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People v. Clavano9/8/2005
INTRODUCTION
Two brothers, defendants Amando Clavano and Oliver Clavano, were tried before the same jury and were convicted of the first degree murder of James Townsend. (Pen. Code, § 187, subd. (a).) The jury also found that Oliver personally used and discharged a firearm in the commission of the murder (§ 12022.53, subd. (b)-(d)) and that Amando knew that a principal was armed with a firearm (§ 12022, subd. (d)). Oliver was sentenced to 60 years to life. Amando was sentenced to 28 years to life.
Defendants appeal. Together, they contend that the trial court improperly coerced the jury to reach a verdict by asking them how many voted for conviction and acquittal, before ordering the jury to resume deliberations. Approximately one hour later, the jury returned the guilty verdicts and true findings. Defendants further contend that the trial court erroneously denied their posttrial motion to release juror identifying information so that defendants could investigate whether juror misconduct occurred after the jurors resumed deliberations. They argue that they established good cause for the disclosure, based on the trial court's inquiry concerning how the jurors had voted and one juror's statement that the jurors felt "spanked" by the trial court and told to "get going" after the jury initially failed to reach a verdict. We reject these claims. We conclude that the trial court did not coerce the jury to reach a verdict, and properly denied defendants' motion for disclosure of juror identifying information. There was no evidence of coercion, nor was there any preliminary showing of juror misconduct sufficient to support disclosure of the juror identifying information.
Amando further contends that the trial court's admission of custodial statements by Oliver during a police interrogation violated Amando's Sixth Amendment right to confrontation under Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] (Crawford), because the statements were testimonial. The People concede, and we agree, that Oliver's statements were testimonial. The People argue, however, that the admission of Oliver's statements did not violate Crawford because the statements were not admitted for their truth but for the non-hearsay purpose of proving Oliver's state of mind. We reject the People's argument, because Oliver's statements were admitted for their truth. We further conclude, however, that the erroneous admission of Oliver's statements was harmless beyond a reasonable doubt.
Amando also contends that the trial court's imposition of the upper term of three years on his section 12022, subdivision (d), firearm enhancement violated his right to a jury trial under Blakely v. Washington (2004) ___ U.S. ___ [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely). We reject this claim, based on the state Supreme Court's recent decision in People v. Black (2005) 35 Cal.4th 1238. There, the high court held that judicial factfinding necessary to support imposing an upper term does not violate a defendant's right to a jury trial. (Id. at p. 1244.)
Lastly, Oliver contends that the trial court erroneously failed to stay his 10-year, section 12022.53, subdivision (b), enhancement. We agree. Accordingly, we stay the 10-year term imposed on the enhancement. In all other respects, we affirm the judgments.
FACTS
On May 17, 2001, Jennifer Avila was living in an apartment at 283 North Spruce Street in Rialto. Between approximately 9:00 and 10:00 p.m., Avila's boyfriend, James Townsend, and his friend, Robert Munoz, were in a front bedroom listening to music. Avila was in the living room talking on the phone. Avila heard a knock on the door and saw a man
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