Filed 3/23/15 P. v. Davis CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D065409
Plaintiff and Respondent,
v. (Super. Ct. No. JCF26055)
RICHARD EDWARD DAVIS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, Poli Flores,
Jr., Judge. Affirmed as modified.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Peter Quon, Jr., and Susan Miller, Deputy Attorneys General, for Plaintiff and
Respondent. A jury convicted Richard Davis of first degree murder (Pen. Code, § 187, subd.
(a)),1 and conspiracy to commit murder (§ 182, subd. (a)(1)), and found true the
allegation that he personally used a firearm in committing the murder within the meaning
of sections 12022.53, subdivision (d), 12022.5, subdivision (a) and 12022, subdivision
(a)(1). In a bifurcated proceeding, the court found true three prior strike conviction
allegations. The court imposed a sentence of 100 years to life. On appeal, Davis argues
the court abused its discretion when it denied his motion to dismiss the jury panel based
on the taint to the entire panel caused when a juror revealed during voir dire allegedly
prejudicial information about Davis.2
FACTS
The victim, Stephen Cooke, was the boyfriend of Ann Polson. Davis worked for
Cooke. Cooke and Polson lived in a camper-trailer in "Slab City" in Imperial County,
and Davis lived in a camper-trailer about 75 feet from them.
On September 19, 2010, around 10:30 p.m., Davis and Polson called 911 and
reported Cooke had been shot. Imperial County Deputy Sheriff Lopez responded to the
call. When Lopez arrived, he found Davis and Polson outside Cooke's trailer; Davis was
calm but Polson was hysterical. Davis told Lopez Cooke had been shot. Lopez went
inside and found Cooke sitting in a chair in a television area; he had a bullet hole in the
1 All further statutory references are to the Penal Code unless otherwise specified.
2 Davis also contends, and the People concede, Davis was entitled to one extra day of custody credit, and we agree with that contention. Davis also contends, and the People concede, the abstract of judgment must be amended to delete the firearm enhancements associated with the conspiracy conviction, and we agree with that contention. Accordingly, we order the abstract of judgment corrected to reflect these facts. 2 back of his head. Cooke was still holding a playstation controller in his hands (connected
to a television that was still on) and was wearing a gun.
Davis told Lopez that he had been with Cooke and Polson earlier that evening but
had left around 10:00 p.m. to go back to his trailer. He told Lopez he heard a shot about
15 minutes later, looked outside and saw someone running, and heard Polson screaming,
so he ran to Cooke's trailer. He found the body and, when Polson was unable to call 911,
he did so. He also told Lopez that Cooke had been acting weird and paranoid that day
and was carrying a gun.
Sergeant Erro reinterviewed Davis the following morning at the police department
and Davis initially repeated the same story with a calm demeanor. However, after Erro
said he had spoken with Polson and that she had been very truthful with him, Davis's
demeanor changed and he stated "the truth is last night I did it. I guess I'm going to jail."
Davis told Erro that after watching television with Cooke, he returned to his trailer and
prayed to God about what to do. He decided to kill Cooke and therefore got his (Davis's)
gun, cocked it, and walked back to Cooke's trailer. He shot Cooke and then ran back to
his trailer. When he heard Polson screaming, he ran back to Cooke's trailer, and called
911. Davis gave the gun (a .22 caliber handgun) to Polson, who buried it.3 Polson also
washed Davis's hands with bleach.
Davis had several prior conversations with Polson about killing Cooke, and she
knew Davis was going to kill Cooke. The morning of the murder, he told Polson
"tonight's the night." Davis told police Cooke physically abused Polson, including biting
3 Polson later pointed out the location of the gun to police. 3 her on several occasions, and also stated Cooke was verbally abusive and treated them
"like slaves."
Police found an expended .22 caliber casing underneath the chair where Cooke
was shot. Police also found a half-empty bottle of bleach about 100 feet from Cooke's
body.
The defense presented no evidence. Defense counsel argued Davis was guilty
only of manslaughter because he genuinely but unreasonably believed Polson's life was
in imminent danger, he had to use deadly force to protect her and there was no
conspiracy.
ANALYSIS
The Trial Court Did Not Abuse Its Discretion in Denying Davis's Motion to
Dismiss the Entire Jury Panel
Davis argues the court abused its discretion when it denied his motion to dismiss
the entire jury panel because the panel heard inflammatory statements by a potential juror
during voir dire, which precluded him from obtaining an impartial jury.
Background
During voir dire, prospective juror Tumamao revealed she worked as a corrections
clerk at the Imperial County Jail. She stated she worked inside the jail, and "I work in
where they book them in. I work with their money, I do the intake. I do when they are
getting released, when they're sentenced, when they're housed, go through their mail."
She later told the court she had a brother-in-law who was a police officer and a cousin
incarcerated in the county jail. When asked if there was anything that might cause her
4 not to be fair, she stated, "It's just that I do see the defendant all the time. . . . [¶] . . . [¶]
The first day of jury selection, I was the one who opened the door and let him in." When
the court asked whether she recognized Davis, she stated, "Yes, I do." The court then
asked if she had spoken to Davis, and she stated, "I don't. I talk to his attorney, though,
when he comes to the window all the time." The court followed up by asking "So,
[defense counsel] has other clients around[?]" and she responded, "Yes." She also told
the court she helped arrange for attorney-client visits at the jail. These statements were
made in the presence of the panel being selected for Davis's trial.
A few minutes later, out of the presence of the jury panel, defense counsel moved
to dismiss the entire panel. Defense counsel argued he had asked that Davis be dressed in
civilian clothes in an effort to avoid the taint that could accompany the jury's knowledge
Davis was an inmate, and prospective juror Tumamao's statements that Davis was
currently an inmate undermined the effort to avoid that taint. The prosecutor argued
prospective juror Tumamao's statements were very indirect, because those statements did
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Filed 3/23/15 P. v. Davis 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, D065409
Plaintiff and Respondent,
v. (Super. Ct. No. JCF26055)
RICHARD EDWARD DAVIS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, Poli Flores,
Jr., Judge. Affirmed as modified.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Peter Quon, Jr., and Susan Miller, Deputy Attorneys General, for Plaintiff and
Respondent. A jury convicted Richard Davis of first degree murder (Pen. Code, § 187, subd.
(a)),1 and conspiracy to commit murder (§ 182, subd. (a)(1)), and found true the
allegation that he personally used a firearm in committing the murder within the meaning
of sections 12022.53, subdivision (d), 12022.5, subdivision (a) and 12022, subdivision
(a)(1). In a bifurcated proceeding, the court found true three prior strike conviction
allegations. The court imposed a sentence of 100 years to life. On appeal, Davis argues
the court abused its discretion when it denied his motion to dismiss the jury panel based
on the taint to the entire panel caused when a juror revealed during voir dire allegedly
prejudicial information about Davis.2
FACTS
The victim, Stephen Cooke, was the boyfriend of Ann Polson. Davis worked for
Cooke. Cooke and Polson lived in a camper-trailer in "Slab City" in Imperial County,
and Davis lived in a camper-trailer about 75 feet from them.
On September 19, 2010, around 10:30 p.m., Davis and Polson called 911 and
reported Cooke had been shot. Imperial County Deputy Sheriff Lopez responded to the
call. When Lopez arrived, he found Davis and Polson outside Cooke's trailer; Davis was
calm but Polson was hysterical. Davis told Lopez Cooke had been shot. Lopez went
inside and found Cooke sitting in a chair in a television area; he had a bullet hole in the
1 All further statutory references are to the Penal Code unless otherwise specified.
2 Davis also contends, and the People concede, Davis was entitled to one extra day of custody credit, and we agree with that contention. Davis also contends, and the People concede, the abstract of judgment must be amended to delete the firearm enhancements associated with the conspiracy conviction, and we agree with that contention. Accordingly, we order the abstract of judgment corrected to reflect these facts. 2 back of his head. Cooke was still holding a playstation controller in his hands (connected
to a television that was still on) and was wearing a gun.
Davis told Lopez that he had been with Cooke and Polson earlier that evening but
had left around 10:00 p.m. to go back to his trailer. He told Lopez he heard a shot about
15 minutes later, looked outside and saw someone running, and heard Polson screaming,
so he ran to Cooke's trailer. He found the body and, when Polson was unable to call 911,
he did so. He also told Lopez that Cooke had been acting weird and paranoid that day
and was carrying a gun.
Sergeant Erro reinterviewed Davis the following morning at the police department
and Davis initially repeated the same story with a calm demeanor. However, after Erro
said he had spoken with Polson and that she had been very truthful with him, Davis's
demeanor changed and he stated "the truth is last night I did it. I guess I'm going to jail."
Davis told Erro that after watching television with Cooke, he returned to his trailer and
prayed to God about what to do. He decided to kill Cooke and therefore got his (Davis's)
gun, cocked it, and walked back to Cooke's trailer. He shot Cooke and then ran back to
his trailer. When he heard Polson screaming, he ran back to Cooke's trailer, and called
911. Davis gave the gun (a .22 caliber handgun) to Polson, who buried it.3 Polson also
washed Davis's hands with bleach.
Davis had several prior conversations with Polson about killing Cooke, and she
knew Davis was going to kill Cooke. The morning of the murder, he told Polson
"tonight's the night." Davis told police Cooke physically abused Polson, including biting
3 Polson later pointed out the location of the gun to police. 3 her on several occasions, and also stated Cooke was verbally abusive and treated them
"like slaves."
Police found an expended .22 caliber casing underneath the chair where Cooke
was shot. Police also found a half-empty bottle of bleach about 100 feet from Cooke's
body.
The defense presented no evidence. Defense counsel argued Davis was guilty
only of manslaughter because he genuinely but unreasonably believed Polson's life was
in imminent danger, he had to use deadly force to protect her and there was no
conspiracy.
ANALYSIS
The Trial Court Did Not Abuse Its Discretion in Denying Davis's Motion to
Dismiss the Entire Jury Panel
Davis argues the court abused its discretion when it denied his motion to dismiss
the entire jury panel because the panel heard inflammatory statements by a potential juror
during voir dire, which precluded him from obtaining an impartial jury.
Background
During voir dire, prospective juror Tumamao revealed she worked as a corrections
clerk at the Imperial County Jail. She stated she worked inside the jail, and "I work in
where they book them in. I work with their money, I do the intake. I do when they are
getting released, when they're sentenced, when they're housed, go through their mail."
She later told the court she had a brother-in-law who was a police officer and a cousin
incarcerated in the county jail. When asked if there was anything that might cause her
4 not to be fair, she stated, "It's just that I do see the defendant all the time. . . . [¶] . . . [¶]
The first day of jury selection, I was the one who opened the door and let him in." When
the court asked whether she recognized Davis, she stated, "Yes, I do." The court then
asked if she had spoken to Davis, and she stated, "I don't. I talk to his attorney, though,
when he comes to the window all the time." The court followed up by asking "So,
[defense counsel] has other clients around[?]" and she responded, "Yes." She also told
the court she helped arrange for attorney-client visits at the jail. These statements were
made in the presence of the panel being selected for Davis's trial.
A few minutes later, out of the presence of the jury panel, defense counsel moved
to dismiss the entire panel. Defense counsel argued he had asked that Davis be dressed in
civilian clothes in an effort to avoid the taint that could accompany the jury's knowledge
Davis was an inmate, and prospective juror Tumamao's statements that Davis was
currently an inmate undermined the effort to avoid that taint. The prosecutor argued
prospective juror Tumamao's statements were very indirect, because those statements did
not directly state Davis was currently incarcerated, nor did she state she saw defense
counsel visiting Davis while he was incarcerated, and therefore any conclusion as to
Davis's current custodial status would require inferences. The court agreed prospective
juror Tumamao's statements would permit an inference she had encountered Davis while
he was in custody, but the court concluded it did not believe that inference would be
enough to undermine the integrity of the process or taint the other jurors' minds to the
point the impartiality of the other jurors would be undermined. The court denied the
defense motion and resumed voir dire.
5 Applicable Law
A defendant is entitled to a fair trial by a panel of impartial jurors. (In re
Hitchings (1993) 6 Cal.4th 97, 110. When a prospective juror makes arguably
inflammatory remarks during voir dire, it is within the discretion of the trial court to grant
or deny a motion to dismiss an entire jury panel based on comments made by a
prospective juror that allegedly exposed the jury panel to bias or prejudice, and we may
not reverse that determination unless we can conclude the court abused its discretion
(People v. Nguyen (1994) 23 Cal.App.4th 32, 41-42), because "the trial judge is in a
better position to gauge the level of bias and prejudice created by juror comments [during
voir dire]." (People v. Martinez (1991) 228 Cal.App.3d 1456, 1466.) Dismissing an
entire panel is a "drastic remedy [not] appropriate as a matter of course merely because a
few prospective jurors have made inflammatory remarks. Unquestionably, further
investigation and more probing voir dire examination may be called for in such
situations, but discharging the entire venire is a remedy that should be reserved for the
most serious occasions of demonstrated bias or prejudice, where interrogation and
removal of the offending venirepersons would be insufficient protection for the
defendant." (People v. Medina (1990) 51 Cal.3d 870, 889.)
Davis argues the trial court abused its discretion because the comments revealed
his custodial status and this prejudicial fact, like the analogous prejudicial taint of
requiring a defendant to wear jail clothing during trial (People v. Taylor (1982) 31 Cal.3d
488, 494-495), undercut the presumption of innocence by creating an unacceptable risk
6 that the jury would impermissibly consider this factor rather than basing its decision
solely on the evidence adduced at trial. We are not persuaded. Prospective juror
Tumamao's statements were isolated and made in passing, and showed at most that Davis
was in custody for some undefined duration or reason. Unlike the concerns articulated by
Taylor, at page 494, which observed that jail clothing worn during the course of a trial "is
a constant reminder to the jury that the defendant is in custody" "which distracts the jury
from attention to permissible factors relating to guilt . . . [and] only serves to brand the
defendant as someone less worthy of respect and credibility than others in the
courtroom," prospective juror Tumamao's statements were isolated and, moreover,
occurred during voir dire rather than during trial. In People v. Valdez (2004) 32 Cal.4th
73, 121, the court distinguished evidence tending to show a defendant was incarcerated
from a defendant compelled to wear jailhouse clothing, explaining:
"The cases relied upon by defendant merely hold that a defendant may not be compelled to wear prison clothing during his or her trial. The reason, as correctly pointed out by defendant, is that such clothing serves as 'a constant reminder' that the defendant is in custody. [Citation.] But this rule has nothing to do with the facts of this case. Prison clothing reminds the jury of the defendant's custodial status, but at the same time has absolutely no probative value with respect to the merits of the case. Here, the escape evidence was probative of defendant's consciousness of guilt relating to the murder and did not serve as 'a constant reminder' of defendant's custodial status. Moreover, the mere fact that the jury is made aware of a defendant's custodial status does not deprive the defendant of his constitutional rights. As we pointed out in People v. Bradford (1997) 15 Cal.4th 1229 . . . 'in certain circumstances a jury inevitably will learn a defendant is in custody for the current charged offense, for example where the jury is presented with the testimony of a jailhouse informant.' [(Bradford, supra, at p. 1336.)]" (Italics added.)
7 We are satisfied that the isolated comment by prospective juror Tumamao, which
revealed at most the rather unremarkable fact that Davis was in custody for some
undefined duration or reason, did not compel the drastic remedy of dismissing the entire
panel. Because the potentially tainted venireperson was dismissed from the panel and the
remaining voir dire provided ample opportunity for Davis to probe for and protect against
any de minimus taint that prospective juror Tumamao's comment might have engendered,
we do not conclude it was an abuse of discretion to deny the motion to discharge the
entire jury panel.
DISPOSITION
The trial court is directed to prepare a modified and corrected abstract of judgment
showing Davis is entitled to 1,228 days of custody credit and to delete the firearm
enhancements associated with the conspiracy conviction, and to forward a certified copy
of the corrected abstract of judgment to the Department of Corrections. As so modified,
the judgment is affirmed.
McDONALD, J.
I CONCUR:
NARES, Acting P. J.
I CONCUR IN THE RESULT:
AARON, J.