THE PEOPLE v. DAVID CARINO

ResetAA Font size: Print

Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. DAVID Y. CARINO et al., Defendants and Appellants.

B220035

    Decided: March 24, 2011

John A. Torribio, Judge.   Affirmed in part;  modified in part.   Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant David Y. Carino. David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant Jaime Lorenzo. Maxine Weksler, under appointment by the Court of Appeal, for Defendant and Appellant Julio Cesar Cardenas. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellants Jaime Lorenzo and David Carino were convicted, following a jury trial, of the second degree murder of Albert Rojas in violation of Penal Code 1

section 187, subdivision (a) (count 1) and the first degree murder of Federico Perez also in violation of section 187, subdivision (a) (count 2).   The jury found true the allegation that Carino personally used a firearm in the commission of the murders within the meaning of section 12022.53, subdivisions (b), (c), and (d).2  The jury also found true as to Carino the special circumstance allegation that Carino committed multiple murders within the meaning of section 190.2, subdivision (a)(3).   The jury found true as to both Lorenzo and Carino the allegation that a principal was armed with a firearm in the commission of the murders within the meaning of section 12022, subdivision (a)(1).

The same jury convicted appellant Cesar Cardenas of vehicular manslaughter with gross negligence in the death of Rojas, in violation of section 192, subdivision (c)(1).   The jury found true the allegation that Cardenas left the scene of the crime within the meaning of Vehicle Code section 20001, subdivision (c).

The trial court sentenced Lorenzo to 25 years to life in state prison for the first degree murder conviction, plus a concurrent 15 year to life term for the second degree murder conviction.   The court sentenced Carino to life in prison without the possibility of parole for the count 2 first degree murder and life in prison without the possibility of parole for the count 1 second degree murder conviction, plus 25 years to life for that conviction plus 25 years to life for the firearm allegation.   The court sentenced Cardenas to nine years in state prison.

The trial court imposed a $200 restitution fine on all three appellants plus a parole revocation fine in the same amount, stayed.   The court ordered Lorenzo and Carino to each pay $16,240 to the state victim compensation board and Cardenas to pay $11,270 to the board.

Appellants appeal from the judgment of conviction.   Each appellant joins in the other's contentions to the extent applicable.

Lorenzo contends that the trial court erred in sustaining the prosecutor's objection to a defense peremptory challenge and instructing the jury that an aider and abettor is equally guilty of crimes committed by a perpetrator, and further contending that the trial court conducted an insufficient inquiry into allegations that there was improper contact between the investigating officer and jurors.   He contends that these errors also violated his federal constitutional rights.

Carino also contends that the trial court erred in sustaining the prosecutor's objection to a defense peremptory challenge.   He further contends that the trial court erred in excluding evidence of Rojas's gang affiliation, restricting defense counsel's examination of Carino, refusing to instruct on heat of passion/sudden quarrel voluntary manslaughter, and reading CALJIC No. 2.50.2 to the jury.   He contends that even if the errors individually were not prejudicial, the cumulative effect of those errors was.   Carino also contends that the trial erred in imposing sentence on the count 1 second degree murder conviction, imposing a parole revocation fine, failing to order that restitution was imposed jointly and severally and failing to calculate and award custody credits.

Cardenas contends that there is insufficient evidence to support his conviction for vehicular manslaughter and further contends that the trial court erred in instructing the jury with CALJIC No. 3.41 on concurrent causation.   We order the abstract of conviction for Carino corrected as set forth in the disposition.   We affirm the judgments of conviction in all other respects.

Facts

About 8:00 p.m. on October 4, 2007, Erik Calderon went to Paul's Cocktails in Bell with his coworkers Saul Calderon and Juan Cilia.   They met another coworker, Federico Perez, at the bar.   Perez's friend Alberto Rojas was also at the bar.   During the course of the evening, Erik and Cilia had three beers while Saul and Perez had about 10 beers.   The bar closed about 1:50 a.m. The five men stood outside for about 20 minutes, then started walking towards Perez's truck that was parked on Loma Vista.

Perez and Cilia returned to the bar, however, to get Perez's car keys.   Erik and Saul walked toward the back of the bar.   Erik relieved himself between two parked cars in the parking lot.   He heard an argument between “Juan” and “Jessica,” then the sound of squeaking tires and doors opening.   Someone said, “Did you call us pussies?”   Erik saw that a truck was parked in the middle of the parking lot with the doors open.   Four people were standing in front of Saul. The men were Juan Garcia, and appellants.   Carino and one other man were holding guns.

Garcia asked Saul who had called them “pussies.”   Saul remained quiet.   Erik said that no one had said that and that they were leaving.   Garcia said, “Who the fuck are you?”   The two men with guns pointed them at Erik. Erik repeated that they were leaving.

Rojas walked up to the group, and the men pointed their guns at him.   Garcia asked Rojas who he was.   Rojas raised his hands to his shoulders and raised his sweatshirt slightly.   Rojas started walking backwards away from the men.   Garcia swung at Rojas, grazing his chin.   Garcia then told the other men to hold Rojas.   The three men rushed toward Rojas, who continued to walk backward and to attempt to protect his face.   Garcia continued swinging.

When Rojas reached the sidewalk on Gage, Perez ran up and began swinging.   Garcia and two of the men turned their attention to Perez and tried to hit him.   One man stayed with Rojas.   Carino held a revolver and looked at Perez.   Rojas tried to get away, and took a gun dropped by Lorenzo.   Rojas moved toward Perez.   Carino fired at Perez, but the gun did not go off.   He fired again and hit Perez.   He then fired three shots at Rojas, who was about five feet away.   The shooting was described in the reverse order by Jose Orpesa, a worker from the bar.

Rojas was in front of a Maxima sedan.   He fell after being hit by the gunshot.   Before he hit the ground, the Maxima, driven by Cardenas, hit him.   The front end of the car lifted.   Rojas, who weighed 250 pounds, became stuck between the front wheels of the car.   The car could not move forward.   Cardenas put the car in reverse.   It smoked but did not move.   After repeated attempts to go backward and forward, the Maxima moved slowly and with difficulty down the street, dragging Rojas under the car.   Cardenas again put the car in reverse, freed the car from Rojas, and then drove forward, away from the bar.   The car was still smoking as it drove away.   Rojas was conscious and moving at that point.   Perez appeared unconscious.   Both men later died.

Bell Police Officer Lance Ferrari was on patrol in the vicinity of Paul's Cocktails, heard gunshots, drove toward the bar, and saw a dark truck screech its tires and speed away.   He followed the truck, which was going about 60 to 70 miles an hour, and initiated a traffic stop.   Juan Osorio was in the driver's seat, and Garcia and appellants Carino and Lorenzo were passengers.   Officer Ferrari found two handguns in the truck.   One of the guns was a revolver, and it smelled like it had just been fired.

Video cameras from the bar captured many of the evening's events.   The videos were shown to the jury.

Deputy Medical Examiner Yulai Wang of the Los Angeles County Coroner's Office conducted Perez's autopsy and determined that Perez died of a gunshot wound to the chest.   Blunt force trauma to his trachea also contributed to his death.

Deputy Medical Examiner Ogbannon Chinwah conducted Rojas's autopsy and determined that Rojas died of both multiple gunshot wounds and blunt force trauma consistent with being in a vehicle accident.   Either injury alone would have caused death.

Senior Criminalist Robert Keil of the Los Angeles County Sheriff's Department Scientific Services Bureau examined the revolver recovered by Officer Ferrari.   Keil determined that the bullets recovered in the autopsies of Perez and Rojas were fired from the revolver.

Lorenzo was interviewed by police and told them that Carino shot Perez and Rojas.   He said that Carino gave him a semi-automatic handgun before they got out of the truck.   Carino had a revolver.   During Lorenzo's fight with a man, the gun fell out of Lorenzo's pocket.   Lorenzo heard gunshots, picked up his fallen gun, got into the truck and gave the gun back to Carino.   They drove away.

Cardenas was also interviewed by police.   He said that he was drunk by the end of the evening.   He claimed that he ducked when he heard gunshots and stepped on the accelerator.   His car slipped at first, but he was able to drive away.   He washed his car the next morning, but did not see any blood on it.

Carino and Cardenas testified in their own defense.

Carino stated that he did not fight with anyone, but kept his distance and kept his gun pointed down.   As Lorenzo and Perez were fighting, a gun fell to the ground.   Carino tried to pull Lorenzo away from the fight while keeping Perez down.   Carino looked up and saw Rojas pointing a gun at him.   Carino was scared and fired four shots in Rojas's direction.   Rojas dropped his gun and Perez reached for it.   Carino told Perez to stop.   When Perez did not comply, Carino shot at him twice.   Rojas, who had been standing in front of the Maxima, was run over by the car.   Carino left in the truck.   Carino claimed that he was not entirely truthful in his interview with police.

Cardenas testified he had had 15 or more drinks on the night of the shooting.   He acknowledged seeing Rojas in front of the car.   Cardenas stated that he saw Rojas and another person with a gun, became afraid for his life and ducked.   He heard gunshots and immediately stepped on the accelerator.   He did not realize that he hit Rojas.

Lorenzo presented the testimony of Los Angeles County Sheriff's Detective Traci Gonzalez, who had interviewed him.   The detective had asked Lorenzo if “Juan [was] worth seeing [his] children again.”   Lorenzo also presented the testimony of Detective Tomlin, who had interviewed several witnesses, including a bartender who said that Perez appeared drunk, Cilia who said that Perez was shot after he was knocked down, and Erik who never said that a gun was pointed at him, Rojas or Saul at the beginning of the confrontation.

Discussion

1. Cardenas - sufficiency of the evidence

Cardenas contends that there is insufficient evidence to support his conviction for vehicular manslaughter with gross negligence and that such a conviction violates due process.   He contends that the jury's gross negligence finding must be reversed.3  We see sufficient evidence to support a finding of gross negligence.

In reviewing the sufficiency of the evidence, “courts apply the substantial evidence test.   Under this standard, the court must review the whole record in the light most favorable to the judgment below 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. Cuevas (1995) 12 Cal.4th 252, 260-261, internal quotation marks and citations omitted.)

“Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.   Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder.”  (People v. Jones (1990) 51 Cal.3d 294, 314, internal citations omitted.)

“Gross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences.  [Citation.]  ‘The state of mind of a person who acts with conscious indifferences to the consequences is simply, “I don't care what happens.” ’  [Citation.]  The test is objective:  whether a reasonable person in the defendant's position would have been aware of the risk involved.  [Citation.]”  (People v. Bennett (1991) 54 Cal.3d 1032, 1036.)

Cardenas contends that his “uncontroverted” testimony was that he saw Rojas to the left of his car near the front headlight pointing a gun, saw someone was pointing a gun back at Cardenas, ducked, heard gunshots, and stepped on the accelerator in an attempt to get away from the gunfire.   He did not feel anything hit the car.   He had trouble getting his car to go forward, but was eventually able to drive forward.   He noticed that his car was emitting white smoke, drove the car in reverse, then drove forward and away.   He did not know that he had hit anyone.   He contends that this evidence shows at most inattention or mistake in judgment, which is ordinary negligence.

The jury was not required to accept Cardenas's account of events.   Further, the above summary of Cardenas's testimony is not accurate.   Cardenas testified at trial as follows:  Counsel:  “Were you able to see [Rojas] when he was over your left at this point in time?”  [¶] Cardenas:  “I look forward and I see him in front of my car.”   Counsel, looking at a video of events:  “Do you see [Rojas] ․ who appears to be standing in front of your car?”  [¶] Cardenas:  “Yes.” [¶] Counsel:  “Is that when you saw him for the first time and realized that he had come from your left?”  [¶] Cardenas:  “I believe so, yes.”   Thus, by his own account, he was aware that Rojas was standing in front of his car.   A reasonable person in Cardenas's position would have known that stepping on the accelerator could result in death or great bodily injury to Rojas.

Even if the jury believed Cardenas's testimony that he did not initially realize that he hit Rojas, the jury was not required to accept the rest of his testimony.   Rojas weighed 250 pounds.   When Cardenas tried to drive forward, the front of his car lifted off the ground and the car would not move.   Cardenas then reversed the car, but the car started smoking.   After several attempts to move, the car moved forward, but with difficulty.   Cardenas then reversed the car, which moved the car off Rojas.   He was able to drive the car away.   Cardenas had not had any trouble with the car earlier that day.

A reasonable person in Cardenas's position would have known that a large object was caught under his car, and would also have known that the object was almost certainly Rojas, who had been standing in front of his car moments earlier.4

Cardenas did not get out of his car to see what was obstructing it.   Instead, he drove back and forth over Rojas then, when the car moved forward, dragged Rojas down the street underneath the car.   A reasonable person in Cardenas's position would have known that such actions would produce great bodily injury or death.   Thus, Cardenas's behavior displayed a conscious indifference to the consequences of his actions, a state of mind which constitutes gross negligence.  (People v. Bennett, supra, 54 Cal.3d

at p. 1036.)

Since there is substantial evidence to support the jury's finding of gross negligence, “the due process clause of the United States Constitution is satisfied [citation] as is the due process clause of article I, section 15 of the California Constitution.”  (People v. Osband (1996) 13 Cal.4th 622, 690.)

2. Cardenas-CALJIC No. 3.41

Cardenas contends that his conduct was not a proximate or concurrent cause of Rojas's death and so the trial court erred prejudicially in instructing the jury with CALJIC Nos. 3.40 and 3.41.   This is, in effect, a claim that there is insufficient evidence to support his conviction for manslaughter.   He further contends that the combination of the two instructions was confusing.   We see sufficient evidence of causation and no instructional error.

CALJIC No. 3.40 provides in pertinent part:  “The criminal law has its own particular way of defining cause.   A cause of the death is an [act][or] [omission] that sets in motion a chain of events that produces as a direct, natural and probable consequence of the [act][or] [omission] the death and without which the death would not occur.”

CALJIC No. 3.41 provides:  “There may be more than one cause of death.   When the conduct of two or more persons contributes concurrently as a cause of death, the conduct of each is a cause of the death if that conduct was also a substantial factor contributing to the result.   A cause is concurrent if it was operative at the moment of the death and acted with another cause to produce the death.  [¶] If you find that the defendant's conduct was a cause of death to another person, then it is no defense that the conduct of some other person contributed to the death.”

We see nothing confusing about the combination of CALJIC Nos. 3.40 and 3.41.   The California Supreme Court has found that “both correctly define proximate causation” and indicated that trial courts should give both CALJIC Nos. 3.40 and 3.41 in cases where the evidence suggests more than one cause of death.  (People v. Jennings (2010) 50 Cal.4th 616, 672, fn. 22;  see also People v. Autry (1995) 37 Cal.App.4th 351, 363 [no merit to the claim that giving both CALJIC Nos. 3.40 and 3.41 in the same case improperly lessened the prosecution's burden of proof].)

Here, the evidence showed more than one cause of death.   Deputy Medical Examiner Ogbonna Chinwah testified that the cause of Rojas's death was “multiple gunshot wounds and blunt force trauma.”  (Emphasis added.)   The court asked Dr. Chinwah:  “Taking the shots away, would he have died from these [blunt force] injuries?”   Dr. Chinwah replied:  “Definitely, yes.”   Dr. Chinwah explained that he listed both gunshots and blunt force trauma as the cause of death because they were sustained at the same time.

Cardenas contends that he would not have run over Rojas if Carino had not first shot Rojas, causing Rojas to fall down in front of Cardenas's car and causing Cardenas to duck down in his car and flee in fear.   He further contends that Rojas would have died from the gunshot wounds even if Cardenas had not run over him.   Thus, he concludes, “but for” causation was not shown.

“But for” causation is not required.  “ ‘But for’ or ‘sine qua non’ causation provides that ‘[t]he defendant's conduct is a cause of the event if the event would not have occurred but for that conduct;  conversely, the defendant's conduct is not a cause of the event, if the event would have occurred without it.’  (Prosser & Keeton, Torts (5th ed.1984) § 41, p. 266, fn. omitted.)   By comparison, the ‘substantial factor’ rule for concurrent causes ‘was developed primarily for cases in which application of the but-for rule would allow each defendant to escape responsibility because the conduct of one or more others would have been sufficient to produce the same result.’  (Ibid.) As we have stated in the civil context, the tests for ‘but for’ and ‘substantial factor’ causation usually produce the same result, but the ‘substantial factor’ standard states a clearer rule that subsumes and reaches beyond the ‘but for’ test to more accurately address situations in which there are independent concurrent causes of an event.  [Citations.]”  (People v. Jennings, supra, 50 Cal.4th at pp. 643-644, fn. omitted.)

To the extent that Cardenas contends that his acts were not an “independent” cause of death, we do not agree.   Cardenas did not know that Rojas had been hit by the shots, or that he had been fatally wounded.   He reacted to the sight of guns and the sound of gunfire.   He hit Rojas with his car before Rojas's body reached the ground.   Rojas would still have been in front of Cardenas's car even if no shot had hit him, would still have been struck by the car and would still have died from the injuries inflicted by the vehicle.

3. All appellants-Peremptory challenge

Carino and Lorenzo contend that the trial court erred in sustaining the prosecutor's objection to Carino's counsel's peremptory challenge to Prospective Juror No. 3 and that the error violated their federal constitutional right to due process.   Cardenas joins in this contention to the extent that it benefits him.

“Exercising peremptory challenges because of group bias rather than for reasons specific to the challenged prospective juror violates both the California Constitution and the United States Constitution.  [Citations.]”  (People v. Cleveland (2004) 32 Cal.4th 704, 732.)

It is presumed that peremptory challenges have been exercised correctly.

(People v. Wheeler (1978) 22 Cal.3d 258, 278.)   Under Wheeler, a party who claims a discriminatory use of peremptory challenges must first make a prima facie showing of such discrimination.   Once such a showing is made to the satisfaction of the court, the burden shifts to the other party to provide a race-neutral explanation related to the particular case to be tried.  (Id. at pp. 280-281.)   If the other party cannot provide such an explanation, the prima facie showing becomes conclusive and rebuts the presumption that the peremptory challenges were exercised properly.  (Id. at p. 282;  Batson v. Kentucky (1986) 476 U.S. 79, 89, 98 [procedure is substantially similar for federal law purposes].)

The proper focus of the court's inquiry “is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons.  [Citation.]”  (People v. Reynoso (2003) 31 Cal.4th 903, 924.)

We review the trial court's ruling on the question of purposeful racial discrimination for substantial evidence.  (People v. McDermott (2002) 28 Cal.4th 946, 971.)   We give deference to the court's ability to distinguish “bona fide reasons from sham excuses.”  (People v. Burgener (2003) 29 Cal.4th 833, 864.)  “As long as the court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.  [Citation.]”  (People v. Avila (2006) 38 Cal.4th 491, 541.)

Here, the prosecutor made her Wheeler motion after the defense sought to use a peremptory challenge to remove Prospective Juror No. 3, an Asian-American male.   The defense had previously excused two other Asian-American men.   Juror No. 3 was the last remaining Asian-American on the panel.

Juror No. 3 was married with two children and lived in Hacienda Heights.   He worked as a real estate broker.   He had no prior jury experience.   He was not questioned at all during voir dire.

Carino's counsel explained the earlier challenges to the Asian-American men, Messrs Kuan and Cheng, as follows.   Mr. Kuan appeared non-responsive to his questions about the burden of proof and did not seem to have a grasp of some of the fundamental issues in the case.   Lorenzo's counsel pointed out that Mr. Kuan had said, “It's a terrible crime.”   He argued that this could indicate an assumption of guilt.   Carino's counsel explained that Mr. Cheng had a close friend in the El Monte Police Department.

Carino's counsel explained his challenge to Juror No. 3 as being based on a gut feeling.   He pointed out that the juror had never been on a jury before.   Counsel stated:  “[H]is occupation being as a real estate broker.  [¶] In my opinion, that's a rather - usually people who are brokers have relatively conservative sides and trying to sell houses in nice areas that type of thing, trying to avoid areas where there might be gang or criminal activity, I thought somewhat of conservatism or bias might be towards law enforcement rather than being fair and impartial so that - that's how I saw it.   That's why I'm excusing him, not based on anything from anybody else.”

With respect to counsel's reasons for excusing Juror No. 3, the trial court stated:  “I don't find those plausible.   That one applies to everybody.   He is the third one excused.”

The trial court was in a position to hear the tone of voice and observe the demeanor and body language of counsel, and thus better able to distinguish bona fide reasons from sham excuses than we are.   The trial court found that counsel's proffered explanation was not genuine because it could apply to everybody.   The trial court is correct that virtually everyone has a desire to avoid areas with gang or criminal activity.5  It was reasonable to find that such a vague, one-size-fits-all explanation was not the true reason that counsel was challenging Juror No. 3. Similarly, at some point everyone lacks jury experience.   More facts are needed to make this a credible reason for excusing a juror.   For example, a juror might have been excused for financial hardship many times in the past, and counsel might feel that the juror resented not being excused again, or a counsel might have had bad experiences in past trials with first-time jurors.   Here, counsel did not attempt to learn the reason for Juror No. 3's lack of experience or to offer even a cursory explanation of why lack of prior jury experience would be a reason to excuse the juror.6  It was reasonable for the trial court to find that such a vague, unsupported explanation was not the true reason that counsel was challenging Juror

No. 3. We see no error in the trial court's finding that counsel's explanation was not the true reason for challenging Juror No. 3.

Carino also complains that the trial court erred in reseating Juror No. 3 after finding that the challenge to that juror was improper.   He contends that he was prejudiced by the reseating because Juror No. 3 was aware that Carino's counsel had challenged him.

Here, the challenge to Juror No. 3 did occur in open court in the presence of the jury.   The prosecutor's objection and all subsequent related proceedings were conducted outside the presence of the jury, however.

Reseating an improperly discharged juror is an authorized, appropriate remedy for the improper use of a peremptory challenge.   The complaining party must consent.  (People v. Willis (2002) 27 Cal.4th 811, 821-822.)   There is no absolute bar to reseating a juror who knows that he has been challenged by a particular party.

As our Supreme Court has explained:  “[T]he American Bar Association has included as one of its Criminal Justice Trial by Jury Standards that ‘[a]ll challenges, whether for cause or peremptory, should be addressed to the court outside the presence of the jury, in a manner so that the jury panel is not aware of the nature of the challenge, the party making the challenge, or the basis of the court's ruling on the challenge.’  (ABA Stds. for Crim. Justice, Discovery and Trial by Jury (3d ed.1996) std. 15-2.7, p. 167.)   But requiring all challenges to be made at sidebar may be unduly burdensome.   Trial courts should have discretion to develop appropriate procedures to avoid such burdens, such as limiting such conferences to situations in which the opposing party has voiced a Wheeler objection to a particular challenge.”  (People v. Willis (2002) 27 Cal.4th 811, 822.)

Here, there is nothing to show that Juror No. 3 was prejudiced against Carino as a result of the challenge.   Juror No. 3 took an oath that he would render a verdict based solely on the evidence and the instructions.   There is no disparity in the verdicts which suggest that Juror No. 3 or any other juror was prejudiced against Carino.   Further, there is nothing to show that being challenged would have caused negative feelings towards the defense in Juror No. 3. Juror No. 3 might not have wanted to serve on this jury, or any jury, and might have been unhappy that someone, almost certainly the prosecutor, blocked his removal.

“We reject the notion that a juror is constitutionally disqualified whenever she is aware that a party has challenged her.   Were the rule otherwise, a party could circumvent Batson by insisting in open court that a trial court dismiss a juror even though the party's peremptory challenge was discriminatory.   Or a party could obtain a juror's dismissal simply by making in her presence a baseless for-cause challenge.   Due process does not require such counterintuitive results.”  (Rivera v. Illinois (2009) _ U.S. _, 129 S.Ct. 1446, 1454.)

4. Exclusion of gang evidence and restriction of examination

Carino argues the trial court erred in excluding evidence that Rojas had a gang tattoo and restricting his counsel's examination of Carino.   Lorenzo and Cardenas join in this contention to the extent that it is applicable to and benefits them.

a. Tattoo evidence

Rojas had a tattoo on his stomach which read “Bear S-T.” Defense counsel represented that Bear S-T was a gang and was a subset of Florencia 13 and that the gang's territory was near the bar.   The trial court tentatively granted the prosecutor's pre-trial motion to exclude evidence of this tattoo.

A video of the encounter was played at trial, showing Rojas raising his hands to his shoulders with his palms up and then lifting his sweatshirt.   Erik Calderon also testified to these actions by Rojas.   Counsel for Lorenzo, joined by Carino's counsel, then asked the court to reverse its ruling and admit evidence of Rojas's tattoo.

The court ruled that the tattoo was inadmissible under Evidence Code section 352.   The court found that there was no evidence that the sweatshirt was lifted high and that admission of the tattoo would cause undue consumption of time, due to the testimony that would be required to explain the tattoo's significance.

Carino contends that the trial court erred because showing the tattoo was an act of confrontation by Rojas and was relevant to Carino's self-defense theory.

When self-defense is raised in a homicide case, evidence of the victim's aggressive and violent behavior is generally admissible to show the victim was more likely the aggressor.  (Evid.Code, § 1103, subd. (b);  People v. Wright (1985) 39 Cal.3d 576, 587.)   Under Evidence Code section 1103, such character traits can be shown by evidence of specific acts of the victim on third party persons as well as by general reputation evidence.  (People v. Thomas (1969) 269 CaI.App.2d 327, 328.)  “Where no evidence is presented that the victim posed a threat to the defendant, exclusion of evidence regarding the victim's propensity for violence is proper.  [Citation.]”  (People v. Gutierrez (2009) 45 Cal.4th 789, 828.)  “[O]f course, a defendant's evidence of self-defense is subject to all the normal evidentiary rules, including Evidence Code sections 350 and 352.”  (In re Christian S. (1994) 7 Cal.4th 768, 783.)

We see no abuse of discretion in the trial court's ruling excluding the tattoo.   At no point, either in the trial court or on this appeal, did Carino's counsel represent that Carino actually saw the tattoo.   The coroner's photo shows that the tattoo consisted of four letters in ornate script widely spaced over a large area of Rojas's abdomen above his navel and two letters in ornate script at and below Rojas's navel.   The video is grainy.   It shows that Rojas is wearing a long untucked shirt, which he quickly lifts and drops.   The video was taken from behind and from a distance and does not show how much, if any, of the tattoo was revealed.   As the court pointed out, it would be “almost pure conjecture” that Carino saw the tattoo.   Rojas's behavior does not support an inference that he raised his sweatshirt to intimidate or threaten Carino.   The court described Rojas's arm raising as a gesture of surrender.   After raising his hands, Rojas then walked backward, away from the men confronting him.

The trial court was correct that admitting the tattoo evidence would have required an undue consumption of time.   Mere evidence that Rojas had a tattoo was irrelevant.   More witnesses would have needed to testify about the meaning of the tattoo, Rojas's membership in the gang and the gang's culture of violence.   Even that testimony would have been meaningless without testimony showing that appellants were aware of these facts.

To the extent that appellants contend that even if the tattoo was not seen, it was admissible under Evidence Code section 1103 to show the victim's character for violence, appellants are mistaken.   It did not fall into any of the categories listed in that section;  such evidence was not an opinion, it was not evidence of reputation, and it did not constitute a specific instance of conduct.   Thus, the tattoo had no probative value.

Since the evidence had no probative value and would have required an undue consumption of time, the trial court did not abuse its discretion in excluding the tattoo evidence.

Even assuming for the sake of argument the trial court had erred in excluding the tattoo evidence, any error was harmless.  (People v. Gutierrez, supra, 45 Cal.4th at p. 828 [applying Watson harmless error standard to a claim that evidence was erroneously excluded under Evidence Code section 1103].)   The evidence showed that Rojas was able to take Perez's gun away from him during the fight and had it in his hand when he was shot.   Carino testified that he shot at Rojas because he became afraid when Rojas pointed the gun at him.   Thus, the jury heard evidence that Rojas posed a threat to Carino at the moment Carino shot Rojas.   The jury rejected this evidence and found Carino guilty of second degree murder.   There is no reasonable probability that Carino would have obtained a more favorable outcome had he been permitted to introduce evidence of Rojas's tattoo.   The same reasoning holds true for Lorenzo.   We see no applicability of this issue to Cardenas.

b. Restriction of examination

Carino argues the trial court failed to exercise impartiality in sustaining its own objection to his counsel's examination of him and by restricting the presentation of his defense.

On direct examination, Carino testified that he was not truthful to Detective Tomlin about having his gun with him and about hearing a gun cock before he exited the truck.   Carino explained that he did not want the police to think he had exited the truck with an intent to kill someone.   He also testified that “everything else” he told the detectives was accurate.   On cross-examination, the prosecutor questioned Carino about what he told Detective Tomlin, and the discrepancy between his trial testimony and the interview.

On redirect examination of Carino by his counsel, the following colloquy occurred:

Q: During the interview with Detective Tomlin, did you tell Detective Tomlin that the gun flew out?

A: Yes, sir.

Q: Did you tell Detective Tomlin that a guy picked up the gun?

A: Yes, sir.

Q: And did you tell Detective Tomlin that the guy pointed the gun at you?

A: Yes, sir.

Q: Did you tell Detective Tomlin that you shot him in fear for your life?

A: Yes, sir.

Q: And did you tell Detective Tomlin that you saw Mr. Perez reaching for a gun?

A: Yes, sir.

Q: Did you tell Detective Tomlin that you told Perez “Don't”?

A: Yes, sir.

Q: Did you tell Detective Tomlin that you were fearful that Mr. Perez was going to get the gun and shoot you?

A: Yes, sir.

Q: Is that the truth?

A: Yes, sir.

The Court:  Court will sustain its own objection.   Argumentative.

[Carino's Counsel]:  That's all I have.

The Court:  Jury is instructed to disregard it.

We agree with Carino that the question, in this context, was not argumentative.   Carino had testified that he had lied about some things to Detective Tomlin, but not others.   On redirect, his counsel was attempting to clarify which statements Carino claimed were the truth.7

“As a general matter, the application of the ordinary rules of evidence does not impermissibly infringe on a defendant's right to present a defense.   [Citations.]”  (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103, internal quotations, brackets, and ellipses omitted.)   While a complete exclusion of evidence of the defendant's defense “theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair” the defendant's due process right to present a defense.  (Id. at p. 1103.)   An erroneous evidentiary ruling that restricts or excludes evidence is an error of state, not federal constitutional, law.  (Ibid.)

Here, the trial court did not restrict Carino's right to present a defense.   The court merely sustained a single objection to the form of the question relating to Carino's truthfulness.   Carino's due process right to present a defense was not violated.

The error was harmless under state law as there is no reasonable probability that Carino would have obtained a more favorable outcome had the trial court not sustained its own objection.   Carino acknowledged that he did not tell Detective Tomlin about being armed with a gun and hearing a gun cock before he exited the truck, and explained why he was untruthful.   Carino testified that “everything else” about the interview was truthful.   Carino's testimony on redirect examination that he had told Detective Tomlin that he shot Rojas because Rojas pointed a gun at him and shot Perez because Perez was reaching for a gun fell into the “everything else” category that Carino had previously claimed was true.   Thus, the jury was informed that Carino asserted that his statements about Rojas having a gun and Perez reaching for a gun were true.   The same reasoning applies to Lorenzo.   We see no applicability of this issue to Cardenas.

5. Voluntary manslaughter instructions

Carino contends the trial court erred in refusing to give the jury instructions on voluntary manslaughter based on sudden quarrel and heat of passion and related instructions.8  He also contends that the trial court erred in failing to instruct the jury that the prosecution had the burden of proving the absence of heat of passion beyond a reasonable doubt.   Carino contends that the error was prejudicial under Chapman v. California (1967) 386 U.S. 18.   Lorenzo and Cardenas join in this contention to the extent applicable.   We see no error and no application of this claim to Cardenas.

“[I]n a murder case, unless the People's own evidence suggests that the killing may have been provoked or in honest response to perceived danger, it is the defendant's obligation to proffer some showing on these issues sufficient to raise a reasonable doubt of his guilt of murder.  [Citations.]  [¶] If the issue of provocation or imperfect self-defense is thus ‘properly presented’ in a murder case [citation], the People must prove beyond reasonable doubt that these circumstances were lacking in order to establish the murder element of malice.  [Citation.]”  (People v. Rios (2000) 23 Cal.4th 450, 461-462.)

“The heat of passion requirement for manslaughter has both an objective and a subjective component.  [Citation.]  The defendant must actually, subjectively, kill under the heat of passion.  [Citation.]  But the circumstances giving rise to the heat of passion are also viewed objectively.”  (People v. Steele (2002) 27 Cal.4th 1230, 1252.)  “The provocative conduct by the victim ․ must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.   [Citations.]”  (People v. Lee (1999) 20 Cal.4th 47, 59.)  “No specific type of provocation is required, and the passion aroused need not be anger or rage, but can be any violent, intense, high-wrought or enthusiastic emotion ․ other than revenge․”  (People v. Lasko (2000) 23 Cal.4th 101, 108, internal quotations and brackets omitted.)   Provocative conduct may be verbal.   (People v. Manriquez (2005) 37 Cal.4th 547, 585.)   The provocation must be such that a “reasonable person in defendant's position would have reacted with homicidal rage.”  (People v. Koontz (2002) 27 Cal.4th 1041, 1086.)   A defendant may not “set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused.”  (People v. Cole (2004) 33 Cal.4th 1158, 1215-1216, internal quotations omitted.)

Here the only possible provocation was an unidentified person calling Garcia and his friends “pussies.” 9  This would not have caused an ordinary person of average disposition to have acted rashly or without due deliberation and reflection.   Further, the only person visibly provoked by the comment was Garcia, who was not a defendant in this case.   It was Garcia who engaged in a verbal confrontation with Erik over this matter.   More importantly, Rojas and Perez came upon the group after someone had already called Garcia's party “pussies,” and thus were not involved at all in the provocative conduct.  (See People v. Moye (2009) 47 Cal.4th 537, 549-550 [provocation which incites defendant to heat of passion must be caused by victim, or be conduct reasonably believed by the defendant to have been engaged in by the victim].)

In any event, any error was harmless.  “[I]n a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under Watson.”  (People v. Breverman (1998) 19 Cal.4th 142, 178.)   Thus, a reversal is not warranted “unless an examination of the entire record establishes a reasonable probability that the error affected the outcome” at trial.  (Id. at p. 165, citing People v. Watson (1956) 46 Cal.2d 818, 836.) 10

Generally, the fact that a jury convicts a defendant of first degree murder rather than second degree murder shows that any error in failing to instruct on the lesser included offense of manslaughter is harmless.  (See People v. Prettyman (1996) 14 Cal.4th 248, 276 [by convicting appellant of first degree murder rather than second degree murder, jury necessarily rejected the possibility of manslaughter and so omission of manslaughter instructions was harmless];  see also People v. Thompkins (1987) 195 Cal.App.3d 244, 251 [heat of passion and deliberation “are related in that they are mutually exclusive”].)   Here, the jury convicted Carino and Lorenzo of the first degree murder of Perez, showing that any error in failing to instruct on manslaughter was harmless on count 2. Although there is conflicting evidence on the order in which Perez and Rojas were killed, the shooting of Rojas occurred only seconds apart from that of Perez and arose from the same set of circumstances.   We see no reasonable probability that a jury would have found that appellants killed Rojas in the heat of passion and then immediately calmed down and premeditated and deliberated the murder of Perez, or killed Perez with premeditation and deliberation and then immediately killed Rojas in the heat of passion.

Further, the primary thrust of the defense was self-defense, either perfect or imperfect.   The evidence for some form of self-defense was far stronger than that for heat of passion, which was minimal and speculative at best.   The jury was instructed on both forms of self-defense and rejected them.   This reinforces our conclusion that there is no reasonable probability Carino would have obtained a more favorable outcome had the trial court given the instructions in question.

To the extent that Carino contends that the trial court was required to instruct the jury on the prosecution's burden to prove the absence of heat of passion beyond a reasonable doubt even if no voluntary manslaughter instructions were given, Carino is mistaken.   As we discuss, infra, in a murder case, unless the People's evidence shows provocation, it is the defendant's burden to proffer some evidence of provocation capable of raising a reasonable doubt that he is guilty of murder.  (People v. Rios, supra, 23 Cal.4th at pp. 461-462.)   The People are only required to prove that provocation is lacking if the issue of provocation has been raised in some manner by the evidence.  (Ibid.) As we discuss, there was no such evidence here.   Thus, the trial court had no duty to instruct on this issue.

Further, even assuming for the sake of argument that the trial court had such a duty, the court adequately instructed the jury on this issue.   The jury was also instructed pursuant to CALJIC No. 8.50 that “[t]o establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel or in the actual, even though unreasonable, belief in the necessity to defend against imminent peril to life or great bodily injury.”   The jury was also instructed with CALJIC No. 8.40 that “[t]here is no malice aforethought if the killing occurred upon a sudden quarrel or in the actual but unreasonable belief in the necessity to defend oneself or another person against imminent peril to life or great bodily injury.”   The court also instructed the jury with CALJIC No. 8.72 as follows:  “If you are convinced beyond a reasonable doubt and unanimously agree that the killing was unlawful, but you unanimously agree that you have a reasonable doubt whether the crime is murder or manslaughter, you must give the defendant the benefit of that doubt and find it to be manslaughter rather than murder.”   Taken together, these instructions adequately conveyed to the jury that the prosecution had the burden of proving the absence of heat of passion.

6. CALJIC No. 2.50.2

Carino argues the trial court erred in reading CALJIC No. 2.50.2 without modifying it to clarify that the instruction only applied to the defense of necessity or to Cardenas.   Carino argues the trial court should have placed CALJIC No. 2.50.2 “in proximity to” CALJIC No. 4.43.   Lorenzo and Cardenas join in this contention to the extent it is applicable to them.   We see no error.

Early on in the body of the instructions, the trial court gave the jury instructions defining both the preponderance of the evidence standard of proof and the beyond a reasonable doubt standard of proof.   The court then instructed the jury on the charges and defenses in the case.

Among the defenses in the case was Cardenas's defense of necessity.   The court instructed the jury on that defense using CALJIC No. 4.43.   As CALJIC No. 4.43 instructed the jury that “[t]he defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the elements of this [necessity] defense.”   As Carino points out, this was the only defense to which the preponderance of the evidence standard applied.

Generally, “[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.”  (People v. Lang (1989) 49 Cal.3d 991, 1024.)

Here, Carino does not contend that CALJIC No. 2.50.2 misstated the law.   He contends that the instruction was incomplete without language clarifying or placement showing that it applied only to the defense of necessity.   Carino did not object to the instruction and request appropriate clarifying or amplifying language nor did he request that the instruction be read immediately after CALJIC No. 4.43.   In any event, there was no error.

It is well settled that in determining the adequacy of a jury instruction, appellate courts must consider the entire charge of the court and assume jurors are intelligent persons capable of understanding and correlating all instructions given.  (People v. Richardson (2008) 43 Cal.4th 959, 1028.)   An instruction will be considered flawed only if there is “a reasonable likelihood that the jury misunderstood and misapplied the instruction.  [Citations.]”  (People v. Young (2005) 34 Cal.4th 1149, 1202, internal quotations omitted.)

Jurors were explicitly instructed that before they could convict on the murder charge, the People had the burden “to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel or in the actual, even though unreasonable, belief in the necessity to defend against imminent peril to life or great bodily injury.”   The jurors were also told they had to unanimously agree that the crime was either murder or manslaughter beyond a reasonable doubt, and that defendant must receive the benefit of a reasonable doubt in the degree of murder or whether the killing was murder or manslaughter.

Additional references to the prosecutor's burden of proof were found throughout the jury instructions.   For example, CALJIC No. 2.01 told the jury that “before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt.”   The jurors were also instructed that a defendant may choose not to testify but instead “may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge.”

Thus, the requirement of proof beyond a reasonable doubt was repeated numerous times, and in varying contexts, throughout the course of instructions.   By contrast, only CALJIC No. 4.43 referred to a determination being made by a preponderance of the evidence, and then only as to a very narrow point that involved the consideration of evidence, not the determination of guilt itself.  “Jurors are presumed to be intelligent people, capable of understanding and correlating all instructions.  [Citation.]”  (People v. Ayers (2005) 125 Cal.App.4th 988, 997.)   There was no suggestion that the preponderance of the evidence standard of proof was applicable to any findings other than to the defense of necessity.

Further, the jury was instructed with CALJIC No. 1.01 that the instructions were to be considered as a whole and the “order in which the instructions are given has no significance as to their relative importance.”   Thus, the order of the instructions did not lead to an improper verdict.  (See People v. Najera (2006) 138 Cal.App.4th 212, 228 [“the order of the jury instructions did not lead to an improper conviction” where the jury was given CALJIC No. 1.01].)

Nothing in the prosecutor's arguments suggested that jurors could apply any standard less than proof beyond a reasonable doubt.   The prosecutor specifically discussed the defense of necessity and the preponderance of the evidence standard of proof when she discussed the charges against Cardenas:  “And the defense of necessity says that a person is not guilty of a crime when done to prevent a threat of bodily harm to oneself.   Now, the defendant has the burden of proof of showing this to you.   Up ‘til now I had the burden of proof of showing his guilt beyond a reasonable doubt.   In order to convince you of the defense of necessity, they have to convince you by a preponderance of the evidence that the elements of necessity are there and exist.”

Lorenzo's counsel also argued that the preponderance of the evidence standard applied only to the defense of necessity and not to Carino or Lorenzo.

Under the circumstances, there was no reasonable likelihood that the jury misunderstood and misapplied CALJIC No. 2.50.2.  (See Estelle v. McGuire (1991) 502 U.S. 62, 72;  People v. Young, supra, 34 Cal.4th at p. 1202;  see also People v. Lee (1987) 43 Cal.3d 666, 677-678 [finding giving of conflicting instructions harmless beyond a reasonable doubt in light of other jury instructions and arguments of counsel].)   Thus, it is beyond a reasonable doubt that the trial court's failure to specify the applicability of CALJIC No. 2.50.2 or to position it adjacent to CALCRIM No. 4.43 “did not contribute to the verdict obtained.”  (People v. Chavez (2004) 118 Cal.App.4th 379, 387, internal quotations omitted.)

7. CALJIC No. 3.00

Lorenzo contends the trial court erred in instructing the jury with CALJIC

No. 3.00 concerning aider and abettor liability and that this error requires reversal of the first degree murder count.   Carino and Cardenas join in the claim to the extent applicable.   We see no applicability to Carino and Cardenas.

An aider and abettor's mental state may be the same as the direct perpetrator, or it may be more culpable or less culpable.  (People v. McCoy (2001) 25 Cal.4th 1111, 1122 [greater];  People v. Nero (2010) 181 Cal.App.4th 504, 518 [lesser].)   Thus, depending on his personal mental state, an aider and abettor may be guilty of the same crime as the direct perpetrator, or of a greater or lesser crime.

CALJIC No. 3.00, as given:  “Persons who are involved in committing a crime are referred to as principals in that crime.   Each principal, regardless of the extent or manner of participation, is equally guilty.”  (Emphasis added.)   Lorenzo contends that the phrase “equally guilty” prevented the jury from convicting him, an aider and abettor, of a lesser offense than the actual shooter, Carino.   We will assume for the sake of argument that the claim is not forfeited and that the instruction is incorrect or misleading.

The evidence showed Lorenzo as an equal participant in the shootings.   Both Lorenzo and Carino were armed when they left the truck.   They appeared to work in concert in the confrontation with the victims.   There is nothing in the evidence to suggest that Lorenzo in fact had a different mental state in the killing of Perez than Carino did.   Thus, we see no reasonable possibility that Lorenzo would have received a more favorable verdict if the phrase “equally guilty” had been omitted from the instruction on aiding and abetting liability.

The jury was also instructed on the natural and probable consequences doctrine of aiding and abetting liability.   Under the natural and probable consequences doctrine, an aider and abettor may be convicted of a lesser crime than the direct perpetrator, if the lesser crime was foreseeable, but the greater crime was not.  (People v. Woods (1992) 8 Cal.App.4th 1570, 1586-1588, cited with approval in McCoy.)   Lorenzo points to no evidence suggesting that second degree murder was reasonably foreseeable while first degree murder was not.   We see no reasonable possibility that the jury would have found that the second degree murder of Perez was foreseeable but first degree murder was not.

8. Juror Contact Information

Lorenzo argues that his rights to a jury trial and to due process were violated when the trial court failed to make sufficient inquiry into allegations of improper contact between the prosecution's investigator and a juror.   Carino and Cardenas join in the contention to the extent it is applicable to them.   We see no error.

Pursuant to Code of Civil Procedure section 237, subdivision (a)(2), a trial court's record of jurors' personal identifying information is sealed once the verdict is recorded.   In order to obtain that information, a defendant must file a petition “supported by a declaration that includes facts sufficient to establish good cause for the release of the juror's personal identifying information.”  (Code Civ. Proc., § 237, subd. (b).)  Under People v. Rhodes (1989) 212 Cal.App.3d 541, “counsel for a convicted defendant is entitled to the list of jurors who served in the case, including addresses and telephone numbers, if the defendant sets forth a sufficient showing to support a reasonable belief that jury misconduct occurred, that diligent efforts were made to contact the jurors through other means, and that further investigation is necessary to provide the court with adequate information to rule on a motion for new trial.”  (Id. at pp. 551-552;  see People v. Carrasco (2008) 163 Cal.App.4th 978, 990 [“Even though Rhodes was decided before the statute's present enactment requiring a showing of good cause, the Rhodes test survived the amendments”].)

The misconduct alleged must be “of such a character as is likely to have influenced the verdict improperly.”  (People v. Rhodes, supra, 212 Cal.App.3d at p. 554, internal quotations omitted.)   The defendant bears the burden of demonstrating good cause.  (People v. Granish (1996) 41 Cal.App.4th 1117, 1131.)   A petition to disclose juror identification information must be supported by more than mere speculation and may not be used as a “fishing expedition by parties hoping to uncover information to invalidate the jury's verdict.”  (People v. Rhodes, supra, 212 Cal.App.3d at p. 552;  People v. Wilson (1996) 43 Cal.App.4th 839, 853;  People v. Granish, supra, 41 Cal.App.4th

at p. 1131.)   A trial court's ruling that no good cause was shown is reviewed for abuse of discretion.  (People v. Avila, supra, 38 Cal.4th at p. 604.)

Similarly, the decision whether to investigate the possibility of juror misconduct “rests within the sound discretion of the trial court.”  (People v. Ray (1996) 13 Cal.4th 313, 343.)   If any substantial evidence exists to support the trial court's exercise of its discretion, the trial court's actions will be upheld on appeal.  (People v. Bradford (1997) 15 Cal.4th 1229, 1351.)

“A juror's unauthorized contact with a witness is improper.  [Citations.]  However, contact between a juror and a witness or between a juror and the defendant's family may be nonprejudicial if the contact was ‘de minimis' [citation] or if there is no showing that the contact related to the trial [citations].”  (People v. Cowan (2010) 50 Cal.4th 401, 507.)

On August 17, 2009, the jury returned its verdict.   On September 11, 2009, Lorenzo's counsel filed a motion for new trial which did not contain any allegations of juror misconduct.

On October 8, 2009, Lorenzo's counsel filed a petition to disclose juror information.   In an attached declaration, Lorenzo's counsel stated that he was approached by Carino's mother (Mrs. Carino) on September 15, 2009, and was informed that she had observed jurors communicating with the victim's family members and the investigating officer before the conclusion of the trial.   She said that she learned after the trial that such communications were improper.

A private investigator's report was also attached to the petition describing Lorenzo's counsel interview with Mrs. Carino.   The report stated in pertinent part:  “Mrs. Carino stated she doesn't speak English and understands very little.   She recalled seeing the detective on this case who she described as the Black, male, opening the door from the court room to the hallway.   All she heard was salutations and didn't hear anything else as their voices were low.   Carino added that the female in the yellow blouse, who she saw in court on 9-15-09, was in the parking lot.   This female, a relative of one of the victims, was greeting some of the jurors which she saw in the courtroom jury box.   She didn't know their names.  [¶] Mrs. Carino also stated that the male, Hispanic, another relative of the victims, may have greeted the police and jurors when the[y] exited the courtroom.   She described this male Hispanic as wearing a green shirt and taking notes all the time while he was sitting in court.   She believed this male was a relative of one of the victims.”

At the hearing, the parties stipulated that Mrs. Carino's statement attached to the petition would have the same force and effect as a declaration.   Carino's counsel and Cardenas's counsel joined in Lorenzo's motion to disclose juror identifying information.   The court agreed to allow Mrs. Carino to testify about her observations.

Mrs. Carino testified.   Two days before appellant Carino testified, Mrs. Carino saw the detective hold the courtroom door open for people to exit and talk to two jurors for about two to three minutes.   Mrs. Carino did not hear the content of their conversation as their voices were very soft.   Also, during trial, a young woman with a yellow blouse, a family member of one of the victims, greeted the jurors by the elevator.

The trial court continued the hearing to allow Detective Tomlin to appear and testify.   At the continued hearing, Detective Tomlin testified that he did not have any conversation with any jurors before the verdict was reached in the case and never greeted any of the jurors.   He did not recall ever holding the door open for any juror.

Lorenzo's counsel argued that further investigation was necessary because

Mrs. Carino's and Detective Tomlin's testimony conflicted.   The prosecutor argued the court could weigh the credibility of the witnesses and consider Mrs. Carino's bias in determining that the defense failed to meet its burden.   The court denied the petition and stated, “The court notes that the witness for the defense does not speak English, doesn't even understand English.   There's nothing before the court to indicate anything inappropriate occurred.”   Lorenzo added that the same evidence justified a new trial motion based on juror misconduct.   The court denied the motion.

Here, the trial court could have reasonably concluded that appellants' showing did not support a reasonable belief that misconduct had occurred.   According to Mrs. Carino, a short conversation lasting between two to three minutes occurred between Detective Tomlin and two of the jurors while Detective Tomlin held the courtroom door open for people to exit.   She heard “salutations,” but not the content of the conversation as she only understood “very little” English and their voices were low.   On the other hand, Detective Tomlin testified that he never spoke to any of the jurors, greetings or otherwise, and did not recall holding the door open for the jurors.   Under the circumstances, a possibility that prejudicial juror contact occurred while Detective Tomlin held the courtroom door open for people to exit is speculative at best.   Indeed, any contact between Detective Tomlin and two of the jurors, if it occurred at all, appears to be de minimis and not of the character “likely to have influenced the verdict improperly.”  (People v. Rhodes, supra, 212 Cal.App.3d at p. 554.)   Moreover, appellants never made any efforts to contact the jurors through other means.   Accordingly, the trial court did not abuse its discretion in determining appellants had not failed to establish good cause for the release of juror identification information.

9. Cumulative error

Carino argues the cumulative error deprived him of his right to a fair trial.   Cardenas and Lorenzo join in the argument to the extent it benefits them.

Appellant is “entitled to a fair trial, not a perfect one.”  (People v. Cain (1995) 10 Cal.4th 1, 82.)   In a close case, the cumulative effect of multiple errors may constitute a miscarriage of justice.  (See People v. Holt (1984) 37 Cal.3d 436, 458-459.)   When a defendant invokes the cumulative error doctrine, “the litmus test is whether defendant received due process and a fair trial.”  (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.)   Any claim based on cumulative errors must be assessed “to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence.”  (Ibid.)

As explained in this opinion, supra, there was one error in the trial.   That error involved aiding and abetting instructions and thus was related only to Lorenzo.   As we have explained, that error was harmless.   As the court in United States v. Haili (9th Cir.1971) 443 F.2d 1295, observed, “any number of ‘almost errors,’ if not ‘errors,’ cannot constitute error.”  (Id. at p. 1299, quoting Hammond v. United States (9th Cir.1966) 356 F.2d 931, 933.)   Thus, the cumulative impact argument lacks merit for all three appellants.   (See also People v. Bolden (2002) 29 Cal.4th 515, 567-568.)

10. Abstract of judgment

The trial court imposed a sentence of life without the possibility of parole on Carino for the count 1 second degree murder conviction, and also a term of 25 years to life for that conviction.   Carino argues the trial court erred.   He further contends the trial court erred in imposing a parole revocation fine pursuant to section 1202.45, and in failing to order the restitution to the Victim Compensation and Government Claims Board be “joint and several.”   Carino seeks a remand for a new sentencing hearing.   Respondent agrees with the first two contentions, as do we.   We find that Carino has forfeited the restitution issue.   We see no need for a new sentencing hearing.

Section 190.2, subdivision (a)(3), provides that “[t]he penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole” if the defendant, “in this proceeding, has been convicted of more than one offense of murder in the first or second degree.”   The count 2 conviction was for second degree murder, and so the special circumstance sentencing scheme was not applicable to that count.   The life without parole sentence must be stricken for count 1. The sentence for second degree murder is 15 years to life in prison.   The abstract of judgment is ordered corrected to show the 15-year-to-life sentence.   There is no need for a new sentencing hearing.

The trial court ordered a $200 parole revocation fine pursuant to section 1202.45.   Carino, however, was sentenced to life without the possibility of parole on count 2. A parole revocation fine is inapplicable for a term of life without the possibility of parole.  (People v. DeFrance (2008) 167 Cal.App.4th 486, 505.)   Thus, the $200 parole revocation fine should be stricken.

The trial court ordered Carino to pay restitution to the Victim Compensation Board.   The court did not order that the restitution be “joint and several,” and no one objected to the restitution order.   Carino's claim that the restitution order should be modified to reflect that the restitution order is joint and several with Lorenzo as to both victims, and joint and several with Cardenas as to Rojas, is forfeited for failure to object.

“[A]ll claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices raised for the first time on appeal are not subject to review.  [Citations.]”  (People v. Smith (2001) 24 Cal.4th 849, 852, internal quotations omitted.)   Section 1202.4, subdivision (f), states in relevant part, that “in every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order.”   The court in People v. Blackburn (1999) 72 Cal.App.4th 1520, held that a trial court has “the authority to order direct victim restitution paid by both defendants jointly and severally.”  (Id. at p. 1535.)   Neither Blackburn nor the other cases cited by Carino, People v. Madrana (1997) 55 Cal.App.4th 1044, 1049-1052, and People v. Arnold (1994) 27 Cal.App.4th 1096, 1098-1100, however, state that the court must order joint and several liability.   Because Carino's claim that the trial court should have made its discretionary sentencing choice in a manner that avoids multiple reimbursement for a single expense is made for the first time on appeal, it is not subject to appellate review.  (People v. Smith, supra, 24 Cal.4th

at p. 852.)

Moreover, Carino's reliance on Blackburn is misplaced.   There, the Court of Appeal found that it was “glaringly obvious” from the record that the trial court actually ordered the direct victim restitution to be paid jointly and severally by the codefendants.  (People v. Blackburn, supra, 72 Cal.App.4th at p. 1535.)   Thus, the modification of the judgment was actually nothing more than a clarification made in “an excess of caution.”  (Ibid.)

11. Presentence custody credit

Carino contends, and respondent agrees, that he is entitled to presentence custody credits.   We agree as well.

A defendant sentenced to life imprisonment without the possibility of parole is entitled to presentence custody credits.  (People v. DeJesus (1995) 38 Cal.App.4th 1, 33.)   Presentence custody credits are calculated from the date of booking up to and including the date of sentencing.  (People v. Smith (1989) 211 Cal.App.3d 523, 526.)   Carino was arrested on October 5, 2007, and sentenced on October 15, 2009.   Thus, he is entitled to 742 days of actual time.   Carino had asked the trial court to correct the abstract of judgment on February 18, 2010.   Assuming the abstract has not already been corrected, this Court orders the correction made.

Dispositions

The abstract of judgment for appellant Carino is ordered corrected as follows:  The sentence of life without the possibility of parole on count 1 is stricken.   The correct sentence is 15 years to life in state prison.   The parole revocation fine for Carino is also ordered stricken.   Carino is entitled to 742 days of presentence credit.   The judgments of conviction are affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. The jury found not true the allegation that Lorenzo personally used a firearm within the meaning of section 12022.53, subdivision (b)..  FN2. The jury found not true the allegation that Lorenzo personally used a firearm within the meaning of section 12022.53, subdivision (b).

FN3. Cardenas appears to contend that if the finding is stricken, the matter should be remanded to the trial court or in the alternative that this Court should reduce his conviction to vehicular manslaughter with ordinary negligence in violation of section 192, subdivision (c)(2) and declare it to be a misdemeanor..  FN3. Cardenas appears to contend that if the finding is stricken, the matter should be remanded to the trial court or in the alternative that this Court should reduce his conviction to vehicular manslaughter with ordinary negligence in violation of section 192, subdivision (c)(2) and declare it to be a misdemeanor.

FN4. Indeed, this evidence is sufficient to support a reasonable inference that Cardenas actually was aware that a large object was caught under his car, and that the object was almost certainly Rojas, who had been standing in front of his car moments earlier..  FN4. Indeed, this evidence is sufficient to support a reasonable inference that Cardenas actually was aware that a large object was caught under his car, and that the object was almost certainly Rojas, who had been standing in front of his car moments earlier.

FN5. Appellants point out that occupation can be a proper basis for using a peremptory challenge.   However, they fail to note that there must be some explanation of how the juror's occupation relates to his or her suitability to serve on the jury.   In Reynoso, supra, for example, the prosecutor excused a juror who was a customer service representative because people in that occupation tend to have insufficient education and it was a complicated case.   The explanation was individualized, since jurors will have varying levels of education.   It was also related to the case, which was a complicated one.   Here the only link between the juror's occupation and his suitability for jury service was that he would want to avoid areas with gang and criminal activity.   That is an attribute that virtually every juror has and which could be related to virtually every criminal case.   It was this broadness which caused the court to disagree with counsel, not the fact that counsel relied on a particular occupation.We do not agree with Lorenzo that it is rational to believe that real estate brokers are more likely than others to be concerned with high crime areas because they know that the same house would be worth more in Beverly Hills than an active gang area.   Lorenzo does not cite any authority to support his claim, no doubt because such knowledge is not in fact limited to realtors, but is general knowledge.   Anyone who works or lives in a high crime area could be influenced by that exposure, but there is no reason to believe that realtors as an occupation have more such exposure than any other occupation..  FN5. Appellants point out that occupation can be a proper basis for using a peremptory challenge.   However, they fail to note that there must be some explanation of how the juror's occupation relates to his or her suitability to serve on the jury.   In Reynoso, supra, for example, the prosecutor excused a juror who was a customer service representative because people in that occupation tend to have insufficient education and it was a complicated case.   The explanation was individualized, since jurors will have varying levels of education.   It was also related to the case, which was a complicated one.   Here the only link between the juror's occupation and his suitability for jury service was that he would want to avoid areas with gang and criminal activity.   That is an attribute that virtually every juror has and which could be related to virtually every criminal case.   It was this broadness which caused the court to disagree with counsel, not the fact that counsel relied on a particular occupation.We do not agree with Lorenzo that it is rational to believe that real estate brokers are more likely than others to be concerned with high crime areas because they know that the same house would be worth more in Beverly Hills than an active gang area.   Lorenzo does not cite any authority to support his claim, no doubt because such knowledge is not in fact limited to realtors, but is general knowledge.   Anyone who works or lives in a high crime area could be influenced by that exposure, but there is no reason to believe that realtors as an occupation have more such exposure than any other occupation.

FN6. It appears that other jurors who lacked prior jury experience remained on the panel..  FN6. It appears that other jurors who lacked prior jury experience remained on the panel.

FN7. To the extent that Carino contends that the trial court displayed partiality in sustaining its own objection, we do not agree.   It is common and proper for a trial court to do so.   The court made no extraneous comments, and there is nothing to suggest that the court was singling out Carino.   We see no prejudice to Carino from the trial court's sustaining of its own objection..  FN7. To the extent that Carino contends that the trial court displayed partiality in sustaining its own objection, we do not agree.   It is common and proper for a trial court to do so.   The court made no extraneous comments, and there is nothing to suggest that the court was singling out Carino.   We see no prejudice to Carino from the trial court's sustaining of its own objection.

FN8. These related instructions consist of CALJIC Nos. 8.43 (“Murder or Manslaughter-Cooling Period”), 8.44 (“No Specific Emotion Alone Constitutes Heat of Passion”), and 8.73 (“Evidence of Provocation May Be Considered in Determining Degree of Murder”).   The trial court read a version of CALJIC No. 8.40 which included a reference to “sudden quarrel” and a version of CALJIC No. 8.50 which included references to “heat of passion” and “sudden quarrel.”   Later, the prosecutor asked the court to redact the references to heat of passion and sudden quarrel from the instructions.   The court agreed, and no one objected.   The written instructions given to the jury were not in fact redacted..  FN8. These related instructions consist of CALJIC Nos. 8.43 (“Murder or Manslaughter-Cooling Period”), 8.44 (“No Specific Emotion Alone Constitutes Heat of Passion”), and 8.73 (“Evidence of Provocation May Be Considered in Determining Degree of Murder”).   The trial court read a version of CALJIC No. 8.40 which included a reference to “sudden quarrel” and a version of CALJIC No. 8.50 which included references to “heat of passion” and “sudden quarrel.”   Later, the prosecutor asked the court to redact the references to heat of passion and sudden quarrel from the instructions.   The court agreed, and no one objected.   The written instructions given to the jury were not in fact redacted.

FN9. To the extent that appellants contend that Rojas's raising his sweatshirt was provocation, we do not agree, for the reasons discussed in section 4a, supra..  FN9. To the extent that appellants contend that Rojas's raising his sweatshirt was provocation, we do not agree, for the reasons discussed in section 4a, supra.

FN10. We would, in any event, reach the same result under Chapman v. California, supra, 386 U.S. 18.   We see no reasonable possibility of a more favorable outcome for appellants, for the reasons set forth here..  FN10. We would, in any event, reach the same result under Chapman v. California, supra, 386 U.S. 18.   We see no reasonable possibility of a more favorable outcome for appellants, for the reasons set forth here.

MOSK, J. KRIEGLER, J.

FindLaw Career Center


      Post a Job  |  View More Jobs

    View More