P. v. Sherow

Filed 7/17/07 P. v. Sherow CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Sylvia L. Husing, Judge. (Retired judge of the San Bernardino Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.) Affirmed.

Maureen J. Shanahan, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Lise S. Jacobson, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant Timothy Sherow of one count of selling cocaine base in violation of Health and Safety Code section 11352, subdivision (a). It also found that defendant committed the crime for the benefit of, at the direction of, and in association with, a criminal street gang, with the specific intent to promote, further, and assist gang members in criminal conduct, within the meaning of Penal Code section 186.22, subdivision (b).^[1]

Defendant appeals. Although he does not contest the sufficiency of the evidence supporting the conclusion he sold drugs, and the jurys conclusion that the sales benefited a criminal street gang, he does challenge the sufficiency of the evidence to allow the jury to conclude that he sold the drugs with the specific intent to promote, further, or assist in any criminal conduct by gang members. ( 186.22, subd. (b)(1).)

He also contends that the trial court abused its discretion in denying his motion for a new trial. The motion was based on the allegation that the jury foreman misadvised the jurors about the elements which had to be found before they could make a true finding on the enhancement.

Finding no error, we affirm.

I. FACTS

Detective Mario Dorado is a Riverside police officer with extensive narcotics training and experience. He testified that, in March 2005, he participated in an undercover buy operation at an apartment complex in Riverside. Over a period of two and one-half months, undercover officers made approximately 50 narcotics purchases from 15 to 20 different sellers at the courtyard of an apartment complex on Enterprise Street. All of the purchases were recorded and videotaped.

The purchases were unusual in that sellers are usually territorial, but here there were about 15 to 20 different sellers in one location. When Detective Dorado approached the courtyard to buy drugs, he was always directed to a seller, and there was no competition for his business. In the officers opinion, this was an organized group selling operation. After repeated buys, he began to recognize three persons who appeared to be supervising the sales operation.

One of the men, Anthony Pace, was present when the officer purchased drugs from defendant. When the officer approached defendant and asked to buy rock cocaine, defendant looked towards Pace. Pace nodded and defendant made the sale. In the officers opinion, Pace and defendant were working together: its like they rehearsed it, like they did it so many times. It was something that they worked together with. A videotape of the transaction was shown to the jury. The officer believed that Pace ran the sales operation at the apartment complex.

Steven Christiansen, a Riverside gang officer, testified as an expert witness on the issue of whether defendant acted with the intent, purpose, and knowledge which is required to prove the gang enhancement allegation. The officer testified that defendant is not a gang member but, in his opinion, defendant and Pace had a working relationship to sell rock cocaine at the Enterprise Street apartment complex.

The officer testified that Pace is a member of Elm Street Piru, and that organization is a gang within the meaning of section 186.22. The other two men who appeared to be supervising the sales operation were also members of Elm Street Piru, a Blood gang subset. However, the sales operation was being conducted by the Bloods in a neighborhood which is a Crips gang area.

The officer believed that Elm Street Piru came into the neighborhood with Crips permission to set up a sales operation, and they recruited nongang members to help them sell their drugs. The work of the nongang members, such as defendant, thus benefited the gang.

Accepting this evidence, the jury found the gang enhancement allegation to be true.

II. SUFFICIENCY OF THE EVIDENCE TO SUPPORT A FINDING THAT DEFENDANT ACTED WITH THE SPECIFIC INTENT TO BENEFIT A GANG

The Street Terrorism Enforcement and Prevention (STEP) Act was enacted in 1988 to address a growing problem of criminal street gangs. ( 186.21.) The STEP Act is directed at criminal street gang members and others who commit felonies in association with the gang with the specific intent to promote, further, or assist in any criminal conduct by gang members. ( 186.22, subd. (b)(1).)

Defendant begins his argument by citing our Supreme Courts opinion in People v. Gardeley (1996) 14 Cal.4th 605. That case dealt with the meaning of the term pattern of criminal gang activity in the STEP Act. (People v. Gardeley, supra, at p. 610.) The court found that the prosecution had established all of the elements of the enhancement in that case. It also extensively discussed the role of gang expert testimony in proving the elements of the enhancement. Specifically, the court held that the jury could reasonably conclude from the expert testimony that the benefit and specific intent elements of section 186.22, subdivision (b)(1) had been proven. (People v. Gardeley, supra, at p. 619.)

Defendant next cites our case of People v. Morales (2003) 112 Cal.App.4th 1176. In that case, we found sufficient evidence to allow the jury to find that the gang enhancements were true. With regard to the specific intent element, we said: If defendant is arguing that there was insufficient evidence of the specific intent element (as opposed to the benefit/direction/association element), we disagree. Again, specific intent to benefit the gang is not required. What is required is the specific intent to promote, further, or assist in any criminal conduct by gang members . . . . Here, there was evidence that defendant intended to commit robberies, that he intended to commit them in association with Flores and Moreno, and that he knew that Flores and Moreno were members of his gang. Moreover . . . there was sufficient evidence that defendant intended to aid and abet the robberies Flores and Moreno actually committed. It was fairly inferable that he intended to assist criminal conduct by his fellow gang members. [] Defendant asserts that evidence that he intentionally performed acts which aided and abetted his codefendants, even when combined with evidence that he knew their intent, falls short of proving that he shared that intent. He cites People v. Beeman (1984) 35 Cal.3d 547 . . . . Beeman held that in an aiding and abetting case it is insufficient to instruct the jury to find that the defendant merely knew the perpetrators intent. [Citation.] It acknowledged, however, that ordinarily, from a persons action with knowledge of the purpose of the perpetrator of a crime, his intent to aid the perpetrator can be inferred. In the absence of evidence to the contrary, the intent may be regarded as established. [Citation.] It simply held that we cannot extrapolate therefrom, as a matter of law, that the inference must be drawn. [Citation.] Beeman therefore actually supports our conclusion that defendants intentional acts, when combined with his knowledge that those acts would assist crimes by fellow gang members, afforded sufficient evidence of the requisite specific intent. (Id. at pp. 1198-1199.)

Defendant next cites People v. Romero (2006) 140 Cal.App.4th 15. In that case, the court held that the specific intent element of section 186.22, subdivision (b)(1), requiring a showing of specific intent to promote, further, or assist in any criminal conduct by gang members, does not require intent to further criminal conduct beyond the charged crime. (Id. at p. 17.) Although defendant here, like defendant Romero, relies on Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, the Romero court rejected the reasoning in Garcia and declined to follow it. We agree with Romero and find Garcia unpersuasive.

With regard to the requisite specific intent, Romero followed our discussion in Morales and stated: Thus, the specific intent element is satisfied if appellant had the specific intent to promote, further, or assist Moreno in the shootings of Dennard and King. There was ample evidence that appellant intended to commit a crime, that he intended to help Moreno commit a crime, and that he knew Moreno was a member of his gang. This evidence creates a reasonable inference that appellant possessed the specific intent to further Morenos criminal conduct. (People v. Romero, supra, 140 Cal.App.4th at p. 20.)

Finally, defendant cites People v. Villalobos (2006) 145 Cal.App.4th 310. Villalobos also cites Morales and holds that [c]ommission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime. [Citation.] (People v. Villalobos, supra, at p. 322.)

The Attorney General also relies on these cases and we agree with the Attorney General that the cases support its position that there was substantial evidence of the requisite specific intent. There was clearly sufficient evidence from which the jurors could conclude that defendant had the specific intent to promote, further, or assist the Elm Street Piru, a criminal street gang, by selling drugs for it, or in association with it. As the expert testified, it was unlikely that defendant was selling drugs on his own in the midst of the gang sales operation, and the evidence showed that he was at least working in concert with the gang members to sell the drugs.

We therefore conclude that, as in Morales, defendants intentional acts, when combined with his knowledge that those acts would assist crimes by fellow gang members, afforded sufficient evidence of the requisite specific intent.(People v. Morales, supra, 112 Cal.App.4th at pp. 1198-1199.)

III. DENIAL OF THE MOTION FOR A NEW TRIAL BASED ON

ALLEGED JUROR MISCONDUCT

Immediately after the jurors had rendered their verdict and were discharged, a juror reappeared in the courtroom and told the court that she had not understood a portion of the gang enhancement instruction.

As given, the instruction (Judicial Council of Cal. Crim. Jury Instns. (2006-2007), CALCRIM No. 1401) said: If you find the defendant guilty of the crime charged in Count [1], you must then decide whether the People have proved the additional allegation that the defendant committed that crime (for the benefit of,/at the direction of,/or in association with) a criminal street gang. [] To prove this allegation, the People must prove that: [] 1. The defendant (committed) the crime (for the benefit of,/at the direction of,/or in association with) a criminal street gang; [] AND [] 2. The defendant intended to assist, further, or promote criminal conduct by gang members.

As the juror later stated in a declaration accompanying defendants motion for a new trial, she did not think the second element had been met, but the jury foreman told her that if two of the first elements (e.g., direction and association) had been met, there was no need to consider the intent element. She therefore was misled about the need to find intent, and she did not believe that defendant had intended to assist, further, or promote criminal conduct by gang members.

A public defender investigator interviewed the jury foreman and filed a report in support of the new trial motion. The investigator said that the foreman recalled that several jurors had questions about the gang enhancement. But after the videotape of the transaction was shown again, all the questions seemed to have been solved or answered. The foreman recalled that one juror had questions about intent, and other parts of CALCRIM No. 1401. But he did not state what, if anything, he told the juror. The juror was the last one to vote guilty.

Juror misconduct is an obvious ground for a motion for a new trial. (Pen. Code,  1181.) The Evidence Code defines the evidence which may be received during an inquiry as to the validity of a verdict: [A]ny otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined. (Evid. Code,  1150.)

At the hearing on the new trial motion, defense counsel asked the trial court to only consider the statement made by the juror in court and in her declaration for the purpose of determining whether there was any misconduct.

The trial court cited People v. Dorsey (1995) 34 Cal.App.4th 694, and applied it in deciding the motion. Dorsey states the applicable general principles: In ruling on a request for a new trial based on jury misconduct, the trial court must undertake a three-step inquiry. [Citation.] First, it must determine whether the affidavits supporting the motion are admissible. [Citation.] If the evidence is admissible, the trial court must determine whether the facts establish misconduct. [Citation.] Lastly, assuming misconduct, the trial court must determine whether the misconduct was prejudicial. [Citations.] A trial court has broad discretion in ruling on each of these issues, and its rulings will not be disturbed absent a clear abuse of discretion. [Citations.] (Id. at pp. 703-704.)

The trial court then declared that, under Evidence Code section 1150, there was not enough admissible evidence in the jurors statements and, even if the statements were admissible, misconduct was not established. Specifically, it found that the proposed evidence all related to the subjective thought processes of the jurors, and was thus inadmissible under Evidence Code section 1150. Accordingly, the trial court denied defendants motion for a new trial.

In attacking the trial courts ruling, defendant argues that the statements of the jury foreman were misconduct because they were erroneous statements of the law.

Defendant relies on In re Stankewitz (1985) 40 Cal.3d 391. In that case, our Supreme Court said: When extraneous law enters a jury room‑‑i.e., a statement of law not given to the jury in the instructions of the court‑‑the defendant is denied his constitutional right to a fair trial unless the People can prove that no actual prejudice resulted. [Citations.] This rule has special force in capital cases . . . . (Id. at p. 397.) In that case, a juror misstated the elements of a robbery, while emphasizing his expertise as an experienced police officer. The court held that the misstatement of the law was overt misconduct. (Id. at pp. 399-400.)

The court found that, under Evidence Code section 1150, the jurors were competent to testify to statements made in the jury room. It then stated: Although this evidence may be received, it must be admitted with caution. Statements have a greater tendency than nonverbal acts to implicate the reasoning processes of jurors‑‑e.g., what the juror making the statement meant and what the juror hearing it understood. They are therefore more apt to be misused by counsel in an effort to improperly open such processes to scrutiny. But no such misuse is threatened when, as here, the very making of the statement sought to be admitted would itself constitute misconduct. Such an act is as much an objective fact as a jurors reading of a novel during the taking of testimony [citation], or a jurors consultation with an outside attorney for advice on the law applicable to the case [citation]. (In re Stankewitz, supra, 40 Cal.3d at p. 398.)

The Supreme Court subsequently reiterated its Stankewitz holding in People v. Marshall (1990) 50 Cal.3d 907: Of course, the introduction of extraneous law, whether erroneous or not, constitutes misconduct. [Citation.] (Id. at p. 950.)

However, the court went on to explain: The introduction of much of what might strictly be labeled extraneous law cannot be deemed misconduct. The jury system is an institution that is legally fundamental but also fundamentally human. Jurors bring to their deliberations knowledge and beliefs about general matters of law and fact that find their source in everyday life and experience. That they do so is one of the strengths of the jury system. It is also one of its weaknesses: it has the potential to undermine determinations that should be made exclusively on the evidence introduced by the parties and the instructions given by the court. Such a weakness, however, must be tolerated. [It] is an impossible standard to require . . . [the jury] to be a laboratory, completely sterilized and freed from any external factors. [Citation.] Moreover, under that standard few verdicts would be proof against challenge. (People v. Marshall, supra, 50 Cal.3d at p. 950.) The Supreme Court also cited this passage with approval in People v. Riel (2000) 22 Cal.4th 1153, 1219 and People v. Schmeck (2005) 37 Cal.4th 240, 307.^[2]

The Attorney General relies on Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677. In that case, an attorney sued the county for damages resulting from an alleged battery by a deputy sheriff. (Ibid.) After the attorney was awarded damages, the county sought a new trial by alleging that the jury had applied the wrong definition of a battery. (Id. at pp. 1682-1683.) The county argued that the jurors misstatements of the law defining battery constituted prejudicial misconduct requiring the court to grant a new trial. (Id. at p. 1683.)

Our colleagues in Division One rejected the countys argument, finding that the declarations of the jurors were inadmissible to impeach the verdict. (Mesecher v. County of San Diego, supra, 9 Cal.App.4th at p. 1683.) The court explained: [E]vidence about a jurys subjective collective mental process purporting to show how the verdict was reached is inadmissible to impeach a jury verdict. [Citation.] Thus, juror declarations are inadmissible where, as here, they at most suggest deliberative error in the jurys collective mental process‑‑confusion, misunderstanding, and misinterpretation of the law. [Citations.] (Ibid.)

With regard to statements made during deliberations, the court said: County attempts to avoid the impact of these rules by focusing on the fact that several of the jurors communicated their misunderstanding of the instructions during deliberations. However, [t]he subjective quality of one jurors reasoning is not purged by the fact that another juror heard and remembers the verbalization of that reasoning. To hold otherwise would destroy the rule . . . which clearly prohibits the upsetting of a jury verdict by assailing these subjective mental processes. It would also inhibit and restrict the free exchange of ideas during the jurys deliberations. [Citation.] (Mesecher v. County of San Diego, supra, 9 Cal.App.4th at pp. 1683-1684.)

We agree with the Attorney General that defendant is examining the collective subjective processes by which the jury, and particularly the complaining juror, reached a verdict. Assuming the foreman misstated the contents of the instruction during deliberations, nothing prevented the juror from reading and interpreting it for herself. The jurors statements about her confusion and her interpretation of the foremans words are clearly part of her subjective deliberative process. They are therefore inadmissible under Evidence Code section 1150. As in Mesecher, defendants entire argument at most suggest[s] deliberative error in the jurys collective mental process‑‑confusion, misunderstanding, and misinterpretation of the law. (Mesecher v. County of San Diego, supra, 9 Cal.App.4th at p. 1683.)

Attempting to avoid such a conclusion, defendant emphasizes that the juror could testify that the statement was made, and he argues that the mere fact that it was made was misconduct. But, as the Supreme Court noted in Marshall, jury deliberations are subject to human frailties, and few verdicts could withstand such close scrutiny. (People v. Marshall, supra, 50 Cal.3d at p. 950.) At most, the jurors statement and declaration showed her misunderstanding of the law, and her subjective processes in reaching a guilty verdict.

We therefore conclude that the trial court did not abuse its discretion in denying defendants motion for a new trial. The determination of a motion for a new trial rests so completely within the courts discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. [Citations.] (People v. Delgado (1993) 5 Cal.4th 312, 328.) There was no such abuse of discretion here.

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Richli

Acting P.J.

/s/ Gaut

J.

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

^[2] It is arguable whether there was any extraneous law introduced into the jury room here. This is not a case like People v. Honeycutt (1977) 20 Cal.3d 150, in which a juror consulted his attorney about questions of law arising in the case.