged. Three women were also present: Robertos live-in girlfriend Luz, his sister Maria, and Mayra, the girlfriend of Robertos brother Alvaro. Roberto later died from his gunshot wound.
The house was set up to grow marijuana. There was little personal property in the house, and officers found 484 marijuana plants, over 36 pounds of processed marijuana, more than four pounds of marijuana seeds, and high-intensity grow lights. One room also appeared to be used to manufacture methamphetamine.
In 2006, Roberto, his brother Alvaro, and their sister Erica had been arrested for crimes related to marijuana cultivation, and over $750,000 in cash and many marijuana plants had been seized. At the time of Robertos murder, Gonzalez was Ericas boyfriend, and Gonzalez and Erica lived together in a house in Merced with Ericas daughter and mother and Ericas siblings.
Gonzalez was charged in count 1 with murder (Pen. Code, § 187, subd. (a)), with the special circumstance of lying in wait (§ 190.2, subd. (a)(15)), and it was alleged the murder was committed during the commission of the crimes of burglary and robbery (§ 190.2, subd. (a)(17)(A) & (G)). In count 2, he was charged with first degree residential burglary (§ 459) and in count 3 with attempted second degree robbery (§§ 664, 211). Firearm special allegations (§ 12022.53, subds. (b)-(d)) were alleged with respect to each count. Before trial began, the court set aside the special circumstance of lying in wait on count 1.
All further statutory references are to the Penal Code unless otherwise stated.
A jury trial began on November 9, 2009. The prosecutions case primarily relied on the eyewitness testimony of Luis, Robertos brother, and cell phone records showing that Gonzalezs phone had traveled from Merced (where Gonzalez lived) to Dinuba (where Roberto lived and was shot) around the time of the shooting.
At trial, Luis testified with the assistance of an interpreter. Luis came to the United States from Mexico in December 2008 and stayed at his brother Robertos house in Dinuba with Roberto and his girlfriend, Luz. Luis helped Roberto take care of the marijuana plants. At the time of his testimony, Luis was serving a prison sentence for drug offenses related to the marijuana found in Robertos house. Luis knew that Gonzalez worked two jobs and spent Christmas at Gonzalezs house in Merced.
On January 27, 2009, Roberto, Luis, and Alvaro drove from Dinuba to buy a rooster. Luis was not familiar with the geography of the United States and did not know where they went to get it, but stated they drove for "a good while." Police later determined that the rooster (which they found at the crime scene) had come from Fontana, California.
On the ride home, Roberto received a call from his girlfriend Luz, who told him that his aunt wanted to talk to him. Robertos aunt, uncle, and sister Maria visited Robertos house that day. They told Luz they were looking for Roberto. Luz called Roberto and handed the phone to his aunt, and she told Roberto that they had come from Washington State to talk to him.
When Luis and Roberto returned to Robertos house, it was dark. Gonzalez and a man and woman Luis did not recognize were already present. Luis overheard Roberto and Gonzalez talking about money and heard Roberto say that "he never expected him to do this to him." Roberto and Gonzalez walked outside, then Roberto went back in the house, and Gonzalez remained outside. While he was in the hallway on the way to the bathroom, Luis saw the woman walk quickly out of Robertos bedroom. She did not face Luis and he did not know who she was. Roberto went into his bedroom.
Luis saw Gonzalez come into the house, walk to Robertos bedroom, and shoot Roberto. Luis thought that Gonzalez was going to kill him too. Luis noticed that Robertos bedroom looked as though it had been searched. Also, Roberto usually kept various firearms hanging on the living room wall—two shotguns, a handgun, a rifle with a scope—but Luis noticed they were missing.
Luis testified that he was panic-stricken and did not know what to do. He did not call 911 or seek medical help for Roberto. He took the keys to Robertos car and drove toward Walmart to look for Luz. He wanted to tell her what had happened and ask what they should do. On the way, Luis saw her car and honked at her. Luz pulled over and they met in a parking lot. Maria (Roberto and Luiss sister) and Mayra (Alvaros girlfriend) were with Luz. Luis told them that Gonzalez had killed Roberto.
Luz took Luis to Mayra and Alvaros house, and the police found him there the next day. The police questioned Luis. At first he denied knowing Roberto and made many conflicting statements. Eventually, Luis broke down and cried and told the police what he had seen. Luis did not want to tell the police what had happened "because of [his] fear that something might happen to [his] family, since they were staying over there at the other house," that is, Erica and other family members lived in the house in Merced with Gonzalez.
A detective with training in cellular telephone tracking testified about calls made and received on January 27, 2009, by Gonzalezs cell phone. The detective obtained records for Gonzalezs cell phone number, which included the cell phone towers used on the night of the shooting. The detective plotted the towers on a map, showing that Gonzalezs cell phone traveled roughly south along State Route 99 from Merced to Dinuba. He indicated that a call at 8:33 p.m. hit off a cell phone tower in Le Grand (between Merced and Fresno). Later, a call at 9:16 p.m. hit off a tower in Fresno. Then, a call at 9:48 p.m. hit off a tower north of Dinuba within three miles of Robertos house. Finally, a call at 10:19 p.m. hit off a tower southwest of Robertos house.
The police never located Alvaro or questioned him. Maria also disappeared after the shooting and did not testify. Mayra and Luz gave conflicting accounts of how they met with Luis and learned about Roberto on the night he was shot. For example, Luis testified that he saw Mayra, Luz, and Maria together in a car while he was driving by himself toward Walmart. Luis said that he did not know where Alvaro and Mayra lived; however, Mayra said that Luis went to her house and told her that Roberto had been shot. According to Mayra, she called Maria, and then Mayra and Luis drove to a parking lot to meet with Luz and Maria.
In conflict with Luis and Mayras versions of events, Luz testified that she (Luz) and Maria went to a parking lot and met with Luis, Mayra, and Alvaro. Luz also stated that, before they went to the parking lot, Maria received a phone call and told Luz that "el gordo killed him," which Luz understood to mean that Gonzalez had killed Roberto. According to Luz, after the parking lot meeting, Maria and Mayra went to Robertos house, and Luz went with Alvaro and Luis to Alvaros house.
Evidence was presented that grow lights, fans, and Mylar similar to the equipment used to grow marijuana at Robertos house were found in a search of the Merced house where Gonzalez lived with Erica and her family. No marijuana, however, was found. Nine or 10 cell phones were seized from the Merced house.
A criminalist testified about gunshot residue swabs taken in the investigation. He stated that a person who discharges a firearm or who is in close proximity to a firearm when it is discharged might receive gunshot particles. The criminalist analyzed swabs taken from Luz, Mayra, Maria, Roberto, and Gonzalez and found no gunshot residue particles. A swab also was collected from a black Nissan Altima found at the Merced house, and particles were found on the steering wheel and drivers door. This car was usually driven by Ericas brother.
At the close of the prosecutions case, the court dismissed the robbery charge. The jury found Gonzalez guilty of murder with the special circumstance that he was engaged in the commission of a burglary, and of first degree burglary. With respect to both counts, the jury concluded that Gonzalez had personally used a firearm. Gonzalez was sentenced to life imprisonment without the possibility of parole, plus 25 years to life on count 1. The sentence on count 2 was stayed pursuant to section 654. The court ordered that Gonzalez "[h]ave no further contact with victims family, in person, in writing, by telephone or by Internet."
DISCUSSION
I. Prosecutors closing argument
Gonzalez contends that the prosecutor committed prejudicial misconduct in his final closing argument, improperly diminishing the reasonable doubt standard and shifting the burden of proof. We disagree with Gonzalezs characterization of the prosecutors statements. The statements were permissible responses to defense theories and comments on the state of the evidence.
In his initial closing argument, the prosecutor described Luiss eyewitness testimony and the cell phone records. The prosecutor told the jury that Gonzalez could not raise defenses such as insanity, heat of passion, or self-defense and concluded: "Alibi? Well, no,... nobody came in to testily that he was at their house. Nobody did that. What are we left with? Our defense: You cant prove it. You cant prove it." Defense counsel did not object to these statements.
In his closing argument, defense counsel argued that there were suspects other than Gonzalez, stating, "There are many, many suspects. The prosecutor said there is only one. Whoever Roberto had dealings with, and excuse me, but crazy family with the aunt and uncle. A world of suspects. And this guy may be the least likely." Defense counsel theorized that Luis and others were framing Gonzalez and protecting Alvaro or another member of Robertos family. "[Gonzalez is] their patsy. Hes their big dope." "[T]his case is confusing because it started in lies and it continued in lies. We know theres more going on than Luis is trying to say. We know theyre hiding Alvaro, if you look at all the evidence." "[Luis and Mayra are] covering for Alvaro and probably others, too, the aunt and uncle. Something, because theyre not calling for help."
Defense counsel also stated that whoever shot Roberto then stole from Robertos house, which explained why no one called for help immediately. "[T]hey did get money, they did get the guns, they did get the stuff thats gone [from Robertos house]. They certainly waited and waited after whatever happened to Roberto." Defense counsel suggested that, alternatively, a drug cartel associate of Robertos may have killed him because of the 2006 arrest and seizure of $750,000. "We know Roberto had big money. This gun the officer said is like cartel people use.... [¶] [T]he big money, the drugs, the cartel, they lost $750,000 a couple years ago. I dont suppose it was all his. I suppose somebody might want some of that back and be looking for him."
The cell phone evidence was suspect, defense counsel argued, because there were 10 phones found in Gonzalezs house, and the police did not know how many phones were in Gonzalezs name. Counsel pointed out that there was no physical evidence—no fingerprints or DNA—linking Gonzalez to the crime scene.
Defense counsel questioned Luiss explanation for initially lying to police. Luis said he was afraid for his family, but, "[w]hy did the family all stay with [Gonzalez], which they did? The family all stayed with him. Nobody was scared for them." Luis was lying, defense counsel surmised, because "he either fears the person that did it or he cares for the person more than [Gonzalez]." "If it could be that Luis is lying or is afraid of the real killers or hes just a liar, or he cares more for the one who did the killing, that is reasonable doubt."
In his final closing argument, the prosecutor responded to defense counsels theories.
"One thing I want you to remember, how many times? If you can count that high, the defense attorney said probably. You know what probably stands for? Probably stands for the fact he had no evidence and he is speculating.Again, defense counsel did not object.
"That, of course, is why that reasonable doubt instruction says that everything is open to some possible or imaginary doubt, but you have to have, in order to vote not guilty, a reasonable doubt based on all the evidence. There is no evidence that anybody had the phone other than the defendant. None.
"So to come to a conclusion that somebody else had it, would be saying Im gonna take something thats not evidence, and Im going to, you know, say possibly somebody else had it."
Later in his argument, the prosecutor countered defense counsels argument that Luiss behavior on the night of the shooting was suspicious and indicated that he was covering for another killer:
"So youve got a guy, who is in a location. We dont hear he had a car. Theres no evidence that he was driving around. He was there sitting in the house taking care of chickens and marijuana. Thats what he was doing.
"Do you think he had a good knowledge of Dinuba particularly at night? Do you think that in a place where he doesnt speak the language of most of the folks around is involved in what he knows to be an illegal
business, who is here clearly in a nonlegal manner, who saw somebody shot from feet away, thought he was going to get shot, and has no phone, is going to run down to a police station he doesnt know where it is? "And if he goes back to the house, is he going to be sitting there talking with everybody, or is he going to be sitting there thinking about what happened? Their witness said he was nervous. Well, could you describe how? Because people can act nervous in different ways. He was shaking, which was what he said. But—with no evidence that—there is no evidence that anyone else committed this crime. Were going to possibly this person, no evidence, but possibly this, possibly that, possibly the other.. "
At this point, defense counsel objected that the prosecutor was shifting the burden of proof. The trial court overruled the objection. The prosecutor continued: "No evidence but youve got Luis, who is supposedly covering, you know, possibly again, a thing of no evidence, hes covering for somebody he loves, or possibly no evidence hes scared of somebody, not the defendant. But so what were going to do is make this guy over here—were going to pin it on him. [¶]... [¶]... The reality is there is no evidence in this case that anybody did this crime except the eyewitness evidence of Luis, and except the phone record evidence."
The prosecutor concluded: "Counsel [for the defense] talked about DNA and fingerprints GSR. You do not see anywhere in the instructions that any of those things are necessary. Whats necessary is you look at all the evidence, and is the defendant guilty beyond a reasonable doubt after looking at all that evidence? And the evidence you have is that the defendant, who said its his phone, that that phone traveled down to Dinuba that night and traveled back up to Merced that night. Thats the evidence you have. You dont have any evidence that anybody else did this except for the eyewitness who said that guy did it."
"A prosecutors conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process." (People v. Morales (2001) 25 Cal.4th 34, 44.) Conduct that does not render the trial fundamentally unfair is prosecutorial misconduct under state law "if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (Ibid.)
"[T]he prosecution must prove every element of a charged offense beyond a reasonable doubt. The accused has no burden of proof or persuasion, even as to his defenses. [Citations.]" (People v. Gonzalez (1990) 51 Cal.3d 1179, 1214-1215.) Comments by a prosecutor are "improper if meant to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements." (Id. at p. 1215.)
Generally, a defendant must object to prosecutorial misconduct and request that the jury be admonished to disregard the improper comments to preserve the issue for appeal. A request for a curative admonition, however, is not required when the court immediately overrules the objection. (People v. Hill (1998) 17 Cal.4th 800, 820.) Even though defense counsel did not object to all the prosecutors comments, in the interest of judicial economy, we will review all the prosecutors statements complained of in Gonzalezs opening appellate brief.
Gonzalez contends that the prosecutor told the jury that the defense theory that someone else committed the crime could not raise a reasonable doubt, thereby diminishing the reasonable doubt standard and shifting the burden of proof to Gonzalez to produce evidence establishing someone else committed the crime. We disagree with Gonzalezs characterization of the prosecutors statements.
"To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutors statements. [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) In his closing argument, defense counsel suggested that Luis was lying either to cover for Alvaro or another family member or to protect his family from the real killer, possibly a member of a drug cartel. In response, the prosecutor told the jury, "there is no evidence that anyone else committed the crime," and Luis is "supposedly covering, you know, possibly again, a thing of no evidence, hes covering for somebody he loves, or possibly no evidence hes scared of somebody, not the defendant." We do not infer that the jury understood these comments to mean that the reasonable doubt standard was somehow diminished. The prosecutor was only reminding the jury that defense theories that Alvaro or another relative or a drug cartel member killed Roberto were not supported by evidence. These statements "amount[ed] to fair comment on the evidence...." (People v. Hill, supra, 17 Cal.4th at p. 819 [""The [prosecutors] argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom""].)
Nor did the prosecutors arguments shift the burden of proof to Gonzalez. The prosecutor did not say that Gonzalez had a burden to produce evidence to create reasonable doubt. He stated that there was no evidence to support the defense theories. "A distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence." (People v. Bradford (1997) 15 Cal.4th 1229, 1340.)
In People v. Bradford, supra, 15 Cal.4th at page 1339, the prosecutor commented to the jury that the defendant "presented no alibi witnesses" and, on a different issue, that "no evidence has been introduced by [the defense] on that issue." Our Supreme Court held that these comments did not shift the burden of proof to the defendant.
In People v. Ratliff (1986) 41 Cal.3d 675, 690-691, the defendant argued that the prosecutors comments on the defendants failure to produce any evidence, such as alibi testimony, improperly implied that the defendant had a burden of proving his innocence. The Ratliff prosecutor told the jury, "Now, is there any evidence on the other side? Any evidence at all? None has been presented to you. Absolutely zero has been presented to you by [defendant] and his attorney (Id. at p. 691.) The court found that "[n]one of the prosecutors remarks suggested that defendant had a burden of proof which he failed to carry...." (Ibid.) Similarly, in this case, the prosecutors remarks that there was no evidence that anyone other than Gonzalez killed Roberto did not suggest that Gonzalez had a burden to prove who killed Roberto.
In People v. Hill, supra, 17 Cal.4th 800, the court held that the prosecutor did impermissibly shift the burden of proof. In her closing argument, the prosecutor stated, "you have to have a reason for this doubt. There has to be some evidence on which to base a doubt, "" and "[t]here must be some evidence from which there is a reason for a doubt. You cant say, well, one of the attorneys said so." (Id. at p. 831.) The court found these comments to be somewhat ambiguous. "[T]o the extent [the prosecutor] was claiming there must be some affirmative evidence demonstrating a reasonable doubt, she was mistaken as to the law, for the jury may simply not be persuaded by the prosecutions evidence. [Citation.] On the other hand, [the prosecutor] may simply have been exhorting the jury to consider the evidence presented, and not attorney argument, before making up its mind." (Id. at pp. 831-832.) The "question arguably [was] close," but the court concluded that it was reasonably likely that the jury understood the comments "to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt." (Id. at p. 832.)
In this case, unlike in Hill, the prosecutor did not say or imply that some evidence was required to find reasonable doubt. Rather, he told the jury to determine whether there was reasonable doubt by looking at all the evidence. "[Y]ou have to have. a reasonable doubt based on all the evidence." "Whats necessary is you look at all the evidence, and is the defendant guilty beyond a reasonable doubt after looking at all that evidence?" Gonzalez argues that, "taken in context, the prosecutors rebuttal argument that the possibilities posited by counsel from the prosecutions own case were no evidence and were a thing of no evidence would have been understood by the jury as meaning [Gonzalez] had to produce some evidence to show someone else was guilty." We disagree and conclude the prosecutors statements were permissible comments on the state of the evidence.
II. Response to jury question
Gonzalez contends that the trial court responded incorrectly to the jurys question about the absence of alibi evidence. This contention is without merit.
About 10 minutes after the case was submitted to the jury, the court received a written question. The jury asked, "Can the [defendant] only submit an alibi if he testifies on his own behalf?" The trial court judge discussed the question with the attorneys, they all agreed the answer was no, and the court gave "no" as the response to the jury.
The next day, deliberations resumed at 10:00 a.m. and the court received a question at 10:12 a.m. The jury asked, "Since we are only allowed to consider the evidence that is entered, are we allowed to consider the fact that an alibi was not given for the defense"? The trial court judge and attorneys discussed the response. Defense counsel stated, "I think the answer is yes, they are, but I think they should be reminded that its still the prosecutions burden to prove the case. Defense doesnt have to prove." The prosecutor stated that the answer is just a simple yes. The court agreed with the defense: "I will say, as [defense counsel] suggested, that the answer is yes, but to remember that the prosecution has the burden of proving the defendant guilty beyond a reasonable doubt."
In the jury room, the judge told the jury, "[T]he answer is, after conferring with the attorneys, that yes, but you need also to always remember that the prosecution has the burden of proving the defendant guilty beyond a reasonable doubt." A juror asked, "But yes, we can consider that there was none given?" The judge answered, "Yes. With that—" and the juror said, "Caveat," and the judge replied, "Exactly."
Gonzalez does not contend that the trial courts response was an incorrect statement of law, and he acknowledges that a prosecutor may comment on the absence of alibi evidence in closing argument (see, e.g., People v. Bradford, supra, 15 Cal.4th at p. 1340). Gonzalez nonetheless contends that the trial courts response was in error because it "impermissibly shifted the prosecutions burden of proof to the defense by allowing the jury to consider an absence of defense evidence as affirmative evidence in favor of the prosecution rather than a context within which to regard prosecution evidence." Gonzalez urges that the trial court should have added that Gonzalez had no burden to produce any evidence or to prove anything. We reject this contention. In the very response Gonzalez complains of, the trial court told the jury "to always remember that the prosecution has the burden of proving the defendant guilty beyond a reasonable doubt."
Under these circumstances, we do not see how the jury would understand this as shifting the burden of proof to the defense. We assume the jury understood the response to mean that the prosecution always had the burden of proof. (See People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17 ["The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions"].)
III. Request for juror information
Gonzalez contends that the trial court erred by denying him access to juror identifying information. On the second day of deliberations, the bailiff was notified that a juror left the jury room for a break and did not return. The juror returned to the jury room after she had been gone for about 50 minutes. The jury reached a verdict that afternoon, after less than four hours of deliberation in total.
A week after the jury reached its verdict, Gonzalez filed a motion to release juror information pursuant to Code of Civil Procedure section 237. Defense counsel argued:
"In the present case, one of the jurors was absent from the jury deliberation room for approximately 50 minutes, during which time she could not be located by court personnel. When the juror was finally located she was reported to be very upset and was said to be taking a break. Only significantly unusual circumstances within the deliberation room would drive a juror outside and upset her to [the] extent that it would be noticeable to others and that she would feel forced to take a break from deliberations. Given these circumstances, there is a strong possibility of jury misconduct including undue pressure upon this juror and possibly others to make a finding contrary to their own beliefs about the facts of the case."
The prosecution opposed the motion, arguing, "Basing an allegation ofjuror or jury misconduct on the amount of time a juror takes for a personal break—and conjecturing on the reasons for, and results of, such break—does not establish a prima facie showing of good cause for the release of juror information."
On December 7, 2009, the court heard argument on the motion. Defense counsel stated that the juror who took the break was not the only one they were interested in. "[I]ts just as big a question whether the others deliberated without her present or whether they talked about how to deal with her. Of course, I have no way of knowing. I dont know how we can have any more showing of good cause without having already interviewed some jurors."
The trial court was not persuaded that the jurors absence suggested anything out of the ordinary may have occurred. The trial court stated, "It seems to me that we need something more than what we have. something such as" "the juror that took a break comes back, starts deliberating again, and maybe asked to talk to the Court, which happens occasionally, and the person says I dont feel comfortable, I feel pressured or whatever. And the person goes back, and 30 minutes later theres a verdict or something of that nature. But we dont have more than just this person took a break."
The trial court reviewed the minutes for the two days of deliberation. The jury started deliberating at 3:40 p.m. on November 16, 2009. They recessed at 4:29 p.m. The next day deliberation began at 10:00 a.m., and at 11:44 the bailiff was notified that one of the jurors had left the jury room and had not returned. This was about 30 minutes after the juror had left. At noon, the juror returned and the jury recessed for lunch. At 1:07 p.m., deliberations resumed and at 2:47 p.m. the jury reached a verdict. The trial court observed, "Now, theres nothing in that timeline indicating anything out of the ordinary is going on or that theres any unusual strife or disagreement that the juror left for approximately 45 minutes."
Defense counsel again raised the issue whether the remaining jurors discussed the case while the juror was missing. The trial court decided, "out of an abundance of caution we will contact the jury foreperson and see if there was any deliberation while this person was absent.... [T]hats the only person well contact at this point."
On December 17, 2009, the jury foreperson appeared, and the court took testimony in chambers. Defense counsel questioned the foreperson. The foreperson stated that the jury took a 10-minute break at 11:00 a.m. Only one juror left the room during the break and she did not return for 45 or 50 minutes. The rest of the jurors did not talk about the case while the juror was gone. Several people made the point that they could not start talking about the case again until the juror returned. They "talked about all kinds of things." The jurors did not talk about the juror who was missing, except that they "wondered when shes coming back." The jury foreperson said, "we really didnt discuss anything about it, except that we cant talk about this until—at least everything that I heard. Whether I can say a hundred percent certain two people didnt say something to each other, I cant guarantee you that...." The court asked, "And then there wasnt any talk about how to deal with the lady when she returns?" and the foreperson replied, "Oh, no." The foreperson testified that, when the juror returned, she said she had been in the bathroom. The juror did not say anything when she first returned to the jury room. After lunch, "she came back, she was very, you know, composed and fine. She just said, I apologize for having left you. Your time is valuable. I shouldnt have left you. [¶] She said, I really didnt even realize I had been gone that long, but she said, I was just in the bathroom crying because, she said, this is just a serious thing."
After the jury foreperson was dismissed, the trial court stated, "First of all, having taken testimony from the... jury foreperson, [¶]... [¶]... I dont see that anything that the jury foreperson said would lead to any further litigation in that regard." Defense counsel presented no argument, and the court went ahead with sentencing.
A defendant may "petition the court for access to personal juror identifying information within the courts records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial" pursuant to Code of Civil Procedure section 237. (Code Civ. Proc., § 206, subd. (g).) "The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the jurors personal identifying information." (Code Civ. Proc., § 237, subd. (b).)
The denial of a petition filed pursuant to Code of Civil Procedure section 237 is reviewed for an abuse of discretion. (People v. Carrasco (2008) 163 Cal.App.4th 978, 991.)
On December 7, 2009, the trial court heard oral argument on Gonzalezs original basis for requesting juror information—the possibility of undue influence on the juror who took the extended break. The trial court stated that the timeline did not suggest "anything out of the ordinary is going on or that theres any unusual strife...." At this time, defense counsel raised a second basis for requesting juror information—the possibility that the remaining jurors discussed the case while the missing juror was out of the jury room.
To assess defendants second basis for requesting juror information, the trial court arranged to have the jury foreperson available for questioning. On December 17, 2009, the jury foreperson appeared in court. The trial court allowed defense counsel to question the foreperson to develop evidence that the remaining jurors deliberated while one juror was missing. The jury foreperson stated that the remaining jurors did not discuss the case while the missing juror was out of the jury room. The jury foreperson also reported that the juror who took the extended break later appeared "composed and fine." The jury foreperson did not testify that she appeared distraught or overemotional.
The trial court then rejected Gonzalezs second reason for requesting juror information, stating, "I dont see that anything that the jury foreperson said would lead to any further litigation in that regard."
On appeal, Gonzalez raises a third basis for requesting juror information—that the jurors behavior was unusual enough to support a reasonable belief that the juror lacked the emotional ability to deliberate or to withstand pressure from other jurors. This is a different argument from the original basis for the motion. Gonzalezs original theory was that a juror taking an unusually long break suggested that other jurors may have exerted undue pressure on that juror. The current argument is that the jurors statement that she was crying suggests she was too emotional to consider the evidence and deliberate objectively. Gonzalez has forfeited this argument by failing to raise it in the trial court. (People v. Williams (1999) 20 Cal.4th 119, 136.)
On the merits, Gonzalezs argument also fails. In People v. Beeler (1995) 9 Cal.4th 953, a juror called the court clerk before the guilt phase of trial and had an "emotional outburst." (Id. at p. 972.) The juror broke down and cried and told the clerk that "she was not sure that she could fulfill her duties as a juror, " and "[t]he nature of the case itself was very upsetting to her...." (Ibid.) Later, the court questioned the juror, and she "had an apparent change of heart, apologized for her emotional phone call, and stated that she believed herself to be able to serve." (Id. at p. 973.) Rejecting the defendants contention that the juror was "emotionally unable to fulfill her duties," the Beeler court held that the trial court acted within its discretion in not dismissing the juror for cause. (Id. at p. 975.)
In People v. Van Houten (1980) 113 Cal.App.3d 280, a juror requested to be excused from the jury because she was upset by grisly photographs of victims. The juror told the court, "The pictures that we had looked at and some of the things that we had been discussing are upsetting me both physically and emotionally to a point where I feel I really cant continue as a juror." (Id. at p. 285) The Van Houten court held it was not an abuse of discretion to dismiss the juror for cause. (Id. at p. 288.)
Like the juror in Beeler, the juror here became upset and regained her composure. Unlike the juror in Van Houten, the juror here never reported to the court that she felt unable to continue. We conclude that, even if Gonzalez had raised the jurors emotional state as a basis for requesting juror information, the court would not have abused its discretion in rejecting the claim.
IV.Sentencing
Gonzalez contends and the People concede that the firearm enhancement on count 2 and the order to stay away were unauthorized and should be stricken. We agree.
On count 2, first degree residential burglary, the jury found true an enhancement under section 12022.53, subdivision (d). This statute provides a sentencing enhancement of 25 years to life for intentionally discharging a firearm and causing great bodily injury or death in the commission of specified offenses. (§ 12022.53, subd. (d).) Residential burglary is not one of the specified offenses. As a result, the firearm enhancement should be stricken.
The abstract of judgment also orders that Gonzalez "[h]ave no further contact with victims family, in person, in writing, by telephone or by Internet." The no-contact order was without statutory authority. (See, e.g., People v. Hamlin (2009) 170 Cal.App.4th 1412, 1478 [trial court had no authority to impose no-contact order "effective beyond the pendency of the criminal proceeding"]; People v. Ponce (2009) 173 Cal.App.4th 378, 383-384 [inherent judicial authority did not authorize three-year protective order issued during sentencing].) Consequently, the no-contact order must be stricken.
On January 25, 2010, after Gonzalez was sentenced, an amendment to section 4019 became effective. (Stats. 2009, 3d Ex.Sess., ch. 28, § 50.) The amendment increased the amount of presentence conduct credit available to defendants who are not required to register as sex offenders and whose current and prior offenses do not include serious or violent felonies. (§ 4019, subds. (b)(1), (b)(2), (c)(1), (c)(2).) In a standing order filed on February 11, 2010, we deemed raised the issue of whether the amendment applies retroactively to pending appeals in which a defendant was sentenced before the effective date. In this case, Gonzalez was committed for the serious felony of murder. Consequently, he would not be entitled to increased conduct credit even under the amendment. (§ 4019, subds. (b)(2), (c)(2); § 1192.7, subd. (c)(1).)
Subsequent references to section 4019 are to the version that went into effect on January 25, 2010. The Legislature has since amended section 4019 again, effective September 28, 2010, expressly designating the amendment to be prospective only. (Stats. 2010, ch. 426, § 2.)
DISPOSITION
The firearm enhancement on count 2 and the no-contact order are reversed. The trial court shall prepare an amended abstract of judgment and forward it to the appropriate authorities. The judgment is affirmed in all other respects.
Wiseman, Acting P.J.
WE CONCUR:
Cornell, J.
Franson, J.