P. v. Cervantes

Filed 1/19/10 P. v. Cervantes CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles F. Palmer, Judge. Modified and affirmed.

Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

Antonio Romero Cervantes (appellant) was convicted by a jury of first degree murder, attempted murder, and assault with a firearm with findings that he personally used a firearm in the commission of all three offenses. (Pen. Code, 187, subd. (a), 664/187, subd. (a), 245, subd. (a)(2), 12022.5, subd. (a).)[1] He was sentenced to 27 years to life and a consecutive determinate term of three years. He further was ordered by the court not to own, use, threaten to use, possess, buy, or sell any deadly or dangerous weapon. The trial court also imposed and stayed a parole revocation fine of $200. He appeals, contending that the court erred by: 1) refusing to strike the entire jury panel when it discovered misconduct by one juror; 2) imposing the prohibition of owning or possessing deadly or dangerous weapons; and 3) imposing the parole revocation fine. We find his first contention to be without merit, but agree with the remainder of his contentions. We modify the judgment and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

As appellant does not challenge the sufficiency of the evidence, it will suffice to observe that, in December 1982, appellant was in his apartment building in Los Angeles when he fired several shots at Jose Ramirez, a neighbor. Joses brother, Jesus, ran towards Jose and appellant aimed his gun at Jesus, but the gun did not discharge. Jose died of multiple gunshot wounds.

Trial commenced on April 21, 2008, before a panel of 70 prospective jurors. Juror No. 3 was seated in the first group. He informed the court that his wife was an attorney and that he had several friends in the Sheriffs Department and in local police departments. When the judge asked if anything that his friends or his wife had said caused him to believe he could not be impartial, he said, Not specifically in this case, but in general. He said it would be difficult to put aside his feelings and that I think that somebody thats sitting in this courtroom at this point that committed a crime in 1982 probably is guilty. Hes sitting there. The court told him that juries routinely find defendants not guilty, and that it would be instructing him that it would be his duty to listen to the evidence and to determine whether the People had met their burden of proof. Juror No. 3 then replied, I would have to follow your instructions, but I would come with some bias.

A number of other prospective jurors (Nos. 4, 5, 6, 9, 14, 15, & 18) indicated that they had known people in law enforcement. The court asked each of them if anything had happened that would cause them to believe they could not be fair and impartial. None of those jurors answered in the affirmative. The court then asked Juror No. 3 specifically if he would follow its instructions regarding the allegations which brought a person to court. Juror No. 3 responded that he would. Juror No. 3 then stated he had two friends who had been arrested by Los Angeles police officers within the last 24 months but he did not have any feelings as to whether the police acted appropriately.

Then the court specifically instructed Juror No. 3 about a defendants constitutional right not to testify. Juror No. 3 stated, I would feel somebody who cant speak for themselves and tell whether or not they are innocent, I would have a problem with that. Ive always believed that. None of the other prospective jurors indicated that he or she would have any difficulty applying the law as instructed, even if he or she did not like the law.

After the prospective jurors left for the day, defense counsel expressed concern and requested that the court order a new panel. The court denied this request.

The following day, April 22, 2008, defense counsel reported to the court that his investigators friend overheard Juror No. 3 in the hallway expressing his opinion that appellant was guilty to Juror No. 4 and another prospective juror named Lindsey. When the court called in the prospective jurors, the prosecutor began questioning the entire panel. In response to specific questions, Juror No. 3 indicated that it would be very difficult for him to be fair and impartial because he had preconceived notions and biases. He admitted that he did not know appellant, had never seen him before, and did not know the police or other witnesses in the case. He stated that he believed appellant was guilty because he had been arrested and was standing trial. When questioned, the other prospective witnesses indicated that they could be fair and impartial.

Later that day, Juror No. 3 was called to the stand and asked about the conversation in the hallway with other jurors. He admitted that he and Juror No. 4 were speaking in general terms about whether or not somebody was arrested and brought to trial, as to whether or not they were guilty, and it was my opinion that if somebody was arrested, that they would be guilty, yes. He then said that they talked about a variety of other things such as politics and the war. He believed Juror No. 4 agreed with him, but did not know whether she was simply being polite. Juror No. 3 also informed the court that another juror named Lindsey stood near where he and Juror No. 4 spoke.

When questioned by the court, Juror No. 4 said she did not remember Juror No. 3 specifically stating that appellant was guilty, only that he expressed to her his opinion that anyone who was arrested and brought to court was guilty. She said that she did not agree with him. The court also questioned Lindsey, who indicated that he disagreed with Juror No. 3.

The court then granted the defenses request to strike Juror No. 3 for cause and continued with jury selection. Juror No. 4 was eventually dismissed on a peremptory challenge by the defense. Defense counsel renewed his motion to strike the entire panel, which the court denied.

DISCUSSION

I. Juror Dismissal

A criminal defendant has the constitutional right to have a fair and impartial jury determine guilt or innocence. (U.S. Const., 7th & 14th Amends.; Cal. Const., art. I, 16; People v. Wheeler (1978) 22 Cal.3d 258, 265.) Code of Civil Procedure section 223 provides in pertinent part that, The trial courts exercise of its discretion in the manner in which voir dire is conducted . . . shall not cause any conviction to be reversed unless the exercise of that discretion has resulted in a miscarriage of justice, as specified in Section 13 of Article VI of the California Constitution.

[T]he trial court possesses broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required. . . . [D]ischarging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant. (People v. Medina (1990) 51 Cal.3d 870, 889.)

The conclusion of a trial judge on the question of individual juror bias and prejudice is entitled to great deference and is reversed on appeal only upon a clear showing of abuse of discretion. (People v. Martinez (1991) 228 Cal.App.3d 1456, 1466 (Martinez).)

In order to determine whether the trial court permitted the jury panel to be exposed to views so biased and prejudiced that we must presume, absent more extensive admonition, the panel as a whole could not be fair and impartial, we must look to the totality of the circumstances surrounding jury selection. (Martinez, supra, 228 Cal.App.3d at p. 1465.) In Martinez, certain jurors made hostile comments in response to defense counsels questioning, and the remaining jurors were questioned regarding the impact of those comments. Their responses did not reflect a bias or prejudice against the defendant. The trial court intervened and reiterated the principles of determining guilt or innocence. None of the jurors indicated that he or she would be unable to set aside his or her beliefs or opinions in the case against the defendant and judge the facts fairly and impartially. (Id. at pp. 1465-1466.) The denial of the motion to discharge the entire panel was upheld on appeal. (Id. at pp. 1466-1467.)

Appellant relies on Mach v. Stewart (9th Cir. 1998) 137 F.3d 630, in which the defendant was accused of sexual conduct with a minor. One of the potential jurors indicated in voir dire before the entire venire panel that she was a social worker who dealt with child sexual assault cases. She stated that in three years while she was employed in that position, an actual sexual assault was confirmed in every case in which it was alleged. The potential juror was dismissed for cause, but the court denied the defense motion to dismiss the entire panel. (Id. at pp. 631-632.) The Ninth Circuit observed that the court should have conducted further voir dire to determine whether the panel had in fact been influenced by the jurors seeming expertise on the subject. The court presumed that at least one juror had been influenced because of the nature of the potential jurors statements, the certainty with which she delivered them, and the number of years of experience she had dealing with the subject. (Id. at p. 633.)

In this case, in contrast to Mach, Juror No. 3 identified himself only as someone who was acquainted with law enforcement personnel. He was not involved with the police department nor did he have any other occupational expertise with criminal law or procedure. He stated his beliefs without referring to statistics or other facts upon which his opinions were based. Moreover, the jurors to whom he had spoken were specifically questioned about their conversations and denied that they agreed with his viewpoint. The rest of the prospective jurors indicated that they could judge the case fairly and were aware of the guiding legal principles. We cannot presume any prejudice from this record. We find no abuse of discretion by the trial court in denying the motion to dismiss the entire panel.

II. Weapons Prohibition

Appellant contends that the court erred in prohibiting appellant from owning, using, threatening to use, possessing, buying, or selling deadly or dangerous weapons because only the Board of Prison Terms can set the conditions of parole. ( 3053; In re Morrall (2002) 102 Cal.App.4th 280, 286-289.) The People concede that appellant is correct. The order regarding the prohibition on deadly and dangerous weapons must therefore be stricken. Appellant is still, however, prohibited from possessing firearms ( 12021, subd. (a)(1)) or possessing any dangerous or deadly weapon while in prison ( 4502, subd. (a)).

III. Parole Revocation Fine

At sentencing, the court imposed and stayed a $200 parole revocation fine.

Section 1202.45, the statute authorizing such a fine was enacted in 1995.[2] Appellant was convicted of crimes that occurred in 1982. Appellant contends, and the People concede, that the imposition of the fine violates the ex post facto clauses of the United States and California Constitutions. We agree that the fine must be stricken. (People v. Flores (2009) 176 Cal.App.4th 1171, 1181-1182; People v. Callejas (2000) 85 Cal.App.4th 667, 670.)

DISPOSITION

The clerk of the superior court is directed to strike the $200 parole revocation fine imposed pursuant to section 1202.45; to strike the portion of the judgment prohibiting appellant from owning, using, threatening to use, possessing, buying, or selling deadly or dangerous weapons; and to deliver an amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P.J. MANELLA, J.

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] Section 1202.45 provides that: In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine . . . shall be suspended unless the persons parole is revoked.