(Super. Ct. No. 03F08566)
The opinion of the court was delivered by: Robie , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a reversal by this court of the first degree murder conviction of defendant Bobby Chiu and attached gang enhancements, the People retried defendant. Defendant was not the shooter, so the People's theory of liability was that either he aided and abetted the murder or he perpetrated the offenses of disturbing the peace or assault, the natural and probable consequence of which was murder. Based on one of these theories, the jury found defendant guilty of first degree murder. It also found true a gang enhancement.
Defendant appeals, raising contentions relating to juror misconduct, closing the courtroom, prosecutorial misconduct, insufficient evidence, and instructional error, among others. We agree with two: some of the jury instructions were wrong because they did not allow the jury to consider whether defendant might have been guilty of only second degree murder under the natural and probable consequence doctrine, even if the shooter committed first degree murder; and collateral estoppel prevented defendant's retrial on the gang enhancement. We therefore strike the gang enhancement and conditionally reverse defendant's first degree murder conviction. We remand for a retrial on first degree murder only unless the People accept a reduction of the conviction to second degree murder. Because defendant will have to be either retried or resentenced, we do not reach defendant's sentencing arguments relating to cruel and unusual punishment and the imposition of jail and booking fees.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2003, McClatchy High School acquaintances Sarn Saeteurn and Mackison Sihabouth argued over instant messaging about two girls. Saeteurn challenged Sihabouth to an after school fight the next day in front of Famous Pizza, which was owned by Sihabouth's parents. Next door to Famous Pizza was an internet cafe named E-Channel. Saeteurn told Sihabouth he was going to bring his "homies" with him and would shoot Sihabouth's father if his father tried to break up the fight. Saeteurn's threats made Sihabouth "'[h]ella raged,'" and he called Simon Nim, whom he knew from E-Channel. Nim was a member of the Hop Sing gang, as were defendant, Tony Hoong, and Rickie Che.*fn1 Sihabouth also knew defendant and Hoong from E-Channel. Defendant and Che were friends.
The next day, American Legion High School student Toang Tran learned about the fight from defendant, who was a classmate. Defendant asked Tran if he "'want[ed to] see someone get shot,'" said there was going to be a fight over a girl, and defendant's "friend" would shoot if his "friend feels pressured."
Sihabouth showed up for the fight in front of Famous Pizza and saw a crowd of Nortenos and Asians. He decided to leave because he thought he was "going to get caught for this fight." Saeteurn failed to show up because he learned that Hop Sing members were going to be there and believed they "'are crazy and they try to kill people.'"
Also waiting in front of Famous Pizza that day was McClatchy High School student Teresa Nguyen, looking for her boyfriend, Antonio Gonzales, who was a student at American Legion. When Nguyen found Gonzales, she greeted him with a hug and a kiss. Defendant then said something to Nguyen, as though he was mocking her. Nguyen asked if he was mocking her, and defendant started snickering. Nguyen told him, "'Shut up.'" Defendant and Gonzales then "start[ed] exchanging [fighting] words." Defendant called Gonzales a "bitch" and "call[ed] [him] out."
Gonzales and defendant walked toward each other. Gonzales's friend, Roberto Treadway, told Gonzales, "'I got your back.'" On defendant's side were Che and Hoong. Che punched Treadway. Defendant swung at Gonzales, and Gonzales swung back. Defendant then "body slammed" Gonzales on Gonzales's back and started hitting him. Another one of Gonzales's friends, Lareina Montes, unsuccessfully tried to grab Gonzales to stop the fighting. Gonzales's cousin, Angelina Hernandez, hit defendant with her fists, which allowed Gonzales to get back up and resume fighting defendant. Then Roberto Reyes joined in the fight. Reyes punched defendant once, causing him to bleed. Treadway's cousin, Joshua Bartholomew, hit defendant hard on the head. During the fighting, defendant said, "'Grab the gun.'" Che got a gun from the trunk of a car. As Bartholomew and Treadway "t[oo]k off running," Hoong pulled out a knife and stabbed Treadway in the arm. Che pointed the gun at Gonzales's face and said, "'Run now, bitch, run.'" Gonzales "t[oo]k [Che] up on that invitation." Che then pointed the gun at Treadway's head but hesitated. Defendant and Hoong yelled "[s]hoot him," "[s]hoot him." Che shot Treadway dead. Che, defendant, and Hoong fled together in a car.
Defendant testified on his own behalf. On the day Treadway was killed, defendant had heard, as did "[t]he whole school," "[t]here was going to be a fight between two kids . . . fighting over a girl." He did not know or think Che had a gun. He mocked Nguyen in an attempt to "pickup on her." A fight began between him and Gonzales over Nguyen. While defendant was fighting Gonzales, defendant "continually felt punches into the back of [his] head." Those punches "never stopped." He "felt [his] body going weak." He also received a blow to his face and was bleeding from his nose. Nobody was helping him. He never called for anybody to get a gun. Gonzales ran away when Che pulled out a gun. Pulling the gun out was not something defendant expected or wanted Che to do.
There Was No Error In The Court's Investigation And Rulings Regarding Juror Misconduct
Defendant contends the trial court denied him due process by: (1) improperly investigating a possible claim of juror misconduct; (2) removing a holdout juror; and (3) allowing deliberations to resume with a new juror instead of declaring a mistrial. We find no error in the court's investigation and rulings on juror misconduct.
During deliberations, the jury sent the court a note stating, "We are stuck on Murder I or II due to personal views. What do we do?" Two hours and 13 minutes later, the jury sent the court another note stating, "We are at a stale mate [sic]." The court interpreted the notes as follows: They "can be read to read due to personal views, we are at a stalemate. And one reasonable interpretation of that is that there is personal view or opinion outside of the evidence and law which is affecting one or more opinions. [¶] The other is that they just have different personal views. But given the whole here, there is at least a reasonable possibility of juror misconduct." Over defense objection, the court questioned the foreperson. The juror answered "Yes" when the court asked whether "personal views" meant "one or more jurors have reached different opinions based on something personal to them other than the law or the evidence." The foreperson explained in response to further questioning from the court that Juror No. 1 "had a conflict between the morality of . . . what we were doing and the law that had to be applied."
The court then questioned some of the other jurors and then questioned Juror No. 1. Thereafter, the court denied the defense's motion for a mistrial that had been based on the manner in which the court conducted the investigation of juror misconduct and granted the People's motion to remove Juror No. 1.
Defendant's first contention is the court was "unwarranted" in inquiring about possible juror misconduct because there was no "cogent evidence" of juror misconduct, citing People v. Cleveland (2001) 25 Cal.4th 466. In Cleveland, the California Supreme Court quoted from People v. Johnson (1992) 3 Cal.4th 1183 at page 1255, that absent "'considerably more cogent evidence of coercion,'" the trial court in Johnson "properly declined to inquire into whether some jurors were coercing the dissenting juror." (Cleveland, at p. 479.) Cleveland prefaced that comment with the relevant inquiry for our purposes on appeal: "'The decision whether to investigate the possibility of juror bias, incompetence, or misconduct--like the ultimate decision to retain or discharge a juror--rests within the sound discretion of the trial court. [Citation.] . . . [¶] As our cases make clear, a hearing is required only where the court possesses information which, if proven to be true, would constitute 'good cause' to doubt a juror's ability to perform his duties and would justify his removal from the case. [Citation.]'" (Cleveland, at p. 478.)
Here, the court did not abuse its discretion in investigating the possibility of juror misconduct. In deciding to conduct its investigation, the court noted that "given the whole here, there is at least a reasonable possibility of juror misconduct." The "whole here" included the following three salient facts. One, defense counsel had recently given a closing argument that the court described as containing "a definite strain of asking for sympathy not just because of [defendant's] age, but for the comparative fault . . . by the defendant versus the other participant in this crime." It was because of this inappropriate argument the court gave a special instruction that told the jurors they were to disregard arguments by counsel "[i]f either counsel suggested in any way that you may consider penalty or punishment . . . or sympathy for or against the defendant." Two, the day before the jury sent the court the note regarding "personal views," the court had received a note from one of the jurors (who turned out to be Juror No. 1) that the juror was "feel[ing] like [she was] going to throw up" and asked if "someone [could] stand in for [her]." When the court sent a note to Juror No. 1 asking whether she felt well enough to continue with deliberations that afternoon, she responded in writing, "NO!" This note and the juror's vehement response she could not continue with deliberations suggested the possibility something was wrong. And three, the "personal views" note made it plausible there was a juror who was injecting his or her personal views in the case that were not based on the facts or law that would justify the removal of that juror from the case. Given these facts, the court did not abuse its discretion in investigating the possibility of juror misconduct.
Defendant's second contention is the court abused its discretion in removing Juror No. 1 because it was not established to a demonstrable reality she was unable to withstand pressure from other jurors and unable to follow the law of aiding and abetting. "'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.] . . . [H]owever, . . . a juror's inability to perform as a juror "'must appear in the record as a demonstrable reality.'" [Citation.]'" (People v. Cleveland, supra, 25 Cal.4th at p. 474.) Here, there was no abuse of discretion. The juror's inability to perform as a juror was based on substantial evidence in the form of her responses and the trial court's factual findings regarding her demeanor.
There was substantial evidence Juror No. 1 could not withstand pressure from the other jurors. Juror No. 1 admitted she felt she was "being pressured into changing how [she] fe[lt]." She said she was "going to wind up changing [her] vote" "just because of the people [who] [she] was dealing with in the jury" and her "vote w[ould not] be truthful in the long run." When the court asked her, "This is what I hear you telling me. Saying, Judge, there is just pressure in the jury process and I'm getting pressure. And to be truthful with you, I got to tell you, I think I may change my vote in a way that is not truthful just in response to that pressure; is that what you are telling me?" Juror No. 1 responded, "Unfortunately, yes." In relying on these responses to remove Juror No. 1, the court stated that before Juror No. 1 responded, "Unfortunately, yes," the juror "pause[d]" and "actually looked down again with tears in her eyes." The court continued that it had "never made a stronger demeanor finding than [it was] making at this time that [the court] believed her opinion as articulated at that time and in those words represented her true position . . . . This is a juror [who] the Court believes will move in response to just numerical breakdown and change her vote as she so forthrightly and in such a moving way admitted."
There was also substantial evidence Juror No. 1 was unable to follow the law. The court asked her if she could "apply th[e] law in reaching [her] verdict in this case as [she] s[aw] fit based on the evidence, or is . . . the law is so different from [her] personal beliefs in this area that [she] c[ould]n't do that." She responded, "I don't feel that I would be able to. It's taken a lot. It has taken its toll on me at least. I have only been here in tears, that's not good. I am just not, ah, I just don't feel that it's right in this situation here." The court then asked, "Are you saying, hey, Judge, I want you to know there is a reasonable likelihood or a probability . . . I am going to have to ignore some of this law because morally I don't like it. I don't think it is right?" Juror No. 1 responded, "If I am going to be honest, I would say yes." The trial court found this "moment" to be "crucial" because prior to that, Juror No. 1's answers "had been somewhat equivocal." The trial court explained the "moment" was "so arresting" that defense counsel asked to approach and although the court "did not do that," there was a "dominant inference, and it was communicated to this juror . . . that [defense counsel] wanted her to stay on as a juror" and after that "there was a startling . . . change in the pattern of her answers. After that the responses were bland, straightforward, consistent with the voir dire questions that she answered in her questionnaire . . . ." Based on this state of the record and the demeanor findings it had made, the court stated "there is a demonstrated reality . . . she is unable to follow the law, not in the sense that there is not evidence there, but as probed that there was just a moral, fundamental objection to the law itself."
Finally, we reject defendant's third contention that even if Juror No. 1 was properly removed, the court should have granted the defense's mistrial motion "[b]ecause deliberations had progressed to . . . the point of stalemate, too far to begin anew . . . ." However, it is well settled "such substitution is permissible when good cause has been shown and the jury has been instructed to begin deliberations anew." (People v. Collins (1976) 17 Cal.3d 687, 691.) Here, the jury was instructed, "you 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 earlier deliberations had not taken place."
The Court Did Not Violate Defendant's Sixth Amendment Right In Excluding Certain People From The Courtroom For A Short Amount Of Time
After the court had finished delivering its oral ruling on the mistrial motion and had started delivering its oral ruling on the motion to remove Juror No. 1, the court asked a man in the audience to step out of the courtroom as follows: "Sir, would you step out of the courtroom, please." Defense counsel "object[ed] to closing the courtroom." The court overruled the objection as follows: "These are other OX[*fn2 ] people on another calendar who are here to be voir dired. They are not here to observe this trial. They are here on another calendar that the Court hears . . . . [¶] We'll accommodate them out there, plug [them] into their individual attorneys, they go off down the hallway to do their examination, and at the morning break, if there's problems, I hear them. But they are unrelated to this case. They are not here for this case." The court then went on to deliver its oral ruling removing Juror No. 1, which spanned 13 pages of reporter's transcript. On appeal, defendant claims the court violated his Sixth Amendment right to a public trial. We disagree.
"Every person charged with a criminal offense has a constitutional right to a public trial, that is, a trial which is open to the general public at all times. (See U.S. Const., amends. VI, XIV; Cal. Const., art. I, § 15; see also Pen. Code, § 686, subd. 1.)" (People v. Woodward (1992) 4 Cal.4th 376, 382.) Here, at least one person was excluded from the court's oral pronouncement of its ruling removing Juror No. 1 and a reasonable inference from the record is others were as well.*fn3 The issue is whether this exclusion was "de minimis" and therefore did not violate the Sixth Amendment. (Woodward, at pp. 385-386 [where the court closure "did not exclude pre-existing spectators, did not include any of the evidentiary phase of the trial and lasted only one and one-half hours," the closure was "de minimis"].) We hold it was. The court did not clear the courtroom of all spectators. Rather, the trial court asked one person in the courtroom to leave who was there on another matter, and its comments suggested that others who might have wanted to enter for courtroom for business ...