Filed 9/9/15 P. v. Briceno CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066407
Plaintiff and Respondent,
v. (Super. Ct. Nos. SCD253167, SCD250988) MARCUS BRICENO,
Defendant and Appellant.
APPEAL from judgments of the Superior Court of San Diego County, David M.
Gill, Judge. Affirmed with directions.
Theresa O. Stevenson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C.
Taylor and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent. INTRODUCTION
In two separate cases, separate juries found Marcus Briceno guilty of resisting an
executive officer (Pen. Code, § 69)1 and possession of a sharp instrument at a penal
institution (§ 4502, subd. (a)). In bifurcated proceedings in each case the court found true
allegations Briceno had three prior prison convictions (§§ 667.5, subd. (b), 668) and one
prior strike conviction (§§ 667, subds. (b)-(i), 668, 1170.12). The court sentenced
Briceno to an aggregate term of nine years 8 months in state prison.
Briceno contends on appeal (1) there was insufficient evidence to support his
conviction for resisting or deterring an officer, (2) his conviction for possession of a
sharp instrument in a penal institution should be reversed based on juror misconduct, and
(3) the trial court abused its discretion in failing to strike his prior strike conviction in
sentencing him for possession of a sharp instrument in a penal institution. We find no
merit in any of these contentions and affirm the judgments. However, we direct the trial
court to amend the abstract of judgment to correct certain clerical errors.
FACTUAL AND PROCEDURAL BACKGROUND
A
Case No. SCD250988
On the night of September 19, 2013, San Diego Police Officer Blake Williams
was patrolling in the Encanto area—a high narcotic area of the Southeastern Division—
1 Further statutory references are to the Penal Code unless otherwise specified. 2 when he saw two people standing between a motor home and a truck parked alongside a
curb. The two people, a female with a walker and a male, later identified as Briceno,
appeared to be close together doing something between the cars. As Williams
approached in his vehicle, Briceno went to the sidewalk and started walking away.
Williams believed there was suspicious, and possibly criminal, activity going on based on
the way the individuals were standing and the way Briceno tried to evade him.
Williams exited his vehicle, walked toward the female and then made his way
between the motor home and the truck to the curb to see what Briceno was doing. He
saw Briceno bending over near the truck as if he were trying to conceal something or get
something concealed in the truck. Williams observed a paper bag near an electrical box
with a glass bottle inside and thought Briceno was trying to hide what appeared to be an
alcoholic beverage. This was significant because Williams wanted to determine if
Briceno had an open container, which would be an infraction.
When Williams asked Briceno to come over to talk, Briceno responded by saying
he was not a "Fourth waiver" so the officer could not do anything, but Briceno offered to
give Williams his identification. This was significant to Williams because people who
have knowledge of a waiver of the Fourth Amendment right usually have been on
probation or parole.2
2 A Fourth Amendment waiver is typically a condition of release on parole and means a parolee may have their person or property searched by a parole agent or any law enforcement agent without their permission. Briceno actually was on parole at the time of this incident and had a Fourth waiver as a condition of his release. 3 Briceno appeared animated and agitated; he walked back and forth, without
getting too close to Williams. Williams tried to direct Briceno toward the front of the
truck. Briceno did not follow anything Williams asked him to do and was looking
around. Based on Briceno's demeanor, Williams thought there could be narcotics or a
weapon in the area. Briceno fumbled for his identification card, but it appeared he was
trying to distract Williams. Briceno then suddenly ran between the motor home and the
truck and down the street. Williams pursued him.
During the pursuit, Williams grabbed Briceno, but Briceno turned and broke free
of Williams's grasp. Williams lost his footing and fell to the ground. Williams injured
his hand in the fall and tore off a nail. Williams's two spare ammunition magazines and
his radio fell out of his holster as a result of the fall. Williams got up and continued to
pursue Briceno past a trolley station with his radio dragging behind him. Williams
reported information about the foot pursuit to other officers on his team.
Williams eventually caught up with Briceno and again grabbed him by the back of
his shirt. When they stopped running Briceno turned toward Williams. Briceno had his
fists clenched and positioned near his chest. Williams thought this was an aggressive
stance and took Briceno to the ground. Briceno continued to fight and move around
while Williams pinned him on the ground with Williams's knee on Briceno's lower back.
Briceno's hands were underneath him when he fell, but he moved them down toward the
waistband area of his pants as though he were reaching for something.
4 Although Williams told him to stop, Briceno continued to struggle and reach
toward his waistband. Williams struck Briceno on the side of the head. He was then able
to get Briceno's hands behind his back and place him in handcuffs.
As they were walking back toward the trolley station, other officers arrived and
Williams placed Briceno on a curb. Other officers stayed with Briceno while Williams
recovered the items he dropped during the pursuit.
Briceno complained of pain and said he was going to faint. He also said he had
asthma. Medics cleared him at the scene, but officer Chris Cummings transported him to
the hospital because Briceno refused to talk to them and laid slouched over onto the
concrete.
When Briceno refused to get up from the curb, another officer applied a pain
compliance technique known as a pressure point underneath Briceno's nose while
Cummings pulled him up. Briceno rode to the hospital hunched over and slumped at the
neck, acting like he was unconscious.
When they arrived at the hospital, Cummings opened the door and asked Briceno
if he could get out of the car. Briceno did not respond. Cummings then said, "Get out of
the car." Briceno turned toward Cummings with eyes wide open and said, "What are you
going to do about it, motherf---er?"
Cummings reached into the car with his left hand and grabbed Briceno's
sweatshirt. When Briceno resisted, Cummings applied a pressure point under the nostril
with his left hand. Briceno pulled his head away and immediately moved it forward
toward Cummings's hand in a head-butting or striking motion with his face. The
5 movement caused Cummings concern because he did not want his fingers bitten. He
could not see if Briceno was trying to bite him or strike him with his head. Cummings
pulled his hand away from Briceno's face, applied pressure under the jawbone, and pulled
Briceno from the car.
Once out of the car, Cummings released the pressure point and grabbed Briceno
by the right arm to walk him into the hospital. Briceno swung his right arm and body
away so he was facing Cummings. Cummings, concerned Briceno would spit or head-
butt him, grabbed Briceno's right arm while another officer grabbed his left arm to turn
Briceno away from them as they guided him into the hospital.3
After Briceno was medically cleared at the hospital, Cummings transported him to
the county jail. Briceno, knowing he was going to jail, became very angry and began
cursing and threatening Cummings.
During the first stage of booking, where they were taking Briceno's picture and
processing paperwork before going to the nurse's station, Briceno threatened Cummings.
He said in an enraged manner, "Take these handcuffs off and I'll beat your f---in' ass."
This concerned Cummings because, once they get to the third stage of booking, where
they take the suspect into a holding cell and transfer custody to the Sheriff's Department,
he and his partner would be alone with Briceno without their weapons belt. Cummings
told Briceno if he were to fight them it would not end well for him. Briceno responded
3 During the medical examination, a folding knife fell from Briceno's waistband. It was three inches closed and had a hook blade. As a condition of his parole, Briceno was not allowed to have a knife with a blade over two and a half inches long. 6 by saying, "I can't wait to f--- you up." He wanted to fight Cummings specifically, not
Cummings's partner because Cummings's partner was a female. Briceno did not carry
out his threats.
Briceno was charged with two counts of resisting an executive officer with force
or violence (§ 69; counts 1 & 3), one count of battery on a peace officer with injury
(§ 243, subd. (c)(2); count 2), and one count of making threats to a public officer (§ 71;
count 4).
At the conclusion of the People's case, the court granted Briceno's motion for
acquittal under section 1118.1 as to count 2 for battery on a peace officer with injury
(§ 243, subd. (c)(2)) related to officer Williams. When the jury could not reach a verdict
regarding count 1, resisting an executive officer (§ 69), for conduct related to officer
Williams, the court declared a mistrial as to that count.
With respect to conduct related to officer Cummings, the jury found Briceno
guilty of count 3, resisting an executive officer (§ 69), but not guilty of count 4,
threatening a public officer (§ 71). Briceno admitted three prison priors (§§ 667.5, subd.
(b), 668) and one strike prior under the three strikes law (§§ 667, subds. (b)-(i), 668,
1170.12). The court found these allegations to be true.
7 B
Case No. SCD253167
In November 2013, while Briceno was in custody at San Diego Central Jail, a
deputy for the San Diego Sheriff's Department found a razor blade, with tape on one side,
on the desk under some papers in the cell Briceno shared with two other inmates. The
papers, most of which were blank, did not indicate who possessed the razor blade.
The deputy determined who was assigned to the cell and, after admonishing them
of their rights, questioned the inmates separately about the razor blade. Briceno admitted
the razor blade belonged to him. He said he peeled it off a razor three weeks earlier.4
Briceno was charged with possession of a sharp instrument while confined in a
penal institution in violation of section 4502, subdivision (a). Briceno waived his right to
be present during the jury trial on this case. The court admonished the jury not to
consider or discuss Briceno's absence from trial in deliberations.
During jury deliberations, one of the jurors sent the court a letter stating she could
not return due to a medical condition caused by the stress of deliberations. The juror also
contended there was misconduct by the other jurors, which we discuss further in section
II.B., post. The court excused the juror and, after conducting individual voir dire with
4 Disposable razors are provided on the night shift and then are typically collected and checked approximately an hour later.
8 certain members of the jury, denied the defense motion for a mistrial. The reconstituted
jury found Briceno guilty as charged.
Briceno waived his presence at the bifurcated trial regarding his priors. The court
found true allegations Briceno had three prior prison convictions (§§ 667.5, subd. (b),
668) and one prior strike (§§ 667, subds. (b)-(i), 668, 1170.12).
C
Sentencing
The court granted Briceno's Romero5 motion to strike the prior strike for the case
regarding resisting an executive officer (SCD250988). The court denied the Romero
motion for the case regarding possession of a sharp instrument while in a penal institution
(SCD253167).
The court sentenced Briceno to the middle term of three years for case No.
SCD253167, doubled to six years due to the strike prior with consecutive one-year terms
for each of the three prison priors for a total of nine years. The court imposed a
consecutive sentence of one-third the middle term, or 8 months, for case No. SCD250988
and struck the punishment for the prison priors in that case.
5 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). 9 DISCUSSION
I
Sufficiency of the Evidence for Violation of Section 69
Briceno contends there was insufficient evidence in case No. SCD250988 to
support the jury's guilty verdict for trying to prevent officer Cummings from performing
his duties by violence or threat of violence (count 3). We disagree.
In evaluating a sufficiency of the evidence claim, " 'we review the whole record to
determine whether any rational trier of fact could have found the essential elements of the
crime … beyond a reasonable doubt. [Citation.] The record must disclose substantial
evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citation.] In applying this test, we review the evidence in the light
most favorable to the prosecution and presume in support of the judgment the existence
of every fact the jury could reasonably have deduced from the evidence. [Citation.]
"Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the
reversal of a judgment, for it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.] We resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence. [Citation.]" [Citation.] A reversal for
insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever
is there sufficient substantial evidence to support' " the jury's verdict.' " (People v.
Manibusan (2013) 58 Cal.4th 40, 87.)
10 Section 69 makes it an offense to "attempt[], by means of any threat or violence, to
deter or prevent an executive officer from performing any duty imposed upon such
officer by law" or by "knowingly resist[ing], by the use of force or violence, such officer,
in the performance of his duty." (§ 69.) "The statute sets forth two separate ways in
which an offense can be committed. The first is attempting by threats or violence to deter
or prevent an officer from performing a duty imposed by law; the second is resisting by
force or violence an officer in the performance of his or her duty." (In re Manuel
G. (1997) 16 Cal.4th 805, 814.)
The jury in this case was instructed regarding the first type of offense for count 3,
trying to prevent or deter an executive officer from performing a duty. This type of
offense requires specific intent to interfere with an executive officer's performance of his
or her duties. (People v. Nishi (2012) 207 Cal.App.4th 954, 967.) It can be established
by a threat without physical force. (In re Manuel G., supra, 16 Cal.4th at p. 814.) There
is no requirement the victim took the threat seriously or the defendant had the present
ability to carry out the threat. (People v. Hamilton (2009) 45 Cal.4th 863, 936.)
Here, Briceno was uncooperative from the start of his encounter with officer
Cummings, who was charged with taking Briceno into custody and transporting him to
jail. Briceno acted as though he were unconscious when Cummings initially asked him
to get out of the car. Briceno argues on appeal his demeanor in the car was due to pain
and shortness of breath. However, Briceno had just refused evaluation and treatment by
paramedics. Additionally, when Cummings directed Briceno to get out of the car at the
11 hospital, Briceno looked him in the eye and said, "What are you going to do about it,
motherf----r?"
Briceno resisted when Cummings attempted to move Briceno out of the car.
When Cummings applied a pain compliance technique, Briceno quickly moved his head
backward and then forward six or seven inches in such a manner Cummings was
concerned Briceno was going to bite or head-butt him. After Cummings got Briceno out
of the car, Briceno turned his body in a threatening manner to face Cummings, causing
Cummings to be concerned Briceno was going to spit or head-butt him. When they
arrived at the jail, Briceno continued to make threatening statements to Cummings.
Briceno told Cummings he was going to "beat your f---in' ass" when Cummings took off
the handcuffs.
A reasonable jury could have found Briceno guilty beyond a reasonable doubt,
based on the combination of Briceno's refusal to follow orders, physical resistance, and
violent threats toward Cummings (both physical and verbal), which were intended to
deter Cummings from performing his duties. The fact Briceno did not actually follow
through on the threats is of no consequence. (People v. Iboa (2012) 207 Cal.App.4th
111, 118 [threatening statements combined with threatening physical behavior constituted
a threat of violence prohibited by section 69].) Thus, there was substantial evidence to
support the jury's guilty verdict for violation of section 69.
12 II
No Prejudicial Juror Misconduct
Briceno contends he was deprived of his constitutional right to a fair trial by an
impartial jury in case No. SCD253167 and the court erred in denying his motion for a
mistrial based on juror misconduct. We are not persuaded.
"A criminal defendant has a constitutional right to trial by an impartial and
unbiased jury. [Citation.] A deprivation of that right occurs even if only one juror is
biased. [Citations.] [¶] A juror's misconduct … generally raises a rebuttable presumption
that the defendant was prejudiced and may establish juror bias." (People v.
Merriman (2014) 60 Cal.4th 1, 95.) However, "the presumption of prejudice is rebutted,
and the verdict will not be disturbed, if a reviewing court concludes after considering the
entire record, including the nature of the misconduct and its surrounding circumstances,
that there is no substantial likelihood that the juror in question was actually biased against
the defendant. [Citations.] Our inquiry in this regard is a 'mixed question of law and fact'
subject to independent appellate review. [Citation.] But ' "[w]e accept the trial court's
credibility determinations and findings on questions of historical fact if supported by
substantial evidence." ' " (Id. at pp. 95-96.)
" '[A] mistrial should be granted if the court is apprised of prejudice that it judges
incurable by admonition or instruction. [Citation.] Whether a particular incident is
incurably prejudicial is by its nature a speculative matter, and the trial court is vested with
13 considerable discretion in ruling on mistrial motions.' " (People v. Jenkins (2000) 22
Cal.4th 900, 985-986.)
B
The trial regarding the possession of the razor blade in a penal institution consisted
of the testimony of one witness, which lasted less than an hour, the receipt of exhibits,
arguments by counsel and instructions by the court. The jury retired for deliberation at
3:13 p.m. on a Friday afternoon and was excused for the day at 4:30 p.m. At the
conclusion of the day, the jury submitted a note asking, "By Law, does the admonishment
need to be signed? i.e., does the defendant need to sign anything[?] [¶] By Law, does the
confession need to be signed? [¶] By Law, is there a requirement for interviews to be
audio or video recorded?" As the jurors were leaving, one juror approached the bailiff
and indicated another juror had lied during jury selection because the other juror was
anti-law enforcement and was refusing to participate in deliberations.
The following Monday, the courtroom clerk received a voice mail from the son of
Juror No. 12 (Juror 12) stating his mother was in the hospital and would not be able to
continue serving on the jury. He also delivered a nine-page letter from Juror 12 stating
she was in the hospital due to a chest pain and respiratory distress as a result of the jury
deliberations. The letter indicated it was dictated to an "urgent care triage nurse."
The letter asserted several members of the jury talked about the case during a
lunch break prior to deliberations. Once deliberations began, a number of jurors
expressed their belief Briceno was guilty and, in heated discussions, bullied and
14 threatened others who believed differently, including this juror. The letter also stated
Briceno's absence from trial was mentioned in deliberations.
The court's inclination was to excuse the juror because of her medical or emotional
condition, but it did not believe misconduct had occurred, just heated exchanges between
jurors. Defense counsel argued the court should inquire regarding misconduct based on
the alleged discussions outside the jury room and statements about Briceno's absence
from trial.
The court attempted to contact Juror 12 at defense counsel's request, but received
no answer. The courtroom clerk spoke to a nurse at the urgent care facility where the
juror indicated she received treatment and was told they had no record of treating anyone
with the juror's name.
The court denied a request to sequester the jurors from each other, but did conduct
individual voir dire with each of the jurors. One juror overheard a remark by another
juror to the effect of "So much for not discussing the case." The juror later learned
someone made a comment about the bailiff's job, but not the substance of the case. Three
jurors indicated Briceno's absence from trial was mentioned, but other members of the
jury quickly pointed out it should not be part of their deliberations. One juror stated it
was Juror 12 who brought up Briceno's absence and indicated it "matters."
Several jurors expressed concern about Juror 12 and believed she was not truthful
during voir dire about her feelings of distrust of law enforcement. One juror reported
Juror 12 planned to do outside research. Juror 12 was described as disrespectful,
15 interrupting people and in "combat mode" from the time she walked into the deliberation
room.
After interviewing the jurors, the court denied the defense motion for a mistrial on
the basis the jury was tainted. The court stated, "I think just the opposite, frankly. I think
her credibility, [Juror 12], … I think it's reasonable for the [c]ourt to have serious doubts
about her credibility, frankly. I think she has grossly overreacted and we're not even
sure—we can't even verify that in fact she is in the hospital." The court noted Briceno's
absence may have been mentioned in passing, most likely by Juror 12, but other jurors
quickly stopped the discussion.
Based on this record, we accept the finding of the trial court regarding the
credibility of Juror 12 and conclude the trial court did not abuse its discretion in denying
the motion for mistrial. Even if the brief mention of Briceno's absence from the trial was
misconduct, we cannot conclude it was prejudicial. " 'Transitory comments' " about
failure to testify, or in this case to be present for trial, " 'are normally innocuous,
particularly when a comment stands alone without any further discussion.' " (People v.
Avila (2009) 46 Cal.4th 680, 727.) Similarly, a brief predeliberation discussion about the
bailiff's duties, does not suggest bias or prejudicial misconduct.
We are also not persuaded the negative atmosphere in the jury room, if there was
one, supports a finding of bias. Heated deliberations do not constitute prejudicial
misconduct. (People v. Keenan (1988) 46 Cal.3d 478, 541.)
16 " '[T]he criminal justice system must not be rendered impotent in quest of an ever-
elusive perfection. The jury system is fundamentally human, which is both a strength and
a weakness. [Citation.] Jurors are not automatons. They are imbued with human
frailties as well as virtues. If the system is to function at all, we must tolerate a certain
amount of imperfection short of actual bias. To demand theoretical perfection from every
juror during the course of a trial is unrealistic.' " (People v. Danks (2004) 32 Cal.4th 269,
304.) There is no evidence of prejudicial misconduct in this case and the court did not
abuse its discretion in denying the defense motion for a mistrial.
III
Briceno's final contention is the court abused its discretion in denying his Romero
motion to strike his prior strike conviction when sentencing him for case No.
SCD253167, which he contends resulted in a disproportionately lengthy sentence for
conduct he characterizes as de minimis. We do not agree.
Section 1385, subdivision (a), permits a trial court to "strike factual allegations
relevant to sentencing, such as the allegation that a defendant has prior felony
convictions." (Romero, supra, 13 Cal.4th at p. 504.) However, " 'the [t]hree [s]trikes law
does not offer a discretionary sentencing choice, as do other sentencing laws, but
establishes a sentencing requirement to be applied in every case where the defendant has
at least one qualifying strike, unless the sentencing court "conclud[es] that an exception
to the scheme should be made because, for articulable reasons which can withstand
scrutiny for abuse, this defendant should be treated as though he actually fell outside the
17 [t]hree [s]trikes scheme." ' " (People v. Carmony (2004) 33 Cal.4th 367, 377.) "[T]he
three strikes law not only establishes a sentencing norm, it carefully circumscribes the
trial court's power to depart from this norm and requires the court to explicitly justify its
decision to do so." (Id. at p. 378.)
In exercising its discretion, the court "must consider whether, in light of the nature
and circumstances of his present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme's spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted of one or more serious
and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) "[A] trial
court does not abuse its discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it." (People v. Carmony, supra, 33 Cal.4th at p. 377.)
In this case, the court considered the nature of the felony for which he was being
sentenced along with Briceno's criminal history. Briceno had a juvenile record starting
with a robbery at knifepoint when he was 17 years old. His adult felony criminal history
began when he turned 18 years old and included convictions for possession of 120
pounds of marijuana for sale at the Otay Mesa Port of Entry from Mexico, burglary,
possession of a stolen vehicle, drug offenses, evading or resisting police, and numerous
parole violations. The court noted a "pattern of ongoing criminality and an inherent
disregard for the authority of police and the [c]ourt" and "[p]rior performance on parole
was unsatisfactory."
18 Considering these circumstances, the court stated Briceno did not fall outside the
intended scope of the three strikes legislation. The court indicated Briceno's possession
of a razor blade in a custody facility was similar to strict liability. Even if he possessed it
for a nondangerous purpose, its presence had the "potential for great disastrous
consequences" in a cell with other inmates.
The court noted Briceno had been shown leniency in prior cases, in which the
strike was stricken, but he had not been willing to comply with parole terms and
conditions. The court explained the purpose of the three strikes legislation is to punish
recidivism (§ 667, subd. (b)) and Briceno's repeated criminality, affinity with weapons,
and a disregard of basic rules does not support an exception to the legislative purpose.
The court stated, "At this stage in his life in his criminality, there are no minor criminal
offenses." Based on this record, we find no abuse of discretion.
DISPOSITION
The judgments are affirmed. The trial court is directed to amend the abstract of
judgment with regard to case No. SCD253167 to indicate (1) Briceno was convicted of
possession of a "sharp instrument" as opposed to a deadly weapon in jail in violation of
section 4502, subdivision (a); and (2) the date of conviction for this count was
May 12, 2014, as opposed to April 25, 2014. The court is also directed to forward a
19 certified copy of the amended abstract of judgment to the Department of Corrections and
Rehabilitation.
MCCONNELL, P. J.
WE CONCUR:
MCDONALD, J.
AARON, J.