California Court of Appeals, Fourth District, Second Division
FOR PARTIAL PUBLICATION[*]
from the Superior Court of Riverside County No. RIF1300143.
Bernard Schwartz, Judge. Affirmed.
D. Johnson, under appointment by the Court of Appeal, for
Defendant and Appellant.
D. Harris and Xavier Becerra, Attorneys General, Gerald A.
Engler, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, Peter Quon, Jr., Randall D.
Einhorn, and Christopher P. Beesley, Deputy Attorneys
General, for Plaintiff and Respondent.
Lamonte Tyree Russell and codefendants, Ronald Edward
Butterfield and Eric Lamichael Deon Williams, were charged
with committing attempted murder (Pen. Code, §§
664, 187; count 1), aggravated mayhem (§
205; count 2), torture (§ 206; count 3), and assault
with a deadly weapon (§ 245, subd. (a)(1); count 4). The
trial court severed defendant's trial from the other two
defendants' trial. The jury found defendant guilty of
aggravated mayhem, torture, and assault with a deadly weapon,
but not guilty of attempted murder. The trial court sentenced
defendant to seven years to life in prison.
appeals his convictions on the grounds there was no unanimous
oral declaration of a guilty jury verdict and the trial court
erred in denying his motion to exclude statements he made
during a police interview before he was advised of his
Mirandarights. Defendant also contends the
trial court violated his constitutional due process rights by
failing to disclose Juror No. 11's identifying
information, and by not subpoenaing Juror No. 11 to testify
regarding juror misconduct disclosed to trial counsel. We
reject defendant's objections for the reasons stated
below and affirm the judgment.
January 12, 2013, Gabriel, a student at the University of
California Riverside, hosted a party at his apartment near
the college campus. Twenty or thirty of his friends attended
the party. Defendant and two companions, Ronald Butterfield
and Eric Williams, who were unknown to Gabriel, entered
Gabriel's apartment uninvited. As they entered, Gabriel
asked the three men to leave. Rather than leaving, they
proceeded further into the apartment and one of the men
pushed an invited guest. Another guest, David,  punched
Williams in the mouth, knocking out a tooth. The invited
guests then pushed defendant and his two companions out of
being ejected, with the door locked behind them, defendant
and his companions rammed the door in an attempt to reenter
the apartment. The men broke the door lock and door frame.
The three men eventually left but threatened to return. One
of the men said they were “coming back with the blaze,
” which Gabriel understood to mean they would bring
guns. Someone called the police, who checked out the scene
and then left. Some of the party guests remained at
Gabriel's party for several hours, fearing the three men
would attack the guests as they left the apartment.
around 3:00 a.m., party guests, Adam, David, Nathan, and
K.K., left the apartment together. As they walked out of the
apartment building, defendant, Butterfield, Williams, and
another individual attacked the departing guests. Williams
had a knife, Butterfield had a metal bat, and defendant had a
hammer. The party guests ran in different directions.
Williams chased Adam, threatening, “Call the police and
I'll kill you.”
Butterfield and defendant chased David and K.K. Butterfield
whacked David with a bat, full force in the back of the head
and upper back. David fell, landing on his back, and did not
move. Butterfield forcefully hit David with the bat again two
more times and stomped on his head. Defendant kicked David a
few times while David lay on the ground. David suffered from
a fractured skull and blood clots on his brain. He remained
in a coma for several days, close to death. David underwent
brain surgery, with hospitalization for 21 days. At the time
of trial, David lacked fine motor skills in his right hand.
a videotaped police interview, defendant admitted he went to
a party at Gabriel's apartment with Williams and
Butterfield, also known as “Biz.” Defendant said
that after he and his companions were ejected from the party,
they happened to be walking around in the area of the
apartment complex when the party ended. Defendant took a bat
out of the car in case he had to defend himself and his
friends. Defendant anticipated they would “get into
something” because Williams's teeth had just been
admitted being at the scene of the attack on David but denied
participating in the attack and denied chasing anyone. He
claimed he just stood nearby with a bat for protection.
Defendant denied seeing what the others were doing because he
was not next to them. He was looking around to make sure no
one, including the police, sneaked up on them.
ORAL JURY VERDICT
objects that there was no unanimous oral declaration of the
jury returned guilty verdicts on counts 2, 3, and 4, and a
not guilty verdict on count 1. Defense counsel requested the
jury be polled “[j]ust once as to all counts.”
The court asked the jurors to “respond ‘yes'
or ‘no' if these are your individual
verdicts.” The court clerk polled each juror. When the
clerk polled Juror No. 11 (TJ11), the juror said
“[n]o.” After the clerk polled the last juror,
Juror No. 12, the court attempted to confirm and clarify
TJ11's negative response:
COURT: Did we hear from Juror No. 11?
I said ‘No.'
COURT: You said ‘No'?
Are we doing Count 1? I'm sorry.
COURT: No. We're asking you if the verdicts that were
read, Count 1 not guilty, guilty Counts 2, 3, and 4, if those
were your individual verdicts.
COURT: All right. Then both sides stipulate the verdicts can
be recorded as read?
Counsel]: Yes, your Honor.
Yes, your Honor.”
trial court then informed the jury that their jury service
the essential elements of the right to jury trial “are
the requirements that a jury in a felony prosecution consist
of 12 persons and that its verdict be unanimous. [Citations.]
[¶]... The requirement that 12 persons reach a unanimous
verdict is not met unless those 12 reach their consensus
through deliberations.... The elements of number and
unanimity combine to form an essential element of unity in
the verdict.... ‘Unanimity obviously requires that each
juror must vote for and acquiesce in the verdict.'
[Citation.] The jurors must appear in court and be asked
‘whether they have agreed upon their verdict, and if
the foreman answers in the affirmative, they must, on being
required, declare the same.' (Pen. Code, § 1149.)
Significantly, it is ‘the oral declaration of the
jurors, not the submission of the written verdict forms
[that] constitutes the return of the verdict.'
[Citations.] Thus, ‘there is no verdict absent
unanimity in the oral declaration.' [Citation.]”
(People v. Traugott (2010) 184 Cal.App.4th 492,
juror makes equivocal or conflicting statements as to whether
the juror has assented to the verdict freely and voluntarily,
a direct question of fact within the determination of the
trial judge is presented. (People v. Superior Court
(1967) 67 Cal.2d 929, 932.) “The trial judge has the
opportunity to observe the subtle factors of demeanor and
tone of voice which mark the distinction between acquiescence
and evasion of individual choice. The trial judge can
determine whether returning the jury for further deliberation
is likely to secure a real verdict, or whether the juror has
really disagreed so that the verdict is not unanimous and not
likely to become so.” (Ibid.) Under such