Opinion
B291571
01-28-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT TILLIS, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Michael R. Johnson, and Kristen J. Inberg, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA142587) APPEAL from a judgment of the Superior Court of Los Angeles County, Laura R. Walton, Judge. Affirmed in part, reversed in part, and remanded for retrial. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Michael R. Johnson, and Kristen J. Inberg, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
In an amended information, the District Attorney of Los Angeles County charged defendant and appellant Robert Tillis with two counts of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664/187, subd. (a) ), shooting at an occupied motor vehicle (§ 246), possession of a firearm by a convicted felon (§ 29800, subd. (a)(1)), and fleeing a pursuing officer's vehicle while driving recklessly (Veh. Code, § 2800.2). As to the first attempted murder (count 2), the amended information alleged that defendant personally used and personally and intentionally discharged a firearm causing great bodily injury. (§ 12022.53, subds. (b)-(d)). As to the second attempted murder (count 3) and the shooting at an occupied motor vehicle, the amended information alleged that defendant personally used and personally and intentionally discharged a firearm (§ 12022.53, subds. (b) & (c)) and the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)).
All statutory references are to the Penal Code unless otherwise noted.
In a first trial, the jury convicted defendant of the firearm possession and fleeing charges. The jury could not reach a verdict on the remaining charges and the trial court declared a mistrial.
In a second trial, the jury convicted defendant of the two attempted murder charges and the shooting at an occupied motor vehicle charge. As to the first attempted murder (count 2), the jury found true the firearm allegations. As to the second attempted murder (count 3) and the shooting at an occupied motor vehicle, the jury found true the firearm allegations and the gang allegations (§ 186.22, subds. (b)(1)(C) (attempted murder) & (b)(4) (shooting at an occupied motor vehicle)). The trial court sentenced defendant to 47 years to life in state prison.
On appeal, defendant contends that Juror No. 5 in his second trial was improperly removed for failing to deliberate; substituting an alternate juror for Juror No. 5 resulted in a coerced verdict; we should review sealed reporter's transcripts to determine if the trial court erred in denying disclosure of in camera hearings and in sealing the transcripts; the trial court erred when it instructed the jury with CALCRIM No. 315 that the jury could consider certainty in evaluating eyewitness identifications; and, if we hold he forfeited his CALCRIM No. 315 argument, then defense counsel provided ineffective assistance of counsel. We reverse defendant's attempted murder convictions and his shooting at an occupied motor vehicle conviction and remand the matter for retrial as to those offenses. We otherwise affirm the judgment.
In his opening brief, defendant also contended that we must remand to allow the trial court to exercise its discretion whether to reduce his 25 years to life firearm sentence enhancement (§ 12022.53, subd. (d)) to 20 years (§ 12022.53, subd. (c)) or to 10 years (§ 12022.53, subd. (b)). He withdrew that contention in his reply brief.
II. BACKGROUND
We do not recite the facts underlying defendant's convictions as they do not bear on our analysis of defendant's argument that the trial court erred in removing a juror during deliberations.
Jury deliberations in defendant's second trial began at about 2:30 p.m. on Monday, May 21, 2018, and concluded for the day at 4:00 p.m. The next day, deliberations began a little after 9:00 a.m. Just before noon, the jury submitted a note to the trial court that stated, "Everyone [a]grees [t]hat [¶] we are not going to [¶] [d]ecide either way [¶] can not [h]ave [a] confirmed [¶] verdict[.] [¶] All counts[.]" The court noted that the jury had been deliberating only a short time and proposed bringing out the jurors to get a sense of where they were in their deliberations.
The trial court asked the jury foreperson, Juror No. 6, how many votes the jury had taken and whether there had been movement in the result. Juror No. 6 responded that the jury had taken six votes and there had been movement in the result.
The trial court emphasized to the jury its role in reviewing the evidence and deciding the case. It then instructed the jury on further deliberations pursuant to CALCRIM No. 3551 and asked it to continue deliberating. The jury deliberated until just before 4:00 p.m.
At noon on May 23, the third day of deliberations, the jury submitted the following question to the trial court: "Question [r]egarding [j]uror 12 [¶] will not [b]e [r]eturning tomorro[w.] [¶] She was asking if [a]lternate [j]uror [¶] will [b]e coming in today or [¶] do we wait till tomorrow[?] [¶] I was thinking this way we don't [¶] start over tomorrow with [a]lternate [j]uror[.]" At 2:12 p.m., that afternoon, the jury submitted the following note: "Juror 5 [h]ad [m]entioned [¶] Since [b]efore [j]ust [¶] [r]eminder [h]is [l]ast [d]ay [¶] [t]omorrow[.]"
The trial court noted that Jurors Nos. 5 and 12 would be out of town as of the next day. It asked counsels' views on replacing Jurors Nos. 5 and 12 with the two alternate jurors as a planned read back of a witness's testimony could not take place until later in the afternoon.
Defense counsel objected. She wondered if there was a possibility that the jury could reach a verdict after the testimony was read back. She believed that Jurors Nos. 5 and 12 were the only African Americans on the jury and replacing them would be a "distinct change in the composition of the jury."
The parties agreed that two alternate jurors could be present for the read back of the witness's testimony as long as the jury did not deliberate during the read back. The trial court informed the jury that if it did not reach a verdict by 4:00 p.m. that afternoon, the court would replace Juror No. 12 with an alternate.
Read back of testimony began at 2:57 p.m. and concluded at 3:37 p.m. After the read back, the alternate jurors left the jury room and jury deliberations resumed. At 3:55 p.m., the jury returned to the courtroom and the trial court excused Juror No. 12, replacing her with an alternate juror. Because an alternate juror had replaced Juror No. 12, the court instructed the jury to begin its deliberations anew.
At 9:00 a.m., on Thursday, May 24, the jury resumed deliberations. At 1:39 p.m., the jury submitted the following note, signed by Juror No. 6, to the trial court: "Judge [h]ave [j]urror [sic] [n]umber 5 [t]hat [¶] is [b]eing [d]ificult [sic] he [¶] keeps purposly [sic] making comments that [¶] [a]re only causing delaying due [¶] to him not [b]eing here after today [¶] he[']s doing [t]hings to [p]rolong this, is [¶] there [a]ny way we could dismiss [¶] him [a]lready with [a]lternate[?] [¶] If I could talk to you in person [¶] not in [courtroom] with other [j]urors[.]"
At a 2:05 p.m., sidebar conference, the trial court inquired of Juror No. 6 about the note concerning Juror No. 5. Their discussion was as follows:
"The Court: . . . You sent out a note saying that you're having difficulty with Juror No. 5 causing delays and due to him not being here after today, he's doing things to prolong this.
"What do you mean by that?
"Juror No. 6: He just—anything, like—I'm not saying what way we're deciding. But anything that we're discussing, things are going right, and then he will change it and then he will just delay it. His questions, his stuff that he is asking, it doesn't—doesn't make sense.
"He is just—he keeps saying himself, 'I'm already leaving, so it doesn't matter.' Like that's his focus. 'I'm already leaving. I'm already leaving.'
"So I don't think its fair either way, you know, whatever way we go. But everything that he—when you—the questions that he is asking are not—they're not justifiable, you could say. He's just asking just to ask, and then delaying. And then he is, basically, picking fights at people to— again, delay everything. I feel that he is just delaying it and—because every time
"The Court: Did that just start today?
"Juror No. 6: No, since the beginning he has been, but less—less towards the evening yesterday. And then today, since he got—as soon as we came in, as soon as we came in, he started talking, 'Today is already my last day, so it doesn't matter what I say any [way].'
"I was, like, we all matter. Our—our opinions, all of our things matter. And so we've been trying to move along with it. We'll discuss something, and then he will start with, 'It doesn't matter what I'm saying any ways, but'
"The Court: Still go ahead and saying it.
"Juror No. 6: Yeah. And people will say something, and then he will go against it. And somebody will say something that— I guess it wasn't in favor with what he originally said, and then he will change it.
"Everybody is entitled to opinions changing, but I honestly feel that he is doing it because he's just prolonging it. He just wants to start—stir up stuff just to make it longer. And, again—and, really, every time he says it, 'I'm already leaving any [way],' like, 'I just can't wait till I get out.'
"The Court: You feel that deliberations today, because of that, you are not really getting anywhere?
"Juror No. 6: I feel that we are, in a sense, moving along, but he's not moving. But his—his—his comments isn't helping it.
"Like, I think—I honestly felt that we would probably get it done today or tomorrow morning maybe because his comments are not—he's instigating stuff just to prolong it.
"It is just—I mean, that's—that's—I'm a supervisor of a lot of people, and I can read people's mind any way. And I'm like why is he delaying it?
"Well, obviously, he is delaying it because he doesn't want to decide. He just wants out. That's his focus. He just wants out. Even this morning he came dressed up totally different. 'My mind is already—I'm already gonna—my mind is already out here.'
"And I'm, like, you can't have that. Like our—all of us are here dedicating our time. We need to do this right. And his mind is not here."
The trial court excused Juror No. 6 and discussed the matter with the parties as follows:
"The Court: After hearing what I heard from Juror No. 6—and then I will take comments from the attorneys about Juror No. 5, who knows it is his last day today and, apparently, keeps saying that. And at least according to Juror No. 6, has somewhat of an indifference in how the deliberation goes, and keeps changing things, or his words, delaying things because it is his last day.
"I am inclined to go ahead and excuse him, bring in the alternate juror, have them deliberate till 4 o'clock. If they don't have a verdict, have them come back from 9:00 till noon only because we're gonna lose another juror—have them go at noon. If they don't have a verdict by noon tomorrow, then have them ordered to come back Tuesday at 9:00 a.m. to continue their deliberations.
"Any thoughts?
"[The Prosecutor]: Nothing from the People. Beyond that, it appears to be the only choice that the court has at this point relative to the number of jurors that we have left as alternates, as well as the amount of time that has been invested in the actual trial. It seems best to work with the jurors that we currently have and then move forward.
"The Court: Right. Because then we'll be left with the one alternate that is disabled. So I just don't want to burn all of them, especially—and it is a holiday.
"So, I mean, I think if they come in here and deliberate till noon, maybe they'll have verdicts. Maybe they'll say, 'We can't get verdicts.' I mean, I'm hoping for verdicts, but maybe by noon—you heard Juror No. 6, he still thinks they're working it out. Maybe they'll have something by noon.
"If not, let them go enjoy their weekend and bring them back on Tuesday. And then Judge Clay will be—he will just monitor them for tomorrow as well as for Tuesday.
"[¶] . . . [¶]
"[Defense Counsel]: The defense would object because this completely changes the racial make-up of the jury. I understand what Juror No. 6 has said about Juror No. 5, Juror No. 5 being the last African-American juror on our jury, even considering the allegations.
"This sounds to me as if Juror No. 5 is being a holdout juror, and that sounds as if it is a hung jury as it stands. I believe that at this time, that that could be fully stated. That is the record that we have made.
"The Court: It hasn't been stated. They have not come out with another note saying that they're hung. I specifically asked Juror No. 6—because that was my thought, too. I'm thinking, well, maybe that is the case.
"But according to Juror No. 6, who is the foreperson, when I asked him at sidebar, are you all still working? He said, yeah, I think we're still working. And he was like even hopeful maybe by this afternoon or maybe by tomorrow we would have something.
"So I was trying to see if they were just stuck, and that's what it was. If it was a hung jury or if they're still working towards attempting, at least, to get verdicts.
"According to the foreperson in his sidebar, and correct me if I'm wrong, he said that it seemed like they were still working on trying to come up with a decision in the case, basically. But they were still working towards a decision and thought that they may have one today or by tomorrow at the latest, is his indication. But they were still working towards a resolution.
"He does not say, and that is the language that I was looking for, 'We're hung.' Again, like when they first sent out, 'We're not going to agree on anything.' Had he said that, then you're absolutely correct, [defense counsel], I probably would, at this point—because they have been deliberating now since Monday afternoon—went ahead and declared a mistrial.
"But that is not what he is indicating. As the foreperson, he still thinks they're working towards a resolution in this case. That's why I was particularly—I did ask him, you know, 'You're still working?' 'Yeah.'
"He says, 'Yeah, there is movement and we're still working.'
"So I don't want—with him giving that representation, I do not want to, for that reason, declare a mistrial.
"But it doesn't seem like—I can hold Juror No. 5 here till 4 o'clock, and it doesn't seem like anything is going to happen, or any type of resolution is going to happen that, at this point, his mind is set on his vacation, and he is just back there—I don't know what he is doing, delaying, according to the foreperson, whatever that means, and take people off point, things of that nature.
"Anything else for the record?
"[The Prosecutor]: Submitted, your Honor.
"[Defense Counsel]: Submitted, your Honor.
"The Court: The only other thing that I can do is I can go ahead and dismiss Juror No. 5, swear in the alternate juror, send them all home today early and bring them all back here at 9 o'clock tomorrow to start deliberating.
"Since today's Juror No. 5's last day, I can send them all home, let them take a break, get a breather, come back tomorrow at 9 o'clock. So I can excuse Juror No. 5, put in the alternate, and let them continue deliberating.
"I was going to let them go early today anyway. So I can let them go for another hour or I can just cut them loose, and then let them start anew tomorrow at 9 o'clock.
"[The Prosecutor]: The People's preference would be to excuse Juror No. 5 given that the People's read of the foreperson was that, in essence, Juror No. 5 is just being abstentious or disagreeable.
"It sounds like the foreperson thinks a verdict is close, or at least that they're working towards it. And if—if Juror No. 5 is just running down the block [sic], seems like keeping him till 3:30 or 4 o'clock is just causing the inevitable that it might be just wiser to seat the alternate juror.
"Again, looking at the—our dwindling limited number of alternate jurors.
"Submitted.
"[Defense Counsel]: Your Honor, if the court is so inclined to dismiss Juror No. 5 over the defense's objection, we would just ask for them to continue through till 4:00 p.m. today, as we also would like to see if what Juror No. 6 says is possible, if there is something that can be reached today."
The trial court had the jury brought to the courtroom. It confirmed with Juror No. 5 that he was able to serve on the jury through the end of the day and then would be gone on a trip. The court then excused Juror No. 5, seated an alternate juror, and instructed the jury that it was to start its deliberations anew, disregarding past deliberations. Thereafter, the jury deliberated for a little over an hour and a half.
The following day, the jury deliberated from 9:00 a.m. to 12:00 p.m., before the trial court excused it and ordered it to return on Tuesday, May 29. On May 29, jury deliberations commenced at 9:00 a.m. At 11:10 a.m., the jury notified the bailiff that it had reached a verdict.
III. DISCUSSION
Defendant contends that the trial court abused its discretion in removing Juror No. 5 by, among other things, failing to interview the juror about his alleged refusal to deliberate. In defendant's view, the record demonstrates that Juror No. 5 was a hold-out: he was "not moving along with the other jurors towards verdicts and was arguing with them." Defendant contends that the court removed Juror No. 5 without interviewing him "because it believed nothing would be accomplished in the several hours of May 23 that the juror had remaining to serve."
The Attorney General counters that defendant has forfeited this argument by failing to request that the trial court conduct a further inquiry and also argues that the court's inquiry was sufficient. In the Attorney General's view, the record establishes a "demonstrable reality" that Juror No. 5 was unable to fulfill his duties as a juror.
The Attorney General cites People v. Holloway (2004) 33 Cal.4th 96 in support of its forfeiture argument. In that case, a defendant argued on appeal that the trial court had abused its discretion by failing to discharge a juror who had been interviewed twice by the court. (Id. at pp. 124-126.) The defendant, however, had not moved to excuse the juror, had not made any comments about the court's interviews, and had not otherwise objected to the court's course of action. (Id. at p. 124.) Here, by contrast, defendant expressly objected to the court's removal of Juror No. 5, arguing that Juror No. 5 was a hold-out. On these facts, we decline to find that defendant has forfeited his argument.
A trial court has broad discretion to remove a juror who is no longer able to perform his or her duty. (People v. Armstrong (2016) 1 Cal.5th 432, 450; § 1089.) "[P]roper grounds for removing a deliberating juror include refusal to deliberate. A refusal to deliberate consists of a juror's unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views. Examples of refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury. The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge. A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views. [Citation.]" (People v. Cleveland (2001) 25 Cal.4th 466, 485.)
Section 1089 provides, in relevant part, "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, . . . the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors."
"[A]n inquiry sufficient to determine the facts is required whenever the court is put on notice that good cause to discharge a juror may exist." (People v. Burgener (1986) 41 Cal.3d 505, 519 (Burgener).) The "'"[g]rounds for investigation or discharge of a juror may be established by [the juror's] statements or conduct, including events which occur during jury deliberations and are reported by fellow panelists. [Citations.]" [Citation.]'" (People v. Homick (2012) 55 Cal.4th 816, 898.) "The manner in which the trial court conducted its inquiry is subject to review for abuse of discretion . . . ." (People v. Fuiava (2012) 53 Cal.4th 622, 712.) "Failure to conduct a hearing sufficient to determine whether good cause to discharge the juror exists is an abuse of discretion subject to appellate review." (Burgener, supra, 41 Cal.3d at p. 520.) We review such an abuse of discretion for prejudice under the harmless beyond a reasonable doubt standard. (People v. McNeal (1979) 90 Cal.App.3d 830, 840.)
Juror No. 6's statements to the trial court put the court on notice that good cause may have existed to discharge Juror No. 5. (Burgener, supra, 41 Cal.3d at p. 519.) The court was thus obliged to conduct an "inquiry sufficient to determine the facts." (Ibid.) The court, however, conducted no further inquiry even after Juror No. 5, contrary to Juror No. 6's suggestion that he was refusing to deliberate, stated that he was able to serve on the jury until the end of that day. On this record, we conclude that the court abused its discretion in not conducting further inquiry of Juror No. 5 or of any other juror. Such further inquiry would have allowed the court to determine whether Juror No. 5's participation in jury deliberations constituted a refusal to deliberate as explained in People v. Cleveland, supra, 25 Cal.4th at page 485, thus subjecting him to removal, or whether, as defendant argues, Juror No. 5 was a hold-out. We further conclude that the court's error in failing to make a sufficient inquiry was not harmless beyond a reasonable doubt. (People v. McNeal, supra, 90 Cal.App.3d at p. 840.) Accordingly, the court's failure is reversible error. (Ibid.)
Because we reverse defendant's two attempted murder convictions and his shooting at an occupied motor vehicle conviction based on the trial court's erroneous removal of Juror No. 5, we need not consider defendant's other arguments on appeal. --------
IV. DISPOSITION
Defendant's attempted murder convictions and his shooting at an occupied motor vehicle conviction are reversed and the matter is remanded for retrial as to those offenses. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J. We concur:
BAKER, Acting P. J.
MOOR, J.