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)

STORY CONTINUE FROM PART I….


In People v. Castro (1986) 184 Cal.App.3d 849 (Castro), a defendant was found guilty of arson arising from a riot at a county jail. A correctional officer testified he used binoculars to identify the defendant as a participant in the arson. During deliberations, a juror “‘went home and used binoculars to see if [the officer] could have possibly seen what he . . . said he did,’” and then reported his finding to the other jurors. (Id. at p. 852.) The Court of Appeal, Fifth Appellate District, reversed an order denying a new trial, finding that the juror’s actions constituted an improper experiment. There was no showing that the juror’s binoculars were similar to those used by the officer or that the lighting conditions and distances were similar to the conditions at the time of the officer’s observation. (Id. at pp. 853-854.) The Castro court concluded that the juror’s experiment “enabled [him] to receive evidence outside the presence and knowledge of [the defendant] going to the crucial element in the . . . case, the identity of the [defendant].” (Id. at p. 854.)
These cases stand in contrast to those finding no misconduct, such as situations where the jurors employed their own reasoning skills in a demonstrative manner or performed tests in the jury room that were confined to the evidence admitted at trial. (See, e.g., Collins, supra, 49 Cal.4th at pp. 250-252 [jury’s use of string and a protractor to reenact various alternative positions of victim and defendant according to the evidence was not misconduct] & id. at p. 253 [drawing a scaled diagram based on the evidence for use in deliberations is not misconduct]; Bogle, supra, 41 Cal.App.4th at pp. 778-780 [jury’s act of using keys to open a safe, both of which were admitted into evidence, constituted merely “closer analysis of a trial exhibit,” not misconduct, as characterized by Collins, supra, 49 Cal.4th at p. 246]; Locksley v. Ungureanu (1986) 178 Cal.App.3d 457, 461 [juror’s act of driving his car with one eye covered to assess the breadth of his vision not misconduct because it “did not invade a new field but merely [was] an experiment on an issue within the evidence, to wit, the ability of a one-eyed individual to drive”]; Wagner v. Doulton (1980) 112 Cal.App.3d 945, 948-950 [drawing a scaled diagram based on the evidence for use in deliberations is not misconduct].)
Here, as the trial court properly found, the behavior of Juror No. 2 crossed the line into misconduct. The juror conducted an experiment in the absence of his fellow jurors and outside the courtroom with respect to a crucial issue in the case: whether the driver of the car knew in advance that Latham was going to commit a drive-by shooting at the Santoni Lane location. The experiment, as described in the affidavits, ignored several variables that could have skewed the results: The juror used a broomstick as a surrogate for the rifle; he did not try to replicate the characteristics of the interior of Latham’s car; he took no account of the height and weight of the driver or the shooter; and he assumed, without evidentiary support, that Latham had to roll down the window before aiming and shooting.^[1] Juror No. 2 even appeared to assume, despite a lacuna in the evidence, that Latham was right-handed.^[2] The result of the experiment was then reported to the deliberating jurors as if it were scientific confirmation of the juror’s views on a vital issue in the case.
The People claim the experiment was not misconduct because “[i]magining how the rifle could be maneuvered by the shooter in the passenger seat to shoot out the window and whether the driver would be aware of the movement were well within a juror’s common experience.” They also argue that because Juror No. 2 did not attempt to replicate the exact conditions that existed in the car at the time of the shooting, he did not create “new evidence.” We are not persuaded.
Juror No. 2’s conduct is far more similar to conducting an experiment outside the court to determine at what distance a rifle discharge would produce powder marks on clothing (Conkling), or using one’s own pair of binoculars to attempt to determine what a prison guard might have seen in looking through his binoculars (Castro), than the cases that merely involve careful examination of exhibits or conducting a test or demonstration that did not stray beyond the admitted evidence.
The fact that the jurors could have reached the same conclusion as Juror No. 2 did by “[i]magining how the rifle could be maneuvered” does not, as the People suggest, mean that he committed no misconduct. The rifle had been admitted into evidence and was available in the jury room. The jurors could, without committing misconduct, have taken it and used it to reenact the Santoni Lane shooting for purposes of debate, applying their own common sense and life experience to Chaney’s trial testimony. (See People v. Cumpian (1991) 1 Cal.App.4th 307, 313-315 (Cumpian) [jurors properly reenacted manner in which defendant was carrying duffel bag as described by testimony].)
This is not what happened. Juror No. 2’s homemade experiment produced new evidence “‘without the knowledge of either party, evidence which it is not possible for the party injured to meet, answer, or explain.’” (Collins, supra, 49 Cal.4th at p. 243, quoting Higgins v. L. A. Gas & Electric Co. (1911) 159 Cal. 651, 656-657.) We conclude juror misconduct occurred.
C. The Misconduct Was Prejudicial
“Jury misconduct raises a presumption of prejudice, and ‘“unless the prosecution rebuts that presumption . . . , the defendant is entitled to a new trial.”’” (Cumpian, supra, 1 Cal.App.4th at p. 312.) The presumption of prejudice may be rebutted by an affirmative evidentiary showing that prejudice does not exist or “‘by a reviewing court’s examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party.’” (People v. Miranda (1987) 44 Cal.3d 57, 117.) “‘Whether a defendant has been prejudiced . . . depends upon “whether the jury’s impartiality has been adversely affected, whether the prosecution’s burden of proof has been lightened and whether any asserted defense has been contradicted.”’” (Cumpian, at p. 312.)
Applying these precepts, it is initially clear that the misconduct of Juror No. 2 raised a presumption of prejudice and that the People, having offered no evidence whatsoever in opposition to the motion for new trial, did not make an “affirmative evidentiary showing” to the contrary. (Cumpian, supra, 1 Cal.App.4th at p. 312.) We therefore examine whether the misconduct resulted in a “reasonable probability of actual harm” to the complaining party. (Ibid.) We find that it did.
The jurors obviously struggled with the issue of Vigil’s liability as an accomplice to the Santoni Lane shooting. They acquitted him entirely of the first shooting, and thus entertained a reasonable doubt that he knew Latham would get out of the car and open fire at Donnelly Circle. The affidavits establish that the jurors were, at some point, unable to agree on a verdict and that Vigil’s culpability for the second shooting consumed most of their deliberations. The jury made several requests for clarification from the judge. It retired to begin deliberations just before noon on Thursday, continued its deliberations on Friday, and did not return a verdict until approximately 3:00 p.m. on Monday.
Juror No. 2’s report of his experiment could well have had a significant influence on jury deliberations. The experiment created new evidence outside the courtroom, contradicted an asserted defense and lightened the prosecution’s burden of proof on a material issue—whether Vigil knew that Latham was going to commit a drive-by shooting at the Santoni Lane residence.^[3] Juror No. 2 was a college professor, thereby enjoying enhanced stature in the eyes of his fellow jurors and lending credence to his conclusions. His reported experiment could well have struck a decisive blow in favor of conviction by causing one or more jurors to shortcut the deliberative process. This type of misconduct cannot be deemed harmless. “‘The fact that the experiment was performed by one juror, . . . outside of the court room and the deliberations, is more egregious and resulted in outside influences or extrinsic evidence permeating the jury’s deliberations on perhaps the key factual determination in the case.’” (Bell, supra, 63 Cal.App.4th at p. 933.)
The Ninth Circuit Court of Appeals has observed that reversible error for juror misconduct “commonly occurs where there is a direct and rational connection between the extrinsic material and a prejudicial jury conclusion, and where the misconduct relates directly to a material aspect of the case.” (Marino v. Vasquez (9th Cir. 1987) 812 F.2d 499, 506, citing United States v. Bagnariol (9th Cir. 1981) 665 F.2d 877, 885.) The misconduct here satisfies both prongs of this test.
We conclude that the presumption of prejudice was not rebutted. Vigil’s conviction must be reversed.^[4]
III. Substantial Evidence—Corroboration
Vigil and Latham contend that there was insufficient evidence to support their convictions because Chaney was an accomplice as a matter of law and there was no independent corroborating evidence, apart from his testimony, to connect them to the charged crimes. The People concede that there was no corroborative evidence to support Vigil’s guilt apart from Chaney’s testimony, but contend it does not matter, since Chaney’s status as an accomplice was properly submitted as a factual question to the jury.^[5] We agree with the People.
In order to be an accomplice, Chaney would have to be “liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (§ 1111.) Vigil argues Chaney aided and abetted the charged crimes because (1) he knew Latham better than Vigil did; (2) he supplied the marijuana that was smoked in the bedroom on the evening of the shootings and pointed out the rifle in Latham’s closet; (3) he accompanied the group to the car in response to Latham’s announcement that he was “ready for war”; (4) he declined the opportunity to back out when Latham said that anyone scared to go to prison should leave; and (5) he socialized with others in the group immediately after the shootings.
Section 31 defines “principals” to include “[a]ll persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission . . . .” A witness’s status as an accomplice “is a question for the jury if there is a genuine evidentiary dispute [on knowledge and intent] and if ‘the jury could reasonably [find] from the evidence’ that the witness is an accomplice.” (People v. Howard (1992) 1 Cal.4th 1132, 1174, quoting People v. Hoover (1974) 12 Cal.3d 875, 880.)
Here, Chaney was not charged with any crime. He sat silently in the car throughout both shootings. He testified that when he got in the car he “didn’t know really what the plan was with the gun.” He also stated that he was afraid Latham might shoot him if he tried to get out of the car. The above evidence alone was sufficient to raise a factual dispute as to Chaney’s status as an accomplice.
It is settled that mere presence at the scene of a crime coupled with a failure to prevent it, is insufficient to establish accomplice liability. (People v. Rutkowsky (1975) 53 Cal.App.3d 1069, 1072.) Nor does giving after-the-fact assistance to the perpetrator suffice to warrant liability as an accomplice—such conduct is a separate offense controlled by a different statute, i.e., being an accessory after the fact. (Id. at pp. 1072-1073; see § 32.)
Based on the foregoing, we conclude the trial court properly submitted the question of Chaney’s liability as an accomplice to the jury. (See People v. Stankewitz (1990) 51 Cal.3d 72, 91.) Vigil’s claim that Chaney was an accomplice as a matter of law cannot be sustained.
Because Chaney’s status as an accomplice was a factual question for the jury, we may uphold the jury’s implied finding that he was not. Thus, no independent corroborating evidence was necessary to convict Vigil of the charged crimes and Vigil’s substantial evidence argument, based solely on the corroboration requirement of section 1111, collapses of its own weight.
IV. The “Primary Activities” Element of the Gang Enhancement
Both defendants argue that the true gang finding must be reversed because there is insufficient evidence that any of the offenses enumerated in the gang statute constituted one of the Norteño gang’s “primary activities.” (See § 186.22, subds. (e), (f).)
Defendants are wrong. The statute defines a “‘criminal street gang’” as “any ongoing . . . group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated [elsewhere], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).) “To trigger the gang statute’s sentence-enhancement provision (§ 186.22, subd. (b)), the trier of fact must find that one of the alleged criminal street gang’s primary activities is the commission of one or more of certain crimes listed in the gang statute.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 322.)
Detective Cordova testified that the primary activities of the Norteños included assaults with firearms, homicides, drug dealing, drive-by shootings, and burglaries. All of these are statutorily enumerated offenses. (§ 186.22, subd. (e)(1), (3), (4), (5), (6) & (11).)
Detective Cordova also testified in detail about the convictions of Matthew Martin and Miguel Ruiz, validated Norteño gang members who were convicted of assault with a deadly weapon in 2005, as a result of a beating outside a Woodland bar. He also testified in detail about an assault outside a mall by validated Norteño gang members Alfonso Arizaga and Carlos Sanchez in 2003. Both pleaded guilty to assault with a deadly weapon, with accompanying street gang enhancements. Certified copies of court records evidencing these convictions were admitted into evidence. Finally, Cordova identified Jerry Lee Tuter as a Norteño gang member from 2005 until the year of trial when he pleaded guilty and was sentenced to 16 years in state prison for crimes that included robbery, aggravated mayhem, vehicle theft and drug sales.
The above evidence adequately supports the jury’s true findings on the gang enhancement. (People v. Gardeley (1996) 14 Cal.4th 605, 620 [expert based his opinion as to gang’s primary activities “on conversations with the defendants and with other [gang] members, his personal investigations of hundreds of crimes committed by gang members, as well as information from his colleagues and various law enforcement agencies”]; see also People v. Duran (2002) 97 Cal.App.4th 1448, 1465; People v. Galvan (1998) 68 Cal.App.4th 1135, 1141; People v. Olguin (1994) 31 Cal.App.4th 1355, 1370.)
Detective Cordova’s opinion was soundly based on his extensive training and expertise in Hispanic gangs, and specifically on the Norteño gang in the Woodland area. He attended law enforcement conferences on street gangs and had personally investigated more than 30 gang cases. Defendants made no challenge to his qualifications as an expert.
Defendants’ assertion that Detective Cordova’s testimony showed at most that the Norteños were involved in “isolated and remote” criminal activity is unpersuasive. In reviewing a challenge to the sufficiency of the evidence in support of a gang enhancement, we examine the evidence to determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Substantial evidence is evidence that is “reasonable, credible, and of solid value.” (People v. Johnson (1980) 26 Cal.3d 557, 576; see People v. Augborne (2002) 104 Cal.App.4th 362, 371.) Measured by this standard, the jury’s implied finding that the “primary activity” prong was satisfied easily passes muster.
V. Alleged Inconsistency in the Verdict
Both defendants were acquitted of the substantive crime of being active participants in a street gang. (§ 186.22, subd. (a) (hereafter § 186.22(a)).) Nevertheless, the jury found true enhancements alleging that the Donnelly Circle and Santoni Lane shootings were each committed for the benefit, at the direction of, or in association with, a street gang. (§ 186.22(b)(1).)^[6]
Defendants contend that their acquittal of the substantive offense was fatally inconsistent with the true findings on the gang enhancements, requiring the latter to be stricken. Not so.
The “gang benefit” enhancement of section 186.22(b)(1) and the substantive crime of active participation in a street gang as set forth in section 186.22(a) contain different elements.
The substantive crime requires that the defendant (1) actively participate in a criminal street gang; (2) have knowledge that its members engage in a pattern of criminal gang activity; and (3) willfully promote, further, or assist any felonious conduct by members of that gang. (§ 186.22(a).) The gravamen of the crime is “‘participation in the gang itself.’” (People v. Martinez (2008) 158 Cal.App.4th 1324, 1334.)
The enhancement, on the other hand, does not require that the actor be an active gang member. All that is required to satisfy the enhancement is that the accused commit a charged crime “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 criminal conduct by gang members. (§ 186.22(b)(1), italics added.)
Logic dictates that one can commit a crime with the intent to further gang activity without himself being an active member of a street gang. A crime committed by a gang “wannabe,” who is not yet a full-fledged member but wants to impress gang leaders by committing a crime that furthers the gang’s purposes and philosophy, would be a classic example of an offense that would satisfy the section 186.22(b)(1) enhancement, without necessarily embracing the elements of the substantive crime of section 186.22(a).
In any event, even a factual inconsistency between the jury’s enhancement finding and a related substantive offense does not warrant reversal, as long as the guilty verdict is supported by substantial evidence. “[A]s a general rule, inherently inconsistent verdicts are allowed to stand.” (People v. Lewis (2001) 25 Cal.4th 610, 656.) “Section 954 provides that ‘[a]n acquittal of one or more counts shall not be deemed an acquittal of any other count.’ Thus, a jury may properly return inconsistent verdicts on separate counts.” (People v. York (1992) 11 Cal.App.4th 1506, 1510.) Section 954 is not limited to inconsistencies between “counts”—it has also been applied to uphold inconsistent enhancement findings. (People v. Brown (1989) 212 Cal.App.3d 1409, 1421, disapproved on different grounds in People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10; People v. Lopez (1982) 131 Cal.App.3d 565, 569-571.) “The concept of jury largesse is not governed by the legislative choice of language. The fact that the word ‘enhancement’ is used rather than ‘offense’ does not nullify the underlying rationale of refusing to invalidate an inconsistent jury verdict if it is otherwise supported by substantial evidence.” (People v. Lopez, supra, 131 Cal.App.3d at p. 571.) “When a jury renders inconsistent verdicts, ‘it is unclear whose ox has been gored.’ [Citation.] The jury may have been convinced of guilt but arrived at an inconsistent acquittal or not true finding ‘through mistake, compromise, or lenity . . . .’” (People v. Santamaria (1994) 8 Cal.4th 903, 911, quoting United States v. Powell (1984) 469 U.S. 57, 65 [83 L.Ed.2d 461, 469].) “In other words, if the conviction is supported by substantial evidence, it is valid because the defendant ‘had the benefit of the jury’s compassion, rather than suffering a burden because of its passion . . . .’” (People v. Pahl (1991) 226 Cal.App.3d 1651, 1656.) As stated in People v. Amick (1942) 20 Cal.2d 247, at page 252, “such inconsistent verdicts may be caused not by the confusion but the mercy of the jury, of which the appellant can neither complain nor gain further advantage.”
Since there is no claim the enhancement finding was not supported by substantial evidence, any inconsistency between that finding and an acquittal of the offense of active gang membership presents no cause for reversal.
VI. Corrections to Latham’s Abstracts of Judgment
We note several errors in the second amended abstracts of judgment (one for each conviction) for defendants Vigil and Latham. Because we reverse the judgment as to Vigil, we need address only those errors found in defendant Latham’s two abstracts (all references to the abstract in this part are to the second amended abstracts of judgment).
Latham’s Determinate Sentence Abstract:
In item 1., the abstract incorrectly lists count 1a (rather than count 1) for the principal conviction, i.e., negligent discharge of a firearm in violation of section 246.3;
In item 2., the enhancement for count 1a is properly noted. However, the enhancement was orally modified by the trial court from section 186.22, subdivision (b)(4) to section 186.22, subdivision (b)(1)(B). Hence, subdivision (b)(4) should be stricken and subdivision (b)(1)(B) substituted.^[7]
Latham’s Indeterminate Sentence Abstract:
In item 1., the abstract incorrectly lists count 2a (rather than count 2) for the principal conviction; count 2 should be substituted.
In item 2., the enhancement for count 2a is omitted. Item 2. should be corrected to include the enhancement set forth in section 186.22, subdivision (b)(4). The sentence imposed should also contain an “*” (an asterisk) reflecting the correct term in item 6.a.* as 15 years to life.
DISPOSITION
The judgment against defendant Vigil is reversed. The trial court is directed to vacate its order denying him a new trial and enter a new order granting the motion.
The judgment against defendant Latham is affirmed. However, the abstracts of judgment as to defendant Latham are ordered corrected in accordance with part VI. of the Discussion. The superior court shall forward a certified copy of the corrected abstracts of judgment to the Department of Corrections and Rehabilitation. (CERTIFIED FOR PARTIAL PUBLICATION)



BUTZ , J.



We concur:



RAYE , P. J.



BLEASE , J.



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