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People v. Russell

California Court of Appeals, Fourth District, Second Division

March 17, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
LAMONTE TYREE RUSSELL, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION[*]

         APPEAL from the Superior Court of Riverside County No. RIF1300143. Bernard Schwartz, Judge. Affirmed.

          Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala 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.

          OPINION

          CODRINGTON J.

         I

         INTRODUCTION

         Defendant Lamonte Tyree Russell and codefendants, Ronald Edward Butterfield and Eric Lamichael Deon Williams, were charged with committing attempted murder (Pen. Code, §§ 664, 187;[1] 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.

         Defendant 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 Miranda[2]rights. 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.

         II

         FACTS

         On 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, [3] punched Williams in the mouth, knocking out a tooth. The invited guests then pushed defendant and his two companions out of the apartment.

         Upon 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.

         At 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.”

         Meanwhile, 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.

         During 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 knocked out.

         Defendant 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.

         III

         UNANIMOUS ORAL JURY VERDICT

         Defendant objects that there was no unanimous oral declaration of the guilty verdicts.

         A. Procedural Background

         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:

         “THE COURT: Did we hear from Juror No. 11?

         “TJ11: I said ‘No.'

         “THE COURT: You said ‘No'?

         “TJ11: Are we doing Count 1? I'm sorry.

         “THE 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.

         “TJ11: Yes.

         “THE COURT: All right. Then both sides stipulate the verdicts can be recorded as read?

         “[Defense Counsel]: Yes, your Honor.

         “[Prosecutor]: Yes, your Honor.”

         The trial court then informed the jury that their jury service had concluded.

         B. Applicable Law

         Among 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, 500.)

         When a 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 ...


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