P. v. Smith
Filed 7/16/13 P. v. Smith CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
MICAH ANTHONY SMITH et al.,
Defendants and Appellants.
B235380
(Los Angeles
County
Super. Ct.
No. KA094070)
APPEALS
from judgments of the Superior Court
of
County. Bruce F.
Marrs, Judge. Affirmed; remanded with
directions.
Karyn H.
Bucur, under appointment by the Court of Appeal, for Defendant and Appellant
Micah Anthony Smith.
James Koester, under appointment by
the Court of Appeal, for Defendant and Appellant Clyde Bailey.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Herbert S.
Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Appellants
Micah Anthony Smith (Smith) and Clyde Bailey (Bailey) appeal from their
relating to their convictions and sentences.
We affirm the convictions, but find certain sentencing errors.
PROCEDURAL BACKGROUND
The Los Angeles County District
Attorney filed an information charging appellants and their codefendants,
Marquette Jarrett (Jarrett) and Shaundon Lamark Gray (Gray) (who are not
parties to this appeal), with the following crimes: conspiracy to commit
subd. (a)(1) (count 1);
name="_ftnref1" title="">[1]
attempted first degree burglary of the residence of Toan Duc Vo (Vo) (§§ 664,
459) (count 2); attempted first degree burglary of the residence of K. Tran
(Tran) (§§ 664, 459) (count 3); and unlawful driving or taking of a vehicle,
i.e., a Chevy Tahoe belonging to Sara Bringas (Bringas) (Veh. Code, § 10851,
subd. (a)) (count 4). Smith was also
charged with receiving stolen property, the Chevy Tahoe (§ 496d, subd. (a)
(count 5). As to the attempted first
degree burglaries in counts 2 and 3, it was alleged that a person was present
in the residence during the crimes. As
to all counts, it was alleged that the crimes were committed for the benefit of
a criminal street gang (§ 186.22,
subd. (b)(1)(B)). The information also
alleged that Smith had two prior “strike†convictions (§§ 1170.12, subds.
(a)-(d), 667, subds. (b)-(i)), two prior serious felony convictions (§ 667,
subd. (a)(1)), and had served a prior prison term (§ 667.5, subd. (b)). It also alleged that Bailey had a prior
“strike†conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and
a prior serious felony conviction (§ 667, subd. (a)(1)).
During jury selection, codefendants
Jarrett and Gray entered no contest pleas to one count of attempted first
degree burglary. Appellants were then
tried together before separate juries.
During trial, count 4 was dismissed as to Bailey.
The jury found Smith guilty on
counts 1, 2, 4, and 5. The jury was
unable to reach a verdict on count 3 and the trial court declared a mistrial as
to that count. As to count 2, the jury
found true the allegation that a person was present in the residence during the
crimes. As to all counts, the jury found
true the gang allegation.
The jury found Bailey guilty on
counts 1 through 3. As to counts 2 and
3, the jury found true the allegation that a person was present in the
residence during the crimes. As to all
counts, the jury found true the gang allegation.
Following a court trial on the
prior conviction allegations as to Smith, the trial court found the allegations
to be true. Smith was sentenced to a
total of 41 years to life in state prison.
The sentence consisted of 25 years to life on count 1 under the Three
Strikes law, plus five years for the gang enhancement, plus 10 years for the
two prior serious felony enhancements, plus one year for the prior prison term
enhancement. The sentences on the
remaining counts were stayed.
Bailey admitted the prior “strikeâ€
and prior serious felony allegations alleged against him. The trial court sentenced him to seven years
in state prison. The sentence consisted
of the low term of one year on count 2, doubled to two years because of the
prior strike, plus five years for the prior serious felony enhancement. The trial court struck the gang enhancement
and stayed the sentences on the remaining counts.
FACTS
Prosecution Case
Evidence presented to both juries
Bringas
owned a red Chevy Tahoe. On the morning
of December 15, 2010, she returned home from shopping to discover that her
Tahoe was missing, her bedroom had been ransacked, and one of her house doors
had been pried open. Missing from the
house were jewelry, coins and the keys to her Tahoe.
On the
morning of December 17, 2010, Ronald Chenier (Chenier) was home when the doorbell
rang. When he went to answer the door,
he saw a young African-American male whom he did not recognize. He did not open the door, and watched the man
retrieve something from an SUV parked in front of the house. Chenier went to his kitchen and saw the man
trying to “jimmy†open a window. Chenier
went outside. The man punched him in the
jaw and another man struck him in the back of the head, knocking him down. When Chenier looked up, he saw the two men
run down his driveway and get into an SUV.
He reported the partial license plate number of “6HF923†to the
police. The license plate number of
Bringas’s red Tahoe was 6HHG923.
Chenier was
unable to identify anyone from a photographic six pack shown to him by the
police. In viewing different live
lineups, he identified Smith. At trial,
he identified Bailey and testified that he believed Bailey was the person he
had picked in the live lineup instead of Smith.
The parties stipulated that Bailey could not have been at Chenier’s
house on the day of the incident because he was in the custody of the juvenile
detention department at that time.
On December
29, 2010, Vo was at his house on the corner of Muscatel Avenue and Hovey Street
in Rosemead when someone rang the bell at the gate of the fence that surrounded
his property. Vo had a surveillance
system with eight cameras. He looked at
the monitor and saw an African-American male at the gate. He watched the man walk down his driveway,
then walk back to the gate, climb over the gate, walk to his front door and
shake the handle before leaving the property.
He saw the man get into a vehicle that turned right onto Hovey
Street. A copy of the surveillance
footage was shown to the jury, and Vo identified Smith at trial. The video footage showed that at the time
Smith was ringing the doorbell, he was looking at a piece of paper in his hand
and talking on a cell phone.
The same
day, 15-year-old Tran was at his house on Hovey Street near Muscatel Avenue
when someone knocked on the front door.
Tran opened the door and saw an African-American male who asked for
directions to the freeway. Tran said he
was not old enough to drive and needed to go ask his father. When Tran returned, the man was gone and Tran
saw a red SUV driving away. On the day
of the incident, Tran told the police that he heard three loud bangs on the
front door and then heard someone pulling forcefully on the door. He also told the police that the person kept
looking over his shoulder and turning around in a suspicious manner while talking
to Tran. At trial, Tran identified
Bailey as the person at his front door.
Also on
December 29, 2010, Los Angeles County Deputy Sheriff Juan Rivera responded to a
call regarding suspicious males inside a red SUV near the area of Muscatel and
Hovey. He saw the vehicle on Muscatel
and initiated a traffic stop. Smith was
the driver, Bailey was the front passenger, and codefendants Jarrett and Gray
were in the backseats. After learning
the SUV was Bringas’s stolen Tahoe, Deputy Rivera and other responding officers
detained the men and searched the car.
Seven cell phones and a screwdriver about 14 to 16 inches long were
found. The police then transported Tran
to the location of the SUV for a field show up.
Tran identified Bailey as the person who was at his front door, and also
identified the SUV as the one he had seen at his house.
Gang Evidence
Los Angeles Police Department
Officer Brian Zavala testified as a gang expert.
He monitored the Rollin 30’s Harlem Crips gang (Rollin 30’s
gang), which had about 730 active members.
The gang’s primary activities included burglary, robbery, murder, rape,
possession of concealed firearms, and driving stolen vehicles.
In Officer Zavala’s opinion, Smith,
Jarrett and Gray were all members of the Rollin 30’s gang. Smith, Jarrett and Gray each had tattoos
reflecting their gang membership. Smith
also had a tattoo that said “Hot Heads,†which was a clique of the Rollin 30’s
gang “tasked†with committing residential burglaries. Numerous field identification cards reflected
Smith’s membership in the gang and his gang moniker as “Tiny Crazy D.†Jarrett had admitted his membership in the
gang. Officer Zavala also testified that
Bailey was a member of the 8 Trey Gangster Crips. Bailey had also admitted his membership in
the 8 Trey Gangster Crips, and his gang moniker was “Trey Boy.†It was not unusual for members of the two
gangs (both Crips gangs) to be in each other’s company.
Officer Zavala testified about the
manner in which Rollin 30’s gang members committed residential burglaries. He testified that they generally committed
burglaries in areas outside of their gang’s territory using cars that were
stolen or rented. They typically used a
crew of three to four gang members who communicated by cell phone. One person was the driver and one person was
the look out. Someone would knock on a
door to see if anyone was home. If
someone answered the door, the gang member would have an excuse for knocking,
such as asking for directions. They
generally broke into a house in the backyard where they could not be seen. The most common burglary tool used was a
large screwdriver.
Officer Zavala testified that in
his opinion the crimes committed on December 29, 2010, were committed for the
benefit of, in association with, or at the direction of the Rollin 30’s
gang. He explained that the commission
of residential burglaries makes the gang more powerful, creates fear of the
gang in the community, brings money into the gang, and helps the recruitment of
younger members.
Additional Evidence Presented to Smith’s Jury
On April 30, 2005, Kelly Barlow
(Barlow) was asleep in her home in Lancaster when the doorbell rang at about
4:00 a.m. She went to a front window and
saw an African-American male reaching toward the window. Barlow jumped back and called 911. The man banged on the window, repeatedly rang
the doorbell, and pulled on the metal security gate at the front door. Barlow went into her garage and got into her
car while still talking to the 911 operator.
When everything became quiet, she went back inside her house. She heard the handle of her front door
rattling, which meant the person had gotten past the metal security gate. Barlow went back to the garage, got into her
car, and backed into the driveway. She
saw the man running toward her car and reaching for the passenger door. Barlow repeatedly honked the car horn and the
man ran away. The police then arrived.
Barlow examined the front door and
metal security gate. The mesh on the
security gate had been pried away from the frame and a bolt that secured the
frame to the house had been removed.
There were scratches and dents on metal plates on the door jamb and on
the dead bolt on the front door.
Thumbprints lifted from the metal security gate and from the door latch
on the front door matched Smith’s thumbprint.
On May 31, 2005, around 3:30 p.m.,
Pat Beck returned to his house in Los Angeles to find that two bedrooms
had been ransacked. He went outside and
called the police. He walked through his
house with the police and discovered that personal property and jewelry were
missing. A window in the back guest room
had been broken and pried open. A
fingerprint lifted from the outside of the window frame matched Smith’s
fingerprint.
Additional
Evidence Presented to Bailey’s Jury
After Bailey was arrested, he
was taken to the Temple City Police Station where he waived his
rights and spoke to the police. Bailey
said that he had spent the night at codefendant Gray’s house. The next morning, Smith and codefendant
Jarrett picked them up in a red Chevy Tahoe.
Bailey did not know the car was stolen.
The men decided to look for houses to burglarize, especially houses
owned by Asians.
title="">[3] When they reached the corner of Muscatel
Avenue and Hovey Street, someone said, “That’s the house.†Smith pulled over and got out of the
SUV. He walked to a house on the corner
and stood at the front gate. He then
walked down the street, went back to the front gate and jumped over it. A minute or two later he came back to the car
and said the house was secured.
The men then drove down Hovey to a
dead end. Bailey got out of the car and
went to a home where he asked an Asian male teenager for directions because
they were lost. He got back into the car
and they drove away until they were stopped by the police. Bailey admitted that he was a member of the 8
Trey Gangster Crips.
Defense Case
Smith’s
wife, China Perrigen testified that Smith left their house around 9:30 or 10:00
a.m. on December 29, 2010, and got into a red truck with codefendant Marquette,
who was driving.
Shaniece Phipps met codefendant
Jarrett at a Christmas party in 2010.
She made plans to meet him on December 27 or 28, 2010, between 8:00 p.m.
and 9:00 p.m. at a park near Muscatel in Rosemead, which was near her aunt’s
house. She went to the park but no one
was there.
Neither Smith nor Bailey testified,
and Smith did not present any evidence in his defense.
Prosecution’s
Rebuttal Case
Shaniece Phipps told Smith’s
investigator that she was going to meet Jarrett at a park near Rosemead and
Valley Boulevards. She never said the
park was near Muscatel.
DISCUSSION
I. The Trial Court Properly Denied Smith’s
Motions
Smith contends the trial court erred in denying his
African-American potential jurors, Juror No. 12 and Juror No. 17.
Proceedings
Smith and Bailey are
African-American. During voir dire,
there were four African-American potential jurors. The prosecutor exercised a peremptory
challenge against one of these jurors, Juror No. 7, who was approximately 30
years old and had a prominent tattoo.
Smith’s attorney objected and brought a Wheeler/Batson motion. The
trial court found a prima facie case of racial discrimination and asked the
prosecutor to state his reasons for his peremptory challenge. The prosecutor explained that tattoos were
going to be an important part of the case and he was concerned that Juror No. 7
might identify with appellants in light of the juror’s age and tattoo. The trial court found that the prosecutor had
offered valid, race-neutral reasons for excusing Juror No. 7 and that they were
the actual reasons for the challenge.
The court denied Smith’s Wheeler/Batson
motion. The remaining three
African-American jurors, Juror Nos. 12, 17 and 18, were called into the jury
box and questioned.
Juror No. 12 was a woman in her
forties. Her husband had been a deputy
sheriff who left the department because he was convicted of fraud. The trial court asked her whether that would
affect her ability to be fair to both sides in the case. She replied, “No. But I do feel very uncomfortable with the
situation.†The trial court then asked
her whether she could put the matter aside and decide the case based on the
evidence. She replied, “Yeah. I guess so.
Yes.â€
During questioning by the defense,
Juror No. 12 said that she was a retired middle school teacher who taught
art. She had students who were gang
members with tattoos, and she encouraged some of her students to express their
creativity in a manner other than graffiti.
When the prosecutor questioned
Juror No. 12, the following exchange occurred:
“[The
Prosecutor]: You said you were
uncomfortable, something uncomfortable about this, and I don’t understand. [¶]
What’s uncomfortable?
“[Juror
No. 12]: Just the process. Just being here in this situation just makes
me nervous. I lose sleep. It’s uncomfortable.
“[The
Prosecutor]: Does what happened
to your husband have something to do with that discomfort?
“[Juror
No. 12]: Oh, yeah,
definitely. Definitely.
“[The
Prosecutor]: Hmmm. Okay. [¶]
Was your husband charged with a crime?
“[Juror
No. 12]: Yes.
“[The
Prosecutor]: Did he serve time?
“[Juror
No. 12]: Yes.
“[The
Prosecutor]: Obviously that’s
very traumatic. [¶] Do you think he was treated fairly?
“[Juror
No. 12]: At times. There were situations that happened that I
thought it wasn’t fair. Once he was sent
away. I think maybe here. And the justice system here, during the court
system, he probably was treated fairly.
But once he was sent away, not necessarily.
“[The
Prosecutor]: Okay. So what do you think? [¶] I
notice[d] that when you answered the court’s question about can you be fair,
you kind of hesitated. [¶] I mean, am I right that you kind of hesitated
when you answered that question?
“[Juror
No. 12]: In terms of just feeling
uncomfortable, you know, so that’s the whole thing. I can see both sides of the situation. I can see the defendant’s side. I can see the prosecution side. [¶] Do
I think that the police will be necessarily truthful. [¶] Maybe not. [¶] Do
I think that the defendant might necessarily be truthful? [¶]
Maybe not. So there’s both sides
of it.â€
Juror No. 17 was a man in his
forties. He had a cousin who was a
Mississippi state trooper, but he never communicated with him. He also had two friends who worked for the
Los Angeles County Sheriff’s Department whom he saw every weekend. He also had friends who were gang members and
former gang members. He was a telephone
technician who sometimes worked in gang areas but did not feel threatened in
those areas.
When defense counsel asked Juror
No. 17 if he could be fair to the prosecution, he replied, “Yeah. I’ve been arrested before, or falsely
arrested.†He then explained that the manager
of a store thought he was with a group of people passing bad checks and he sat
in the back of a police car for 45 minutes.
He also stated that his brother was falsely arrested and jailed for
three weeks for a burglary that he did not commit. Juror No. 17 explained, “It was a witness
problem. Somebody said she saw him, but
it wasn’t him.†Defense counsel asked
Juror No. 17 if those experiences made him biased. He replied, “No. I don’t blame them. There’s bad apples in everything.†Defense counsel asked him if he felt law
enforcement “was doing their job.†He
replied: “Yeah. Some.
Yeah. To a point. Like I say, it wasn’t their fault. It was a witness. Mine was the store manager. He said I was with the people. I didn’t know the people, they just—I mean, I
would have liked an explanation. Being
car for 45 minutes and not being told why was kind of rough. But once they explained it, it was like, oh,
okay.â€
After the jurors were questioned,
the trial court conducted a side bar and asked the prosecutor if he planned to
exercise his peremptory challenges against Juror Nos. 12, 17 and 18, a woman in
her twenties. The prosecutor responded
that he was going to challenge Juror Nos. 12 and 17, but was not sure about
Juror No. 18. The trial court then
commented as to Juror No. 12 that “you’ve got the [married] husband out of law
enforcement,†and “She’s hesitated.
She’s uncomfortable. She’s got
gang issues, as well, in art. She said
her husband was treated fairly at times.
[¶] . . . those would all appear to be race
neutral.†As to Juror No. 17, the trial
court commented, “The gentlemen’s brother’s falsely arrested. He was falsely arrested, on the one hand; on
the other hand, he hangs with a couple of L.A. officer types on weekends
watching ball games. He worked in a gang
area. All of these would be
justifications that would certainly justify a peremptory challenge, if it
wasn’t for the mere fact that he’s black.â€
Smith’s attorney stated that he did not believe the reasons for excusing
the African-American jurors were race neutral and compared them to a Caucasian
juror, Juror No. 16. The trial court
stated, “I think peremptory as to 12 would certainly lie based on her
background. [¶] I think 17 and 16 would both be race neutral
based on their backgrounds.†The
prosecutor exercised peremptory challenges against Juror Nos. 12 and 17. The defense renewed its Wheeler/Batson motions, which the trial court denied.
Law
Both
the state and federal Constitutions
prohibit the use of peremptory challenges to excuse prospective jurors based on
race. (People v. Jones (2011) 51
Cal.4th 346, 360.) A defendant who
suspects that a juror has been challenged based on race may bring a Wheeler/Batson
motion, which requires three steps.
(People v. Lomax (2010) 49
Cal.4th 530, 569.) First, the defendant
must make a prima facie showing that the prosecutor exercised a peremptory
challenge based on race, “by showing that the totality of the relevant facts
gives rise to an inference of discriminatory purpose.†(Batson,
supra, 476 U.S. at pp. 93–94.)
Second, if such a showing is made, the burden shifts to the prosecutor
to demonstrate that the challenge was made for a race-neutral reason. (Id.
at p. 94.) Third, if the prosecutor
offers a race-neutral explanation, the trial court must decide whether the
defendant has proven purposeful discrimination.
(Johnson v. California (2005)
545 U.S. 162, 168.) At the third step,
“‘“the issue comes down to whether the trial court finds the prosecutor’s
race-neutral explanations to be credible. . . . â€â€™â€ (People
v. Lomax, supra, at pp. 570–571.)
“The ultimate burden of persuasion regarding racial motivation rests
with, and never shifts from, the opponent of the strike. [Citation.]’â€
(Id. at p. 569.)
Error by Trial Court
Smith argues the trial court “procedurally erred†in
denying his Wheeler/Batson motions
because it failed to ask the prosecutor to explain his reasons for challenging
two of the three remaining African-American jurors. According to Smith, the trial court made an
implied finding that there was a prima facie case of group bias and then
improperly supplied its own race-neutral reasons instead of requiring the
prosecutor to do so. We disagree.
First, the record does not support the conclusion that the
trial court made an implied finding that Smith demonstrated a prima facie case
of group bias. The trial court never
stated that it found a prima facie case of bias. Presumably, if the trial court had made such
a finding, it would have said so, just as it did when it ruled earlier on the
7: “I have to find a prima facie
case. On the totality of the relevant
facts that I’m aware of, certainly give rise to an inference of discriminatory
purpose.†The trial court also never
asked the prosecutor to explain his reasons for challenging Juror Nos. 12 and
17, as it did previously with Juror No. 7:
“So the burden now shifts to [the prosecutor] on behalf of the People,
who must give race-neutral justifications or inferences of justifications
. . . . [¶]
. . . And of course I must be satisfied that the
explanation is genuine.†From these
comments, it appears that the trial court correctly understood the procedural
requirements.
Second, the law does not support the conclusion that the
trial court made an implied finding of a prima facie case of group bias. Smith cites no law to support the proposition
that the mere discussion of a juror’s characteristics between a judge and
attorneys means the trial court has found a prima facie case of group
bias. “A defendant may make out a prima
facie case of group bias in jury selection by showing that ‘the totality of the
relevant facts gives rise to an inference of discriminatory purpose.’†(
548.) The inference can easily be made
that the trial court’s discussion of the voir dire responses of Juror Nos. 12
and 17 shows that the court was considering the totality of the relevant facts
in concluding that there was no prima facie case of group bias. Indeed, even if the trial court had inquired
about the prosecutor’s justifications for his peremptory challenges, it would
not necessarily mean the trial court had found a prima facie case of group
bias. (People v. Taylor (2010) 48 Cal.4th 574, 616 [“We have found it
proper for trial courts to request and consider a prosecutor’s stated reasons
for excusing a prospective juror even when they find no prima facie case of
discrimination; indeed, we have encouraged this practiceâ€].)
To the extent Smith is arguing that the trial court erred
in not finding a prima facie case of group bias, we reject this argument. When a trial court denies a
no prima facie case of group bias, “‘the reviewing court considers the entire
record of voir dire. [Citation.] If the record suggests grounds upon which the
prosecutor might reasonably have challenged the jurors in question, we
affirm.’†(People v. Panah (2005) 35 Cal.4th 395, 439.) Here, there were race neutral grounds upon
which the prosecutor might reasonably have challenged Juror Nos. 12 and 17.
As to Juror No. 12, her husband had been a deputy sheriff
who was convicted of fraud. When the
trial court asked if she could be fair to both sides, she replied that she was
“very uncomfortable with the situation.â€
The prosecutor commented that she hesitated when the trial court asked
her if she could be fair. When the
prosecutor followed up, she said that she was uncomfortable with “the
process. Just being here in this
situation just makes me nervous. I lose
sleep. It’s uncomfortable.†She said that her discomfort was related to
her husband’s situation. In light of her
husband’s criminal conviction, her hesitation to state she could be fair, and
her discomfort with the trial process, the prosecutor could have been
legitimately concerned that Juror No. 12 would not be a good juror for the
prosecution. (See People v. Gray (2005) 37 Cal.4th 168, 192 [no prima facie case
shown where prosecutor challenged prospective juror who indicated that someone
close to her had been arrested and sent to jail].)
As for Juror No. 17, both he and his brother had been
falsely arrested. Juror No. 17 said
that he spent 45 minutes handcuffed in a police car for a crime he did not
commit, and his brother spent three weeks in jail for a crime his brother did
not commit. The prosecutor could have
reasonably believed that a juror who had been falsely arrested and whose
brother had been falsely arrested might be sympathetic to the defense. (See People
v. Lenix (2008) 44 Cal.4th 602, 628 [“‘We have repeatedly upheld peremptory
challenges made on the basis of a prospective juror’s negative experience with
law enforcement’â€].) Juror No. 17 also
had friends who were gang members and former gang members. This also could have caused the prosecutor to
believe Juror No. 17 would be sympathetic to the defense.
Appellant also appears to
argue that the trial court erred in denying his motion because a comparative
juror analysis between Juror Nos. 12 and 17 and Juror No. 16, who was not
dismissed, revealed group bias.
Appellant, however, acknowledges that a comparative juror analysis comes
into play in the third step of a Wheeler/Batson
motion. The trial court never reached
the third step. Neither do we.
No Merit to Smith’s Claim That Trial Court Erred in Denying His Motion
to Dismiss a Juror for Cause
Smith contends the trial court erred in denying his motion
to excuse for cause a juror who was originally known as Juror No. 12. We find no merit to this claim. To prevail on a claim challenging a trial
court’s denial of a challenge for cause, a defendant must show that the court’s
denial of the challenge for cause “‘“affected his right to a fair and impartial
jury.â€â€™â€ (People v. Clark (2011) 52 Cal.4th 856, 902.) If the prospective juror does not actually
sit on the jury, then the trial court’s ruling denying the challenge for cause
could not have affected the defendant’s right to a fair and impartial
jury. (Ibid.) Here, codefendant
Gray’s attorney excused Juror No. 12. At
the time, he was exercising peremptory challenges for all defendants
jointly. Because Juror No. 12 did not
sit on the jury, Smith’s right to a fair and impartial jury was not violated.
III. The Trial Court Properly Dismissed Juror No.
4 During Deliberations
Smith contends the trial court violated his
constitutional rights to a fair trial and due process by dismissing Juror No. 4
during deliberations without good cause.
Section 1089 permits the trial court to remove a juror if
upon “good cause shown to the court [the juror] is found to be unable to
perform his or her duty.†Removal of a
juror under section 1089 is committed to the discretion of the trial court, and
we review whether the grounds for such removal appear in the record as a
“demonstrable reality.†(
137.) “The demonstrable reality test
entails a more comprehensive and less deferential review. It requires a showing that the court as trier
of fact did rely on evidence that, in
light of the entire record, supports its conclusion that bias was
established.†(People v. Barnwell (2007) 41 Cal.4th 1038, 1052–1053.)
“A juror who refuses to follow the court’s instructions is
‘unable to perform his duty’ within the meaning of . . . section 1089.†(People
v. Williams (2001) 25 Cal.4th 441, 448; People
v. Alexander (2010) 49 Cal.4th 846, 926 [a deliberating juror’s refusal to
follow the law set forth in the instructions constitutes a failure to perform
the juror’s duties and is a ground for discharge]; People v. Ledesma (2006) 39 Cal.4th 641, 738 [“In appropriate
circumstances a trial judge may conclude, based on a juror’s willful failure to
follow an instruction, that the juror will not follow other instructions and is
therefore unable to perform his or her duty as a jurorâ€].)
Here, the trial court dismissed Juror No. 4 for discussing
punishment during deliberations. The
jury was instructed with CALJIC No. 17.42:
“In your deliberations do not discuss or consider the subject of penalty
or punishment. That subject must not in
any way affect your verdict.â€
During deliberations, the trial court received a note from
Juror No. 9 stating that “one of the jurors is not fair and impartial†because
the juror had said, “We are sending someone to jail for 5-10 years and they
will [lose] their right to vote.†The
note further stated, “Continues to go over sentence time.†The trial court questioned Juror No. 9, who
confirmed that Juror No. 4 made the comments about punishment, that Juror No. 4
made such comments more than once, and that Juror No. 4 appeared to be basing
his verdicts on that consideration. The
court then questioned Juror No. 4, who admitted making the comments during
deliberations despite hearing the trial court’s instruction not to consider the
subject of penalty or punishment.
The trial court’s determination that Juror No. 4 committed
misconduct by willfully ignoring its instructions is therefore supported to a
demonstrable reality. (See
pp. 742–743 [trial court properly discharged juror who violated instruction not
to discuss case outside of deliberations].)
Thus, there was no violation of Smith’s constitutional or statutory
rights. (People v. Fuiava (2012) 53 Cal.4th 622, 716.)
While Smith concedes that Juror No. 4’s comments about
punishment during deliberations were contrary to the court’s instructions and
constituted misconduct, he nevertheless argues that Juror No. 4 should not have
been dismissed because Juror No. 4 indicated during questioning by defense
counsel that he had been admonished by the other jurors and had “acceptedâ€
their admonitions. But the trial court
found Juror No. 4’s statements minimizing his misconduct to be lacking in
credibility. The trial court
stated: “Despite good leading on your
part, it’s pretty clear that the gentleman’s a liar.†The issue of credibility was for the trial
court to resolve. As our Supreme Court
explained in People v. Lomax, supra,
49 Cal.4th at page 590: “We have
observed that trial courts are frequently confronted with conflicting evidence
on the question whether a deliberating juror has exhibited a disqualifying
bias. [Citation.] ‘Often, the identified juror will deny it and
other jurors will testify to examples of how he or she has revealed it.’ [Citation.]
In such circumstances, the trial court must weigh the credibility of
those testifying and draw upon its own observations of the jurors throughout
the proceedings. We defer to factual
determinations based on these assessments.â€
Even though Juror No. 4 denied that his verdict would be based on the
issue of penalty, Juror No. 9 said that it did appear Juror No. 4 was basing
his verdict on the issue of penalty.
Smith also argues that the trial court erred in dismissing
Juror No. 4 without first conducting an appropriate hearing that would have
involved questioning all of the jurors.
Smith’s reliance on People v.
Barnwell, supra, 41 Cal.4th 1038 is misplaced. In Barnwell,
after receiving notes from the jury about a “problem juror,†the trial court
conducted a hearing and took testimony from all 12 jurors. (Id.
at pp. 1048–1049.) But the
questioning all jurors was required in every case. Indeed, here, Juror No. 4 admitted that he
was not following the court’s instructions.
The trial court reasonably could have determined that further inquiry
was unnecessary. (See
1159 [“The trial court retains discretion about what procedures to employ,
including conducting a hearing or detailed inquiry, when determining whether to
discharge a jurorâ€].)
Moreover, even if the trial court erred in dismissing
Juror No. 4 and replacing him with an alternate juror, the error was
harmless. (People v. Thomas (1990) 218 Cal.App.3d 1477, 1486.)
of Juror No. 4 with an alternate juror prejudiced him. There is nothing in the record to indicate
that Juror No. 4 believed Smith was not guilty.
Additionally, even after Juror No. 4 was dismissed, the jury still
deadlocked on one of the charges against Smith.
Thus, Smith cannot show how he was harmed by the dismissal of Juror No.
4.
Gang Enhancement
The
jury found true the gang allegations attached to all counts. Smith contends there was insufficient
evidence to support the true findings because there was no evidence that the
offenses were committed with the specific intent to promote, further, or assist
in any criminal conduct by gang members.
When
reviewing a challenge to the sufficiency of the evidence, we review the entire
record in the light most favorable to the judgment to determine whether a
rational trier of fact could find the defendant guilty beyond a reasonable
doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) This standard applies whether direct or
circumstantial evidence is involved. (
113.) The standard also applies when
determining whether the evidence is sufficient to sustain a jury finding on a
gang enhancement. (People v. Mendez (2010) 188 Cal.App.4th 47, 56.) “[I]t is 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.†(People
v. Maury (2003) 30 Cal.4th 342, 403.)
Reversal is not warranted unless it appears that “‘upon no hypothesis
whatever is there sufficient substantial evidence to support [the
conviction].’ [Citation.]†(People
v. Bolin (1998) 18 Cal.4th 297, 331.)
Evidence Supports the Gang Enhancements
Section 186.22, subdivision (b)(1)(A), provides that “any
person who is convicted of a felony committed for the benefit of, at the
direction of, or in association with any criminal street gang, with the
specific intent to promote, further, or assist in any criminal conduct by gang
members,†shall receive additional punishment.
The jury was so instructed
with CALJIC No. 17.24.2. The enhancement
therefore has two prongs—the benefit prong and the intent prong. (People
v. Villalobos (2006) 145 Cal.App.4th 310, 322.)
Smith focuses on the intent
prong. He points out that while the gang
expert opined on the first prong, the expert was never asked his opinion on the
second prong, i.e., whether the offenses were committed with the specific
intent to promote, further, or assist in any criminal conduct by gang
members. But appellant points to no
authority indicating that the absence of such an expert opinion precludes a
jury finding of intent. Smith also
points out there was no evidence that any of the defendants were wearing gang
attire, displayed gang signs or words, or that any of the victims knew the defendants
were gang members. But, as the People
note, the scienter element of the gang enhancement does not require that the
defendant promote the gang during the
offense; only that the defendant promote (or further or assist)
Smith also ignores the remaining evidence. The jury learned that Smith was a member of
the Rollin 30’s gang, and had a tattoo of the “Hot Heads†clique of the gang
whose members were “tasked†with committing residential burglaries. When Smith was arrested, he was driving a
stolen vehicle. Two other occupants of
the vehicle, Jarrett and Gray, were also members of the Rollin 30’s gang. And the fourth occupant, Bailey, was a member
of a different Crips gang, which associated with the Rollin 30’s gang. There was no evidence that the occupants were
unaware of each other’s gang affiliation.
The gang expert testified that one of the Rollin 30’s primary activities
was burglaries. He described how the
Rollin 30’s gang members committed residential burglaries, such as using stolen
vehicles, working with others to have a look out, communicating by cell phone,
and using a screw driver to pry open doors and windows. The description matched the manner in which
the instant crimes were committed.
“‘[I]f substantial evidence establishes that the defendant intended to
and did commit the charged felony with known members of a gang, the jury may
fairly infer that the defendant had the specific intent to promote, further, or
assist criminal conduct by those gang members.’†(People
v. Livingston (2012) 53 Cal.4th 1145, 1171; People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [“defendant’s
intentional acts, when combined with his knowledge that those acts would assist
crimes by fellow gang members, afforded sufficient evidence of the requisite
specific intentâ€]; People v. Villalobos,
supra, 145 Cal.App.4th at p. 322 [same].)
Smith relies on In
re Daniel C. (2011) 195 Cal.App.4th 1350, but that case is
distinguishable. There, in concluding
the evidence was insufficient to support the specific intent element of the
gang enhancement, the reviewing court noted there was no evidence that the
defendant was acting in concert with his companions when he robbed a liquor
store and no evidence that his companions committed or were charged with any
crime. (Id. at pp. 1359–1364.)
The same is not true here. We are
satisfied that substantial evidence supports the jury’s true finding on the
gang allegation.
V. Gang Expert’s Opinion Properly Allowed
In response to a hypothetical question mirroring the facts
of this case, the prosecution’s gang expert testified that in his opinion the
crimes in this case were committed for the benefit of, in association with, or
at the direction of the Rollin 30’s gang.
Smith’s attorney objected on the ground that this opinion went to an
“ultimate fact.†The trial court
overruled the objection. Smith contends
the trial court violated his constitutional rights by allowing such opinion
testimony because it went to an ultimate issue of fact. We disagree.
“Testimony in the form of an opinion that is otherwise
admissible is not objectionable because it embraces the ultimate issue to be
decided by the trier of fact.†(Evid.
Code, § 805.) In People v. Prince (2007) 40 Cal.4th 1179, our Supreme Court made
clear that, “[d]espite the circumstance that it is the jury’s duty to determine
whether the prosecution has carried its burden of proof beyond a reasonable
doubt, opinion testimony may encompass ‘ultimate issues’ within a case.†(Id.
at p. 1227.) Prince cited with approval People
v. Valdez (1997) 58 Cal.App.4th 494, 507, in which the court held that it
was proper for a gang expert to offer his opinion that the defendant acted for
the benefit of his gang even though the opinion concerned an ultimate issue for
the jury to decide. (
p. 1227.)
Smith’s reliance on People
v. Killebrew (2002) 103 Cal.App.4th 644 is misplaced. Killebrew’s
holding that a gang expert’s testimony should have been excluded because it
constituted an improper opinion on an ultimate issue was specifically rejected
by our Supreme Court in People v. Vang
(2011) 52 Cal.4th 1038 (Vang): “To the extent that Killebrew . . . was correct in prohibiting expert testimony
regarding whether the specific
defendants acted for a gang reason, the reason for this rule is
the ultimate issue in the case.
‘Testimony in the form of an opinion that is otherwise admissible is not
objectionable because it embraces the ultimate issue to be decided by the trier
of fact.’†(Vang, supra, at
p. 1048, fn. omitted, citing Evid. Code, § 805.) The Vang
court explained that the reason for this rule is that opinions on guilt or
innocence are simply not helpful to a jury.
(Vang, at p. 1048.) The Vang
court concluded that the expert “properly could, and did, express an opinion,
based on hypothetical questions that tracked the evidence, whether the assault,
if the jury found it in fact occurred, would have been for a gang purpose.†(Ibid.) “It has also long been settled that expert
testimony generally, and expert testimony regarding whether a crime is gang
related specifically, may be given in response to hypothetical questions.†(Id.
at pp. 1049–1050, fn. 5.)
Accordingly, the trial court properly allowed the gang
expert to offer his opinion in response to a hypothetical question that the
crimes were gang related.
Imposition of the Five-Year Gang Enhancement to Smith’s Sentence was
Error
Smith contends, and the People agree, that the trial court
erred in imposing the five-year gang enhancement to Smith’s sentence.
Smith was sentenced to 41 years to life in
to life in count 1 under the Three Strikes law, plus five years for the gang
enhancement, plus 10 years for the two prior serious felony enhancements, plus
one year for the prior prison term enhancement.
The five-year gang enhancement was imposed pursuant to section 186.22,
subdivision (b)(1)(B).
Section 186.22, subdivision (b)(1), provides for a
sentence enhancement if a defendant is convicted of a felony committed for the
benefit of, at the direction of, or in association with, any criminal street
gang with the specific intent to promote, further, or assist in criminal
conduct by gang members. If the felony
is a serious felony, the enhancement is an additional five years in state
prison. (§ 186.22, subd. (b)(1)(B).)
felony punishable by life imprisonment, the statute provides that the defendant
must serve a minimum of 15 years before becoming eligible for parole. (§ 186.22, subd. (b)(5).) Thus, “[t]he determinate term enhancement . .
. is to be applied only when the conviction is of a
. . . offense for which a determinate
term is proscribed; if the conviction is of a crime for which an
proscribed, the limitation upon parole eligibility provided for in subdivision
(b)(5) is applicable. If the parole
limitation of [section 186.22,] subdivision (b)(5) is applicable, the 10-year
enhancement is not.†(
360, 390; People v. Lopez (2005) 34
Cal.4th 1002, 1007 [“It therefore appears that the Legislature intended section
186.22[, subdivision] (b)(5) to encompass both a straight life term as well a
term expressed as years to life (other than those enumerated in subdivision
(b)(4)) and therefore intended to exempt those crimes from the 10-year
enhancement in subdivision (b)(1)(C)â€].)
Smith was convicted of a felony punishable by an
indeterminate life term because it was alleged and proven that he had two prior
“strikes.†Accordingly, the limitation
upon parole eligibility in section 186.22, subdivision (b)(5) was applicable
rather than the five-year term under subdivision (b)(1)(B). Therefore, the five-year gang enhancement
under section 186.22, subdivision (b)(1)(B) must be stricken and replaced with
the 15-year minimum parole eligibility pursuant to section 186.22, subdivision
(b)(5).
Bailey’s Prior Strike Admission
Before the jury returned its verdicts, Bailey admitted that he suffered a
prior juvenile adjudication for robbery on June 2, 2010, within the meaning of
section 1170.12, subdivisions (a) through (d) and section 667, subdivisions (b)
through (i). At sentencing, the trial court used the “strike†to double
Bailey’s sentence on count 2 (attempted first degree burglary) from the low
term of one year to two years. Bailey
contends the prior adjudication cannot be used as a “strike†because he was
only 15 years old at the time of the prior offense.
Section 1170.12 provides that certain juvenile
adjudications may be used to enhance a subsequent adult felony conviction if
the adjudications were the result of an offense committed by a juvenile after
turning 16 years old. (§ 1170.12, subd.
(b)(3)(A); see also § 667, subd. (d)(3)(A) (Three Strikes law).) Bailey turned 16 in September 2008. He argues there was no factual basis to
support a finding that he admitted to an adjudication for an offense he
committed after turning 16 years of age.
Proceedings
The information filed in
this case alleged that Bailey had a prior juvenile adjudication of robbery (§
211) on June 2, 2010, in case No. JJ15534.
The following discussion later took place in court:
“[The Court]: How do you plead then to the prior
conviction—check me to make sure I got the right numbers—in case JJ15534, a
violation of Penal Code section 211 in the juvenile court on June 2nd, 2010,
Los Angeles, California, within the meaning of Penal Code sections 1170.1[,
subdivisions] (a) through (d), 667[, subdivisions] (b) through (i) and 667[,
subdivision] (a)(1), do you admit?
“[Bailey]: No contest.
“[Bailey’s
attorney]: No contest.
“[The Court]: That’s an admission, right?
“[Bailey’s
attorney]: Yes.
“[The Court]: Thank you.
[¶] Join counsel?
“[Bailey’s
attorney]: Counsel joins.
“[The Court]: And join in the plea and the admission?
“[Bailey’s
attorney]: So join.
“[The Court]: And, [the prosecutor], you also join?
“[THE Prosecutor]: Yes.
“[The Court]: I will show the defendant’s freely and
voluntarily, understandingly, knowingly, intelligently admitted the prior with
knowledge of the consequence made long term, and there’s certainly a factual
basis from the probation report attached to the information in this
matter.†The trial court then clarified
that Bailey was waiving his right to a trial on the issue of his prior
adjudication.
Bailey’s probation report contains two separate
entries under the heading “Juvenile History.â€
The first entry, under the date of September 18, 2007, states:
“LAPD – 211 PC (Robbery); Petition was filed on
09/20/07, Department 265, Case JJ15534; 10/11/07 in Department 265, the
petition is sustained as to Count 2: 245(A)(1) PC (AWD [assault with deadly
weapon]); ordered camp placement; on 05/07/08, released home to parent; . . .
on 06/02/10, ordered camp placement; 11/05/10, placed on camp community
placement released to grandmother 12/17/10.â€
The second entry, under
the date of May 12, 2010, states:
“LAPD-211 PC (Robbery);
on 05/14/10, Department 205, petition is filed; on 06/02/10, order for home on
probation is terminated, petition is sustained, ordered camp placement; placed
at Camp Gonzalez on 06/10/10; on 11/05/10, placed on camp community placement
program for nine months; released to grandmother on 12/17/10; progress report
on 2/4/11.â€
Admission is Supported by the Record
Bailey asserts that the probation report and information
“affirmatively establishes that [Bailey] was under the age of sixteen years
when he committed the robbery or assault for which he was adjudicated in
juvenile case no. JJ15543.†Bailey
requests that we “independently review the appellate record and conclude that substantial
evidence does not support the court’s factual and legal determinations that the
adjudication fell within the provisions of Penal Code sections 1170.12,
subdivisions (a) through (d) and 667, subdivisions (b) through (i).â€
The People argue that Bailey’s challenge to the
sufficiency of the evidence that his prior robbery adjudication constitutes a
permissible “strike†is barred because he admitted the strike allegation at
trial. The People rely on
780, in which the reviewing court found that a challenge to the evidentiary
sufficiency of a firearm allegation was not cognizable on appeal in part
because the defendant, who had pled guilty to a charge of robbery and had
admitted the firearm allegation, had not obtained a certificate of probable
cause pursuant to section 1237.5. The
the same principles as guilty pleas.
[Citation.] A guilty plea admits
every element of the offense charged and is a conclusive admission of
guilt. [Citations.] It waives any right to raise questions about
the evidence, including its sufficiency.
[Citation.].†(
p. 785.)
Recently, our Supreme Court in People v. Maultsby (2012) 53 Cal.4th 296 (Maultsby),
name="_ftnref8" title="">[8]
held that a certificate of probable cause
was not required to challenge an enhancement admission where the defendant was
convicted of, rather than having pled to, the underlying offense. In reaching its holding, the
concluding that Lobaugh “incorrectlyâ€
equated an admission of an enhancement with a guilty plea, and that
the same principles govern an admission of an enhancement and a guilty plea was
based on its “misapplication†of a prior case.
(Maultsby,
court also stated that “contrary†to Lobaugh,
whether a defendant’s appellate claim challenges the validity of an enhancement
admission matters only if section 1237.5 is applicable in the first place. (Maultsby,
at pp. 302–303.)
Thus, assuming that Bailey’s challenge to the evidentiary
sufficiency of his admission to the prior strike remains cognizable on appeal,
we conclude the record supports the finding that Bailey admitted to an offense
of robbery that occurred after he turned 16 years old. Bailey’s probation report states that a
petition alleging a charge of robbery was filed on May 14, 2010—20 months after
Bailey turned 16—and was sustained on June 10, 2010. It is true that the entry for this petition
does not state a juvenile court case number.
But the only case number cited, in the first entry, of JJ15534 relates
to a petition in which the only count sustained while Bailey was under the age
of 16 was for assault with a deadly weapon, not robbery. We are satisfied that Bailey’s admission to a
prior juvenile adjudication for robbery falls within sections 1170.12,
subdivision (b)(3)(A) and 667, subdivision (d)(3)(A).
The Use of Bailey’s Prior Juvenile Adjudication as a “Strike†was
Constitutional
Bailey
contends the use of his prior juvenile adjudication as a “strike†was
unconstitutional because he was not afforded a jury trial in the juvenile
proceedings that resulted in the adjudication.
He relies on several federal cases to support his contention, including Apprendi
v. New Jersey (2000) 530 U.S. 466.
However, in People v. Nguyen (2009) 46 Cal.4th 1007, 1025, our
Supreme Court rejected Bailey’s constitutional claim, finding that Apprendi does
not prohibit the use of juvenile adjudications to enhance a criminal penalty,
even though they are not tried to a jury.
As Bailey acknowledges, we are bound by the California Supreme Court’s
decision in Nguyen. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Imposition of the Prior Serious Felony Enhancement to Bailey’s Sentence
Under Section 667, Subdivision (a)(1) was Error
Bailey contends, and the People agree, that the trial
court erred in adding a five-year prior serious felony enhancement to his
sentence pursuant section 667, subdivision (a)(1) because it was improperly
based on a juvenile adjudication.
Section 667, subdivision (a)(1), provides in part: “[A]ny person convicted of a serious felony
who previously has been convicted of a serious felony in this state
. . . . , shall receive, in addition to the sentence
imposed by the court for the present offense, a five-year enhancement for each
such prior conviction on charges brought and tried separately. The terms of the present offense and each
enhancement shall run consecutively.â€
Section 667, subdivision (a)(1), applies to “prior
convictionsâ€; it does not apply to a prior juvenile adjudication. (People
v. West (1984) 154 Cal.App.3d 100, 110 [“defendant’s prior juvenile
adjudications were not ‘prior conviction[s]’ within the meaning of Penal Code
section 667, subdivision (a)â€], cited with approval in People v. Garcia (1999) 21 Cal.4th 1, 24.) Thus, the five-year enhancement under section
667, subdivision (a)(1) must be stricken.
Accordingly, we remand the matter so that the trial court has an
opportunity to restructure its sentencing choices, if desired. (People
v. Edwards (2011) 195 Cal.App.4th 1051, 1060 [“If correction of a
sentencing error may affect the trial court’s discretionary decisions in
determining an appropriate sentence, the remedy is to reverse and remand for
resentencingâ€]; People v. Delgado
(2010) 181 Cal.App.4th 839, 855 [appellate court may remand for a complete
resentencing after finding an error with respect to part of a sentence].)
X. Bailey is Entitled to Additional Presentence
Conduct Credit
Bailey contends, and the People agree, that Bailey is
entitled to additional presentence conduct credit. The trial court awarded Bailey 269 days of
presentence custody credit, based on 234 days of custody credit and 35 days of
conduct credit. In calculating the
conduct credit, the trial court apparently believed that Bailey’s conduct
credit was limited to 15 percent of his actual days in custody.
The 15 percent limitation is found in section 2933.1,
subdivision (a), which provides that
“any person who is convicted of a felony offense listed in subdivision (c) of
Section 667.5 shall accrue no more than 15 percent of worktime credit.†Section 667.5, subdivision (c) identifies
several “violent†felonies. But none of
Bailey’s current offenses are violent felonies listed in that section.
It appears that Bailey is entitled to additional conduct
credit in the amount
of two days of conduct credit for every four days in actual custody. (See former § 4109, subd. (f), Stats. 2010,
ch. 426, § 2, eff. Sept. 28, 2010.)
Because the case is remanded to the trial court for resentencing (as
discussed above), the trial court is directed to recalculate Bailey’s
presentence custody credit upon
remand.
The five-year prior serious felony
enhancement under section 667, subdivision (a)(1), is stricken from Bailey’s
sentence and the matter is remanded for resentencing of Bailey. Upon remand, the trial court is directed to
recalculate Bailey’s presentence custody credit. In addition, the five-year gang enhancement
added to Smith’s sentence under section 186.22, subdivision (b)(1)(B), is
stricken and replaced with the 15-year minimum parole eligibility pursuant to
section 186.22, subdivision (b)(5). In
all other respects, the judgments of conviction are affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
_______________________________, P. J.
BOREN
_______________________________, J.
FERNS
name="_ftn1" title="">[1]
All further statutory references are to the Penal Code unless
otherwise indicated.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
