P. v. Gant
Filed 6/11/13 P. v. Gant CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
DARIUS GANT,
Defendant and
Appellant.
2d Crim. No.
B242212
(Super. Ct.
No. BA372890)
(Los
Angeles County)
Darius Gant appeals from
the judgment following his conviction for willful,
deliberate, and premeditated attempted murder (Pen. Code, §§ 187/664,
subd. (a)), and possession of cocaine
base for sale (Health & Saf. Code, § 11351.5). The jury found that he personally used a
firearm causing great bodily injury in the attempted murder (Pen. Code,
§ 12022.53, subd. (d)), that the attempted murder was gang related (Pen.
Code, § 186.22, subd. (b)), and that Gant had a prior drug conviction
(Health & Saf. Code, § 11352).
Gant was sentenced to life in prison with a 15-year minimum parole
eligibility date for the attempted murder plus 25 years to life for the firearm
enhancement. He received an eight-year
concurrent sentence for the drug offense.
Gant contends that there
was insufficient evidence to support the attempted murder conviction, the trial
court erred in denying a mistrial after the victim suffered a seizure during
his trial testimony, and that he was denied trial by a fair and impartial jury
due to juror incompetence and misconduct. We affirm.
FACTS AND
PROCEDURAL HISTORY
On the afternoon of June 2, 2010, Gant and victim Ralph
Metcalfe were walking in opposite directions on Exposition
Boulevard in Los Angeles,
California.
Gant was a member of the Rollin' 30s Harlem Crip gang whose territory
borders on that of the rival Fruit Town Brims gang. Metcalfe was not and had never been a member
of any gang.
When Gant approached Metcalfe,
he asked Metcalfe if Metcalfe knew where to get some "weed." Metcalfe responded that he did not live in
the area and did not know about buying weed.
As the two men passed each other, Gant said "Harlem Crip" and
started shooting at Metcalfe with a handgun when Metcalfe looked back. Gant shot Metcalfe several times causing
serious injury. Metcalfe was able to
crawl under a truck parked at the curb.
Metcalfe saw that Gant
had several tattoos. He testified that
he saw a "3" and "0" tattooed on Gant's forearms, and the
letters "H" and "C" and a dragon elsewhere on his
arms. He also testified that Gant had
tattoos on his neck. Metcalfe identified
Gant as the shooter at Gant's preliminary hearing and at trial.
Witness Mario Calderon
testified that he heard gunshots while in his living room across the
street. He then saw a man get into a
small gold car and drive away. In a
photographic lineup and at trial, Calderon identified Gant as the man he
saw. He also identified Gant's gold
car. Another witness identified Gant's
car as resembling the car she saw drive away after the shooting.
Gant offered an alibi
defense, presented expert testimony on the unreliability of eyewitness
testimony, and on the effects of epilepsy on memory. He also offered testimony that he did not
purchase his gold car until two days after the shooting of Metcalfe.
Gant
contends there was insufficient evidence to support his attempted murder
conviction. He argues that the evidence
identifying Gant as the shooter was so unreliable that it failed to constitute
"When the
sufficiency of the evidence to support a conviction is challenged on appeal, we
review the entire record in the light most favorable to the judgment to
determine whether it contains evidence that is reasonable, credible, and of
solid value from which a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.
[Citation.] 'Conflicts and even
testimony which is subject to justifiable suspicion do not justify the reversal
the exclusive province of the trial judge or jury to determine the credibility
of a witness and the truth or falsity of the facts upon which a determination
depends.' [Citation.] Unless it describes facts or events that are
physically impossible or inherently improbable, the testimony of a single
witness is sufficient to support a conviction.
[Citation]" (
535, 585; see also People v. Allen (1985)
165 Cal.App.3d 616, 623.)
Here, victim Metcalfe
positively identified Gant as the man who shot him at both the trial and
Gant in a photographic lineup a week after the shooting. Evidence shows that Metcalfe saw Gant face to
face from a few feet away during daylight hours. Metcalfe's testimony was corroborated in
substantial part by other witnesses.
Although he did not see the shooting himself, witness Calderon testified
that, seconds after the gunshots, he saw Gant get into a small gold car and
drive away. Another witness testified
that she saw a gold car drive away moments after the shooting.
Gant emphasizes
contradictions and inconsistencies between Metcalfe's initial description of
the shooter to the police and his trial
testimony, and also notes that Metcalfe did not remember certain facts about
the shooting. In police interviews
shortly after the shooting, Metcalfe described Gant's tattoos somewhat
differently from his trial testimony, and also described Gant as being about
5'11" and weighing about 195 pounds.
Gant was actually 5'7" tall and weighed 150 pounds. At one point, Metcalfe told police that Gant
and another man in a photographic lineup both looked like the shooter.
Gant argues that these
discrepancies and inconsistencies render the evidence of Gant's identity too
unreliable to qualify as substantial
evidence. We do not agree. The jury was aware of these inconsistencies
and heard expert testimony regarding the reliability of eyewitness
identifications when it unanimously found Gant guilty. On review, we may not substitute our judgment
for that of the jury, reweigh the evidence or reevaluate witness
credibility. (E.g., People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Mistrial Not Required
After Witness Seizure at Trial
Gant contends the trial court erred by not declaring a
mistrial after victim Metcalfe suffered an epileptic seizure during his trial
testimony. Gant argues that, due to jury
sympathy, he was denied trial by an impartial and unbiased jury. We disagree.
A criminal defendant is entitled to trial by a
fair and impartial jury. (
578.) The trial court must grant a
chances of receiving a fair trial have been irreparably damaged and cannot be
cured by an admonition or instruction. (People v. Dement (2011) 53
Cal.4th 1, 39-40; People v. Bolden (2002) 29 Cal.4th 515, 555.) The court has considerable discretion
in ruling on a mistrial motion because the prejudicial effect of a particular
incident is "a speculative matter."
(
573.) Bias and prejudice must be shown
as a "demonstrable reality." (
659.)
The day after Metcalfe suffered his seizure, the
trial court questioned each of the jurors and alternates individually and
alone. The court asked the jurors and
alternates four questions: (1) What they
thought had happened, (2) how they thought the incident would affect them, (3)
could they evaluate Metcalfe's testimony in the same way as other witnesses,
and (4) do they blame anyone for the incident.
The jury was also informed that the shooting had nothing to do with Metcalfe's
seizure.
Two of the jurors stated that the incident would
or could affect their judgment in the case.
Many of the remainder indicated sympathy for Metcalfe's medical
condition but that they could impartially evaluate his testimony and reach a
verdict solely on the basis of the evidence.
The trial court excused the two jurors who believed the seizure could
affect their judgment, and denied Gant's request for a mistrial.
We conclude that Gant fails to show any prejudice
from the seizure incident and that the trial court did not abuse its discretion
by denying a mistrial. (See
1032, 1068.) The trial court carefully
and extensively questioned each of the jurors and alternates and excused those
who expressed doubt as to their impartiality.
There is no question that all of the jurors emotionally reacted to the
incident, but an emotional reaction to such an incident is not the equivalent
of bias.
No Showing of Prejudicial Jury Misconduct or
Incompetence
1.
Gant contends that two jurors were incompetent to
fulfill their duties as jurors, and that certain jurors committed acts of
misconduct by improperly considering information extraneous to the evidence
presented at trial. He argues that (1)
Juror No. 2 was not competent to fulfill his duties due to mental illness, (2)
Juror No. 7 was not competent to fulfill his duties due to an insufficient
understanding of English, (3) Juror No. 7 improperly relied on a dictionary to look
up the meaning of certain English words, (4) Juror No. 7 failed to deliberate,
and (5) Juror No. 2 and Juror No. 5 improperly looked up an article on the
Internet and conducted experiments during deliberations.
Gant raised these
issues in an unsuccessful motion for a new trial. When an appellant reasserts claims previously
raised in a new trial motion, the appellate court must conduct an independent
examination of the proceedings to determine whether a miscarriage of justice
occurred. (People v. Ault (2004)
33 Cal.4th 1250, 1261.) In doing so, the
court employs the appellate standard of review
applicable to the particular claim at issue.
(People v. Nesler, supra, 16 Cal.4th at pp. 582-583.) In general, we review a trial court's ruling
on a motion for a new trial under the abuse of discretion standard. (People v. Thompson (2010) 49 Cal.4th
79, 140.) Upon appeal from the
motion based upon jury misconduct,
however, we defer to the trial court's factual findings if supported by
substantial evidence but exercise de novo review of whether the defendant's
constitutional rights were violated by prejudicial misconduct. (Ault, at pp. 1261-1263; People v. Gamache (2010) 48 Cal.4th
347, 396.)
2.
Gant contends that Juror No.
2, the jury foreman, was not competent to fulfill his duties as a juror because
he was mentally ill
during trial. It is undisputed that
Juror No. 2 was hospitalized in a psychiatric ward for 10 days starting 16 days
after completion of trial and was
hospitalized a second time for three days one month later. Gant argues that, based on these
hospitalizations, Juror No. 2's mental illness must have existed during trial
rendering him unable to deliberate rationally and fairly. We disagree.
A defendant has the right to
a trial by jurors who are mentally competent and unbiased. (Jordan v. Massachusetts (1911)
225 U.S. 167, 176; People v. Millwee (1998)
18 Cal.4th 96, 144; Church
v. Capital Freight Lines (1956) 141
Cal.App.2d 246, 248.) A person is deemed
mentally competent to serve as a juror if he or she is "'[i]n possession
of his or her natural faculties and of ordinary intelligence,'" and is
able to understand the nature of the proceedings and deliberate
rationally. (Milwee, at p. 144, fn. omitted.)
removal of a sitting juror for "good cause" which includes the
inability to fulfill the duties of a juror due to misconduct or
incompetence. (See People v. Fuiava
(2012) 53 Cal.4th 622, 702, 711.) To
remove a sitting juror, such misconduct or incompetence cannot be presumed and
must appear on the record as a "demonstrable
reality." (Fuiava, at p. 711; People v. Barnwell (2007) 41 Cal.4th
1038, 1052.)
There is no
mentally incompetent at the time of trial under any definition of competence. The record shows that Juror No. 2 was fully
able to understand the evidence, understand the charged offenses, deliberate
objectively--and serve as the jury foreman.
(See People
v. Millwee, supra, 18 Cal.4th at p. 144.)
In his own declaration, Juror No. 2 stated that he
believed he developed a mental problem "as a result of this trial"
and that his problems "began after the trial" and that he believed
they were caused by worry over a guilty verdict. He stated that he was hospitalized due to
bizarre and inappropriate behavior after trial and took a three-week medical
leave from work. While this declaration
reveals emotional problems after trial, it does not indicate that he was
impaired during trial. To the contrary,
his candor indicates the opposite and his description of his actions as jury
foreperson showed that he acted in a cogent, professional, and competent
manner.
A declaration from Juror No. 3 stated that, at
lunches during trial, Juror No. 2 acted "strangely" on one occasion,
was "paranoid" about personal financial matters, and he talked about
"some irrelevant things."
Juror No. 3 also stated Juror No. 2 was a "little arrogant, rude,
awkward, and he did not rub me the right way." None of these statements indicates that Juror
No. 2 was mentally ill or incompetent to serve as a juror.
3. Juror
No. 7's Command of English Language
Gant argues Juror No. 7's understanding of
the English language was inadequate. We
disagree.
To be eligible and qualified
to serve as a juror, a person must be "possessed of sufficient knowledge
of the English language." (Code
Civ. Proc., § 203, subd. (a)(6).)
To have such knowledge, a juror must be able to fully understand the
testimony, argument and jury instructions, and participate in jury
deliberations. (People v. Moreno (2011) 192 Cal.App.4th 692, 705; People v. Elam
(2001) 91 Cal.App.4th 298, 316.) As with
acts of misconduct, a language deficiency requiring discharge of a juror must
appear in the record as a demonstrable reality.
(People v. Szymanski (2003)
109 Cal.App.4th 1126, 1131.)
We conclude that the record
shows that Juror No. 7's command of English was sufficient for him to fulfill
the duties of a juror and that Gant was not prejudiced in any manner. Gant relies solely on Juror No. 7's own
declaration indicating that he was Chinese and English was a second
language. The declaration states that he
"understood 90-95 % of the trial," and used a "translation
dictionary . . . to look up the words [he] did not understand."
The declaration shows that
Juror No. 7 did not understand certain English words but does not specify any
of those words or indicate that he had any difficulty in understanding the
evidence or jury instructions. Jurors
necessarily come from all walks of life and have varied educational
backgrounds. The ability to fulfill the
duties of a juror is not limited to people who are well educated or whose first
language is English. Jurors must have
the ability to understand the evidence and communicate during deliberations,
but need not possess an extraordinary vocabulary or an understanding of every
nuance of the English language. (See
pp. 316-317.)
There is nothing in the
record to suggest that Juror No. 7 was unable to understand the evidence or
jury instructions or to deliberate effectively.
No language deficiency was observed by the trial court, counsel or other jurors during
jury selection, testimony or deliberations.
Gant submitted no evidence including declarations from other jurors that
Juror No. 7 exhibited any language problem that surfaced during trial.
4.
Gant contends that Juror No.
7's use of a dictionary to look up the meaning of certain English words during
deliberation constituted prejudicial jury misconduct. We agree that the use of a dictionary was
improper but conclude that there was no prejudice.
Use of a dictionary
by a juror constitutes misconduct because it involves the
use of a source outside the evidence to assist the juror as to factual or legal
matters. (People v. Karis (1988)
46 Cal.3d 612, 642.) Whether such use
requires the reversal of a verdict depends on whether the totality of
circumstances shows a substantial likelihood of actual bias or other prejudice. (People v. Danks (2004) 32 Cal.4th
269, 303; In re Carpenter (1995) 9 Cal.4th 634, 653.)
does not show that occasional use of a dictionary by Juror No. 7 was likely to
have influenced the juror's deliberations or the verdict. The record fails to show what or how many
words Juror No. 7 looked up in the dictionary, whether the words were unknown
to him, or whether he merely sought confirmation of the meaning. The record also shows no conduct by the juror
or other circumstances which would support a finding of a substantial
likelihood of bias. (
supra, 9 Cal.4th at p. 654.)
In particular, there is no showing or indication that the dictionary was
used to look up words and concepts used in the jury instructions.
5.
Gant
also claims Juror No. 7 refused to deliberate.
He bases this claim on an assertion in the juror's declaration that he
"already had the case figured out" when deliberations began,
"and [I] knew how I was going to vote. I already made my decision."
juror may be removed if he or she refuses to deliberate on the theory that such
a juror is "'unable to perform his duty'" as a juror. (People
v. Cleveland (2001) 25 Cal.4th 466, 475.)
We conclude that there is
nothing in the record to support the assertion that Juror No. 7 refused to
deliberate. A juror's formation of an opinion about the proper
verdict before deliberations begin does not show a refusal to deliberate and is
not misconduct, provided the opinion is based on the evidence presented at
trial. (People v. Leonard (2007)
40 Cal.4th 1370, 1412.) "The
reality that a juror may hold an opinion at the outset of deliberations is . .
. reflective of human nature. It is
certainly not unheard of that a foreperson may actually take a vote as
deliberations begin to acquire an early sense of how jurors are leaning. We cannot reasonably expect a juror to enter
deliberations as a tabula rasa, only allowed to form ideas as
conversations continue. What we can, and
do, require is that each juror maintain an open mind, consider all the
evidence, and subject any preliminary opinion to rational and collegial
scrutiny before coming to a final determination." (People
v. Allen (2011) 53 Cal.4th 60, 75.)
Also, reliance on the opinion
of Juror No. 7 himself as expressed in his declaration rather than the juror's
conduct as set forth in the record as a whole runs afoul of the rule that a
court cannot consider evidence of a juror's subjective reasoning process. (People
v. Allen, supra, 53 Cal.4th at p. 75; Evid. Code, § 1150.) Here, there is no evidence in the form of
declarations from other jurors that Juror No. 7 failed to answer questions
posed to him by other jurors, separated himself from other jurors in the jury
room, or acted as if he was not listening to comments by other jurors. (See People v. Thomas (1994) 26
Cal.App.4th 1328, 1333.) Juror No. 7
stated that he did not get to know other jurors or speak much during
deliberations, but the demeanor or personality of individual jurors should not
be considered in determining their ability to perform the duties of a
juror. (People v. Keenan (1988)
46 Cal.3d 478, 541.)
6.
Jurors Nos. 2 and 5
Gant contends that Jurors Nos. 2 and 5 committed
misconduct by looking at an article about the trial judge and conducting
experiments. We disagree.
As stated, jurors may
not obtain information from outside sources either as to factual matters or for
guidance on the law. (
at p. 642.) But, here the record is
unclear as to whether there was any misconduct and, if there was, it shows no
prejudice.
First, Juror No. 2 looked up an
article on the Internet which disclosed that prior to becoming a judge, the
trial judge in the instant case was the prosecutor in the high profile
Billionaire Boys Club case. There is no
contention that the article contained any information relevant to the instant
case.
Second, the record shows that
Jurors Nos. 2 and 5 conducted "little experiments about distances and the
ability to see things at certain lengths."
The record includes no other information regarding the nature, scope, or
conditions of the "little experiments."
It is misconduct for the jury
to conduct its own investigation outside the courtroom including experiments
which could be treated as evidence not presented at trial. (People
v. Vigil (2011) 191 Cal.App.4th 1474, 1483; People v. Castro (1986) 184 Cal.App.3d 849, 852-853.) But, not every jury experiment constitutes
misconduct. "Improper experiments
are those that allow the jury to discover new evidence by delving into
areas not examined during trial. The
distinction between proper and improper jury conduct turns on this
difference. The jury may weigh and evaluate
the evidence it has received. It is
entitled to scrutinize that evidence, subjecting it to careful consideration by
testing all reasonable inferences. It
may reexamine the evidence in a slightly different context as long as that
evaluation is within the '"scope and purview of the evidence."' [Citation.]
What the jury cannot do is conduct a new investigation going beyond the
evidence admitted." (People v.
Collins (2010) 49 Cal.4th 175, 249.)
Accordingly, a jury has the
right to examine and test the evidence presented at trial in a form which might
be construed as an "experiment" but which does not go beyond the
scope of the evidence. (
Cal.App.3d at pp. 853–854.) Here, the
record contains no indication that the "little experiments"
interjected any information outside the record to expand upon the evidence
presented at trial.
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We
concur:
GILBERT, P. J.
YEGAN, J.
Frederick N. Wapner, Judge
Superior Court County of Los Angeles
______________________________
Sally Patrone Brajevich,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy
Attorney General, Mark E. Weber, Deputy Attorney General, for Plaintiff and
Respondent.
or evidence in support of the gang enhancement because no issues are raised on
appeal regarding those matters.
