People v. Diaz

Opinion

Defendant and appellant, David Angel Diaz, appeals from the judgment entered following his conviction, by jury trial, for attempted

Officer Jose Ramirez interviewed Martha about a week after the shooting. Martha told him she knew the person who shot Remberto, and that she had gone to junior high school and high school with the gunman. Martha showed Ramirez an eighth grade yearbook and pointed out a photograph of Diaz.

2. Defense evidence.

Diaz’s sister testified that she, Diaz and his girlfriend Juana were at the movies on the night Remberto was shot.

Juana’s father testified he was cleaning up his backyard sometime after 9:00 p.m. on July 14, 1998, when a small car crashed into his garage. A girl and a Chinese man got out of the car. The man pulled up his shirt and displayed a gun. Then the two of them jumped over the back fence. Juana’s mother, who was inside the house, looked out the window when she heard the crash and she saw Jeanette and a man get out of the car.

Contentions

1. The trial court erred by discharging a juror during deliberations.

2. The trial court erred by admitting the preliminary hearing testimony of a putatively unavailable witness.

3. The concurrent sentences on counts 2, 3 and 4 violate section 654.

Discussion

1. Discharged juror.

Diaz contends the trial court erred by discharging one of the jurors during deliberations. This claim is meritless.

Section 1089 allows the trial court to discharge a juror who “upon . . . good cause shown to the court is found to be unable to perform [her] duty.” “ ‘We review for abuse of discretion the trial court’s determination to discharge a juror and order an alternative to serve. [Citation.] If there is any

After only two hours of deliberation, the foreperson of Diaz’s jury sent the trial court a note saying, “A juror refuses to deliberate further. We believe that this violates instruction number 17.41.1. We want further guidance from the court.” Commenting that it wanted to find out “whether it is an honest difference of opinion or whether or not there is, in fact, a juror who is not deliberating,” the trial judge had the jury foreperson, Juror No. 9, brought into the courtroom. The foreperson said Juror No. 5 was “intimidated by us needing to discuss her opinion and ours and she just feels ganged up on because she is by herself,” and that “her position and her attitude is, this is how I feel, and there is nothing to discuss.” Although Juror No. 5 had initially participated in deliberations, she subsequently began refusing to discuss anything, saying only, “This is how I feel.” “[E]verything was going fine until like the last 10 or 15 minutes when we realized that this is where we all were positioned. . . . [B]ut, when we had the difference, there was no discussing it further. ‘This is how I feel.’ ” “We tried, like, two or three times to encourage her. And everybody calmed down and backed off and just tried to ease the situation and then approach it again, and it was just— that’s it.” “When the other jurors told her they weren’t ganging up on her and not to take it personally, Juror No. 5 said she feels like it is [personal]. She is completely intimidated . . . .”

The trial court indicated it wanted to question Juror No. 5, and counsel did not object. The trial court asked Juror No. 5. if she was having difficulty in the jury room. She said, “I think I am,” and began to cry. She said she had been discussing her opinion and the factual basis for it with the other jurors, “[b]ut they are ... all bombarding me and I am just telling them the way that my belief—.” Pointing out that deliberations had only been going on for about two hours (after a two-week trial), the court reminded her to “decide the case for yourself, but you should do so only after discussing the evidence and the instructions with the other jurors,” and that “it is rarely helpful for a juror at the beginning of deliberation to express an emphatic opinion on the case or to announce a determination to stand for a certain verdict.”

The trial court then had Juror No. 11 brought into the courtroom. Juror No. 11 said that although Juror No. 5 had initially participated in deliberations, she stopped doing so and now refused to discuss the evidence. When the other jurors asked Juror No. 5 to discuss her position, she refused,

The trial court had all the jurors and alternates brought in for a rereading of the instructions relating to juror duties, and then excused them for the day. The next morning, the court indicated it felt further questioning of Juror No. 5 was necessary to determine if she was either refusing to deliberate or incapable of deliberating because she felt intimidated. Juror No. 5 was brought in and the trial court asked: “Yesterday you said you felt intimidated by the other jurors and, in fact, it was something that brought you to tears. [¶] Do you still feel intimidated by the other jurors?” She said, “No, your Honor. I was going through a lot. My brother-in-law was very sick and he died yesterday.” She then said, “It has been kind of hard for me, but I am doing better now, your Honor.” When the trial court asked if this personal loss wouldn’t make it hard for her to deliberate because “[i]t sounded like yesterday that interfered with it,” she replied, “Well, I didn’t know that he had died until I got home.” She said her brother-in-law’s illness had been bothering her the day before, but when the trial court asked if she thought that was why she had been having problems in the jury room, she said: “No. There was a lot of problems in there. But, I think I can do my job, your Honor. [¶] The Court: Okay. What has changed to make you think so? [¶] Juror No. 5: I made up my mind that I am a juror and I have to do my job and, like you told me, weigh the evidence, and I am going to do my job.” Asked if her brother-in-law’s death wouldn’t affect her, she said: “No, your Honor, because he is not suffering anymore. He was suffering a lot; he had bilateral kidney failure and he was on the machine. So he is not suffering any more.” When the trial court asked what had changed since the day before to make her feel she was not going to be intimidated anymore, Juror No. 5 replied: “Because I have got a lot of prayer and I know the Lord will bring me through. Your Honor, that’s how I feel. That’s my belief.”

The trial court indicated to counsel it felt that Juror No. 5’s answers had raised questions about her “candor and reliability” because, during the previous day’s questioning, she hadn’t said anything about her brother-in-law’s illness. “She said she was intimidated by the others. And she said that

Responding to a subsequent new trial motion, the trial court amplified its explanation. The court noted that all three of the other jurors examined agreed “that after a relatively short period, be it an hour or two hours, after a 10-day trial, that [Juror No. 5] was no longer taking part in the decisions— or discussing the facts of [the] case. [¶] And when she was first confronted with that decision, she said that she was deliberating, although she felt intimidated, and that she was trying to do that. But the next day she basically comes in and contradicts her story and says that ... the difficulty in her deliberations yesterday [was] due to the fact that she was upset, and understandably so, at the life-threatening illness that she had been worried about with her brother-in-law. [¶] And so, that wasn’t disclosed the first day . . . .” “[B]asically my decision was made on the failure to deliberate, failure to be honest about what was taking place, her feeling intimidated, and the difficulties that one would reasonably have as a result of that.”

Refusal to deliberate constitutes good cause for removal. “A refusal to deliberate consists of a juror’s unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow

Diaz argues Juror No. 5 was not refusing to deliberate, but that—having properly deliberated and reached a decision—she was simply holding out against a guilty verdict. Diaz argues that in these circumstances the removal of Juror No. 5 was improper under People v. Castorena (1996) 47 Cal.App.4th 1051 [ 55 Cal.Rptr.2d 151 ]. However, there is little similarity between the two cases. The trial court in Castorena never questioned the removed juror, even after she wrote a letter alleging she had been properly deliberating and that the misconduct had been perpetrated by a different juror. Castorena held it had been an abuse of discretion to remove this juror because, without inquiring into her allegations, the trial court “did not have the requisite facts upon which to decide whether [the removed juror had] in fact failed to carry out her duty as a juror to deliberate or whether the jury’s inability to reach a verdict was due, instead, simply to [the removed juror’s] legitimate disagreement with the other jurors.” (Id. at p. 1066.) Here, the trial court did inquire into the alleged misconduct before acting. The Castorena jury had already

Diaz also relies on People v. Delamora (1996) 48 Cal.App.4th 1850 [ 56 Cal.Rptr.2d 382 ], where the trial court removed two jurors who had expressed concerns about not being compensated by their employers if they spent too much time on jury duty. The Court of Appeal found an abuse of discretion, not because problems relating to a juror’s employment may not provide a basis for a proper discharge, but because it was unclear whether there was actually such a problem in the case. The trial court had removed the two jurors—after they had been deliberating for more than three days— without first asking if they were willing to deliberate longer even if their employers would not pay them. “Although a trial court does not abuse its discretion when it discharges a juror because of problems related to the juror’s employment, the employment problem must be real and not imagined.” {Id. at p. 1855.) Delamora is inapposite because Juror No. 5 was not discharged until after the trial court questioned her.

Juror No. 5’s demeanor and responses when initially questioned by the trial court revealed that she was extremely upset. Her responses to the next day’s follow-up questioning demonstrated that her distress had caused her to stop deliberating, and revealed a troubling equivocation as to why she had been distressed. The trial court was entitled to discount Juror No. 5’s verbal declarations when they conflicted with her demeanor. (See People v. Lucas (1995) 12 Cal.4th 415 , 489 [ 48 Cal.Rptr.2d 525 , 907 P.2d 373 ] [“Although the juror stated the cancellation of her vacation would not affect the discharge of her duties as a juror, her behavior and demeanor supplied substantial evidence to the contrary. She had repeatedly brought the problem of the vacation to the court’s attention, exhibiting concern and agitation over it. The court determined that the juror’s demeanor indicated her ability to deliberate fairly would be substantially impaired if the penalty trial caused her to cancel her vacation.”]; People v. Beeler (1995) 9 Cal.4th 953 , 989 [ 39 Cal.Rptr.2d 607 , 891 P.2d 153 ] [recognizing importance of trial court’s observation of juror’s demeanor in reviewing decision to discharge]; People v. Halsey (1993) 12 Cal.App.4th 885 , 892 [ 16 Cal.Rptr.2d 47 ] [trial court properly removed juror because his evasions under questioning led court to conclude he had violated order not to discuss case and lacked ability to follow instructions, keep open mind, and be objective].)

Finally, we cannot agree with Diaz that the recent Cleveland decision demonstrates the trial court erred. In Cleveland, the record failed to establish

The Supreme Court has recently resolved the proper appellate standard of review for this issue, ruling that it is independent review. (People v. Cromer, supra, 24 Cal.4th at pp. 892-893 [in “evaluating a trial court’s due diligence determination” the appellate court’s “proper standard is independent, de novo, review rather than the more deferential abuse of discretion test”].) Under this standard of review, the trial court properly admitted Martha’s preliminary hearing testimony. Diaz argues the police took a calculated risk Martha would be unavailable for trial when they did not try to subpoena her until just before the trial started, and that the prosecution should, therefore, have been charged with the consequences. However, we conclude not only that the prosecution demonstrated due diligence in trying to secure her presence at trial, but also that it is fairly clear Martha purposely made herself unavailable because she was unwilling to testify.

At the due diligence hearing, Officer Jose Ramirez testified he made more than five attempts to personally serve Martha with the subpoena at the beginning of the trial. He spoke to her mother, who said she had no information. He went to schools Martha had attended, but he got no leads.

Diaz contends the trial court erred by not staying the sentences on counts 2, 3 and 4. This claim has merit.

The trial court sentenced Diaz to state prison for 37 years to life on his conviction for attempted murder under count 1 of the information. The trial court also sentenced him to 25 years to life on the aggravated mayhem conviction under count 2; six years on the aggravated assault conviction under count 3; and seven years on the aggravated assault conviction under count 4. The trial court then ordered the sentences on counts 2, 3 and 4 to run concurrently with the sentence on count 1.

Diaz argues, and the Attorney General concedes, that the concurrent sentences on counts 2, 3 and 4 should have been stayed pursuant to section 654 because those counts all involved charges based on the same single act of shooting a single victim.

We agree. Diaz’s concurrent prison sentence on counts 2, 3 and 4 must be stayed so long as the judgment on count 1 remains in full force and effect. (See People v. Robinson (1991) 226 Cal.App.3d 1581 , 1587 [ 277 Cal.Rptr. 504 ]; People v. Mulqueen (1970) 9 Cal.App.3d 532 , 547-548 [ 88 Cal.Rptr. 235 ].)

Disposition

The concurrent sentences on counts 2, 3 and 4 are hereby ordered stayed. As modified, the judgment is affirmed.

Kitching, J., and Aldrich, J., concurred.

A petition for a rehearing was denied February 22, 2002, and appellant’s petition for review by the Supreme Court was denied April 17, 2002.