P. v. Davis

Filed 9/6/07 P. v. Davis CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed.

A jury convicted Bernard Davis of second degree murder (Pen. Code,^[1] 187, subd. (a)) and found true firearms allegations within the meaning of section 12022.53, subdivision (d), personal and intentional discharge of a firearm causing death, and section 12022.5, subdivision (a), personal use of a firearm in the commission of a felony. Davis admitted a prison prior. The trial court sentenced him to a prison term of 40 years to life and imposed an additional one year for the prior prison term enhancement. On appeal, Davis argues the jury committed misconduct in conducting an experiment contrary to its instructions and the court abused its discretion in denying his motion for a new trial based on that misconduct. We conclude the experiment was within the line of evidence presented, and thus there was no jury misconduct. Accordingly, we affirm.

FACTS

A. Prosecution Case

In October 2003 Marcela Hlavata and her son moved in with appellant, appellant's daughter and appellant's mother Marta Davis (Marta). On October 10, 2003, appellant entered a 21-day residential drug treatment program as a condition of parole. While in the program, appellant continually called Hlavata and attempted to monitor her whereabouts because he was concerned she was spending time with other men. On October 26, 2003, appellant left the rehabilitation center without permission and returned home. At first, appellant told his mother he was released early from the program. Appellant later claimed he was concerned about his family after Hlavata told him someone tried to enter the apartment while he was away.

At approximately 9:00 or 9:30 p.m. Marta went upstairs to bed. Appellant, Hlavata and Hlavata's son, who was asleep on the couch, stayed downstairs. Early the next morning Marta heard a gunshot. Marta came downstairs and found Hlavata on her stomach on the floor, bleeding from the head. Hlavata's son was still lying on the couch. Appellant was standing at the front door and denied responsibility. Marta claimed she did not see appellant holding a weapon. Marta called 911 and reported the incident as a suicide. Appellant fled the residence.

Hlavata was transported to a local hospital where she later died. Marta initially told police that female gangsters or a man appearing at the apartment two days earlier were possible suspects. Marta then said she was tired of protecting her son and would tell the truth. Marta stated that she last saw appellant downstairs with Hlavata. After hearing a gunshot, Marta said she came downstairs and found Hlavata on the floor with a gunshot wound to her head. Marta stated appellant was standing by the door and said "I didn't do it." The police were unable to find a weapon. Appellant was arrested several days later.

The medical examiner testified the cause of death was a gunshot to the head and the shot was fired from two or more feet away. The bullet recovered from Hlavata was either a .38 special or a .357 Magnum, like a bullet found in Hlavata's purse. The firearms expert testified a typical .357 caliber Magnum revolver would need approximately four and a half pounds of pressure on the trigger to fire in single action mode and ten and a half pounds of pressure to fire in double action mode. The expert testified that while it is theoretically possible for a gun to go off accidentally, most guns have safety features designed to prevent accidental discharges. The expert testified he never saw an accidental firing of a .357 Magnum.

B. Defense Case

Appellant admitted acquiring a .357 revolver in late September or early October 2003. Appellant testified that on the night of October 26 Hlavata obtained the gun and was lying on the floor. Appellant admitted both he and Hlavata used methamphetamine that night. Appellant stated Hlavata had one hand on the gun but did not point it at him. Appellant took the gun away from her and slid it under a blanket. Appellant claimed Hlavata then started expressing anxiety about her weight and whether she was thin enough. Appellant asked Hlavata if she thought he was still "messing around" with his daughter's mother. Hlavata responded with "Fuck you, Spanky," in a "halfway playful tone." Appellant then grabbed the gun, cocked it and pointed it at Hlavata.

Appellant claimed he wanted to see Hlavata's reaction to the sound of the gun being cocked. Appellant stated the gun went off without him pulling the trigger. Appellant stated his finger was not on the trigger but was outside the trigger guard. Appellant claimed he just "tapped the trigger" and the gun went off due to the forward motion of his hand. Appellant stated he was in shock because he did not know the gun was loaded. Appellant admitted taking the gun with him when he left but denied knowing what became of it.

DISCUSSION

Jury Misconduct

Appellant argues the jury committed misconduct in conducting an experiment contrary to its instructions. Appellant also argues the trial court abused its discretion in denying appellant's motion for new trial based on the misconduct and thus violated his Fifth, Sixth and Fourteenth Amendment rights.

A. Background

Appellant filed a motion for new trial on the grounds of jury misconduct. Appellant submitted two juror statements obtained by a defense investigator.^[2] In the first declaration, Juror No. 5 stated the jury reached a verdict of second degree murder prior to deliberations on the firearm allegations. Juror No. 5 stated some jurors had problems with the intentional discharge allegation. One of the jurors then conducted an experiment based on the firearms expert's testimony that a typical cocked .357 caliber Magnum revolver would require four and a half pounds of pressure on the trigger to fire. The juror explained "how to convert FL OZ to OZ and how to calculate 4.5 pounds of pressure out of his water bottle." Some jurors then participated in the experiment by lifting the bottle with a finger. Juror No. 5 did not participate in the experiment.

In the second declaration, Juror No. 4 described the experiment as pulling up a four and half pound bottle of water with a finger. Juror No. 4 stated the purpose of the experiment was to allow jurors to feel four and a half pounds of pressure. Juror No. 4 participated in the experiment.

For the purpose of the motion for new trial, the trial court assumed the statements were accurate statements of fact.^[3] The court found the experiment "within the lines of offered evidence" and permissible under case authority. The court held the experiment did not constitute prejudicial misconduct and therefore denied the motion.

B. Law

In Higgins v. L. A. Gas & Electric Co. (1911) 159 Cal. 651, 657, the California Supreme Court stated a jury "may carry out experiments within the lines of offered evidence [which do not] invade new fields." "'[J]urors must be given enough latitude in their deliberations to permit them to use common experiences and illustrations in reaching their verdicts. [Citations.]'" (People v. Cumpian (1991) 1 Cal.App.4th 307, 316, citing United States v. Avery (6th Cir. 1983) 717 F.2d 1020, 1026.) Jury experiments are "prohibited only where the result is the production of 'new' evidence." (People v. Cooper (1979) 95 Cal.App.3d 844, 853.) On an appeal from an order denying a motion for new trial based on jury misconduct, we review the trial court's ruling de novo to determine if there was misconduct, and if so, whether the misconduct was prejudicial. (People v. Cumpian, supra, 1 Cal.App.4th at p. 863-864; People v. Wisely (1990) 224 Cal.App.3d 939, 947.)

C. Analysis

Appellant contends that had the jury not conducted the experiment, it is reasonably likely appellant would have been convicted of a lesser offense than second degree murder. However, according to the jurors' statements, the experiment was conducted after the jury reached a verdict on the second degree murder charge. Those statements are generally corroborated by the court minutes. Therefore, irrespective of the experiment, the jury would have found appellant guilty of second degree murder.

With respect to the firearms allegation, the jury's experiment did not invade a new field and was within the lines of the evidence offered. "The general rule is that the jurors may engage in experiments which amount to no more than a careful examination of the evidence which was presented in court." (People v. Cooper, supra, 95 Cal.App.3d at pp. 853-854.) In considering the firearms allegation, the jury had to determine whether appellant "personally and intentionally discharge[d] a firearm" as defined under section 12022.53, subdivision (d).

During the trial, the firearms expert testified that a .357 caliber Magnum in single action mode would require four and a half pounds of pressure on the trigger to fire. More pointedly, appellant testified he tapped the trigger and the gun went off. The jury used the evidence presented at trial to measure the weight of four and a half pounds of pressure in determining whether defendant intentionally pulled the trigger. Thus, the experiment was within the "scope and purview of the evidence" presented. (Higgins, supra, 159 Cal. at p. 657.) Accordingly, there was no error in denying the motion for new trial.

DISPOSITION

The judgment is affirmed.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

McDONALD, J.

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

^[2] There was a third statement prepared by the investigator, but the juror was reluctant to sign the statement and died before the hearing on the motion for new trial.

^[3] The statements are somewhat unusual. They consist of the investigator making a written summary of each juror interview and the jurors then declaring that the investigator's report was true. In any event, for purposes of this opinion we will assume the reports of the jurors' comments are accurate statements.