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The People v. Maksim Yuryevech Isayev et al


July 19, 2011


(Super. Ct. No. 05F09184)

The opinion of the court was delivered by: Hull ,j.

P. v. Isayev CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Maksim Yuryevech Isayev, Gennadiy Sevchuk, and Mariya Stepanov were convicted by separate juries of murdering Dmitriy Paskar, a young man who slept with Stepanov and then bragged about it. Defendant Isayev admitted shooting the victim, but asserted he did so out of heat of passion or provocation and was therefore guilty only of voluntary manslaughter. Defendant Stepanov claimed that she never intended Isayev to kill the victim but simply wanted the victim to apologize and be punished. Defendant Sevchuk asserted that although he was at the scene of the murder, he was drunk and uninvolved in any plan to kill the victim.

The juries rejected defendants' claims. One jury convicted defendant Isayev of first degree murder (Pen. Code, § 187, subd. (a); unspecified statutory references that follow are to the Penal Code) and found that Isayev personally used and discharged a shotgun in the commission of this offense (§ 12022.53, subd. (d)). The jury also found true the special circumstance that Isayev killed the victim while lying in wait. The court sentenced defendant to life without possibility of parole, plus 25 years to life for the firearm enhancement.

The other two juries convicted defendants Stepanov and Sevchuk of second degree murder and found that they were vicariously armed with a shotgun. Stepanov's jury found untrue a special circumstance alleging that she intended that the victim be killed and that the murder occurred by means of lying in wait. The court sentenced both Stepanov and Sevchuk to prison for terms of 15 years to life, plus an additional year for the weapons enhancement.

All three defendants appeal, asserting numerous reversible errors occurred over the course of their trials. We strike one fine imposed on defendant Isayev and otherwise affirm the judgment.


We discuss most of the relevant facts in the context of the issues raised, but provide this brief summary of the underlying background.

The events surrounding this murder began when the victim slept with defendant Stepanov and then bragged about it. Stepanov was very upset and told defendant Isayev, her former boyfriend, what had happened. Isayev told his friend, defendant Sevchuk.

Defendant Sevchuk bought ammunition for Isayev's shotgun and loaded the gun. Isayev, Sevchuk and others drove to the victim's home, intending to shoot the victim when he came out of his house. However, when the victim made his appearance, he was accompanied by his girlfriend and the assault did not occur because defendants did not want any witnesses.

Isayev called Stepanov to report this kink in the plans, and told her to call the victim to make arrangements to meet him late that night at a park. Stepanov did so. When Isayev and Sevchuk drove up, Isayev saw the victim and Stepanov standing close to together; the victim reached for Stepanov and groped her. Isayev got out of the car, retrieved his loaded shotgun from the trunk, and approached the victim, asking Stepanov if this was "the guy." When Stepanov nodded, Isayev shot the victim twice and killed him.

As relevant to this appeal, the primary issues at trial were (1) whether the murder was premeditated or whether Isayev shot the victim out of heat of passion, and (2) whether Sevchuk and Stepanov were liable as aiders and abettors for a murder that was the natural and probable consequence of an intended assault.

Evidence established Isayev's reputation as a violent and jealous person. Defendants Sevchuk and Stepanov knew that Isayev had a gun and had previously been involved in shooting incidents arising from jealousy. Witnesses described hearing Isayev brag about the murder and make statements such as "[W]henever I do anything, I do it 100 percent. I know what I'm doing." He told one witness that he had aimed for the victim's head and killed him to stop him from raping girls.

One of the prosecution witnesses was Mikalai Yarmaliuk, the person who first drove the car to the victim's house. Yarmaliuk described Sevchuk loading the shotgun, the plan to shoot the victim, the phone conversations between defendants Isayev and Stepanov, and Isayev's past violent conduct. Yarmaliuk had suffered head injuries in an earlier accident and defendants challenged his memory, emphasizing the inconsistencies in his testimony and his general credibility.

As noted, the juries convicted defendant Isayev of first degree murder and found a lying-in-wait special circumstance to be true. The other two juries convicted defendants Stepanov and Sevchuk of second degree murder and found the charged firearms enhancement to be true.

The three defendants appeal.



Evidentiary Issues

A. Access to Medical Records

Witness Mikalai Yarmaliuk testified about defendants' involvement in the events leading up to the shooting of the victim. Yarmaliuk had suffered a head injury some years earlier when his car collided with a train, and he had some memory loss as a result. Defendant Stepanov sought to obtain Yarmaliuk's medical records, asserting that these documents "will reveal information pertinent to Yarmaliuk's memory and credibility."

The trial court released the only two pages of the medical records that it found relevant. One, a report dated September 5, 2003, described Yarmaliuk as having "short-term memory loss." The other, from May 19, 2004, indicated that Yarmaliuk was being treated for a "traumatic brain injury [with] mild cognitive impairment," and other problems.

The court ruled that defendants would be permitted to "fully cross-examine Mr. Yarmaliuk on those points" and counsel did so.

On appeal, defendants ask this court to review the sealed records and determine if additional medical records of Yarmaliuk should have been disclosed. The Attorney General has no objection to this review. We have examined the sealed medical records and conclude that the trial court's ruling was correct. There are no other relevant documents that should have been disclosed.

In a related argument, defendants challenge the timing of the court's ruling, asserting that the court erred in waiting to review the medical records until midtrial, when Yarmaliuk began to testify. Their argument is based on a belief that the records contained other information that should have been provided prior to trial to ensure adequate time to conduct additional investigation. Defendants' claim falters on its predicate: there was no other information that should have been provided. Our conclusion that the trial court gave counsel all of the relevant medical records obviates the need to discuss this matter further.

B. Evidence Relating to Kutsenko Shooting

Defendants Isayev and Sevchuk raise two claims relating to a drive-by shooting at the home of Roman Kutsenko. At the time of this shooting, defendant Isayev was dating Nadia S., Kutsenko's former girlfriend. When Kutsenko continued to call and text Nadia, Isayev became jealous, and he threatened to shoot Kutsenko's house. The next day, someone in fact shot at the house and at a van parked outside.

Various witnesses, including Nadia and Mikalai Yarmaliuk, reported that the drive-by shooting was done by defendants Isayev and Sevchuk.

We turn to the two specific claims at issue in this appeal.

1. Admissibility of Evidence

Defendants Isayev and Sevchuk contend that the trial court erred in permitting the prosecution to introduce evidence relating to the Kutsenko shooting.

As relevant to this appeal, the prosecution sought to introduce evidence relating to the Kutsenko shooting to prove defendants' intent, motive and knowledge. (Evid. Code, § 1101, subd. (a), (c).) Defendants opposed that motion, challenging the applicability of Evidence Code section 1101 and raising claims under Evidence Code section 352.

The trial court concluded that "the evidence of the Kutsenko drive-by shooting is relevant on the issue of Isayev's intent and motive. [¶] I have conducted [an Evidence Code section] 352 analysis and find admission of this evidence is not outweighed by undue consumption of time, substantial danger of undue prejudice, confusion of issues or misleading the jury.

"The similarities between the charged offense and the Kutsenko drive-by, which occurred a couple of weeks apart, support the inference that defendant Isayev probably harbored the same intent in each situation. [¶] The object of the shooting in both cases was a person who defendant Isayev knew had sexual interest in a woman with whom defendant Isayev formerly or currently had a relationship. [¶] In both situations the defendant Isayev enlisted the aid and support of some of the same individuals, [including] Sevchuk. The evidence tends to prove that Isayev was motivated to kill, or at a minimum, do violence with a gun to anyone who disrespected him and his girlfriends. [¶] He had a motive[,] as[] a jealous boyfriend, to avenge disrespect shown to a girl with whom he had a relationship."

The court also found the evidence admissible as to defendant Sevchuk, concluding that the "evidence is relevant, at a minimum, to show that knowledge of Isayev's intent when they went looking for Paskar [the victim of the charged offenses], that is, that Isayev meant to shoot Paskar.

"Regarding Mr. Sevchuk's knowledge, since knowledge is a required element in aiding and abetting, this evidence is relevant. It also tends to show Sevchuk's own intent to aid and abet since he previously engaged in similar conduct in an attempt to help Isayev deal with Kutsenko.

"I conducted [an Evidence Code section] 352 analysis and I find that this evidence is not substantially outweighed by any of the 352 factors."

Defendants Isayev and Sevchuk challenge these rulings.

Evidence Code section 1101, subdivision (b) provides that evidence of other crimes is admissible to prove "some fact (such as motive, opportunity, intent, preparation, plan, knowledge identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act." The admissibility of other crimes evidence falls along a continuum depending on the purpose for which it is offered. Distinctive common marks between the charged and uncharged offenses are required to prove identity, "[a] somewhat lesser degree of similarity is required to show a common plan or scheme and still less similarity is required to show intent." (People v. Roldan (2005) 35 Cal.4th 646, 705, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) A trial court's ruling under Evidence Code section 1101 is subject to an abuse of discretion standard. (Ibid.) The same standard applies to rulings under Evidence Code section 352. (People v. Waidla (2000) 22 Cal.4th 690, 724.)

Defendants contend that evidence of the Kutsenko shooting should have been excluded because the two events were not sufficiently similar to be probative on the issues of intent and motive. We disagree.

"'"We have long recognized 'that if a person acts similarly in similar situations, he probably harbors the same intent in each instance' [citations], and that such prior conduct may be relevant circumstantial evidence of the actor's most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution."'" (People v. Roldan, supra, 35 Cal.4th at p. 706.) The same is true of evidence relating to motive. (Id. at p. 707.)

Defendants focus on the factual differences between the charged offense and the Kutsenko shooting, but fail to recognize the overarching similarities between the events. In each case, a jealous Isayev used a gun to attack someone who had made advances to a former girlfriend. Notwithstanding the different particulars of each shooting, Isayev reacted the same way in each case. His violent behavior under the same general circumstances was sufficiently similar to warrant admission under Evidence Code section 1101.

In a related argument, defendants contend that the probative value of this evidence was minimal because the witnesses who testified about the Kutsenko shooting were unreliable and gave conflicting and contradictory accounts of what occurred. But witness credibility is a matter for the jury's determination. (People v. Boyer (2006) 38 Cal.4th 412, 480.) Defendants challenged the witnesses and emphasized the discrepancies in their testimony. The fact that the juries resolved these credibility issues against defendants does not equate to error.

Defendants also contest the admissibility of the Kutsenko shooting under Evidence Code section 352. For the reasons just explained, we reject the claim that the witnesses were so unreliable that their testimony should have been excluded.

Equally unavailing is the contention that evidence of the Kutsenko shooting was highly inflammatory and unduly prejudicial. This evidence, involving a drive-by shooting at a residence in which no one was injured, is far less inflammatory than the charged offense involving the close range shooting and murder of the victim.

In arguing otherwise, defendants note that Yarmaliuk identified Sevchuk as the shooter in the Kutsenko incident, and assert that the jury was likely to be influenced "to punish Sevchuk because of their emotional reaction to his earlier misconduct." Thus, they argue, the evidence was inflammatory. We must disagree. The jury knew that Sevchuk was involved in the Kutsenko shooting one way or the other and the jury certainly would not be more inclined to hold the incident against him if he was the shooter than if he was not. This bit of testimony does not change our analysis of the admissibility of the evidence against him.

"'[All] evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352 "prejudicial" is not synonymous with "damaging."'" (People v. Karis (1988) 46 Cal.3d 612, 638.)

The trial court acted well within its discretion in rejecting defendants' challenges and admitting evidence of the Kutsenko shooting.

2. Evidence of Third Party Culpability

Defendants Isayev and Sevchuk assert that the trial court erred in excluding evidence that someone other than defendant committed the Kutsenko shooting.

Defendant Isayev theorized that the Kutsenko shooting was actually committed by the brothers of Kutsenko's former girlfriend, Nadia S., and that Kutsenko stabbed one of these men later in retaliation for the shooting.

When Isayev's counsel began to cross-examine Nadia on this theory, the prosecutor objected. He asserted that this line of questioning was confusing and its potential for prejudice outweighed any probative value. The trial court agreed and ruled this area inadmissible under Evidence Code section 352. Defense counsel asked that Nadia be subject to recall and added, "[p]erhaps I can put my words together better in writing better than I am able to verbally." The court agreed to reconsider the matter "upon further argument."

Approximately two weeks later, Isayev filed a motion to question both Kutsenko and Nadia about the involvement of Nadia's brothers in the shooting of Kutsenko's house, and the People filed opposition. The court indicated that it was still skeptical about the relevance of the proffered evidence, but said it would reevaluate the matter if Isayev explained specifically what he wanted to ask Nadia on recall. Isayev rested without recalling Nadia or making any further motions on this subject.

On appeal, defendants Isayev and Sevchuk assert the trial court erred in refusing to allow the proposed questioning. The People assert that Isayev abandoned this claim by failing to follow up on the motion with the trial court.

Assuming for purposes of argument that this claim is properly before us, it is without merit.

"When an objection to evidence is raised under Evidence Code section 352, the trial court is required to weigh the evidence's probative value against the dangers of prejudice, confusion, and undue time consumption. . . . On appeal, the ruling is reviewed for abuse of discretion." (People v. Cudjo (1993) 6 Cal.4th 585, 609.)

Citing cases such as People v. Hall (1986) 41 Cal.3d 826, 833, and People v. Mitchell (1893) 100 Cal. 328, 333, defendants assert that evidence of third party culpability is extremely relevant because it raises reasonable doubt about defendant Isayev's guilt. They argue that it is always proper to show that some person other than the defendant "committed the crime with which he is charged." (Mitchell, at p. 334.) Defendants miss a key distinction here: the proffered evidence does not relate to the charged offense but to a peripheral event.

"A defendant may present evidence that another person committed the charged offense. '[T]o be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant's guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352.'" (People v. Basuta (2001) 94 Cal.App.4th 370, 386-387, italics added.)

In Basuta, for example, a daycare provider was convicted when a child died from physical abuse. (People v. Basuta, supra, 94 Cal.App.4th at pp. 376-377.) The appellate court reversed, finding the trial court abused its discretion in excluding evidence that the child's mother had a history of abusive behavior. That evidence was directly relevant to raise the possibility that the mother, not the day care provider, had harmed the victim. (Id. at pp. 386-388.)

Here, however, the evidence defendants sought to introduce did not relate to the charged offense, but to the Kutsenko shooting. The relevance of this evidence to the charged murder is attenuated and has little, if any, bearing on the question of whether defendant Isayev killed this victim, in this case.

Moreover, any probative value was outweighed by other considerations under Evidence Code section 352. Had this evidence been allowed, the trial would have become one focused on determining who was responsible for the Kutsenko shooting, not the Paskar murder. The trial court acted well within its discretion in concluding that evidence relating to the involvement of Nadia's brothers in the Kutsenko shooting would likely confuse the jurors and consume excessive time in an already lengthy trial. Defendants' claims to the contrary are unpersuasive.


Sufficiency of the Evidence

In considering a challenge to the sufficiency of the evidence, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence--that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] . . . 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 60.)

We turn to each of defendants' specific claims.

A. Corroboration of Accomplice Testimony

All three defendants contend there was insufficient evidence to corroborate Yarmaliuk's claim that Stepanov asked Isayev to kill the victim. Defendants' focus is misplaced.

"A conviction can be based on an accomplice's testimony only if other evidence tending to connect the defendant with the commission of the offense corroborates that testimony. (§ 1111.) The corroborating evidence may be circumstantial or slight and entitled to little consideration when standing alone, and it must tend to implicate the defendant by relating to an act that is an element of the crime. The corroborating evidence need not by itself establish every element of the crime, but it must, without aid from the accomplice's testimony, tend to connect the defendant with the crime." (People v. McDermott (2002) 28 Cal.4th 946, 985-986, italics added.)

"Corroborative evidence must come in by means of the testimony of a nonaccomplice witness. [Citation.] It need not corroborate every fact to which the accomplice testified or establish the corpus delicti, but is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth." (People v. Fauber (1992) 2 Cal.4th 792, 834-835.)

"The trier of fact's determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime." (People v. McDermott, supra, 28 Cal.4th at p. 986.)

Yarmaliuk testified that he drove Isayev and Sevchuk to the victim's house and parked across the street. Sevchuk had a loaded shotgun and Yarmaliuk was told that the victim "raped a girl" and "need[ed] to answer for that." The group planned to shoot at the victim when he came out of the house but that plan was thwarted when the victim appeared accompanied by his fianceee. Because the would-be assailants did not want to have "extra witnesses" around, they drove away. Isayev called Stepanov to tell her she would have to lure the victim to a park and they would "come over and do the deed." Isayev told Yarmaliuk that Stepanov wanted the victim to be killed because he had raped her and that she had "ordered" him to commit the murder.

Yarmaliuk dropped the others off at Isayev's house and told them he did not want to take part in what he thought "was going to happen to [the victim]." He was not involved in the later events at the park.

The trial court instructed all three juries in accordance with CALCRIM No. 335 that "[i]f you find there was a conspiracy to commit murder at [the victim's] residence, then Mikalai Yarmaliuk was an accomplice to the crime of conspiracy to commit murder." This instruction also outlined the corroboration requirements described above.

Defendants assert there was insufficient evidence to corroborate Yarmaliuk's testimony. The record demonstrates otherwise. For example, photographs of the victim's house and its location matched the description Yarmaliuk had given. The victim's fianceee testified that when she and the victim came out of the house, she saw a white car parked across the street. The occupants of this car shielded their faces and then drove away. This testimony matched Yarmaliuk's testimony and statements to detectives. Phone records corroborated Yarmaliuk's descriptions of phone calls Isayev made from the car. Yarmaliuk described Sevchuk loading bullet and pellet rounds into a shotgun, and forensic evidence established that the victim's wounds were caused by this type of ammunition.

Defendants emphasize that there was no corroboration of Yarmaliuk's claim that Stepanov intended that the victim be killed rather than hurt but, as already noted, each element of an offense does not need to be corroborated. There was ample evidence to connect Stepanov to the crime in such a manner as to satisfy the jury that Yarmaliuk was telling the truth.

B. Natural and Probable Consequences Theory

On appeal, defendants Stepanov and Sevchuk contend that there was insufficient evidence to support the theory that the victim's murder was the natural and probable consequence of the planned assault. We disagree.

An individual is responsible not only for the offense he or she intended to facilitate or encourage, but also for any other crime that is the natural and probable consequence of the target offense. (People v. Prettyman (1996) 14 Cal.4th 248, 261.)

Defendant Stepanov knew Isayev owned a shotgun, told others that Isayev had previously shot at one of her former boyfriends out of jealousy, that Isayev had previously killed someone. Defendant Sevchuk also knew that Isayev could be violent when jealous. Sevchuk participated with Isayev in the Kutsenko shooting, loaded the shotgun on the night of the murder and actively participated in the plan to shoot the gun at the victim outside of the victim's house. Sevchuk drove to the park with Isayev, asked if he needed assistance, and saw Isayev go to the trunk of the car, where Sevchuk knew Isayev kept his shotgun. Given this evidence, the jury could conclude that even if defendants Sevchuk and Stepanov intended to abet only an assault, the murder of the victim was a reasonably foreseeable consequence of that act. Defendants' claims to the contrary are unavailing.


Alleged Instructional Errors

A. Failure to Instruct on Reasonable Doubt

Defendant Sevchuk contends that the court committed reversible error by failing to instruct the jury pursuant to CALCRIM No. 220 on the presumption of innocence and reasonable doubt. His claim is predicated on an incomplete clerk's transcript. The record was subsequently augmented to include a full copy of the instructions and establishes that CALCRIM No. 220 was in fact given to the jury. We have no need to discuss defendant's claim further.

B. The Flight Instruction

Defendant Stepanov contends the trial court erred in instructing the jury pursuant to CALCRIM No. 372, "Defendant's Flight."

The court instructed: "If the defendant fled immediately after the crime was committed, that conduct may show that she was aware of her guilt. If you conclude the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence of flight cannot prove guilt by itself."

Defendant asserts that this instruction was based solely on her leaving the scene of the shooting, an act that did not constitute fleeing or suggest consciousness of guilt. We do not agree.

"'A flight instruction is proper whenever evidence of the circumstances of [a] defendant's departure from the crime scene . . . logically permits an inference that [her] movement was motivated by guilty knowledge.'" (People v. Abilez (2007) 41 Cal.4th 472, 522, quoting People v. Turner (1990) 50 Cal.3d 668, 694.) "To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence." (People v. Bonilla (2007) 41 Cal.4th 313, 328.) "[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested." (People v. Crandell (1988) 46 Cal.3d 833, 869, overruled on other grounds in People v. Clayton (2002) 28 Cal.4th 346, 364-365.)

Here, the evidence was sufficient to support giving CALCRIM No. 372. Isayev testified that after shooting the victim, he told Stepanov to "get out of this park," and she ran toward his car. Sevchuk told her to go to her own car; she did so and drove away. On the morning following the shooting, Stepanov told her manager that the person who had raped her had been murdered. Stepanov finished her shift but did not come to work the next day and instead left a message that the police were harassing her about the murder and that "she was leaving town" on the advice of her attorney. When Stepanov returned to work a few days later, she told her manager that she "hid out with some family members" at an unspecified location.

This evidence was sufficient to warrant giving a flight instruction.

But even if we were to conclude otherwise, the error was harmless. The instruction on flight did not figure in closing arguments. The prosecutor made only a brief reference to flight in his lengthy argument. Defense counsel did not mention flight or the instruction at all. CALCRIM No. 372 did not posit the existence of flight and instead left it to the jury to decide if there had been flight and if so, its significance. There is no reasonable probability that the jury's verdict would have been any different had the flight instruction not be given. (See People v. Turner, supra, 50 Cal.3d at p. 695; People v. Watson (1956) 46 Cal.2d 818, 836.)

C. Instruction on "Provocation"

Defendant Isayev's defense centered on his claim that he shot the victim out of heat of passion when he saw the victim grope Stepanov. During its deliberations, the jury asked for clarification on the subject of provocation. Defendant claims that the questions demonstrated juror confusion about the adequacy of provocation for purposes of voluntary manslaughter. He asserts the trial court erred in refusing to clarify that defendant was precluded from claiming provocation only if he caused the victim to grab Stepanov, not if he simply set up the meeting in which that conduct occurred. There was no error.

"[A]n intentional killing is reduced to voluntary manslaughter if other evidence negates malice. Malice is presumptively absent when the defendant acts upon a sudden quarrel or heat of passion on sufficient provocation . . . ." (People v. Lee (1999) 20 Cal.4th 47, 59.) "The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (Ibid.)

The trial court instructed the jury on these principles by giving CALCRIM Nos. 522 ("Provocation: Effect on Degree of Murder) and 570 ("Voluntary Manslaughter: Heat of Passion--Lesser Included Offense"). In response to a question from the jury asking for "the definition of provocation and can a defendant self provoke," the court informed the jury in part that "Instructions 522 and 570 use the term 'provocation,' not 'self-provoke' or 'self-provocation.' Instruction 570 states, '[t]he defendant is not allowed to set up his own standard of conduct.' If a defendant causes a circumstance in which it is reasonably foreseeable that the victim would commit an act which the defendant could claim provoked him, he cannot kill the victim and claim that he was provoked." (See People v. Johnston (2003) 113 Cal.App.4th 1299, 1312; People v. Oropeza (2007) 151 Cal.App.4th 73, 83 ["The claim of provocation cannot be based on events for which the defendant is culpably responsible"].)

In giving this instruction, the court overruled defendant's objection that the instruction should also inform the jury that the claimed act of provocation was the victim's groping of Stepanov so that Isayev was precluded from asserting provocation only if he caused the victim to engage in that conduct.

The jury later sent a second question to the court asking, "Can any juror dismiss what is in the instructions, in regards to provocation, when all jurors agree the defendant orchestrated the circumstance?" The court responded, "Jurors must conscientiously consider all the instructions, and may not disregard any of them arbitrarily. Whether any particular instruction applies to the case depends on what facts are found to be proven ([CALCRIM No.] 200) [¶] In regard to provocation and the issue of whether the defendant 'orchestrated the circumstance,' see the court's response to Jury Request No. 1. A defendant cannot claim that he was provoked if he was responsible for creating the circumstances that he claims provoked him. [¶] If any juror does not believe the evidence proves that the defendant is responsible for creating the circumstances that he claims provoked him, then such juror or jurors must undertake the three step analysis set forth in [CALCRIM No.] 570."

In giving this instruction, the court again overruled defendant's objection that the reference to "circumstance" would erroneously lead the jury to believe that if Isayev conspired with Stepanov to lure the victim to the park, he could not then claim provocation when the victim grabbed Stepanov.

Defendant reiterates this claim on appeal, arguing that when the jury demonstrated its confusion over the concept of provocation, the court should have explained that even if Isayev set up the meeting in the park, he could still claim provocation if he did not orchestrate the victim's grabbing of Stepanov.

We set aside any reservations about whether the evidence supported giving a provocation instruction (see People v. Manriquez (2005) 37 Cal.4th 547, 584, [provocation has both a subjective and an objective component]), and conclude that defendant's argument fails for several reasons.

First, defendant overlooks a key point. After the jury began its deliberations and made these inquiries and after the court gave the challenged supplemental instructions, two jurors were replaced. (One juror became ill and another was removed for reasons explained later in this opinion.) The court seated two alternates and instructed the newly constituted jury, "[Y]ou must set aside and disregard all past deliberations and begin your deliberations all over again. Each of you must disregard the earlier deliberations and decide this case as if those deliberations had not taken place." We presume the jury followed these instructions (People v. Yeoman (2003) 31 Cal.4th 93, 138-139) and began its deliberations anew. Because the court's explanations of provocation were given earlier, to a jury with a different composition than that ultimately deciding the case, they are irrelevant to the jury's verdict or deliberations.

Second, on the merits, in order to find that defendant created the circumstances that provoked him into killing the victim, the jury had to find that the victim groped Stepanov and that this act was reasonably foreseeable. Isayev knew that on the one previous occasion in which the victim and Stepanov were alone, they had sex, and the victim then bragged to others that he would have sex with her again. The jury could certainly have concluded that the victim's groping of Stepanov was reasonably foreseeable when defendant arranged a meeting between the two, to be held in the middle of the night in a deserted park.

Finally, we note that in finding the lying-in-wait special circumstance to be true, the jury rejected defendant's claim that he acted out of heat of passion after going to the park only to confront the victim. If defendant intended to kill the victim, arguments relating to provocation are immaterial. Different instructions would not have led to a different result.

D. Instruction on Simple Assault as a Predicate Offense

Defendant Sevchuk contends that the court erred in instructing the jury that aiding and abetting liability could be predicated on simple assault or battery as well as assault with a deadly weapon. Defendant Stepanov joins this claim. They assert that if, as the prosecution argued, defendants should have known that Isayev would use a gun to assault the victim, the crime defendants intended to aid and abet was assault with a deadly weapon, not either of the lesser offenses. However, because the court instructed that the predicate offense could be simple assault or battery, the jury may have convicted defendants on one of these impermissible theories. There was no error.

Initially, we note that the prosecution argued a natural and probable consequences theory of liability for defendants Stepanov and Sevchuk. In other words, although defendants may have intended to aid and abet only an assault or battery, their knowledge about Isayev gave rise to liability for murder as the natural and probable consequence of their intent to aid these lesser offenses. Their claim on appeal seems inapplicable on its face--the predicate offense could in fact have been simple assault or battery, with liability for the greater crime arising from the application of a natural and probable consequences theory. The court could therefore properly instruct the jury that simple assault or battery could be the predicate offense.

Defendants' arguments are otherwise unpersuasive as well. Citing cases such as People v. Montes (1999) 74 Cal.App.4th 1050, 1053-1054, defendants assert that instructions on simple assault as a predicate offense are proper only in situations involving escalating violence, such as in a gang dispute. While a gang situation is indeed a common context for similar claims, defendants offer no authority for their apparent belief that assault can be a predicate offense only in these situations. "A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case [citation] and is a factual issue to be resolved by the jury." (People v. Medina (2009) 46 Cal.4th 913, 920.)

Defendants err in asserting that there was no evidence from which they "could have portended that a shooting would flow from a simple assault or battery." As we have already discussed, the evidence established that a murder was the natural and probable consequences of an assault on the victim. Even if Sevchuk and Stepanov intended that Isayev only assault or frighten the victim, both defendants knew of Isayev's violent background and how he reacted when jealous. Sevchuk knew that Isayev had a gun in the trunk and Sevchuk bought the ammunition with which the gun was loaded. Under these circumstances, there was ample evidence that the murder was a natural and probable consequence of whatever assault was planned. The trial court's instructions were proper. This conclusion also disposes of Sevchuk's claim that the court erred in denying his motion for new trial on this issue.

E. Instruction on Uncharged Offense

Defendants Isayev and Sevchuk raise a variety of challenges to CALCRIM No. 375, "Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, etc.," an instruction relating to the Kutsenko shooting.

The court instructed defendant Isayev's jury pursuant to CALCRIM No. 375 as follows:

"The People presented evidence that the defendant committed or participated in an offense not charged in this case, namely participated in a shooting at Roman Kutsenko's house and car on September 23, 2005. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed those offenses. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden, you must disregard this evidence entirely.

"If you decide that the defendant participated in that offense, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant was motivated to retaliate violently with a gun against a person who he believed had disrespected his girlfriend; [¶] The defendant acted with intent to kill [the victim]. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offenses and the charged offense.

"If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged or lesser-included offense. The People must still prove each element of the charge beyond a reasonable doubt."

A similar CALCRIM No. 375 instruction was given to defendant Sevchuk's jury, with appropriate modifications to reflect Sevchuk's role in the Kutsenko shooting. The court informed the jury that the People had presented evidence that Sevchuk shot at Kutsenko's house and car, and instructed that the jury may consider this offense "for the limited purpose of deciding whether or not: [¶] 1. The defendant had knowledge that . . . Isayev would respond violently and with a gun against a person that . . . Isayev believed had interest in or disrespected a former or current girlfriend; and/or [¶] 2. The defendant intended to aid and abet . . . Isayev in an assault, battery, assault with a firearm, and/or murder; and/or [¶] 3. The defendant specifically intended that [the victim] be killed."

The court also instructed, "Do not consider this evidence for any other purpose except for the limited purpose of determining whether defendant Sevchuk had the knowledge and intent required to be found guilty of murder." The instruction included the same language as that given to Isayev's jury relating to the preponderance of evidence standard for the Kutsenko incident and the requisite reasonable doubt standard for the charged offense.

With these instructions in mind, we turn to defendants' specific claims.

1. CALCRIM No. 375 as Improper Pinpoint Instruction

Defendant Isayev asserts that CALCRIM No. 375 is an improper pinpoint instruction in that it restricted consideration of the Kutsenko shooting to the prosecution's theory of the case. He contends that the jury should also have been permitted to use this evidence to find mitigated culpability based on Isayev's acting out of provocation in both the Kutsenko shooting and the charged offense, and he suggests that the court had a sua sponte duty to so instruct. Defendant Sevchuk joins in this argument.

The challenged instruction was not argumentative and did not direct the jury to draw particular conclusions. It simply told the jury that it could, but was not required to, consider the Kutsenko shooting for specified limited purposes. "So long as the instruction is otherwise proper, no right of the defendant is infringed by allowing the prosecutor to request an instruction which focuses a jury on factors which are relevant to its determination of the issues for decision." (People v. Carter (1993) 19 Cal.App.4th 1236, 1253, fn. 11.)

The trial court had no sua sponte obligation to instruct the jury that provocation in the Kutsenko shooting could be considered to determine whether the charged offense also stemmed from provocation. We reach this conclusion for one simple reason: defendant Isayev denied any involvement in the Kutsenko shooting.

A sua sponte duty to instruct on defenses arises "'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.'" (People v. Breverman (1998) 19 Cal.4th 142, 157.)

Because Isayev adamantly denied that he was in any way involved in the Kutsenko shooting, there was no basis for the court to give a sua sponte instruction that suggested Isayev shot at Kutsenko's house because he was provoked.

2. Standard of Proof

Defendant Isayev contends that CALCRIM No. 375 unconstitutionally reduced the prosecutor's burden of proof by allowing the jury to convict him of murder based on the other crimes evidence and the preponderance of the evidence standard, rather than reasonable doubt.

Defendant acknowledges that a similar argument was rejected by the California Supreme Court in People v. Reliford (2003) 29 Cal.4th 1007, but he raises the issue to seek reconsideration in state court and preserve the issue for federal review. We are bound by California Supreme Court precedent (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and have no basis to reconsider this matter.

But, we note that the language of CALCRIM No. 375 refutes defendant's claim. CALCRIM No. 375, as given in this case, authorized the jury to use the preponderance standard to determine whether defendant committed the uncharged offenses. It explicitly linked this lesser standard of proof with the Kutsenko shooting and just as explicitly reminded the jury that this evidence was not "sufficient by itself to prove that the defendant is guilty of the charged or lesser-included offense. The People must still prove each element of the charge beyond a reasonable doubt."

Nothing in CALCRIM No. 375 authorized the jury to use a preponderance of the evidence standard for anything other than the preliminary question of whether defendant committed the uncharged offense. Viewing the instruction as a whole, it is unreasonable to think the jury would have interpreted the instruction to authorize conviction on the charged offense based on a lower standard than proof beyond a reasonable doubt. (See People v. Reyes (2008) 160 Cal.App.4th 246, 252 [similar analysis applied to CALCRIM No. 852, relating to evidence of prior uncharged acts of domestic violence].)

3. Alleged Conflict Between CALCRIM Nos. 225 and 375

In a related argument, defendants Sevchuk and Isayev assert that the preponderance standard outlined in CALCRIM No. 375 conflicted with CALCRIM No. 225, "Circumstantial Evidence: Intent or Mental State" and lessened the prosecutor's standard of proof. They argue that "because [their] intent and knowledge was established by circumstantial evidence, evidence of prior bad acts admitted for this purpose had to be proven beyond a reasonable doubt to meet due process standards . . . and the jury was erroneously instructed on the proper standard of proof.

CALCRIM No. 225 provided in part that "The People must prove not only that the defendant did the acts charged, but also that he acted with a particular intent or mental state. . . . [¶] An intent or mental state may be proved by circumstantial evidence. [¶] Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt."

Contrary to defendants' claim, the standards outlined in CALCRIM Nos. 225 and 375 do not conflict, do not lower the prosecutor's burden of proof, and are not confusing. As already noted, CALCRIM No. 375 clearly outlined the requisite burden of proof. The effect of CALCRIM No. 225 was to allow the jury to draw an inference about defendant's intent, assuming the uncharged act was established by a preponderance of the evidence. The jury was still required to find all of the elements of the charged offense proven beyond a reasonable doubt, as CALCRIM No. 375 expressly outlined.

In People v. Carpenter (1997) 15 Cal.4th 312, the California Supreme Court rejected the same claim made by defendants here, namely, that the jury might infer from the instructions that the prosecution needed to prove intent only by a preponderance of the evidence. The court noted that the trial court gave the "standard instructions on reasonable doubt in general and on the sufficiency of circumstantial evidence to prove the necessary 'specific intent or mental state.' These instructions made clear the reasonable doubt standard applies to intent as well as identity." (Id. at p. 383.)

The same is true here. Defendant Sevchuk's claim to the contrary is predicated on his belief that the court failed to instruct on reasonable doubt. But as we have already discussed, this instruction was in fact given. Moreover, both CALCRIM Nos. 375 and 225 reiterated that the prosecution had the burden of proving each element of the charged offense beyond a reasonable doubt. Intent is one such element.

There was no error. The court properly instructed on the requisite standard of proof in accordance with CALCRIM No. 375.

F. Failure to Instruct on Lesser Included Offenses

1. Misdemeanor Manslaughter

Defendant Sevchuk contends that the trial court erred in failing to instruct sua sponte on the lesser included offense of misdemeanor manslaughter predicated on aiding and abetting defendant Isayev's brandishing of a firearm. Alternatively, he asserts his attorney was ineffective for failing to request this instruction. Had this instruction been given, he argues, the jury could have found him guilty of involuntary manslaughter rather than second degree murder. (See §§ 192, subd. (b); 417, subd. (a)(2).)

Defendant's claims fail because there was no evidence to support such an instruction.

"Instruction on a lesser included offense is required only when the record contains substantial evidence of the lesser offense, that is, evidence from which the jury could reasonably doubt whether one or more of the charged offense's elements was proven, but find all the elements of the included offense proven beyond a reasonable doubt." (People v. Moore (2011) 51 Cal.4th 386, 408-409.)

"Brandishing a firearm" is defined as the drawing or exhibiting of a firearm "in a rude, angry, or threatening manner." (§ 417, subd. (a)(2).) There was no evidence that Isayev engaged in such conduct.

Isayev testified that he was upset when he arrived at the park and saw the victim with Stepanov, and was not thinking when he took the shotgun from the trunk of his car. As he walked toward the pair, he asked Stepanov, "Is this the guy?" and Stepanov nodded. Isayev was carrying the gun straight down at his side, pointing it toward the ground. He yelled at Stepanov to move away, and as soon as she did, he leveled the gun and shot the victim. After the victim fell to the ground, he immediately reloaded and shot the victim a second time.

At no time did Isayev threaten the victim with the gun; he simply aimed and fired. Because there was no evidence that Isayev brandished the weapon, there was no basis for the trial court to instruct sua sponte on misdemeanor manslaughter, nor was there a basis for defendant Sevchuk's attorney to request such an instruction.

2. Voluntary and Involuntary Manslaughter

Defendants Stepanov and Sevchuk assert that the trial court should have instructed their juries on voluntary and involuntary manslaughter.

"'It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.' [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged." (People v. Sedeno (1974) 10 Cal.3d 703, 715, overruled on other grounds in People v. Breverman, supra, 19 Cal.4th at pp. 149, 176.) "[T]he trial court need not instruct on a particular necessarily included offense if the evidence is such that the aider and abettor, if guilty at all, is guilty of something beyond that lesser offense, i.e., if the evidence establishes that a greater offense was a reasonably foreseeable consequence of the criminal act originally contemplated, and no evidence suggests otherwise." (People v. Woods (1992) 8 Cal.App.4th 1570, 1593.)

Defendant Isayev argued that he shot the victim out of provocation and heat of passion, and the court therefore instructed his jury on voluntary manslaughter. Defendants Stepanov and Sevchuk assert "[t]here is no reason why [defendants'] jurors should not have been given the option of finding her guilty of voluntary manslaughter also." But there is: there was no evidence that defendants Stepanov or Sevchuk aided and abetted Isayev out of provocation or heat of passion. While Stepanov was angry with the victim and Sevchuk was drawn into a plan to extract revenge for the perceived damage caused to Stepanov's reputation, nothing occurred at the time of the shooting to constitute provocation or heat of passion for either of these defendants. Isayev asserted that he acted out heat of passion when he saw the victim grope Stepanov, but neither Stepanov nor Sevchuk testified that they had the same reaction. Thus, while Isayev was entitled to an instruction on voluntary manslaughter, there was no evidence that Stepanov or Sevchuk acted out of heat of passion or provocation. Without this evidence, the court had no obligation to instruct the Stepanov and Sevchuk juries on voluntary manslaughter.

Defendants' argument is essentially a reframing of their claim that there was insufficient evidence for the jury to conclude that murder was a natural and probable consequence of an assault. We have already rejected that claim and for the reasons stated, reject their claim here as well.

In a similar vein, defendants suggest that their juries should have been instructed on involuntary manslaughter because an assault or battery, or conspiracy to commit these crimes, can be a misdemeanor as well as a felony. This argument is again predicated on a claim that defendants could not have foreseen that Isayev would be armed. As noted, however, that predicate is faulty. This is not a situation like People v. Woods, supra, 8 Cal.App.4th at page 1588 in which we held that "in determining aider and abettor liability for crimes of the perpetrator beyond the act originally contemplated, the jury must be permitted to consider uncharged, necessarily included offenses where the facts would support a determination that the greater crime was not a reasonably foreseeable consequence but the lesser offense was such a consequence." (Italics and underlining added.) Here, the murder was a natural and probable consequence of an assault.

In short, if defendants Stepanov and Sevchuk were guilty at all, they were guilty of murder. There was no evidence to support a voluntary or involuntary manslaughter theory, and no basis for the trial court to instruct on these lesser included offenses.

Moreover, even if we were to assume otherwise, any error was harmless. The evidence overwhelmingly established that defendants set up the confrontation between Isayev and the victim at the deserted park and that defendants Stepanov and Sevchuk knew of Isayev's past history and violent reactions when jealous. There was no reasonable probability that the jury would have returned a more favorable verdict had the court included instructions on voluntary or involuntary manslaughter. (See People v. Breverman, supra, 19 Cal.4th at p. 178.)

G. Instruction on Read-back of Testimony

Defendant Isayev contends that the trial court improperly coerced the jury by "actively discourag[ing] jurors from making read-back requests." The record reflects otherwise.

During its instructions, the trial court commented that "if the jury requests a read-back of testimony, it will take some time for the court reporter to locate the passages that are requested in her notes. It may take a fair amount of time. [¶] So do that and we also have to have the alternates come to court so when you make these kind of requests, we will attempt to accommodate them as quickly as possible but it would take time."

The same day, the jury sent the court a request for a read-back of testimony which the court "very quickly reviewed." Concluding it might take two or more days to accomplish, the court asked the jury to pare down its request. In the meantime, the court met with the prosecutor and defense counsel in anticipation of a new request for a read-back. The court prepared "written guidance" for the jury about such requests and reviewed this instruction with counsel; each stated he had no objections. The court therefore sent the jury its instruction, "Read-Back Guidance," which provided:

"Regarding requests for read-back of testimony, let me explain what is involved. When the court receives a request for read-back, the attorneys are consulted and the court reporter is directed to locate the relevant testimony in her notes, both direct and cross-examination. Some testimony must be excluded due to objections and motions to strike. This process requires some time. Also, bear in mind that actual read-back of testimony often consumes nearly as much time as was consumed when the testimony was given. The jury is not permitted to deliberate during read-back, but the jury may tell the court reporter to stop read-back when it is satisfied.

"Please understand that there may be delay in responding to your requests, perhaps more so in this case due to our having a separate jury for each defendant. Requests for read-back of testimony for which the jury's collective recollection must be assisted should be as specific as possible and should relate to important issues which are necessary to reach a verdict.

"Do not interpret this instruction as discouraging requests for read-back. The court staff stands ready to assist the jury in whatever way we can." (Italics added.)

A few days later in its deliberations, the jury asked whether the attorneys had stipulated to a certain fact, and if not, whether it could have a "list of the stipulations." The court responded that there had not been a stipulation on this particular point and continued, "Finding all the stipulations during trial would require the court reporter to review the transcript of all testimony and would take approximately two days time to accomplish. If you would like that done, please inform me of that request." No request was made.

Defendant Isayev contends that these instructions discouraged the jury from asking for read-backs of testimony, thereby violating his constitutional rights. He asserts his acquiescence to the court's instructions does not forfeit appellate review. Defendant alternatively asserts his counsel was ineffective in failing to raise an objection.

Assuming for purposes of argument that defendant's claim is properly before us (see People v. Hillhouse (2002) 27 Cal.4th 469, 505-506), we nonetheless find it to be without merit.

The court's instructions to the jury explained the process for arranging a read-back of testimony so that jurors would understand why they were not getting an immediate response to their request. The court explicitly stated, "Do not interpret this instruction as discouraging requests for read-back. The court staff stands ready to assist the jury in whatever way we can."

Given the general tenor of the court's instructions and this explicit reassurance, there is no basis for defendant's claim that the court's comments discouraged any requests for read-backs of testimony. "Merely informing the jury of the time it may take for rehearing testimony is not impermissible jury coercion." (People v. Hillhouse, supra, 27 Cal.4th at p. 506.) The fact that the jurors did not resubmit their question following this instruction is not evidence of coercion but instead indicates that the matter was resolved to the jury's satisfaction. There was no error. (See People v. Gurule (2002) 28 Cal.4th 557, 649-650; People v. Anjell (1979) 100 Cal.App.3d 189, 202-203, overruled on other grounds in People v. Mason (1991) 52 Cal.3d 909, 943, fn. 13.)


Claims Relating to Individual Jurors

A. Isayev Jury

Defendant Isayev contends that the trial court erred in discharging Juror No. 12 during deliberations.

Under section 1089, a court may order a juror who is "unable to perform his or her duty" to be discharged. "We review for abuse of discretion the trial court's determination to discharge a juror and order an alternate to serve. [Citation.] If there is any substantial evidence supporting the trial court's ruling, we will uphold it. [Citation.] We have also stated, however, that a juror's inability to perform as a juror must '"appear in the record as a demonstrable reality."' [Citation.]" (People v. Marshall (1996) 13 Cal.4th 799, 843.)

Jurors may be removed for physical reasons, such as sleeping during trial, as well as for refusal to deliberate. (See People v. Cleveland (2001) 25 Cal.4th 466, 474-475.) The trial court cited both of these grounds as the basis for removing Juror No. 12. Although defendant devotes most of his argument to challenging the court's conclusion that Juror No. 12 failed to deliberate, the court's other reason for removal, sleeping during trial, alone justifies the removal of Juror No. 12.

Complaints about Juror No. 12 arose during deliberations and the court held a hearing to question each juror.

Juror No. 2 asserted that Juror No. 12 said that he slept through "a lot" of the testimony. Juror No. 3 reported Juror No. 12 said that he could not remember some of the testimony because he had been "nodding off a lot." Juror No. 4 said he personally saw Juror No. 12 sleeping on more than one occasion and that Juror No. 12 admitted to "nodding off during parts of the trial." Juror No. 5 also said that Juror No. 12 admitted to sleeping through a lot of testimony. Although Juror No. 5 did not personally observe Juror No. 12 asleep, he opined that Juror No. 12 "really had no idea what went on through the whole case because he didn't pay attention." Juror No. 6 reported that Juror No. 12 stated that he slept through the testimony of several witnesses. Juror No. 7 saw Juror No. 12 with his eyes closed during trial, and said that Juror No. 12 admitted to "nodding off" during the testimony of more than one witness. Juror No. 8 also saw Juror No. 12 with his eyes closed and also reported that Juror No. 12 said he had slept during trial. Juror No. 9 saw Juror No. 12 fall asleep during testimony and stated that Juror No. 12 admitted sleeping during trial. In this juror's opinion, Juror No. 12 missed the testimony of several witnesses. Juror No. 10 reported that Juror No. 12 admitted that he "nodded of[f] periodically." Juror No. 11 also said that Juror No. 12 stated that he "nodded off" during the trial during the testimony of more than one witness.

When questioned by the court, Juror No. 12 denied sleeping during trial but said he told other jurors that he had done so in order to make another juror feel better about having made a "mistake in what he was saying."

The court clerk reminded the court that she had notified the bailiff during trial that Juror No. 12 was sleeping and the bailiff had told the clerk to watch the juror.

The court found the allegations that Juror No. 12 slept during trial (and failed to deliberate) "most problematic," and found that "[t]he discrepancy between what the 10 complaining jurors stated and what Juror [No. 12] stated presents a question of fact, which I am inclined to resolve in favor of the 10 complaining jurors. [¶] I would find that he did sleep during the trial, and he did admit during deliberations to have slept or nodding off during the trial; and I don't believe the explanation he provided."

The court emphasized that it was "relying substantially" on the statements of the other jurors rather than any observations by court personnel and stated, "I feel that Juror [No. 12] should be removed because he slept during portions of the trial, or was nodding off to the point of inattentiveness and this made him unable to fully deliberate as a juror." After finding that Juror No. 12 also did not deliberate with an open mind, the court concluded, "I find that the sleeping issue alone constitutes good cause for his removal. I find that his refusal to deliberate alone constitutes good cause for removal and, of course, in combination they warrant his removal."

The outlined evidence provides ample support for the trial court's finding that Juror No. 12 slept during trial. The court acted well within its discretion in removing this juror and replacing him with an alternate. (See People v. Johnson (1993) 6 Cal.4th 1, 21, overruled on other grounds in People v. Rogers (2006) 39 Cal.4th 826, 879; cf. People v. Bowers (2001) 87 Cal.App.4th 722, 730-731.)

B. Sevchuk Jury

Defendant Sevchuk contends that the trial court erred in denying his motion for mistrial after the jurors in his case, while still in deliberations, read a newspaper article about the Stepanov verdict.

The Sevchuk jury began its deliberations on February 26, 2007. On Saturday, March 10, 2007, the Sacramento Bee ran a story on the front page of its "Metro" section reporting that the Stepanov jury had convicted Stepanov of second degree murder. The article included a photograph of Stepanov and the headline, "Woman convicted of revenge killing."

On the following Monday (March 12), the Sevchuk jury asked the court to clarify its instructions on second degree murder. Defendant Sevchuk made a "pending mistrial motion," and asked to have the court question the jurors to see if they had seen or been influenced by the newspaper article. The court noted that earlier questions from the jury had also related to second degree murder issues, but it agreed to grant defendant Sevchuk's request to poll the jury.

The court questioned each juror individually. Juror No. 1 saw the headline in the article and the word "convicted" but did not read the article. No one else on the jury tried to discuss the article with her. Juror No. 2 did not know that there had been an article or a verdict, but was aware that the Isayev and Stepanov juries were no longer in the courthouse. Juror Nos. 3, 4, 5, 6, 7, 10 and 11 heard someone in the courthouse mention the article and/or that Stepanov's jury had reached a verdict. They knew nothing about the substance of the article, and none of them thought their limited knowledge would affect deliberations in any way. Juror No. 8 reported that a co-worker saw him with the newspaper, warned him not to read the Metro section and took that section from him. Juror No. 9 said that someone riding light rail mentioned the article but did not relate the substance of the article.

Juror No. 12 informed the court that she saw a friend over the weekend who told her that there had been an article in the paper and that Stepanov had been found guilty. Juror No. 12 replied that she "wasn't supposed to know anything," and there was no further conversation. Juror No. 12 told her fellow jurors that morning that a friend had told her there had been an article in the paper, but did not give any further details. Apparently, this disclosure was made after jurors wondered why they were being called individually into the courtroom. Juror No. 12 said the jurors had noticed that the juries from the other two defendants were no longer in the courthouse. Juror No. 12 said that her limited knowledge about the article would not affect her deliberations.

Defendant Sevchuk moved for a mistrial based on jury misconduct. The trial court denied the motion, ruling, "There has been no showing of misconduct. I know . . . that you are inferring something from their comments that is of concern to you; but I don't make that inference. I felt the jurors were forthright and honest. [¶] I don't believe that the mere fact that a couple of them know that there was a verdict in the Stepanov case, a guilty verdict, is going to contain [sic] whatever verdict, if any, that this jury reaches, so your motion for mistrial is denied."

Defendant challenges this ruling on appeal.

"While it is well settled that it is misconduct for a juror to read newspaper accounts of a case on which he or she is sitting, and that receiving impressions from sources other than evidence received at trial raises a presumption of prejudice, this presumption of prejudice may be rebutted." (People v. Von Villas (1995) 36 Cal.App.4th 1425, 1431.) A verdict will be set aside only if there is substantial likelihood of juror bias, either because the extraneous material is inherently likely to have influenced the juror, or the nature of the misconduct and the surrounding circumstances establish it is substantially likely that a juror was actually biased against the defendant. (Ibid.; In re Carpenter (1995) 9 Cal.4th 634, 653.)

Here, we question whether any misconduct occurred. One juror inadvertently saw the headline and a few others reported being told of a verdict in the Stepanov case. None of the jurors read the article itself. One juror mentioned to others that an article had appeared, but the details were not divulged (and were not known to that juror). Two of the jurors knew that Stepanov had been convicted, but nothing more. If there was any misconduct, the presumption of prejudice was rebutted as there was no likelihood of juror bias. The jurors had extremely limited information about the article and all of it related to a co-defendant, not Sevchuk. The jurors asserted that their passing knowledge of the article would not affect their deliberations or their ability to be fair. Under these circumstances, the court acted well within its discretion in denying defendant Sevchuk's motion for mistrial. (See People v. Maury (2003) 30 Cal.4th 342, 434.)

C. Stepanov Jury

Defendant Stepanov contends that one of the jurors on her case committed misconduct by (1) intentionally failing to disclose that he knew defendant Isayev and (2) informing the other jurors during deliberations that Isayev had a violent background. Stepanov asserts that the court erred in denying her motion for new trial based on these two instances of alleged misconduct. There was no error.

As voir dire began, the court informed the prospective jurors of the names of all three defendants (including Isayev) and later read a long list of potential witnesses (which did not include Isayev). The court asked if anyone on the panel recognized any of these names; there was no response.

During questioning, Juror No. 10 said that he was a security officer at Cordova High School, a high school with a high ratio of "Russians and Armenians and so forth." Stepanov's attorney asked Juror No. 10 about his contacts with Russian high school students and his ability to be impartial.

After being convicted, Stepanov moved for a new trial based on juror misconduct. She asserted that Juror No. 10 told the jury that he knew Isayev and knew that Isayev had a violent background. The court notified the jurors of defense counsel's request for personal contact information to investigate this claim and informed jurors of their right to appear at the hearing or complete a written declaration.

Juror No. 3 submitted a declaration stating, "In the beginning of deliberations the juror stated he 'knew' . . . Isayev. I challenged his statement, asking if he 'knew' [Isayev] or 'knew of' him. He explained that while acting as custodian at the school he had seen [Isayev]. The juror also explained that he had discussed his situation with the judge in private. I concluded that he had been screened for bias. The foreman and others stopped the discussion as we were here to discuss [Stepanov's] case."

Juror No. 6 submitted a declaration asserting, "One juror mentioned he was in security at a high school with many 'Russian' kids. This was early in deliberation. Very late in deliberation (to my recollection AFTER we had agreed on a verdict) he mentioned that he had known . . . Isayev and he was a violent student. Neither incident had any apparent impact on the jury decision and certainly had no impact on my decision."

Juror No. 10 wrote in a declaration, "I did not say I knew . . . Isayev. I said I think I've seen him before; and I won't discuss any rumors, et cetera, to the jury."

Some jurors appeared at the hearing and agreed to be interviewed by counsel. Others made themselves available to counsel at other times, and a few did not want to be interviewed.

In subsequent filings, Stepanov's counsel alleged that "as the jury was deliberating for more than four days and when deadlocked, Juror [No. 10] told them what he did[:] 'If you knew the file on . . . Isayev that I do, you would not be having this much trouble.' Within about an hour the jury reached a verdict."

In opposing the new trial motion, the prosecutor noted that there was no evidence to support Stepanov's claim that the juror's comment was made after four days of deliberations when the jury was deadlocked; in fact, the declarations from Jurors No. 3 and 6 described otherwise, with one juror recalling a comment being made early in deliberations and one recalling a comment after the verdict had been reached.

The trial court rejected Stepanov's claim that Juror No. 10 willfully failed to disclose that he knew Isayev. The court stated, "I have reviewed a partial transcript of the voir dire and the arguments of counsel in their briefs. [¶] Juror [No. 10] did not disclose in voir dire that he recognized the name of the co-defendant Isayev or that he knew of him in regard to his work as a security officer at Rancho Cordova High School.

"He did volunteer the information that there are a large number of Russian students at the high school, and he indicated he worked in a program through the Probation Department that deals with students at that high school.

"Defense counsel has asked follow-up questions as to whether Juror [No. 10] harbored any prejudice towards Russian students in general and to which he said there was both good and bad.

"It should be noted that defendant Isayev was not present during the Stepanov voir dire, and there's no indication that Juror [No. 10] knew Isayev by name, thus, there is no reason to think that he willfully failed to disclose that he knew Isayev.

"He volunteered the information that he knew Russian students, and counsel could have followed up if there was any suspicion that he knew any of the parties. It's more reasonable to assume that at some point later in the trial, Juror [No. 10] recognized Mr. Isayev when he saw him.

"I don't find that any failure to disclose the fact that he recognized Isayev, whose jury he was not a part of, in and of itself, constituted misconduct."

Turning to the second basis for Stepanov's motion, the court determined that the statements of Juror No. 10 to the jury presented a prima facie case of misconduct. The court noted that the declarations established a "consensus . . . that Juror [No. 10] briefly stated words to the effect that he knew of co-defendant Isayev, at the very least, and that he knew that he was violent."

However, the court concluded that this presumption of misconduct was rebutted, explaining, "There was strong uncontradicted evidence against defendant Stepanov from which the jury could infer that she knew of defendant Isayev's tendency to violence, particularly in the context of a jealous boyfriend. [¶] She knew that he carried a shotgun in his car. [¶] She told her co-worker and supervisor that her new boyfriend--referring to Mr. Isayev--had killed someone.

"There was testimony that when she was at Rancho Cordova Park with her new boyfriend, Max Bgatov, and some other people, that Isayev, who had been there a little bit earlier, left and then later drove by the park and did a drive-by shooting. [¶] The uncontradicted testimony was that Stepanov told her friends that the shooter was . . . Isayev."

Defendant Stepanov contends that the court erred in denying her motion for new trial based on juror misconduct.

We turn first to Stepanov's claim that Juror No. 10 intentionally failed to disclose that he knew Isayev.

"When misconduct involves the concealment of material information that may call into question the impartiality of the juror, we consider [an] actual bias test . . . . 'Although intentional concealment of material information by a potential juror may constitute implied bias justifying his or her disqualification or removal [citation], mere inadvertence or unintentional failures to disclose are not accorded the same effect. "[T]he proper test to be applied to unintentional 'concealment' is whether the juror is sufficiently biased to constitute good cause for the court to find under [the relevant statutes] that he is unable to perform his duty." [Citation.] [¶] Whether a failure to disclose is intentional or unintentional and whether a juror is biased in this regard are matters within the discretion of the trial court. Except where bias is clearly apparent from the record, the trial judge is in the best position to assess the state of mind of a juror or potential juror on voir dire examination. [Citations.]'" (People v. San Nicolas (2004) 34 Cal.4th 614, 644.)

The trial court acted well within its discretion in concluding that Juror No. 10 did not intentionally withhold information during voir dire. As the court explained, Isayev was not in the courtroom during the Stepanov jury voir dire and it was most likely not until sometime during trial that the juror saw Isayev and realized that he recognized him. Even if Juror No. 10 should have alerted the court once he recognized Isayev, there was no evidence that the failure to do so hid any actual bias.

The court also acted well within its discretion in concluding that Juror No. 10's statements to other jurors did not amount to misconduct necessitating a new trial. There are several problems with defendant's claims to the contrary.

First, we note one important distinction between this case and those relied upon by defendant Stepanov. Unlike cases such as People v. Nesler (1997) 16 Cal.4th 561, 583, Juror No. 10 did not repeatedly refer to out-of-court information concerning defendant; instead, Juror No. 10 made passing reference to information relating to a witness. Nothing in Juror No. 10's statement pertained directly to defendant Stepanov's guilt or innocence. (See People v. Von Villas, supra, 36 Cal.App.4th at pp. 1432-1433.)

Second, defendant places unwarranted emphasis on Juror No. 3's report that Juror No. 10 said he had raised this issue with the trial court when in fact this situation apparently was not brought to the court's attention. No other declarations contained a similar allegation and it is less than certain whether Juror No. 10 made such a statement or whether Juror No. 3 misinterpreted something else that was said. What is certain is that this statement played no role in deliberations or in Juror No. 3's consideration of the case.

Finally, a 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 . . . 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." (In re Hamilton (1999) 20 Cal.4th 273, 296.) The court's comments demonstrate that this standard was met. Abundant evidence was introduced at trial of Isayev's violent tendencies, and there was no substantial likelihood that any passing comment by Juror No. 10 caused any jury member, including Juror No. 10, to be biased against defendant Stepanov.

The trial court did not err in denying defendant Stepanov's motion for new trial.


Constitutional Challenge to Lying-in-Wait Special Circumstances

The jury convicted defendant Isayev of first degree murder and also found true a lying-in-wait special circumstance. Section 189 defines first degree murder as including murders committed "by means of . . . lying in wait." Section 190.2, subd. (a)(15) establishes a special circumstance if "[t]he defendant intentionally killed the victim by means of lying in wait."

Defendant asserts that the "lack of any real distinction" between a first degree lying-in-wait theory of murder and a lying-in-wait special circumstance violates the constitutional prohibition against cruel and unusual punishment and due process guarantees. We conclude otherwise.

The People contend that because defendant was not subject to the death penalty, he lacks standing to raise a challenge based on cruel and unusual punishment for arbitrary infliction of the death penalty. (See Houston v. Roe (9th Cir. 1999) 177 F.3d 901, 906-907.) However, a forfeiture argument is of little practical benefit here. Defendant is entitled to raise a substantive due process challenge based on a vague statute that creates a danger of arbitrary application, and the due process analysis is virtually identical to that applied to claims of cruel and unusual punishment. Both center on whether there is a meaningful distinction between lying-in-wait special circumstances and lying-in-wait murder such that juries do not engage in arbitrary decision making in determining whether the special circumstance is true. (Id. at p. 907.) We conclude there is such a distinction.

In People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297, the court outlined the history of the statutes involving lying-in-wait murder and lying-in-wait special circumstances (id. at pp. 304-308), and focused particular attention on Proposition 18. This measure, adopted in March 2000, changed "while lying-in-wait" in the special circumstances statute to "by means of lying in wait" to conform with the lying-in-wait language defining first degree murder. (Id. at pp. 306-308.) As the court noted, "even after Proposition 18 changed the language of the lying-in-wait special circumstance to comport with the language of first degree murder 'by means of' lying in wait, the special circumstance remains distinguishable because it still requires the specific intent to kill, whereas first degree murder by lying in wait does not. [Citation.] The special circumstance . . . therefore does not merely repeat the elements that make a killing by means of lying in wait a first degree murder." (Id. at pp. 309-310.)

We agree. The lying-in-wait special circumstances requires express malice (an intent to kill); a lying-in-wait murder, however, may involve express or implied malice. (See Bradway, supra, 105 Cal.App.4th at pp. 309-310; see also People v. Cruz (2008) 44 Cal.4th 636, 679; People v. Gutierrez (2002) 28 Cal.4th 1083, 1148-1149; People v. Poindexter (2006) 144 Cal.App.4th 572, 580, fn. 10; People v. Laws (1993) 12 Cal.App.4th 786, 794-795.) Defendant's constitutional challenge fails.


Parole Revocation Fine

The trial court imposed a $10,000 parole revocation fine on defendant Isayev pursuant to section 1202.45. Citing cases such as People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183, Isayev contends that this fine must be stricken because he was sentenced to life without the possibility of parole. The Attorney General concedes the error and we accept that concession. "When there is no parole eligibility, the fine is clearly not applicable." (Id. at p. 1183.)


Cumulative Error

Defendants Isayev and Sevchuk contend that the cumulative effect of the court's many errors compels reversal. (See People v. Holt (1984) 37 Cal.3d 436, 458-459) Given our conclusion that few, if any, errors occurred, there is no cumulative effect to evaluate.


Joinder by Sevchuk

Finally, in addition to expressly joining in certain arguments of the other defendants as discussed in this opinion, defendant Sevchuk generally joins in any of co-defendants contentions "to the extent those arguments inure to his benefit." We have rejected each of the proffered arguments (other than the challenge to the restitution fine imposed on defendant Isayev, an issue that is irrelevant to defendant Sevchuk). There is no shared benefit for defendant to enjoy.


The trial court is ordered to strike the parole revocation fine imposed on defendant Isayev and send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed.

We concur: BLEASE , Acting P. J. BUTZ , J.


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