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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. James MONTOYA, Defendant and Appellant.

No. B067342.

Decided: March 10, 1993

Jerald Brainin, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Joanne S. Abelson and Allan Yannow, Deputy Attys. Gen., for plaintiff and respondent.

Convicted by jury of assault with a firearm (Pen.Code,1 §§ 245, subd. (a)(2), 12022.5, subd. (a)), with three serious felony conviction allegations (§ 667, subd. (a)) having been found true by the trial court, appellant contends the trial court:  (1) improperly excluded a declaration against penal interest (2) gave a prohibited “Allen-type” instruction (Allen v. United States (1896) 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528) and (3) improperly imposed the upper term on a gun use enhancement.   We find no error and affirm.


The district attorney charged appellant with attempted first degree murder (§§ 664/187;  count I) and assault with a firearm (§ 245, subd. (a)(2);  count II).   A firearm enhancement (§ 12022.5) was alleged as to both counts.   Three prior serious felony convictions (§ 667, subd. (a)), two with prison terms (§ 667.5, subd. (b)), were also alleged.   Appellant pleaded not guilty and denied all the allegations.   The prior felony conviction allegations were bifurcated.   A jury found appellant not guilty of attempted murder but guilty of assault with a firearm and found true the firearm personal use allegation (§ 12022.5).   Appellant waived jury and the trial court found true all the felony conviction allegations.   The trial court sentenced appellant to state prison for 24 years.

The being no insufficiency of evidence claim, the facts may be stated simply.   Our perspective favors the judgment.  (People v. Barnes (1986) 42 Cal.3d 284, 303–304, 228 Cal.Rptr. 228, 721 P.2d 110.)

On October 23, 1991, at about 12:50 a.m. two uniformed private security officers employed by Platt Security were on patrol in the Carmelitos Housing Projects area of Long Beach when they heard four or five gunshots nearby.   As they began driving toward the gunshot sounds they received a radio call dispatching them to a “shots-fired” call at 921 Via Carmelitos.   They parked a short distance away, exited, and taking separate routes, each began cautiously walking toward 921 Via Carmelitos.   They then heard another shot.   One of the officers, Officer Rascoe, emerged from between two buildings and heard someone yell “Fuck Platt.”   He turned “real fast” and saw appellant, who he knew from several prior contacts, about 35 feet away “holding a shotgun level[ed] toward him.   To appellant's right and about 3 feet behind him there was a taller, slender male Hispanic, John Magana.   As appellant fired, Officer Rascoe dove for cover.   The shot “went right past [Officer Rascoe's] head.”   Officer Rascoe retreated to the cover of a building and was soon joined by Long Beach Police Officers.

A few minutes later when appellant tried to walk by the officers, both Officer Rascoe and his partner Officer Ussery, yelled “that's him.”   Appellant was arrested.


1. Appellant contends the trial court improperly excluded a declaration against penal interest.

 At trial, defense counsel represented to the trial court that John Magana had admitted being the one who had shot at Platt Security Officer Rascoe.   Defense counsel further represented that John Magana was unavailable and therefore his extrajudicial declaration was admissible under Evidence Code section 1230.2  Because admissibility depended upon proof of two preliminary facts, the trial court conducted an Evidence Code section 402 hearing.   Two witnesses testified, one concerning the statement and its surrounding circumstances, the other concerning the defense's efforts to procure the attendance of John Magana.

Long Beach Police Officer Deborah Hauser, one of the two witnesses, was asked by defense counsel if during the booking of appellant and John Magana she “remember[ed] my client making the statement to co-defendant [sic] Magana if he was shooting at Platt and that the co-defendant nodded his head yes?”   Officer Hauser answered “Yes, I do.”

On cross-examination she explained that appellant and Magana were about 12–14 feet apart, with several officers in their immediate presence.   As to Magana's demeanor when he nodded “yes,” Officer Hauser testified:  “Kidding around, not—when he nodded his head, he was laughing.   They weren't serious at all.   It was just a big joking, game-type deal.   They were kidding around with each other.”

In reply to the trial court's request for a further explanation of “kidding around,” Officer Hauser testified, “They were smiling at each other when the defendant asked ․ Magana the question.   He was laughing to the effect where he just shook his head, he couldn't reply yes or no, he just shook his head because he was laughing and they were, like, smiling at each other.   My perception only that they were kidding around, not that it was serious at all.”

In excluding the statement the trial court stated that Officer Hauser's “description of how it took place makes—leads me to believe that this wasn't a serious declaration against penal interests and Hauser didn't take it seriously and her description of it was that it wasn't to be taken seriously.  [¶] And I think that comes far below the threshold of not only weight but certainly admissibility, and I'm making a ruling as to admissibility.”

Appellant contends the trial court's ruling was in error.   We disagree.

“The focus of the declaration against interest exception to the hearsay rule is the basic trustworthiness of the declaration.  [Citations.]  In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.”  (People v. Freierson (1991) 53 Cal.3d 730, 745, 280 Cal.Rptr. 440, 808 P.2d 1197.)

“The decision whether trustworthiness is present requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception.   Such an endeavor allows, in fact demands, the exercise of discretion.”  (People v. Gordon (1990) 50 Cal.3d 1223, 1251, 270 Cal.Rptr. 451, 792 P.2d 251.)   The appellate review standard is abuse-of-discretion.  (Id. at p. 1252, 270 Cal.Rptr. 451, 792 P.2d 251.)

Not only did the trial court not abuse its discretion in finding Magana's “admission” untrustworthy but it could hardly have ruled otherwise.   Officer Hauser's testimony allowed for only one reasonable interpretation of the Magana “admission”:  it was a joke.   From her testimony everyone present understood it was a joke:  appellant, Magana, and all the officers.   The defense called no witness to challenge Officer Hauser's description and it remained undisputed.

Having concluded the trial court properly excluded the Magana “admission” as untrustworthy,3 we need not consider its additional reason for excluding it, the lack of due diligence.  (Evid.Code, § 240.)

2. Appellant contends the trial court gave a prohibited “Allen-type” instruction (Allen v. United States, supra, 164 U.S. 492, 17 S.Ct. 154).

 After jury selection and before opening statements the trial court told the jury, “Folks, I'm going to lecture at you for about seven or eight minutes, and then we're going to—I'm going to invite opening statements.”   Near the end of his “lecture,” eight pages of reporter's transcript, a mixture of courtroom orientation, personnel introduction, and basic legal instruction—the trial court stated:

“Let me introduce some people—one more thing.  [¶] Make a decision.   Every once in a while, we have hung juries.  [¶] Sometimes we have to retry those cases.  [¶] We're in the business of making decisions.  [¶] I understand on occasion when we have hung juries.   But most cases lend themselves to decision one way or the other.   If you can reasonably do so and morally do so, make a decision one way or the other.”

Appellant contends these remarks “fall[ ] squarely within the disapproved [by People v. Gainer (1977) 19 Cal.3d 835, 139 Cal.Rptr. 861, 566 P.2d 997] Allen-type charge.”   We disagree.

Gainer exhaustively traced the history and vices of an instruction designed to break juror logjams, an instruction “commonly referred to either as the ‘Allen charge’ or the ‘dynamite charge’.”  (People v. Gainer, supra, 19 Cal.3d at p. 842, 139 Cal.Rptr. 861, 566 P.2d 997.)   Typically, as in Gainer, a jury informs the trial court they are deadlocked, unable to unanimously render a verdict.   The trial court inquires about their numerical count, in Gainer, 11–1.   Then the trial court reads to them the “dynamite charge” (the California version is exemplified by People v. Baumgartner (1958) 166 Cal.App.2d 103, 332 P.2d 366).

Gainer, as a judicially declared rule of criminal procedure, disapproved such instructions, stating:  “We therefore hold it is error for a trial court to give an instruction which either (1) encourages jurors to consider the numerical division or preponderance of opinion of the jury in forming or reexamining their views on the issues before them;  or (2) states or implies that if the jury fails to agree the case will necessarily be retried.”   (People v. Gainer, supra, 19 Cal.3d at p. 852, 139 Cal.Rptr. 861, 566 P.2d 997.)

The trial court's remarks did not “encourage[ ] jurors to consider the numerical division or preponderance of opinion of the jury ․”  In fact, no reference to that subject was made.   Moreover, the context of the court's remarks were far different from the typically “dynamite charge” context.   Here there was neither a minority nor a majority juror division.   The jury had neither heard evidence nor begun deliberations.   No juror was singled out.   The trial court's remarks were free of the first error identified by Gainer.

The trial court's remarks also did not “state[ ] or impl[y] that if the jury fails to agree the case will necessarily be retried.”  (Emphasis added.)   The trial court instead informed the jury:  “Sometimes we have to retry those cases.”  (Emphasis added.)   Unlike the instruction in Gainer, this instruction was accurate.   The trial court's remarks were free of the second error identified by Gainer.

Although, as we have indicated, the trial court's comments were not error under People v. Gainer we should not be understood as encouraging such comments.   Inherently, however well-intentioned and indirectly, they connote a judicial preference for a verdict rather than a hung jury, a preference violative of the spirit if not the letter of Gainer.

3. Appellant contends the trial court erred in imposing the upper term on a gun use enhancement.

 California Rules of Court, rule 428(b) provides in pertinent part:  “When the defendant is subject to an enhancement that was charged and found true for which three possible terms are specified by statute, the middle term shall be imposed unless there are circumstances in aggravation or mitigation or unless, under statutory discretion, the judge strikes the additional term for the enhancement.

“The upper term may be imposed for an enhancement only when there are circumstances in aggravation that relate directly to the fact giving rise to the enhancement.”

The trial court found that appellant was on parole when he committed the instant offense, an aggravating circumstance (Cal.Rules of Court, rule 421(b)(4)) directly relating to the offense, and imposed the upper term.

Without analysis or citation of authority appellant contends being on parole is not an aggravating circumstance “that relate[s] directly to the fact giving rise to the enhancement.”   We disagree.

Because appellant was a parolee (having been convicted of a felony and sentenced to state prison) it was unlawful for him to possess a firearm (§ 12021), a crime he could have been punished for separately from the instant offense.  (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412–1414, 273 Cal.Rptr. 253.)   We hold the aggravating circumstance of being on parole relates directly to committing an assault with a firearm.4


The judgment is affirmed.


FN1. Statutory references, unless otherwise noted, are to the Penal Code..  FN1. Statutory references, unless otherwise noted, are to the Penal Code.

2.   In pertinent part, the section provides:  “Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, ․ so far subjected him to the risk of ․ criminal liability ․, that a reasonable man in his position would not have made the statement unless he believed it to be true.”

3.   Appellant's argument that the Magana “admission” should have been received as an “adoptive admission” (Evid.Code, § 1221) is doubly mistaken:  no such exception was urged to the trial court (Evid.Code, § 354) and the hearsay exception is inapplicable because the party against whom the statement was offered, the People, did not adopt it.

4.   People v. Edwards (1993) 13 Cal.App.4th 75, 16 Cal.Rptr.2d 572, 93 D.A.R. 2000 is distinguishable.   In Edwards the defendant was on probation (not parole), the opinion does not specify whether felony or misdemeanor, and the opinion does not consider section 12021.

FRED WOODS, Associate Justice.

LILLIE, P.J., and JOHNSON, J., concur.