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People v. Bell2/27/2003
iews about the evidence.
Defendant also asserts the trial judge coerced a verdict, both by "telegraphing to the newly seated jurors the message that they must deliver `true' findings," and by denigrating the jury's task as a "perfunctory" one. We disagree.
Although trials on priors are usually routine, the trial court should not have used the term "perfunctory," as it could have been misunderstood. (See People v. Anderson (1990) 52 Cal.3d 453, 469 [trial court improperly told jury "intent to kill was a `fairly simple question'"]; People v. Keenan (1988) 46 Cal.3d 478, 534 [trial court "should never imply that the case warrants only desultory deliberations"].) What the court meant was the issues were clear-cut (i.e., no mental state, aider liability and so forth, as arose in the main trial). (See People v. Kelii (1999) 21 Cal.4th 452, 458-459 [jury's role limited to determining if evidence of priors is authentic and priors comport with allegation in pleading].) But the word "perfunctory" can also be taken to mean the issue is insignificant, and that is the wrong message to send, even if not intended. In the same vein, the trial court referred to the case against LeMaire as "simple," when the trial court meant, well-defined; the court was aware the case against LeMaire was "a tough case." "And the charges are pretty serious." By no means did the trial court intend to denigrate the importance of the case. The comments do not suggest that the court was pushing the jury to convict on the alleged priors. Nor would the comments lead the jury to conclude the trial court wanted the jury to decide the issues against Bell.
Nor does the fact two jurors were removed for refusing to deliberate mean the remaining jurors and two new jurors would be cowed into convicting on the priors. As observed by the Attorney General, the trial court instructed the newly constituted jury to disregard the fact two jurors had been discharged and begin fresh deliberations. We presume the jury obeyed this instruction. (People v. Romo (1975) 47 Cal.App.3d 976, 990.) Further, as stated above, the defense was allowed to argue nullification, but instead the new jury chose to follow the law as it applied to the evidence. No error is shown.
D.
Defendant Bell contends his trial attorney was incompetent in two particulars, incorporating claims discussed elsewhere. We conclude Bell fails to show prejudice, a necessary element of a claim of incompetent counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)
First, Bell contends his trial attorney should have objected to questions posed during cross-examination which asked him to comment on the veracity of other witnesses. As stated above, no such improper questions were asked. To the extent Bell separately urges the prosecutor was argumentative during his cross-examination, no plausible claim of prejudice appears.
Next, Bell urges his trial attorney should have asked for instructions on third-party culpability. The jury did not need an instruction telling it to acquit Bell if it believed he was not the burglar; that idea is implicit in the instructions defining the elements of the crime and holding the People to proof beyond a reasonable doubt. As stated above, had the instruction been requested, the trial court could properly have refused to give it.
III. Issues Relating to Defendant LeMaire Only
A.
Defendant LeMaire contends no substantial evidence supports her burglary conviction, based on aider liability. Applying the appropriate standard of review, we disagree.
" n examining the sufficiency of the evidence to support a questioned finding, an appellate c
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