IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 17, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SINGA RUDOLPH JONES ET AL., DEFENDANTS AND APPELLANTS.
(Super.Ct.No. FSB802245, FSB803385) APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed.
The opinion of the court was delivered by: King J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendants Singa Rudolph Jones and Corvell Taris Staples were tried before the same jury and found guilty as charged of one count of robbery. (Pen. Code, § 211; case No. FSB803385.)*fn1 The jury found that defendants committed the robbery in an inhabited dwelling and in concert with at least two others (§ 213, subd. (a)(1)(A)), for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), and that Jones personally used a firearm (§ 12022.53, subd. (b)). As to Staples, the jury found a principal personally used a firearm. (§ 12022.53, subd. (e)(1).)
The evidence showed that the robbery was committed on August 7, 2008. In June 2008, Jones was placed on probation after pleading guilty to possessing cocaine base and admitting a gang allegation, and the terms of his probation required him not to commit any additional crimes. Following the close of the evidence in the robbery trial, the trial court revoked Jones's probation. After the jury returned its verdicts and findings, the court sentenced Jones to 29 years in prison. Staples was sentenced to 13 years. Jones was 19 years old at the time of the robbery. Staples was 18 years old.
Defendants appeal and join each other's contentions. Jones clams he was denied his due process right to a fair trial because the trial court denied two mistrial motions he made during jury deliberations, based on two unrelated incidents of juror misconduct involving Juror Nos. 5 and 2, respectively. Staples claims the prosecution's expert gang testimony violated his Sixth Amendment right to confrontation because it was based, in part, on testimonial materials and statements of law enforcement officers and other gang members who did not testify at trial and whom he did not have a prior opportunity to cross-examine. Staples further claims his due process rights were violated because the trial court's oral instructions to the jury were not transcribed, precluding meaningful appellate review. We find these claims without merit and affirm the judgments.
II. THE EVIDENCE PRESENTED AT TRIAL
A. The Robbery
On August 7, 2008, M.J., her four-year-old son, and her boyfriend L.B. were living in a two-bedroom apartment at the Park Mountain View apartment complex in San Bernardino. Around 9:15 p.m., M.J. and her son were asleep in one of the bedrooms, and L.B. was alone in the living room when he heard a knock at the door. L.B. looked through the peephole, saw two young Black males, and opened the door. One of the males was shorter than the other. Both were wearing black "hoodies" and jeans, and both appeared to be approximately 17 years old. The shorter of the two males asked L.B. whether he knew anyone who sold "weed," and both of them "flashed a little money . . . a couple hundred dollars each." L.B. told them they had the wrong apartment and closed the door. L.B. had never seen the males before.
Five to ten minutes later, L.B. heard another knock on the door. He looked through the peephole, saw the same short male he had just spoken to, and again opened the door. This time the short male was alone and asked L.B. whether he was "sure" he did not know where the male could get any "weed." Again, L.B. answered "no." The short male then pulled out a black semiautomatic handgun, pointed it at L.B.'s face, and told him to "[b]ack up." At that point, five or six other Black males ran up to the door, and all of them were pointing guns at L.B. Like the short male, the other males were wearing black "hoodies," and one or two were also wearing bandanas. L.B. estimated that all the males were between the ages of 17 and 21. L.B. was unarmed and wearing only shorts.
The short male told L.B. to "[g]ive us money." With five guns pointing at him, L.B. walked backward into the apartment and into the bedroom where M.J. and her son were sleeping. Most of the five armed males followed L.B. into the bedroom while one or two stood in the bedroom doorway. L.B. heard a sixth person in the other bedroom and a seventh rummaging around in the kitchen. L.B. kept telling the males he had "kids in the house," he did not have any money or "weed," and to take anything they wanted.
M.J. awoke and saw five Black males standing in her bedroom, all between the ages of 16 and 21, all wearing black shirts and black pants, and all pointing handguns at her and L.B. She saw that two taller males were standing in the doorway, and both had bandanas covering their mouths and hoods pulled over their heads. All five males were yelling at M.J. and L.B. to give them money while her son was still asleep in the bed. The two taller males then pulled their bandanas off their lower faces. One of the other males took M.J.'s wallet out of her purse and also grabbed L.B.'s cell phone. All of the males then ran out of the apartment.
M.J. and L.B. later discovered that, in addition to taking M.J.'s wallet and L.B.'s cell phone, the robbers took their Xbox game, game controller, video games, and DVDs. M.J. had $750 in her wallet and was planning to use the money to pay the rent on the apartment. The robbers also took M.J.'s car keys from the top of the refrigerator and stole her 2007 red Toyota Corolla.
M.J. called 911, and Deputy Nathan Gastineau arrived at the apartment shortly after 9:30 p.m. and spoke with M.J. and L.B. Deputy Mike Richardson arrived a short time later and assisted Deputy Gastineau. M.J. and L.B. were both shaken. Their television set was upside down in the living room, and others items had been tossed around in the apartment. No suspects were found that night.
M.J.'s crashed Corolla was recovered on August 11 about a mile away from her apartment. On August 14, officers apprehended Jones and Staples at a vacant house in Highland.
M.J. admitted her brother and several others were smoking marijuana in her apartment around 8:30 p.m., shortly before the robbery. M.J. did not believe there were any drugs in her apartment at the time of the robbery, however. M.J. had a prior felony conviction for possession of a controlled substance and for possessing drugs while with a child.
B. The Identification Evidence
On August 8, Deputy Richardson responded to a disturbance at the same apartment complex where M.J. and L.B. were robbed. As soon as he pulled up, he saw a pile of men's clothing on the sidewalk and in the street. He searched through the clothes, found identification belonging to Jones, and gave Jones's identification to Deputy Gastineau.
Jones's sister lived in the apartment complex, and Deputy Gastineau spoke to her on August 8. Six months earlier, in February 2008, Deputy Gastineau spoke with Jones after stopping a vehicle in which Jones was a passenger near the apartment complex. At the time, Jones lived in his sister's apartment and admitted being a member of the Hoover Crips gang.
Deputy Gastineau prepared a photographic lineup, including Jones's photograph, and showed the lineup separately to L.B. and M.J. on August 8. M.J. looked at the lineup for around 10 seconds, pointed to Jones's photograph, and said, "That's the guy." She also said she had seen Jones around her apartment complex before the robbery. At trial, M.J. testified she was "[a] hundred percent" sure Jones was one of the robbers. On cross-examination, however, M.J. admitted she told the 911 dispatcher she had never seen any of the robbers before, but she explained she was trying not to become hysterical after the robbery and she did not immediately recall seeing Jones earlier that day. Deputy Gastineau testified that M.J. initially told him she was unable to see what any of the robbers looked like.
L.B. looked at the photographic lineup, including Jones's photograph, for 10 to 15 seconds, pointed to Jones's photograph, and said, "That's him." At trial, however, L.B. did not identify Jones as one of the robbers, and explained he identified Jones to Deputy Gastineau as someone he had seen riding a bicycle around the apartment complex. Deputy Gastineau disputed L.B.'s testimony. According to Deputy Gastineau, L.B. identified Jones to him as one of the robbers and did not say he merely recognized Jones as someone he had seen in the area.
After the robbers left their apartment, L.B. and M.J. waited a few minutes, then went outside to look around. M.J. testified she saw Staples standing around 15 feet away from her apartment. He turned around and quickly walked away. She had seen Staples on two prior occasions at the apartment next door and believed he lived there. She had never spoken to him. She also saw two of the robbers hopping over a gate and running away, and she heard the sound of her Corolla starting.
Detective Matthew Peterson prepared a six-pack photographic lineup, including Staples's photograph, and showed the lineup to M.J. on August 19.*fn2 M.J. identified Staples as the person she saw outside her apartment after the robbery. On a scale of 1 to 10 with 10 being the most certain, she said her certainty of Staples's identity was a 10. At trial, she was "90 percent" certain Staples was the person she saw outside her apartment after the robbery.
C. The Prosecution's Expert Gang Testimony
San Bernardino County Sheriff's Deputy Kevin Snyder testified as a gang expert for the prosecution. He was a member of the California Gang Investigators Association and regularly spoke with gang investigators throughout California and the United States. He was familiar with the gang known as the "Hoover Crips," more recently known as the "Hoover Criminals," based on his personal contacts with its members and information he had received from law enforcement officers in Los Angeles where the gang originated. The gang was so large it had broken into several subsets, and many of its members had moved to San Bernardino and Riverside Counties. Deputy Snyder considered the Hoover Criminals to be a criminal street gang, based on its primary activities and predicate offenses its members had committed.
Deputy Snyder further testified that gang cards are identification cards law enforcement officers use to document information on gang members. On April 8, 2008, Deputy Snyder was called to a scene where Staples was putting Hoover Criminals gang graffiti on a wall. At the time of the encounter, Staples admitted to Deputy Snyder that he was an active member of the Hoover Criminals and had been "jumped in" to the gang five years earlier in Los Angeles. Deputy Snyder also saw that Staples was dressed in orange and black, the colors of the 74 Street Hoover Criminals, and had multiple gang tattoos. On April 8, Deputy Snyder completed a gang card on Staples, documenting this information.
Eight days later, on April 16, Deputy Snyder spoke with both Jones and Staples at the Park Mountain View Apartments in San Bernardino. They told Deputy Snyder they were related, and Deputy Snyder believed they were cousins. Jones admitted he was a member of the "Five Two," a subset of the Hoover Criminals. He also told Deputy Snyder he was 18 years old, had started in the gang at age 12 while living near 52nd Street in Los Angeles, and had been in Highland for six months. Deputy Snyder's supervisor completed a gang card for Jones based on Jones's admissions to and contacts with Deputy Snyder during their April 16 encounter.
On April 30, San Bernardino police officers completed gang cards on both Jones and Staples. The gang card on Jones indicated that officers had contact information for him in the City of San Bernardino several miles from the Park Mountain View Apartments, and that Jones lived at the apartment complex. The same card indicated that Jones wore clothing associated with the Hoover Criminals, and his street moniker was "Baby Rat." The April 30 gang card on Staples indicated he also wore clothing associated with the gang, and his moniker was "June Bug."
Deputy Snyder opined that Jones and Staples were active member of the Hoover Criminals at the time of the robbery. He based his opinion on his personal contacts with both men, their admissions to him that they were members of the gang, the gang cards, the areas in which they had been located, and their gang tattoos. Deputy Snyder said his opinion was also supported by Jones's February 2008 admission to Deputy Gastineau that he was a member of the gang. Deputy Snyder also opined that the home invasion robbery was committed for the benefit of the gang. He noted the robbery was committed by multiple persons and such robberies benefit gangs financially and by enhancing their reputation and street credibility.
On cross-examination, Deputy Snyder said he had reviewed a Los Angeles police report indicating that Staples had been beaten and robbed by approximately 10 assailants in the Hoover Criminals' territory in June 2008. The report indicated that Staples did not report the incident to police; rather, the incident was reported by medical personnel who treated Staples. Deputy Snyder admitted that someone who is being "jumped out" of a gang would probably not report the incident to police, and he had no evidence that Staples wore gang colors after June 2008.
On redirect, Deputy Snyder said a person who is being jumped out of a gang or beaten would not also be robbed, and nothing in the June 2008 police report indicated that the beating and robbery of Staples was for the purpose of jumping him out of his gang. The deputy said gang members beat members who want out of the gang but they do not rob them, and based on the police report, it was more likely Staples "got jacked," meaning members of another gang simply "rolled up on him and took what he had and beat him up." He also said it is possible for a person to be "jumped out" of a gang but still associate with members of the gang. Some gang members had told him that some gang members from Los Angeles move to the Inland Empire to get away from the gang lifestyle, however.
D. Staples's Defense Case
Staples and his mother, Carolyn Ferguson, testified in Staples's defense. Ferguson testified Staples was 19 years old at the time of trial in April 2009. He was raised in Wisconsin, moved with her to the Inland Empire in 2003, and had never lived in Los Angeles. After he turned 18 in April 2008, he moved out of her home in San Bernardino and began staying with friends in Victorville, where he got gang tattoos. After he got the gang tattoos, Staples told Ferguson he was a gang member. Staples's friend in Victorville would drop Staples off at Ferguson's San Bernardino home several mornings each week, then take Staples back to Victorville in the evenings. Staples did not have a job or own a car, and was not related to Jones. Ferguson knew Jones, but not well. Around June 11, 2008, Ferguson went to see Staples in a hospital in Los Angeles, where he had been beaten and robbed, and took him home with her to San Bernardino.
Staples testified he became a member of the Hoover Criminals gang in 2006 when he was 16, though he had never lived in Los Angeles. He got gang tattoos after he turned 18 on April 2, 2008, and wore gang colors. He began thinking about leaving the gang around the same time, after he turned 18. He admitted he was tagging a wall with graffiti on April 8 and told Deputy Snyder he was a gang member, and also admitted he was with Jones at the Park Mountain View Apartments on April 16. He considered Jones his cousin because they were close friends and were together almost every day. He did not recall being contacted by San Bernardino police on April 30, but admitted his signature was on the April 30 gang card. He was still in the gang on April 30.
On June 11, Staples went to Los Angeles, where he had been jumped into the gang, and asked to be jumped out of the gang. Several young gang members jumped him out of the gang by beating him, and taking his shoes, wallet, and other property. Other than loitering and painting graffiti, he denied ever committing any crimes for the gang. His friend from Victorville had a relative who was a member of the gang named Little June Bug, and Staples was known as Baby June Bug. Because Little June Bug was respected, the gang gave Staples a "free pass" from committing crimes.
Staples specifically denied involvement in the August 7, 2008, robbery. He was in Victorville at the time of the robbery. He had often been at the Park Mountain View Apartments and lived there shortly before the August 7 robbery, but not at the time of the robbery. He had seen M.J. and L.B. at the apartments "[w]ay before" the robbery, and they talked to him. He admitted that when police spoke to him in the hospital on June 11, 2008, he did not tell them he had been jumped out of the gang. He also admitted he was smoking marijuana with Jones in the vacant house on August 14, and tried to run from police.
E. Rebuttal to Staple's Defense Case
The prosecution called Deputy Snyder in rebuttal to Staple's defense case. Deputy Snyder testified that a gang member would not "accidentally" wear gang colors, and by wearing gang colors a gang member is letting everyone know where he is from. When Deputy Snyder spoke to Staples on April 8, 2008, he did not indicate he wanted out of his gang. Deputy Snyder was not aware Staples had any criminal convictions.
F. Jones's Defense Case
Jones called Deputy Gastineau in his defense. The deputy testified that M.J. initially told him the robbers were wearing baseball hats, and never mentioned anything to him about any of the robbers taking their masks or bandanas off during the robbery. On cross-examination, the deputy clarified that both M.J. and L.B. told him that only one of the robbers was wearing a mask.
A. The Motions for Mistrial Based on Juror Misconduct Were Properly Denied
Jones claims the trial court prejudicially erred in denying two motions for mistrial he made based on two separate incidents of misconduct involving Juror Nos. 5 and 2. Juror No. 5 was excused and replaced by an alternate, but Juror No. 2 was not excused and remained on the jury. Staples argues only that the misconduct of Juror No. 5 prejudiced him. We reject these claims.
1. Relevant Background
The jury began deliberating on Thursday, April 9, 2009, at 1:58 p.m. At 3:20 p.m., the jury asked for readbacks of M.J.'s and L.B.'s testimony. The court informed the jury it would receive the readbacks when deliberations resumed on Monday, April 13, at 9:30 a.m., and the jury recessed for the day. Deliberations resumed at 9:53 a.m. on April 13, and the testimony of M.J. and L.B. was read between 9:53 a.m. and 1:46 p.m. At 2:36 p.m., the jury asked for a readback of Staples's testimony. Staples's testimony was read between 2:49 p.m. and 3:25 p.m. The jurors recessed and resumed deliberating at 3:48 p.m. At 4:25 p.m., shortly before recessing for the day, the jury informed the court it was having a "hard time coming to a decision" regarding Staples.
Shortly after 9:00 a.m. on Tuesday, April 14, the court and counsel conferred in chambers, then held a hearing outside the presence of the jury regarding an issue of juror misconduct involving Juror No. 5. The bailiff explained that, on April 13, Juror Nos. 2 and 11 had separately asked him what they should do if another juror was saying something in the jury room that he or she did not say in court. The bailiff told both jurors he would speak with the judge and get back to them, and to write something down regarding the issue if they wanted to.
After the bailiff explained the situation, the court called Juror No. 2 into the courtroom. Juror No. 2 explained that during deliberations Juror No. 5 mentioned having a brother who was part of a gang. Juror No. 5 also said she "knows how gangs work and the colors they wear," and told the other jurors "how [her brother] would do things." Juror No. 5 said she should have "mentioned this" to the attorneys during jury selection.
The court asked Juror No. 2 whether Juror No. 5's statements would affect her ability to deliberate or be fair. Juror No. 2 responded that the statements were "hav[ing] an influence" on her, and other jurors told her it was affecting them, too. When asked to explain how the statements were influencing her, Juror No. 2 said Juror No. 5 was "looking at it from how if it was her brother and what he would do . . . but her influencing is making me decide well, maybe this or maybe that."
After Juror No. 2 left the courtroom, the court called in Juror No. 11. Juror No. 11 confirmed that Juror No. 5 mentioned having a brother who was "part of the Crips gang," and having other family members who were gang members when Juror No. 5 was younger. When asked whether Juror No. 5's statements were affecting her ability to be fair and impartial, Juror No. 11 responded, "Absolutely." When "how" Juror No. 5's statements were affecting her ability to be fair and impartial, Juror No. 11 responded, "We are having a really hard time trying to deliberate right now. There is [sic] comments that are being made that minds are made up. There is no further discussion. We're having a hard time getting people to open up and talk to us, to allow us to understand why they feel either way." Juror No. 11 further explained other jurors were "following" what Juror No. 5 was saying and were not "back[ing] their statements up or their decisions."
Then, the court again asked Juror No. 11 whether Juror No. 5's statements were affecting Juror No. 11's ability to deliberate. Juror No. 11 responded, "No. No. I think it has the entire--it has us at a standstill at this point. The entire group is being affected." Finally, the court asked Juror No. 11, "Is that because she's on a different side than you are or because of--in your opinion, anyway, because of the comments that she made about family members being in a gang?" Juror No. 11 responded, "We were having a hard time trying to understand why there's [sic] such difficulties not backing decisions up. We spent seven or eight hours trying to deliberate, and the comment [about Juror No. 5's brother having been in a gang] was made after the fact. So now we understand why we were having difficulties.
Thus, according to Juror No. 11, the statements were not affecting her own ability to deliberate but were affecting the entire jury, which was having a difficult time deliberating before the statements were made. Juror No. 11 then left the courtroom.
The court next called in Juror No. 5 and asked her whether she had any family members who were part of a gang. Juror No. 5 said "[n]o," and explained she learned from her father that her half brother had once been part of a gang but had left the gang. She was not close to her half brother and was 11 years younger than he. When asked why she did not disclose the information during jury selection, she said she was nervous and did not think about it because she and her half brother were not close.
Then, when asked why she mentioned her half brother during deliberations, Juror No. 5 said the other jurors were speaking about being in a gang, and she told them "if you are in a gang, it doesn't mean that you . . . will stay in a gang," and used her half brother as an example. She told them he had been in a gang, left the gang, and "turned his life around," but still "associated" with some of its members three years after he left the gang. Finally, when asked whether she recalled the admonition to consider only the evidence presented during trial, Juror No. 5 said the other jurors had reminded her of that, but she insisted she was only using her half brother as "an example." Juror No. 5 denied offering the other jurors information "on how gangs work." Regarding gang colors, she told the other jurors there were "a lot of different colors that say you are in a gang . . . . [¶] . . . [so] no matter what [color] you wear, there is still some [gang] affiliation with that color . . . ."
Next, the court called in the foreperson, Juror No. 1. Though he denied that Juror No. 5's statements were affecting his ability to deliberate, the foreperson said the statements may have impacted the other jurors. He explained that some jurors, including Juror No. 5, were "more emotional" about the evidence than other jurors, and one or two were looking to Juror No. 5 for approval before continuing. The court then called each of the other jurors, one by one. Juror Nos. 3, 4, 6, 7, 8, 9, 10, and 12 each confirmed they had heard Juror No. 5's statements, but denied the statements were affecting their deliberations. They each said they could disregard the statements and base their decisions solely on the evidence presented at trial. Still, some of the jurors said they felt the statements were affecting other jurors. Juror No. 10 expressed fear for her safety in the event she voted to convict either defendant, but said her fears were eased after the court advised her that her personal information would be sealed.
The court then called Juror No. 2 back into the courtroom. In response to the court's question whether Juror No. 5's statements were affecting her ability to be fair and impartial, Juror No. 2 initially said she could not put Juror No. 5's statements out of her mind. Then, when asked whether she could base her decision solely on the evidence if Juror No. 5 were replaced and the jury were instructed to begin deliberating "all over again," Juror No. 2 said she thought she could. She would "start all over again and clear everything out." Lastly, the court called in Juror No. 11, who said there was "[n]o doubt" in her mind she could put Juror No. 5's statements out of her mind.
The prosecutor asked the court to dismiss Juror No. 5 and replace her with the only alternate juror.*fn3 The court and counsel then discussed whether a mistrial should be declared. Counsel for Jones argued a mistrial should be declared because Juror No. 5's misconduct "[ran] too deep" to be cured by her replacement. He noted that one juror said Juror No. 5 was "constantly" bringing up the matter of her half brother's experience.
Counsel for Staples said he was requesting a mistrial only if Juror No. 5 were excused. After pointing out that Juror No. 5 was the only Black juror and both defendants were Black, counsel argued that excusing Juror No. 5 would tell the other jurors to reject her point that it is possible to drop out of the gang and go straight which, he said, was "common sense and common knowledge." Counsel also pointed out that the fear expressed by Juror No. 10 was "irrational" because the half brother was no longer a gang member and, in any event, there wasn't the "slightest hint" Juror No. 5 would "sic" her half brother on the other jurors.
The court ruled that Juror No. 5 had committed misconduct, noting she did "minimize" what she said during deliberations, and that the court had specifically asked all prospective jurors during jury selection whether they had friends or relatives who were gang members. The court denied the motion for mistrial on the ground the other 11 jurors all said they could base their decision solely on the evidence--in the case of Juror No. 2, specifically if Juror No. 5 were replaced. The court disagreed that replacing Juror No. 5 would tell the other jurors to reject the point that gang members can leave a gang and go straight, because both Deputy Snyder and Staples provided testimony on that point.
After excusing Juror No. 5, the court advised the other 11 jurors it would be seating a new juror, that the new jury would have to start deliberations "all over again, from the very beginning," and that the 11 jurors were not to "bring up things that happened in the jury room prior to the new juror being impaneled." The alternate was seated shortly after 1:30 p.m. on April 14. At that time, the court admonished the new jury to begin deliberations again, not to discuss anything that had occurred during the prior deliberations, and to consider only the evidence presented during trial. The new jury was also given new verdict forms and instructions.
At 2:00 p.m. on August 14, shortly after beginning its deliberations at 1:30 p.m., the new jury asked for readbacks of the testimony of M.J., Staples, and Deputy Snyder. At 4:18 p.m., after all the testimony was read back, the jury sent the court a note stating: "We need clarification on count 1 for Mr. Staples. Is this for robbery or for aiding and abetting?" The court responded that Staples was charged in count 1 with robbery, and referred the jury to the instructions on aiding and abetting. Shortly thereafter, the jury recessed for the day.
On the morning of April 15, an issue of misconduct arose involving Juror No. 2. San Bernardino County Deputy District Attorney Kasey DuBois, who was not connected to the case, was present in court and told the court and counsel she was attending a cake decorating class in Redlands with a juror during the evening of April 14. The juror was expressing frustration with the length of time deliberations were taking and because a juror was removed for failing to disclose "family relationships . . . regarding a gang case." Ms. DuBois stopped the conversation "when [she] noticed [it] was going to continue[.]" The juror did not say anything about the details of the deliberations. One of the class participants told the juror something to the effect that if the defendant was a gang member he should get what was coming to him. Ms. DuBois said the husband of the participant who made the comment was a probation officer, but she was unsure whether the juror was present when that fact was mentioned. The juror did not respond to the comment, did not say anything about the facts of the case, did not express any opinion regarding defendants' guilt or innocence, and was not soliciting anyone's opinion.
When questioned by the court, Juror No. 2 admitted expressing frustration that deliberations were taking a long time, that a juror had been dismissed, and that the jury had to restart its deliberations. She denied discussing what had happened during deliberations, however, and did not recall hearing any class participant make a comment to the effect that gang members should get what they deserve. Nor did she recall anyone offering an opinion about what she should do in the case, or suggest anything about the evidence in the case. She did not know anyone whose husband was a probation officer currently serving in Iraq. Lastly, she told the court she believed she could still be fair and impartial and base her decision solely on the evidence. Near the end of the court's inquiry, Juror No. 2 was crying.
Counsel for Jones moved for a mistrial, saying "[t]his just exacerbates the situation we dealt with yesterday," and Juror No. 2 had directly violated the court's order not to discuss the case. Counsel for Staples did not move for a mistrial. He was willing to leave Juror No. 2 on the panel or stipulate to relieve her and allow the case to be decided by the other 11 jurors. The prosecutor argued the motion should be denied. He thought Juror No. 2 was honest with the court when she denied hearing the class participant's comment and when she said she could be fair and impartial and base her decision solely on the evidence. The court denied Jones's motion on the grounds Juror No. 2 did not discuss the substance of the case, did not hear the comment about what gang members deserve, could be fair and impartial, and could base her decision solely on the evidence.
The jury resumed deliberations at 10:11 a.m. on April 15, shortly after the second motion for mistrial was denied. At 10:33 a.m., the jury sent the court a note asking whether Staples was the principal in the firearm allegation. The court returned a note saying he was not and stating: "The allegation is that someone else who is a principal in the crime personally used a firearm." (Italics added.) Shortly thereafter, at 11:02 a.m., the jury returned its verdicts.
2. Applicable Law and Analysis
A criminal defendant is entitled to a unanimous verdict by 12 impartial, unbiased jurors. (People v. Nesler (1997) 16 Cal.4th 561, 578.) Thus, even if one juror is biased, the defendant's conviction must be reversed. (People v. Holloway (1990) 50 Cal.3d 1098, 1112, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) Juror misconduct, such as the receipt of information not received in evidence during trial, may establish juror bias. (People v. Nesler, supra, at p. 578.)
Juror misconduct is not per se reversible, however. (People v. Zapien (1993) 4 Cal.4th 929, 994.) Once juror misconduct is shown, "prejudice is presumed [and] the state must then rebut the presumption . . . ." (People v. Marshall (1990) 50 Cal.3d 907, 949.) The state may rebut the presumption by establishing, based on the entire record, there is no "substantial likelihood" the misconduct influenced the vote of any of the jurors. (People v. Zapien, supra, at p. 994.)
Regarding Juror No. 5, the trial court ruled, and the parties and this court agree, that Juror No. 5 committed misconduct in failing to disclose the prior gang membership of her half brother during jury selection and in attempting to use her half brother's experiences to persuade the other jurors during deliberations. (In re Hitchings (1993) 6 Cal.4th 97, 119 [juror concealment of material information during voir dire constitutes misconduct]; People v. Marshall, supra, 50 Cal.3d at pp. 949-950 [juror use of extraneous information during deliberations constitutes misconduct].) Juror No. 5 was replaced, and the question is whether any of the other 11 jurors or the alternate who replaced Juror No. 5 were influenced by Juror No. 5's attempt to persuade the 11 jurors with information concerning her half brother during the original deliberations.
Based on our review of the entire record, we discern no substantial likelihood that Juror No. 5's comments to the other 11 jurors influenced the verdicts or findings of the new jury, concerning either defendant. It is settled that, "'[t]he presumption of prejudice may be dispelled by an admonition to disregard the improper information,'" and "'[w]e generally presume that jurors observe such instructions.'" (People v. Zapien, supra, 4 Cal.4th at p. 996; People v. Pinholster (1992) 1 Cal.4th 865, 925, overruled on other grounds in People v. Williams (2010) 49 Cal.4th 405, 458-459.) The other 11 jurors were specifically instructed to disregard Juror No. 5's comments concerning her half brother, to begin their deliberations anew with the replacement juror, not to discuss what occurred during the prior deliberations, and to base their decision solely on the evidence. Nothing in the record indicates that the original 11 jurors did not follow these instructions. In addition, the 11 jurors each told the court they could disregard Juror No. 5's comments and base their decisions solely on the evidence. Nor is there any indication that any of the 11 jurors discussed Juror No. 5's comments with the replacement juror. Thus, there is no reason to believe any member of the new jury did not follow the court's instructions, or base their decisions solely on the evidence.*fn4
For his part, Staples argues that the prosecution "could not and did not" rebut the presumption of prejudice against him arising from the misconduct of Juror No. 5, and argues the prejudice was essentially incurable. He points out that the original jury was having difficulty reaching a decision regarding the charges against him, and asked for a readback of his testimony. And, after Juror No. 5 was replaced, the new jury also asked for a readback of his testimony, and asked the court to clarify the charges against him--first, whether he was being charged as an aider and abettor in count 1, and second, whether he was being charged as a principal in the firearm allegation.
We disagree with Staples' interpretation of the jurors' questions. First, the question is whether the new jury, not the original jury, was influenced by the misconduct and improper comments of Juror No. 5. And nothing in the record, including any of the questions posed by the original jury or the new jury, indicates the comments of Juror No. 5 had any influence on the deliberations of the new jury or its ultimate verdict and findings regarding Staples. The new jury did not tell the court it was having difficulty reaching a decision regarding Staples; only the original jury did. Moreover, counsel for Staples vigorously challenged the reliability of M.J.'s identification of Staples from the photographic lineup and at the time of trial, and Staples claimed he left the gang before the robbery; he did not participate in the robbery; and he was nowhere near M.J.'s apartment at the time of the robbery. The new jury's requests for readbacks of the testimony of Staples, M.J., and Deputy Snyder, and its requests for clarification of the robbery charge and firearm allegation against Staples, reflect an in-depth discussion of the disputed evidence concerning Staples's identity and involvement in the robbery. The new jury's requests and questions in no way indicate that Juror No. 5's comments were having any influence on the new jury's deliberations, verdicts, or findings regarding Staples.
Lastly, Jones argues the trial court further erred in denying his motion for mistrial based on Juror No. 2's statements at her cake decorating class in Redlands during the evening of April 14, after Juror No. 5 was replaced.*fn5 He claims the conduct of Juror No. 2 "merely exacerbated the prejudice" resulting from the conduct of Juror No. 5. More specifically, he argues Juror No. 2's "expression of frustration at the length and pace of deliberations, and in particular the need to restart deliberations . . . strongly suggest that she and other jurors failed to heed the requirement and admonition to begin deliberations anew, and instead allowed their frustration, as well as the lingering effects of Juror No. 's statements, to engage in a 'rush to judgment.'" We disagree.
Setting aside whether Juror No. 2 committed misconduct in expressing frustration to her classmates regarding the length and pace of deliberations (see People v. Danks (2004) 32 Cal.4th 269, 304 [juror's discussion of stress she was feeling in making a decision did not constitute misconduct]), or in disclosing to her classmates that the case was gang related, there is no indication that Juror No. 2's conduct or statements during her cake decorating class on April 14, or in court on April 15, reflected any "lingering effects" of Juror No. 5's misconduct on the new jury, or on Juror No. 2 in particular. Indeed, nothing about Juror No. 2's comments to her classmates or to the court in explaining her comments remotely suggested that she or any of the other jurors were continuing to be influenced by the misconduct and statements of Juror No. 5. Nor does the speed at which the new jury reached its verdicts and findings against both defendants--around 11:00 a.m. on April 15, less than one day after the new jury was impaneled on April 14--indicate the new jury was still being influenced by Juror No. 5 or "rushed to judgment" against either defendant.
Staples contends the court violated his Sixth Amendment right to confrontation in allowing the prosecution's gang expert, Deputy Snyder, to rely on documents and material prepared by other law enforcement officers in opining that Staples was an active member of the Hoover Criminals, a criminal street gang, and committed the robbery for the benefit of the gang. While conceding that Deputy Snyder's testimony and opinions were based in part on his personal investigations and his direct interaction with Staples, Staples argues that to the extent the deputy relied on documents and materials prepared by other, non-testifying officers, his confrontation rights were violated under the principles articulated in Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and, more recently, in Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527] (Melendez-Diaz). Jones joins this claim.
1. No Forfeiture
Preliminarily, we disagree with the People's claim that Staples has forfeited his confrontation claim because he did not raise it in the trial court. Because Melendez-Diaz was decided in June 2009, after trial concluded in April 2009, Staples's failure to object to Deputy Snyder's testimony on the ground it violated his confrontation rights under the principles established in Melendez-Diaz is excusable. (People v. Thomas (2005) 130 Cal.App.4th 1202, 1208 [Fourth Dist., Div. Two].) We therefore address the claim on its merits as to both defendants.
A criminal defendant has a federal constitutional right "to be confronted with the witnesses against him . . . ." (U.S. Const., 6th Amend.; Pointer v. State of Texas (1965) 380 U.S. 400, 403.) In Crawford, the high court held that the admission at a trial of out-of-court testimonial statements violates a criminal defendant's right to confrontation, unless the declarant of the statement is unavailable at trial and the defendant has had a prior opportunity to cross-examine him or her. (Crawford, supra, 541 U.S. at pp. 54, 68.)
Though the Crawford court left "for another day any effort to spell out a comprehensive definition of 'testimonial,'" it articulated a "core class of 'testimonial' statements" covered by the confrontation clause. (Id. at pp. 51, 68, fn. omitted.) These include "ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, . . . extra-judicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions, . . . statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial . . . ." (Id. at pp. 51-52, internal quotation marks and citations omitted.)
In Melendez-Diaz, the high court held that certificates or affidavits signed under oath by forensic analysts who did not testify at the defendants' trial, and affirming that a substance found in the defendants' possession was cocaine, fell within the "core class of testimonial statements" described in Crawford. (Melendez-Diaz, supra, 557 U.S. at p. ___ [129 S.Ct. at p. 2532].) The court reasoned that the certificates were "'"made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for later use at trial."'" (Ibid.) Thus, absent a showing that the analysts were unavailable to testify at trial and that the defendants had a prior opportunity to cross-examine them, the admission of the analysts' certificates violated the defendants' confrontation rights. (Ibid.)
Before Melendez-Diaz was decided, the California Supreme Court concluded in People v. Geier (2007) 41 Cal.4th 555, 606 and 607 that a forensic laboratory report, similar to the affidavits in issue in Melendez-Diaz, was not testimonial hearsay. Based on Crawford and the Supreme Court's subsequent decision in Davis v. Washington (2006) 547 U.S. 813, the court reasoned that a statement is testimonial "if (1) it is made to a law enforcement officer or by or to a law enforcement agent and (2) describes a past fact related to criminal activity for (3) possible use at a later trial. Conversely, a statement that does not meet all three criteria is not testimonial." (People v. Geier, supra, at p. 605.)*fn6
The question presented here is whether any portion of Deputy Snyder's expert opinion testimony violated defendants' confrontation rights. Defendants argue "the reasoning and conclusions of Melendez-Diaz" necessarily apply to a gang expert's reliance upon the statements of other gang members and law enforcement officers in forming his or her expert opinions, because the persons making the out-of-court statements "certainly expect" them to be used in prosecuting gang members. Such statements are "laundered" testimonial statements, they argue, and expert opinion testimony based on such statements should not be allowed under Crawford and its progeny, including Melendez-Diaz.
On the present record, we do not believe defendants' confrontation rights were violated. Crawford made it clear that the confrontation clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." (Crawford, supra, 541 U.S. at p. 59, fn. 9, citing Tennessee v. Street (1985) 471 U.S. 409, 414.) And, under state evidentiary law, "out-of-court statements offered to support an expert's opinion are not hearsay because they are not offered for the truth of the matter asserted. Instead, they are offered for the purpose of assessing the value of the expert's opinion." (People v. Dean (2009) 174 Cal.App.4th 186, 193 [Fourth Dist., Div Two].)*fn7
Thus, when an expert witness uses out-of-court statements, even testimonial ones, to support his or her expert opinion at trial, the statements do not violate the confrontation clause because they are not used for the truth of the matter asserted. (People v. Thomas, supra, 130 Cal.App.4th at pp. 1209-1210; People v. Sisneros (2009) 174 Cal.App.4th 142, 153-154 [confrontation clause applies to testimonial statements offered for their truth, but does not apply to expert opinion testimony based on testimonial statements not offered for their truth]; People v. Ramirez (2007) 153 Cal.App.4th 1422 ["Hearsay in support of expert opinion is simply not the sort of testimonial hearsay the use of which Crawford condemned."].) Nothing in Melendez-Diaz undermines the settled principle that out-of-court statements offered to support an expert's opinion are not hearsay because they are not offered for the truth of the matter asserted. As discussed, the court in Crawford plainly stated the confrontation clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." (Crawford, supra, 541 U.S. at p. 59, fn. 9, citing Tennessee v. Street, supra, 471 U.S. at p. 414.)
However, while an expert may use out-of-court statements to support his opinion, he may not detail the content of those statements on direct examination. As stated in People v. Campos (1995) 32 Cal.App.4th 304, "[a]n expert witness may not, on direct examination, reveal the content of reports prepared or opinions expressed by non-testifying experts. '"'The reason for this is obvious. The opportunity of cross-examining the other doctors as to the basis for their opinion, etc., is denied the party as to whom the testimony is adverse.'"' [Citations.]" (Id. at p. 308, italics added.) And, as we observed in People v. Dean, supra, 174 Cal.App.4th at page 193: "'"[A]n expert may generally base his opinion on any 'matter' known to him, including hearsay not otherwise admissible, which may 'reasonably . . . be relied upon' for that purpose. [Citations.] On direct examination, the expert may explain the reasons for his opinions, including the matters he considered in forming them. However, prejudice may arise if, '"under the guise of reasons,"' the expert's detailed explanation '"[brings] before the jury incompetent hearsay evidence."'"' [Citation.]"
Deputy Snyder did not detail the contents of any incompetent hearsay evidence or, more generally, present any hearsay evidence for its truth. The deputy testified he regularly spoke with gang investigators throughout California and in other states; he was familiar with the Hoover Criminals gang based on both his personal contacts with its members and information he received from Los Angeles law enforcement officers; and both he and other law enforcement officers had completed gang cards on Jones and Staples. All of this evidence, together with the deputy's testimony that he had had personal and repeated contacts with both Jones and Staples, was offered to show the deputy was familiar with the Hoover Criminals gang in general and with Jones and Staples in particular. None of the hearsay evidence the deputy relied on in supporting his opinions was improperly placed before the jury for its truth. Thus, to the extent the deputy relied on out-of-court statements of non-testifying witnesses in opining that the Hoover Criminals was a criminal street gang, that defendants were active members of the Hoover Criminals, or that defendants committed the robbery for the benefit of the gang, the deputy's expert opinion testimony did not violate defendants' confrontation rights.
We note, however, that all of the gang cards the deputy relied on in supporting his opinions, including the gang cards prepared by other law enforcement officers, were admitted into evidence. Arguably, the admission of the gang cards prepared by other officers violated defendants' confrontation rights and the hearsay rule (Evid. Code § 1200) because, though none of the gang cards were offered for their truth, their admission into evidence suggested the jury could rely upon the truth of any out-of-court statements, including testimonial statements, contained in the gang cards. Still, any error in admitting the other officers' gang cards was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24) in view of Deputy Snyder's testimony as a whole. The deputy was personally familiar with the Hoover Criminals and, based on his personal experience, knew it to be a criminal street gang. The deputy also testified that, during the course of personal contacts with Staples on April 8, 2008, and with both Jones and Staples on April 16, 2008, defendants admitted that they were members of the Hoover Criminals. In view of the deputy's personal knowledge of the gang and defendants' gang status, there is no reasonable possibility that the admission of the other officers' gang cards prejudiced either defendant.
C. The Failure to Transcribe the Jury Instructions Was Not Prejudicial
Staples claims the record on appeal is inadequate to permit meaningful review of his judgment of conviction because, at the trial court's direction and without an on-the-record stipulation of the parties, the court reporter did not transcribe the jury instructions as read to the jury. The instructions were also given in writing. Jones joins this claim. We find it without merit as to both defendants, because neither has demonstrated they were prejudiced in their ability to prosecute their present appeals by absence of a record of the oral instructions, or by their trial counsels' failure to insist on a recording or transcription of the oral instructions.
Section 1127 states: "All instructions given shall be in writing, unless there is a phonographic reporter present and he takes them down, in which case they may be given orally . . . ." Thus, when instructions are given both in writing and orally, as here, the oral instructions are not statutorily required to be transcribed. Still, the California Rules of Court*fn8 provide that the "normal record" on a criminal defendant's appeal from a judgment of conviction "must contain" a reporter's transcript (rule 8.320(a)), and the reporter's transcript, in turn, "must contain" "[a]ll instructions given orally" (rule 8.320(c)(4)). Staples urges this court to "state that the failure to include all oral instructions in the normal record on appeal as required by the California Rules of Court represents a denial of [his] federal due process right to an accurate and complete record on appeal and prejudices his ability to fully receive a complete and effective appellate review of his conviction." We decline to do so.
It is settled that: "A criminal defendant is entitled under the Eighth and Fourteenth Amendments [to the federal Constitution] to an appellate record that is adequate to permit meaningful review." (People v. Young (2005) 34 Cal.4th 1149, 1170.) But an appellate record is considered inadequate "only if the complained-of deficiency is prejudicial to the defendant's ability to prosecute his appeal." (People v. Alvarez (1996) 14 Cal.4th 155, 196, fn. 8.) Moreover, the defendant has the burden of demonstrating that any omissions in the appellate record render it inadequate to permit meaningful appellate review. (People v. Howard (1992) 1 Cal.4th 1132, 1164-1166.) Importantly, "[n]o presumption of prejudice arises from the absence of materials from the appellate record." (People v. Samayoa (1997) 15 Cal.4th 795, 820.) It has long been held that "'[i]nconsequential inaccuracies or omissions in a record cannot prejudice a party; if in truth there does exist some consequential inaccuracy or omission, the appellant must show what it is and why it is consequential.'" (People v. Howard, supra, at p. 1165, italics added, citing People v. Chessman (1950) 35 Cal.2d 455, 462.)
Here, the jury instructions were given in writing and orally, but the court reporter did not transcribe the instructions as given orally to the jury. Neither defendant's trial counsel stipulated, at least on the record, to relieve the court reporter of her duty to transcribe the instructions as given orally. But, more importantly, neither trial counsel objected to any of the instructions as they were being read to the jury. And on this appeal, neither defendant claims the written instructions were in any way defective or erroneous. Instead, defendants claim the oral instructions may have deviated in some respect from the written instructions. Moreover, they claim their federal due process rights have been violated because the record does not include a transcript or other record of the oral instructions, and in the absence of that record they are unable to determine whether there was any prejudicial discrepancy between the written and oral instructions.
Here, however, there is no indication the trial court deviated from the written instructions, in any significant respect, in reading them to the jury. Had this occurred, defendants' trial counsel presumably would have objected on the record and as the oral instructions were being given. (People v. Ladd (1982) 129 Cal.App.3d 257, 263.) We must therefore presume that the oral instructions did not deviate from the written instructions in any significant respect. (Evid. Code, § 664; People v. Visciotti (1992) 2 Cal.4th 1, 49 [in the absence of evidence to the contrary, it is presumed that an official duty has been regularly performed].) Thus, on this record, defendants have not demonstrated that the instructions given to the jury were prejudicially in error, or more broadly, that the absence of a record of the oral instructions has prejudiced their ability to prosecute the present appeals. (People v. Howard, supra, 1 Cal.4th at p. 1165.)
Defendants further argue it is "manifestly unjust to create a rule that is designed to produce a record that is adequate to permit meaningful appellate review and thereafter allow the trial court to ignore such rule and place the burden on the indigent defendant to demonstrate, presumably from extraneous sources, that an error occurred at trial." Again, they urge this court to hold that the failure to include all oral instructions in the normal record on appeal, as rule 8.320(c)(4) requires, is a denial of their federal due process right to an accurate and complete record on appeal--even though they are unable to show that the absence of a record of the oral instructions has prejudiced their ability to prosecute their present appeals. We are not at liberty to do so.
By failing to object on the record in the trial court to the court reporter's failure to transcribe the oral instructions, defense counsel effectively stipulated to relieve the court reporter of her duty to transcribe them. And by so stipulating through their defense counsel, defendants have forfeited their claim that the failure to report the oral instructions denied them due process. (People v. Rogers (2006) 39 Cal.4th 826, 857-859; People v. Garrison (1989) 47 Cal.3d 746, 780-781.)
Defendants also claim their trial counsel rendered ineffective assistance in failing to insist that the court reporter transcribe the oral instructions, or in effectively stipulating to relieve the court reporter of her duty to transcript the oral instructions. In order to prove their ineffectiveness claims, defendants have the burden of demonstrating their trial counsels' omission fell below an objective standard of reasonableness, and it is reasonably probable they would have realized a more favorable result in the absence of the omission. (Strickland v. Washington (1984) 466 U.S. 668, 691-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) At the very least, defendants have not met the second prong of their ineffective assistance claim. Their claim that they were prejudiced by their counsels' failure to insist on a record of the oral instructions is analytically indistinguishable from their principal claim that they were prejudiced by the trial court's failure to ensure that its oral instructions were transcribed. (See People v. DeFrance (2008) 167 Cal.App.4th 486, 495.) And for the reasons explained, defendants have not shown there was any inaccuracy or omission in the oral instructions, as compared to the written instructions. (People v. Howard, supra, 1 Cal.4th at p. 1165.) Again, prejudice cannot be presumed merely from the absence of materials in the appellate record. (People v. Samayoa, supra, 15 Cal.4th at p. 820.)
Defendants emphasize that the United States Supreme Court has identified two "basic tools" that are constitutionally necessary for a complete and adequate appeal by an indigent defendant: (1) a competent attorney on appeal, and (2) an appellate record that will permit "a meaningful, effective presentation" of the defendant's claims on appeal. (People v. Barton (1978) 21 Cal.3d 513, 518, and cases cited.) They argue that the latter tool, an adequate appellate record, is missing on this appeal. But nothing in Barton or in any of the other reported cases holds or suggests that a criminal defendant has a federal due process or other constitutional right to a record of the oral instructions given by the trial court, particularly when written instructions are given.
Nor does People v. Gloria (1975) 47 Cal.App.3d 1 assist defendants' claims. There, the court held a court reporter has a duty to make phonographic notes of "what the judge says when he instructs the jury so an accurate transcript of the instructions as presented to the jury will be preserved for any appeal." (Id. at p. 6.) But the court also held that the "normal reporter's transcript" is not required to include the written instructions as given orally. (Ibid.) The court explained: "It would only be in those cases where the appellant contends the written instructions copied by the clerk deviate from the instructions orally delivered to the jury that the appellant, either by objections to the transcripts below [citation] or by motion to augment the record on appeal [citation], may seek a transcript of the instructions as orally presented to the jury." (Ibid.) Again, a defendant must show that the absence of a record of the oral instructions prejudiced his ability to prosecute his appeal. Neither defendant has done so here.
The judgments are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS