IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
January 19, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JOHN PAUL SAREM, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F04240)
The opinion of the court was delivered by: Nicholson , Acting P.J.
P. v. Sarem CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant John Paul Sarem stabbed Eric Mee and assaulted Rick Ramirez. Convicted of attempted murder and assault with a deadly weapon and sentenced to state prison for twelve years four months, defendant appeals. He contends the trial court erred by (1) denying his motion for a new trial, motion for an evidentiary hearing, and motion for release of juror information, all based on alleged juror misconduct;
(2) instructing the jury that it could not consider a lesser included offense until it acquitted on the greater offense; and (3) excluding evidence of a witness's prior conviction. Finally, he contends that (4) if the evidence claim was forfeited he was denied his right to effective counsel. We conclude that defendant's contentions are without merit.
STATEMENT OF FACTS
We relate the facts in the light most favorable to the verdict. (People v. Mincey (1992) 2 Cal.4th 408, 432.)
On the afternoon of May 20, 2008, Rick Ramirez went to the American River with his seven-year-old daughter Mariah and some friends, including Eric Mee, Franco Guerrero, and Joe Marino. After parking their cars on Estates Drive, they walked down to the river along a levee and some trails. Not long after arriving, Marino and his girlfriend Brittany returned to their car upon learning it had been broken into. Guerrero also left about the same time in order to meet a friend in the parking area. Mee, Ramirez, and Ramirez's daughter remained at the river to play with toy boats.
Earlier that same day, defendant and some friends, including Austin Alberghini, had a barbeque at defendant's residence, where both defendant and Alberghini drank. The group then decided to go to the American River. They parked on Estates Drive before walking down to the river. At a separate part of the river from Ramirez's group, defendant and his friends played football, Frisbee, and other activities, while continuing to drink. Alberghini, having drunk too much, lay down to rest and fell asleep. Upon awakening he noticed his group had already crossed the river to leave, and in a kind of "drunken stupor rage," he began to cross the river towards them.
As Alberghini was crossing the river to meet up with his group he began yelling at his girlfriend, using foul language. Ramirez shouted at Alberghini to keep it down, because his daughter was nearby and could hear what was being said. While arguing back and forth with Ramirez, Alberghini changed his direction from defendant's group to Ramirez's location. Fearing conflict and noticing that Alberghini's group was larger than his own, Ramirez called Guerrero on his cell phone, telling him to get back down to the river, and slowly began backing up a narrow incline. The path had blackberry bushes on the side and was wide enough for just one person comfortably. Both Mee and Ramirez's daughter Mariah were moving up the hill ahead of Ramirez, with Mee keeping Mariah ahead of him and farthest away from Alberghini.
As Ramirez backed up the incline he noticed that defendant had begun running in their direction from the river brandishing a black knife in front of him. As Ramirez reached the top of the incline, defendant had caught up to Alberghini, who was just below Ramirez. Alberghini swung his fist at Ramirez and missed. Defendant then lunged forward with the knife, narrowly missing Ramirez. Ramirez, jumping back to avoid the knife, fell down the hill, through blackberry bushes, and into the water below. He suffered scrapes from the bushes.
Defendant continued up the path towards Mee and Mariah. Unarmed, Mee grabbed Mariah to hold her behind him and yelled to defendant, "Are you kidding? There is a girl here." Defendant responded profanely. Seeing a swiping motion from defendant, Mee closed his eyes and held his position. Unable to move without putting Mariah in danger, Mee felt the knife enter his chest. When Mee opened his eyes, he saw defendant running away. Realizing he had been stabbed, Mee headed toward his car and called 911. After being put on hold by 911, he dropped his phone and continued walking toward his car. Eventually, Mee ran into two young men who called 911 and assisted him with his bleeding.
Guerrero, on his way back to the river, ran into Mee. He quickly called Marino to come pick up Mariah and get her out of the situation. Once he knew Mee was being attended to, help was on the way, and Mariah was taken care of, he went to look for Ramirez.
Ramirez recovered from his fall and ran around some bushes trying to get out of the water and back up the hill. He found defendant running down the hill, knife still in hand. Defendant made a brief comment asking if Ramirez wanted to fight, but Ramirez stayed in the water, about 10 feet away, and defendant continued on his way. Alberghini came down the hill next, and he and Ramirez again argued. Guerrero arrived soon after and informed Ramirez that Mee had been stabbed. Instantly, Alberghini switched his tone from confrontational to calm and claimed he had not stabbed anyone. Ramirez grabbed Alberghini to make sure he stayed and talked to them. Ramirez asked for defendant's name which Alberghini eventually gave to him.
Dr. Lynette Scherer was the trauma surgeon who operated and saved Mee's life. The chest wound Mee had received was about four to five inches deep, located on the right side of his sternum. The wound damaged a network of veins near his heart causing massive blood loss, eventually totaling 15 liters, about three times one's total blood volume. To save his life, initial cuts into his chest cavity had to be made in order to relieve pressure that was building up from the internal bleeding.
After waking up from his induced coma, Mee was unable to see. He was diagnosed with shock optic neuropathy. In the doctor's opinion, Mee will not recover his sight.
Several of defendant's friends stated that when Guerrero returned to the river, he had a gun. The statements, however, were inconsistent, varying from Guerrero merely holding the gun to pointing it at defendant's group. One of defendant's friends did not tell the investigating detective about the gun in his first interview with the detective, but after talking to defendant the friend later contacted the detective and added statements about Guerrero having a gun. The friend lied about having talked to defendant prior to the friend's first interview with the detective. No disinterested witness testified that Guerrero had a gun, and one testified that he did not see a gun.
Defendant testified that he came up empty-handed towards Alberghini from the river. In front of defendant and Alberghini were Ramirez, Mee, and Guerrero. Mee had a stick in his hand about a foot and a half long and Guerrero was holding a gun aimed at the ground. Noticing the stick and gun, defendant drew a knife he had concealed in his shorts and stepped in front of Alberghini to show he could defend himself. Ramirez then began backing up a hill away from defendant towards Mee and Guerrero at which point he slipped off the trail and fell down the hill. Defendant turned to tell Alberghini they should get out of there since there was a gun. As he turned back to face Mee and Guerrero, Mee had gotten right in front of defendant with the stick, and in a "knee jerk" reaction defendant threw up his hands to prevent a collision with Mee. Realizing Mee had been stabbed, defendant panicked and ran.
I Alleged Juror Misconduct
Defendant contends that there was juror misconduct, or at least enough evidence of misconduct to require the trial court to allow further investigation, because a juror stated that she did not believe the prosecution had proved its case beyond a reasonable doubt. We conclude the trial court did not err by denying defendant's motions for new trial, for an evidentiary hearing, and to release juror information.
After trial concluded and the jury returned a verdict, John Kirkman, the private investigator for the defense, talked to Juror Number Eight. At the beginning of the conversation, Juror Number Eight stated to Kirkman that she "might not be the best person to speak to." Kirkman asked Juror Number Eight if she was "convinced that the prosecution [had] proved its case beyond a reasonable doubt." She responded, "Not on everything," and then walked away towards an elevator, in Kirkman's words, "apparently not wishing to answer any further questions." She was questioned no more, and due to her hasty departure, Kirkman was not able to get her full name or permission to contact her. A search of a proprietary database for Juror Number Eight's last name in Sacramento County yielded more than 500 records, too many to launch an effective search for the juror.
Defense counsel made a motion with four alternative requests for relief: (1) for new trial, (2) to set aside the verdict, (3) to reduce the offense, or (4) to disclose Juror Number Eight's personal information. He argued that statements by Juror Number Eight, after the guilty verdicts were returned, gave rise to potential juror misconduct, and the court was required to hold an evidentiary hearing to determine whether there had been misconduct. The court believed that any such questioning of Juror Number Eight would delve into her subjective processes during deliberation, and therefore the proposed questioning was barred by Evidence Code section 1150. Defense counsel replied that it was not clear or known what her response would be.
The prosecutor argued that there was no prima facie showing of misconduct and the evidence in question was inadmissible under Evidence Code section 1150. The prosecutor noted that the remedies sought by defense counsel could not be used as "fishing expeditions." The court agreed that the information was inadmissible under Evidence Code section 1150 and that there was an inadequate showing to justify relief. The court denied the alternative motions.
B. Motion for New Trial
Defendant argues that he is entitled to a new trial based on Juror Number Eight's response to Kirkman's question. We disagree.
"Where a party seeks a new trial based upon jury misconduct, the court must undertake a three-step inquiry. First, the court must determine whether the evidence presented for its consideration is admissible. . . . [¶] Once the court finds the evidence is admissible, it must then consider whether the facts establish misconduct. . . . [¶] Finally, if misconduct is found to have occurred, the court must determine whether the misconduct was prejudicial. [Citations.]" (People v. Duran (1996) 50 Cal.App.4th 103, 112-113.) Defendant's argument fails on the first and second inquiries. Therefore, it is unnecessary to consider prejudice, the third inquiry.
"Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined." (Evid. Code, § 1150, subd. (a).) "When considering [juror] declarations, the trial court must take great care not to overstep the boundaries established by Evidence Code section 1150." (People v. Duran, supra, 50 Cal.App.4th at p. 112.)
The question Kirkman posed to Juror Number Eight, whether she believed the prosecution had proved its case beyond a reasonable doubt, on its face is an inquiry into her mental thought process. Her short and vague response involves information about her mental process during deliberation. For this reason, the evidence is inadmissible pursuant to Evidence Code section 1150.
The evidence also failed to establish misconduct. One juror's vague statement that she did not believe the prosecution proved its case beyond a reasonable doubt "on everything" does not establish that she voted to convict on less than proof beyond a reasonable doubt. There were numerous factual issues to resolve in this case, and Juror Number Eight may very well have concluded that the prosecution failed to establish some facts beyond a reasonable doubt but still established defendant's guilt as to the elements of the crimes beyond a reasonable doubt. There was no showing of misconduct. Defendant's contention that the trial court erred by not granting a new trial is without merit.
C. Motion for Evidentiary Hearing
Defendant contends the trial court committed prejudicial error in denying his request for an evidentiary hearing regarding potential juror misconduct. To the contrary, the evidence concerning juror misconduct was insufficient to require an evidentiary hearing.
The California Supreme Court has held that, when an allegation of juror misconduct is made, "[t]he trial court has the discretion to conduct an evidentiary hearing to determine the truth or falsity of allegations of jury misconduct . . . ." (People v. Avila (2006) 38 Cal.4th 491, 604, citing People v. Hedgecock (1990) 51 Cal.3d 395, 419.) However, the court stressed that the defendant is not entitled to such a hearing as a matter of right, but only when the trial court in its discretion believes it is necessary to resolve material, disputed issues of fact. (People v. Avila, supra, at p. 604.) "The hearing should not be used as a 'fishing expedition' to search for possible misconduct, but should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred. Even upon such a showing, an evidentiary hearing will generally be unnecessary unless the parties' evidence presents a material conflict that can only be resolved at such a hearing." (People v. Hedgecock, supra, at p. 419; see also People v. Schmeck (2005) 37 Cal.4th 240, 295.) When reviewing the trial court's denial of a defendant's "post-verdict request for an evidentiary hearing" as to alleged juror misconduct, we apply an abuse of discretion standard. (People v. Carter (2003) 30 Cal.4th 1166, 1216.) "Normally, hearsay is not sufficient to trigger the court's duty to make further inquiries into a claim of juror misconduct." (People v. Hayes (1999) 21 Cal.4th 1211, 1256.)
Here, defendant neither presents admissible evidence as to potential juror misconduct nor does he demonstrate a strong showing of potential misconduct that would require a hearing. The vagueness of the situation and conduct in question is such a stretch as to actual misconduct that a hearing in this case would only provide a "fishing expedition" for defendant, exactly what case law prohibits. The court did not abuse its discretion in denying the motion for an evidentiary hearing.
D. Request for Release of Juror Information
Defendant contends the trial court erred in denying the release of Juror Number Eight's personal information for further questioning. We disagree.
A defendant is entitled to juror information if, upon timely motion, "the defendant sets forth a sufficient showing to support a reasonable belief that jury misconduct occurred, that diligent efforts were made to contact the jurors through other means, and that further investigation is necessary to provide the court with adequate information to rule on a motion for new trial." (People v. Rhodes (1989) 212 Cal.App.3d 541, 552.)
Defendant did not set forth a sufficient showing to support a reasonable belief that jury misconduct occurred. As discussed above, the evidence proffered by defendant is inadmissible as it involves the juror's mental process. Even if the inadmissible evidence is considered, the vagueness of its content and speculation required to conclude that misconduct occurred defeats any argument that further inquiry would reveal juror misconduct.
The trial court did not abuse its discretion in denying defendant's request for Juror Number Eight's personal information.
Defendant contends that the trial court prejudicially erred by instructing the jury to consider the lesser crime of attempted voluntary manslaughter only if it found defendant not guilty of attempted murder. We conclude that a reasonable jury would not have misinterpreted the instructions and, therefore, there was no error.
"On review, we examine the jury instructions as a whole, in light of the trial record, to determine whether it is reasonably likely the jury understood the challenged instruction in a way that undermined the presumption of innocence or tended to relieve the prosecution of the burden to prove defendant's guilt beyond a reasonable doubt. [Citation.]" (People v. Paysinger (2009) 174 Cal.App.4th 26, 30.) "It is well established that the instruction 'may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record." (Estelle v. McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385, 399], quoting Cupp v. Naughten (1973) 414 U.S. 141, 147 [38 L.Ed.2d 368, 373].) "[T]he jury is presumed to have followed the instructions it was given." (People v. James (2000) 81 Cal.App.4th 1343, 1362.)
The jury was instructed with the following version of CALCRIM No. 3519: "[I]t is up to you to decide the order in which you consider each greater or lesser crime and the relevant evidence. [¶] But I cannot accept a verdict of guilty of the lesser crime unless you have found the defendant not guilty of the greater crime. I think I explained that before. [¶] The only way you can even consider the lesser crime is if you find him not guilty of the alleged attempted murder in Count One."
Defendant contends the language in the last sentence of this instruction was error because it denied defendant the right to a jury that could decide what order it would consider the charges. This contention is without merit because, considered in context, the instruction would not have led a reasonable jury to believe it was not allowed to consider the lesser crime unless the jury acquitted of the greater crime.
The instruction, defendant argues, was error under People v. Kurtzman (1988) 46 Cal.3d 322, and must be considered in light of the court's clear direction to the jury that it is up to the jury to decide the order in which it would consider the charges. It stated: "[I]t is up to you to decide the order in which you consider each greater or lesser crime and the relevant evidence. [¶] But I cannot accept a verdict of guilty of the lesser crime unless you have found the defendant not guilty of the greater crime." The written copy of the instructions the jury took into deliberation also stated: "It is up to you to decide the order in which you consider each greater and lesser crime and the relevant evidence, but I can accept a verdict of guilty of the lesser crime only if you have found the defendant not guilty of the greater crime."
The trial court, trying to avoid the inefficiency of sending the jury back to deliberate repeatedly, was emphasizing that procedurally they must acquit the defendant of the greater crime before returning a verdict on the lesser crime. The court instructed why the jury must sign the verdict forms of the greater crime first, gave a direct statement that the court could not tell the jury in what order to consider the crimes, and sent a proper written instruction with the jurors into deliberation. The small variance in verbal instructions, in the context of all given instructions, would not lead a reasonable jury to interpret the court's instruction as prohibiting consideration of the lesser offense until reaching a verdict on the greater crime. Accordingly, we find that there was no error.
In any event, defendant suffered no harm. He claims the asserted error violated his Fourteenth Amendment right to a jury that can choose what order it wants to consider the offenses. In light of strong evidence of guilt, we find beyond a reasonable doubt that the court's statements did not prejudice defendant. (See Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705] [federal standard for finding error harmless].) The jury credited the prosecution's witnesses, not defendant's. The prosecution's evidence was overwhelming as to defendant's guilt on the attempted murder charge. Furthermore, there is no indication in the record that any thoughts the jury had concerning the order in which it could consider the charges had any bearing on the jury's verdicts. There was no prejudice.
Exclusion of Evidence
In a motion in limine, the prosecutor requested exclusion of any evidence that Franco Guerrero, the person defendant and his friends accused of having a gun, was convicted in 1996 of felony driving under the influence of alcohol causing great bodily injury. (Veh. Code, § 23153.) Defense counsel argued that the prior felony conviction was probative on the issue of Guerrero's credibility because it would show that he had a motive to secrete the gun after the incident and lie to police. After argument from the parties, the trial court granted the prosecutor's motion and excluded the prior conviction because it was remote and the prejudicial impact outweighed the probative value. The court told the parties that they could invite the court to reconsider its pretrial rulings if the circumstances of the trial justified reconsideration.
Defendant contends the trial court committed prejudicial error by excluding evidence of a witness's prior conviction. He asserts that: (1) the contention was not forfeited, (2) exclusion of the evidence was an abuse of discretion under Evidence Code section 352, and (3) exclusion of the evidence violated his Sixth Amendment right to "effectively" cross-examine the witness. We agree the contention was not forfeited but disagree that exclusion of the evidence was an abuse of discretion or violated defendant's constitutional rights.
A. Forfeiture of Claim
"A tentative pretrial evidentiary ruling, made without fully knowing what the trial evidence would show, will not preserve the issue for appeal if the appellant could have, but did not, renew the objection or offer of proof and press for a final ruling in the changed context of the trial evidence itself. [Citations.] '"'Where the court rejects evidence temporarily or withholds a decision as to its admissibility, the party desiring to introduce the evidence should renew his offer, or call the court's attention to the fact that a definite decision is desired.'"' [Citation.]" (People v. Holloway (2004) 33 Cal.4th 96, 133.)
The Attorney General claims defendant has not preserved the issue of error for appeal, because the trial court only made a tentative ruling on the admissibility of Guerrero's conviction, and defendant did not renew his motion at a later time. We disagree. Defense counsel argued for admission of Guerrero's prior conviction, and the trial court ruled against defendant. The Attorney General does not indicate that anything happened during the course of the trial that may have changed the trial court's ruling. Therefore, defense counsel's pretrial argument against exclusion was sufficient to preserve the issue for appeal.
B. Exclusion under Penal Code section 352
Defendant argues that the trial court abused its discretion by excluding evidence of Guerrero's prior conviction pursuant to Evidence Code section 352. He contends the prior felony conviction created a motive for Guerrero to lie about having a gun, if one was present on the day in question. We disagree and find no abuse of discretion.
Under Evidence Code section 352, the trial court has discretion to exclude relevant evidence if, "the probative value . . . is 'substantially outweighed' by the probability that admitting it will unduly prolong the proceeding, prejudice the opposing party, confuse the issues, or mislead the jury." (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1014.) "We apply the deferential abuse of discretion standard when reviewing a trial court's ruling under Evidence Code section 352. (People v. Cudjo (1993) 6 Cal.4th 585, 609.)" (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
Guerrero's prior felony conviction was, as the trial court stated, remote. Defendant's claim that the prior felony provided a motive for Guerrero to lie about having a gun is speculative. The only evidence supporting the presence of a gun during the incident was from defendant's friends, who not only failed to mention it in their initial statements to detectives but also gave conflicting details in their testimonies. The trial court did not abuse its discretion in excluding the evidence of Guerrero's prior conviction.
C. Confrontation Clause Violation
Defendant claims that the exclusion of evidence violated his Sixth Amendment right to effectively cross-examine a witness who testified against him, as well as his due process right to completely represent his side of the facts. We disagree.
"Although the right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility, 'trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination.' (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [89 L.Ed.2d 674].) In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352. [Citation.] A trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted." (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.)
In the context of all evidence presented at trial, evidence of Guerrero's 1996 conviction for felony driving under the influence of alcohol causing great bodily injury would not give a reasonable jury a "significantly different impression" of Guerrero. There was no credible evidence that Guerrero had a gun, or that what defendant did was in response to seeing a gun.
We find no violation of the confrontation clause due to the exclusion of evidence by the trial court.
D. Prejudice Analysis
Even if the trial court erred pursuant to Evidence Code section 352 or the Sixth Amendment by excluding the evidence, the exclusion was harmless under any standard. Defendant was charged with assaulting Ramirez and attempting to murder Mee. Even under the defense's version of the facts, neither Ramirez nor Mee had a gun. The weight of the evidence, including the testimony of disinterested witnesses, was that Guerrero was not present when Ramirez was assaulted and Mee was stabbed and, in any event, did not have a gun. Admission of the additional evidence that Guerrero had a 1996 felony conviction would not have weakened this overwhelming evidence against defendant.
Defendant argues that, if his exclusion-of-evidence claim was forfeited, he was denied his right to constitutionally effective counsel. As discussed above, the claim was not forfeited, and therefore his counsel was not ineffective.
The judgment is affirmed.
BUTZ ,J. SCOTLAND , J.*fn1