Filed 8/11/16




      IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S130659
           v.                        )
                                     )
CRAIGEN LEWIS ARMSTRONG,             )
                                     )                     Los Angeles County
           Defendant and Appellant.  )                   Super. Ct. No. YA049592
____________________________________)


        A jury convicted defendant Craigen Lewis Armstrong of numerous crimes
stemming from three separate, but interrelated, incidents. Specifically, the jury
found defendant guilty of the 2001 first degree murders of Christopher Florence
and his two older brothers, Michael Florence and Torry Florence (Pen. Code,
§ 187, subd. (a)),1 and it found true the multiple-murder special-circumstance
allegations associated with those counts. (§ 190.3, subd. (a)(3).) The jury also
found true the special circumstance allegations (1) that Christopher‟s murder was
committed while defendant was an active participant in a criminal street gang and
was carried out to further the gang‟s activities, and (2) that the murders of Michael
and Torry were committed by means of discharging a firearm from a motor
vehicle. (§ 190.2, subd. (a)(21), (22).) In connection with the three first degree


1      All further statutory references are to the Penal Code unless otherwise
indicated.




                                          1
murders, the jury also found that defendant intentionally discharged a firearm
causing death, for purposes of sentence enhancement pursuant to former section
12022.53, subdivisions (b), (c), and (d).
       Defendant was further convicted of the premeditated attempted murders of
Christopher‟s younger brother Brian Florence and Floyd Watson, a friend of the
Florence family (§§ 187, subd. (a)/664, subd. (a)), and the jury found true the
firearm discharge allegations associated with these crimes. (Former § 12022.53,
subds. (b), (c).)
       The jury found defendant guilty of five additional counts stemming from an
incident involving an attempt to intimidate a former girlfriend, Tyiska Webster, to
whom defendant had admitted shooting the murder victims. In connection with
that incident, defendant was convicted of torture with the infliction of great bodily
injury (§ 205, former § 12022.7), second degree robbery (§ 211), first degree
burglary (§§ 459), assault with a semi-automatic firearm (§ 245, subd. (b)), and
false imprisonment by violence (§ 236). The jury returned a verdict of guilty on a
second count of false imprisonment by violence, this crime involving Webster‟s
three-year-old daughter, C. A. (§ 236).
       Defendant later admitted the allegation that he was on bail at the time he
committed the crimes. (Former § 12022.1.)
       After the penalty phase, the jury returned death verdicts as to all three
murders. Defendant moved for new trial and for modification of his sentence to
life without the possibility of parole. The trial court denied those motions and
sentenced defendant to death.2 This appeal is automatic. (§ 1259.)

2       In sentencing defendant for the noncapital crimes, the court imposed the
midterm of three years for the robbery count consecutive to eight months (one-
third the midterm) for the false imprisonment of Webster‟s daughter, consecutive
                                                           (footnote continued on next page)


                                            2
        During guilt phase deliberations, the trial court discharged a juror for
failing to deliberate. Because the record does not show as a demonstrable reality
that the juror was unable to perform her duty, we agree with defendant that the
court abused its discretion in removing the juror. We conclude furthermore that
the error compels reversal of the judgment in its entirety.
                                          I. FACTS

        A. Guilt Phase Evidence

             1. Prosecution Evidence

                   a. Shooting of Christopher Florence
        On the evening of September 27, 2001, 21-year-old Christopher Florence
was driving his car to meet a young woman near the area of 104th Street and
Crenshaw Boulevard in Inglewood. Attempting to follow directions written on a
piece of paper, he mistakenly turned right off of 104th Street onto 10th Avenue,
going the wrong way on a one-way street. This portion of 10th Avenue is in an
area known as “the Bottoms,” which was claimed by the Crenshaw Mafia, a
Bloods gang of which defendant was a member. Several shots were fired.
Christopher was badly injured and drove a few blocks until he crashed into a
median barrier on Crenshaw Boulevard. He died a short time later from a bullet
wound to his left side. One bullet was recovered from his body and three others
from inside the car.




(footnote continued from previous page)

to a life term for the torture conviction, and life terms with a 20-year enhancement
for each of the two premeditated attempted murder counts. The court ordered
sentences on all remaining counts stayed pursuant to section 654.




                                             3
       Tyiska Webster, who was defendant‟s girlfriend at the time, went to the
Bottoms the next morning and heard about the shooting. When she asked
defendant about it, he told her he shot at the car because it was traveling the wrong
way on a one-way street, which he believed was a maneuver used by members of
rival gangs before they commit a drive-by shooting. Defendant pointed out
broken glass on the street that he said had come from the shooting.

               b. Shooting of the other Florence brothers
       On the morning of September 29, 2001, two days after Christopher‟s death,
Christopher‟s mother and his three brothers, Brian, Torry, and Michael Florence,3
drove to the Bottoms, near the area where Christopher had been shot. They saw a
number of gang members on 10th Avenue, and Michael pointed his finger at them,
gesturing as if he had a gun. Around midnight that night, a number of people had
gathered at the Florence home to mourn the death of Christopher, including his
three brothers and their friend, Floyd Watson. In the course of conducting his own
investigation into the shooting, Michael received a call from a woman identifying
herself as “Nicole,” who said she had information about Christopher‟s death and
would meet with him. The four men left the house in Michael‟s Ford Mustang to
get something to eat. Michael then drove the group in search of the place where
he was scheduled to meet Nicole, in the area of 104th Street and South Van Ness
Avenue.
       They were driving east on Century, and stopped at the intersection of
Century and Doty, when Watson looked through the rear windshield and saw a
burgundy Ford Contour behind the Mustang in the lane to the left. Defendant was

3     To avoid confusion, the Florence brothers will be referred to by their first
names.




                                         4
leaning out the window of the rear passenger side of the Contour, yelling
something. Watson told Michael that defendant was yelling at them and Michael
began to roll down his window. Defendant pulled out a gun and started shooting
as the Contour moved forward, parallel to the Mustang. After several gunshots the
Contour pulled away. Michael was shot in the head and Torry was shot in the
neck.
        Brian jumped into the front seat and steered the Mustang out of the way of
traffic. Brian and Watson then waved down passing vehicles and left the scene to
call for help. When the police arrived, Michael was in the driver‟s seat and not
speaking or moving. Torry was lying in the street. When asked if he knew who
the shooter was, he responded, “CMGs,” which the officer understood to mean the
Crenshaw Mafia Gangsters. Torry stated that a female named “Randi” was
involved in the shooting.
        Brian and Watson soon returned to the scene and spoke to police. Brian
described the shooter as a light-skinned African-American male in a red
sweatshirt, Johnny Blaze brand, and he indicated that the shooter had fired from
within a red Ford with three females inside. Based on this description, the officer
suspected there might be a connection between the shooting and an assault that
had occurred earlier that night at a nearby 7-Eleven store. Defendant had exited a
red vehicle outside the 7-Eleven store and approached a man, asking him where he
was from. A few minutes later, defendant punched the man in the face. An
officer who had had prior contacts with defendant reviewed the store‟s
surveillance videotape and identified defendant as the assailant. At the police
station later that night, Brian and Watson identified defendant in a photographic
lineup of known gang members.
        Also that same night, defendant met Tyiska Webster, got into her car, and
directed her to the scene of the second shooting. According to Webster, defendant

                                         5
looked at the Mustang and said, “I did that.” He told her that he pulled up next to
the car and asked its occupants where they were from and then “let them have it.”
       Both Torry and Michael died from their gunshot wounds, and a bullet was
removed from each of their bodies. No evidence was found in the Mustang that
any gunshots had been fired from inside the car.
       On October 2, 2001, two days after the second shooting, police officers
conducted surveillance of a house occupied by defendant and his brother, Darrin
Armstrong. They spotted defendant, dressed entirely in red, riding as a passenger
in a red Ford Contour driven by Tenesha Washington, the car‟s registered owner.
Officers stopped the car and arrested defendant. The police later conducted a
search of defendant‟s residence and recovered a red Johnny Blaze sweatshirt from
defendant‟s closet.
       Also on the day of defendant‟s arrest, the police stopped a car being driven
by defendant‟s brother Darrin. After obtaining his consent to search, officers
found a loaded nine-millimeter pistol. Ballistics analysis indicated that the bullets
recovered from Christopher‟s car and body and the bullets recovered from the
shooting of Michael and Torry all had been fired from this weapon. Earlier, police
had determined that the red Ford Contour in which defendant was riding at the
time of his arrest had sustained no gunshot damage.

               c. Torture of Tyiska Webster
       In May 2002, about seven months after the shootings, defendant‟s former
girlfriend Tyiska Webster was living temporarily in the Beverly Garland Hotel
under a witness protection program because of her anticipated testimony in a
different case. Webster was seven months pregnant at the time and her three-year-
old daughter C. was living there with her. Webster was scheduled to move to a




                                          6
more permanent location, and the police detective who was working with her
recently had given her a card that showed the new address.
       In the early evening of May 1, 2002, Webster heard a knock on the door. A
female voice said, “Housekeeping,” and Webster opened the door. When she did,
four people rushed into the room, including defendant‟s brother Darrin, and three
others. After Webster had been pushed onto the bed, Darrin questioned her about
money she was supposed to send to defendant in jail and asked why she was in the
witness protection program and whether she was “snitching” on defendant.
Meanwhile, Webster‟s young daughter had been taken into the bathroom. When
Webster denied informing on defendant, Darrin hit her on the head with an
unloaded nine-millimeter handgun. He then loaded the gun. The intruders placed
a pillowcase over Webster‟s head and beat her. At one point, Webster heard
Darrin answer a telephone call, telling the caller, “We found her” and “What do
you want me to do to her.” Darrin also said they had not found any money and
asked if they should “oop” her, which Webster understood to mean shoot or kill
her. He then put the phone next to Webster‟s ear. The caller, whose voice
Webster recognized as defendant‟s, asked why she had not deposited money into
his account. Webster had deposited money for defendant a few times in the past,
but had since stopped doing so. Webster told defendant that she would put money
in his account if he told Darrin and the others to leave. Darrin took back the phone
and continued to talk, then ended the call by saying, “We‟ll just beat her up some
more.” The group used a telephone cord to whip and attempt to strangle Webster.
They also lit some sticks and used them to burn her approximately 140 times.
They left after taking her clothes and the contents of her wallet, ordering her not to
tell anyone about the incident and warning her that they knew where her
grandmother lived.



                                          7
       Detectives interviewed Webster while she was in the hospital being treated
for her injuries. She reported to them, for the first time, that defendant told her he
was responsible for the murders of the three Florence brothers. Items taken from
Webster were later recovered from Darrin‟s room in the home he shared with
defendant. Inside defendant‟s jail cell, detectives found a receipt from the jail‟s
canteen with the address of the location where police had been planning to move
Webster.

                d. Gang Evidence
       Detective Kerry Tripp testified at trial as an expert on gangs. He told the
jury that defendant had admitted that he was a member of the Crenshaw Mafia
Gangsters, a criminal street gang with about 400 members who tended to
congregate in the part of Ingleside known as the Bottoms, on 10th Avenue, south
of Bardton. For a gang member to stare at someone or walk up to someone and
ask where he is from constitutes a challenge to that person. According to
Detective Tripp, when gang members see a car going in the wrong direction on a
one-way street, they typically assume it is being driven by either a police officer or
a rival gang member.
       Detective Tripp also told the jury that none of the Florence brothers was in
the police department‟s gang database, and to his knowledge none of them was a
gang member. Brenda Florence, the mother of Christopher, Michael, Torry, and
Brian, testified that none of her sons was a gang member or otherwise engaged in
criminal activities.

           2. Defense Evidence
       Defendant testified on his own behalf, and admitted he was a member of
the Crenshaw Mafia Gangsters. But he denied having anything to do with
Christopher‟s shooting, and claimed that he spent that evening at his mother‟s



                                          8
home in Downey with his son. He also denied ever talking about that shooting
with Webster. Defendant told the jury, furthermore, that he, his brother, and three
of their friends had access to a nine-millimeter handgun that was hidden on 10th
Avenue behind some mailboxes, but he denied having the gun in his possession on
the day that Christopher was shot.
       Defendant did acknowledge his involvement in the shooting of
Christopher‟s brothers, but he claimed that he acted in response to perceived
threats of violence. He testified that, the morning after Christopher‟s death, he
saw a truck or SUV with two or three people in it driving slowly in the area of the
Bottoms. At the time, defendant was standing with a group of fellow gang
members. When the vehicle passed by the group, the driver pointed the fingers of
his hand at them as if he had a gun. That gesture led defendant to believe they
would be back to shoot him. Later that night, at about midnight, he saw Webster
in the Bottoms. As they socialized with some friends, one of the friends received
a call from some of the “homegirls,” asking for help. In response to the call,
defendant armed himself with the nine-millimeter handgun, got into Webster‟s car
with her and several others, and drove to a club, which was located in the territory
of a rival gang. When the group arrived at the club, defendant learned that his
“homegirls,” Tonesha, Randi, and Vanessa, had been beaten by some males who
had since left the scene. Defendant directed Webster to return to the Bottoms and
he got into Tonesha‟s red Ford Contour with the other two young women. Randi
sat in the front passenger seat, Vanessa sat in the rear driver‟s side seat, and
defendant sat in the rear passenger side seat. They started driving back to the
Bottoms.
       Defendant next offered the jury his account of the incident at the 7-Eleven
store that preceded the second shooting. According to defendant, on their way
back to the Bottoms, they took a shortcut through a 7-Eleven store parking lot. As

                                           9
they did so, defendant saw a man standing in front of the store wearing a red belt,
which defendant believed meant he was a member of the Bloods gang. Defendant
asked Tonesha to park the car so he could alert the man that he was not safe
because he was standing in the territory of a rival Crips gang. When defendant
asked the man where he was from, the man told him he was a member of the
Crenshaw Mafia Gangsters, defendant‟s gang. Defendant did not recognize the
man, however, and thought he might be setting defendant up for an assault. When
the man then asked defendant where he was from, defendant hit him in the face.
       Defendant testified that after leaving the store parking lot, they were near
the intersection of Century and Doty when Vanessa told him that some men in
another car were staring. Defendant looked over at a Ford Mustang and saw the
driver staring at him. He recognized the driver as the man who previously had
made the gesture with his hand as if he had a gun. According to defendant, the
man rolled down his car window, asked if defendant was from the Crenshaw
Mafia Gangsters, and pointed a gun at him. Defendant told the jury he became
frightened and started shooting.
       Afterward, according to defendant, the group drove back to the Bottoms,
where Webster was waiting for him. Defendant got into Webster‟s car and told
her he could not believe what had happened. He directed Webster to the scene of
the shooting, and told her that he had to shoot. He told Webster that the driver
probably had been hit. Later, defendant‟s brother Darrin picked him up in his car,
where defendant placed his gun under the seat.
       Defendant testified further that following his arrest two days after the
second shooting, he called Webster a few times and the two exchanged letters. He
stopped communicating with her, however, after he received a letter that broached
the subject of getting married and having children. In May of 2002, he did not
know where Webster was living and was not aware that she was in the witness

                                         10
protection program. He denied speaking to anyone about harming her and denied
speaking to her on his brother‟s cell phone on May 1. Defendant testified that
Darrin did give him an address for Webster, which he wrote down. Defendant
explained that Darrin had asked him to write to Webster to encourage her not to
press charges against Darrin for the May 2002 assault, but defendant never wrote
such a letter.
        A physician who treated Webster after she was assaulted testified for the
defense that Webster told him she did not know who attacked her.

        B. Penalty Phase Evidence

            1. Prosecution’s case in aggravation
        The prosecution presented evidence that defendant had one prior felony
conviction, a robbery adjudicated in juvenile court, and that he had engaged in
violent criminal conduct on four occasions. The prosecution‟s evidence showed
that in May of 2000, defendant attempted to intimidate a witness not to press car
theft charges against his brother, and in June of 2000, he robbed and beat a man
outside an Inglewood nightclub because he believed the man was gay. The
prosecution also presented evidence that a few weeks before shooting Christopher,
defendant approached an occupied car and threw a brick through the passenger
side window. Other evidence indicated that in October of 2003, subsequent to his
arrest for the present murders, defendant stabbed a fellow inmate in the county
jail.
        The prosecution called various witnesses to testify regarding the impact that
the murders of Christopher, Michael, and Torry Florence had had on them and the
people close to them. According to the witnesses, at the time Michael and Torry
were killed, they both were engaged to be married. In addition, Torry and his
fiancée had a young daughter who was very close to her father, and Torry had



                                         11
helped raise his fiancée‟s two other daughters. The victims‟ mother, Brenda
Florence, testified that Christopher, Michael, and Torry had each graduated from
high school and were employed full time. She also told the jury that she felt “as if
[she had] been dropped in the pits of hell.” According to Mrs. Florence, the loss
of her three older sons likewise had been hard on her surviving son, Brian, who
had lost 40 pounds and developed a number of medical problems.

           2. Defense case in mitigation
       The defense called a number of witnesses who testified about defendant‟s
difficult childhood. According to their testimony, until defendant was five years
old, his father spent a lot of time with him and he was a happy child. Defendant
also was very close to his brother Darrin. However, his father beat his mother
every week, sometimes in front of him. The incidents frightened defendant and
caused him to wet the bed. Once, defendant saw his father point a gun at his
grandmother.
       When defendant was six or seven years old, his mother stabbed his father.
The couple soon separated, and defendant lived with his father while his brother
Darrin lived with his mother. One year later, defendant came to live with his
mother but he continued to see his father regularly and was close to him. When
defendant was 13 or 14 years old, however, his father called to say he had to move
out of town and he never contacted his children again. At that time, defendant
began to associate with an older man in the neighborhood who was a gang
member, and defendant eventually joined a gang. When testifying on defendant‟s
behalf, defendant‟s mother, uncle, and grandmother asked the jury to spare his life.




                                         12
                                   II. DISCUSSION

       A. Excusal of Juror for Failure to Deliberate
       The jury began guilt phase deliberations after a nine-day trial. After two
full days of deliberating, the foreperson informed the court that the jury was
deadlocked on all counts. The court directed the jury to continue its deliberations.
By the next court day, however, the court had received a series of notes, two of
which indicated that Juror No. 5 was not objectively considering the evidence and
was refusing to listen to other jurors‟ views, and that she harbored possible biases
with regard to gang members and the police. A note from Juror No. 5 reported
that Juror No. 12 was biased. The court individually questioned the foreperson,
Juror No. 5, Juror No. 12, and two other jurors who were involved or mentioned in
the exchange of notes. The court discharged Juror No. 12 for implied bias based
on his friendship with defendant‟s cousin and failure to report the relationship to
the court. The court excused Juror No. 5 for refusing to deliberate.
       The court appointed two alternate jurors, and the reconstituted jury began
deliberations anew. Three days later, the jury returned verdicts finding defendant
guilty on all counts and entering true findings on all of the special circumstance
and firearm allegations.
       Defendant argues that the court erred in dismissing Juror No. 5 for failing
to deliberate. Mindful of the heightened scrutiny umder which the trial court‟s
excusal of a deliberating juror is assessed on appeal, we cannot say with
confidence that the record shows as a “demonstrable reality” that there was good
cause to discharge Juror No. 5. We therefore agree with defendant that the court
abused its discretion in dismissing Juror No. 5 and that the error compels reversal
of the judgment in its entirety.




                                         13
           1. Details regarding the trial court’s ruling
       Jury deliberations at the guilt phase began midafternoon on Wednesday,
August 18, 2004. On Friday afternoon, August 20, the transcript of defendant‟s
testimony regarding self-defense was read to the jurors at their request. After the
readback, the court notified counsel that it had received a note from the foreperson
indicating that the jury was deadlocked on all counts. The court found it
“astonishing” that the jury would reach that conclusion after only two full days of
deliberations. In the court‟s experience, “That happens only when a juror is not
really deliberating.” However, the court agreed with defense counsel‟s
observation that there was no indication in the foreperson‟s note that anyone was
not participating, and the court decided accordingly to direct the jury to continue
deliberations.
       The jury was then summoned into the courtroom. The court did not ask the
jurors how they were split or whether they thought they could resolve any
deadlock. Instead, the court asked the jurors whether a readback, further
explanation of the law, or additional argument would be helpful, and inquired
whether any of the jurors had time commitment problems. The court then directed
the jurors to continue deliberating, remarking that “given about nine days of
testimony, 38 witnesses testified, there are 130 items of evidence, I don‟t think
that any jury in two days can say that they have done everything that can be done
in trying to evaluate that evidence and come to a conclusion.” The jury resumed
deliberations that same afternoon.
       On the next court day, Monday, August 23, the court informed counsel that
it had received two notes late in the day the previous Friday, and one additional
note on Monday morning, after the jury had checked in for the day. A note from
Juror No. 5 claimed that Juror No. 12 was biased. She explained that Juror No. 12
had told her and Juror No. 6 sometime before deliberations that he was “close


                                         14
friends” with defendant‟s cousin, who described defendant as a “cold, heartless
killer, and an active criminal.”
       A note signed by the foreperson indicated that a majority of the jurors felt
that one juror was not fulfilling her obligation to objectively consider all of the
evidence, and some jurors wondered whether she had accurately disclosed during
voir dire her possible sympathies for gang members and mistrust of the police.
       The note submitted to the court on Monday morning was signed by
“A Concerned Juror,” but the clerk identified the author as Juror No. 12. This note
identified Juror No. 5 as the reason the jury was deadlocked. It also reported that
Juror No. 5 “refuses to listen to the other juror‟s points on why they are voting the
way they are,” and that she “either does something on her cell phone or reads her
book.” According to the note, Juror No. 5 challenged the other jurors to
“convince” her she was wrong, and when the other jurors asked how they might
persuade her, Juror No. 5 responded, “I don‟t know. I‟m not psychic.” The note
related moreover that Juror No. 5 indicated she had once lived near the Bottoms
and had friends who were gang members, and that she believed police officers are
corrupt.
       After seeking input from counsel for both sides regarding how an inquiry
should proceed, the court decided to interview the foreperson and Juror No. 5,
Juror No. 6, and Juror No. 12. At the prosecutor‟s suggestion, the court later
decided to also interview Juror No. 11, who had authored the note signed by the
foreperson. The court conducted the questioning, but allowed counsel to suggest
areas of inquiry or specific questions.

                a. Testimony of the jury foreperson
       The court began its inquiry by questioning the foreperson regarding the
jury‟s deliberations generally, and then focused more specifically on Juror No. 5.



                                          15
The foreperson indicated that at the outset of deliberations, all jurors “seemed
really eager to talk” and that “conversations were going very nicely. We were
testing evidence [and] we were looking into possibilities.” According to the
foreperson, when Juror No. 5 was “engaging with all of us, she‟s very articulate”
and “seems bright.” Later, according to the foreperson, “we started to not get so
much input” from Juror No. 5. For example, “we would start to feel sort of a
consensus going and then we would somehow just try to integrate her into the
conversation.” But she “just seemed a little less open minded” and was unable “to
weigh the evidence in a more objective fashion to accept anything.” The
foreperson indicated that he would not describe Juror No. 5 as “passive or
anything like that, but just not willing to make a larger decision.” As he
explained, “when it came down to making a call on a specific piece of evidence,
[Juror No. 5] would get choked up by too many possibilities . . . .”
          With regard to the day the jury indicated it was deadlocked on all counts,
the foreperson explained that the jury had stalled on “the big crux of the matter”
and tried to work on other counts. But it “kept coming back to . . . a difference of
perception, I guess,” and the jury explored other means to introduce points of
view. “We would come up with a theory, we‟d test it, . . . and it seems as though
at that point [Juror No. 5] just really didn‟t even participate. She just kind of sat
there.”
          According to the foreperson, some of the other jurors were getting
frustrated. He explained that Juror No. 5 “has her feelings, this is the way she
looks at things. . . . It seems like she brought in a lot of preconceptions” based on
her association with gang members. She also “comes up with a lot of possibilities
and says things in large general terms that anything is possible and any person can
do anything , . . . but then she doesn‟t really grasp on to what can be probable.”
The foreperson further reported that the jurors felt that Juror No. 5‟s comments

                                           16
regarding police officers‟ untruthfulness came “out of nowhere.” But when asked
whether Juror No. 5 had made any statement during deliberations that would
indicate a bias regarding gang members or the police, the foreperson replied, “No
direct comments. You get more of a feeling I suppose.”
       In response to the court‟s question whether the foreperson did anything to
encourage Juror No. 5 to join in when she seemed not to be participating, the
foreperson indicated that he did so indirectly by commenting to the jury as a whole
that it is not easy to look at the evidence objectively and to make decisions, but we
have to do so at a certain point. The foreperson added that “it just seems our
discussions don‟t hold any water with her as well as our different means to
determine the truth in this. . . . There is a point where she doesn‟t even look
anymore. . . . She doesn‟t observe, she doesn‟t participate at all. She maybe looks
at her book,” or her trial notes, or messages on her cell phone. When the court
asked how often Juror No. 5 was using her cell phone, the foreperson replied, “I
don‟t think really at all that much” and admitted that someone else brought that to
his attention; he himself had not noticed it.

                b. Testimony of Juror No. 6
       Juror No. 6 was with Juror No. 5 when Juror No. 12 indicated to them at
some point prior to deliberations that he was acquainted with defendant‟s cousin.
The court briefly examined Juror No. 6 with regard to that encounter, which she
did not recall in any significant detail. The court also inquired about Juror No. 5‟s
conduct during deliberations. Juror No. 6 reported that Juror No. 5 looked at a
book and a cell phone “one or two times” for “a few minutes.” When asked
whether Juror No. 5 was deliberating, Juror No. 6 indicated that Juror No. 5 had
been participating, that she‟s “tried,” but that she‟s “already made a conclusion.”
The court then asked whether, after Juror No. 5 had made that conclusion, she was



                                          17
no longer listening to what the others say and expressing her opinion further.
After a confusing exchange that suggested an affirmative answer to that question,
the court asked, “So . . . after drawing that conclusion, she‟s not at that point
participating further?” Juror No. 6 replied, “Right. That‟s right.” With regard to
Juror No. 5‟s possible bias regarding gang members and police, Juror No. 6
indicated that Juror No. 5 said during deliberations that the police are sometimes
untrustworthy and that she is acquainted with some gang members, and therefore
“kind of knew how they thought,” but gave no specifics.

                c. Testimony of Juror No. 5
       Much of Juror No. 5‟s testimony focused on the conversation in which
Juror No. 12 informed her and Juror No. 6 that he had recently discovered that his
close friend was defendant‟s cousin.
       The court further inquired into the issue of Juror No. 5‟s book and cell
phone. When the court asked Juror No. 5 whether she had been reading a book
during deliberations, she replied, “Oh, no.” In response to the court‟s question
whether she had been looking at her cell phone during deliberations, Juror No. 5
responded, “No, only on breaks. [¶] Or maybe I‟ll look at the time, but I won‟t
call in or text messages.” She denied hearing the court direct jurors to turn off
their cell phones during deliberations.
       With regard to deliberations, Juror No. 5 denied having formed opinions to
the point that she was not willing to discuss the evidence with other jurors. She
also indicated that she was freely discussing the issues with the other jurors,
analyzing what they said, and making points in response.
       The court also questioned Juror No. 5 regarding possible bias. When asked
directly whether she had any concerns or biases regarding gang members or the
police, for or against either group, she replied, “No.”



                                          18
               d. Testimony of Juror No. 11
       Juror No. 11 was the author of the note asserting that one juror was not
fulfilling her obligation to objectively consider all of the evidence, and questioning
whether that juror had accurately disclosed during voir dire her possible biases
with regard to gang members and law enforcement. The court elicited from Juror
No. 11 that the juror in question was Juror No. 5. According to Juror No. 11, Juror
No. 5 indicated that she had a lot of friends who are or were gang members, and
that she believed police officers coach witnesses and manufacture crime scene
evidence to maintain consistency with their theory of the case.

               e. Testimony of Juror No. 12
       The court‟s examination of Juror No. 12 focused solely on the disclosure
that he was close friends with defendant‟s cousin and his failure to report that
relationship to the court at the time he discovered the connection. Although Juror
No. 12 admitted having several conversations with his friend while the trial was
pending, he asserted that the subject of the case never arose. He also indicated
that his friendship would have no effect on his ability to be a fair juror. The court
asked no questions pertaining to the assertions in the anonymous note regarding
the jury deadlock and Juror No. 5‟s conduct during deliberations.

           2. The trial court’s rulings
       After the jurors‟ testimony and an exchange between the court and counsel,
the court announced that, based “on what we‟ve heard, the testimony we‟ve
taken,” both Juror No. 5 and Juror No. 12 should be excused.
       With the assent of counsel for both sides, the trial court first ruled it would
discharge Juror No. 12 for implied bias, based on his acquaintance with
defendant‟s cousin and his failure to report that relationship to the court. Defense
counsel moved for a mistrial on the ground that some of the sentiments regarding



                                          19
gang members expressed by Juror No. 12 during deliberations may have infected
other members of the jury panel, but the court denied the motion.
       Over defense objection, the trial court then ruled it would discharge Juror
No. 5, concluding that she was unable to perform her duty as a juror within the
meaning of section 1089. Crediting the testimony of Juror No. 6, the court found
that although Juror No. 5 “has deliberated with the other jurors, [she] is now of a
fixed opinion, is not deliberating further.” The court observed that Juror No. 5‟s
lack of participation in the deliberation process was further evidenced by her
“taking time outs with the cell phone and the book,” as reported by the foreperson.
The court also expressly found that it did not believe Juror No. 5‟s statements at
the hearing. For example, the court later explained, Juror No. 5‟s “denial of so
many of the things [said by the other jurors] caused me to believe that she was not
being truthful when she talked to us about the use of the cell phone.”
       The court clarified that the basis of its decision to discharge Juror No. 5
was her failure to deliberate further, which was corroborated by her “time outs”
with the cell phone and book. The court observed, “in addition and separately,”
that the testimony of Juror No. 11 regarding Juror No. 5‟s statements to the effect
that she has or has had gang member friends expresses a bias on her part that she
did not disclose during voir dire.
       The two excused jurors were replaced with alternates, and the court
instructed the jury to set aside all past deliberations and begin deliberations anew.
The reconstituted jury began deliberating on Monday afternoon, August 23. On
Thursday morning, August 26, the jury requested and received additional
argument from counsel. Later that same day, the jury returned verdicts of guilt on
all charges and found true all of the special circumstance and firearm use
allegations.



                                         20
           3. Discussion
       Defendant contends the trial court abused its discretion in excusing Juror
No. 5. We agree, for the reasons explained below.
       A trial court may discharge a juror at any time during trial if the court finds
that the juror is “unable to perform his or her duty.” (§ 1089.) A juror who
refuses to deliberate may be removed “on the theory that such a juror is „unable to
perform [her] duty‟ within the meaning of Penal Code section 1089.” (People v.
Cleveland (2001) 25 Cal.4th 466, 475 (Cleveland).)
       Although this court reviews for abuse of discretion a court‟s ruling
discharging a juror pursuant to section 1089 (Cleveland, supra, 25 Cal.4th at
pp. 485-486), we have made clear that such review involves a “heightened
standard [that] more fully reflects an appellate court‟s obligation to protect a
defendant‟s fundamental rights to due process and to a fair trial by an unbiased
jury.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052 (Barnwell); see
Cleveland, supra, at p. 488 (conc. opn. of Werdegar, J.).) Specifically, the juror‟s
“inability to perform” his or her duty “must appear in the record as a demonstrable
reality.” (People v. Compton (1971) 6 Cal.3d 55, 60; accord, People v. Wilson
(2008) 44 Cal.4th 758, 821; Barnwell, supra, at p. 1052.)
       Under the demonstrable reality standard, a reviewing court‟s task is more
“than simply determining whether any substantial evidence in the record supports
the trial court‟s decision.” (People v. Lomax (2010) 49 Cal.4th 530, 589.)
“A substantial evidence inquiry examines the record in the light most favorable to
the judgment and upholds it if the record contains reasonable, credible evidence of
solid value upon which a reasonable trier of fact could have relied in reaching the
conclusion in question. Once such evidence is found, the substantial evidence test
is satisfied. . . . [¶] The demonstrable reality test entails a more comprehensive
and less deferential review. It requires a showing that the court as trier of fact did


                                          21
rely on evidence that, in light of the entire record, supports its conclusion that
[good cause for removing the juror is] established. It is important to make clear
that a reviewing court does not reweigh the evidence under either test. Under the
demonstrable reality standard, however, the reviewing court must be confident that
the trial court‟s conclusion is manifestly supported by evidence on which the court
actually relied. [¶] In reaching that conclusion, the reviewing panel will consider
not just the evidence itself, but also the record of reasons the court provides.”
(Barnwell, supra, 41 Cal.4th at pp. 1052-1053.)
       Applying this heightened standard of review that governs our assessment of
a trial court‟s decision to discharge a juror under section 1089, and based on our
examination of the record as a whole, we conclude that the court abused its
discretion in discharging Juror No. 5 because her inability to perform her duty as a
juror does not appear in the record as a demonstrable reality.
       The court indicated that its rulings removing Juror No. 5 and Juror No. 12
were based on “what we‟ve heard [and] the testimony we‟ve taken.” That is, the
court relied on the testimony of the jurors who were individually examined by the
court. Notably, at no point during the hearing did the court refer to the anonymous
note submitted earlier that morning. Nor did the court inquire of Juror No. 12
whether he had authored it. From this we can infer that the court did not actually
rely on the note to reach its decision to discharge Juror No. 5. Nor did the court
rely on the testimony of Juror No. 12 or Juror No. 11. The record shows that
neither juror provided any testimony whatsoever on the subject of Juror No. 5‟s
failure to deliberate with fellow jurors.
       Juror No. 5 testified she had been freely discussing the evidence with the
other jurors, and she denied reading a book or using her cell phone to make calls
or read text messages while the rest of the jury was deliberating. The record
shows that the court found her not credible, however. As this court explained in

                                            22
Barnwell, supra, 41 Cal.4th at page 1053, we afford deference to the trial court‟s
credibility determinations, “based, as they are, on firsthand observations
unavailable to us on appeal.”
       The record shows further that, in reaching its decision to remove Juror
No. 5, the court affirmatively relied on the testimony of the foreperson and Juror
No. 6. We are not confident, however, that the trial court‟s determination that
Juror No. 5 refused to deliberate “is manifestly supported” by this evidence.
(Barnwell, supra, 41 Cal.4th at p. 1053.)
       “Examples of refusal to deliberate include, but are not limited to,
expressing a fixed conclusion at the beginning of deliberations and refusing to
consider other points of view, refusing to speak to other jurors, and attempting to
separate oneself physically from the remainder of the jury.” (Cleveland, supra,
25 Cal.4th at p. 485.) Neither the foreperson nor Juror No. 6 suggested that Juror
No. 5 entered deliberations with a fixed conclusion about the case and declined to
consider the views of other jurors. Indeed, both of them testified to the contrary
that Juror No. 5 was deliberating. According to the foreperson, “everybody
seemed really eager to talk” when deliberations first began, and Juror No. 5 “was
engaging with all of us” and was “very articulate.” Juror No. 6 likewise indicated
that Juror No. 5 had been participating.
       Relying on this testimony, the court expressly found that Juror No. 5 had
deliberated with the other jurors. But it also concluded that Juror No. 5 was “not
deliberating further,” and found that Juror No. 5‟s reading her book and using her
cell phone during deliberations further demonstrated her lack of participation. We
can agree that, like the juror who will not sit with her fellow jurors at the
deliberations table, a juror who reads a book or looks at messages on a cell phone
during deliberations may be attempting to separate herself from the other jurors,
and that such conduct may reflect a refusal to deliberate. The court‟s conclusion

                                           23
in this regard is not manifestly supported by the evidence, however. The
foreperson indicated only that Juror No. 5 “maybe looks at her book.” At one
point in his testimony, the foreperson stated more decisively that at one point
when he was talking to the entire group during deliberations, Juror No. 5 “had her
phone open and was doing some sort of text message.” But the foreperson also
admitted that he had learned about Juror No. 5‟s cell phone use from other jurors
and that he had not personally witnessed her sending or receiving text messages.
Thus, the only evidence supporting the court‟s finding regarding Juror No. 5‟s
book and cell phone use was the testimony of Juror No. 6, who reported that Juror
No. 5 looked at a book and a cell phone “one or two times” for “a few minutes.”
Such de minimis references to a book and cell phone do not support a
determination that Juror No. 5 was refusing to deliberate.
       As mentioned above, this court‟s decision in Cleveland provided a
nonexhaustive list of scenarios that reflect a failure to deliberate. Cleveland also
described some of the circumstances that do not constitute a failure to deliberate.
Cleveland observed, for example, that a juror may not be removed for failing to
deliberate simply because he or she “does not deliberate well or uses faulty logic
or analysis.” (Cleveland, supra, 25 Cal.4th at p. 485.) Moreover, Cleveland
explained, “the circumstance that a juror disagrees with the majority of the jury as
to what the evidence shows, or how the law should be applied to the facts, or the
manner in which deliberations should be conducted . . . is not a ground for
discharge.” (Ibid.)
       The foreperson testified that Juror No. 5 was unable “to weigh evidence in
a more objective fashion to accept anything” and was “not willing to make a larger
decision.” The foreperson also related that “when it came down to making a call
on a specific piece of evidence, [Juror No. 5] would get choked up by too many
possibilities,” and that she didn‟t “really grasp on to what can be probable.” But

                                         24
significant evidence in the record shows that the foreperson‟s testimony regarding
the manner in which Juror No. 5 was deliberating amounted to complaints, first,
that she was not weighing the evidence in the way that he and the other jurors
thought to be objective and, second, that her assessment of the evidence was
different from theirs. The foreperson indicated, for example, that Juror No. 5 “has
her feelings, this is the way she looks at things.” He testified furthermore that the
jury‟s discussions and “our different means to determine the truth in this” do not
“hold any water” with her. The evidence regarding Juror No. 5‟s manner of
deliberating does not state a proper ground for her discharge. (Cleveland, supra,
25 Cal.4th at p. 485.)
       The foreperson also complained that after a good start to deliberations, the
jurors “started to not get so much input from” Juror No. 5. As he described it,
“We would start to feel sort of a consensus going” and try to integrate her into the
conversation, but she “seemed a little less open minded.” Juror No. 6 offered a
similar account, saying that although Juror No. 5 had been deliberating, she had
“already made a conclusion” and was no longer participating. From this testimony
the trial court concluded that although Juror No. 5 had been participating, she “is
now of a fixed opinion [and] is not deliberating further.” That Juror No. 5 was not
willing to engage in further discussion, by itself, does not show as a demonstrable
reality that she was failing to deliberate. It is not uncommon, or grounds for
discharge, “for a juror (or jurors) to come to a conclusion about the strength of a
prosecution‟s case early in the deliberative process and then refuse to change his
or her mind despite the persuasive powers of the remaining jurors.” (People v.
Bowers (2001) 87 Cal.App.4th 722, 734.)
       In light of our duty to apply a heightened standard of review (Barnwell,
supra, 41 Cal.4th at p. 1052), we cannot say on this record that Juror No. 5‟s
failure to deliberate is shown as a demonstrable reality. Although the foreperson‟s

                                         25
testimony related that some of the jurors were frustrated with Juror No. 5, the
record indicates that the source of that frustration was her disagreement with their
view of the prosecution‟s evidence. Juror No. 5 “simply viewed the evidence
differently from the way the rest of the jury viewed it.” (Cleveland, supra, 25
Cal.4th at p. 486.) Also apparent from the record is that while deliberating with
the other jurors, Juror No. 5 reached a conclusion regarding the strength of the
prosecution‟s case and refused to change her mind. “[T]he court may not
discharge a juror for failing to agree with the majority of other jurors or for
persisting in expressing doubts about the sufficiency of the evidence in support of
the majority view . . . .” (People v. Engelman (2002) 28 Cal.4th 436, 446.)
       We conclude that the trial court abused its discretion in discharging Juror
No. 5. The error is prejudicial and requires reversal of the judgment. (Cleveland,
supra, 25 Cal.4th at p. 486.) There is no double jeopardy bar to retrial of the case.
(People v. Hernandez (2003) 30 Cal.4th 1, 6.)
       In reversing the judgment in this case, we remind trial courts that the
removal of a seated juror for failing to deliberate is a serious matter that implicates
a defendant‟s state and federal constitutional right to a unanimous decision by the
jury. (Barnwell, supra, 41 Cal.4th at p. 1052.) Although a trial judge has
discretion to remove a juror for a failure to deliberate, the exercise of that
discretion should be undertaken with great care.

       B. Remaining Claims
       In light of our conclusion that the judgment must be reversed, we need not
address defendant‟s assertion that the trial court erred in failing to question all of
the jurors regarding their possible exposure to information concerning Juror
No. 12‟s friendship with defendant‟s cousin. Nor is it necessary to examine his
contention that the court‟s substitution of alternates after the discharge of Juror



                                          26
No. 5 and Juror No. 12 effectively endorsed the view of a majority of the jurors
and had a coercive effect on the alternates.
       There is likewise no need to order correction of clerical errors in the
abstract of judgment or to address any of defendant‟s claims relating to the penalty
phase of trial. For the purpose of providing guidance in the event of a retrial,
however, we address below defendant‟s claim that the trial court erred in denying
his pretrial motions to sever the charges.
       Prior to trial, defendant moved to sever the three sets of charges and
conduct three separate trials — one on the first shooting (charging the murder of
Christopher), one on the second shooting (charging the murders of Michael and
Torry and attempted murders of Brian and Floyd Watson), and one on the charges
stemming from the assault on Webster. His motion was heard by the judge who
presided over several months of pretrial proceedings. The court denied
defendant‟s motion without prejudice, expressing concern that, if the charges were
severed, Webster would have to testify twice. Defendant later renewed his
motion, this time before the judge who tried the case, asking the court to sever the
capital from the noncapital charges. The court determined that “the three incidents
can and should be tried together,” and denied the motion.
       Defendant contends that the courts‟ rulings amounted to prejudicial error
and deprived him of a fair trial. We conclude to the contrary that the court did not
abuse its discretion in denying defendant‟s motions to sever.
       Section 954 provides that “two or more different offenses” may be charged
in the same pleading if the offenses are either “connected together in their
commission” or “of the same class.” This “statute permits the joinder of different
offenses, even though they do not relate to the same transaction or event, if there is
a common element of substantial importance in their commission, for the joinder



                                         27
prevents repetition of evidence and saves time and expense to the state as well as
to the defendant.” (People v. Scott (1944) 24 Cal.2d 774, 778-779.)
       The charges were properly joined under section 954, and defendant does
not argue otherwise. The two shootings were connected in their commission
because the same gun was used in both incidents, and because the evidence
suggested that Christopher‟s brothers were looking for Christopher‟s killer when
they were shot. The assault on Webster was likewise connected to the two
shootings because defendant‟s admissions to Webster regarding both shootings
provided defendant with a motive to intimidate her. (See People v. Valdez (2004)
32 Cal.4th 73, 119 [murder and escape charges were “ „connected together in their
commission‟ ” because “the motive for the escape was to avoid prosecution” on
the murder charge].) In addition, the assault induced Webster to report
defendant‟s admissions to police.
       Even if charges are properly joined under section 954, the trial court retains
discretion to try them separately, but “[t]he burden is on the party seeking
severance to clearly establish that there is a substantial danger of prejudice
requiring that the charges be separately tried.” (People v. Bean (1988) 46 Cal.3d
919, 938.) “As we often have observed, because consolidation or joinder of
charged offenses ordinarily promotes efficiency, that is the course of action
preferred by the law.” (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220
(Alcala).) In ruling on a severance motion, “the court must assess the likelihood
that a jury not otherwise convinced beyond a reasonable doubt of the defendant‟s
guilt of one or more of the charged offenses might permit the knowledge of
defendant‟s other criminal activity to tip the balance and convict him.” (People v.
Bean, at p. 936.) We review the trial court‟s decision to deny a severance motion
for abuse of discretion. (Alcala, at p. 1220.) To establish an abuse of discretion,



                                          28
the defendant must make a “ „clear showing of prejudice.‟ ” (Ibid., italics
omitted.)
       In reviewing a trial court‟s denial of a motion for severance, “we consider
the record before the trial court when it made its ruling.” (Alcala, supra, 43
Cal.4th at p. 1220.) We first consider whether evidence of each of the offenses
would be cross-admissible in “hypothetical separate trials.” (People v. Soper
(2009) 45 Cal.4th 759, 774 (Soper).) If the evidence is not cross-admissible, we
then consider “whether the benefits of joinder were sufficiently substantial to
outweigh the possible „spill-over‟ effect of the „other-crimes‟ evidence on the jury
in its consideration of the evidence of defendant‟s guilt of each set of offenses.”
(People v. Bean, supra, 46 Cal.3d at p. 938.) In making this assessment, “we
consider three additional factors, any of which — combined with our earlier
determination of absence of cross-admissibility — might establish an abuse of the
trial court‟s discretion: (1) whether some of the charges are particularly likely to
inflame the jury against the defendant; (2) whether a weak case has been joined
with a strong case or another weak case so that the totality of the evidence may
alter the outcome as to some or all of the charges; or (3) whether one of the
charges (but not another) is a capital offense, or the joinder of the charges converts
the matter into a capital case. [Citations.] We then balance the potential for
prejudice to the defendant from a joint trial against the countervailing benefits to
the state.” (Soper, supra, at p. 775.)
       On the other hand, if the evidence is cross-admissible, “that factor alone is
normally sufficient to dispel any suggestion of prejudice and to justify a trial
court‟s refusal to sever properly joined charges.” (Soper, supra, 45 Cal.4th at
p. 775.) We conclude that even if the three sets of offenses had been tried
separately, evidence of each would have been admissible in the trials of the other



                                          29
two, and that the court was justified in denying defendant‟s motions to sever the
properly joined charges.
       Defendant first argues that the three sets of crimes were not sufficiently
similar to one another to qualify as cross-admissible on the issue of identity.
Defendant correctly observes that the admission of evidence of an uncharged
crime under Evidence Code section 1101, subdivision (b), to prove identity4
requires the highest degree of similarity between the charged offense and the
uncharged crime, and that “the offenses must share common features that are so
distinctive as to support an inference that the same person committed them.”
(People v. Scott (2011) 52 Cal.4th 452, 472; see People v. Ewoldt (1994) 7 Cal.4th
380, 403 [“ „The pattern and characteristics of the crimes must be so unusual and
distinctive as to be like a signature‟ ”].) Here, however, the cross-admissibility of
the three criminal incidents in hypothetical separate trials does not depend on the
application of Evidence Code section 1101, subdivision (b), to prove identity, and
the relevance of the three criminal incidents to each other does not derive from
their similarity. Rather, their relevance derives from the fact and sequence of their
commission. Defendant‟s desire to avoid prosecution for Christopher‟s murder
provided a motive for the shooting of Christopher‟s brothers, and his desire to
avoid prosecution for both shootings provided a motive for his role in the torture
of Webster. (See People v. Zambrano (2007) 41 Cal.4th 1082, 1129-1130
[evidence that offenses are similar is “not crucial where the mere fact that the


4      Evidence Code section 1101, subdivision (b), provides in relevant part:
“Nothing in this section prohibits the admission of evidence that a person
committed a crime, civil wrong, or other act when relevant to prove some fact
(such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or]
absence of mistake or accident . . .) other than his or her disposition to commit
such an act.”



                                         30
defendant committed a prior offense gives rise to an inference that he had a motive
to commit a later one”].)
       Notwithstanding defendant‟s assertion to the contrary, the evidence that he
committed the second shooting would have been admissible in a separate trial on
the first shooting. Specifically, evidence that defendant shot Christopher‟s
brothers only two days after Christopher was shot, when they were in the
neighborhood actively looking for their brother‟s killer, tended to establish
defendant‟s consciousness of guilt with regard to Christopher‟s shooting, which
would be probative of his identity as the perpetrator of that murder. (See People v.
Harrison (2005) 35 Cal.4th 208, 230 [trial court properly admitted evidence as
proof of the defendant‟s consciousness of guilt, “which in turn was probative of
his identity as the perpetrator of the charged offenses”]; see also People v. Cain
(1995) 10 Cal.4th 1, 32; People v. Wilson (1992) 3 Cal.4th 926, 940.)
       Defendant‟s involvement in the first shooting likewise would have been
admissible in a separate trial on the second shooting. Because Christopher‟s
brothers were trying to find the person who shot him, Christopher‟s killer had a
motive to eliminate them. At the time they were shot, Michael, Torry, Brian, and
Watson were headed toward the location where they planned to meet a woman
named “Nicole,” who had contacted Michael to tell him she had information about
Christopher‟s killer. Although there was no direct evidence adduced at the
preliminary hearing that defendant used “Nicole” to set up Christopher‟s brothers,
the evidence raised a reasonable inference that it was no coincidence defendant
happened to pull up next to the brothers‟ car, and that defendant was aware the
brothers likely would be in that place at that time. (See People v. Arias (1996)
13 Cal.4th 92, 127-128 [evidence of prior murder would have been admissible in
trial on kidnapping and robbery charges because it supplied evidence that the
motive for the robbery and kidnapping was to obtain money and transportation to

                                         31
avoid apprehension for the murder].) Evidence of defendant‟s involvement in
Christopher‟s shooting, because it suggested a motive to shoot Christopher‟s
brothers, also would have had some bearing on the issues of whether defendant
intended to kill the brothers and premeditated that shooting. (See, e.g., People v.
Cummings (1993) 4 Cal.4th 1233, 1284 [evidence of robbery would have been
admissible in trial on charge of murdering a police officer, because evidence of the
robberies established the motive for killing the officer, and motive to avoid arrest
was circumstantial evidence of premeditation and deliberation].)
       Finally, evidence of defendant‟s involvement in both shootings would have
been admissible in a separate trial on the torture of Webster as evidence of
defendant‟s motive to prevent her from testifying about his admissions regarding
the two shootings. (See People v. Zambrano, supra, 41 Cal.4th at pp. 1129-1130
[evidence of assaults would have been cross-admissible in trial on the murder
charge to prove that the motive for the murder was to eliminate a witness to the
assaults].) And evidence of defendant‟s involvement in the torture of Webster
likewise would have been admissible in separate trials on both shootings to show
defendant‟s consciousness of guilt and therefore, his identity as the perpetrator.
(See People v. Harrison, supra, 35 Cal.4th at p. 230 [evidence of the defendant‟s
attempt to murder a witness to whom the defendant had admitted his involvement
in the shootings was properly admitted in his murder trial as consciousness of guilt
evidence].) Finally, the evidence of defendant‟s involvement in the shootings also
would have been admissible on the issue of Webster‟s credibility, because it
explained why she finally reported defendant‟s admissions to the police. (See
ibid. [evidence of the defendant‟s attack on a witness was relevant to the
credibility of the witness‟s testimony that defendant had admitted committing two
murders because it explained why “after the attack, [he] told the police about
defendant‟s admission, when he had not previously done so”].)

                                         32
       Defendant argues that there was no evidence presented at the preliminary
hearing suggesting that Webster was tortured to prevent her from testifying against
him. We disagree. Webster testified that defendant had admitted to her his
involvement in both shootings. She also indicated that during the assault at the
hotel room, defendant‟s brother Darrin told her that defendant was “ „stressing
out‟ ” and thought that she was “ „snitching him out.‟ ” Webster testified further
that defendant called Darrin during the incident and that Darrin asked defendant
whether he should kill Webster. When Darrin handed Webster the phone,
defendant asked her why she was lying and why she had not put money in his jail
account.
       Contrary to defendant‟s assertion, there was ample evidence in the
preliminary hearing record from which to draw the inference that Webster was
tortured, at defendant‟s behest, to dissuade her from testifying against defendant.
For example, viewing this incident in the context of defendant‟s admissions to
Webster, it could reasonably be inferred that defendant‟s complaint that Webster
had stopped giving him money reflected a concern that she had become disloyal to
him.
       Defendant further contends that even if each of the charges had some
relevance to the others, the evidence of other offenses would not have been cross-
admissible in hypothetical separate trials because it would have been excluded as
more prejudicial than probative under Evidence Code section 352. He argues, in
particular, that in a separate trial on the charge that defendant murdered
Christopher, evidence that defendant had shot and killed his two brothers and had
attempted to murder the two other passengers in their car, was highly
inflammatory and had limited relevance. We are not persuaded. Evidence of the
second shooting would have been highly probative in a trial concerning the
homicide of Christopher, first, because whoever killed Christopher had a motive to

                                         33
kill his brothers, and second because the subsequent shooting would have tended
to show defendant‟s consciousness of guilt, which in turn would be probative of
his identity as the perpetrator of the first shooting, as previously discussed. In
addition, although there were more victims in the second shooting, the
circumstances of that crime would be no more likely to inflame the jury than
would be the circumstances of the first shooting.
       Defendant also contends that the evidence of the torture of Tyiska Webster
was particularly inflammatory and would have been excluded under Evidence
Code section 352 in separate trials on the murder charges because it had little
probative value. As explained above, however, evidence of the torture was highly
relevant to the murder charges not only because it evidenced defendant‟s
consciousness of guilt, but also because it was relevant to Webster‟s credibility.
Furthermore, it is not clear that the evidence of the crimes against Webster, which
involved the prolonged infliction of pain, albeit not directly by defendant, would
be more likely to inflame the jury against defendant than evidence of the
shootings, which resulted in the deaths of three young men from the same family.
       Because evidence of each of the crimes was fully cross-admissible, the trial
court did not abuse its discretion in denying defendant‟s motion to sever the
charges.




                                          34
                                 III. CONCLUSION
       The judgment is reversed in its entirety. Retrial of the case is not barred by
the double jeopardy clauses of the state and federal Constitutions.
                                                           CANTIL-SAKAUYE, C. J.
WE CONCUR:

WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.




                                         35
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Armstrong
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S130659
Date Filed: August 11, 2016
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: William R. Pounders

__________________________________________________________________________________

Counsel:

Patricia A. Scott, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Jaime L. Fuster and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Patricia A. Scott
1042 Willow Creek Road, #463
Prescott, AZ 86301
(928) 445-8380

Eric J. Kohm
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2273
