Filed 6/26/14 P. v. Harper CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F064498
         Plaintiff and Respondent,
                                                                                (Super. Ct. No. 1245527)
                   v.

DAVID LEE HARPER, SR.,                                                                   OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T.
Steffan and Dawna Reeves, Judges.

         Thea J. Greenhalgh, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
Larenda R. Delaini, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         Defendant David Lee Harper, Sr., was convicted by jury of attempted murder
(Pen. Code,1 §§ 664, 187, subd. (a)), shooting from a motor vehicle (former § 12034,

         1All further references are to the Penal Code unless otherwise indicated.
subd. (c), now § 26100, subd. (c)), and two counts of assault with a firearm (§ 245, subd.
(a)(2)). The jury also found true the special allegations that defendant premeditated and
deliberated the attempted murder (§ 189), he personally fired the firearm (§§ 12022.53,
subds. (c) & (d), 12022.5, subd. (a)), and he personally inflicted great bodily injury upon
a child under the age of five (§ 12022.7, subd. (d)). In a bifurcated court trial, the court
found true the allegations that defendant suffered a prior serious felony conviction within
the meaning of the three strikes law (§§ 667, subd. (d), 1192.7, subd. (c)), suffered a prior
conviction within the meaning of section 667, subdivision (a), and suffered four prison
priors within the meaning of section 667.5, subdivision (b). The trial court ultimately
sentenced defendant to a total term of 39 years to life plus a consecutive term of 23 years.
       On appeal, defendant argues the trial court erred in removing a juror during trial
without good cause and further contends his counsel was ineffective for failing to request
a jury instruction. We affirm.
                                           FACTS
       As the facts are not in dispute on appeal, we will only briefly recount them here.
This case is the result of a drive-by shooting where the victim, a 20-month-old child, was
shot and gravely injured. Although disputed at trial, the jury determined defendant was
the person who fired the shots. The evidence establishing defendant as the shooter
included two eyewitness identifications. The vehicle used in the shooting was distinctive.
It belonged to one of defendant’s sisters and was normally driven by defendant’s brother.
Defendant, along with his brother and Roneel Prasad, painted the vehicle in the hours
following the shooting. Also, defendant altered his appearance by cutting his hair
immediately after the shooting. Additionally, Prasad, who was married to one of
defendant’s sisters, testified against defendant after being convicted of being an accessory
for his involvement in this case. As a result of Prasad’s plea to his involvement in the
case, he was going to be deported. He stated he did not receive any leniency as a result
of his agreement to testify against defendant.



                                              2.
       Prasad testified defendant admitted the shooting to him and later sent him several
threatening notes while the two were in custody together. He described the notes as
“kites,” which are messages written on small pieces of paper and used by inmates to
covertly communicate with each other. The kites told Prasad to “keep his mouth shut,”
and indicated he or his family could be harmed. Prasad further testified defendant and his
brother approached him shortly after the shooting, defendant brandished a revolver and
demanded Prasad give them a ride, and defendant discarded shell casings out the window
of the car during the ride.
       According to the evidence the intended target of the shooting, Ramiro Serna,
fought with defendant two weeks prior and cut defendant’s face. Prasad testified
defendant had contact with Serna, and the two agreed not to testify against each other in
their respective cases. Defendant and his brother also came up with a plan to blame the
shooting on James Barrett.
       The defense disputed the prosecution’s evidence and claimed James Barrett, the
boyfriend of defendant’s sister, was the shooter. In support, the defense produced
evidence that two members of the victim’s family identified Barrett as the shooter when
shown a single photograph by a defense investigator approximately two years after the
shooting. One of the family members had previously identified defendant as the shooter
from a photographic lineup. The other eyewitness who identified defendant as the
shooter had charges pending against him at the time he came forward with the
information regarding defendant. Pursuant to an agreement with the prosecution, he was
allowed to enter a plea for a two-year prison term, although his prison exposure was as
much as nine years and eight months. Defendant’s wife provided defendant with an alibi
at trial, although her testimony regarding the alibi and changing his appearance were
inconsistent with prior statements she had made to the police. Serna denied defendant
was the one who shot at him. He further denied cutting defendant’s face two weeks
earlier, although he admitted to pleading guilty to that offense. A handwriting expert
testified the kites Prasad identified as being authored by defendant were written by at

                                             3.
least two different individuals, or possibly three. Additionally, the defense challenged
Prasad’s credibility, arguing he was not telling the truth about his conversations with
defendant, and theorizing he could have written the kites to gain favor with the district
attorney’s office.
       Although the jury heard approximately 10 days’ worth of testimony and was
tasked with deciding several charges and enhancements, the jury returned its guilty
verdicts after approximately two and one-half hours of deliberations.
                                        DISCUSSION
I.     The Removal of Juror No. 7 Was Harmless
       Defendant argues at length that the trial court’s removal of Juror No. 7 after
learning a member of defendant’s extended family had contact with the juror constituted
error. He claims the trial court failed to conduct an adequate inquiry into the matter, and
its reasons for excusing the juror were insufficient.
Background
       Near the end of trial, the prosecutor informed the court and defense counsel that
she had just been made aware of a telephone call between defendant and Millie Garcia.2
This call took place the evening before and had been tape-recorded. She had not listened
to the tape at that time; however, she had been informed defendant may have made some
admissions during the call.
       In addition, the prosecutor informed the court that a member of defendant’s
family, Anthony,3 had been observed having a conversation with Juror No. 7 before the
proceedings that morning by Investigator Kirk Bunch. Bunch explained that on his way
to court, he observed Anthony speaking with Juror No. 7. After learning this


       2She is alternatively referred to as Millie Harper and Millie Garcia in the record. Due to
the confusion, we will refer to her as Millie throughout the remainder of the opinion. No
disrespect is intended.
       3According to the record, Anthony is Millie’s son. Millie is the wife or girlfriend of
defendant’s brother.


                                                4.
information, the court held a closed hearing to inquire into the matter with the juror and
the investigator.
       During the hearing the court described Anthony to Juror No. 7, who then stated he
“asked me for a cigarette and I gave him a couple of cigarettes. That’s it.” Juror No. 7
explained she had been in her truck, parked outside of the courthouse, and was taking her
insulin when Anthony approached and asked her for a cigarette because “he knows I
smoke.” When asked how Anthony would know Juror No. 7 smokes, she explained he
had seen the jurors smoking previously.
       Regarding the contact, Juror No. 7 stated it was very brief and consisted of him
asking for the cigarette and Juror No. 7 telling him the brand she smoked. The record is
unclear as to whether the conversation took place while she was inside of her truck or
after she had exited. After she exited her truck, she entered the courthouse. When asked
if Anthony was “smoking his cigarette that you gave him near you,” the juror replied,
“He was up against the wall.” She believed Anthony entered the courthouse behind her
but she was not sure.
       At the time of the contact, Juror No. 7 did not know Anthony was a member of
defendant’s family, although she had seen him in the courtroom. Juror No. 7 denied
having any further conversation with Anthony or smoking a cigarette with him. During
the inquiry Juror No. 7 mentioned Anthony had asked her for a lighter on a previous
occasion. She explained she often goes outside to smoke with another juror on breaks,
but she had not noticed Anthony outside when she was smoking. On the prior occasion
when he asked her for a lighter, there was no further conversation. Juror No. 7 stated she
had never discussed the case with Anthony.
       Subsequently, the court inquired of Investigator Bunch regarding what he had
observed. He noted the two were talking and laughing as he walked by into the
courthouse. The two then followed each other into the courthouse. He did not observe
any cigarettes when he walked by. He explained his observation was brief, but he did
notice the two interacting with each other and laughing. He could not hear the content of

                                             5.
the conversation. He did not see any cigarettes or exchange of cigarettes, although that
could have happened before he saw them. When questioned further regarding the details
of the interaction between the two, Bunch explained he first saw Anthony talking and
then Juror No. 7 interacting and then the two laughed.
      During the hearing the prosecutor also questioned Bunch regarding a recorded jail
telephone call which took place between defendant, Millie, and Anthony. Bunch
explained he reviewed a copy of the recording he had received. During the call,
defendant attempted to describe a juror with whom he had been making eye contact and
exchanging gestures. It appeared defendant was attempting to identify the juror to
Anthony. When the prosecutor asked Bunch to relay the physical features of the juror
defendant had described to Anthony, the court interrupted the questioning and explained
its

      “concern is not with whether or not [defendant] thinks that some of the
      jurors—one, two or more of them, are on his side. My concern is more that
      a member of the defendant’s family has made, on two occasions, contact
      with a juror member. I wanted to hear the nature of the conversations so
      that I could know if there was something being said about a juror trying to
      contact a juror, or anything like that. Was there any conversation about
      anyone trying to contact a juror?”
Bunch responded “No, ma’am.”
      At this point the prosecutor explained that her

      “concern is that if there was a conversation between [defendant] and
      Anthony, just last night, about whatever they think about whatever juror,
      and [defendant] describes the juror to Anthony in a way where now
      Anthony knows who he thinks might be on their side or whatever, I don’t
      care if she is or not, my point is then Anthony is now making contact with
      somebody he believes is going their way, and I think with a malicious
      intent to sway that juror. Whether it’s to gain some sort of favor or
      common ground because they both smoke, share a laugh, whatever it is, it’s
      improper and it’s an attempt to bias a juror. And that’s why I wanted the
      physical description given by [defendant], because he could be describing
      somebody else that doesn’t even have to do with Miss—well, juror number
      seven, for the record. And that’s my concern. And if that’s happening,
      then what’s going on here is a direction without spoken words. And maybe
      it’s not coming from [defendant], maybe it’s coming from Anthony, but

                                            6.
       regardless of where it’s coming from, it should not happen. And I’m
       deeply concerned now that she is both tainted and there’s been an attempt
       to sway her or bias her in a particular direction, and I think she should be
       removed.

               “And not only that, it appears from investigator Bunch’s accounting
       of what he observed, granted he did not hear content, that there’s a
       difference in facts than what the juror has now told us. And I don’t blame
       her if there is a difference, I’m saying she’s probably feeling really
       uncomfortable, and—but she clearly did not say, you know—it appeared to
       me, and maybe we could clarify with her, that she just gave him a cigarette,
       he lit up a cigarette and went and stood by the wall, and that’s not what
       we’re hearing happened here.”
       Subsequently the court gave its tentative ruling, noting Anthony had been present
in court every day since the beginning of trial. The court explained,

       “My concern, if he is a member of [defendant’s] family, is that he’s
       attempting to make contact with our jurors. And I think even an ordinary
       citizen, having not been instructed not to, would know that’s improper. I’m
       not really, at this point, not having heard the conversation, real concerned
       about the connection between the call and this juror. My concern is that
       we’ve got a member of the defendant’s family attempting to make contact
       with the jurors on more than one occasion. He does not appear to be a
       gentleman who’s in need of a cigarette, in my view. He comes to court
       everyday in a suit, he’s here on time every time. He could ask anybody
       else on the sidewalk for a cigarette or a lighter. I don’t know why he’s
       approaching our juror or jurors. I do think that’s improper. And my
       tentative ruling is to excuse the juror, admonish that—admonish or banish
       him from the courtroom, ’cause I don’t want this to happen again.”
       Defense counsel objected to the removal of the juror, arguing “this doesn’t reach
the bias sort of standard that we use for removing jurors.” The court stated: “My
concern is his twice now approaching the juror, and that’s what she said. She said that he
asked her for a cigarette today and on a prior occasion asked her for a lighter. That’s not
proper. And I can’t have that going on.” The court stated it would remove Juror No. 7
and replace her with a randomly selected alternate.
       Defense counsel once again objected, stating she did not “think this was an
appropriate reason to replace number seven, and my concern is that this is being done
because there are conversations overheard where people thought that the prosecution

                                             7.
thought that maybe juror number seven was on the defense side and I will make—end my
comments with that.” In response, the court noted,

       “We haven’t yet heard the conversation in its entirety. I’ve indicated that
       I’m not concerned about whether or not [defendant] feels that he’s got juror
       number four or seven or eight, or whoever it is, on his side. My concern is
       that there’s a member of the [defendant’s] family attempting to make
       contact with the jurors. And if that juror has been twice contacted by him,
       what she indicates as a conversation does not appear to be the same that
       Investigator Bunch says that he saw. I don’t know which is accurate, but
       the fact of the contact remains, and one of them went unviewed. I don’t
       know if there’s any other members of the jury that he’s attempted to
       contact, but if the rule is if you contact a juror and the juror’s going to be
       gone, perhaps we won’t have this problem again. I can’t take the chance
       that they’re out there talking about the case or that he’s going to try to
       approach her again or something like that. So she’s going to be released. I
       understand your concern, but I can’t have members of the audience
       contacting the juror. That’s not proper.”
       Juror No. 7 was returned to the courtroom where the court asked a few clarifying
questions, then informed her she would be released. The court explained the juror was
not being faulted for the contact. Juror No. 7 was replaced with an alternate juror.
Analysis
       While a defendant has a fundamental constitutional right to be tried by a fair and
impartial jury (Irvin v. Dowd (1961) 366 U.S. 717, 722), that right does not entitle a
defendant to a jury composed of any particular individuals. (People v. Hamilton (1963)
60 Cal.2d 105, 128, disapproved on other grounds in People v. Daniels (1991) 52 Cal.3d
815, 866 and People v. Morse (1964) 60 Cal.2d 631.) Indeed, section 1089 allows for the
removal and substitution of a juror for “good cause.” Removing a juror pursuant to
section 1089 “does not offend constitutional proscriptions.” (People v. Collins (1976) 17
Cal.3d 687, 691, superseded by statute on other grounds in People v. Boyette (2002) 29
Cal.4th 381, 462.) “We review a trial court’s decision to discharge a juror under an abuse
of discretion standard, and will uphold such decision if the record supports the juror’s
disqualification as a demonstrable reality.” (People v. Wilson (2008) 43 Cal.4th 1, 26,
citing People v. Barnwell (2007) 41 Cal.4th 1038, 1052-1053.)

                                             8.
       Defendant argues the trial court violated section 1089 by removing the juror in this
case, as the record does not demonstrate the juror committed any misconduct or was
biased in any way. Defendant further argues the trial court erred in failing to make an
adequate investigation into the matter.
       We need not determine whether the trial court erred in dismissing Juror No. 7
because even if we were to find error, we find no prejudice. In People v. Howard (1930)
211 Cal. 322, disapproved on other grounds by People v. Thomas (1945) 25 Cal.2d 880,
905 and People v. Sheran (1957) 49 Cal.2d 101, 108, our Supreme Court found replacing
a juror with an alternate did not constitute prejudicial error even though the substitution
violated section 1089 at the time. The court noted the substitution was “an irregularity
which in no way substantially affected the defendant’s rights.” (People v. Howard,
supra, at p. 325.) The court explained the alternate juror participated in the same voir
dire proceedings, was subjected to the same challenges, and took the same oath as the
other jurors. Therefore, the court could assume the defendant did not find the alternate
objectionable and was satisfied the alternate could be fair and impartial should he be
substituted for one of the other jurors. (Id. at pp. 324-325.) Consequently the court
found no prejudice in the substitution. (Ibid.)
       Indeed, as one court has stated, “It is long-established law in California that where
an alternate juror, approved by defendant in voir dire, is allowed to deliberate on the jury
panel, the defendant bears a heavy burden to demonstrate that he was somehow harmed
thereby.” (People v. Hall (1979) 95 Cal.App.3d 299, 307; see People v. Hamilton, supra,
60 Cal.2d at p. 127; People v. Bowers (2001) 87 Cal.App.4th 722, 735-736 [error in
excusing juror without good cause is reversible only if defendant is prejudiced thereby].)
       Defendant argues he was in fact prejudiced by the dismissal of Juror No. 7. He
claims that “although no specific evidence was elicited that Juror No. 7 favored the
defense, such concern was certainly the prosecution’s worry.” The prosecutor “implied
there was a danger the juror had been swayed or biased because the non-juror contact was
someone who was a part of [defendant’s] extended family.” In support defendant relies

                                             9.
upon People v. Hamilton, supra, 60 Cal.2d 105 and People v. Hernandez (2003) 30
Cal.4th 1. We find both cases distinguishable.
       In People v. Hamilton, the Supreme Court found the removal of the juror during
the penalty phase of trial was without good cause as there was no basis for concluding her
conduct demonstrated misconduct or an inability to perform her duties. As such, the
juror’s dismissal violated section 1089. (People v. Hamilton, supra, 60 Cal.2d at p. 126.)
The court subsequently considered whether the dismissal was prejudicial. After
reviewing cases determining the erroneous removal was harmless, the court explained
there was no showing in those cases the removed juror was “more favorable to one side
or the other.” (Id. at p. 127.) However, the situation was quite different in Hamilton
where the removed juror “‘had disclosed her opposition to a verdict imposing the death
penalty.’” (Id. at p. 128.) Consequently, her removal was obviously prejudicial to the
defense. The court explained:

       “While it has been said repeatedly, in the cases cited above, that a
       defendant is not entitled to be tried by a jury composed of any particular
       individuals, but only by a jury composed of qualified and impartial jurors,
       this does not mean that either side is entitled to have removed from the
       panel any qualified and acting juror who, by some act or remark made
       during the trial, has given the impression that he favors one side or the
       other. It is obvious that it would be error to discharge a juror for such a
       reason, and that, if the record shows (as it does here), that, based on the
       evidence, that juror was inclined toward one side, the error in removing
       such a juror would be prejudicial to that side. If it were not, the court could
       ‘load’ the jury one way or the other.” (People v. Hamilton, supra, 60
       Cal.2d at p. 128, italics added.)
       In People v. Hernandez, supra, 30 Cal.4th 1, the court addressed whether the
erroneous dismissal of a juror pursuant to section 1089 and the substitution with an
alternate would bar a retrial. The Court of Appeal had determined the removal of the
juror was prejudicial to the defense. On review by the Supreme Court, the court “for
purposes of … review” accepted the appellate court finding regarding prejudice.
(Hernandez, at p. 4.) However, the court did explain the appellate court’s ruling was
based on the removal of a juror “‘who seemed inclined to give serious consideration to

                                             10.
the testimony of the defense witnesses.’” (Id. at p. 10.) Thus, the court upheld the
appellate court’s ruling that the removal was prejudicial.
       Our review of other cases requiring reversal due to an error from improperly
dismissing a juror all demonstrated facts in which the prejudice to the defense from
removing the juror was obvious. (See, e.g., People v. Wilson (2008) 44 Cal.4th 758, 813-
814, 841 [removal of sole holdout juror for life sentence in penalty phase of trial found
prejudicial]; People v. Cleveland (2001) 25 Cal.4th 466, 486 [error in removing
deliberating juror prejudicial where evidence showed juror was in favor of acquittal];
People v. Delamora (1996) 48 Cal.App.4th 1850, 1856 [error in removing jurors
prejudicial where jury was deadlocked prior to removal but quickly reached verdict to
convict after substitution with alternate jurors].)
       Unlike the situations in Hamilton and Hernandez, there is no evidence on the
record demonstrating Juror No. 7 favored one side or the other. Indeed, Juror No. 7 never
expressed any sentiments about the case whatsoever. Defendant’s argument seems to be
centered upon the fact the prosecutor asked that Juror No. 7 be removed because of the
fear she had been biased by the contact with defendant’s family member. But there was
absolutely no evidence on the record indicating Juror No. 7 preferred one side over the
other. There is no indication on the record Juror No. 7 ever made any comments or
engaged in any nonverbal behavior indicating a preference for one side. There was some
minimal discussion regarding the telephone call between defendant and Anthony
regarding defendant’s efforts to describe a juror. But there was no evidence as to whether
that juror was favorable to one side, any evidence as to why defendant may have believed
the juror favored one side, or any evidence as to who that juror was. While there was
some evidence as recounted from listening to the telephone call that defendant had made
eye contact with a juror, there was no evidence presented as to which juror that was, nor
any evidence establishing the juror leaned to one side or the other. Thus, any argument
that Juror No. 7 expressed an inclination as to one side or the other in this case is
completely unsupported by the record and would consist of pure speculation.

                                              11.
       Rather, this case is more similar to People v. Abbott (1956) 47 Cal.2d 362, which
was cited in Hamilton. There, during trial, the court learned one of the jurors worked at
the same office as the defendant’s brother. The two worked in close physical proximity.
(Id. at p. 370.) As a result, the court inquired of the juror, learning that although the juror
worked near the defendant’s brother, he had never spoken to the brother and did not
know who he was until he was pointed out in court. (Id. at pp. 370-371.) He stated he
had never discussed the case with anyone and believed he could be fair and impartial; he
did not want to be relieved from the jury. The trial court removed the juror due to the
proximity at work between the juror and the defendant’s brother and to save the juror
from embarrassment or criticism. (Id. at p. 371.) Initially the Supreme Court found the
removal of the juror was for good cause, but further declared there was no prejudice to
the defendant from the removal of the juror and the substitution with an alternate. (Id. at
pp. 371-372.) The court explained the alternate was fully examined and accepted by both
sides, was part of the jury since the beginning of trial, and there was no claim he could
not render a fair verdict. (Ibid.)
       Likewise here, the alternate juror was examined and accepted by both sides, was a
member of the jury from the beginning of trial, and defendant does not claim the alternate
was biased in any way against either side. Importantly, there was no evidence Juror
No. 7 in any way favored one side, nor was there any evidence the substituted alternate
was anything but fair and impartial. As such, we find no prejudice from the removal.
(See People v. Cleveland, supra, 25 Cal.4th at p. 486; People v Bowers, supra, 87
Cal.App.4th at pp. 735-736.)
       To the extent defendant argues the error also violated his constitutional right to a
jury trial, we reject his claim. Defendant’s entire argument relies upon a brief citation to
two cases, Downum v. United States (1963) 372 U.S. 734 (Downum) and Crist v. Bretz
(1978) 437 U.S. 28, 35-36 (Crist). Both cases dealt with the dismissal of an entire jury
panel without good cause and without reaching a verdict. (Downum, supra, at p. 735;
Crist, supra, at pp. 29-30.) In both instances the Supreme Court found the empanelling

                                              12.
of a new jury after the first had been discharged without reaching a verdict to be a
violation of double jeopardy. (Downum, supra, at pp. 737-738; Crist, supra, at pp. 35-
38.)
       However, our Supreme Court has held the dismissal of a single juror and
replacement with an alternate does not implicate double jeopardy concerns. (People v.
Hernandez, supra, 30 Cal.4th at pp. 10-11.) The court explained the right the high court
sought to protect in Crist was the right of “‘an accused in retaining a chosen jury.’” (Id.
at p. 8, quoting Crist, supra, 437 U.S. at pp. 35-36.) The court explained that right was
not violated when the “defendant’s chosen jury was not discharged but instead, with the
substitution of a preselected alternate juror, remained intact until a verdict was rendered.”
(People v. Hernandez, supra, at p. 9.) In reaching this conclusion, the court relied upon
People v. Burns (1948) 84 Cal.App.2d 18.
       In Burns, the court addressed the situation where a court improperly dismissed a
juror pursuant to section 1089. The defendant claimed the dismissal of that juror, in
violation of section 1089, caused him to be placed in front of two different juries, thereby
implicating the double jeopardy clause. In rejecting the claim, the court explained:

       “[A] verdict by 12 jurors, one of whom was originally an alternate juror, is
       the verdict of the jury originally sworn to try the case. If the substitution of
       the alternate for one of the regular jurors is in accordance with the
       provisions of … section 1089 no question of double jeopardy would arise.
       This can only be true if the substitution of the alternate for the regular juror
       does not destroy the unity of the jury. It does not destroy the unity of the
       jury because the jury is not complete until the alternate is accepted and
       sworn and the alternate is at all times a potential member of the regular
       jury. [¶] The requirement of trial by one jury is satisfied, where a jury
       composed of 12 regular jurors and one or more alternates has been
       impaneled, if the verdict is returned by 12 jurors sworn to try the case
       although one or more alternates may be included in the jury which renders
       the verdict. If this is true where the substitution has been made in the
       manner provided by … section 1089 it must be true where it has been made
       in an irregular manner. The same number of jurors sworn to try the case in
       the same way are involved in either instance. Either the substitution of an
       alternate for a regular juror destroys the unity of the jury or it does not. If it
       does not destroy the unity of the jury …, then the substitution of an
       alternate for a regular juror in an unauthorized manner does not place the
                                              13.
       defendant twice in jeopardy but is merely an error of law which should not
       lead to a reversal in the absence of a showing that it has resulted in a
       miscarriage of justice under article VI, section 4 1/2 of the Constitution.”
       (People v. Burns, supra, 84 Cal.App.2d at pp. 32-33.)
       As the Burns court explained, a defendant’s right to the original jury sworn to try
the defendant’s case is not destroyed by the substitution of an alternate. This principle
was reaffirmed in People v. Hernandez, supra, 30 Cal.4th at page 9. Therefore, we find
no violation of defendant’s right in retaining his chosen jury through the substitution of
an alternate juror here.
II.    Defendant Was Not Denied Effective Assistance of Counsel
       On the first day of trial, the prosecution moved in limine to admit the threatening
kites authored by defendant while in jail. The defense sought to exclude the writings,
claiming the prosecution had not authenticated the writings. Specifically, the defense
argued the kites “appear to have been authored by at least two different individuals,” and
the kites had never been examined by a handwriting expert.
       In addressing the issue in limine, the trial court inquired as to whether the
prosecutor would be able to lay the proper foundation for the admission of the kites. The
prosecutor indicated she would, arguing the “foundation can be laid though Roneel
Prasad in terms of writing and the receipt thereof. The content would speak for itself.”
She further explained “the authentication of handwriting can be done by a lay person and
lay opinion, it doesn’t require expert testimony, and that’s well-settled case law.”
Defense counsel disagreed, contending the prosecutor could not properly authenticate the
writings through a lay witness in this case. The court explained it wanted to determine
whether an Evidence Code section 402 hearing was going to be necessary on the matter
rather than simply allowing the prosecutor to attempt to lay the foundation during trial
and then ruling on the issue with a proper objection. Defense counsel noted her in limine
motion outlined the issue and informed the court she would seek a formal Evidence Code
section 402 hearing where she could present testimony from her expert on the matter.
The court explained that any hearing could be conducted the following day.

                                             14.
       The following day, defense counsel presented her expert, Marcel Matley. After
his expertise was established, Matley opined the kites he reviewed were written by two
different people, and possibly as many as three or four. The prosecutor asked that
defense counsel provide a report from Matley since she had not been provided one as of
that time. The prosecutor asked if the court had determined whether the kites would be
admitted, and the court stated that as it had not yet heard all of the arguments, the matter
would be deferred until a later time. As such, the parties were instructed not to mention
the writings in their opening statements or during evidence until the court had time to rule
on the issue.
       During the presentation of the evidence, the prosecutor asked Prasad if he
recognized the contested kites. After responding he did, defense counsel objected and the
parties discussed the matter off the record. Subsequently, out of the jury’s presence, the
court conducted an Evidence Code section 402 hearing to determine the admissibility of
the kites. During the hearing, Prasad testified he was familiar with defendant’s
handwriting from being housed with him at the jail when they would stay up and work on
the case. Additionally one of the kites was signed “young Dav,” which is how defendant
referred to himself. Defense counsel argued the kites should not be admitted because her
retained expert had opined they were written by two or more people, therefore, the
evidence was not “reliable.” At the end of the hearing, the trial court concluded the
documents had been adequately authenticated by the prosecution and were, therefore,
admissible.
       Subsequently, defense counsel moved for a mistrial, arguing the prosecutor
committed misconduct by eliciting the evidence regarding the kites, and the trial court
abused its discretion by admitting the kites. The motion was denied as was defendant’s
writ to this court that reiterated the same arguments. (Harper v. Superior Court (Feb. 25,
2011) F061824.) Defendant now abandons these arguments on appeal and instead argues
his counsel was ineffective for failing to request an instruction that the jury was required



                                             15.
to disregard the kites unless it first found defendant was in fact the author of the kites.
We find no error.
       Defendant’s contention centers upon his counsel’s failure to request an instruction
informing the jury it must first determine the preliminary fact of the authenticity of the
kites before it could consider the kites as evidence against defendant. While a trial court
is under no duty to give such an instruction sua sponte, it is required to give such an
instruction upon request. (Evid. Code, § 403, subd. (c)(1); People v. Lewis (2001) 26
Cal.4th 334, 362-364.) Indeed, Evidence Code section 403, subdivision (c)(1) provides
that where the admission of evidence is dependent upon proof of a preliminary fact, upon
admission of the evidence, the court “[m]ay, and on request shall, instruct the jury to
determine whether the preliminary fact exists and to disregard the proffered evidence
unless the jury finds that the preliminary fact does exist.” Here Evidence Code section
403 clearly applies to the preliminary fact of the authenticity of the kites. Had defense
counsel requested an instruction pursuant to this section, the court was required to
provide it. The question this court must address is whether counsel’s failure to request
such an instruction constituted ineffective assistance of counsel. We conclude it did not.
       “Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To establish
ineffective assistance of counsel, “‘a defendant must show both that his counsel’s
performance was deficient when measured against the standard of a reasonably
competent attorney and that counsel’s deficient performance resulted in prejudice to
defendant….’” (People v. Lewis (2001) 25 Cal.4th 610, 674.) However, “a court need
not determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies.… If it is easier
to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which
we expect will often be so, that course should be followed.” (Strickland v. Washington
(1984) 466 U.S. 668, 697.) Here we need not decide whether counsel provided

                                              16.
ineffective assistance as we find defendant has failed to demonstrate any prejudice from
the alleged error.
       In order to demonstrate prejudice, defendant must show that it is reasonably
probable he would have received a more favorable result had his counsel requested the
instruction. (People v. Lewis (1990) 50 Cal.3d 262, 288.) Defendant cannot show
prejudice where, as here, the instructions adequately informed the jury regarding the
authenticity of the kites.
       We note there are situations where the necessity of determining a preliminary fact
is so clear that an instruction on the issue is unnecessary. Indeed, the comment to
Evidence Code section 403 by the Assembly Committee on the Judiciary states:

       “Frequently, the jury’s duty to disregard conditionally admissible evidence
       when it is not persuaded of the existence of the preliminary fact on which
       relevancy is conditioned is so clear that an instruction to this effect is
       unnecessary. For example, if the disputed preliminary fact is the
       authenticity of a deed, it hardly seems necessary to instruct the jury to
       disregard the deed if it should find that the deed is not genuine. No rational
       jury could find the deed to be spurious and, yet, to be still effective to
       transfer title from the purported grantor.” (Assem. Com. on Judiciary com.,
       29B pt. 1B West’s Ann. Evid. Code (2011 ed.) foll. § 403, p. 21; cf. People
       v. Simon (1986) 184 Cal.App.3d 125, 130, fn. 3 [in cases admitting prior
       act evidence where defendant contests committing prior acts “it is generally
       unnecessary to instruct the jurors that if they believe the defendant, the
       prior act evidence should be disregarded; clearly if the defendant cannot be
       connected to the prior act, admission of evidence concerning it will not
       normally prejudice him.”].)
       Likewise here, where the issue as to the author of the kites was hotly contested, it
is highly unlikely the jury did not understand it must first determine whether defendant
wrote the kites before considering them as evidence against him. Defense counsel
challenged the authenticity of the kites by bringing in an expert to say they were written
by more than one person. Additionally, defense counsel cross-examined Prasad on the
issue of the authenticity of the kites, challenging his testimony that all the kites came
from the same person. Defense counsel also challenged Prasad’s familiarity with
defendant’s handwriting. Defense counsel pointed out Prasad had access to the discovery

                                             17.
in the case and therefore knew the details and could have written the kites himself.
During closing argument, defense counsel challenged Prasad’s ability to recognize
defendant’s handwriting and pointed out the expert’s testimony that the kites were written
by at least two different individuals. She further argued Prasad lied when he said the
kites were written by defendant. Counsel hypothesized Prasad had in fact written the
kites on his own to deflect attention from himself and to gain favor with the district
attorney’s office. In response, the prosecutor challenged the expert’s opinion regarding
the kites, explaining he had never compared the kites to any known handwriting
exemplars to say who wrote them. In addition, the prosecutor pointed out a document
found in defendant’s cell had examples of different handwriting styles on it and also used
language similar to that found in the kites.
       It is apparent from the trial testimony and closing arguments that the defense
challenged the authenticity of the kites. In doing so, counsel alerted the jury to its
argument the kites were not written by defendant. Although no specific instruction was
given telling the jury it could only consider the kites if it first determined they were
written by defendant, this was apparent through the arguments. (People v Marshall
(1996) 13 Cal.4th 799, 833-834 [finding “no possibility the jury could have
misunderstood its obligation to assess the relevancy of the reconstruction photographs”
where counsel argued reconstruction photographs inaccurately displayed conditions].)
       Furthermore, several instructions alerted the jury it must first determine whether
defendant authored the kites before considering them against him. The jury was
specifically instructed that it “heard evidence that the defendant made oral or written
statements before the trial. You must decide whether the defendant made any of these
statements in whole or in part. If you decide that the defendant made such statements,
consider the statements along with all the other evidence in reaching your verdict.”
(Italics added.) The jury was further instructed that if “the defendant tried to hide
evidence or discourage someone from testifying against him, that conduct may show that
he was aware of his guilt. If you conclude that the defendant made such an attempt, it is

                                               18.
up to you to decide its meaning and importance. However, evidence of such an attempt
cannot prove guilt by itself.” (Italics added.) Moreover, the jury was instructed that if it
determined there was a “conflict in the evidence, you must decide what evidence, if any,
to believe.” The jury was also fully instructed regarding how to evaluate the credibility
of witnesses, how to evaluate both lay and expert opinion, and the requirement of
corroboration of accomplice testimony should it find Prasad was an accomplice.
       The instructions as a whole plainly told the jury it had to decide whether the kites
were written by defendant and that if it determined the kites were written by him, it could
consider them with the other evidence. In People v. Lewis, supra, 26 Cal.4th 334, our
high court held there was no sua sponte duty to instruct the jury that it must disregard
evidence where it found the preliminary fact untrue. In reaching that conclusion, the
court explained such an instruction “would merely have told the jury the obvious: that if
it found [the witness] could not perceive or recollect, … then the jury should disregard
his testimony. Our faith in the common sense of jurors weighs against requiring a trial
court to give such instruction sua sponte.” (Id. at p. 362.) The court further rejected the
defendant’s alternative ineffective assistance of counsel claim as there was “no
reasonable likelihood of prejudice in that the instructions would not have provided
necessary guidance to the jurors.” (Id. at p. 363.)
       Likewise here, we conclude the instruction defendant now seeks would have done
nothing more than state the obvious: Before the jury could consider the writings as
evidence against defendant, it would have to determine they were authored by him.
Given defense counsel’s cross-examination on the subject, the presentation of an expert
witness stating the kites were not written by the same person, and her argument that the
kites were not written by defendant, the jury could not have missed the point. In
addition, the jury was expressly told it must determine whether statements attributed to
defendant were made by him before considering the statements. Given the evidence,
arguments, and instructions as a whole, there is no reasonable possibility the jury failed to
understand the necessity of determining the kites’ authenticity before considering the

                                             19.
evidence. Thus, defendant was not prejudiced by the failure to request any additional
instruction on the matter. (See People v. Smithey (1999) 20 Cal.4th 936, 985-987 [no
prejudice from failure to request a pinpoint instruction where jury was adequately
instructed as to the relevant law]; People v. Castillo (1997) 16 Cal.4th 1009, 1014–1017
[rejecting claim of ineffective assistance where counsel did not request pinpoint
instruction where instructions as a whole were not misleading and did not hinder defense
argument].)
       To the extent defendant argues he was prejudiced because the jury was not
instructed it was required to find the proof of the preliminary fact beyond a reasonable
doubt, he is mistaken. The proper standard as to the proof of a preliminary fact is by a
preponderance of the evidence. (People v. Marshall, supra, 13 Cal.4th at pp. 832-833;
People v. Herrera (2000) 83 Cal.App.4th 46, 61; People v. Simon, supra, 184 Cal.App.3d
at p. 134.) Thus defendant’s arguments the instructions failed to adequately state the
burden of proof are inapplicable.
       Finally, we reject defendant’s assertion the jury could have somehow shifted the
burden of proof to the defense. The jury was fully instructed regarding the proof beyond
a reasonable doubt standard and the People’s burden of establishing the offense beyond a
reasonable doubt. Additionally, both the prosecutor and the defense informed the jury
during closing arguments that the burden of proof rested solely with the prosecution.
       During closing arguments, the prosecutor stated: “I want to stress upon you that I
have the burden of proof. And I take that very seriously. I don’t shrug that off, I don’t
pass that to anyone else. As I stand here before you today, I accept that responsibility of
proving each and every count and allegation beyond a reasonable doubt against
[defendant].” (Italics added.) She reiterated this later, noting she “accepted the
responsibility that [the elements] must be proven beyond a reasonable doubt.” Again, in
her rebuttal argument, the prosecutor stated, “I have the burden of proof in this case.
And that is why I get to do a rebuttal argument, because that burden rests on me to prove
this case beyond a reasonable doubt.” (Italics added.) Defense counsel also noted during

                                            20.
her closing that the People bore the burden of proof. Nothing in the instructions either
singly or as a whole would lead the jurors to conclude it was the defense’s burden to
disprove authenticity of the writings. While the defense disputed the authenticity through
the cross-examination of Prasad and the presentation of Matley’s testimony, the burden
of proof was squarely and repeatedly placed on the prosecution. Defendant points to
nothing in the record nor makes any argument demonstrating how the jury would have
shifted to the defense the burden of proof on the issue. Based on the instructions as a
whole, we find no such reasonable probability exists. Therefore, defendant’s claim must
be rejected.
                                            DISPOSITION
       The judgment is affirmed.
                                                             __________________________
                                                                                PEÑA, J.
WE CONCUR:


 ________________________________
KANE, Acting P.J.


 ________________________________
SARKISIAN, J.*




       *Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.


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