(Super. Ct. No. 07F05622)
The opinion of the court was delivered by: Nicholson , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Issiah W. Jackson of second degree murder (Pen. Code, § 187, subd. (a))*fn1 of his girlfriend, January Keene, with an enhancement for personally using a firearm and causing great bodily injury (§ 12022.53, subd. (d)). He was also convicted of two counts of being a felon in possession of a firearm (§ 12021, subd. (a)(1)) and the jury found true allegations that he had three strike priors (§§ 667, subds. (a)-(i), 1170.12). Defendant was sentenced to 110 years to life in prison.
On appeal, defendant contends the murder conviction must be reversed because the jury deliberations were suspended without cause and the trial court erred in giving the "firecracker" instruction. Defendant also raises various challenges related to his prior serious felony convictions. He contends the jury was required to determine if the priors were for serious felonies; using documentary evidence to prove them violated his confrontation rights; there was insufficient evidence the two State of Washington priors were serious felonies; and double jeopardy prohibits considering evidence not previously found true by a jury. We find no error and affirm.
In late 2006, defendant and January Keene had a turbulent on-again, off-again relationship. They argued a lot and defendant was sometimes violent. Once, defendant pinned Keene to the refrigerator, choked her and threatened to kill her. Defendant told Keene's prior boyfriend that she often upset him and knew how to push his buttons. Defendant became angry and jealous when Keene's male friends visited her. Defendant took a swing at one. Defendant argued with Keene about it and threatened to kill her.
On January 1, 2007, while Keene was visiting Christine Marsh, defendant came over and hit Keene in the face. Defendant had previously asked Marsh about Keene and whether she was a cop or a prostitute. According to Marsh, one minute defendant was ranting and raving; the next he was calm. On that and on another occasion, defendant had a gun.
Later on January 1, Brian Berry visited Keene. Defendant was there and was upset that Berry had come by. Defendant asked Keene, "How do you know I wouldn't peel this dude's cap?"*fn2 Defendant told Keene "he wasn't going to do just like her last boyfriend, he was going to do more." Keene's prior boyfriend had shoved her head into a wall.*fn3
About 1:00 a.m. on January 5, 2007, the police stopped defendant at 30th and L Streets for running a red light. Keene was in the passenger seat. The seat was reclined and Keene's eyes were closed. She had a small amount of blood on her temple and a weak pulse; she was not responsive. When the paramedic moved her head, his hand was covered in blood and a gray substance.
At the time of the stop, defendant was on the phone to 911. Defendant told both the 911 operator and the police who stopped him that Keene was shot at Franklin Boulevard and 21st Avenue; he claimed he was trying to get her to the hospital.
Keene was taken to the UC Davis Medical Center. An autopsy showed she had been shot in the back of her head. She died within minutes of being shot. Burned gunpowder on her skin indicated the gun was close, within six inches of her head. The pathologist removed two small bullet fragments, consistent with a .22-caliber bullet.
The police took defendant to the area of Franklin Boulevard and 21st Avenue in an attempt to confirm his story about the shooting. There was glass in the roadway. A patrol officer had discovered the glass around midnight; three vehicles had been vandalized and their windows broken, but none of the owners wanted to report the vandalism. Officers searched the area but found no bullets, casings or other signs of a shooting. Canvassing the area turned up no information about a shooting that night.
The police searched for evidence defendant was the shooter; they found no weapon in defendant's car. Criminalists analyzed both defendant and the car for gunshot residue. The conclusion from the testing of defendant's hands was that defendant had either fired a gun, had been near a gun that had been fired, or had handled something contaminated with gunshot residue. There were particles characteristic of gunshot residue on the inside of defendant's left sleeve, his exterior right sleeve, and on his torso and the rear waistband of his pants. The criminalist opined the gun that killed Keene was inside the car or at least pointed into the car. She admitted the evidence was consistent with a shooter outside the car.
In the car with defendant's belongings, police found a letter from Keene to defendant. The letter was dated December 19, 2006. In it, Keene complained about defendant's lack of intimacy and that he treated her like a prostitute. She told him to keep his money and Christmas gifts and not to come around anymore. "This is FINAL." (Original underscoring.)
In defense, defendant offered the testimony of several residents of the Franklin Boulevard and 21st Avenue area who claimed they heard a shooting that night. They did not report it to the police out of fear.
The Trial Court did not Abuse its Discretion in Suspending Jury Deliberations
Defendant contends the murder conviction must be reversed because the jury deliberations were suspended for several days without cause. Defendant contends the trial court made an inadequate inquiry of the jury before deciding to suspend deliberations and the court should have seated more alternates in anticipation of scheduling problems due to vacations and other reasons. Defendant contends the suspension was prejudicial because it came during the critical stage of deliberations in a wholly circumstantial case. There was the definite possibility that jurors might discuss the case with outsiders during the long recess.
The first trial ended in a mistrial. The second trial began May 21, 2009. In addition to the 12-member jury, three alternates were selected. During the evidentiary portion of the trial, one alternate replaced a juror whose father had passed away.
The jury began deliberations late in the day June 23, 2009. On June 30, Juror No. 11 left the court a message that she could not be present as her husband was ill. The court and counsel discussed replacing her with an alternate. Because deliberations would have to begin anew with an alternate, the court declared, "[W]e are doing our best to keep this panel constituted in its original form." During this discussion, the court noted other jurors would soon be unavailable due to prepaid ...