Filed 10/11/17 P. v. Dixon CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T. Steffen, Judge.

Robert H. Derham, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Joseph Leroy Dixon was charged with murder and associated enhancements for the shooting death of Shannon Case. On April 15, 2014, appellant was convicted of first degree murder (Pen. Code, § 187, subd. (a)) and special allegations of premeditation and deliberations and personal use of a firearm were found true. A separate court trial was held and a prior serious felony allegation was found true. Appellant was sentenced to an aggregate term of 75 years to life in state prison.

Appellant presents a single claim on appeal. He asserts that he was denied his right to a unanimous jury verdict as the trial court failed to instruct the jury to start deliberations over after a juror was discharged and an alternate juror was seated. Upon review, we affirm.

factUAL AND PROCEDURAL BACKGROUND

I. Prosecution’s Case

On the night of April 3, 2009, Shannon Case was drinking with several friends, including Chris Saini. Sometime after midnight, Case, Saini and Saini’s cousin left to get food from “Jack In The Box.” While driving, Case got a call from her friend Desiree Mills who wanted to meet at Roberson Park. Mills and Madeline Lopez,[1] Mills’s former aunt by marriage, called Case several times to arrange a meeting at the park. Case drove and parked on the street in front of the park, and she, Saini and Saini’s cousin continued drinking in the car.

As they were sitting in the car, Saini and his cousin saw another car drive down the street towards Case’s car and saw and heard gunshots. They both ducked down and were not able to get a good look at the car or determine if the shots were coming from the other car. Saini heard the window of Case’s car breaking and realized that the shots were being fired at her car. After the shooting stopped, he saw that Case had been shot in the head. Saini and his cousin attempted to provide aid to Case and called law enforcement; however, Case was unresponsive.

Modesto Police Department officers arrived at the scene of the shooting at 1:28 a.m. on April 4, 2009. There was a pool of blood around Case’s head and three bullet wounds to her thighs. Police investigators found evidence of five rounds fired at Case’s car, one striking a tire, one through the side mirror, and two that impacted the driver’s side door. An autopsy revealed gunshot wounds to Case’s head, chest and thigh. Cause of death was due to loss of blood from the multiple gunshot wounds. A ballistics examination determined that the recovered rounds were likely fired from a .22-caliber long rifle.

About three or four days before the shooting, Chris Saini was drinking at Mills’s house and was introduced to A., Madeline’s daughter. Saini invited A. to his house. Saini and A. drank together, and began kissing and fondling. Saini recalled that he passed out before they could engage in sexual intercourse. He woke up the next morning and A. was gone. Saini did not know A.’s age, but later found out that she was 15 years old.[2] A. testified that she was intoxicated and was falling in and out of consciousness at the time; however, she recalled that they had engaged in sexual intercourse.

The next day, Saini attempted to visit A. When he arrived at the house, A.’s mom, Madeline, and her boyfriend, appellant, were there.[3] Madeline asked A. if she had sex with Saini and accused her of being a whore. Appellant made comments to Saini that Saini interpreted as challenging him to a fight. Saini went into the street to fight, but appellant did not follow and Saini left. Madeline believed that Saini provided A. a date rape drug before sexually assaulting her. She took A. to the doctor, and A. was diagnosed with a sexually transmitted disease. Madeline was upset by the situation.

Madeline’s nephew, a known member of a criminal street gang, had a sawed-off rifle. On April 3, 2009, appellant and Madeline went to her nephew’s house and retrieved the rifle. Madeline testified that after getting the gun, she and appellant drove to the park where Mills had arranged for Case and Saini to be. They drove around the park and then went back to Mills’s house. Upon returning, appellant left in the car by himself with the rifle.

Later that night, the gun was returned to Madeline’s nephew. Madeline’s nephew and his girlfriend cleaned the gun of prints using bleach, and placed it back in a closet. After the shooting, another nephew of Madeline, who was present when appellant and Madeline retrieved the gun, made several anonymous tips to law enforcement implicating appellant and Madeline in the shooting.

Madeline testified that on the night of the murder she and appellant were with Mills and knew that she and Mills had arranged for Case to meet at the park that night. When interviewed by law enforcement, Madeline admitted that they retrieved the gun, “So [Saini] wouldn’t bother [her] daughter again.” Madeline recalled that on the morning after the shooting, appellant admitted that he had shot up a car and heard screaming and was pretty sure he had got the guy. Appellant told her that he thought he shot Saini in the arm. When Madeline was driving home later that morning, she noticed shell casings on the passenger side floor of her car. Madeline took the shell casings and flushed them down the toilet. Appellant later told Madeline that he and her nephews burned the gun.

At some point after the shooting, Madeline attempted to strike appellant with her car. To avoid getting run over, appellant jumped on the hood of the car and tore off a windshield wiper. Madeline asked appellant what he had done in her car, and he responded by saying “I shot a bitch.” Madeline slapped appellant, he responded by slashing her with the windshield wiper, cutting her face. Neighbors witnessed appellant hit Madeline, and assaulted him for striking a woman.

Around the time of the shooting, E.L. was addicted to pain pills and methamphetamine. She purchased pain pills from Madeline and appellant. On one instance when she went to purchase drugs, she witnessed that appellant appeared panicked and stressed. He stated to E.L. that “This bitch has me up on a murder rap.” E.L. established a relationship with appellant and Madeline, although she was also having intimate relations with appellant. Madeline and appellant told E.L. that they were trying to retaliate against someone who had dated Madeline’s daughter and accidently shot the person’s female friend instead. They referred to the murder victim as the “[s]ix-foot 300-pound bitch,” and requested that E.L. provide them an alibi.[4] On a different occasion, appellant told E.L. that he had shot the person that raped Madeline’s daughter, and referred to the rapist using racial epithets. During an interaction with E.L., Madeline stated that appellant was dangerous and had shot someone. This conversation occurred after the April 4, 2009, shooting of Case.

After the shooting, appellant met with Madeline’s sister, Terry Flores. When Flores approached his car, he took off his sunglasses and asked if she wanted to see a killer’s eyes, and admitted that he was the one that killed Case. Appellant told Flores that Madeline had taken A. to get an abortion and he had shot Case because she threw the party and was responsible for allowing African-Americans to attend. Flores explained that she had not told the police until appellant and Madeline were arrested because appellant had threatened her, and she was afraid for her safety.

Madeline had made overtly racist comments, upsetting Flores. Those statements included calling her sister’s grandchildren, who were half African-American, racial epithets. One specific incident occurred at the funeral of one of her sister’s grandchildren who was a victim of a drive-by shooting at age four. Madeline called the deceased child a child of a nigger. Her comments caused a falling out with other family members.

Discussion

I. Failure to Provide Jury Instructions to Start Deliberations Over

A juror failed to appear on the second day of deliberations due to a family emergency and could not be reached. The trial court discharged the juror and substituted an alternate juror. Appellant claims that the trial court violated his right to a unanimous jury verdict by failing to instruct the jury with CALCRIM No. 3575 or otherwise instruct the jury to start deliberations anew upon the substitution of the alternate juror. After the jurors departed, the bailiff returned to the courtroom and advised the court that he asked the jurors to figure out a schedule and that they could deliberate until 4:30 p.m. that day. After discussing which records to provide the jury, the prosecutor asked if they should give the records to the jury that afternoon. The clerk of the court informed counsel that the jurors had already left and, with that, the court adjourned at 4:05 p.m. Accordingly, the jury did not deliberate for more than 25 minutes that day. On the next scheduled day of trial, April 14, 2014, one of the jurors was not present for deliberations. The juror had left messages for the court that a close family member had died and, despite several attempts, the court could not contact the juror. The court decided to substitute in an alternate juror and the jurors resumed deliberations at 1:30 p.m. Little additional information regarding deliberations is available from the record, but for the fact that the jurors posed two questions to the court on the afternoon of April 14, 2014.

B. Applicable Law

Penal Code section 1089 sets forth the applicable law with regard to the use of alternate jurors. Although the statutory language does not set forth such a requirement, the California Supreme Court has found the substitution of an alternate juror under section 1089 constitutionally permissible when the jury is instructed “to set aside and disregard all past deliberations and begin deliberating anew.” (People v. Collins (1976) 17 Cal.3d 687, 694 (Collins); People v. Nunez and Satele (2013) 57 Cal.4th 1, 58–60 (Nunez and Satele).) “[A] defendant may not be convicted except by 12 jurors who have heard all the evidence and argument and who together have deliberated to unanimity.” (Collins, supra, at p. 693.) “‘[A] proper construction of section 1089 requires that deliberations begin anew when a substitution is made after final submission to the jury.’” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 446.)

However, a trial court’s erroneous failure to give such an instruction required by Collins is reviewed for harmlessness under state law. Since the admonition requirement is imposed as a function of the state Constitution rather than by federal law, the error is tested by the state standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Renteria (2001) 93 Cal.App.4th 552, 559.) The error is reversible only if it is probable that the defendant would have achieved a better result but for the error. (Collins, supra, 17 Cal.3d at p. 697 & fn. 5; Nunez and Satele, supra, 57 Cal.4th 1 at p. 60.)

C. Analysis

Based on the record before us, the deliberations that occurred on the afternoon of April 10, 2014, could have lasted for no more than 25 minutes. Based on the fact that the jurors likely spent some of that time figuring out their schedule, it is entirely possible that the jurors did not start deliberations in earnest that afternoon. However, we cannot rule out that the jurors briefly commenced deliberations that day. Further, respondent effectively concedes the point by omitting argument that there was no error, and solely focuses on the fact that any error was harmless. As it is possible the jurors began deliberations, we will assume error in not providing proper instruction to start deliberations over and will determine whether the error was harmless under state law. (Nunez and Satele, supra, 57 Cal.4th at p. 60.)

1. Length of Deliberations

Appellant acknowledges that the period spent deliberating prior to when the juror was discharged was relatively short, but argues that it was possible that the jurors decided a significant issue in that period of time. Appellant notes that the Supreme Court found it error to not provide instructions for the jury to start deliberations anew when they had deliberated for less than an hour and a half. (Collins, supra, 17 Cal.3d at pp. 690–691, 697.) Despite finding error, the Supreme Court held that the error was harmless, as the case against the defendant was factually very strong. (Id. at 697.) As there was no reasonable probability that a more favorable verdict would have been returned had the jury been properly instructed following the substitution, the court affirmed the judgment. (Id. at pp. 697–698.) On the other hand, in People v. Martinez (1984) 159 Cal.App.3d 661, 665, the court found the failure to admonish the jury to start anew was prejudicial despite the fact that the substitution occurred two hours after the commencement of deliberation, and despite the fact that the jurors deliberated for six days after the substitution. The court did not resolve whether the error was harmless based on the length of deliberation, but focused on the fact that it was a close case where there was strong evidence to support the appellant’s defense that it was manslaughter rather than murder. (Ibid.)

While the length of deliberations are a factor to consider, there is no evidence specific to the deliberations in this case to indicate that appellant was harmed from the trial court failing to admonish the jury to start deliberations anew. Accordingly, we will turn to the complexity and strength of the case to determine whether appellant was prejudiced.

2. Complexity and Strength of the Case

Appellant argues that, despite making incriminatory statements to several people, the value of the evidence was relatively weak because of the lack of credibility of the prosecution’s witnesses. He claims that each of those witnesses had a motive to implicate him in the crime. Madeline had reason to lie, as she was also charged with the murder of Case and significant evidence linked her to the crime. He further asserts that Flores had motive to protect her sister, Madeline, from prosecution. With regard to E.L., he asserts that her testimony was unreliable, as she was a drug user and was incorrect regarding many facts of the case.

We find appellant’s arguments unpersuasive. The jury was provided a significant amount of testimony and evidence to review and the case against appellant was strong. There was motive to retaliate against Saini for his sexual involvement with A. While there was no direct evidence identifying appellant as the shooter or physically linking him to the crime, the circumstantial evidence was strong. Mills and Madeline arranged for Case and Saini to be at the location of the shooting; earlier that day, appellant and Madeline obtained a rifle from her nephew. After the shooting, Madeline and her nephew assisted appellant in destroying evidence, including flushing bullet casings down the toilet and burning the rifle.

Importantly, appellant made incriminating statements to several different individuals shortly after the shooting. Appellant made separate statements to Madeline, Flores, and E.L. Appellant argues that the testimony of each of the witnesses that described his incriminating statements was unreliable and each had a reason to lie or shift blame to appellant. Madeline did testify in exchange for reduced charges, and it is possible that Madeline had a larger role in the shooting than she admitted to at trial. Unlike Madeline, E.L. had little motive to inculpate appellant, but she was an active drug user at the time of the events, which may have affected her ability to correctly observe and recall events. Appellant notes that the details E.L. provided of his alleged confessions were not accurate; however, several statements were, including her description of appellant’s incriminating statements in which he described the victim as a very large woman. Regardless, these are issues of credibility and it is not the purview of this court to address the credibility of the witnesses. Generally, any doubts as to the credibility of in-court witness should be resolved by the jury. (People v. Brown (2014) 59 Cal.4th 86, 105.) When viewed as a whole, and despite any concerns regarding the credibility of the witnesses, the evidence against appellant was strong.

It is not probable that appellant would have had a more favorable outcome had the trial court provided proper instruction after the alternate juror was substituted. Very little time passed to allow the jury to deliberate prior to the substitution, and the fact that the jury deliberated for two days after a 30-day trial is not indicative that the jury necessarily found that it was a close case. The jury was presented with significant circumstantial evidence by the prosecution that appellant shot Case, including appellant’s multiple incriminating statements. In his defense at trial, appellant presented little evidence and instead focused on the lack of physical or direct evidence linking appellant to the shooting and arguing that the prosecution’s main witnesses were unreliable. Based on the strength of the prosecution’s case, any error from the trial court’s failure to properly instruct the jury was harmless. (Nunez and Satele, supra, 57 Cal.4th at p. 60.)

disposition

The judgment is affirmed.

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MEEHAN, J.

WE CONCUR:

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GOMES, Acting P.J.

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FRANSON, J.