P. v. Butler

Filed 2/28/07 P. v. Butler CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

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A jury found defendant Don Gordon Butler guilty of battery, a misdemeanor. The jury also found true a special hate crime allegation that the attack was racially motivated, which allowed the trial court to punish the battery as a felony pursuant to Penal Code^[1]section 422.7.

On appeal, defendant contends the trial court erred when it declined to instruct the jury on violation of section 422.6 (use of force, threats, or destruction of property to interfere with anothers exercise of civil rights) as a lesser included offense to the charged battery and hate crime enhancement. Defendant also claims the trial court failed to perform an adequate investigation into alleged juror bias.

Finding no merit in either of these arguments, we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On September 22, 2004, at around 1:30 p.m., defendant was in line at a Gridley recycling center helping the employees assist customers. Defendant approached the victim, Bhajan Singh Aujla, and began trying to speak to him in Spanish. Aujla did not respond initially and after repeated attempts by defendant to speak to him, Aujla told defendant that he did not speak Spanish.

In response, an agitated defendant launched into a verbal tirade, calling Aujla a Punjabi mother fucker and an East Indian piece of shit. When Aujla did not respond, defendant picked up a thick plastic recycling bucket and hurled it at Aujla. Aujla blocked the bucket with his arm, causing it to bounce back toward defendant. Defendant again hurled it at Aujla, this time hitting him in the face and injuring him.

Aujla sought shelter behind a truck. Feeling blood dripping from his nose, Aujla called 911 and reported the attack. Gridley Police Sergeant Dean Price responded to the scene and was given a description of the alleged perpetrator. Price then apprehended defendant some 100 yards away. Once he was in the police car, defendant referred to Aujla as a fucking sand nigger, fucking Hindu.

Defendant was charged with one count of battery in violation of section 242. The information included a special hate crime allegation that defendant also violated section 422.7 because he committed the battery for the purpose of intimidating and interfering with the victims free exercise and enjoyment of a right secured by the laws and Constitution of California and the United States because of the victims status and perceived status due to the victims race, color, ancestry and national origin.

After trial testimony was complete, defense counsel requested the trial court instruct the jury on a violation of section 422.6 as a lesser included offense. The court declined.

Defendant was convicted of battery and the jury found the facts underlying the special allegation to be true. Based on the jury findings, the trial judge enhanced defendants sentence pursuant to section 422.7 and sentenced him to two years in state prison.

DISCUSSION

I

Refusal to Instruct on Section 422.6

as a Lesser Included Offense

An appellate court engages inde novoreview of a trial courts decision not to instruct on an uncharged offense that was asserted to be a lesser included offense to the charged offense. (People v. Waidla (2000) 22 Cal.4th 690, 733.) Based on California common law, trial judges have the duty to instruct the jury on lesser included offenses if the evidence raises a question as to whether all of the elements of the charged offense are present andthere is evidence that would justify a conviction of a lesser offense. (People v. Lopez (1998) 19 Cal.4th 282, 287-288.)

Two tests are used for determining whether an offense is a lesser included offense: the elements test and the accusatory pleading test. (People v. Lopez, supra, 19 Cal.4th at p. 288.) Under the elements test, if the greater offense cannot be committed without necessarily violating each statutory component of the lesser offense, the latter is a necessarily included lesser offense. (Ibid.) Under the accusatory pleading test, a lesser offense is included within the greater offense if the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense. (People v. Birks (1998) 19 Cal.4th 108, 117; see Lopez,at pp. 288-289.) As we will explain, section 422.6 is not a lesser included offense of battery, the sole count charged in the information -- together with a hate crime enhancement -- under either test.

A

The Elements Test For Lesser Included Offenses

The elements test compares the statutory definitions of two crimes to determine whether one necessarily violates the lesser statute when a defendant offends the greater. (E.g., People v. Lopez, supra, 19 Cal.4th at p. 289.) Here, defendant erroneously contends that section 422.6 (use of force, threats, or destruction of property to interfere with anothers exercise of civil rights) is a lesser included offense of a combination of battery and the hate crime enhancement. In other words, defendant would have the court consider the battery with the hate crime enhancement as one substantive offense for the purpose of the elements test. This simply cannot be done.

Enhancements are not substantive crimes. (People v. Dennis (1998) 17 Cal.4th 468, 500, citing People v. Morris (1988) 46 Cal.3d 1, 16; see also In re M.S. (1995) 10 Cal.4th 698, 725 [explaining that section 422.7 is a sentence enhancement provision].) Most fundamentally, a sentence enhancement is not equivalent to a substantive offense, because a defendant is not at risk for punishment under an enhancement allegation until convicted of a related substantive offense. (People v. Wims (1995) 10 Cal.4th 293, 307.) Since section 422.7 is not a substantive offense and can never be violated on its own, it does not by itself define the elements of any crime. For that reason, section 422.6 cannot be a lesser included offense under the elements test.

B

The Accusatory Pleading Test For Lesser Included Offenses

Defendant next contends that section 422.6 is a lesser included offense of the charged combination under the accusatory pleading test; however, that argument is fatally flawed because the law is clear that the section 422.7 enhancement is irrelevant for the purposes of that test. (See People v. Wolcott (1983) 34 Cal.3d 92, 101 [instructing that sentence enhancements are not to be considered when applying the accusatory pleading test].) Although Wolcott involved a use enhancement rather than a purpose enhancement like section 422.7, the reasoning behind the appellate courts decision is equally applicable here. In reaching its conclusion, the court noted that considering enhancements relevant for purposes of the accusatory pleading test would confuse the criminal trial. (Wolcott, at p. 101.) The court explained that it was the current approach to allow the jury to consider the defendants guilt of the charged offense, or any lesser included offenses thereof, and only after making such a determination, to decide on the truth of any enhancements. (Ibid.)

Although defendant recognizes the existence of Wolcott,he suggests that the United States Supreme Courts decision in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]renders the approach of disregarding enhancement allegations for the purpose of applying the accusatory pleading test unconstitutional. Defendant misapprehends the scope of Apprendis holding. Apprendi and its progeny address only the issue of whether it is constitutionally permissible for a judge to make findings of fact that increase the defendants sentence beyond that authorized by the jury verdict. (Apprendi, at p. 490 [147 L.Ed.2d at p. 455].) In order to comply with the Sixth Amendment, Apprendi requires that allegations underlying a sentence enhancement be submitted to a jury and proven beyond a reasonable doubt. (Ibid.) The inquiry of the Apprendi line of cases was limited to the constitutionality of judicial factfinding endeavors in criminal jury trials. (E.g., Cunningham v. California (Jan. 22, 2007, 05-6551) ___ U.S. ___ [___ L.Ed.2d ___].) The propriety of lesser included offense instructions was not addressed.

Finally, consideration of lesser included offenses is a state common law concept, wholly independent of the United States Constitution. (See Hopkins v. Reeves (1998) 524 U.S. 88, 97 [141 L.Ed.2d 76, 85-86] [recognizing that a state has a prerogative to structure its criminal law and this includes the ability to dictate the process by which lesser included offenses are determined]; see also People v. St. Martin (1970) 1 Cal.3d 524, 536 [explaining that California courts recognize two types of necessarily included offenses].) There is no federal constitutional standard for determining how state courts instruct on lesser included offenses. (Hopkins, at p. 96 [141 L.Ed.2d at p. 85] [explaining that the United States Constitution requires that states . . . provide instructions only on those offenses that have been deemed [under state law] to constitute lesser included offenses of the charged crime].) Consequently, the California process for determining what constitutes lesser included offenses is unconstrained by federal constitutional principles. As such, the rule promulgated in Wolcott is controlling and the enhancement allegation cannot be considered when applying the accusatory pleading test.

Since defendant has conceded that section 422.6 can be a lesser included offense under the accusatory pleading test only if the enhancement allegation is considered, defendants argument fails on this basis.

C

Section 422.6 As A Lesser Related Offense

Undaunted, defendant argues that even if section 422.6 is not a lesser included offense, we should consider it a lesser related offense requiring a jury instruction. As defendant readily admits, the California Supreme Court has held that the California Constitution should not be construed to grant criminal defendants an affirmative right to insist on jury consideration of nonincluded offenses without the prosecutors consent. (People v. Birks, supra, 19 Cal.4th 108, 136, italics added, overruling People v. Geiger (1984) 34 Cal.3d 510.) Defendant suggests that this court make an exception to the Birks rule here and return to the previous approach announced in Geiger. We decline to do so.

II

Investigation Into Juror Bias

Defendant also finds fault with the trial courts investigation into potential juror bias. Prior to the beginning of testimony, Juror C informed the court that he had overheard conversations between defendant and defense counsel through his hearing aid, which had been plugged into the courts sound system. Upon learning of this potential taint, the court asked Juror C about what he had heard, his impressions, and what he had shared with his colleagues on the jury. In response, Juror C admitted that his ability to judge the case impartially had been compromised. Accordingly, the trial judge excused Juror C from the panel and replaced him with the alternate.

Defendant does not find fault with the decision to remove Juror C; rather, defendant alleges that the court erred in declining to extend its investigation and ask each individual juror whether Juror C had shared any information. The court had this colloquy with Juror C:

THE COURT: Did you pass any of this information or your feelings to the other jurors?

JUROR [C]: I said I overheard the actual courtroom proceeding and that I did hear the defendant and the attorney talk.

THE COURT: But you didnt pass on any opinions you might have about the defendant or anything?

JUROR [C]: Not at all.

THE COURT: All right, I think.

[DEFENSE COUNSEL]: Did you pass on the actual statements?

JUROR [C]: No, I did not.

Juror C denied revealing the substance of what he had heard to the rest of the panel; nonetheless, defendant complains that the courts investigation was insufficient because the trial court was under a duty to inquire of every individual juror to determine what, if anything, he or she had been told.^[2] We disagree.

Initially, defendant asks this court to review the matter de novo rather than for an abuse of discretion. In support of his position, he cites a series of cases that are inapposite here. In those cases, appellate courts were empowered to engage in independent review of trial court determinations that juror bias or misconduct was not prejudicial. (See Wilkinson v. Southern Pacific Co. (1964) 224 Cal.App.2d 478, 483, 490; Deward v. Clough (1966) 245 Cal.App.2d 439, 445; People v. Brown (1976) 61 Cal.App.3d 476, 482.)

In short, it is the prejudicial effect of juror misconduct or bias that has been considered a matter for independent appellate review, while the factual determination of whether misconduct or bias exists is within the sound discretion of the trial court. (Compare, e.g., People v. Brown, supra, 61 Cal.App.3d 476, 482-483 [confirming that the appellate court has de novo review over the trial courts finding that identified juror bias had no prejudicial effect] with People v. Engelman (2002) 28 Cal.4th 436, 442 [reiterating that the trial court has broad discretion to decide whether and how to investigate juror bias or misconduct].)

Here the court determined that there was no potential juror bias beyond Juror C. It did not identify juror bias and then determine that the bias was not prejudicial to defendant. For these reasons, the actions undertaken by the trial court here can only be disturbed if they were an abuse of discretion.

Once a trial court is put on notice that good cause to discharge a juror may exist, it is the courts duty to make whatever inquiry is reasonably necessaryto determine whether the juror should be discharged. (People v. Bradford (1997) 15 Cal.4th 1229, 1348, italics added.) However, it is within the sound discretion of the trial court to determine the appropriate substance and process of that investigation. (People v. Engelman, supra, 28 Cal.4th at p. 442.) Defendant asserts that the trial court was obliged to investigate the potential taint of the other jurors further than simply questioning Juror C. We disagree.

There was no evidence here that the remaining jurors had any information extraneous to the record. Posing questions to Juror C was a reasonable inquiry into the possibility that whatever Juror C heard had tainted the other jurors. The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial. (People v. Ray (1996) 13 Cal.4th 313, 342, 343 [finding that the court was not under an obligation to inquire of an individual juror once he informed the court that he knew a member of the victims family since his note assured the court that he had never spoken to that person about the case].) The court engaged in a reasonable investigation into whether the bias extended beyond Juror C. There was no abuse of discretion.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

DAVIS, Acting P.J.

BUTZ , J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Appellate counsel disingenuously cites to the depublished case of People v. Hightower (2001) 94 Cal.App.4th 998, assertedly for its passing characterization of this area of law, and not as authority. Use of a depublished case for this purported purpose is not authorized under the California Rules of Court. (Cal. Rules of Court, rule 8.1115(a)-(b).) Those rules authorize reference to unpublished opinions in a narrow set of circumstances -- only specifically, when the unpublished opinion is relevant under law of the case, or affects the same defendant in another similar action. (Cal. Rules of Court, rule 8.1115(b).) Counsel was not authorized to refer to People v. Hightower for its passing characterization of the law.