GOMES, Acting P.J.
On August 5, 2006, Douglas Jackson robbed a bank in Fresno. On August 29, 2006, he and Jamal Justin Chambers attempted to rob a bank in Clovis but, after finding out no one could open the vault, fled empty-handed and shot at officers during an ensuing police pursuit. A jury found Jackson guilty of charges arising out of both incidents. On appeal, he challenges his identification as the perpetrator of the Fresno bank robbery and argues two juror intimidation issues and one juror misconduct issue. On our own motion, we remand for correction of an error in the abstract of judgment. Otherwise, we affirm the judgment.
On December 1, 2008, the jury found Jackson guilty of the robbery on August 5, 2006; found him guilty of attempted robbery, attempted murder of a peace officer, assault with a firearm on a peace officer, evading a peace officer, and felon in possession of a firearm on August 29, 2006; and found a number of firearm allegations true as follows:
After the jury returned those verdicts, Jackson admitted all three priors alleged in the information — one serious felony prior (§ 667, subd. (a)(1)) within the scope of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prison term priors (§ 667.5, subd. (b)).
On January 27, 2009, the court sentenced Jackson to an aggregate sentence of an indeterminate term of life with the possibility of parole consecutive to a determinate term of 48 years:
Jackson argues that "the identification process was so unduly suggestive and unreliable" as to require reversal of his conviction of the Fresno bank robbery. The Attorney General argues that he fails to show "as a demonstrable reality, not just speculation," that the identification process was not fair.
The crux of Jackson's argument is that his conviction of the bank robbery in Fresno "was obtained using an identification process in which [the operations manager], and possibly [a teller], identified [him] as the perpetrator only after seeing his photograph in the newspaper as the suspect" of the crimes that arose from the attempted Clovis bank robbery on August 29, 2006. A detective who noticed a similarity between the suspects in the two crimes showed a photo lineup to the teller on that date. On the basis of her observation of the robber's face at the bank, she identified Jackson. Only afterward did she see any photos of suspects in the newspaper. None had yet been publicized. On August 31, 2006, he showed the operations manager a photo lineup with a photo of Jackson that was different from the one she saw in the newspaper. He told her, "When you're looking at these photographs, I want you to think about the day of the robbery and the person that you saw come into the bank." On the basis of her "interaction with the individual" at the bank and the "still video photo" from the bank, she identified Jackson.
The parties agree on the governing law. With reference to "the relationship between suggestiveness and misidentification," the United States Supreme Court holds, "It is the likelihood of misidentification which violates a defendant's right to due process." (Neil v. Biggers (1972) 409 U.S. 188, 198.) Citing Biggers, our Supreme Court notes that the relevant considerations on whether the admission of identification evidence violates due process are "(1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification." (People v. Cunningham (2001) 25 Cal.4th 926, 989, citing, e.g., Biggers, supra, at pp. 199-200.) On the issue of "whether a pretrial identification procedure was unduly suggestive," our Supreme Court holds that "the standard of independent review applies." (People v. Kennedy (2005) 36 Cal.4th 595, 609, overruled on another ground by People v. Williams (2010) 49 Cal.4th 405, 459.)
The parties disagree, however, on the outcome of an application of the governing law to the facts before us. Jackson argues that the operations manager, having seen his photo in the newspaper and having acknowledged paying closer attention to the robber who was holding the handgun than to him, made a flawed identification. He argues that the teller's equivocation about whether he was wearing sunglasses and the lapse of time between the robbery and the photo lineup made her identification troublesome as well.
The Attorney General, on the other hand, emphasizes that the detective did not show Jackson's photo from the newspaper to the operations manager, who identified him on the basis of her interaction with the robber at the bank and the robber's photo from the bank's security system. Even a questionable identification, if based on factors other than impermissibly suggestive procedures, is an issue of credibility properly decided by a jury. (People v. Contreras (1993) 17 Cal.App.4th 813, 822-823.) Any risk of misidentification of Jackson by the operations manager or the teller was "substantially lessened by a course of cross-examination at trial." (Simmons v. United States (1968) 390 U.S. 377, 384.) By the standard of independent review, he fails to persuade us that the identification process here was so suggestive as to require reversal.
Jackson argues that the court's failure to conduct an adequate inquiry into possible juror intimidation by spectators violated his constitutional rights to an impartial jury and a fair trial. The Attorney General argues the contrary.
On the 11th day of trial, juror number 3 submitted a letter to the court expressing "concern" about two men in the courtroom who made Jackson's former girlfriend "very nervous" as she testified. The letter referred to a comment about "Lo Boys" in Jackson's fiancée's testimony and to a comment overheard during a break about how the two men were Jackson's cousins. The letter mentioned that several jurors had to step around the two men in the hall. Juror number 3 said she was no "stranger to the Lo Boys and their reputation" but admitted she was not "very comfortable" about their presence and thought other jurors might "feel the same." She wrote, "Please give me the assurance that I will be safe here and there will not be any intimidation from visitors in the courtroom."
In chambers, the court and counsel conferred with juror number 3, who said that other jurors made comments about how the two men made the witness nervous. Hearing Jackson's fiancée refer on the stand to Jackson as "Chain or Shane," which "was his Lo[] Boy name," "freaked [her] out a little bit," after which she took off her juror badge. She reported that juror number 5 mentioned leaving her wedding ring at home and feeling nervous about walking to her car. Later, juror number 3 acknowledged, "I don't know if I heard Lo[] Boy or not." The court asked, "Has anybody done anything that in any way, obviously or subjectively, made you feel personally intimidated?" She answered, "No," adding that she "just ... felt uneasy." The court asked, "And you were uneasy because?" She answered, "They were just right there." The court asked, "But they did not look at you? Threaten?" She said, "No." The court asked, "Mouth comments?" She answered, "Absolutely not, no." The court noted that "things like that" are "not unusual for a jury trial. You may have a courtroom full of people on both sides." She said she knew about Fresno gangs only because her "spouse worked for a criminal defense attorney for years." The court asked if any of the jurors mentioned the Lo Boys. She said, "No." Asked if she had formed an opinion about guilt or innocence, she replied, "No." To the question, "And is there anything about what you've heard, seen, or observed inside or outside the courtroom that would impact your ability to be fair and impartial?," she likewise replied, "No."
The court called juror number 5 into chambers and told that her someone had mentioned she was not wearing her wedding ring because she was nervous. She was just "kidding around," she said. Her wedding ring no longer fits because she gained weight after having her baby. "Anything about any of the local characters or anything else?," the court probed. "Oh, no," she replied, adding that she just gets "nervous around people" and walks "everywhere" in groups.
Out of the presence of juror number 5, the defense asked the court to question the jurors. The court declined the request, noting that it was "extremely reticent to engage in questions of a jury, either before or during deliberations," about the "subjective analysis of the evidence," which included asking jurors about how to analyze "the testimony of a particular witness." The court observed, too, that "to carry it further would create actual potential issues that are not present." The court pointed out that the jury was to receive instruction not to consider for any purpose anything that was not evidence, including the activities of others in the courtroom. The court asked the court reporter "what she wrote down" about a possible witness reference to "Lo Boys."
After the noon recess that day, the court, in the presence of counsel and juror number 3 but outside the presence of the rest of the jury, had the court reporter read the portion of Jackson's former girlfriend's testimony that juror number 3 mistakenly thought referred to the Lo Boys. "The testimony was," the court reporter read, "`Chain, like chain?'" and the answer, she read, was, "`No. It is like an old cowboy movie, a long time ago. And his name was Chain, and that's his name that they gave him as a little boy.'"
"The decision whether to investigate possible juror bias, incompetence, or misconduct, as well as the ultimate decision whether to retain or discharge a juror, rests within the sound discretion of the trial court. [Citation.] If any substantial evidence exists to support the trial court's exercise of its discretion, the court's action will be upheld on appeal." (People v. Maury (2003) 30 Cal.4th 342, 434.) As our Supreme Court notes, "a hearing is required only where the court possesses information which, if proven to be true, would constitute `good cause' to doubt a juror's ability to perform his [or her] duties and would justify his [or her] removal from the case." (People v. Ray (1996) 13 Cal.4th 313, 343.)
Here, by questioning juror number 3 at length, questioning juror number 5 briefly, and having the court reporter read back part of Jackson's former girlfriend's testimony, the court found that juror number 3 was mistaken in her recollection that the witness said "Lo Boy" (when, in fact, she said "cowboy") and that juror number 5's comment about not wearing her wedding ring because she was nervous was only a joke. Jackson agrees the court resolved juror number 3's initial concern but argues that the discussion of the case by the jurors violated section 1122 and that the court should have conducted a further inquiry.
The Attorney General argues that the juror comments at issue here, though a breach of the court's section 1122 admonitions, showed no prejudgment of the case. We agree. "Trivial violations that do not prejudice the parties do not require removal of a sitting juror." (People v. Wilson (2008) 44 Cal.4th 758, 839 (Wilson).) The comments here neither suggest prejudgment of guilt nor cast doubt on the impartiality of the jurors or the fairness of the trial. Juror comments like those are "`certainly not as serious as questions designed to obtain extrinsic evidence regarding the case itself.'" (Ibid.) "No trials are perfect — evidentiary or procedural errors are bound to occur." (People v. Garcia (2005) 36 Cal.4th 777, 808 (conc. & dis. opn. of Chin, J.).) Jackson fails to persuade us that the court should have conducted further inquiry.
Jackson argues that the court's denial of his motion for a mistrial on the ground that jurors prejudged the case violated his constitutional rights to an impartial jury and a fair trial. The Attorney General argues the contrary.
On the 17th day of trial, juror number 1 submitted a note to the court stating, "A comment was made this week that the prosecutor has not done his job so there's no need for a long defense. I am concerned that an attempt was made to taint the jury." Once the court brought her into chambers, she elaborated, "And in my mind I thought why would she say something like that. We are not supposed to make a decision at all until we have heard both sides." She identified the juror who made the comment as juror number 5 and said that juror number 10 responded with something like "yeah, right" but said she did not know whether he was agreeing or being facetious because "those two kind of buddy up with each other." She said, "I heard it, and I just let it go," but agreed to write the note after some other jurors at lunch said the court should be informed.
After juror number 1 left, the court brought juror number 5 into chambers and asked her about her comment. She said some jurors said things like "they're guilty" and "DNA doesn't lie" and that afterward she said "the DA hasn't done his job yet." She denied saying "there's no need for a long defense." She might have said the "defense is not getting that much longer because [she] heard it's only a few days or a week for [the] defense."
After juror number 5 left, the court brought juror number 10 into chambers and asked him about his "yeah, or right, or something" comment in response to the comment juror number 5 made. Juror number 10 said he did not recall making that statement but did say "there has been a lot of talking of everybody in there about the case." Asked by the court to elaborate, he said everyone was "giving some point of view or input about how they feel about the case, but not into specific of guilty verdict or no[t] guilty verdict." For example, "that witness didn't help anybody or things like that." He said that he had his "own belief of things that may have happened or may not have happened" but still did not "have a complete verdict of not guilty or guilty." Although he was "leaning towards one way," he said he was "still being very fair."
After juror number 10 left, the defense made a motion to interview each juror and made a motion for a mistrial. The prosecutor made a motion to dismiss juror number 5. The court granted the motion to interview each juror — individually, in chambers, in the presence of counsel, and out of the presence of the defendants — and deferred rulings on the other motions.
The court asked juror number 2 if he had heard anything "that has troubled you about anyone having the ability to have a fair trial either side, prosecution or defense." He said most of the comments were "trivial" like "that witness was funny" and "more like kind of killing time." He said that "everyone has been really careful" not to talk "about the case itself or the evidence or like the believability of the witnesses or the lawyers." The "one comment" he had heard "over the last two weeks that shouldn't have been made" was "the problematic one" by juror number 5 about "they don't need to do anything because the DA hasn't shown enough or something like that." He said "nothing at all" had happened to make him other than a fair and impartial juror.
The court asked juror number 3 if "any conversations or comments" had led her to believe she "could not be fair and impartial." She replied, "No." Other than flip remarks jurors made to get to know each other, the only comment she thought was inappropriate was juror number 5's comment that "the prosecution's not doing their job," a comment that made her think, "when we go into deliberations, she might be a problem." That was the only time "anybody has said anything" that led her to believe "that maybe an opinion had already been formed. And that's why I thought it was out of line."
The court asked juror number 4 if she had heard anything, "just listening to other jurors, that they've made inappropriate statements or have formed opinions about the case that would make them less than impartial." He replied, "No," and said he had not "heard anybody saying anything about the case at all."
The court asked juror number 6 if he had "heard anything from anyone" that would lead him to believe "somebody has made up their mind, not made up their mind, not listening, not following the[] rules." He replied, "No," adding he talks to few people and keeps to himself. Asked by the court if "some discussion, apparently somebody was in the courtroom," that led to "an interchange or something," gave him "any pause for concern" about "being fair and impartial or intimidated or anything like that," he replied, "No, it probably won't be." Asked by the court if he had "heard anyone speak about like they've made up their mind or something like that," he shook his head.
The court asked juror number 7 if there had been any conversations that would lead her "to think that any jurors made up their mind or are speaking inappropriately about things they shouldn't be speaking about." There had been "comments practically by everybody," she replied, not "about the case" or "anything to do with innocent, guilty," but about things like how one of the witnesses "should have zipped up her jacket. Just things like that."
The court asked juror number 8 if he had heard "any comments about this case from jurors that gave [him] any pause for concern." Replying in the affirmative, he said that a juror made a comment about how "the defense didn't need much time because the prosecution case was so weak." Her comment bothered him. "She shouldn't be saying anything like that one way or the other." He said that nobody made a comment to her at the time but that there was some discussion afterward. "She laughs all the time," he said, and "doesn't seem to be taking this very seriously like a lot of us."
The court asked juror number 9 if he had heard anyone make "comments that they shouldn't have made" that would lead him to think "maybe they formed an opinion." He said he had not "really been talking with the other jurors," had "just been paying attention to the trial," and had not "heard anything actually." Asked by the court if anything had "happened that would give [him] any cause to think [he] could not continue to be fair and impartial," he replied, "No, nothing."
The court asked juror number 11 if she had heard "any comments about this case from anybody, anything from any of [her] fellow jurors that gives [her] any pause."
The court asked juror number 12 if he had heard "anything, any comments by any other jurors that would give [him] any pause for concern about being fair and impartial." He replied, "No."
The court asked alternate juror number 3 if she had heard "any comments by any juror that would give [her] pause for concern." She replied, "Yes." Asked for details, she said that after one of the jurors said the defense was "only going to be a day" juror number 5 said "something to the effect we don't even need a defense because the prosecution didn't do their job." She added, "And it was kind of quiet after that. Everybody looked at each other." That was the first time anyone said something "that should not have been said."
At that juncture, the court, having interviewed each juror individually, brought juror number 5 back into chambers to "follow-up on a couple of things." Asked by the court about the DNA comment, she said she remembered "someone saying DNA doesn't lie." She said she was "not sure" if the person "said we might as well vote guilty" but that is "what [she] got from that." She had "the feeling that people are choosing sides already." Asked by the court if she had chosen sides, she replied, "Honestly, I haven't." She said she had a feeling "a few of the jurors don't like [her]" because she is "blunt" and "outspoken" but she insisted she could "listen to everybody" during deliberations.
Back in the courtroom, the court admonished all of the jurors together not to "talk about the case or about any of the people or any subject involved in the case" until "after the evidence has been presented, the attorneys have completed their arguments," the court has instructed on the law, and deliberations have begun. The court then excused the jury for the day, denied the defense motion for a mistrial, and denied the prosecutor's motion to dismiss juror number 5.
"Undeniably, the jurors' comments were a breach of the court's [section 1122] admonitions," the Attorney General acknowledges. Not every insignificant infraction of the rules by a juror calls for a new trial, however. "Where the misconduct is of such trifling nature that it could not in the nature of things have prevented either party from having a fair trial, the verdict should not be set aside." (Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 507.)
A court should grant a motion for a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged by prejudice that is incurable by admonition or instruction. (People v. Avila (2006) 38 Cal.4th 491, 573 (Avila).) Since the determination whether an incident is incurably prejudicial is intrinsically speculative, a court has considerable discretion in ruling on a motion for a mistrial. (Ibid.) The standard of review of a court's ruling on a motion for a mistrial is abuse of discretion. (Ibid.)
Here, the record shows no abuse of discretion. As the court's interviews with all of the jurors show, some perceptions differed, some recollections diverged, and some jurors might have formed some opinions about the case. Yet the record affirmatively shows that not even one juror had already made up his or her mind about the case. Although "jurors are told not to discuss the case until all the evidence has been presented and instructions given, they are not precluded from thinking about the case, nor would that be humanly possible." (Wilson, supra, 44 Cal.4th at p. 840.) Jackson claims that the denial of his motion violated his constitutional rights to an impartial jury and a fair trial, but since the premise of his constitutional claims is that the denial of his motion was prejudicial, his constitutional claims likewise fail. (People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3 (Sanders).)
Jackson argues that the court's denial of his motions for a mistrial and a new trial on the ground of the presence of police officers in the audience during replays of audio and video exhibits in open court violated his constitutional rights to an impartial jury and a fair trial. The Attorney General argues the contrary.
During deliberations, the jury asked for replays of audio and video exhibits, clarifications of instructions, and readback of witness testimony. Noting that "setting up all the equipment" makes a replay "different than a readback," the court had the replays in open court, not in the jury room. The court clarified the instructions in open court, too, but had the court reporter do the readback in the jury room.
After the jury retired to the jury room for readback, the defense objected to replays of the audio and video exhibits of the police pursuit in open court when about 10 police officers, some of whom were victims or witnesses, were in the audience. Analogizing a replay to readback, the defense urged, "This should be done in the jury room," arguing that "police and witnesses are never present during read back" and that a replay in open court "taints any type of deliberations." The court replied, "It is an open courtroom. This is not testimony," noting that technological difficulties of replays made putting those burdens on a bailiff in the jury room inappropriate. The court noted the importance of counsel being "able to observe what is being observed and how it's being [set] forth. This is a public courtroom nonetheless, and I do not believe there is any legal basis to close the courtroom."
The defense made an oral motion for a mistrial on the basis of a due process violation of the right to an impartial jury. Counsel argued that the prosecutor invited the officers to come to open court during the replays "to prejudice the jury" and pointed out that every juror looked at the officers wearing badges and weapons in open court. In the alternative, the defense requested an admonishment to the jury that the presence of the officers should not taint the deliberations. The court acknowledged "a number of people in the courtroom," some of whom, the defense interjected, were "police officers" and "victims." On the basis of having watched the audience "very carefully," the court noted, there were no "signs, symbols, nonverbal communication, facial expressions by anyone." The prosecutor said he invited the officers, who had "every right to be here." The court found no indication of any misbehavior by anyone, declined to "insult any folks that are here" by "admonishing them as to their conduct," and denied the motion.
After the replays in open court, the defense filed a written motion for a mistrial. The court cautioned the jury that "the only evidence you're to consider is what happens from the witness stand or evidence that is put on the record in some fashion during the course of trial." The court added, "What we're doing or people in the audience that may be here throughout, including yesterday, are not to be considered for any purpose." After hearing argument, the court observed that when "these jurors were in this courtroom, they were not deliberating" and that the spectators showed no "intent to influence the jurors in any way" and did nothing to indicate their presence was "other than as members of the public." The court commented, too, that after admonishing the jury the court "made eye contact with each of the 12" jurors in the period of silence that followed and perceived "tacit agreement" with the admonishment. The court denied the motion.
After the jury's verdicts, the defense filed a motion for a new trial on the ground that the court's "allowing the prosecutor to fill the courtroom with police officers during jury deliberations at a time when the jury had presented a question to the court regarding the attempted murder charge" intimidated the jury into returning a guilty verdict on that charge. The prosecutor filed an opposition. After hearing argument, the court denied the motion.
"Every person charged with a criminal offense has a constitutional right to a public trial, that is, a trial which is open to the general public at all times. (See U.S. Const., amends. VI, XIV; Cal. Const., art. I, § 15; see also [] § 686, subd. 1.)" (People v. Woodward (1992) 4 Cal.4th 376, 382 (Woodward).) "Given the importance of public trials to both the accused and the public, there is a `"`presumption of openness'"' in the courtroom that "`"may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest."'" (People v. Baldwin (2006) 142 Cal.App.4th 1416, 1421, quoting Waller v. Georgia (1984) 467 U.S. 39, 45 (Waller).) Public trials not only "provide an opportunity for spectators to observe the judicial system" but also "prompt judges, lawyers, witnesses and jurors to perform their duties more conscientiously." (Baldwin, supra, at p. 1421.)
Relying primarily on People v. Feagin (1995) 34 Cal.App.4th 1427, Jackson argues that proceedings during deliberations are generally outside the scope of the public trial right. The issue in Feagin was whether a court denies that right by holding a hearing on juror misconduct in chambers. (Id. at p. 1438.) On that issue, Feagin held that the presumption of openness was rebutted by a showing that the exclusion of the public was necessary to protect the sensitive nature of juror disclosures. (Id. at p. 1439.) Feagin is inapposite. Citing no persuasive authority and suggesting no plausible justification for excepting the proceedings at issue from the public trial right, Jackson fails to make the requisite showing of a "higher value such as the defendant's right to a fair trial or the government's interest in preserving the confidentiality of the proceedings." (Ibid., citing Woodward, supra, 4 Cal.4th at p. 383.) On the record before us, we conclude that the proceedings at issue were within the scope of the public trial right.
The standard of review of a court's ruling on a motion for a mistrial is abuse of discretion (Avila, supra, 38 Cal.4th at p. 573), as is the standard of review of a court's ruling on a motion for a new trial (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 127.) Here, the record shows no abuse of discretion. The court's thorough observations of the demeanor of the persons in the courtroom during the proceeding at issue refute the entirely speculative nature of Jackson's argument. Jackson contends the denial of his motion violated his constitutional rights to an impartial jury and a fair trial, but since the premise of his constitutional claims is that the denial of his motions was prejudicial, his constitutional claims likewise fail. (Sanders, supra, 11 Cal.4th at p. 510, fn. 3.)
The matter is remanded for the court (1) to amend the abstract of judgment to show the statutory basis of the count 4 enhancement as section 12022, subdivision (a)(1), not section 12022.5, subdivision (a)(1), and (2) to send a certified copy of the abstract of judgment so amended to the Department of Corrections and Rehabilitation. Jackson has no right to be present at those proceedings. (See People v. Virgil (2011) 51 Cal.4th 1210, 1234-1235.) In all other respects, the judgment is affirmed.
Dawson, J. and Detjen, J., concurs.
