P. v. Polk
Filed 6/5/13 P. v. Polk CA2/7
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
KENNETH POLK,
Defendant and Appellant.
B240121
(Los Angeles
County
Super. Ct.
No. K094860)
APPEAL from a judgment of the Superior Court of
County, Robert M. Martinez, Judge. Affirmed as modified.
Christopher A. Darden for Defendant
and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________
Kenneth Polk was convicted
of attempted murder (Pen. Code,
§§ 187, 664) and attempted robbery (§§ 211, 664). Polk appeals, claiming multiple errors
arising from a juror’s revelation during deliberations that she lived in
proximity to the crime scene and felt unsafe as a result, as well as
ineffective assistance of counsel. We
modify the judgment to correct sentencing errors but otherwise affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
Polk was charged with
arising out of the shooting of Edward Anderson.
At trial, Anderson testified that in July
2011, he arranged to purchase prescription pain medication from Polk. Anderson, who had previously purchased drugs
from Polk, hoped to purchase $800 of pills as a broker for a third party, Shawn
McDonough.
Anderson met Polk at a location Polk
selected, and they then walked around the corner. Polk seemed very nervous and suspicious that Anderson might be a police
officer. Polk demanded to see the money,
so Anderson produced the $1900 that
McDonough had given him.
Polk said he would return with the drugs, but instead
he appeared with a chrome revolver and demanded the money. Anderson chuckled at the
demand. Polk immediately shot him in the
hand, then pointed the gun at Anderson’s head. He pulled the trigger but the gun
jammed. Anderson ran away, and Polk shot him
in the back as he fled.
Anderson was able to drive away from
the scene. Once he was a safe distance
away, he pulled over and called for emergency services. Police found Anderson lying in a fetal position
on the ground outside his truck. His
colon had been penetrated by a bullet; his spine was fractured; his stomach and
intestines required surgical repair; and he experienced lung problems. Officers recovered more than $2000 in
bloodied cash from the truck.
Multiple witnesses testified to Anderson’s drug dealing and to his
connection with Polk. Frank Fraser
testified that he had introduced Polk and Anderson because Anderson wanted Xanax. On the evening of the shooting, Fraser
telephoned Polk several times for Anderson. The person who answered was probably Polk,
but he seemed drunk. McDonough testified
that he was to be the ultimate purchaser of the prescription medications that Anderson was buying from Polk. He gave Anderson $1900 and waited for Anderson to return with the
drugs. He waited 10 to 15 minutes and
then saw Anderson’s car pulling into the
parking lot. McDonough saw Anderson stumble out of the car and
that there were four men around him; he left the scene because he thought Anderson was being arrested.
Polk testified that he was a drug dealer and that he
met with Anderson to sell drugs to him. He said that Anderson had told him in advance
that he had been robbed before and that he would be carrying a gun. Polk found this threatening but was prepared
to do business with him nonetheless.
When they met, Anderson was angry. Anderson wanted to count the pills
that Polk gave him, and after he had done so, he demanded 100 additional pills,
stating that he had received 500 rather than 600. Polk said there were 600 pills, and asked for
the money or the pills. Anderson was belligerent and hit
him. Polk said, “I put my hand in my
pocket like: back up. Um, I didn’t brandish any weapon. I was just stating that I have a weapon, back
up. Um, maybe he thought I was playing,
maybe he thought I wasn’t serious, but I remember him reaching for his
waistband, and I was just—I just reacted off impulse, being scared that he might—he
could have had a weapon, and just tried to let him not get to that waist.†He started shooting because he was afraid
that Anderson “would pull out his own
weapon.†Polk denied robbing Anderson.
During jury deliberations, the foreperson sent out a
note that stated that one juror lived in proximity to Polk’s family and that
she feared them. At the trial court’s
request, the juror in question completed a questionnaire, in which she
explained that she lived near Polk’s mother and frequented businesses near
which the events in the case took place.
She stated that she could not continue to deliberate in accordance with
her oath and that she feared that she would be hurt by Polk’s family or
associates if she voted in accordance with her beliefs and found him
guilty. She believed that associates of
the defendant had been looking at the jury as if to try to intimidate jurors.
Defense counsel expressed concern to the court that
the deliberations might have included discussion about the juror’s
concerns. He said, “There’s no way to
tell where in the process that happened.
And because of the nature of the concern, I believe there’s a danger of
a cloud of bias that would have if it was part of the whole process of the
conversation over the last couple of hours yesterday and however many minutes this
morning, before the note came out. It
seems to me that that would have created a pall on the process. And without knowing more, I would be forced
to make a motion for a mistrial. I think
at the very least the jurors need to be questioned maybe on a one-on-one basis
if there is anything that has been discussed outside the realm of evidence that
has affected their deliberating process,†such as “[t]he one juror’s concern
about her perceptions of activity from the audience, and whether that was her
perception or other jurors’ as well, talking to her about that.â€
The court reminded defense
counsel that jurors are entitled to consider matters beyond the evidence,
such as life experiences, and expressed the concern that if the court
questioned jurors about matters outside the evidence, it might “be delving into
the deliberative process, and life experience and reasons.†Defense counsel responded that there was no
need to delve into such matters, only to ask if “there was a conversation about
activity within the courtroom that wasn’t . . . part of the
court process, and that that affected their conversation about the court
process.†The court and counsel
discussed the likely effect of any intimidating activity, and the court
wondered aloud how the court could determine the impact on the jury. Defense counsel acknowledged that the court
could not figure that out, and stated, “But my concern is only that in the
beginning of the deliberative process, that was discussed. You know, the issue the juror raised, if the
fear arises from the fact that the locus is endemic to their daily life, that
was made evident during the course of trial, before we ever got to the end of
it.â€
The court proposed instructing the jury that it was to
decide the case on the basis of the evidence and that the behaviors of
spectators were irrelevant and immaterial.
Defense counsel agreed: “I think
that’s a helpful suggestion.†The court
said, “[W]e’re talking about the subjective intentions of people in the
audience, persons that we don’t know what they did or who they are. The court’s intention is to admonish the jury
that the behaviors of spectators, if any, are not to be considered, and decide
this case based solely on the testimony and evidence presented.†The court denied the motion for mistrial and
removed the juror who claimed to be unable to deliberate.
The court addressed the
jury: “Ladies and gentlemen, once you
were selected as jurors, you received the following admonition, or actually
took the following oath: ‘Do you and
each of you understand and agree that you will well and truly try the cause now
pending before the court and a true verdict render[] according only to the
evidence presented to you and to the instructions of this court?’ Since I have bec[o]me a judge, I have had the
opportunity of facing the attorneys and jurors and spectators, and I have
learned over the past 28 years that sometimes the expressions of individuals in
court are natural responses, unintended in terms of trying to communicate. Some people are influenced by their
familiarity or relationship with the parties.
And to try and interpret the expressions or behaviors of spectators is
basically to engage in idle speculation.
The reactions or expressions of persons in the audience are
ambiguous. They are irrelevant. They are immaterial to the issue that
confronts you. You are to disregard any
attempt to construe the meaning of any behaviors by spectators, and you are to
judge the credibility of witnesses based on the criteria that [are] set forth
in the instructions. If there are any of
you who feel that you cannot do that, would you please raise your hand.†No juror raised a hand.
Polk was convicted of attempted premeditated murder
and attempted robbery, with all enhancement allegations found true. At the sentencing hearing, defense counsel
sought a new trial on two bases: a
denial of due process because it could not be known whether the removed juror’s
concerns tainted the deliberative process; and the jurors’ receipt of
“extrajudicial evidence†from the removed juror. Counsel advised the court that there was no
way of knowing whether there was express discussion of the removed juror’s
concerns and that it could not therefore be determined “whether the panel was
infected by these fears and concerns.â€
He asked to continue the sentencing hearing to permit his investigator
to contact jurors to inquire whether the process was tainted. The court denied the motions for a new trial
and the request to question the jury.
Polk was sentenced to life
in prison for the attempted murder, plus a consecutive 25 years to life for
personal and intentional discharge of a firearm, causing great bodily injury
(§ 12022.53, subd. (d)). For the
attempted robbery, the court stayed the sentence and the section 12022.53,
subdivision (d) enhancement. The court
struck enhancements on both counts under section 12022.53, subdivision (b) and
(c); 12022.5, subdivision (a); and 12022.7, subdivision (a). Polk appeals.
DISCUSSION
I. Refusal
to Question Jurors
Polk argues that the trial court committed reversible
error when it did not question the remaining jurors at the time that one juror
was removed to determine whether the juror’s comments during deliberations
prejudiced the remaining jurors. A trial
court has a duty to inquire into allegations of misconduct during jury
deliberations and conduct whatever inquiry is reasonably necessary to determine
whether a juror should be discharged. (
941-942.) Whether and how to investigate
allegations of juror misconduct is within the trial court’s discretion. (Id.
at p. 942.)
Here, Polk has failed to demonstrate an abuse of
discretion. The trial court promptly
investigated the issue relating to the troubled juror by sending in a
questionnaire, and upon receiving responses indicating that she could not
properly deliberate, the court excused her.
Next, the trial court reminded jurors of their oath, advised them to
disregard the behavior of courtroom spectators, instructed them to “disregard
any attempt to construe the meaning of any behaviors by spectators, and [] to
judge the credibility of witnesses based on the criteria that [are] set forth
in the instructions,†and asked any juror who could not abide by these
instructions to raise a hand. No juror
raised his or her hand. This admonition
and inquiry directly addressed the issue of whether the juror’s concerns, expressed
during deliberations, impacted the remaining jurors. Polk has not demonstrated that this
advisement and question was insufficient.
Polk argues that
additional inquiry might have revealed “even more extraneous information if not
actual juror misconduct†occurring in the deliberation room. Polk, however, has not presented any evidence
suggesting that any other information was conveyed by the juror beyond that
already addressed by the trial court.
With only speculation that more might have occurred, the trial court was
not obligated to conduct further investigations. A hearing on juror misconduct “‘should not be
used as a “fishing expedition†to search for possible misconduct, but should be
held only when the defense has come forward with evidence demonstrating a
strong possibility that prejudicial misconduct has occurred.’ [Citation.]â€
(People v. Staten (2000) 24
Cal.4th 434, 466.) As Polk has neither
produced evidence demonstrating a strong possibility that prejudicial juror
misconduct occurred nor established any manner in which the court’s inquiry to
the jury panel was insufficient to establish the jurors’ ability and
willingness to decide the case on the evidence alone, he has not shown any
abuse of discretion.
II. Motion
for New Trial
Polk sought a new trial
based on the same allegations of juror misconduct and the contention that the
court had failed to conduct an adequate inquiry with the remaining jurors. Polk argues that the removed juror “clearly
discussed extraneous information during deliberation,†as evidenced by the foreperson’s
note, and that this is “proof positive†of misconduct; further, he argues, this
court must presume that Polk was prejudiced by this misconduct.
A juror’s receipt or discussion of evidence not
presented at trial constitutes misconduct.
(People v. Dykes (2009) 46
Cal.4th 731, 809.) Assuming that the
juror’s revelation that she lived in proximity to and feared Polk’s family
constituted misconduct, we find no error in the court’s denial of the new trial
motion. “Misconduct by a juror raises a
rebuttable presumption of prejudice.
[Citation.] However, we will set
aside a verdict only where there is a substantial likelihood of juror
bias. [Citation.] We will find such bias if the misconduct is
inherently and substantially likely to have influenced the jury. Alternatively, even if the misconduct is not
inherently prejudicial, we will nonetheless find such bias if, after a review
of the totality of the circumstances, a substantial likelihood of bias
arose.†(People v. Bennett (2009) 45 Cal.4th 577, 626-627.)
We conclude that the removed
juror’s comment did not create a substantial likelihood of juror bias. The juror’s statement that she lived near
Polk’s family members and that she was afraid of them—the only information she
is known to have shared with other jurors—created doubt that she could perform
her duties, but her personal fear based on her residential proximity to those
connected with the case has no logical connection to the other jurors’ ability
to impartially decide the case. Nothing in
the record suggests or offers a ground for concluding that her statement
influenced the other jurors in any way or that it biased them against
Polk. To the contrary, when the court
reminded the jurors of their oath and asked if any were unable to follow their
obligation to consider the case based on the evidence and not on conclusions
about spectators, no juror indicated an inability or unwillingness to follow
the court’s instructions. The trial
court did not err by denying Polk’s motion for a new trial.
III. Ineffective
Assistance of Counsel
Polk contends that his counsel rendered ineffective
assistance when he failed to argue self-defense during summation. To establish ineffective assistance of
counsel, Polk must demonstrate that “(1) counsel’s representation was deficient
in falling below an objective standard of reasonableness under prevailing
professional norms, and (2) counsel’s deficient representation subjected the
petitioner to prejudice, i.e., there is a reasonable probability that, but for
counsel’s failings, the result would have been more favorable to the
petitioner.†(In re Jones (1996)
13 Cal.4th 552, 561.)
A review of the record demonstrates
that Polk’s counsel did
raise the issue of self-defense in closing:
“Anderson got upset, said he counted it [the pills] out and it wasn’t
enough and he started coming at him.
Anderson is 6-6, weighs 350. Mr.
Polk, well, you saw him, you heard him, he’s 175 pounds, 5-10. Mr. Anderson under any circumstances is an
imposing individual.
[¶] . . . [¶]
Mr. Polk told you: I went there and
I brought a gun, because when Anderson called me, he emphasized that he’s going
to bring a gun, that he’s been robbed, that he’s angry if he’s messed
with. Now, he brought a gun because he
was concerned, he said. He started
getting attacked, hit on the head, he backed up and he put his hand in his
pocket, he saw Mr. Anderson make a gesture, having in mind that he was told
that Anderson was carrying, he started shooting.†This argument clearly encouraged the jury to
conclude that Polk had acted in self-defense, and accordingly, Polk’s
contention that defense counsel “failed to argue the merits of his client’s
only defense†is belied by the record.
Polk is correct that counsel
did not use the term “self-defense,†but defense counsel’s presentation was
nonetheless sufficient to guide the jury toward the instructions on
self-defense. Here, the jury was
instructed on self-defense as a defense to the attempted premeditated murder
charge, the availability of self-defense in the context of mutual combat or starting
an altercation, and the limits of self-defense (CALCRIM Nos. 3470, 3471, 3472,
3474). Both perfect and imperfect
self-defense were explained in the jury instruction on attempted voluntary
manslaughter (CALCRIM No. 604). The
jury, therefore, was fully instructed on the elements of self-defense and
imperfect self-defense, and defense counsel’s argument directed the jury toward
those instructions by highlighting the evidence consistent with a self-defense
or imperfect self-defense theory.
Accordingly, Polk has failed to demonstrate that his counsel’s
representation was deficient in falling below an objective standard of
reasonableness under prevailing professional
norms.
IV. Post-Verdict
Request to Discover Juror Information
During arguments on the motions for new trial, defense
counsel sought permission to contact and interview jurors to ascertain what the
removed juror had said to other members of the jury. As both Polk and the Attorney General observe,
Code of Civil Procedure section 206, subdivision (g) authorizes the defense to
seek juror contact information and specifies that these requests are to be made
and considered pursuant to Code of Civil Procedure section 237. Code of Civil Procedure section 237 requires
that a petition for access to juror records be supported by a declaration that
includes facts sufficient to establish good cause for the release of the
juror’s personal identifying information.
The petition and declaration are then reviewed to determine whether they
establish a prima facie showing of good cause for the release of the
information. (Code Civ. Proc.,
§ 237, subd. (b).) Denial of a
petition filed under Code of Civil Procedure section 237 is reviewed for an
abuse of discretion. (
965, 978.)
Polk argues on appeal that
the court “abused its discretion in determining that appellant failed to make a
prima facie showing of good cause for discovery of the juror’s
information.†From the record on appeal,
however, it does not appear that Polk filed a petition and declaration under
Code of Civil Procedure section 237; no such documents are included in the
clerk’s transcript, and Polk refers us to the record only for the court’s
denial of the request. As Polk
apparently failed to file a petition with supporting declaration as required by
statute, the court did not err in declining to release the jurors’ identifying
information.
V. Sentencing
Error
At sentencing, the trial court imposed a sentence
enhancement under section 12022.53, subdivision (d) for each of the two counts
on which Polk had been convicted, staying the second. The court then struck sentence enhancements
under section 12022.53, subdivision (b); section 12022.53, subdivision (c); section
12022.5, subdivision (a); and section 12022.7, subdivision (a). At our request, the parties submitted
supplemental briefing addressing whether the stricken enhancements should
instead have been imposed and then stayed.
The parties agree, as do we, that the court erred by striking, rather
than imposing and staying, these sentence enhancements. (People
v. Gonzalez (2008) 43 Cal.4th 1118, 1130; § 12022.53, subd. (f).)
Polk argues that the Attorney General has waived and
forfeited any right to litigate these issues on appeal, but the failure to
impose the sentence mandated by law results in an unauthorized sentence subject
to correction on appeal even absent an objection in the trial court. (People
v. Scott (1994) 9 Cal.4th 331, 354 [unauthorized sentence is one that could
not be lawfully imposed under any circumstance in the case];
554, fn. 6 [unauthorized sentence is subject to judicial correction whenever
the error comes to the attention of the reviewing court].) Accordingly, the judgment is modified to
reflect that the previously-stricken enhancements are imposed and stayed.
DISPOSITION
The judgment is modified to impose
and stay the sentence enhancements found true by the jury under section
12022.53, subdivision (b); section 12022.53, subdivision (c); section 12022.5,
subdivision (a); and section 12022.7, subdivision (a). The clerk of the superior court is
directed to prepare a corrected abstract of judgment reflecting that the
previously-stricken enhancements are imposed and stayed, and to forward a
certified copy of the abstract of judgment to the
ZELON,
J.
We
concur:
PERLUSS, P. J. WOODS,
J.
name="_ftn1" title="">[1] Unless
otherwise indicated, all further statutory references are to the Penal
Code.
