PEOPLE v. VIGIL








Filed 1/24/11






CERTIFIED FOR PARTIAL PUBLICATION*



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
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THE PEOPLE, Plaintiff and Respondent, v. KYLE JORDAN VIGIL et al., Defendants and Appellants.

C061065 (Super. Ct. No. CRF07–3492)

APPEAL from judgments of the Superior Court of Yolo County, Timothy L. Fall, Judge. Reversed in part and affirmed in part.


A. M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant Kyle Jordan Vigil.

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant Joshua Lawrence Latham.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherin Chatman and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.


This case involves one of the most egregious types of juror misconduct. During deliberations, a juror performed an experiment at his home under conditions not subject to judicial oversight or cross-examination. He later reported the result, which was unfavorable to defendant, to his fellow jurors, who were struggling over a crucial issue in the case. The jury subsequently convicted defendant Kyle Jordan Vigil of shooting at an occupied dwelling (Pen. Code, § 246),[1] with a true finding that the crime was committed to benefit a criminal street gang (§ 186.22, subd. (b)(1) (hereafter § 186.22(b)(1)), an enhancement that earned him an indeterminate life sentence (§ 186.22, subd. (b)(4)).
Vigil was the driver of the car that was used to commit the charged crimes. The shooter, codefendant Joshua Lawrence Latham, was convicted by the same jury of the same offense and enhancement, as well as an additional count of discharging a firearm in a grossly negligent manner (§ 246.3) for the benefit of a criminal street gang (§ 186.22(b)(1)).
Both defendants appeal. With respect to Vigil, we shall reverse the judgment for prejudicial jury misconduct. With respect to Latham, we find no reversible error and shall affirm.
FACTUAL BACKGROUND
The Shootings
In the late night hours of June 21, 2007, gunshots were fired at two separate residences in Woodland. A witness who lived at 1309 Donnelly Circle saw a white car pass by and heard slurs against the Sureño street gang, followed by gunshots. Subsequently, a bullet was found lodged in a rooftop air conditioner of the witness’s apartment building and thirteen .30-caliber shell casings were discovered nearby.
Gunshots were also fired at a house located at 1656 Santoni Lane, where a reputed Sureño gang member resided. Officers discovered seven bullet holes in the walls of the residence. Spray-painted graffiti denigrating a Sureño gang “subset” was discovered in front of the house.
Victor Chaney’s Testimony
Victor Chaney was the star witness for the prosecution. Chaney testified that he was a longtime friend of defendants Latham and Vigil, having grown up with them in the same apartment complex in Woodland.
Chaney testified that he and Vigil attended a party at Latham’s house on the night in question. After two or three hours of socializing and drinking alcohol Chaney, Latham, Vigil and someone known only as “Chase” went upstairs to Latham’s room. Once in the room, the individuals in the group continued to drink alcohol and smoked marijuana. Chaney was “buzzing” from the alcohol. He believed each person drank about the same amount.
At one point, Chaney noticed a rifle inside Latham’s closet. Latham took the gun out, brandished it and bragged that he had used it “unlawfully.” Chaney took photos of Latham posing with the rifle and “showing it off.” Latham made a comment to the effect that he was “ready for war.”
Chaney, Latham, Vigil and Chase then walked out of the apartment building together, with Latham carrying the rifle over his shoulder. The group headed towards Latham’s car, which was parked outside. When they got to the car, Latham threw Vigil the car keys.
The foursome got into the car. Vigil was the driver, while Latham occupied the passenger seat. Chaney and Chase sat in the back. Before they departed, Latham announced that anyone who was “scared to go to prison” should get out of the car. No one moved.
The group went to the Yolano neighborhood, where Vigil drove into a parking lot. After Vigil stopped the car, Latham got out and discharged five or six rounds from the rifle. Latham appeared to be pointing the gun toward the houses or duplexes, but at an angle “like up in the sky.” When he was finished, Latham got back in the car and they drove toward the Bel Air neighborhood. At this point, Chaney caught a glimpse of Vigil’s face in the rear-view mirror. Vigil “looked remorseful.”
When they arrived in the Bel Air neighborhood, Vigil drove by a certain house and Latham opened fire out of the open passenger window. On this occasion, Latham was shooting “at the house.” At the time of the shooting, the car was traveling about five to 10 miles per hour. Chaney put his head down after the first shot, because he knew “we were . . . doing a drive-by.” Following the second shooting, Vigil drove back to their apartment complex. Latham put the rifle in the trunk and the group went back to Latham’s apartment and smoked some marijuana. About 30 to 35 minutes later, the four went back to the car and were prepared to go out again, when they were stopped by Chaney’s father.
There is no indication in the record that Chaney was charged with any crime or that he was offered any special treatment in exchange for his testimony. Chaney stated that he came clean to the police solely because he found out his dad was dying of cancer and he wanted to “be there for him.” He denied that anyone intimidated or threatened him, or tried to prevent him from testifying.
Chaney denied that there was any discussion that evening about gangs, a specific objective or a destination during the entire adventure. He did not know how or why the house in the Bel Air district was targeted, although he was aware that the Yolano neighborhood was a reputed gang area occupied by “Southerners.”
Gang Evidence
Detective Ronald Cordova of the Woodland Police Department testified as an expert in criminal street gangs, with special emphasis on Nuestra Familia and the Norteño gang. Cordova had previously been qualified as an expert on both Norteño and Sureño gangs, having spoken to more than 300 Norteño and 100 Sureño gang members, and written at least 25 gang-related search warrants.
Detective Cordova testified that the Norteño and Sureño gangs have been around since the 1960’s and are natural rivals. In Woodland, as elsewhere, these gangs have divided up territory, with the Norteños occupying the north and Sureños the south part of the region. The Norteños are a validated street gang.
Gang members show their affiliation by colors, letters, numbers, tattoos and music. They also have monikers and use hand signs and graffiti on their personal belongings. There are about 350 validated Norteño gang members in the Woodland area. There are also “associates” who hang around gang members and “veteranos,” who are inactive themselves, but mentor younger gang members.
Gang members use fear and intimidation to generate respect from rival gangs and within the community. In the Norteño culture, no act of disrespect can go unanswered. The primary activities of the Norteños include assaults with deadly weapons, drug dealing, burglaries, and drive-by shootings. Detective Cordova described the factual settings in which Woodland Norteño gang members were convicted of felonies with gang enhancements.
Detective Cordova recounted that several items seized at Vigil’s apartment included gang paraphernalia, writings, pictures, and graffiti. In Cordova’s opinion, these items were indicative of Vigil’s association with the Norteño street gang. In addition, a scrolled kite found in Vigil’s possession while in jail contained information that indicated he had been in contact with a member of Nuestra Familia, which is the governing body of the Norteños.
Detective Cordova also opined that Latham was a validated member of the Norteño gang. Images seized from Latham’s computer were indicative of gang affiliation and three rap CD’s found in Latham’s residence were further indicia of gang membership. Officers also found a red baseball cap in Latham’s residence with an “N” logo, which is a symbol of the Norteños.
It was Detective Cordova’s opinion that the shootings at Donnelly Circle and Santoni Lane were both committed for the benefit of the Norteño gang.
Charges, Verdicts and Sentences
Vigil and Latham were each charged with shooting at an inhabited dwelling with a gang enhancement allegation, based on the shootings at Donnelly Circle and Santoni Lane. In addition, each was charged with the substantive crime of active participation in a street gang. The chart below reflects the jury’s verdicts:

VERDICT
Ct.	Offense/Enhancement	Latham	Vigil
1	Shooting at an inhabited dwelling (§ 246) (Donnelly Circle)	Guilty of lesser included offense (§ 246.3—grossly negligent discharge of firearm)	Not guilty
1a	Gang enhancement to count 1 (§ 186.22, subd. (b)(4))	True	N/A
2	Shooting at an inhabited dwelling (§ 246) (Santoni Lane)	Guilty	Guilty
2a	Gang enhancement to count 2 (§ 186.22, subd. (b)(4))	True	True
3	Active membership in a street gang (§ 186.22, subd. (a))	Not guilty	Not guilty

After denying defendants’ motion for new trial, the trial court sentenced Latham to the middle term of two years plus five years for the gang enhancement on count 1. Latham also received an indeterminate term of 15 years to life (owing to the gang enhancement) on count 2, resulting in a total aggregate state prison sentence of 22 years to life.
The trial court sentenced Vigil to an indeterminate term of 15 years to life on count 2, the prescribed sentence for a section 246 conviction when coupled with a true finding on the gang enhancement. (§ 186.22, subd. (b)(4)(B).)
DISCUSSION
I. Juror Misconduct—Factual Background
Prior to trial, the trial judge instructed the jury: “Don’t do any research on your own, and don’t do any research as a group. You’re not to use a dictionary or other reference materials. You’re not to investigate the facts or the law. Don’t conduct any tests or experiments. Don’t go visit the scene of any event involved in this case.” (Italics added.)
After the verdict, Vigil moved for a new trial based on juror misconduct. Vigil’s counsel, Jeff Raven, filed a declaration stating that, at the conclusion of the trial, he asked Juror No. 2 why, if the jury acquitted his client of count 1 (the Donnelly Circle shooting), they found him guilty on the second count (the drive-by shooting at Santoni Lane). In other words, if the jurors found Vigil did not know that Latham was going to do the first shooting, “why would you impart [sic] knowledge to him on the second shooting‌” Juror No. 2 answered, in substance, “Mr. Raven, do you know how difficult it is to raise a rifle out of the window from the passenger seat‌ You would have to maneuver like this, turn this way, move back a foot or two. Its [sic] not easy. It takes time. And I know, I did it with a broomstick.” (Italics added.)
Juror No. 10 provided an affidavit stating that “[d]uring jury deliberations, when it was his turn to speak, a juror that I don’t recall his name, but was a teacher, told jury members that he had conducted an experiment at home where he sat in his car as a passenger and had a broomstick, pretending he was shooting at a house. The juror said that after his experiment, he felt that one of the shootings was intentional and deliberate.”
Juror No. 11 submitted an affidavit stating that Juror No. 2 told the jury about the results of an experiment he had done at home “to determine if Joshua Latham can with his right hand, lower the car window and quickly stick the rifle out.” Juror No. 2 said he tried the experiment using a broomstick both right-handed and left-handed. He felt that if the shooter was right-handed, it would be a lot less difficult than if he was left-handed. The remarks were made toward the end of deliberations, when the jury was unable to come up with a unanimous vote.
Vigil also presented the affidavit of defense investigator James Peoples. Peoples averred that the following statements were made to him by Juror No. 2: (1) he conducted an experiment to see how difficult it would be for a right-handed person to “poke” a gun out of a passenger window of a car; (2) during deliberations, he “probably” said something to the effect that it was “unlikely that the driver [Vigil] wouldn’t be aware that [Latham] was going to shoot a rifle because [Latham] would have to jack around inside the car with the gun”; and (3) that he “probably” also told the jurors, “I tried it with a broom[;] I don’t think you can do it.” (Italics omitted.) While Juror No. 2 initially agreed to sign an affidavit, he subsequently made himself unavailable.
The prosecutor opposed the motion for new trial but did not submit any evidence to controvert the defense affidavits. Vigil’s counsel requested that the court conduct an evidentiary hearing, so that it could have the benefit of Juror No. 2’s sworn testimony.
The trial court began the hearing by acknowledging that it had received the affidavits of two jurors, which were “competent evidence” regarding Juror No. 2’s statements to his fellow jurors. Accordingly, the court accepted the truth of the allegations that Juror No. 2 had made the subject comments, just as if Juror No. 2 had signed an affidavit acknowledging them.
The trial judge also found that in performing the broomstick experiment, Juror No. 2 committed misconduct.[2]
Nevertheless, the court found that the experiment was not “so unusual” as to be prejudicial under the facts of the case. The trial judge reasoned that the subject matter of the experiment was a matter of such “common experience that people could talk about it rationally and reasonably. It’s not something that is completely without common experience.” Second, the court found the evidence that Vigil knew Latham would shoot the rifle out of the car during the Santoni Lane shooting so “overwhelming” that the misconduct “[did] not interfer[e] with the jury’s work on that.” Accordingly, the motion for new trial was denied.
II. Juror Misconduct—Analysis
Vigil contends the judgment should be reversed due to irremediable and prejudicial jury misconduct. The claim is, in essence, an argument that the trial court erred in denying Vigil’s motion for new trial. For the reasons that follow, we agree.
A. Principles of Review
“When a defendant moves for a new trial based on jury misconduct, the trial court undertakes a three-part inquiry. ‘First, the court must determine whether the evidence presented for its consideration is admissible. . . . [¶] Once the court finds the evidence is admissible, it must then consider whether the facts establish misconduct. . . . [¶] Finally, if misconduct is found to have occurred, the court must determine whether the misconduct was prejudicial.’” (People v. Sanchez (1998) 62 Cal.App.4th 460, 475.)
The trial court accepted the truth of Juror No. 2’s comments as reported by the defense affidavits, and thus its ruling did not depend upon a resolution of conflicting evidence. Since the court’s denial of the new trial motion was based on undisputed facts, we apply a de novo standard of review to answer two remaining questions: (1) Did Juror No. 2’s experiment and report of its results to the deliberating jurors constitute misconduct‌ and (2) If so, was the misconduct prejudicial‌
B. Juror Misconduct Occurred
It is absolutely forbidden for jurors to do their own investigation outside the courtroom. (People v. Conkling (1896) 111 Cal. 616, 628 (Conkling).) However, “‘[n]ot every experiment constitutes jury misconduct. “[J]urors must be given enough latitude in their deliberations to permit them to use common experiences and illustrations in reaching their verdicts.”’” (People v. Bogle (1995) 41 Cal.App.4th 770, 778 (Bogle).) Thus, jurors may, as a body, “engage in experiments which amount to no more than a careful evaluation of the evidence which was presented at trial.” (Bell v. State of California (1998) 63 Cal.App.4th 919, 932 (Bell).) They may also “bring to their deliberations knowledge and beliefs about general matters of law and fact that find their source in everyday life and experience.” (People v. Marshall (1990) 50 Cal.3d 907, 950.)
The distinction usually turns on whether the juror’s investigation stayed within the parameters of admitted evidence or created new evidence, which the injured party had no opportunity to rebut or question. In the words of the California Supreme Court: “Not every jury experiment constitutes misconduct. Improper experiments are those that allow the jury to discover new evidence by delving into areas not examined during trial. The distinction between proper and improper jury conduct turns on this difference. The jury may weigh and evaluate the evidence it has received. It is entitled to scrutinize that evidence, subjecting it to careful consideration by testing all reasonable inferences. It may reexamine the evidence in a slightly different context as long as that evaluation is within the ‘“scope and purview of the evidence.”’ [Citation.] What the jury cannot do is conduct a new investigation going beyond the evidence admitted.” (People v. Collins (2010) 49 Cal.4th 175, 249 (Collins).)
In the seminal case of Conkling, a defendant on trial for murder claimed self-defense. The distance between the victim and the defendant was important and the victim’s clothes revealed no powder marks. During deliberations, two jurors borrowed a rifle similar to the murder weapon, went to the outskirts of the city, and test-fired the rifle to determine at what distance a rifle discharge would leave powder marks on their clothing. (Conkling, supra, 111 Cal. at p. 627.) The California Supreme Court found prejudicial misconduct because the jurors conducted an experiment outside the trial setting, which created new evidence directly related to a “vital issue” in the case. (Id. at pp. 627-628.)
In Bell, the plaintiff sued various public entities for battery and false imprisonment when, in a case of mistaken identity, two officers grabbed plaintiff and twisted his body into an awkward position, causing him injuries. (Bell, supra, 63 Cal.App.4th at p. 925.) “‘During the deliberations Juror [B.] advised all the other jurors that she and some other person, not a member of the jury, had attempted to recreate the sequence of events when Plaintiff’s arms were placed up behind his back. She claimed that she fell over when she tried to do it. Based on this out of court recreation [sic: reenactment] of events she expressed her disbelief in the Plaintiff’s testimony on this point and therefore as to his entire testimony.’” (Id. at p. 930.)
The appellate court in Bell affirmed an order granting a new trial based on jury misconduct. Quoting from the trial court’s written ruling, the Bell court found the juror committed misconduct in at least three respects: “‘[F]irst, the juror was obviously discussing the case outside the court with other persons in violation of the direct order of the court; second, the juror attempted to simulate the events at the scene; and, third, the fact of the experiment and its results were passed onto the other jurors.’” (Bell, supra, 63 Cal.App.4th at pp. 932-933.) Due to a multiplicity of factors, the incident the juror was trying to reproduce was not subject to experimentation. Thus, the experiment was not “‘within the lines of offered evidence,’” and constituted prejudicial juror misconduct. (Id. at pp. 933-934.)

TO BE CONTINUED AS PART II….

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