IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
November 8, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ANTHONY DEMONE STUART, DEFENDANT AND APPELLANT.
(Super. Ct. No. MF031877A)
The opinion of the court was delivered by: Duarte , J.
P. v. Stuart
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Anthony Demone Stuart of residential burglary, knowing receipt of stolen property and obstructing a peace officer, a misdemeanor. (Pen. Code, §§ 459, 496, subd. (a), 148, subd. (a).) The trial court sentenced defendant to prison for a total of six years. Defendant timely filed this appeal.
On appeal, defendant contends the trial court erred in denying his motion for a new trial based on jury misconduct, and that the trial court failed to treat his contentions of incompetence of trial counsel in accordance with People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The latter point is conceded by the People, who argue for a limited remand for the trial court to comply with Marsden.
We reject the contention that the trial court erred by denying the new trial motion, but agree the judgment must be reversed and the cause remanded with directions to the trial court to consider defendant's Marsden motion.
Defendant was found hiding in a shed following a pursuit from a residential burglary in Manteca on December 3, 2008.
Dominic Jesus testified that he saw a green van arrive and park in front of the house across the street from his home that morning. He saw two young Black men wearing dark knit stocking caps and sweat clothes. Both got out of the van and looked up and down the street, then walked toward the back gate of the house. "Before they went into the gate they both did a look to the right and left again." Jesus wrote down the van's license plate number and called "Crimestoppers." As Jesus was on the telephone, he saw the passenger enter the van and back it up to the gate, "then he opened up the gate and they started putting things in there," including a flat screen television. The men then drove the van north towards Brookdale Way.
Officer Elliott Eichel, of the Manteca Police Department, testified he received a dispatch about a burglary in progress, and he "traveled east on Brookdale Way." Brookdale Way dead-ends at Pestana Avenue, and at that intersection one patrol car turned left and Officer Eichel turned right. After "the first bend in the road," he saw "a green minivan in the distance." After Officer Eichel turned on his overhead and front lights and began to close the distance, the van sped up, ran through a stop sign and turned right on Nehemiah Drive. Officer Eichel briefly lost sight of the van, then turned the corner and saw the van stopped, and saw a Black man "with a dark colored sweatshirt and black beanie cap" run north and jump the fence of a house. A search team found a black beanie in the backyard of a nearby house at Confidence Way and Klondike Way, and fresh footprints in "the backyards of the houses on Klondike Way." A digital camera was found "on the north side of the fence" that the man had jumped over.
With the assistance of "Spike," a canine officer, defendant was found hiding under "random items" in a plastic shed in the backyard of a house "four houses north on Pestana from Nehemiah Drive," and defendant did not immediately comply with police orders to come out of the shed.
A video recording from Officer Eichel's patrol car shows a person running away from the van, wearing light shoes and gray pants, and then jumping a fence.
Renee Jones testified the van was hers, and her son Joshua Jones borrowed it from her Manteca home that morning. Although she did not see defendant--her son's "close" friend--that day, a car she had seen defendant drive was parked in her driveway. When she gave her son permission to use the van, she told him to tell defendant to move his car, because it was in her husband's parking space. She told the police her son was wearing gray sweats and a beanie that day.
The victim testified that when he returned home, he found the electricity had been severed at the electrical box, on the left side of his house. A sliding glass door had been jimmied. A window had been pried at as well. Two of the victim's cameras had been taken, one of which was recovered, and a bottle of change, a flat screen television, and other items of his were found in the van. Two pairs of gloves were also found in the van.
Officer Michael Kelly testified defendant was wearing gray pants, black sweatshirt, black long-sleeve shirt, black socks and brown shoes, and had a black "do rag" for his head. He was also wearing a coat or jacket.
The jury rejected the defense argument that guilt had not been proven beyond a reasonable doubt by the circumstantial evidence presented, and convicted defendant of residential burglary, knowing receipt of stolen property, and obstructing a peace officer. The trial court sentenced defendant to prison for a total of six years. Defendant timely filed this appeal.
New Trial Motion
Defendant contends the trial court should have granted his motion for a new trial based on jury misconduct. We disagree and conclude the trial court did not err when it denied the new trial motion.
The jury was instructed with CALCRIM No. 355 in part as follows: "A defendant has an absolute Constitutional Right not to testify. He may rely on the state of the evidence and argue that the People have proved -- have failed to prove the charges beyond a reasonable doubt. Do not consider for any reason at all the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way."
The jury deliberations were scheduled to begin at 9:00 a.m. on April 7, 2009, and the jury reported it had reached its verdicts at 2:30 that afternoon.*fn1
On June 15, 2009, the trial court granted the defense request for access to jury identification information, based on allegations that the jury discussed defendant's decision not to testify.
On August 14, 2009, the defense filed a motion for a new trial. Juror D.B. submitted a declaration in support of the motion, stating that during deliberations, "several jurors inquired and discussed why the defendant didn't testify." "At least one juror said that defendant must be guilty since he didn't testify. . . . At a later time, another juror asked what defendant was hiding and did he have priors. One other juror commented that he probably didn't want to get himself in trouble." The declaration also stated that, "Prior to our discussion of these issues, the jury was divided as to defendant's guilt or innocence."
At the hearing on the new trial motion, Juror D.B. testified a male juror stated defendant must be guilty if he did not testify, and she told that juror the jury was not supposed to talk about that. Another juror, possibly the foreperson, also reminded the juror not to discuss that fact, but other jurors then made similar comments, like "I agree with him," meaning the first juror to mention the issue.
D.B. testified that there had been a note sent out regarding a possible split in counts, asking the trial court whether the jury could find defendant "not guilty on some but guilty on the others," and she also testified that the jury "had done a couple votes and it was a kind of half-and-half kind of situation." Regarding defendant's testifying, she claimed at one point that "a couple people" discussed it, but later testified that about three or four jurors discussed the issue, however, she may have been including herself and the foreperson in that latter number. She then testified "Quite a few" jurors said that if defendant had been innocent, he would have testified. Eventually, Juror D.B. said, "well, we need to stop, the foreman said, yeah, I agree with her, enough is enough, and it stopped." Juror D.B. conceded that she had told a prosecution investigator "one or two male jurors" had discussed the issue for a total of three or four minutes, and after each comment they were reminded of the court's instruction.*fn2
The People conceded jury misconduct took place, but argued it was not prejudicial, given the brevity of the conduct by one or two jurors, who were promptly reminded not to discuss defendant's failure to testify.
The trial court found misconduct based on the fact that "two jurors said [defendant] did not testify, he must be guilty, or he must have prior convictions, something like that[.]" The trial court further found the misconduct did not expose the jury to unknown information, because the jurors knew defendant had not testified. The trial court also found that when the issue arose, the jurors were reminded not to discuss it, in accordance with the trial court's instruction. "[T]he witness testified it was a very brief discussion, three or four minutes. I do think that the evidence was strong here. I thought this was a strong case." "So, in light of all the evidence, in light of the testimony, the fact that this was a brief conversation, that the jurors were admonished by [Juror D.B.] and the foreperson, and again, looking at [People v. Hord (1993) 15 Cal.App.4th 711 (Hord)], I think that was a very similar case, I don't think that we can say that there was prejudicial misconduct, so I am going to deny the motion for a new trial."*fn3
On appeal, defendant contends the trial court should have granted his motion for a new trial. We disagree.
As stated in a California Supreme Court case involving jurors who discussed a defendant's failure to testify in violation of jury instructions at a capital penalty phase, such misconduct "gives rise to a presumption of prejudice, which 'may be rebutted . . . by a reviewing court's determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual harm.'" (People v. Leonard (2007) 40 Cal.4th 1370, 1425 (Leonard).)
"Some of the factors to be considered when determining whether the presumption has been rebutted are as follows: the strength of the evidence that misconduct occurred; the nature and seriousness of the misconduct; whether the prosecutor's burden was lightened by the misconduct, the effect of the misconduct upon the defense case; and the probability that actual prejudice may have ensued." (People v. Ryner (1985) 164 Cal.App.3d 1075, 1082 (Ryner).)
The record amply supports the trial court's finding that misconduct occurred, but also supports the conclusion that it was relatively minor, lasting three or four minutes, and was committed by only two jurors, who were promptly reminded of the trial court's instructions. Further, given the state of the evidence, it does not seem likely the misconduct lightened the People's burden or impaired the defense ability, already limited by the strength of the evidence against defendant, to argue that there was any reasonable doubt of defendant's guilt. (See Ryner, supra, 164 Cal.App.3d at pp. 1083-1084.)
In People v. Loker (2008) 44 Cal.4th 691, the California Supreme Court held that brief comments during a capital penalty phase about a defendant's failure to testify, followed by a reminder by the foreperson of the trial court's instructions, showed that "the purpose of the rule against commenting on defendant's failure to testify was served, and the presumption of prejudice is rebutted." (People v. Loker, supra, 44 Cal.4th at p. 749; see People v. Avila (2009) 46 Cal.4th 680, 727 [similar facts and holding arising from a capital guilt phase] (Avila).) As stated by a case relied on by the trial court, "Transitory comments of wonderment and curiosity, although misconduct, are normally innocuous, particularly when a comment stands alone without any further discussion." (Hord, supra, 15 Cal.App.4th at pp. 727-728, approved by Avila, supra, 46 Cal.4th at p. 727.)*fn4
In a supplement to his brief, defendant points to a recent decision of this court, People v. Vigil (2011) 191 Cal.App.4th 1474 (Vigil), to argue the strength of the evidence does not dispel the presumption of prejudice, and he faults the trial court's reference to the strength of the evidence. Vigil involved a juror who conducted an experiment and injected the results into the jury deliberations. In that context, we noted that the jury's impartiality had been impaired, and the strength of the evidence of guilt did not dispel such taint: "Where the jury has been exposed to improper outside influences, the test for prejudice is not the strength of the prosecution's case, but whether the impartiality of the jury has been compromised." (Vigil, supra, 191 Cal.App.4th at p. 1488, fn. 5, italics added.) In contrast, in this case the jurors were aware that defendant had not testified. By discussing that fact, the errant jurors were not introducing extra-record information into the jury deliberations, as in Vigil; rather, they were speculating about the meaning or significance of a fact known to the jury. While this was misconduct, it was not misconduct leading to a lack of impartiality, as in Vigil.*fn5
While we do not apply the standard "harmless error" test here (see People v. Marshall (1990) 50 Cal.3d 907, 950-951), it is permissible to look at the evidence to determine whether the misconduct was of the sort likely to lighten the People's burden or impair the defense case. (See Ryner, supra, 164 Cal.App.3d at pp. 1083-1084.) We conclude it was not.
Defendant asserts jurors actually drew adverse inferences, inferring defendant must be guilty because he did not testify, and he must have had something to hide, such as prior convictions, and asserts, "The jurors voicing these views during the deliberative process were able to gain the agreement of other members of the jury."*fn6 However, this argument of actual influence is not supported by the admissible portions of the record. The trial court consistently sustained the prosecutor's objections to evidence concerning the mental processes of the jurors.*fn7 The trial court's sustaining of the objections is not challenged on appeal; this evidence is therefore unavailable for our consideration, despite defendant's repeated references to the excluded evidence. Based on this record, we find "'there is no substantial likelihood that the complaining party suffered actual harm.'" (Leonard, supra, 40 Cal.4th at p. 1425.)
Defendant contends the trial court erred in failing to treat his motion for a new trial based on incompetence of counsel as a Marsden motion. The People concede the point. After careful review of the record, we agree and accept the concession.
The verdicts were reached on April 7, 2009.
On May 11, 2009, defense counsel sought a continuance to prepare a new trial motion, and mentioned that defendant wanted to file a motion for new trial based in part on incompetence of counsel. The trial court indicated that if defendant wanted to move for a new trial based on incompetence of counsel, "we should do that sooner rather than later. Because if it's incompetence of counsel, we'd need to handle it." The trial court agreed that it would likely require new counsel to argue a new trial motion based on incompetence of counsel. Defense counsel suggested continuing sentencing, which was granted.
On May 26, 2009, the parties mentioned a motion defendant had attempted to file.
On May 28, 2009, the issue again arose, as the parties were discussing the jury misconduct issue. At one point defense counsel stated, "I think in the latest filing from Mr. Stuart is a Marsden type of motion. [¶] THE COURT: I think that that's something you probably should discuss with him. [¶] MR. HUMPHREY: That's fine. [¶] THE COURT: See if he wants to proceed on it." The trial court later told defendant he was not the attorney and the court would not accept motions filed by a represented defendant, and defendant should talk to counsel, "He'll listen to what your concerns are and he'll file those in an appropriate manner."
A handwritten document apparently signed by defendant on April 27, 2009, and marked "received" by the court on May 28, 2009, captioned as a motion for "SUBSTITUTE COUNSEL," claims trial counsel was incompetent, and cites Marsden.
Attached to the new trial motion filed by counsel on August 14, 2009, but not discussed in counsel's motion, is a separate motion for a new trial handwritten by defendant. In part, defendant's motion, dated April 22, 2009, alleged incompetence of trial counsel.
Under Marsden, "When a criminal defendant seeks substitution of counsel on the ground that appointed counsel is providing inadequate representation, a trial court must give the defendant an opportunity to explain the reasons for the request. [Citations.] Although no formal motion is necessary, there must be 'at least some clear indication by defendant that he wants a substitute attorney.'" (People v. Mendoza (2000) 24 Cal.4th 130, 156-157.) A claim that counsel is incompetent, in the absence of a request for substitute counsel, is not sufficient. (People v. Richardson (2009) 171 Cal.App.4th 479, 484-485.)
In this case, the People concede that the record shows defendant adequately alerted the trial court to his claim that trial counsel was incompetent and that he wanted substitute counsel, but the trial court never conducted an in camera hearing as required by Marsden. We agree and accept the concession. Accordingly, we remand for a Marsden hearing. (See People v. Ivans (1992) 2 Cal.App.4th 1654, 1667.) If the Marsden motion is granted, the trial court must appoint new counsel to evaluate whether to file a new trial motion.
The judgment is reversed and the cause remanded with directions to the trial court to conduct a Marsden hearing. If the trial court grants the Marsden motion, it shall appoint new counsel to evaluate whether to file a motion for new trial. If the trial court denies the Marsden motion, the current judgment and sentence shall be reinstated.
We concur: BLEASE , Acting P. J. NICHOLSON , J.