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P. v. Newman

P. v. Newman
10:26:2006

P. v. Newman


Filed 10/20/06 P. v. Newman CA2/3






NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.


APPEAL from a judgment of the Superior Court of Los Angeles County, Arthur Jean, Jr., Judge. Affirmed.


Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.


Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jamie L. Fuster and Douglas L. Wilson , Deputy Attorneys General, for Plaintiff and Respondent.


_______________________________________


Defendant and appellant Henry Newman shot and killed his adult son in the course of an argument. He was convicted of voluntary manslaughter, and the jury found to be true an allegation that he used a firearm. Defendant was sentenced to 21 years in prison, consisting of the upper term for both the manslaughter conviction and the firearm enhancement. Defendant appeals, challenging the sufficiency of the evidence, the trial court’s rulings on a motion for mistrial and possible jury misconduct, and his sentence. We conclude defendant waived several alleged errors by failing to pursue them at trial, and otherwise conclude the trial court did not err. We therefore affirm.


FACTUAL AND PROCEDURAL BACKGROUND


On the afternoon of July 3, 200 4, after defendant returned home from golfing, he had an argument with his son, Alex. Defendant directed Alex to leave. Alex entered his car and began to drive away, but reversed his car and returned to a location in front of defendant’s home, where he continued to yell at his father, who was on the porch. Alex began to drive away only to return two more times, to continue to curse at and threaten defendant from the seat of his car. Defendant, who had, by this time, armed himself with a pre-World War II British military rifle, “just snapped.” He decided to shoot Alex’s car. Defendant had purchased the car for Alex some years prior, so believed that he “owned” it. He intended the shot to warn Alex to get away, so wanted to be careful not to pierce the car’s tires, so that Alex would be able to leave. He took aim just above the passenger-side rear tire of Alex’s car and attempted to fire. No bullet was expelled. Defendant then remembered that he did not store the rifle with a bullet chambered.[1] He pulled the bolt back and chambered a round. He aimed again and fired. The bullet traveled through the passenger compartment and hit Alex in his lower back.


Alex immediately drove off. His car continued down the street where it ultimately crashed into a building. A small crowd gathered around the accident scene, not realizing that Alex had been shot. When neighbors recognized Alex in the car, they tried to reach defendant on his cellular telephone. Defendant did not immediately answer; feeling guilty for having fired a weapon, he was hiding the rifle in his shed. Ultimately, defendant was reached by telephone, and the neighbors told him that Alex had been in an accident. Defendant walked to the scene of the crash.


Firefighters had also been called to the scene. When the firefighters realized Alex had been shot, they asked the crowd if anybody knew where the shooter was. Defendant identified himself, saying that he was the shooter.


Defendant was charged by information with the crime of murder (Pen. Code, § 187, subd. (a)) and it was also alleged that he personally used, intentionally discharged, and caused death by intentionally discharging, a firearm (Pen. Code, § 12022.53, subds. (b), (c) & (d)). Defendant pleaded not guilty and proceeded to jury trial.


At trial, defendant admitted having fired the fatal shot, but testified that he was so “outraged” by Alex’s verbal attacks and refusal to leave that he “really lost it” and his “mind was gone” when he decided to shoot at Alex’s vehicle.[2] At trial, defendant admitted knowing that shooting a rifle at any part of a vehicle could ultimately result in someone’s death. He admitted that he knew this at the time of the shooting, but took the position that he was not thinking properly at that time. However, shortly after the shooting, defendant told police, “ ‘If my granddaughter was in the car, I wouldn’t have fired that gun.’ “


During defendant’s testimony, a trial spectator stood up and shouted at defendant, saying that defendant did not love his son, and making a reference to an unknown incident in a driveway involving defendant’s golf clubs. Defendant moved for a mistrial. The trial court denied the motion for mistrial and instead admonished the jury to disregard the spectator’s outburst.


During jury deliberations, one juror asked permission to ask the judge a question alone. The juror then asked the judge if it was possible to learn the color or brand name of defendant’s golf bag. The trial judge could see no possible relevance to the question and, fearing misconduct, asked the juror the purpose of her question. The juror was reluctant to answer because she did not want to disclose the proceedings in the jury room. The juror stated she would prefer to withdraw her question rather than tell the trial court why she had asked it. While the prosecutor requested the trial court to press the inquiry, defendant repeatedly asked the trial court to allow the juror to withdraw her question and simply return to deliberating. The trial court ultimately allowed the juror to return to deliberations. Immediately thereafter, defense counsel recalled that the spectator’s outburst had included a mention of golf clubs. Defense counsel therefore reversed position and requested the trial court to conduct a limited inquiry to make certain the juror was not considering the subject matter of the outburst. At this point, the jury returned with its verdict.


The jury found defendant not guilty of murder, but guilty of voluntary manslaughter. The jury found true the allegation that defendant had personally used a firearm (Pen. Code, § 12022.5, subd. (a)).[3]


Defendant did not file a motion for new trial. At the sentencing hearing, defendant argued there were no factors in aggravation but two factors in mitigation. The trial court found true the aggravating factor that defendant was on probation at the time of the offense. The prosecutor suggested as further factors in aggravation defendant’s lack of remorse and victim vulnerability. Defense counsel did not argue against either proposed aggravating circumstance, but only stated that defendant wished to offer a short statement, at which time defendant explained he was very remorseful. The trial court concluded that victim vulnerability justified the imposition of the upper term for voluntary manslaughter and that defendant’s probationary status and unsatisfactory performance on probation justified the imposition of the upper term for the firearm enhancement. Defendant was sentenced to 21 years in prison. He filed a timely notice of appeal.


ISSUES ON APPEAL


Defendant contends the evidence was insufficient to support his conviction for voluntary manslaughter in that there was insufficient evidence he acted in conscious disregard for human life; we disagree. Defendant contends the trial court erred in denying his motion for mistrial based on spectator misconduct; we find no abuse of discretion. Defendant contends the trial court erred in failing to inquire regarding possible jury misconduct; we conclude defendant waived the bulk of his challenge by requesting the trial court not to inquire. The remaining allegation of jury misconduct was insufficient to mandate inquiry. Defendant contends the aggravating circumstance of victim vulnerability is not available in a case of voluntary manslaughter; we conclude defendant forfeited the challenge by failing to object. Defendant contends the trial court erred in imposing the upper term for the firearm enhancement; we conclude the court did not abuse its discretion. Finally, defendant concludes the trial court’s imposition of the upper term violated his constitutional rights; California law is to the contrary.


DISCUSSION


1. There was Sufficient Evidence of Implied Malice


“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)


“Murder is the unlawful killing of a human being with malice aforethought. [Citation.] Malice may be either express or implied. It is express when the defendant manifests ‘a deliberate intention unlawfully to take away the life of a fellow creature.’ [Citation.] It is implied ‘when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.’ [Citation.] We have noted in the past that this definition of implied malice ‘has never proved of much assistance in defining the concept in concrete terms’ [citation], and that juries instead should be instructed that malice is implied ‘when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life’ [citation]. For convenience, we shall refer to this mental state as ‘conscious disregard for life.’ “ (People v. Lasko (2000) 23 Cal.4th 101, 107.)


“Manslaughter is ‘the unlawful killing of a human being without malice.’ [Citation.] A defendant lacks malice and is guilty of voluntary manslaughter in ‘limited, explicitly defined circumstances: either when the defendant acts in a “sudden quarrel or heat of passion” [citation], or when the defendant kills in “unreasonable self-defense“ --the unreasonable but good faith belief in having to act in self defense [citations].’ [Citation.]” (Id. at p. 108.) When a defendant kills in the heat of passion, that defendant lacks malice, despite the defendant’s intent to kill or conscious disregard for life. (Id. at pp. 104, 109.) The malice is negated by the provocation, and the offense is mitigated from murder to voluntary manslaughter. (Id. at p. 110.) To convict a defendant of voluntary manslaughter, the prosecution must prove the existence of a mental state that would constitute malice, but for the fact the killing was committed in an adequately provoked heat of passion. (Id. at p. 111.)


On appeal, defendant contends the evidence was insufficient to prove that he acted with a mental state that would otherwise constitute malice were it not for the provocation. The contention is meritless. Defendant intentionally shot a rifle at an occupied vehicle, intending to frighten his son. Defendant knew that this was dangerous to human life; indeed, he told police that he would not have fired if his granddaughter had been in the car. This is sufficient evidence to establish conscious disregard for life. (See also People v. Laws (1993) 12 Cal.App.4th 786, 794 [implied malice can be established “if one simply wishes to scare another by shooting a gun in the direction of the other person intending the bullet to just miss that person”].) On appeal, defendant states that “clearly any anger engendered by Alex’s actions clouded any thought that his actions were done with a conscious disregard for life.” On the contrary, the jury concluded that defendant was sufficiently provoked for the killing to be mitigated from murder to manslaughter, but not so impaired as to lack a conscious disregard for life. As defendant had the presence of mind to take careful aim at a spot on his son’s car (specifically wanting to shoot above the tire), pull back the bolt on his weapon to chamber a round, and aim a second time before firing, the jury’s verdict was well-supported.[4]


2. The Motion for Mistrial Based on the Spectator’s Outburst Was Properly Denied


During defendant’s testimony, the following occurred:


“Q. At the time that you shot the car, were you intending to shoot Alex?


“A. By no means. I love my son with all my heart. I raised him from a baby.


“Unidentified Speaker: You didn’t do that --


“The Court: Just a moment, sir. Please step outside.


“Unidentified Speaker: When he was in your driveway --


“The Court: Just step outside sir. Now.


“Unidentified Speaker: I know with your golf clubs --”


At this point, the trial court obtained further security and called a recess. Following the recess, defense counsel moved for a mistrial on the basis of the spectator’s outburst, explaining that the unidentified speaker “made some statements about how could you have not intended to shoot him or how could you say you loved him, something because of some incident that happened in a driveway.” Defense counsel argued that the statement was prejudicial because the jury “might believe [defendant] has a tendency for violence or there was some other occasion.”


The trial court denied the motion for mistrial and admonished the jury as follows: “First of all, let me apologize to you for the disturbance that occurred. It is not going to happen again. That gentleman has been taken out of the courthouse. It will not happen again. Secondly, as you know, as you suspect, you may not know but you suspect that emotions can run very, very high in situations like this. And so some forbearance and understanding from all of us has to be accepted to a certain degree. Thirdly, please remember that what happened here, the disturbance that happened wasn’t caused either by the prosecution or by [the defendant]. It should in no way affect your decision making in this case. You should hold it neither for nor against either side in the case. You are here as dispassionate fact finders and applicators of the law to the facts. Remember that admonition.”


On appeal, defendant asserts, with no further argument, that the trial court erred in denying his motion for mistrial. “Misconduct on the part of a spectator is a ground for mistrial if the misconduct is of such a character as to prejudice the defendant or influence the verdict. [Citation.] A trial court is afforded broad discretion in determining whether the conduct of a spectator is prejudicial.” (People v. Lucero (1988) 44 Cal.3d 1006, 1022.) When there is only an isolated outburst, and the trial court follows it with a prompt admonition, there is no abuse of the trial court’s discretion in denying a motion for mistrial. (Id. at p. 1024) In this case, the spectator’s outburst was not, on its face, particularly prejudicial. The trial court’s decision to respond with a prompt admonition, rather than a grant of a mistrial, was not an abuse of discretion.[5]


3. Defendant Has Not Established Reversible Error With Respect to Juror Misconduct


Defendant next suggests he was denied a fair trial in that the jury committed misconduct “when relying on information which was the subject of” the spectator’s outburst. As the course of the inquiry into potential juror misconduct is critical to an understanding of our disposition of defendant’s contention, we set forth the proceedings at length.


During deliberations, the jury requested a readback of defendant’s testimony “regarding his thinking when he raised the gun and described aiming/shooting at the car.” Shortly after the readback, Juror No. 8 sent the trial court a note asking permission to ask a private question without the rest of the jury present. The court agreed, but informed Juror No. 8 that defendant and counsel for both sides were entitled to be present. Juror No. 8 then gave the court her question on a jury question form,[6] which read, “Can I ask what ‘colors’ was [defendant’s] Golf bag and the name brand of the bag.” After reviewing the question, the trial court asked, “What’s the problem?” Juror No. 8 explained, “It was just a question I had that it rose up. It is kind of -- it kind of helps make a decision. But if you can’t answer --.” The court expressed shock at the question, asking, “what possible relevance could the colors of the golf bag have?” Juror No. 8 repeated that “it was just to help make a decision,” and offered, “if it can’t be answered, I am okay with it.”


Defense counsel requested a sidebar conference, and stated, “I don’t think that we need to question her anymore. We’ll tell her we can’t tell her and she can go back in and deliberate. With all due respect, I am not -- I just don’t think asking her why it is relevant is something we should do at this stage.” In contrast, the prosecutor was concerned that “perhaps they are discussing things they should not be discussing in that jury room. And I think the court can inquire as to whether the factors outside of the evidence are coming in and that is being discussed.” Defense counsel replied, “I think that’s beyond the court’s duty. Whatever they are discussing to deliberate to make a decision is for them to discuss.” The court felt obligated to further inquire, concluding that the question “is so unusual that I suspect misconduct of some sort.”


The court then informed Juror No. 8 that the court had to “understand what this question is about” so asked the juror “what’s happening?” Juror No. 8 responded, “It is something personally for me. It is an awful lot of question, but it is something that was after reading the testimony and everything, I just wanted to know. But if it cannot be answered, then I am okay with that.” The court further pressed, and Juror No. 8 further demurred, stating that she could not answer without disclosing what was going on in the jury room, and saying that she would rather just “move on.” The trial court stated that it needed to know why the color of the golf bag was relevant to her, “and if this means disclosing something else that’s going on, then I have to know.” Before Juror No. 8 could answer, defense counsel interrupted and asked to again approach sidebar to make a record.


Defense counsel again requested that the matter be dropped, saying, “She’s clearly said that if the court can’t answer it, she doesn’t need the information. She can move on. I think if she is going to say anything that’s going to divulge anything of the deliberation, that would be completely improper at this time.” The prosecutor continued to suspect misconduct, and requested the trial court to continue its inquiry.


The trial court continued its inquiry and asked Juror No. 8 to “tell us what this is about.” Juror No. 8 responded, “If I can withdraw the question, I will withdraw it.” The trial court said she could not, and again asked the juror to explain. Juror No. 8 responded, “I honestly feel that it is nowhere explaining it without disclosing what’s going on.” The court rejoined, “Then you may have to disclose what’s going on. I think there’s something amiss, something wrong here, something improper that’s happening. And I have to understand. Maybe I am wrong. Maybe I am entirely wrong. But I do have to make a decision.” Juror No. 8 attempted to determine how to answer the court’s question without disclosing deliberations. She ultimately concluded, “I don’t really honestly think I can without disclosing a verdict.” The trial court asked, “In your view, are you folks working toward a verdict one way or other?” When Juror No. 8 answered in the affirmative, the court released her and directed her to continue deliberations.


A short time later, defense counsel sought to make a record. Defense counsel had been advised by a colleague that the colleague’s understanding of the spectator outburst was that the spectator had yelled, “Did you love him when you were breaking his window with his golf clubs.”[7] Given this information, defense counsel now believed that Juror No. 8’s inquiry “might be considering” the spectator outburst which the jury had been admonished to disregard. Defense counsel conceded that she had “refused to let [the trial court] inquire into” the very same possible misconduct that she was alleging now, but since she had been advised of her colleague’s understanding of the spectator’s outburst, she requested the court to conduct a limited inquiry to make certain the juror was not considering the content of the spectator’s outburst. Neither the prosecutor nor the trial court could determine the relevance of the color of the defendant’s golf bag, even if the juror were improperly considering the spectator’s outburst.


At this point, the jury signaled that it had reached a verdict. The court took the verdict. Defendant subsequently made no motion for new trial based on juror misconduct.


A juror’s consideration of outside information constitutes misconduct. (People v. Harper (1986) 186 Cal.App.3d 1420, 1426.) “[A]n inquiry sufficient to determine the facts is required whenever the court is put on notice that good cause to discharge a juror may exist.” (People v. Burgener (1986) 41 Cal.3d 505, 519.) “Failure to conduct a hearing sufficient to determine whether good cause to discharge the juror exists is an abuse of discretion subject to appellate review.” (Id. at p. 520.) However, when the defendant prevents the inquiry from going forward, the defendant cannot “subsequently challenge the verdict of that very jury on grounds that the court’s failure to conduct an inquiry prejudiced his interests.” (Id. at p. 521.) This is so because the trial court could have addressed and cured the problem at the time of trial. (People v. Holloway (2004) 33 Cal.4th 96, 124-126.)


To the extent defendant contends on appeal that the trial court erred in failing to further inquire of Juror No. 8 regarding the basis for her unusual question, the contention is considered forfeited. Defense counsel repeatedly argued against further inquiry, to the point of asking for a sidebar to press the objection immediately after the trial court had directed the juror to explain the reason for her question, even if it meant disclosing matters from deliberations. Both the trial court and the prosecutor felt further inquiry was necessary, but defense counsel forcefully argued against it. As such, defendant has forfeited any argument on appeal that the trial court erred by failing to further inquire of Juror No. 8, prior to the time he released her to continue deliberations at defendant’s request.[8]


The only argument that was not forfeited was defense counsel’s subsequent reversal of position and request that the court conduct a limited inquiry to determine whether Juror No. 8’s question was prompted by consideration of the spectator’s outburst. In other words, the only claim preserved for appeal is the assertion that Juror No. 8 may have violated the court’s admonition and considered the spectator’s outburst. The only basis for this inference is that the juror asked an inexplicable question regarding the defendant’s golf clubs and the spectator’s outburst had mentioned golf clubs as well. However, this was not the only mention of golf clubs at trial; defendant testified the shooting occurred after he had returned home from playing golf. Moreover, the juror’s own description of the reason for her question weighs against the inference that it was prompted by the spectator’s outburst. She explained that the inquiry was “something personally for” her that she wanted to know “after reading the testimony and everything,” shortly following a readback. On these facts, the idea that the juror improperly considered the spectator’s outburst is pure speculation. As such, the trial court did not err by failing to conduct the limited inquiry sought by the defendant.


4. Defendant Waived His Challenge to the Imposition of The Upper Term for Voluntary Manslaughter


Defendant contends the trial court erred in imposing the upper term for voluntary manslaughter based on the aggravating factor of victim vulnerability. Defendant argues both that the facts do not support a finding of vulnerability and that, as a matter of law, a heat-of-passion voluntary manslaughter victim cannot be considered vulnerable. Contentions that the trial court relied on inapplicable sentencing factors are waived if not raised at trial. (People v. Scott (1994) 9 Cal.4th 331, 355.) Defendant contends the waiver rule does not apply because an objection would have been futile given “the tenor of the court’s statements at the time of sentencing.” We disagree. The trial court stated that it was “bound by the rules of decision making” and asked the prosecutor for thoughts on the question of what factors in aggravation “would give me the authority or the discretion to choose a high base term.” At this point, the prosecutor raised the defendant’s lack of remorse. The trial court questioned whether lack of remorse was an aggravating factor,[9] telling the prosecutor, “It is important that we establish a record and make appropriate findings and point to the Rules. It is very difficult, [Mr. Prosecutor], to just do what you want to do.” The prosecution then raised the aggravating factor of victim vulnerability. The trial court then turned to defense counsel, who, rather than arguing against the applicability of victim vulnerability, simply indicated defendant wanted to speak on his own behalf. It is apparent that the trial court sought to impose a proper sentence, grounded in a consideration of legally appropriate factors. An objection to the applicability of “vulnerability” would not have been futile at this time. As defendant failed to make such an objection, the contention that “vulnerability” is an improper factor has been waived.


5. The Imposition of the Upper Term for the Firearm Enhancement Was Not an Abuse of Discretion


Defendant contends the trial court erred in imposing the upper term for his firearm use. Sentencing court have wide discretion in weighing aggravating and mitigating factors. (People v. Avalos (1986) 47 Cal.App.4th 1569, 1582.) The trial court need not explain its reasons for rejecting mitigating factors. (Id. at p. 1583.) We must affirm the sentencing court’s exercise of discretion unless there is a clear showing the sentence choice was arbitrary or irrational. (Id. at p. 1582.) Defendant was on probation at the time of the offense. This is a factor in aggravation. (Cal. Rules of Court, rule 4.421(b)(4).) Defendant’s participation on probation was unsatisfactory; this is an additional factor in aggravation. (Cal. Rules of Court, rule 4.421(b)(5).) Defendant, who was then on probation, used a military rifle to resolve a shouting match with his son. There was no abuse of discretion in imposing the upper term for the firearm enhancement.


6. Blakely Is Not A Bar


Defendant contends the imposition of the upper term is barred by Blakely v. Washington (2004) 542 U.S. 296. The California Supreme Court has held the imposition of the upper term is not unconstitutional under the rationale of Blakely. (People v. Black (2005) 35 Cal.4th 1238, 1244) and we are bound by the Supreme Court’s holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)


DISPOSITION


The judgment is affirmed.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


CROSKEY, J.


We Concur:


KLEIN, P. J.


ALDRICH, J.


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[1] On appeal, defendant states that “[t]he first time [he] raised the rifle, he knew there was no round in the chamber.” This is incorrect. Defendant clearly intended to fire at the car the first time he raised the rifle; it was only when the rifle failed to fire that he “remembered” there was no bullet in the chamber.


[2] Indeed, his counsel’s opening statement to the jury did not seek an acquittal, but sought a verdict of voluntary manslaughter based on heat of passion.


[3] Defendant does not contend there was error in the fact that the jury found true the allegation that he had used a firearm within the meaning of Penal Code section 12022.5, when the information had alleged firearm use within the meaning of Penal Code section 12022.53. “ ‘[A] valid accusatory pleading need not specify by number the statute under which the accused is being charged.’ “ (People v. Shoaff (1993) 16 Cal.App.4th 1112, 1117.) As long as the pleading alleges each fact required for the imposition of an enhanced term, the failure to specify the enhancement statute does not preclude imposing the enhancement, as long as the defendant was not misled to his prejudice. (Id. at pp. 1117-1118.)


[4] Indeed, defense counsel virtually conceded the point in argument to the jury stating, “Going to implied malice, showing that the People[,] I believe[,] are trying to prove that shooting a gun at a car is in -- shows an indifference to human life. Disregard what’s safe for [defendant] to be shooting at the car, implied malice. Okay. But when you look at heat of passion, if there is heat of passion, it negates malice.”


[5] In any event, it appears that the spectator’s statement was not prejudicial. Defense counsel had been concerned the jury might infer from it that defendant had performed previous violent acts. But, given the jury’s verdict of voluntary manslaughter rather than murder, the jury clearly concluded defendant’s killing of his son was an isolated, provoked incident.


[6] Defendant notes that the jury question form has “#5,” the foreperson’s seat number, written in the “Signature of Foreperson” box, from which defendant infers the entire jury contemplated the question. The inference does not follow. Juror No. 8 asked to present her question outside the presence of the rest of the jurors, indicating that it was a private matter. As to the form, Juror No. 8 explained, “I wrote the question down because I wanted you to see the question before I came out. And I gave it to the Deputy.” Although the jury question form has “#5” written in the “Signature of Foreperson” box, we note that other questions submitted by the jury do not simply state “#5,” but instead include the foreperson’s jury identification number, followed by “Juror #5.”


[7] This is not the language of the outburst as reported by the court reporter.


[8] On appeal, defendant argues that “Counsel had earlier requested a mistrial on the basis of the outburst, and based upon the discussions that transpired with Juror No. 8 and thereafter, any further request by counsel for a mistrial would have been futile.” The argument is disingenuous, given that the trial court had intended to get to the bottom of Juror No. 8’s question, and it was only defense counsel’s request that the line of inquiry not be pursued that resulted in the juror being returned to continue deliberations.


[9] Lack of remorse is an appropriate factor in considering a defendant’s eligibility for probation (Cal. Rules of Court, rule 4.414(b)(7)); it is not among the list of circumstances in aggravation (Cal. Rules of Court, rule 4.421).





Description Defendant shot and killed his adult son in the course of an argument. Defendant was convicted of voluntary manslaughter, and the jury found to be true an allegation that he used a firearm. Defendant was sentenced to 21 years in prison, consisting of the upper term for both the manslaughter conviction and the firearm enhancement. Defendant appeals, challenging the sufficiency of the evidence, the trial court’s rulings on a motion for mistrial, possible jury misconduct, and his sentence. Court concluded that defendant waived several alleged errors by failing to pursue them at trial, and otherwise concluded that the trial court did not err. Judgment Affirmed.

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