People v. Diaz

• Decision Date: 28 January 2002
• Docket Number: No. B137926.,B137926.
• Citation: 95 Cal.App.4th 695,115 Cal.Rptr.2d 799
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. David Angel DIAZ, Defendant and Appellant.

115 Cal.Rptr.2d 799

95 Cal.App.4th 695

The PEOPLE, Plaintiff and Respondent, v. David Angel DIAZ, Defendant and Appellant.

No. B137926.

Court of Appeal, Second District, Division 3.

January 28, 2002.

Rehearing Denied February 22, 2002.

Review Denied April 17, 2002.

Barbara A. Smith, under appointment by the Court of Appeal, Spring Valley, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, and Roy C. Preminger, Deputy Attorney General, for Plaintiff and Respondent.

KLEIN, P.J.

Defendant and appellant, David Angel Diaz, appeals from the judgment entered following his conviction, by jury trial, for attempted murder, aggravated mayhem, assault by means likely to produce great bodily injury, and assault with a semiautomatic weapon, with enhancements for discharging a firearm causing great bodily injury, firearm use and infliction of great bodily injury (Pen.Code, §§ 664/187, 205, 245, subd. (a)(1), 245, subd. (b), 12022.53, subd. (d), 12022.5, 12022.7).¹ Sentenced to a state prison term of 37 years to life, Diaz contends there was trial and sentencing error.

The judgment is affirmed as modified.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103), the evidence established the following.

1. Prosecution evidence.

K.P. and defendant Diaz were members of the Eastlake Gang. The Eastlake Gang and the Clover Gang, bitter rivals, were at war. On the night of July 14, 1998, K.P. was driving in his car with his girlfriend, Jeanette V. K.P. saw Diaz in the street and picked him up. Neither K.P. nor Jeanette knew Diaz had a gun.

Remberto P., a member of the Clover Gang, was walking across the intersection of Griffin Avenue and Manitou Street with his girlfriend, Martha S., and her 13-year-old brother. When K.P. came to a stop sign at the intersection of Griffin and Manitou, Diaz got out of the car saying something like, "I am going to waste him," or "I am going to blast him." Diaz walked up to Remberto and asked, "Where are you from?" Remberto knew Diaz was asking what gang he was from and he replied, "I am from Clover." Diaz pulled out a handgun, shot at Remberto numerous times, and then got back into K.P.'s car. Remberto was hit twice in the leg, the bullets destroying the femoral artery of his lower leg and shattering his fibula.

K.P. drove to the home of Diaz's girlfriend, Juana C, and parked at the rear of the property. K.P., Jeanette, and Diaz got out of the car. K.P. and Jeanette walked away together, and Diaz walked away in a different direction. K.P. and Jeanette retrieved the car early the next morning.

Police Officer Armando Rodriguez responded to the scene and spoke with Remberto's girlfriend, Martha. Martha told Rodriguez she recognized the gunman, whom she knew by his moniker "Drifter," and that Drifter was a member of the Eastlake Gang. Officer Juan Parga spoke to Martha a little later that same night. Martha told Parga she knew the gunman from high school, that his name was David, that he was also known as Drifter, and that he was from the Eastlake Gang. Martha identified a photograph of Diaz as the gunman.

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

2. Defense evidence.

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

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

CONTENTIONS

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

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

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

DISCUSSION

1. Discharged juror.

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

Penal Code section 1089 allows the trial court to discharge a juror who "upon ... good cause shown to the court is found to be unable to perform [her] duty." "`We review for abuse of discretion the trial court's determination to discharge a juror and order an alternative to serve. [Citation.] If there is any substantial evidence supporting the trial court's ruling, we will uphold it. [Citation.] We also have stated, however, that a juror's inability to perform as a juror "`must appear in the record as a demonstrable reality.'" [Citation.]' [Citation.]" (People v. Cleveland (2001) 25 Cal.4th 466, 474, 106 Cal. Rptr.2d 313, 21 P.3d 1225.)

After only two hours of deliberation, the foreperson of Diaz's jury sent the trial court a note saying, "A juror refuses to deliberate further. We believe that this violates instruction number 17.41.1. We want further guidance from the court." Commenting that it wanted to find out "whether it is an honest difference of opinion or whether or not there is, in fact, a juror who is not deliberating," the trial judge had the jury foreperson, Juror No.

9, brought into the courtroom. The foreperson said Juror No. 5 was "intimidated by us needing to discuss her opinion and ours and she just feels ganged up on because she is by herself," and that "her position and her attitude is, this is how I feel, and there is nothing to discuss." Although Juror No. 5 had initially participated in deliberations, she subsequently began refusing to discuss anything, saying only, "This is how I feel." "[Everything was going fine until like the last 10 or 15 minutes when we realized that this is where we all were positioned.... [B]ut, when we had the difference, there was no discussing it further. `This is how I feel'" "We tried, like, two or three times to encourage her. And everybody calmed down and backed off and just tried to ease the situation and then approach it again, and it was just—that's it." "When the other jurors told her they weren't ganging up on her and not to take it personally, Juror No. 5 said she feels like it is [personal]. She is completely intimidated...."

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

The trial court then had Juror No. 11 brought into the courtroom. Juror No. 11 said that although Juror No. 5 had initially participated in deliberations, she stopped doing so and now refused to discuss the evidence. When the other jurors asked Juror No. 5 to discuss her position, she refused saying: "That's it. I am not going to discuss it any more." She complained the other jurors were "ganging up" on her. The trial court brought in Juror No. 1, who said Juror No. 5 had initially deliberated, but then stopped because she felt the other jurors were attacking her. "The Court: Okay. When you ask her to discuss the case or the facts, what does she say? [¶] Juror No. 1: `You are all attacking me.' [¶] The Court: Is it your perception that, in fact, Juror No. 5 is being attacked? [¶] Juror No. 1: No. [¶] The Court: Okay. Tell me why not. [—] Juror No. 1: We have asked that she explain her thoughts and why she feels that way, and perhaps we could then understand the reason why she is feeling the way she is feeling."

The trial court had all the jurors and alternates brought in for a rereading of the instructions relating to juror duties, and then excused them for the day. The next morning, the court indicated it felt further questioning of Juror No. 5 was necessary to determine if she was either refusing to deliberate or incapable of deliberating because she felt intimidated. Juror No. 5 was brought in and the trial court asked: "Yesterday you said you felt intimidated by the other jurors and, in fact, it was something that brought you to tears. [¶] Do you still feel intimidated by the other jurors?" She said, "No, your Honor. I was going through a lot. My brother-in-law was very sick and he died yesterday." She then said, "It has been kind of hard for me, but I am doing better now, your Honor." When the trial court asked if this personal loss wouldn't make it hard for her to deliberate because "[i]t sounded like yesterday that interfered with it," she replied, "Well, I didn't know that he had died until I got home." She said her brother-in-law's illness had been bothering her the day before, but when the trial court asked if she thought that was why she had been having problems in the jury room, she said: "No. There was a lot of problems in there. But, I think I can do my job, your Honor. [¶] The Court: Okay. What has changed to make you think so? [¶] Juror No. 5:...