People v. Flores, F050958 (Cal. App. 7/30/2007)

• Decision Date: 30 July 2007
• Docket Number: F050958
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JAMES QUINCY FLORES, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. JAMES QUINCY FLORES, Defendant and Appellant.

F050958

Court of Appeals of California, Fifth District

Filed July 30, 2007

Certified for Partial Publication^*

Appeal from a judgment of the Superior Court of Fresno County, No. F05906253-0, R. L. Putnam, Judge.

Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DAWSON, J.

A jury convicted James Quincy Flores (appellant) of carrying a concealed dirk or dagger (Pen. Code, § 12020, subd. (a)(4)),¹ possession of cocaine (Health & Saf. Code, § 11350, subd. (a)), possession of heroin (Health & Saf. Code, § 11350, subd. (a)), and unauthorized possession of a hypodermic needle or syringe (Bus. & Prof. Code, § 4140). In a bifurcated proceeding, the trial court found true four prior strike allegations and a prior prison term allegation. The trial court sentenced appellant to an indeterminate term of 25 years to life on the felony convictions, plus a one-year determinate term on the prior prison term. The court granted appellant credit for time served on the possession of a hypodermic syringe misdemeanor. Various fines and fees were imposed.

On appeal appellant contends that: (1) the trial court erred when it denied his new trial motion based on juror misconduct; (2) the trial court improperly instructed on the elements of carrying a concealed dirk or dagger; (3) there is insufficient evidence to support his conviction for heroin and cocaine possession; (4) he was improperly convicted of possession of both heroin and cocaine under the instructions given; (5) the reasonable doubt instruction given was flawed; (6) one of appellant's two possession terms must be stayed pursuant to section 654; and (7) the trial court erred when it increased appellant's restitution and parole revocation fines in violation of section 1170. We agree with appellant's last two contentions, and in all other respects affirm. We publish that portion of this opinion that addresses the validity of the reasonable doubt instruction contained in CALCRIM No. 220.

FACTS

At approximately 6:00 or 7:00 p.m. on August 14, 2005, police officers Frederick Williams and Haywood Irving noticed appellant lying underneath a vehicle in the "far southwestern portion" of the parking lot of an auto parts store in Fresno. The officers decided to check on appellant, whose upper body was under the car. Williams asked if appellant was okay and if he could speak to him. Appellant came out from under the vehicle and said "Sure." He had nothing in his hands at the time. Appellant told the officers he had just purchased the vehicle and was working on it. Williams asked appellant if he had anything illegal on him and appellant said he did not. Williams asked if he could search appellant, and appellant said "Sure. Go ahead." Williams felt an object in appellant's right front pocket. Williams put his hand "all the way in" the pocket and removed a knife completely concealed in a sheath. Williams did not see the knife in appellant's pocket when he came out from under the vehicle. The knife was approximately 10 inches long, including the six-inch blade.

Williams then conducted a search of appellant's vehicle. In the trunk, he found a small metal box containing a hypodermic syringe with a dark brown substance later determined to be cocaine and heroin. At the preliminary hearing, Williams testified that the box was under an article of clothing, but he did not recall that at trial. Appellant's vehicle was subsequently impounded.

At trial, Officer Williams placed the knife into the pants pocket of the jeans appellant was wearing at the time of the incident. Only a small portion of the scabbard was visible, as was the evidence tag which had not been there at the time of the incident. When the pants were held up about 10 feet from Williams, he testified that the knife appeared to be concealed.

Hagop Toutikian sold the vehicle to appellant in March of 2005. Appellant was the registered owner, but he still owed a balance on the vehicle.

DISCUSSION

1. Did the trial court err when it denied appellant's motion for new trial based on juror misconduct?^*

Appellant contends that the trial court abused its discretion in denying his motion for new trial. He argues that jurors performed an experiment during deliberations which resulted in the improper consideration of extrinsic evidence. We disagree.

A. Background

Prior to deliberations, the trial court told the jurors that they could examine the knife if they wished to do so and that the bailiff would bring it into the jury room for their review.

Later, when the bailiff notified the court that the jury had reached a verdict, he also informed the court and both counsel that he had observed one juror, during deliberations, stand up and "grab[] the knife and put it in his pocket and the rest of the jury asked him to sit down with it in his pocket and then he stood up and he turned and then they said that was it. That's all they needed." The court clarified the bailiff's body motions made while speaking and asked if the juror "twisted a little bit to the left and a little bit to the right and then they gave the knife back," to which the bailiff agreed. The jurors then returned to the courtroom and entered their verdicts, but the observation was not discussed and no juror was questioned about the incident.

Defense counsel subsequently filed a new trial motion, claiming the jury committed misconduct when it performed an illegal experiment with the knife during deliberations. At the calendared hearing, the trial court noted that defense counsel had failed to attach any juror declaration in support of the motion, and she was given leave to do so. Defense counsel filed a petition for release of juror identification information, which was granted, but at the subsequent hearing on the new trial motion, counsel informed the court that she had been unable to obtain any juror declarations.

In denying the new trial motion, the trial court stated that it had read and considered the documents, considered the case law, and the bailiff's declaration. The court reasoned:

"The knife and its concealment was a very central point in the case, obviously, because that charge is very serious, especially [in] relationship to this particular defendant. And also, ... whether or not it could have been concealed was the major issue that the defense raised. And during that process in front of the jurors on both examination of witnesses as well as during argument both counsel repeatedly mentioned the pants and the knife and how the knife fit in the pants and, in fact, did your own experiments right here in front of the jurors, so to speak, putting that knife in the pocket of the pants. And that wouldn't be unusual in itself I don't think. If jurors did that in the jury room, that would be an experiment. But I think that's well within the bounds of [what] jurors are allowed to do .... [H]ere, I think in this particular case we have an experiment, if you want to call it that, within the bounds of the evidence here and would be permissible under the circumstances. It doesn't appear to me that that would be something unusual that jurors would do. We don't know if they also considered the pants and the knife separate from that. Many things we don't know because we don't have any declarations from the jurors. But on its face it appears that this would be something that would be within the jurors' realm of what they could do. It's not something outside the panel. Any juror could probably stick it in their pocket. Others might observe what they had done. Or just touching the knife. That's the same type of thing. Feeling the knife, seeing what it feels like. So it's certainly not something that is impermissible within the [S]ixth [A]mendment requirements based on that. And [it] appears to me that there's just not enough evidence to show that this would have some extremely prejudicial affect against [appellant]. We did have [a] relatively short verdict. Most of the facts in this case were really not contested, and the jurors could easily have found based on the evidence at least here in court that the knife was concealable as alleged by the People. So based on that and those findings, also citing People versus Perez [(1992) 4 Cal.App.4th 893] and several other cases cited by that case, the motion would be denied."

B. Applicable Law

"A motion for new trial may be made on the grounds of juror misconduct or unauthorized receipt of evidence by the jury. [Citation.] `It is the trial court's function to resolve conflicts in the evidence, to assess the credibility of the declarants, and to evaluate the prejudicial effect of the alleged misconduct .... However, in reviewing an order denying a motion for new trial based on jury misconduct, as distinguished from an order granting a new trial on that ground, a reviewing court has a constitutional obligation ... to review the entire record, including the evidence, and to determine independently whether the act of misconduct, if it occurred, prevented the complaining party from having a fair trial. [Citations.]'" (People v. Wisely (1990) 224 Cal.App.3d 939, 947, quoting Andrews v. County of Orange (1982) 130 Cal.App.3d 944, 954-955, disapproved on other grounds in People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5.)

We therefore undertake a de novo review to determine whether there was misconduct, and, if so, whether that misconduct prejudiced appellant and requires his conviction be reversed. (People v. Cumpian (1991) 1 Cal.App.4th 307, 311.)

Jury misconduct raises a presumption of prejudice and, "unless the prosecution rebuts that presumption ..., the defendant is...