P. v. Phillips

Filed 8/31/07 P. v. Phillips CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court for Los Angeles County, George Genesta, Judge. Affirmed as Modified.

Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Torey Javon Phillips was convicted of one count of shooting at an occupied vehicle (Pen. Code,  246)[1]and three counts of assault with a semi-automatic firearm ( 245, subd. (b)). He was sentenced to a prison term of 30 years to life after the jury found that he personally and intentionally discharged a firearm, causing great bodily injury ( 12022.53, subd. (d)). He appeals, contending he was denied a fair trial because a juror had to be excused for bias on the second day of trial due to alleged misconduct by a police officer witness and the prosecutor. Defendant also contends, and the People concede, that the trial court improperly imposed and stayed a section 12022.5, subdivision (a) firearm use enhancement. Because the record does not support defendants allegation of misconduct, we order that the firearm use enhancement be stricken as to count 1, but otherwise affirm the judgment as modified.

BACKGROUND

On March 3, 2006, shortly before midnight, a white Honda pulled into a Chevron station on Fairplex Avenue in Pomona. Thomas Mulero was driving, and Donte Haire and Prentis Williams were passengers. Williams and Haire got out of the car and walked toward the Chevron store, passing a silver Dodge Stratus that was parked at a pump. Williams recognized the driver (Evelyn Ahrens) and front passenger (Maurice Robins) of the Stratus. Ahrens left to go to the restroom, and Robins approached Williams. There was a confrontation between Robins and Williams, during which the right rear passenger door of the Stratus opened, a man got out and appeared to cock a gun. Williams recognized that passenger, and identified him as defendant. Williams and Haire went into the store then returned to the Honda. Williams told Haire and Mulero that defendant had a gun.

Mulero drove the Honda out of the station and headed south on Fairplex Avenue. The Stratus followed them, with Ahrens driving, Robins in the front passenger seat, and defendant in the back seat. Mulero made an abrupt U-turn and got on the 10 freeway, trying to get away from the Stratus. The Stratus also made a U-turn and followed them. Once on the freeway, both cars drove at high speed -- 80 to 95 miles per hour -- in the Diamond lane. Shortly before the Monte Vista exit, the Honda pulled into the number 1 lane (next to the Diamond lane) and slowed to around 70 miles per hour. The Stratus pulled up alongside the Honda, and Williams and Haire saw defendant point a gun out of the right rear passenger window. Williams and Haire ducked, and heard five gunshots. All five shots hit the Honda; one of the bullets went through the drivers door and hit Mulero in the chest. Mulero lost control of the Honda, which swerved into the Stratus, which hit the center divider. Both cars spun around and ultimately came to a stop on the right shoulder of the freeway. Robins and defendant got out of the Stratus, jumped over the guard rail, and ran off.

Robins and defendant were apprehended a short time later about a mile away, and a semi-automatic gun was found nearby in a ravine. The gun was later test fired, and it was determined that the spent casings found on the freeway and the bullet removed from Muleros chest were all fired from that gun.

Defendant was charged by information with one count of shooting at an occupied vehicle and three counts of assault with a semi-automatic firearm. The information also alleged that defendant personally discharged a firearm causing great bodily injury ( 12022.53, subd. (d)) and that he personally used a firearm within the meaning of section 12022.5, subdivision (a). He was jointly tried with Ahrens, who testified that she was unaware of the confrontation at the Chevron station, that she was not following or chasing the Honda, and that defendant was in the rear passenger seat of the Stratus when she heard an explosion and lost control of the car.

The jury acquitted Ahrens and found defendant guilty of all four counts and found the section 12022.53 and section 12022.5 allegations to be true. Defendant was sentenced to the midterm of five years on the first count ( 246), plus 25 years to life under section 12022.53, subdivision (d). The trial court also imposed a four-year sentence under section 12022.5, subdivision (a), but stayed that sentence under section 654. In addition, the court imposed and stayed under section 654 a 14-year sentence on count 2 (assault with a firearm against Mulero, plus enhancements), and imposed concurrent 10-year sentences on counts 3 and 4 (assault with a firearm against Williams and Haire, with enhancements). Defendant timely filed a notice of appeal from the judgment.

DISCUSSION

A. The Trial Courts Denial of Defendants Motion for a Mistrial

On the second day of trial, the court received a note from Juror No. 2 asking to speak to the court about an incident involving witnesses. By that time in the trial, seven prosecution witnesses had testified, five of whom were peace officers.[2] The court called the juror into the courtroom and asked her to describe the incident. She told the court that she was sitting on a bench outside the courtroom earlier that morning when she overheard one of the officers, Agent Hughes, speaking to other officers sitting on an adjacent bench 10 to 12 feet away from her. She could not hear everything Hughes said, but heard him say the words Philippines and they gave us several condoms, and heard the other officers giggle in response. Hughes was standing, facing the officers. She could not say if he was aware of her presence, but she did not see him look in her direction at all.

The juror, who was Filipino and had revealed during voir dire that she was doing research on human trafficking and sexual exploitation of women, interpreted Hughes comments as alluding to an issue involving sexual exploitation or the use of sex toys in the Philippines. She was bothered by the comments, explaining, As they were sitting at the witness stand I couldnt help but feel anger, disdain and contempt that these white cops -- The court asked if she had shared this with any other juror, and she said that she had not.

The court then conferred with the prosecutor and defense counsel outside the presence of the juror. The prosecutor argued that based upon what the juror said -- particularly her reference to white police officers -- he believed she was completely prejudiced against the prosecution. Defense counsel argued that the officers testimony, especially Hughes testimony, was not crucial to the case because the case was going to depend almost entirely on the victims testimony. They contended that the juror could be admonished that what she heard and observed should not affect her verdict. Counsel for Ahrens explained that he and counsel for defendant predicated our selection of this jury upon the fact that [Juror No. 2] likely was going to be either -- either a foreman or a subleader, further that she was vital to the defense. He said they would have excused two or three of the jurors if the prosecutor had excused Juror No. 2 during jury selection, and he asked the court not to excuse the juror.

The court called the juror back into the courtroom and questioned her to determine whether she could be impartial and judge the case solely on the testimony she heard in the courtroom. After extensive questioning, the court determined, and the juror agreed, that regardless of how it admonished the juror, she would not be able to be fair and impartial in viewing the officers testimony. As she explained it, Well, it seemed to me that he [i.e., Agent Hughes] was presenting two different characters. He was one person outside and another person here, which seemed to me [to] diminish his credibility.

The court once again conferred privately with the attorneys. The prosecutor again asked that the juror be excused, and the court noted that, based on the jurors own words, it believed the juror must be excused. Defense counsel objected, reiterating that the officers testimony was undisputed and not necessary to the prosecutions case. In making this argument, counsel for Ahrens noted the existence of a taped admission by defendant, which had not been introduced into evidence. In response to defense counsels argument, the prosecutor said, Your Honor, if I may state, I do introduce the statement. The interrogating officer is Agent Hughes, and he uses foul language in the tape and hes -- hes forceful and he, I believe, is going to be the person she saw outside the courtroom as opposed to inside the courtroom here on this tape. [] I dont think she can get beyond it at this point. That is my personal opinion. This is going to color every aspect. I have to do it beyond a reasonable doubt. I cant rely on -- I have a duty to present all competent evidence to the jury and part of it involves -- most of my case involves introducing evidence through white police officers. She said she cant see the case through an objective prism of the white police officers. Thats the record I want to reflect at this time.[3]

The court concluded it had to dismiss the juror because she was fatally tainted, not through any intention by any of the Peoples witnesses, but by inadvertence. Defense counsel moved for a mistrial, arguing that as a result of conduct by a state agency -- which counsel for Phillips referred to as misconduct by the officers -- defendant and Ahrens were denied due process and a fair trial. The court denied the motion.

Later, Ahrens attorney clarified the defenses position: And when we refer to state action, were referring to police officers and their activity in creating this situation, and as a consequence of that activity we -- that was the proximate cause of our losing what we considered to be the pivotal juror for us. And its our position that our right to a jury of our choosing has been severely compromised as a consequence of that state action. The court responded, Again, the court found that there was no indication of any bad faith on the part of the officers, that they purposely engaged in conversation to taint this juror or otherwise engaged in a manner which caused this court to excuse this juror. Counsel replied, At the least it was a lack of good taste on the officers part while wearing the uniform and while -- while being on a bench just outside the courtroom for -- for our trial with the jurors lined up along that same bench.

The trial continued, with an alternate juror taking Juror No. 2s place. As noted, the jury acquitted Ahrens and convicted defendant.

On appeal, defendant challenges the denial of his motion for a mistrial. As best as we can determine,[4]his argument is as follows: (1) a defendants motion for a mistrial should be granted if the defendant suffers prejudice that cannot be cured by admonition or instruction (citing People v. Jenkins (2000) 22 Cal.4th 900, 985); (2) prejudice is presumed when the state has engaged in misconduct; in such a case, the People must prove, by a preponderance of the evidence, that sanctions are not warranted because the defendant was not prejudiced by the misconduct (citing Morrow v. Superior Court (1994) 30 Cal.App.4th 1252, 1258 and People v. Zampien (1993) 4 Cal.4th 929, 967); (3) the trial courts determination that Agent Hughes conduct was inadvertent was not supported by any evidence (particularly since the court did not conduct a hearing on that issue); (4) the prosecutor also engaged in misconduct by misrepresenting his intention to offer defendants taped interrogation into evidence, in order to convince the trial court to excuse the juror; and (5) because there was no evidence presented to rebut the presumption of prejudice, the trial court abused its discretion by denying defendants motion for a mistrial.

Defendants argument fails because the record does not support defendants assertion of misconduct by Agent Hughes or the prosecutor.

There is nothing in the record to suggest that Agent Hughes conduct was anything but inadvertent. He was standing 10 to 12 feet from the juror when he engaged in a conversation with other peace officers. It appears, from the other officers reaction, that it was a lighthearted conversation unrelated to the case; based upon the few words that the juror overheard, it was of a sexual nature. Agent Hughes did not look in the jurors direction, and there was no indication that he was aware that the juror was sitting close enough to hear some of his conversation (clearly she was not close enough to hear all of it). But even if he was aware, he had no way to know that the juror was particularly sensitive to issues related to sexual exploitation of women and that she would be so upset by his comments that she would be unable to impartially judge his and the other officers testimony.

To the extent defendant contends that the trial court erred by not holding a hearing to determine whether Agent Hughes conduct was inadvertent, defendant never requested such a hearing, or even explained to the court the significance of a finding of misconduct. When defense counsel first raised the issue of a mistrial, Ahrens attorney stated their position as follows: We would submit that, absent this juror, we, through a state agency, will lose our right to a fair trial and our right to due process in this lawsuit. Defendants attorney joined in the motion for a mistrial, saying it was based on misconduct of the officers required her removal. The prosecutor immediately challenged the defense attorneys assertion of misconduct, and the court stated that it was not going to conduct an inquiry as to what exactly the officer was stating or not. (Italics added.) The court explained that it did not need to determine what the officer said because it based its decision to remove the juror on the jurors response to what she heard and how she interpreted it. Counsel did not object to the courts determination not to conduct an inquiry, nor did counsel explain that they wanted a hearing, not to determine exactly what Agent Hughes said, but to determine whether his conduct constituted misconduct. Indeed, counsel gave no indication that the issue of misconduct was critical to their motion -- when Ahrens attorney later explained what defense counsel meant by referring to state action, he did not raise the issue of misconduct as the basis for the motion for a mistrial. Because neither defense counsel ever asked for a hearing to establish misconduct on the part of Agent Hughes, nor explained why such a hearing would be necessary, defendant cannot now assert as error the trial courts failure to hold such a hearing. (See, e.g., Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 [appellate court ordinarily will not consider procedural defects or erroneous rulings where an objection was not made in the trial court].)

Finally, defendants assertion that the prosecutor committed misconduct is based upon his interpretation of an ambiguous passage in the reporters transcript. Defendant contends that in that passage, the prosecutor represented that he was planning to introduce a tape of an interrogation conducted by Agent Hughes, and that his use of the tape was part of his duty to present all competent evidence to the jury. The passage at issue was the prosecutors response to an argument by Ahrens counsel that testimony from the officers was not really needed because, among other things, the prosecution had a taped admission by defendant. According to the reporters transcript, the prosecutor began by saying, Your Honor, if I may state, I do introduce the statement. The interrogating officer is Agent Hughes, and he uses foul language in the tape. As punctuated in the reporters transcript, this passage makes no sense. It would, however, make sense with different punctuation: Your Honor, if, I may state, I do introduce the statement, the interrogating officer is Agent Hughes, and he uses foul language in the tape. In other words, the passage makes sense only if it is read as a statement regarding the potential problem that might arise if the prosecutor introduces the tape. Moreover, the prosecutor does not appear to state that he must introduce the tape as part of his duty to present all competent evidence. Rather, he states that he must present the testimony of all of the officers as part of that duty, and that this presents a problem in light of the jurors comment that she distrusts the testimony of the officers: I have a duty to present all competent evidence to the jury and part of it involves -- most of my case involves introducing evidence through white police officers. She said she cant see the case through an objective prism of the white police officers.

In short, defendant misreads the passage at issue. But even if his interpretation were correct and the prosecutor did assert that he was going to introduce the taped admission, defendant suffered no prejudice from any such assertion because the trial court did not rely upon that purported representation in removing the juror. Indeed, the court made clear that it was removing the juror because she could not impartially view the testimony of any of the officers who had already testified: This [jurors] body language, the inflections in her voice in even discussing this and the choice of words she used in referring to the police officers also by their race and the emotional impact that she had as they testified in her own words demonstrates amply that the court cannot view her as someone who is innocuous in how she approaches her duties as a juror as to all the evidence in this case, no matter how counsel wishes to characterize the importance of the testimony of all of these officers in this matter.

Because there was no misconduct by either Agent Hughes or the prosecutor, there was no presumption of prejudice, and reversal is not required unless there is a reasonable probability that an outcome more favorable to the defendant would have resulted. (People v. Clair (1992) 2 Cal.4th 629, 668, citing People v. Cooper (1991) 53 Cal.3d 771, 836.) There is no such probability here. There was uncontradicted evidence that shots were fired at the Honda from the right rear passenger window of the Stratus, that one of those shots hit Mulero, that all of the shots were fired from a semi-automatic firearm found near the location where defendant was found minutes after the shooting, and that defendant was the only passenger in the rear seat of the Stratus at the time the shots were fired. Indeed, the last fact was confirmed by Ahrens, who was driving the Stratus at the time the shots were fired. Given these uncontradicted facts, there is no reasonable probability that defendant would have obtained a more favorable outcome if Juror No. 2 had not been removed.

B. The Section 12022.5 Enhancement

Defendant contends the trial court erred by imposing and staying the section 12022.5, subdivision (a) enhancement after it had already imposed the section 12022.53, subdivision (d) enhancement. The People concede the error, and agree that the enhancement must be stricken. (See  12022.53, subd. (f); People v. Bracamonte (2003) 106 Cal.App.4th 704, 712.)

DISPOSITION

The judgment is modified to strike the section 12022.5, subdivision (a) enhancement related to count 1. The clerk of the superior court is directed to amend the abstract of judgment accordingly and forward the amended abstract of judgment to the Department of Corrections. As modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J. SUZUKAWA, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

[1] Further undesignated statutory references are to the Penal Code.

[2] Due to the location of the shooting, peace officers from several agencies (Claremont Police Department, Montclair Police Department, Pomona Police Department, and the Los Angeles County Sheriffs Department) took part in the investigation and collection of evidence.

[3] We note that the prosecution presented a total of 14 witnesses: nine peace officers, the three victims, the driver of a van that was hit by one or both cars when they spun out of control, and the clerk at the Chevron station.

[4] Defendants argument as set forth in the appellants opening brief is difficult to decipher. Indeed, the People, in the respondents brief, misapprehend the argument, asserting that defendant challenges the removal of Juror No. 2. Defendant more clearly explains his argument in his reply brief. Our analysis is based upon the argument as set forth in the reply brief.