THE PEOPLE, Plaintiff and Respondent, v. DEMETRIOUS MONTRAIL MARCUS, Defendant and Appellant.
C087059
(Super. Ct. No. 17FE010993)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
Filed 2/13/20
CERTIFIED FOR PARTIAL PUBLICATION*
APPEAL from a judgment of the Superior Court of Sacramento County, Allen H. Sumner, Judge. Affirmed with directions.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Hokans, Supervising Deputy Attorney General, Cameron M. Goodman, Deputy Attorney General, for Plaintiff and Respondent.
* Pursuant to
In People v. Hendrix (1997) 16 Cal.4th 508 (Hendrix), our high court clarified that trial courts had discretion under the statutory scheme then in place to impose concurrent sentences in cases where there are current convictions for more than one violent felony. Of course, this holding did not signal that concurrent sentences were required, merely that concurrent sentencing was available as a tool trial courts could employ when fashioning an appropriate sentence for the conduct reflected by the various counts of conviction before them at sentencing.
This discretion has been the law for over 20 years.
We agree with the majority of our colleagues who have recently decided this issue that Hendrix remains valid in the face of Proposition 36, which
In the unpublished portion of our opinion, we analyze defendant‘s remaining claims of error and conclude that prejudicial error does not appear, but the case must be remanded for another sentencing issue. Because the trial court mistakenly thought it lacked any discretion to consider concurrent sentencing options, and for other reasons explained herein, we remand for exercise of discretion and resentencing and otherwise affirm.
INTRODUCTION
Defendant Demetrious Montrail Marcus and an accomplice broke into an apartment occupied by an elderly couple and other family members. After robbing the victims at gunpoint, defendant and his partner left with various property and were chased by the son and grandson; the son was shot during the chase.
A jury found defendant guilty of two counts of first degree robbery, assault with a firearm, and being a felon in possession of a firearm, and found true several enhancements for personal use of a firearm as well as allegations that defendant had suffered a prior strike, had a prior serious felony conviction, and had served a prior prison term. The trial court sentenced defendant to an aggregate term of 29 years in state prison.
On appeal defendant contends the trial court erred in declining to excuse a juror who expressed concern for the safety of the alleged victims during deliberation, and by failing to recognize it had discretion to impose concurrent sentences for the robbery counts. He also seeks a remand to allow the trial court, under recent statutory amendments, to exercise discretion to strike the prior serious felony enhancement.
We conclude that the trial court misunderstood its discretion to impose concurrent sentences for crimes committed on the same occasion or arising under the same set of operative facts and agree with the parties that a remand is necessary to allow the court to consider striking the prior serious felony enhancement. We also note that the court failed to specify a sentence on count four and direct it to do so on remand, as we explain post.
The facts underlying the counts of conviction are not relevant to the two claims raised on appeal; we decline to recite them in any detail. It suffices to say that defendant was charged with the first degree robbery of a father (
It was alleged that defendant had a prior strike (
For counts one and two, it was alleged that defendant personally used a firearm. (
The jury found defendant guilty on all counts, and found that he personally used a firearm for each count (
After denying defendant‘s Romero3 motion, the court sentenced him to an aggregate term of 29 years in state prison. As relevant here, the court imposed a sentence of four years, doubled to eight years due to defendant‘s prior strike, for the robbery of the father, and a consecutive term of one year four months, doubled to two years eight months, for the robbery of the son; we provide additional detail post in our Discussion. The court stayed sentence pursuant to
I
Discharge of a Juror
Defendant contends the trial court erred in refusing to dismiss Juror No. 7 for misconduct during deliberations. He argues the evidence shows the juror disregarded the court‘s instruction not to consider sympathy, bias, or punishment in reaching his decision, and instead was improperly sympathetic towards the victims. Such misconduct, in defendant‘s view, was presumptively prejudicial, and the People failed to rebut the presumption. We disagree.
A. Background
Before closing arguments, the court instructed the jury pursuant to CALCRIM No. 200 as follows: “You must decide what the facts are. It‘s up to all of you and you alone to decide what happened based only on the evidence that has been presented to you in this trial. [¶] Do not let bias, sympathy, prejudice, or public opinion influence your decision. Bias includes, but is not limited to, bias for or against the witnesses, attorneys, defendant, or alleged victims, based on gender, nationality, national origin, race or ethnicity, religion, sexual orientation, age, or socioeconomic status. [¶] You must reach your verdict without any consideration of punishment. [¶] You must follow the law as I explain it to you even if you disagree with it.”
After two days of deliberations, the jury submitted Question No. 4, asking in part: “What instructions do we follow in the case that another juror or jurors cannot follow the instructions given?” Before responding, the court called the jury foreperson into the courtroom for more information.
According to the foreperson, Juror No. 7 had been reminded not to discuss “[p]otential punishment, safety of people who may have been on the stand testifying, [and the] consequences from any decision that is made either way.” While Juror No. 7 acknowledged that he knew he was not supposed to consider such things, he told the other jurors he “can‘t help but think about” it.
After the foreperson left the courtroom, the trial court called in Juror No. 7 and admonished him not to let bias, sympathy, prejudice, or public opinion influence his decision by rereading CALCRIM No. 200. The court reminded Juror No. 7 that bias included bias for or against the witnesses, attorneys, defendant or alleged victims, and that the jury was required to reach its verdict without considering punishment.
Juror No. 7 responded that he was not discussing punishment but that he was concerned for the safety of the victims depending on what the jury found. While the court acknowledged that it was “human” to have such concerns, the law required that the juror set aside those concerns and base his decision on the facts of the case. When the court asked whether Juror No. 7 was “confident” that he could do that, the juror responded, “I am confident with that, your Honor.”
Juror No. 7 then volunteered that he would be willing to “[step] aside” to be replaced by an alternate if the court or the other jurors felt he was not in the “right frame of mind,” but that he “[felt] okay” to continue deliberating in light of the court‘s admonishment. The court responded, “[t]hat‘s not a basis for removing a juror.” The court then gave the example that dismissal would be proper for a juror who was unwilling to follow a law that he disagreed with in the context of a hypothetical marijuana possession case, and Juror No. 7 said: “That would not be the case with myself, your Honor. No sir.”
The court then asked Juror No. 7 again: “Are you comfortable, are you confident that you can follow the instruction to not let bias, sympathy, prejudice, considerations of punishment, or any other factor outside the instructions affect your verdict?” Juror No. 7 responded, “I am at this point in time, your Honor. Yes, I am.” He was “struggling this morning, but it‘s better now.”
After a sidebar with counsel, the trial court then asked Juror No. 7 whether he was fearful for his own safety or concerned for other parties involved in the case. Juror No. 7 said he was not concerned for his own safety, but that he would “prefer that at the end of this trial that all the violence that has occurred ceases completely.” He then again assured the court that he was confident that he could continue deliberating without letting the impermissible factors influence his decision. Before excusing Juror No. 7 to return to the jury room, the court stated: “Now, if you feel that changes as you go along with your deliberations [¶] . . . [¶] will you let us know?” Juror No. 7 assured the court that he would let the court know “immediately” if he continued to have such concerns.
Defense counsel objected to Juror No. 7 remaining on the jury, arguing that his actions showed he was unable to follow the law and was biased in favor of the witnesses and against defendant. The trial court summarized the issue as whether the record showed a demonstrable reality that Juror No. 7 could not follow the law. The court then ruled that the record did not show a demonstrable reality that Juror No. 7 was unable to perform the duties of a juror within the meaning of
The trial court reconvened the jury in the courtroom and told the jurors it wanted to “stress” CALCRIM No. 200 and reread a portion to them. The court then added, “Let us know if any further instruction would be helpful in moving your deliberations along, if there are specific questions that you‘d like answered, if additional argument by counsel on a particular point would be helpful” “if there‘s anything more you need from us, you can send back another note.”
B. Applicable Law
“An accused has a constitutional right to a trial by an impartial jury.” (In re Hamilton (1999) 20 Cal.4th 273, 293 (Hamilton);
Under
“The trial court‘s authority to discharge a juror includes the authority to conduct an appropriate investigation concerning whether there is good cause to do so, and the authority to take ‘less drastic steps [than discharge] where appropriate to deter any misconduct or misunderstanding it has reason to suspect.’ ” (People v. Alexander, supra, 49 Cal.4th at p. 926; People v. Lomax (2010) 49 Cal.4th 530, 588 [“When a court is informed of allegations which, if proven true, would constitute good cause for a juror‘s removal, a hearing is required“].) To avoid intruding unnecessarily upon the sanctity of the jury‘s deliberations, the court‘s inquiry into possible grounds for juror discharge should be as limited in scope as possible; the inquiry should focus on the jurors’ conduct, not the content of deliberations, and should cease once the court is satisfied the juror at issue is participating in deliberations and has not expressed an intention to disregard the court‘s instructions or otherwise commit misconduct. (Alexander, at pp. 926-927; People v. Cleveland (2001) 25 Cal.4th 466, 485.)
The decision of whether or not to replace a juror rests in the trial court‘s discretion. (People v. Cleveland, supra, 25 Cal.4th at pp. 474, 478 [the decision to discharge a juror and to order an alternate juror to serve is in the sound discretion of the trial court].) Although we review a trial court‘s ruling under
C. Analysis
Defendant argues that Juror No. 7 “engaged in misconduct requiring his removal [from] the jury.” He challenges the trial court‘s findings as erroneous. But the court‘s findings are supported by substantial evidence. As we have described, the court reasonably viewed the foreman‘s note as indicating that one juror was having difficulty following the court‘s instructions on the law and had announced that difficulty to the rest of the jurors well before any verdict had been reached. The court recognized that Juror No. 7‘s misgivings could arguably qualify as improper consideration of bias, sympathy, or punishment in contravention of the court‘s instruction not to consider those factors in reaching a verdict. After questioning Juror No. 7 and obtaining assurances that he could disregard his safety concerns and decide the case only on the evidence presented during trial, the court found Juror No. 7 credible. That is, the court accepted the juror‘s representation that he could abide by the court‘s instruction, and particularly CALCRIM No. 200, which the court reminded Juror No. 7 meant that he could not let bias, sympathy, prejudice, or public opinion influence his decision and he could not consider punishment.
Because the court was able to question Juror No. 7 directly, observing his responses and demeanor in person, we defer to the court‘s credibility determination. (See People v. Lomax, supra, 49 Cal.4th at p. 590; People v. Fuiava (2012) 53 Cal.4th 622, 714 [appellate court declined to reassess the weight of the evidence before the trial court where the trial court credited juror‘s confession that he could not follow the court‘s instruction because of personal bias in dismissing the juror].) “[T]rial courts are frequently confronted with conflicting evidence on the question whether a deliberating juror has exhibited a disqualifying bias.” (Lomax, at p. 590.) “In such circumstances, the trial court must weigh the credibility of those testifying and draw upon its own observations of the jurors throughout the proceedings. We defer to factual determinations based on these assessments.” (Ibid.)
On this record, we cannot say the court abused its discretion in finding that Juror No. 7‘s inability to discharge his duties did not appear as a demonstrable reality. While he may have initially failed to follow CALCRIM No. 200 and confided in the other jurors that he was having difficulty, after his first and only conversation with the court (where it was patiently explained to him that although his humanity was recognized and understood by all, the instruction specifically forbade the considerations he was voicing) the juror indicated that his difficulty had eased. Although defendant stresses the juror‘s assurance that he could follow the instructions “at this point in time,” when read in context, coming as it did only seconds before the juror added that his earlier struggles had eased, the temporal reference was just as likely to reference the past than the future, as defendant suggests. The trial court could reasonably conclude after that exchange that discharge was unwarranted given that Juror No. 7 avowed not to let bias, sympathy, or prejudice affect his verdict, and also agreed to inform the court “immediately” if he was unable to do so in the future--assurances the court found credible.4
Nor can we say that defendant was prejudiced by Juror No. 7 remaining on the jury. While juror misconduct usually raises a rebuttable presumption of prejudice (Hamilton, supra, 20 Cal.4th at p. 296), whether an individual verdict must be overturned for jury misconduct is resolved under the substantial likelihood test--an objective standard. (Ibid.) “Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant.” (Ibid.) Our Supreme Court has recognized that the substantial likelihood test “is a pragmatic one.” (Ibid.) It is “mindful of the ‘day-to-day realities of courtroom life’ [citation] and of ‘society‘s strong competing interest in the stability of criminal verdicts.’ ” (Ibid.)
This case is unlike People v. Echavarria (2017) 13 Cal.App.5th 1255, upon which defendant relies. There, the court found the People failed to rebut the presumption of prejudice where a juror who claimed to have worked in a prison informed the other jurors during deliberations that while the defendant “could ‘walk tomorrow’ with time served” if found guilty of second degree murder, that outcome would be far less likely if the verdict were in the first degree. (Id. at pp. 1262, 1268-1269.) While one juror cautioned that the jury could not consider information that did not come from the court, not all jurors heard the admonition. (Id. at pp. 1262, 1268.)
The Echavarria court noted that the gravity of the misconduct may affect the quantum of proof necessary to rebut the presumption of prejudice. (People v. Echavarria, supra, 13 Cal.App.5th at pp. 1266-1267.) To evaluate the seriousness of the misconduct, the court considered whether the extraneous information about sentencing (1) was discussed during the guilt phase of the proceedings; (2) was presented by a person who appeared to have some authority on the subject; (3) was personal to the defendant rather than just conceptual; and (4) whether the discussion was lengthy or brief. (Id. at p. 1267.)
Applying those same factors here, it is readily apparent that this case differs markedly from Echavarria. Here, Juror No. 7 did not discuss the effect of certain verdicts, but merely pondered the safety of witnesses in the abstract. And unlike the juror in Echavarria, here there is no evidence that Juror No. 7 had particular expertise in security or “safety“; he was an electrician. Finally, here Juror No. 7 was warned by the foreperson and then the court that he could not consider anything other than the evidence presented, and the court then admonished the entire jury and read the applicable portion of CALCRIM No. 200.
Juror No. 7 had agreed to “immediately” notify the court if he continued to struggle and never did; further, none of the other jurors complained again that Juror No. 7 was behaving inappropriately. A reasonable inference from this evidence is that after airing his concerns with the court and the court reemphasizing his duty to consider only the evidence presented, Juror No. 7 followed the court‘s instructions in reaching a verdict.5
Any presumption of prejudice arising from Juror No. 7‘s misconduct is sufficiently rebutted by evidence contained in the record. We therefore reject defendant‘s juror misconduct claim. We see no substantial likelihood that Juror No. 7 was actually biased against defendant.
II
Discretion Regarding Sentencing on the Robbery Counts
Defendant argues the trial court mistakenly failed to recognize its discretion to impose concurrent terms as to the two robbery counts. We agree.
A. Background
At sentencing, the trial court stated its intent to run the sentence for count two, the robbery of the son, concurrent to the sentence for count one, the robbery of the father. The court found that the crimes “arose at the same time,” and it observed that a concurrent sentence for count two was “proportionate to the crime itself given the jury‘s finding that [defendant] was either not the shooter or they were not convinced beyond a reasonable doubt that he was the shooter.”
The prosecutor argued that the court lacked discretion to sentence defendant concurrently as to counts one and two because he was found guilty of violent felonies against two victims. The court ultimately agreed.
B. Analysis
Defendant was charged under both the legislative version of the three strikes law,
1. Section 667, subdivisions (c)(6) and (c)(7) and Hendrix
Before the enactment of Proposition 36, our Supreme Court determined that under
The court in Hendrix then analyzed
The court explained why
Since our Supreme Court decided Hendrix in 1997, trial judges have retained discretion to sentence multiple current convictions for serious and/or violent felonies concurrently where those crimes arose out of the same set of operative facts and were committed on the same occasion. Proposition 36 did not amend the language of
2. Section 1170.12, subdivisions (a)(6) and (a)(7) and Proposition 36
Proposition 36 did, however, make changes to the parallel, initiative version of the statutory sentencing scheme. The amendments made the following changes to the language of
“(a) Notwithstanding any other provision of law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior serious and/or violent felony convictions, as defined in
[¶] . . . [¶] (6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to this section. [¶]
(7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6) of this subdivision (b), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.”7 (
Few published cases have examined how Proposition 36‘s amendment to section 1170.12 affected the trial court‘s discretion to impose concurrent sentences for serious and/or violent felonies committed on the same occasion and arising from the same set of operative facts. In Torres, supra, 23 Cal.App.5th at pages 196 through 203, Division One of the First District Court of Appeal held that such discretion remains. A majority of a panel of our colleagues recently agreed with the result in Torres while following a slightly different analytical path in People v. Gangl (2019) 42 Cal.App.5th 58, petition for review pending, petition filed December 17, 2019, S259463 (time for grant or denial of review extended to March 16, 2020). Division Five of the First Appellate District followed Torres in People v. Buchanan (2019) 39 Cal.App.5th 385. We, too, reach the same conclusion as the Torres court, but with different emphases in our analysis, as we now explain.
3. The Effect of Proposition 36 on the Language Interpreted by Hendrix
As we have described, Hendrix interpreted
circumstances. The parallel provision to subdivision (c)(6), containing identical language in all relevant respects, is contained in
were committed on the same occasion and arose out of the same set of operative facts, whether or not the current felony convictions are serious and/or violent. (Ibid.)
Proposition 36‘s amendment to subdivision (a)(7) eliminated that subdivision‘s reference to (a)(6) and replaced it with a reference to “subdivision (b),” which contains a definition of “serious and violent felonies.” Therefore, subdivision (a)(7) no longer applies only to “serious or violent felonies ‘not committed on the same occasion, and not arising from the same set of operative facts.’ ” (Hendrix, supra, 16 Cal.4th at p. 513.) Rather, subdivision (a)(7) applies in all cases where the current multiple felonies are serious and/or violent--even when those felonies were committed at the same time and involve the same facts.
But as we have described ante, Hendrix teaches through its analysis of the parallel provisions of section 667 that subdivision (a)(7) is not duplicative of (a)(6).
emphasis added.) Subdivision (a)(7) requires the sentences for multiple serious and violent felonies to run consecutive to the sentences for other convictions that may be imposed consecutively. This requirement does not, however, supplant the discretion to sentence serious and violent felonies concurrently that is bestowed by subdivision (a)(6).
By way of example, consider a hypothetical scenario in which a defendant is convicted of two serious and/or violent felonies committed on the same occasion and arising under the same set of operative facts and multiple other nonserious and nonviolent felonies. Because the serious and/or violent felonies were committed on the same occasion and arose under the same set of operative facts,
Our dissenting colleague incorporates by reference his dissent in People v. Gangl, supra, 42 Cal.App.5th at page 72, wherein he concluded that by deleting the prior reference in
We do not agree that removing the reference to subdivision (a)(6) from subdivision (a)(7) effectively removed sentencing for multiple serious and/or violent felonies from subdivision (a)(6). Rules of statutory construction obligate us to read a statute, and its various subdivisions,
Proposition 36 neither refers to Hendrix nor states its express intent to overrule longstanding Supreme Court precedent. As we have explained, its amendments do not add the language to
5. Conclusion
Thus we join our colleagues in this district and the First Appellate District and conclude the trial court mistakenly opined it had lost discretion under the three strikes law to impose concurrent sentences on the robbery counts in the wake of Proposition 36.10 We vacate the sentence and remand for a new sentencing hearing. Because there
are multiple counts and discretionary decisions at play, the trial court may consider the entire sentencing scheme and reconsider all sentencing choices. (See People v. Hill (1986) 185 Cal.App.3d 831, 834.)
III
Prior Serious Felony Enhancement
The Governor signed Senate Bill No. 1393 which, effective January 1, 2019, amends
Defendant contends Senate Bill No. 1393 applies retroactively to his case. The People properly concede the matter. The statutory changes of Senate Bill No. 1393 apply retroactively to any case that is not final on January 1, 2019, under the rule of In re Estrada (1965) 63 Cal.2d 740. “The Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.” (People v. Conley (2016) 63 Cal.4th 646, 657.)
The same inference of retroactivity applies when an amendment ameliorates the possible punishment. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.) When a statutory amendment ” ‘vests in the trial court discretion to impose either the same penalty as under the former law or a lesser penalty, ’ ” there is “an inference that the Legislature intended retroactive application ‘because the Legislature has determined that
the former penalty provisions may have been too severe in some cases and that the sentencing judge should be given wider latitude in tailoring the sentence to fit the particular circumstances.’ ” (Ibid., quoting People v. Francis (1969) 71 Cal.2d 66, 76.)
Under the Estrada rule, as applied in Francis and Lara, we infer as a matter of statutory construction the Legislature intended Senate Bill No. 1393 to apply to all cases not yet final on January 1, 2019. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.) Accordingly, we remand the matter to the trial court to determine whether to exercise its discretion to strike the five-year prior serious felony enhancement.
IV
Section 654
We note that the trial court did not identify the sentence imposed for count four before staying the term under
Because we are remanding in any event for exercise of discretion, we direct the trial court to impose and stay a full term sentence on count four.
DISPOSITION
Defendant‘s convictions are affirmed. The matter is remanded for a new sentencing hearing consistent with this opinion. Upon resentencing, the clerk
/s/
Duarte, Acting P. J.
I concur:
/s/
Renner, J.
Krause, J., Concurring and Dissenting.
I concur in the majority opinion except for part II of the Discussion. To that part, I dissent for the reasons articulated in my dissenting opinion in People v. Gangl (2019) 42 Cal.App.5th 58 (conc. & dis. opn. of Krause, J.) (petn. for review pending, petn. filed Dec. 17, 2019, S259463).
/s/
Krause, J.