*1 Dist., B193002. Second Div. June Eight. 2008.] [No. PEOPLE,
THE Plaintiff and Respondent, CARRASCO,
ERNEST JOSEPH Defendant and Appellant.
Counsel Defendant and Bucur, for the Court Appeal, H. under Karyn appointment Appellant. Gillette, General, Brown, Jr., R. Chief Assistant Dane Attorney
Edmund G. General, Hamanaka, H. General, Keith Attorney C. Assistant Pamela Attorney General, Patterson, Plaintiff and A. Attorneys Theresa Borjon Deputy *4 Respondent.
Opinion
RUBIN, J.—
INTRODUCTION his challenges Carrasco (appellant) and Ernest Joseph Defendant appellant executive resisting arson and two counts convictions of attempted his insufficient evidence to support officer. He contends there was arson; have instructed (2) the trial court should conviction for attempted officer; (3) the trial included offense of resisting peace on the lesser to juror access in denying posttrial court abused its discretion appellant allega- a “Three Strikes” and his motion to dismiss by denying information limited tion, conviction with a We affirm his resentencing. remanded for remand for sentencing.
BACKGROUND the Pico Rivera sheriff’s approached One morning May appellant to his question for a dollar. Repeating if anyone change station and asked asked, desk, “Do Macias, you at the front appellant who was Raul Deputy station, but needed to leave he bitch?” Macias told appellant have change, continued to appellant After press change. Macias told him to move again on, door, backed from the appellant slowly away to act continuing bizarrely and staring later, Macias as if “trying intimidate” him. About 30 seconds returned appellant a soda can in holding his left hand and straddling bicycle with a duffle secured to bag its handlebars. the door to the Appellant opened station, sheriff’s mouthed asked, the words “fuck to Macias and then you” “You have a fucking Macias walked problem?” from behind the counter toward and told him to appellant leave. took two back and steps his hand placed right inside the duffle bag.
Macias ordered to remove appellant his hand from the duffle two to bag times, three but refused. appellant for his Macias Fearing safety, reached for revolver, said, ahead, bitch, his service me,” “Go appellant fucking shoot a challenge he more than once. repeated
Detective Jim McGuffin came from the back of the station and grabbed waist. appellant’s his hand Appellant pulled right from the duffle bag bike, tried to ride on his but away McGuffin forced him to the As ground. torso, Macias held Deputy on to three other detectives attempted to control his arms. Ten to 15 other officers were at the scene. Officers present told back, to relax and appellant his hands put behind his but he refused. Continuing he his struggle, hands underneath his placed while body “yelling, kicking, he “kick cussing” saying would [and] [their] ass[es].” said, Macias Deputy but continued “Stop resisting,” *5 squirm refused to his hand. give right Lieutenant Michael Rothans held appellant’s shoulders and three or four times told him to relax and his hands behind place his back. Rothans then pepper sprayed appellant.
At that point, appellant officers handcuffed complied him. Officers found a lighter hand. appellant’s right Calling deputies “fucking assholes,” said, “This is bullshit. You can get your ass kicked.” He said, also “7 (Italics should have done it.” added.) Inside his duffle was a bag one-gallon gasoline container that was full and approximately three-quarters two wet of cloth strips smelling gasoline. Arson investigator Detective Irma Gonzales testified that if someone lit a inside a duffle lighter bag containing gas-soaked would catch rags, bag fire. Detective Gonzales further testified that had the appellant “absolutely means and the components to necessary initiate a fire.”
983
DISCUSSION Attempted Conviction Supports 1. Substantial Evidence Appellant’s for Arson. to conviction for evidence his support contends the is insufficient To the evidence demonstrated only preparation. arson because
attempted issue, favorable to light this review record in the most resolve we exists that a reasonable to decide whether substantial evidence so judgment doubt. beyond could the defendant a reasonable have found P.2d 4 847 Ceja (1993) v. Cal.4th 1138 (People [17 55], (1980) Cal.3d 578 citing Cal.Rptr. v. Johnson People [162 738]; 443 U.S. L.Ed.2d Virginia (1979) 606 P.2d Jackson v. 319 [61 S.Ct. willfully Penal who punishes “[a]ny person Code section . . . to set fire to or to bum . .. maliciously any property, attempts attempts thereto, . . . .’1 who commits act furtherance thereof preliminary “ to ‘In order an it must the defendant attempt, appear establish direct, intent toward to commit crime and did a act unequivocal specific end; of the enough, alone is not and some appreciable fragment preparation ” (1958) must (People crime have been Archibald accomplished.’ Archibald, P.2d In the defendant (Archibald).) Cal.App.2d 69] bum, convicted on the of insufficient ground attempt appealed intent to crime or act other than evidence show commit a of any “specific 632.) and held (Id. mere at p. disagreed preparation.” appellate convict defendant when there was sufficient evidence record the defendant (1) the contained evidence to “sustain inference that butt, it, with a gasoline together lighted cigar had stuffed towel with upon ladies’ rest as the the ventilator into the as well crumpled papers, through he testified fire to defendant building,” room intent to set boss, somebody his would think finding believed “upon papers, 633.) (Id. to bum down.” building his trying p. *6 Archibald,
Here, there a rational in sufficient evidence which by as is a doubt of commit could have reasonable guilty beyond found jury direct, . . . act” “willfully maliciously “a toward ting unequivocal 633; see (Archibald, 164 at p. to bum.” attempting] supra, Cal.App.2d of the Rivera sheriff’s 455.) inside the front doors Pico just Appellant § hand, bag reached a duffle With in his he inside right station. a lighter of and a gasoline one-gallon two of cloth containing smelling wet strips he was full. After three-quarters container that was approximately gasoline 1 are to the unless otherwise indicated. All further section references Penal Code 984 stated,
arrested confiscated “I should have deputies lighter, appellant Furthermore, done it.” investigator arson Gonzales testified that appellant “absolutely the means and necessary to initiate a fire.” components facts, On a these reasonable could have found of appellant guilty attempt to bum. Trial Court to Instruct on the
2. Properly Jury Lesser Refused 148, (a) Included Penal Code Section Subdivision Offense of two convicted on counts of an executive in resisting officer violation section He contends the trial 69.2 court should have instructed the 148, (a), on section as subdivision a lesser included offense of section v. People 69. We held in 157 recently (2007) Cal.App.4th 249 [68 Lacefield 148, in (a) Cal.Rptr.3d (Lacefield), case section subdivision proper 508] is a lesser included section offense of but we find no substantial evidence on that lesser offense here. supported instructing
“California long law has absent a provided even request, over trial court any party’s must instruct a criminal objection, any on offense, lesser offense included’ if there is ‘necessarily charged v. crime substantial evidence that lesser was committed.” (People only Birks (1998) 1073].) 19 Cal.4th 112 960 P.2d Cal.Rptr.2d [77 law, California “Under a lesser offense is included necessarily in a greater offense, if offense either the elements of the or the facts statutory greater in the all actually alleged accusatory include the elements pleading, offense, lesser such that greater cannot be committed without also (Id. 117.) committing lesser.” at p. “
Section two 69 ‘sets forth in which an offense can be separate ways committed. The first is threats or violence to deter or by attempting prevent law; an officer from the second is performing duty by by imposed resisting ”3 force violence in the or an officer of his or her performance duty.’ In re (Lacefield, Manuel at supra, G. (1997) 157 p. Cal.App.4th quoting 880].) 16 Cal.4th Cal.Rptr.2d 941 P.2d Those two ways “ ” “ section violating 69 have been called deter’ ‘actually ‘attempting ” an officer.’ People (Lacefield, Lopez resisting (2005) p. citing (People v. Williams Police officers are under “executive officers” section 69. 1460, 1463, fn. Cal.App.4th 5 [86 violence, “Every who person attempts, by Section 69 states: means of threat or to deter law, or prevent any duty upon or an executive performing imposed by officer from such officer resists, officer, violence, knowingly by who force or in the performance use of such of his ($10,000), duty, punishable by exceeding by a fine ten imprisonment not thousand dollars prison, jail county exceeding year, the state or in a one both such fine and *7 (Italics added.) imprisonment.” of can 586].) The first offense type Cal.App.4th ” “ threat, and force’ by any physical be established by unaccompanied ‘[a] his duty. or future either an officer’s immediate may performance involve G., 817.) The second type Manuel at (Lacefield, citing pp. at p. “ ” an officer against the defendant by offense involves ‘force or violence’ at time (Lacefield, defendant’s resistance. in his duties at the of the engaged “the to “the of offense” and second 255.) type We refer them as first type p. offense,” G. (Lacefield, from Manuel nomenclature adopted Lacefield 255.) p. offenses, Here, but kinds both of section alleged accusatory pleading under the second only prong: chose to prosecutor prosecute appellant that the The was therefore instructed People an officer force. resisting by jury “[1], unlawfully had A and resisted knowingly to prove person duties; The executive officer in of his and resistance the performance [2]. [¶] means of force or violence.” accomplished (a)(1) “[ejvery Section who part, subdivision provides person resists, discharge or obstructs .. . officer ... willfully delays, peace or to has committed a offense. discharge any duty” punishable attempt without having Because an accused cannot have resisted arrest also forcefully arrest, (a) is a resisted we with that section subdivision agree Lacefield Nevertheless, we lesser included to section second offense 69’s prong. (a) not conclude the failure instruct with subdivision here was to section a convic- error because there was no substantial evidence that would support tion of the lesser offense. have contends the court erred because reasonable could
Appellant he officer because resisting concluded he was of misdemeanor peace bike, can, “was a soda and while taunting on from a drinking police have concluded that working were at the station. The could police taking bag resisting conduct of not his hand out of the resisting offense officers when off as lesser they pulled bicycle, [the of] use duties” of force these officers their without obstructing during violence. all, he did forcefully,
We the officers at so if resisted disagree, appellant have he violated section no reasonable could concluded ensuring thereby witnesses testified (a)(1) but section 69. People’s subdivision both Macias resisting Deputy was knowingly unlawfully to be McGuffin use of force violence. through Detective refused to McGuffin because he taken to the Detective ground by physically his his hand from orders remove repeated Macias’s comply Deputy orders repeated with several officers’ duffle failed bag. Appellant comply *8 relax and to resisting.” Macias’s orders He continued to with “stop struggle McGuffin, Macias and as well other as several officers. Macias to attempted torso, control while three to appellant’s other detectives control attempted arms. his hands and arms underneath his Appellant placed body, said he “yelling, would “kick kicking, cussing,” [and] [the officers’] to continued and refused to his hand to Appellant squirm give right ass[es].” Macias. not did until after Lieutenant Rothans administered comply use There spray. was no evidence pepper contrary disputing Hence, officer’s on the floor. would struggle have description jury officers, no rational basis to conclude wrestled with officer, which him of they convicted or an but the resisting delaying struggle violence; did not involve force court accordingly, trial properly instructed the not (a) it section instructing with subdivision as a by lesser included offense.
3. Access to Juror Was Denied Properly Information Proceedings Relevant
a. verdict, After the returned a clerk if asked the “these [are] verdicts, one, so your say you you so all?” The answered say jurors in the affirmative. The then collectively court asked each whether the verdicts reflected or her his individual verdict. Juror No. 2 initially gave no answered, The asked response. court Juror No. and then again, paused courtroom, “Yes.” left the and the remaining jurors engaged in the following Juror No. 2: colloquy
“THE COURT: . . . Juror No. hesitated you answering, you [¶] answer, teared and it that when up; give ‘yes,’ did it was in a appears you voice soft to be you obviously distraught. Is the appear emotionally [¶] that verdict rendered as to 3 and you guilt counts is that saying yes verdict? Is that decision? your your
“JUROR NO. 2: No. “THE COURT: And it No. 2 right. All took Juror some time answer the Did decide to vote the did of the fact you way you because that question. [¶] felt because the other were you compelled jurors voting way?
“JUROR NO. 2: Yes.
“THE COURT: So that true Okay. is not intent to vote for —I’m your guilty count, which but verdict was because going designate you your felt because the were compelled jurors voting other pressured way; that correct? (No NO. response.)
“JUROR 2: *9 will know to me nobody ahead “THE COURT: Go explain that — want I about, know our discussion here —but other won’t about jurors awith that made come you up what went on in the room jury know desire not really your that that was indicating when now you’re verdict intent. reasonable doubt.
“JUROR NO. 2: I had doubt, back came you and in of the reasonable spite “THE COURT: Okay, room, in the basically Tell me went on a verdict of what guilty. [¶] doubt to verdict of guilty. as to reasonable why you changed know, a felony, were it was they saying “JUROR NO. 2:1 when guess, you crying. what made me start aware That’s felony charges. I wasn’t were Well, are not whether or not they felony “THE COURT: question whether or that’s an issue. The issue is any charge; other charges [¶] heard, not, felt you you based the evidence upon everything of a or what. The purpose defendant guilty, irrespective felony [¶] upon decide the based the evidence and based guilt is to issue upon standard of reasonable doubt.
“JUROR NO. 2: Uh-huh.
“THE vote for guilty. COURT: So I want your know — “JUROR NO. 2: Yes. you because thoughts now are second you having
“THE COURT: And are a gleaned charges felony?
“JUROR NO. 2: Yes. Well, were findings indicated that her I believe she has
“[PROSECUTOR]: and— for guilt Honor, I’ve never had I have to confess Your COUNSEL]:
“[DEFENSE before. this situation this, to be and I want have had don’t think of us
“THE COURT: I decision; in the all, nobody this is own your personal satisfied. First [¶] on you? deliberations put any pressure room during “JUROR NO. 2: No.
“THE That COURT: answer is no? 2:
“JUROR NO. No. “THE COURT: so the Okay, reason are now why you somewhat equivocat- on ing vote is because your believe —or have reason to believe that you you charges constitute is that felony; right? *10 “JUROR 2: NO. Yes. otherwise, heard,
“THE But COURT: based that all upon everything you the law, evidence the the instructions court on the gave you argument of the attorneys, you were satisfied the defendant was a guilty beyond reasonable doubt? that far? Going
“JUROR 2: NO. Yes. And that was she to only thing was asked do. “[PROSECUTOR]: (cid:127) (cid:127) (cid:127) [¶] [¶] honor, Your are at we allowed to all?
“[DEFENSE inquire COUNSEL]: time, “THE I don’t COURT: think so this Ms. Williams point [defense think, later, . . . That’s we’ll have if something to I that explore counsel]. should But I arise. so that have an just because this understanding, may [¶] not may lead to that doesn’t something else se involve concern per you, your now is and hesitation is that the your now defendant have been may charged with felonies?
“JUROR NO. 2: I wasn’t of that. aware . . . [¶] [¶] Well, “THE COURT: don’t when I forget instructed I instructed jury, that are not to consider issue of that punishment penalty; court, factors, issue is for the the nature solely many depending upon only crime, of the but various other factors. So that’s not to be something you’re concerned with. I want to be satisfied that vote for to count your guilt as [¶] arrest, will, Macias; if or detention resisting you by Officer count officer; will, arson, same as to charge another count the attempted if you heard, satisfied you were that based the evidence and the upon you again, instructions the law that on I of the gave you, arguments attorneys, you were satisfied that those have been a reasonable charges beyond proved doubt; is that correct? 2; NO. Yes.”
“JUROR filed a verdict. thereafter The trial court then recorded the Appellant Code of Civil Procedure information for access juror pursuant petition Juror 2’s contact No. sought sections subdivision 237. (g) First, what deliberation for three reasons. “to ascertain information [her] had ‘reasonable she stated to the cotut that she involved why process ” asserted, Second, is no to contact counsel “There way doubt.’ seal. without access to information under juror of the jurors impaneled” Third, and can is needed for a motion for new trial “further investigation the defense is information investigator given be if an from only accomplished with which to contact the juror.” information, held access to hearing
The trial court regarding posttrial failed facie showing good and concluded that to make prima was “no cause disclose information. The reasoned there juror intimidation,” 2No. “satisfied the defendant was guilty Juror doubt,” and a reasonable her hesitation beyond only regarded felony nature of the crime.
b. Summary Lawof
After a is recorded in a criminal the jury’s jury proceeding, verdict “sealed,” court’s is information meaning juror identifying record all “personal numbers,” addresses, names, of trial . . . of jurors consisting telephone Proc., 237, (Code extracted otherwise from the court record. Civ. or removed § 206, (a)(2)-(3).) subd. to Code Civil Procedure section subdivi Pursuant of sion “a counsel . . . the court for (g), defendant or defendant’s may petition access information within the court’s records juror to personal identifying to communicate for of for the defendant the necessary jurors purpose trial Code of Civil a motion for new or other lawful developing purpose.” 237, (b) may Procedure section subdivision further provides: “Any person be the court access to records. The shall petition for these petition [¶] good a facts to establish declaration includes sufficient supported by The court cause the release the information. juror’s personal identifying for of declaration shall set the matter for if the hearing supporting petition the cause for the release of showing good personal establish a prima facie of information, for if there hearing but shall not set the matter identifying juror against facts a interest is a on the record of that establish showing compelling to, includes, limited A interest but is not protecting disclosure. compelling set the court does not the threats of harm. If danger from jurors physical forth the reasons court shall minute order set hearing, matter for cause showing of a a facie of good either lack of findings prima make express (Italics added.) interest disclosure.” against of presence compelling 990 1996,
Before disclosure of did juror information cause. good require Rather, available, that a court “shall” make the provision required records “in the absence an express finding Proc., continuing risk” (Code Civ. of of 237, added; (c), former subd. italics see generally People (1998) § 63 Jefflo fn. 8 (Jefflo), Cal.App.4th for a discussion Cal.Rptr.2d [74 622] statute.) of in the changes current statute makes it more difficult for information, defendants to obtain access and we juror consider appellant’s in that arguments light. v. Rhodes People (1989) 212 541 argues Cal.App.3d [261 though Rhodes (Rhodes) sets forth the test. Even
Cal.Rptr. applicable 1] decided before the statute’s enactment present showing requiring good cause, Rhodes test survived the amendments. Townsel v. Superior (See Court (1999) 20 Cal.4th 1095 979 P.2d Cal.Rptr.2d [86 963] (Townsel); 8; Jefflo, at supra, People v. fn. Cal.App.4th pp. Wilson Cal.App.4th
The Rhodes court test conclude the “applied express balancing court, trial a defendant’s for disclosure denying request identifying information, did (Townsel, supra, not abuse its inherent authority.” Cal.4th Rhodes, 1093.) defendant, at In following his conviction of p. voluntary filed a motion for a manslaughter, new trial on miscon grounds (Rhodes, supra, Rhodes 546.) duct. Cal.App.3d p. “[T]he discerned several reasons to policy-based deny defendant’s request disclosure of These juror identifying information. reasons included protecting state constitutional juror’s right deterrence of privacy; possible from prospective jurors fulfilling obligation their to serve if knew they *12 lives; would be subject to intrusions into their postverdict reducing incentives for jury free and discussion tampering; open among in promoting jurors deliberations; and the of (Townsel, verdicts.” at protecting finality p. Rhodes, 548-549.) Rhodes
citing at The court held there was that “an pp. middle which can harmonize and appropriate ground satisfy compet [these] that, motion, societal rule by interests” a ing recognizing timely “upon counsel for a defendant convicted is entitled to the list of who served jurors case, numbers, in the addresses if the defendant including sets telephone forth sufficient to showing a reasonable belief that misconduct support occurred, that efforts were to diligent made contact the other jurors through means, and that further to the court investigation necessary is with provide information to rule on a for new . . adequate motion trial. . Absent a [¶] misconduct, satisfactory, of the preliminary showing juror possible strong interests the of our and a to public integrity jury system juror’s right the interest disclosure privacy outweigh countervailing served of public (Rhodes, . . juror the information . .” at supra, 551-552.) pp.
c. Application filed to Code of Civil Procedure section Denial of a petition pursuant Townsel, (See reviewed the deferential abuse of discretion standard. under 1097; v. Santos (2007) 147 People supra, Cal.App.4th Cal.4th p. Here, not abuse discretion in the trial court did its 978 facie of showing good that failed to make a determining prima the hesitation and juror’s cause. The made that finding court express the of were her concern about nature the felony “reasonable doubt” based on decision, the not the lack of offenses and of charged finality proof. the about Juror 2’s alleged record establishes that trial court No. inquired her she returned a verdict when it was not misconduct and asked why doubt, arose her intent. Juror No. that she had reasonable which explained said the was a The court that charge felony. explained when other jurors an issue to consider. whether not the were felonies was not for her charges heard, evidence, The court then said “based all everything you upon law, the of and the on the gave you argument instructions court satisfied the defendant a reasonable attorneys, you guilty beyond were was that far?” and Juror No. “Yes.” The court asked a doubt? Going responded, time, charged, juror again second each count repeating responded misconduct. Based on the showing the affirmative. There no of any facts, the court that “the defendant has not made foregoing prima found facie cause of disclosure of information.” showing good juror counsel about
What strikes us even more is defense learned entered, trial, claimed misconduct a verdict juror before during Defense had an she try rectify any perceived. opportunity problem counsel an additional the trial if inquiry could have line proposed misconduct overlooking. had occurred the court was she believed which that, trial did court questioned She not. We since agree respondent guilt No. Juror 2 about whether she been convinced doubt, was no need for any postverdict question- reasonable there beyond Hence, such need for information to conduct there was no ing. the court discharged jury.4 after questioning *13 4 1163) (§ and procedure the importance juror polling This case both of the demonstrates the something unequivocal other difficulty than by judges polling faced trial when the reveals a what to expressly tells trial court do affirmation of the verdict. Section enacted must jury the “the be negative,” polled when court: juror if an individual in the “answerfs] “yes,” juror’s response, the answers —no out for deliberation.” Here initial sent further No. inquire Juror 2 certainly the court to further. When equivocal. permitted “no” —were This stated, doubt,” jury to the back to practice might have been send then “I had reasonable better that course Certainly power, the had that and deliberations. trial court the room for further 4. Did Trial Court Not Err in to Refusing Dismiss Appellant’s
Previous Strike The trial court found that conviction in 2002 for assault with a a deadly officer violation of section subdivi- weapon upon peace (c), sion a and felony was serious violent within the of the “Three meaning Strikes” law. At sentencing, moved to dismiss his conviction. appellant prior
Trial argued counsel that the court should dismiss strike appellant’s prior conviction he has “some mental because health and issues significant history have, that most for the been part, undiagnosed untreated.” Counsel further that still argued was and is the effects of suffering from She long-term use. that his condition did drug acknowledged although mental intent, not rise to a defense his it effect negated had an on his specific state, mental his and his to control his decisionmaking processes, ability conduct and as he tried actions to to be addiction and yet treated cope Nonetheless, mental illness. she conceded that the given similarities between offense, the “strike” and the prior offense instant it was that a court unlikely would be inclined dismiss the strike conviction. prior court’s trial failure to or strike a dismiss serious and/or prior
“[A] violent conviction under felony allegation section 1385 should [Penal Code] (People Carmony be reviewed for of (2004) abuse discretion.” v. 33 Cal.4th might have avoided could have be appeared juror. what “cross-examination” Neither of the side, however, deliberations, during asked for further inquiry either the Juror No. 2 or of accepted afterwards out of her before the the presence, verdict. court, supplemental In briefing requested by argued letter this defendant trial court required was past to order further deliberations at the time Juror No. 2 expressed reasonable equivocal doubt. Considering juror’s up nature of the statements point, to that we cannot say that asking questions. the trial court erred in Ultimately, jury’s additional whether the guilty truly announced reflected question verdict Juror No. 2’s individual verdict factual was a “Where, here, judge required that the juror equivocal trial to decide. as a makes conflicting voluntarily, statements as to whether he to the freely has assented verdict question direct within the judge judge of fact determination of trial The trial presented. the opportunity has to observe the subtle factors demeanor and tone of voice which mark acquiescence judge distinction between trial evasion individual choice. The can verdict, returning determine likely whether deliberation is a real further to secure really juror disagreed likely whether the has so that verdict is not and not unanimous Superior (1967) become (People so.” Court Cal.2d Cal.Rptr. 434 P.2d [64 The trial inquiry jurors court’s continued elicited information about other had whether pressured said that No. 2—she had not—and that Juror No. 2 that the was concerned felony, legally light offense was a factor that irrelevant in of the instruction to (CALCRIM 17.42). ignore penalty punishment judge The trial No. then reminded charges of that asked prosecution proved beyond instruction and whether the circumstances, answered, reasonable No. 2 Under doubt. Juror “Yes.” these the trial court (See People properly accepted juror’s Cal.App.2d last answer. v. Burnett juror’s Cal.Rptr. equivocal, properly accepted answers were trial court [when 320] juror’s verdict].) final answer concurrence in *14 its discretion 369].) P.3d A trial court abuses Cal.Rptr.3d [14 conve to accommodate judicial it conviction solely
when dismisses prior nience, a defendant guilty, due to because congestion, pleads court the defendant for antipathy refuses to dismiss because of conversely personal of ‘the nature of his “ignoring present while ‘defendant’s background,’ ” fenses,’ Court and (People Superior other ‘individualized considerations.’ 789, 917 P.2d (Romero) (1996) 13 Cal.4th 530-531 Cal.Rptr.2d [53 conviction, the 628].) In whether to trial felony dismiss determining prior whether, and of must in of the nature circumstances his light “consider convictions, and the felony felonies and serious and/or violent present prior character, of defendant bemay and the background, prospects, his particulars outside or in and hence should be part, deemed the scheme’s in whole spirit, as had not been convicted of one more treated he though previously felonies.” 17 Cal.4th serious and/or violent v. Williams (People P.2d that the trial its discretion in denying contends court abused his authority Romero motion because the court found it lacked erroneously He consider mental condition as a factor. to the points following “I statement: don’t think the cases authorize me factor mental [appellant’s] state, condition, his things.” mental reasons he wanted to do these why reasons, the trial of not just
We view court’s statement one totality conviction, In to strike the trial court not snippet. deciding appellant’s prior and the criteria noted it “to be look at dispassionate objective People record the trial court standards under v. Williams.” The reflects sentence, in considered wide factors range appropriate passing particu the nature circumstances larly convictions. appellant’s present past First, the that the were time because court noted convictions close in for his and did not remain free 2002 conviction imprisoned Second, from further for at five after his release. years least imprisonment Third, nature of the conviction was a serious in felony. complaint prior murder, an originally alleged although appell conviction prior attempted Fourth, (c). prior ant to a violation of section subdivision pled guilty of offense at issue conviction involved section the same type Fifth, case. over the trial which defendant was current the court presided record. found current case so it was familiar the entire And stated it did “take into consideration defendant’s finally, trial court which, are in this character and court’s background, prospects opinion, does take into consideration based his And the court great, upon history. [¶] is, interest; Given the court’s society.” express society’s protect on the ruling consideration and character in background of appellant’s motion, to be to us of its remarks seems portion by appellant quoted *15 994 that the
acknowledgement court could not give undue to an weight inherently speculative argument that defendant’s mental state “made him do it.” We find no abuse of discretion.
5. This Case Must Be Remanded a New Sentencing Hearing was convicted on
Appellant counts 2 and 3 of Macias and resisting Deputy 69, Detective McGuffin in violation of section and 4 on count of attempted 2, 3, arson. filed a memorandum Appellant sentencing that counts arguing 4 should under merge section 654 because were all of the same act part in that the at trial prosecution’s theory was the and effect “purpose [of conduct in the appellant’s station designed undermine the authority was] involved, the Sheriffs their course of business and disrupt do perhaps damage Furthermore, himself and/or the the Sheriffs were in.” building all actions in the station occurred police “within a matter of minutes.”
The trial court denied the motion because it did not see three transaction, counts as one indivisible and stated that law that I requires “[t]he run 2 counts because it’s a second strike case (Italics consecutive.”5 added.) a sentencing court determines that two or more current “[W]here felony convictions were either ‘committed on the same occasion’ or ‘aris[e] from the same set of facts’ . . . operative consecutive is not sentencing law, under the required three strikes but is in the trial court’s permissible sound discretion.” (People Lawrence Cal.4th 233 [99 570, 6 P.3d (Lawrence).) 228] contends, concedes, General Attorney and we agree trial had the judge discretion to sentence on counts 2 appellant concurrently and the trial court erred it when stated it was required impose whether, consecutive sentences. The record is unclear in denying appellant’s motion, section 654 the court concluded that all three counts were separate incidents, or that counts and 3 were from count 4 when the court separate stated, “I have different—two different officers which the found the 5 “THE ... COURT: ... apply [¶] [¶] [Defense that 654 would to all three counsel] assert[s] counts, because of the fact the defendant’s conduct constituted one individual —indivisible transaction. differently, you argue I look at it a little [¶] but I’ll let it and hear from [the prosecutor], I have guilty different —two different officers which the found the defendant of under PC and that I have the independent attempting facility. act of to bum the [¶] act — counts, I don’t think 654 is a bar sentencing to the scheme as to three you those but if want to further, argue it I’ll certainly you. hear from ... ... [¶] [¶] agree I with the court these are separate “[PROSECUTOR]: incidents. wrong, ‘THE COURT: I am satisfied —I could be but I’m satisfied that does apply to counts 3 and 4. requires . . . The law that I run [¶] counts because it’s a second (Italics added.) strike case consecutive.” act of independent PC and that I have
defendant of under act — however, reading, reasonable The more to bum the facility.” attempting to sentence appellant it lacked discretion to be that the court believed seems of the “same 2 and 3 were part whether counts deciding without concurrently *16 allow the trial for is resentencing appropriate occasion.” A limited remand the ‘same “committed on 2 and 3 were whether counts to consider ” ” forth facts’ as set set of from the ‘same “aris[ing] operative occasion’ Lawrence, exercise its the court to to enable supra, 24 Cal.4th page in or consecutive sentences. concurrent in whether deciding impose discretion
DISPOSITION for the limited the is remanded is reversed and matter The judgment sentences exercise its discretion to impose the court to purpose permitting In all other or concurrently. respects, on counts 2 and 3 consecutively is affirmed. judgment J.,P. concurred.
Cooper, FLIER, J., dissent. Dissenting. respectfully —I of the for juror the trial court’s denial request effect of operative 2. Juror No. interviewing to foreclose the defense from information was have but defense counsel could is correct that majority noting While that such a additional lines of I think inquiry, did not to the trial court suggest act; no inclination an idle the trial court showed would have been suggestion the court’s During this juror. questioning, to allow the defense to question at all” and be “allowed to inquire defense counsel asked if the defense would i.e., defense no, in time.” When the not at “this the trial court said point 2, the denial Juror No. did make clear that it wished to interview eventually The trial to this endeavor. an end of the for information juror put request the defense information prevented for juror court’s ruling denying request contend, in a motion factual basis to whether there was any from ascertaining trial, guilty. did not believe actually juror for new this discretion, I its trial court abused is whether the that the standard Given think for information juror the request whether that it is a close question First, the event a close call. factors make this Two granted. should have been a reasonable that she has rendition of the verdict after the declaring of a juror Second, did not the defense scrutiny. the closest rare that it merits doubt is so have; this issue defense efforts on as well as it should handle this matter Thus, likelihood that appellant late. little and too were both too I therefore great. too simply unanimous verdict is on a less than convicted with the part conclusion that company majority’s the trial court did not err in balance, denying information. On request juror I think the request should have been granted. concerned, however,
I am also with the issue that we asked the parties brief, i.e., whether under Penal Code section 1163 the trial court should have sent the out for further deliberations once Juror No. 2 stated that she had a reasonable doubt. rendered, recorded,
“When a verdict is and before it is be jury may at the polled, of either request which case party, must be severally verdict, asked whether it is their and if one answer in the negative, must be Code, sent out for further (Pen. deliberation.” 1163.) The § how question just times a must answer “in many before negative” *17 the is sent out for jury further deliberation.
Here, Juror 2No. answered “in the not once negative” but three times in First, succession. when asked whether it was her “decision” to vote on guilty Second, counts 3 and she stated no. when asked whether she voted because guilty she felt the other she compelled by jurors, answered yes. Third, when asked what went on in the room that made her jury vote guilty stated; when it verdict, was not her “desire and intent” to vote for a she guilty “I had reasonable doubt.” occurrence,
Given that the is a rare I foregoing think that at this point had made it juror clear that she did adequately not intend to find defendant that, There is guilty. for the precedent in order to invoke proposition Penal Code section 1163 and to the trial court to send the require out for jury deliberations, further it is if the enough juror once or twice that he says or she did not vote for the verdict. v Brancato (People 83 Cal.App.2d 504].)1 P.2d While the trial court should ensure that the juror’s is clear and response this does not mean unambiguous, that the juror’s depth of conviction is to be under extended explored cross-examination the trial by judge. 1 “The given jury case was at p.m. p.m. they 3:44 At 5:44 reported they were unable agree again and were sent out. p.m. they At 10:22 returned and the foreman announced that agreed upon ‘a verdict.’ The court ordered ‘the verdict’ handed to the clerk. The clerk verdicts, then read finding guilty robbery two one Pedrotti degree finding in the first and one robbery Brancato degree. your in the first The then clerk asked ‘Is that verdict’ and jurors responded in the affirmative. The polled was then at the request of defense juror counsel. Each responded that this was exception his her verdict with the ‘Please, juror, replied: eleventh who I would rather not answer that question.’ The court asked her replied: what she had said and she T question.’ don’t like to answer that The court then Brancato, (People supra, told the to retire for further deliberation.” Cal.App.2d 743.) p. noteworthy It Brancato was far more juror’s response is that the in equivocal than Juror No. responses 2’s in this case. to vote for that he or she did not intend has made it clear
Once the juror cause the verdict, juror the trial court is likely extended by questioning the face of the convictions and even surrender his her to vacillate what In this is my happened created the trial judge. opinion, pressure that suggested to ask the juror questions case. The trial court continued this be that the was not to juror home in his the answers and press questioning her on the defensive and shook This juror concerned with penalty. put that the juror confidence It to be in mind in her views about this case. kept attention focused lawyers, everyone’s alone with the court and her, already on this who was juror which in and of exerted pressure on itself the verdict. in the throes of over strong feelings the trial court to delve into section 1163 authorizes in Penal Code Nothing And “in the about a verdict. negative” the reasons has answered why motives, I think it is acted out of the best of while I believe that the trial court than the court did in fact exert pressure unrealistic to conclude other anything unintended this have been. may on this however juror, notes, that it would been better and I have majority agree, practice once Juror the trial court to have sent the out for further deliberations doubt. But the concludes that majority No. 2 stated that she had a reasonable that, “given side for further deliberations on this issue neither asked attitude,” the “adequately” defense’s rather trial court’s questioning passive *18 substance, to, did, intended and vote for In guilt. showed that this juror here, error waived. conclude that if there was it was any majority appears that, lines, contends in its letter brief on this issue the same Along respondent court, not raised in the trial since the matter of Penal Code section 1163 was it has been waived for the this purposes appeal. about defense counsel’s that the best that can be said
There is no doubt about the trial court’s is that reservations on this issue she expressed position amount do not on Juror No. 2.2 Defense counsel’s observations simply ruling section 1163. to an based on Penal Code objection question last may response reflect that in to the court’s Just the record “[Defense Counsel]: position her on these counts proposing juror that this is now her state or this verdicts, ultimately yes. a give did hesitate. She did the court she still room, reading of the there had to be some my “I don’t concern is this: In know — now, she charges As she sat out here that the were felonies. forms and discussion of fact We had they were felonies. changed because she now learned position indicates that she her felony The court read the information. always through discussing the counts. the trial been Honor, all, quite perhaps sure —either she juror at Your but I’m not disparage “So not to court, definitely a it was taking suggestion, the court’s because she was didn’t understand stress, court, did come in the because it suggestion by the I’m sure it relieved lot helpful Honor, feel, ultimately, her way you but Your okay okay of it’s of that’s [sic] form misdemeanor, anything felony, mean about reasonable doubt. That doesn’t statement was I had type of crime.” infraction or other is, course, It basic that a defendant not be convicted on the may except (People Boyette 381, (2002) vote of all 12 v. jurors. 29 Cal.4th 436 [127 391].) 58 P.3d “Unanimity obviously that each requires must for and vote in the verdict. acquiesce because Acquiescence simply verdict has been reached is not an by majority independent judgment, v. if (People would undermine the permitted, to a unanimous verdict.” right Court Superior (1967) 67 Cal.2d 434 P.2d Cal.Rptr. [64 Constitution, Under the California has to have his appellant right guilt Const., I, innocence determined verdict (Cal. unanimous of 12 art. jurors. 16; v. Collins People 687, 692, (1976) 17 Cal.3d fn. 3 Cal.Rptr. § [131 742].)3 552 P.2d I think that there is a realistic that in this case probability true, there were not 12 votes to convict. If this it means that has appellant been of a the California Constitution. deprived right protected by
If the introduction of an confession a reversal involuntary requires despite (People Matteson a defendant’s failure to to its introduction object 61 Cal.2d 161]), 393 P.2d it seems the same Cal.Rptr. should instances, be true when the verdict has not been In unanimous. both the errors fundamental, affect a that can important, constitutionally protected right circumstance, be raised in a collateral attack on the Given this judgment. lack of an should not be objection dispositive.
I think this conclusion is the circumstance that the error in supported by this case was reversible error se. Given the broad of situations per range when the denial of the right to a has been held to be reversible error per (see se (3d cases in 6 Witkin & digested Cal. Criminal Law ed. Epstein, Error, 2000) indication, Reversible 477^-78),4 there is in pp. every my § that a less than opinion, unanimous verdict is reversible error se. per that, suggestion by its letter brief attorney general supplemental deliberation, even if the court erred in to order further failing was not is untenable. The real prejudiced this case very possibility *19 is, noted, unanimous was convicted on a less than verdict I have as se; reversible error on no account is it harmless. per 3 (Johnson prosecution While in a federal criminal the verdict must be unanimous v. 356, (1972) 152, Louisiana 1620]), 406 U.S. L.Ed.2d 92 S.Ct. the Sixth Amendment [32 (Apodaca Oregon (1972) require proceedings does not unanimous verdicts in state criminal 1628]), L.Ed.2d except composed U.S. 411-412 92 S.Ct. when the [32 (Burch v. Louisiana six members. 441 U.S. L.Ed.2d 99 S.Ct. trial, right are discriminatory These ineffectual waivers of the to a selection of the jury, departure statutory selecting jury, jury, from the procedure failure to swear the separation jury, permitting jury, unlawful of the unauthorized contact with the failure reread incorrectly (6 testimony peremptory challenges heard & on basis of race. Witkin Law, Error, supra, 477-478.) Epstein, pp. Cal. Criminal Reversible § lack It is also true that the been long discharged. in this case has se. Accordingly, to be reversible error per
of a unanimous verdict appears remand for a new reverse the and to judgment in this case is to only remedy trial. 2, 2008, denied and the opinion
A for a rehearing July petition for review above. modified to read as printed Appellant’s petition J., did S165273. Corrigan, Court was denied September Supreme therein. participate