TRIAL COURT RULINGS
In addition to challenging the prosecutor's conduct in this case, Nayeri also takes issue with various rulings the trial court made throughout the trial. The rulings encompass a broad array of issues, ranging from courtroom security, to jury instructions, to the post-verdict proceedings. A. Security Measures in the Courtroom
Although not required by any rule or statute, many trial court judges have developed practices that are designed to instill respect for the proceedings over which they preside. This case illustrates that, despite being well-intended, these practices must be administered carefully so as not to
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undermine the appearance of fairness that is so essential to our criminal justice system.
1. Factual Background At the beginning of each day of Nayeri's trial, the bailiff commenced the proceedings by reciting the following announcement in the courtroom: "Everyone please rise. In the presence of the flag of our country, emblem of the constitution, and remembering the principles for which it stands, the Superior Court of the State of California, in and for the County of Orange, is now in session. The Honorable Gregg L. Prickett, Judge Presiding. Please be seated and come to order." During the vast majority of the trial, Nayeri was allowed to stand and face the flag, along with the jurors and everyone else in the courtroom, when this announcement was made. At no point was he subjected to any physical restraints in front of the jury. However, for security reasons, Nayeri was not allowed to stand in response to the bailiff's announcement while he was on the witness stand. Even though all of the other witnesses were allowed to stand for the announcement during their testimony, the judge warned Nayeri outside the presence of the jury that if he did try to stand up, he would be tackled immediately by the bailiffs who were seated behind him. At the start of Nayeri's second day of testimony, before the jury entered the courtroom, defense counsel asked the judge if Nayeri could stand up when the bailiff made his morning announcement. The judge said no. He then asked defense counsel if he would like him to make a record of that issue for purposes of future review. The judge was prepared to make factual findings regarding Nayeri's escape from jail and how that created the need for extra security measures in the courtroom. However, defense counsel said that would not be necessary.
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Because the witness box is located directly in front of the American flag, the jurors could not help but see that Nayeri was not standing when they stood to face the flag. According to Nayeri, the jurors initially looked at him with curiosity when he did not stand. However, their expressions soon turned to anger, scorn, and disgust because they felt he was being disrespectful by remaining seated. At least that is how Nayeri interpreted the situation.
On the third day of Nayeri's testimony, prior to the bailiff's morning announcement, defense counsel asked the trial judge if he would be willing to explain to the jury that Nayeri was staying seated pursuant to the court's order, not out of disrespect. In discussing the request, the judge asked defense counsel if he wanted the court to tell the jury why Nayeri was not being allowed to stand. Counsel did not want that; he simply wanted the jury to understand that it was the judge's decision for Nayeri to remain seated. However, the judge refused to inform the jury of that fact. These background facts were established during a settled statement hearing that was conducted in conjunction with this appeal. At the hearing, the judge also noted that the witness box from which Nayeri testified is located only a few feet from his bench and the jury box. In addition, there is a side door marked with an exit sign about eight feet from the witness box. If one were to take that side door out into the hallway, they would be roughly 25 feet away from an exit door to the general public. In his motion for a new trial, Nayeri argued the trial court violated his due process rights by not allowing him to stand for the bailiff's morning announcement while he was on the witness stand, and by refusing to inform the jury that he had been ordered to remain seated by the court. The court did not see it that way. It ruled, "The defense never objected to
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[the] procedure [requiring Nayeri to remain seated], and hence the issue is waived. The defense also never requested the jury be admonished, and any potential prejudice could have easily been cured by such an admonition." In any event, the court found that requiring Nayeri to remain seated did not infringe his right to a fair trial.
2. Analysis Nayeri renews his due process argument on appeal. As explained above, the record shows Nayeri did in fact object to not being allowed to stand for the bailiff's morning announcement, and defense counsel did in fact ask the court to inform the jury that it was the court's decision to have Nayeri remain seated. Therefore, the issue has not been forfeited on appeal. On the merits, it is well established that trial judges have broad authority to maintain security in their courtrooms. (People v. Lomax (2010)
49 Cal.4th 530, 558.) And given the nature of the charges against Nayeri, as well as his demonstrated escape and flight history, the trial court was fully justified in believing he posed a potential security threat to everyone in the courtroom. (People v. Valenzuela (1984) 151 Cal.App.3d 180, 192 [escape efforts may justify security measures].) But "even when the record in an individual case establishes that it is appropriate to impose some restraint upon the defendant as a security measure, a trial court properly must authorize the least obtrusive or restrictive restraint that effectively will serve the specified security purposes." (People v. Mar (2002) 28 Cal.4th 1201, 1226.) In other words, to the extent it is reasonably feasible to do so, the court's security measures must be designed to minimize any resulting prejudice to the defendant.
Here, the trial judge could have lessened the potential prejudice to Nayeri by instructing the jury that it was his decision to have Nayeri
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remain seated during the bailiff's morning announcement when he was on the witness stand. That would have negated any impression that Nayeri was being disrespectful by staying seated.
Although defense counsel requested such an instruction, the trial judge apparently believed that if he told the jury Nayeri was not allowed to stand, he would have had to explain why that was, which would have exposed the jury to prejudicial information about Nayeri's jail escape. However, that is not the case. All the trial judge had to do was to tell the jury: 1) If given the choice, Nayeri would prefer to stand up during the bailiff's morning announcement, 2) but the judge had a standard policy of not allowing any criminal defendant to stand up while they were on the witness stand, 3) this standard policy had nothing to do with Nayeri personally, and 4) the jury was not allowed to draw any negative inferences from the fact that Nayeri remained seated during the announcement. In all likelihood, an admonition along these lines would have stemmed the tide of disapproving stares that Nayeri allegedly received by remaining seated during the announcement. Still, we do not believe it is reasonably probable Nayeri would have received a more favorable result at trial if the judge had informed the jury that it was his decision to have Nayeri remain seated. Based on Nayeri's own testimony, the jurors knew that he had escaped from jail prior to trial and thus posed a heightened security risk in the courtroom. They also would have understood that risk justified treating Nayeri differently from other witnesses who testified at the trial, in terms of what he was allowed to do in the courtroom. We do not believe this differential treatment was likely to cause the jury to convict Nayeri out of blind passion, as opposed to reasoned judgment.
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Our view of this issue might be different if the trial judge had never allowed Nayeri to stand during the bailiff's morning announcement. However, Nayeri was only ordered not to stand during the few days he was on the witness stand. For the remainder of the month-long trial, he was allowed to, and did in fact, stand up whenever the bailiff recited his morning announcement. Thus, contrary to Nayeri's belief, it is unlikely the jury perceived him as an anti-American "Islamist" who remained seated for political reasons. The remoteness of this possibility leads us to the conclusion that any error in ordering Nayeri not to stand for the flag during his testimony was of a harmless nature. Therefore, it does not warrant a new trial in this matter.
B. Admissibility of Voicemail Message
Nayeri claims the trial court erred in allowing the prosecution to admit into evidence a threatening voicemail message that he left for Shegerian after he fled to Iran. We conclude the trial court did not error in admitting the message.
1. Factual Background On direct examination, Nayeri testified that at one point during his marriage to Shegerian, he was ordered to attend domestic violence classes for physically abusing her. Nayeri said the classes taught him how to cope with his anger and to communicate with Shegerian in a more positive manner. In attempting to prove otherwise, the prosecutor asked Nayeri on cross-examination about a threatening message he left for Shegerian while he was in Iran, after his alleged crimes occurred. Particularly, the prosecutor wanted to know if Nayeri left a message on Shegerian's voicemail saying something to the effect of, "Answer the f'ing phone. I'll take you down," bitch. After defense counsel's objection to the question was overruled, Nayeri
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admitted it was very possible that he had left such a message for Shegerian. Later, during closing argument, the prosecutor alluded to the message as proof that Nayeri did not learn anything from the domestic violence classes he had attended.
2. Analysis As he did in the trial court, Nayeri contends his threatening statement in the voicemail message should have been excluded on spousal privilege grounds, pursuant to Evidence Code section 980. However, that section applies only if the statement in question was made "in confidence"
between the speaker and his or her spouse. (Ibid.) "'To make a communication "'in confidence,'" one must intend nondisclosure [citations], and have a reasonable expectation of privacy'" in the communication. (People
v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 420.) Nayeri presumably intended nondisclosure when he threatened to take down Shegerian in the voicemail message. However, considering that Nayeri had previously been arrested for committing domestic violence against Shegerian, he did not have a reasonable expectation the message would remain private. That earlier incident demonstrated that Shegerian was not afraid to report Nayeri's abusive behavior to the police. Given her past willingness to do so, Nayeri could not have reasonably expected her to keep his threatening voicemail message to herself. (People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 420 [because the defendant's statement to his wife constituted a direct and violent threat, "any expectation of confidentiality would have been unreasonable"]; People v. Carter (1973)
34 Cal.App.3d 748, 752-753 [same]; see generally United States v. White (9th Cir. 1992) 974 F.2d 1135, 1138 [protecting threats against a spouse is inconsistent with the purpose of the marital communications privilege, which
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is to foster marital harmony].) Therefore, the message was not barred by the spousal privilege.
Moreover, assuming otherwise, the admission of Nayeri's voicemail message was surely harmless. Shegerian testified that Nayeri had a dark and volatile side to him, and that aspect of Nayeri's personality was on full display when he was arrested for abusing Shegerian during their marriage. The likelihood the jury convicted Nayeri of some counts but not others due to one short voicemail message is so remote as to render any error in its admission patently harmless. (See People v. Watson (1956) 46 Cal.2d 818, 836 [evidentiary errors under state law do not warrant reversal unless it is reasonably probable they affected the outcome of the case].) C. Aggravated Kidnapping Instruction
Nayeri contends the trial court committed prejudicial error by instructing the jury on an invalid theory of aggravated kidnapping. Respondent concedes instructional error occurred, but maintains it was harmless under the circumstances. We agree with respondent that the error is not cause for reversal.
In counts 1 and 2, Nayeri was charged with aggravated
kidnapping pursuant to section 209, subdivision (a). That provision provides,
"A person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps, or carries away another person by any means whatsoever with the intent to hold or detain, or who holds or detains, that person for ransom, reward, or to commit extortion or to exact from another person any money or valuable thing, or a person who aids and abets any such act, is guilty of a felony." (§ 209, subd. (a), hereafter § 209(a).)
The reason this offense is called aggravated kidnapping is that, unlike simple kidnapping, which is a general intent offense that arises
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independently of any other criminal objective, aggravated kidnapping is committed for a specific purpose, such as obtaining ransom money. (People v. Bell (2009) 179 Cal.App.4th 428, 435, fn. 2.) In this case, the trial court instructed the jury that the purpose element required proof Nayeri kidnapped the victims "for ransom or to commit extortion[,] or to get money or something valuable." However, the court's instructions failed to explain a distinction between the first two purposes and the third purpose. Under the terms of section 209(a), ransom and extortion do not require a secondary victim, meaning the crime is elevated to aggravated kidnapping even if the victim of the kidnapping is the subject of the ransom or extortion demand. (People v. Stringer (2019) 41 Cal.App.5th 974, 981-982.) However, if the kidnapping is designed to get money or something of value, the defendant must intend to get the money or valuable from another person. (Id. at p. 982.) The trial court's instruction failed to explain this distinction to the jury. Consequently, one of the theories needed to satisfy the intent requirement for aggravated kidnapping was flawed. It impermissibly allowed the jury to convict Nayeri of that offense even "if he sought to exact money or property from the kidnap victims" themselves. (Id. at p. 983.)
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"This type of instructional error, where the jury is instructed with one [or more] correct theor[ies] of guilt and one incorrect theory of guilty, is known as 'alternative-theory error.' [Citation.]" (People v. Stringer, supra,
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Because trial courts have a sua sponte duty to correctly instruct the jury on all of the essential elements of a charged offense, Nayeri did not forfeit his right to challenge this instruction on appeal by failing to object to it in the trial court. (See People v. Merritt (2017) 2 Cal.5th 819, 824; People v. Mil (2012) 53 Cal.4th 400, 409; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.)
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41 Cal.App.5th at p. 984.) "[W]e review alternative-theory errors under the Chapman v. California (1967) 386 U.S. 18 . . . standard governing federal constitutional errors. [Citations.] Under that standard, we 'must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, [we] determine[ ] the error was harmless beyond a reasonable doubt. [Citation.]" (Stringer, supra,
41 Cal.App.5th at p. 984.) Although that is a demanding standard, it may be satisfied when the record contains overwhelming evidence to support a valid theory of guilt. (In re Lopez (2023) 14 Cal.5th 562, 568.) The pertinent question is whether, based on the entire record, "any rational juror who found the defendant guilty based on an invalid theory, and made the factual findings reflected in the jury's verdict, would necessarily have found the defendant guilty based on a valid theory as well. [Citation.]" (Ibid.) If so, "the error is harmless because the presentation of the invalid theory to the jury made no difference. The error did not contribute to the verdict. [Citations.]" (Id. at p. 589.) In this case, the defense admitted all of the alleged crimes were proven beyond a reasonable doubt. Because the only disputed issue was Nayeri's involvement in those crimes, it is exceedingly unlikely the invalid theory of aggravated kidnapping had any bearing on the jury's verdict. (Cf. People v. Merritt, supra, 2 Cal.5th at p. 832 [failing to instruct on all of the elements of the charged offense deemed harmless where defendant conceded those elements were proven].)
Despite this, Nayeri contends the evidence pertaining to the valid theory of kidnapping for extortion was not so overwhelming as to render the
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invalid theory harmless beyond a reasonable doubt.
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Nayeri argues the extortion theory was inapt for a variety of reasons. First, extortion requires the victim to consent to handing over money or property as a result of the defendant's threats or use of force. (§ 518; CALCRIM No. 1830.) Because Michael never handed over anything to his kidnappers, let alone the million dollars they were seeking, Nayeri contends the jury would not have convicted him on this theory. However, while the crime of extortion requires proof the defendant consented to turning over something of value, Nayeri was not charged with that offense. Instead, he was charged with kidnapping to commit extortion. Unlike the completed crime of extortion, that offense merely requires the intent to kidnap for the purpose of extortion, it does not require proof the crime of extortion was committed. (See People v. Anderson (1979) 97 Cal.App.3d 419, 425.) Therefore, it is immaterial that the kidnappers did not actually obtain the money they were seeking from Michael.
Second, Nayeri contends the kidnappers intended to rob Michael, not extort him. "Extortion is the obtaining of property or other consideration from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right." (§ 518.) The only difference between that offense and robbery is that the victim "consents" to the taking in extortion, albeit due to force or
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Although Nayeri does not dispute the trial court's kidnapping instructions were legally correct with respect to both the extortion theory and the ransom theory, he contends the ransom theory was factually inapt, and respondent does not argue otherwise. Therefore, like the parties, we will focus our harmless error analysis on the kidnapping for extortion theory.
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fear. (See § 211; 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Property, § 103, p. 136.)
Nayeri contends the kidnappers intended to take Michael's money without his consent, as part of a robbery scheme. However, because the kidnappers had no idea where the alleged million dollars was, they needed Michael's cooperation to locate the money. That is why they tortured him repeatedly inside the van; they were hoping he would "consent" to turning over the money by telling them where it was buried. This smacks of an attempt to commit extortion, not robbery. (Compare Stringer, supra,
41 Cal.App.5th at p. 985 [no basis for extortion theory where defendant kidnapped victims for a purpose other than to take their property by consent].)
Third, Nayeri claims the extortion theory was inapt because the kidnappers never threatened to reveal some dark secret about Michael if he failed to tell them where the million dollars was located. However, while the crime of extortion is commonly understood to require such threats, a blackmail demand is not required under California's extortion statute. Rather, as set forth above, the statute merely requires proof the victim was subjected to the wrongful use of force or fear, which Michael clearly was. (§ 518.) As such, it is immaterial that he was not blackmailed by his captors. Lastly, Nayeri claims the extortion theory was implausible because the kidnappers rejected Michael's offers to give them $100,000 or some lesser sum of money. Nayeri sees this as proof the kidnappers were not trying to extort money from Michael but merely looking for an excuse to do him harm. However, the kidnappers did not reject Michael's smaller offers because they did not want his money; they turned down the smaller offers because they thought they could get more money from him, a million dollars
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to be precise. And while it is true the kidnappers eventually gave up on the million dollars and turned their intentions toward sexually mutilating Michael, that was only because they did not get the grand prize they were looking for. Because the kidnapping was clearly motivated by a craven desire to get Michael's money, the extortion theory fit the facts to a tee. Given the strength of the evidence as to that theory of aggravated kidnapping, the presence of an invalid theory is not cause for reversal. We are convinced beyond a reasonable doubt that any rational juror who may have found Nayeri guilty of aggravated kidnapping based on the invalid theory that he wanted to get money from Michael (as opposed to a third person) would necessarily have found him guilty of that offense based on the valid theory that he wanted to extort money from Michael. As such, inclusion of the invalid theory does not warrant a reversal of his convictions for aggravated kidnapping. (In re Lopez, supra, 14 Cal.5th at p. 589.) D. Accomplice Instructions
Nayeri asserts the trial court's instructions on accomplice testimony and prior statements impermissibly allowed the jury to consider Shegerian's pretrial statements in determining whether her testimony was sufficiently corroborated. Giving the instructions their plain and ordinary meaning, we do not think they combined to undermine Nayeri's right to a fair trial.
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Pursuant to CALCRIM No. 335, the jurors were instructed, "If the crimes charged were committed, then [Shegerian was an] accomplice[] to
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Respondent argues Nayeri forfeited this claim by not raising it in the trial court, but to the extent the instructions in question affected Nayeri's substantial rights, no objection was required. (§ 1259.)
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those crimes. You may not convict the defendant of any crime based on the statement or testimony of an accomplice alone. You may use the statements or testimony of an accomplice to convict the defendant only if: [¶] One, the accomplice's statements or testimony is supported by other evidence that you believe; [¶] Two, the supporting evidence is independent of the accomplice's statement or testimony; [¶] And three, the supporting evidence tends to connect the defendant to the commission of the crime."
The court also gave CALCRIM No. 318, which told the jurors,
"You have heard evidence of statements that a witness made before trial. If you decide the witness made those statements, you may use those statements in two ways: [¶] One, to evaluate whether the witness's testimony in court is believable; [¶] And two, as evidence that the information in those earlier statements [is] true."
Nayeri does not dispute the correctness of these instructions, in and of themselves. Instead, he argues CALCRIM No. 318 undermined the corroboration requirement set forth in CALCRIM No. 335 by effectively allowing the jury to use Shegerian's own pretrial statements to corroborate her trial testimony.
However, while CALCRIM No. 318 allowed the jury to consider Shegerian's pretrial statements for purposes of assessing the credibility of her trial testimony, CALCRIM No. 335 made it clear those statements could not be used for purposes of determining whether her testimony was sufficiently corroborated to be used against Nayeri. In that regard,
"CALCRIM No. 335 instructed the jury to require supporting testimony that was independent of [Shegerian's] statement[s] or testimony. The instruction's use of the word 'independent' to describe the sort of evidence that could serve as corroboration eviscerates [Nayeri's] claim that the instruction allowed
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[Shegerian] to corroborate [her] own testimony." (People v. Tuggles (2009) 179 Cal.App.4th 339, 365; People v. Mackey (2015) 233 Cal.App.4th 32, 116-117.) E. Jury Coercion
During deliberations, the jury sent the trial judge a series of notes indicating it was having trouble arriving at a unanimous verdict on all of the charges. Nayeri contends the judge's responses to those notes coerced the jury into reaching a guilty verdict, but we are not persuaded.
1. Factual Background The jury began its deliberations on Monday, August 12th, 2019. The following day, it asked for a copy of the written proffer that Shegerian made to the police after she decided to cooperate with the authorities. But because the proffer was never admitted into evidence, the court denied the request. The jury also asked for a readback of a detective's testimony, which was provided.
As the jury was departing for its evening recess, one of the jurors approached the bailiff in the hallway. The juror was emotional and indicated she was having a difficult time during deliberations because she was not in agreement with the other jurors about how the case should be decided. She wanted to keep talking to the bailiff, but the bailiff told her she should not be discussing deliberations with him and promptly ended the conversation. The next morning, Wednesday, August 14th, the bailiff reported the incident to the trial judge. The judge also received a note from the jury that read, "We [need] help . . . because we have one juror who has a different view than the other 11 jurors. It appears that her view of 'reasonable conclusions' is different than the others."
In response to these events, the judge met with counsel and informed them that he was inclined to read the jury CALCRIM No. 3551,
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which applies when the jury is unable to reach a verdict. Defense counsel expressed concern that giving that instruction would make the holdout juror feel like she had done something wrong. He wanted the judge to talk to the holdout juror to ensure she was not being unduly pressured by the other jurors. He also asked the judge to poll the jurors to find out if any of them believed they could actually reach a verdict. However, the prosecutor argued that polling the jury would have a chilling effect on deliberations. He simply wanted the judge to read CALCRIM No. 3551 to the jurors and to leave it at that.
Ultimately, that is what the judge decided to do. Per CALCRIM No. 3551, he told the jury, "Sometimes jurors that have had difficulty reaching a verdict are able to resume deliberations and successfully reach a verdict on one or more counts. [¶] Please consider the following suggestions:
[¶] Do not hesitate to reexamine your own views. Fair and effective jury deliberations require a frank and forthright exchange of views. Each of you must decide the case for yourself and form . . . your own individual opinion after you have fully and completely considered all the evidence with your fellow jurors.
"It is your duty as jurors to deliberate with the goal of reaching a verdict if you can do so without surrendering your individual judgment. Do not change your position just because it differs from that of other jurors or just because you or others want to reach a verdict. Both the People and the defendant are entitled to [the] individual judgment of each juror. [¶] It is up to you to decide how to conduct your deliberations. You may want to consider new approaches in order to get a fresh perspective. [¶] Let me know whether I can do anything to help you further, such as give additional instructions, or clarify instructions I have already given." (CALCRIM No. 3551, as given.)
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The judge also reminded the jurors to treat each other courteously before sending them back to resume their deliberations.
An hour later, the jury sent the judge two more notes. The first one stated, "A juror has been drawing conclusions from other possible explanations/doubts instead of only on circumstantial evidence. What should we do?" The second note asked, "If we have a juror who wants to be excused as a juror due to frustration over our deliberation[s], what will happen to the rest of the jurors? Will there be a new jury to deliberate on this trial?" The jury followed up that question with a third note that asked, "Will the final count be made public? Like if we end up 11-1 on a hung jury."
In response to the first note, which suggested a juror was drawing unreasonable inferences from the evidence, the judge told the jury,
"A juror should consider 'evidence' as defined in CALCRIM [Nos.] 222, 223, and 302. [¶] As to circumstantial evidence, consider CALCRIM [Nos.] 224 and
225. [¶] Consider these instructions, along with all the other instructions, in reaching a verdict."
Regarding the second note, the judge told the jury, "A
deliberating juror can only be excused upon a proper showing to the court."
And as to the third question, about whether the verdict would be made public, the court simply answered, "Yes." After that, the jury deliberated for another 90 minutes before retiring for the evening.
The following day, Thursday, the 15th of August, the jurors sent the judge several more notes during the course of their deliberations. The first note asked, "If we don't come to a consensus of all 12 jurors, how do we use the verdict forms that we have right now? Do we need new ones? [¶] Do we have to provide a jury count for each of the charges and 'sub-charges'? [¶] We are trying to follow the judge's instructions from yesterday to do
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everything possible to gain consensus from all jurors but we're feeling that we won't be able to. We would like to be able to weigh in on all counts."
The second note asked, "On counts 1, 2, 4 - do we have to vote the same on the first and second parts of the count? For example: If one juror votes not guilty on the first part, do they have to vote 'not true' on the second part [ ] in order to be consistent[?]"
The third note asked, "How would you like the jury to proceed in a situation where one (or more) jurors 1) does not exhibit basic, sound LOGICAL thinking and/or 2) displays significant INCONSISTENT standards of assigning credibility (possibly implying a 'bias') [and is] not applying the same standard for each witness." (Original caps and parens.) The fourth note asked, "What is the consequence if a juror does not follow the jury instruction of refraining from coming up with a verdict until AFTER jury deliberation is completed? This concern is in response to a juror PREMATURELY asking how long we should consider deliberation to continue, stating that they don't think there will be anything that could change their mind, although 1) there was a lot of evidence still left to be discussed/considered and 2) the jury was still discussing the first (of several) counts. Further concern comes from hearing the juror's response in questioning why it is even important WHEN (at what point) they had come to their verdict. It is my understanding that jurors should not 'make up [their] mind' on the verdict until after all the evidence is discussed/reviewed."
(Original caps, parens, and bracket.)
The fifth note asked for a readback of the testimony of Police Investigator Don Gage, who testified to the search of Handley's truck. The sixth noted stated, "Juror A believes that juror B is not following the jury instructions because juror B wants 100% certainty for a
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guilty vote, but only a 1% certainty for a non-guilty vote. Further, juror B lets 'what if' scenarios keep that juror from 100% certainty and does not evaluate the doubt based evidence: is there evidence to trigger that doubt? When there is no evidence to trigger such doubt, juror proceeds to conjure up another doubt. This is a cycle/pattern and juror A believes at this point, it is obstruction of justice. May juror A ask[ ] to excuse juror B, or excuse juror A, or both be excused and replaced with alternates?"
When the trial judge met with the attorneys to discuss these notes, defense counsel again suggested polling the jurors to find out if they believed further deliberations would be fruitful. However, the judge felt it was still too soon to do that. He also put on the record that, unlike in some of the other trials he had presided over, he had not heard any loud voices coming from the jury room while the jury was conducting its deliberations. The judge did contemplate allowing the parties to present additional closing arguments, so they could address some of the jurors' stated concerns. But, instead of doing that, the judge decided to reread CALCRIM No. 3550 to the jury. That instructions states:
"It is your duty to talk with one another and to deliberate in the jury room. You should try and agree on a verdict if you can. Each of you must decide the case for yourself, but only after you have discussed the evidence with the other jurors. [¶] Do not hesitate to change your mind if you become convinced you are wrong. But do not change your mind just because other jurors disagree with you. [¶] Keep an open mind and openly exchange your thoughts and ideas about this case. [¶] Stating your opinions too strongly at the beginning or immediately announcing how you planned to vote may interfere with an open discussion. [¶] Again, please treat one another
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courteously. [¶] Your role is to be an impartial judge of the facts, not to act as an advocate for one side or the other."
The court also reminded the jurors that their verdict required unanimity: "In other words, if all of you do not agree on something, you do not have a verdict." And, "[i]f there [are] two parts to your finding and you do not have a unanimous verdict as to the first part, you would not go to the second part."
After that, the judge reread the instructions on evidence, the difference between direct and circumstantial evidence, accomplice testimony, and reasonable doubt. (CALCRIM Nos. 220, 222, 223, 224, 335.) The judge then gave the jury the choice of taking the rest of the day off or resuming its deliberations. The jury chose to resume deliberations, and roughly two hours later, at 4:30 p.m., it announced it had reached a verdict on three of the four counts. At that point, the judge adjourned the proceedings for the evening and instructed the jury to return in the morning for further deliberations on the remaining count.
The next morning, Friday, the 16th of August, the jurors
deliberated 22 more minutes before informing the judge that they were unable to reach a verdict on the remaining count, which encompassed the mayhem charge. When the judge asked if there was anything he could do to assist the jury in that regard, the foreperson answered, "No, sir. We tried everything under the sun." The judge then asked the rest of the jurors if any of them disagreed with that assessment, and none of them raised their hand or signaled any disagreement with the foreperson's take on the situation. After the verdict was revealed, the judge had his clerk poll each of the jurors by asking them if the verdict reflected their own personal opinion about the case. All 12 of them answered yes.
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2. Analysis Nayeri argues the judge exerted undue pressure on the holdout juror to conform her verdict to the majority by giving CALCRIM No. 3551, rereading CALCRIM No. 3550, and refusing to poll the jurors to see if they believed they could reach a verdict. The Attorney General not only disagrees, he also raises the prospect of forfeiture. However, the record shows defense counsel wanted the judge to poll the jury instead of giving them further instructions in response to their questions, and that the court gave CALCRIM No. 3551 and reread CALCRIM No. 3550 over the objection of the defense. Therefore, we will address Nayeri's claims on the merits. Our analysis is guided by section 1140, which states, "Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless [the parties consent], or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree." (Italics added.) For purposes of this provision, "'The determination whether there is a reasonable probability of agreement rests in the discretion of the trial court. [Citations.] The court must exercise its power, however, without coercion of the jury, so as to avoid displacing the jury's independent judgment
"in favor of considerations of compromise and expediency." [Citation.]' [Citation.] The question of coercion is necessarily dependent on the facts and circumstances of each case. [Citation.]" (People v. Sandoval (1992) 4 Cal.4th 155, 195-196.)
Relying on People v. Gainer (1977) 19 Cal.3d 835 (Gainer), Nayeri asserts the trial court handled the jury's notes in a manner that was likely to have a coercive effect on the holdout juror because she was outnumbered
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11 to 1 and was experiencing pressure from the majority to change her mind. In Gainer, though, the Supreme Court was concerned with judicial statements that encourage jurors to decide the case based on irrelevant considerations, such as the numerical division of the jury or the expense and inconvenience of retrial if they are unable to reach a verdict. (Id. at p. 852.) The trial judge made no such statements here.
Nor did the judge pressure any of the jurors to abandon their independent judgment and change their position simply because it was not shared by the majority of the jurors. (See Gainer, supra, 19 Cal.3d at pp. 849- 850.) To the contrary, the judge instructed the jurors per CALCRIM No. 3551 not to change their position just because it differs from that of the other jurors, because both parties were entitled to the individual judgment of each juror. The same message was imparted through CALCRIM No. 3550. That instruction also told the jurors to "try and agree on a verdict if you can."
(Italics added.) This precatory wording signaled a verdict was desired but not required.
Taken as a whole, the court's instructions ensured that Nayeri received the independent consideration and judgment of each and every juror. They did not coerce the jury into reaching its verdict. (People v. Santiago (2009) 178 Cal.App.4th 1471, 1476 [CALCRIM No. 3550 "does not improperly direct a deadlocked jury that it is required to reach a verdict"]; People v. Whaley (2007) 152 Cal.App.4th 968, 984 [giving CALCRIM No. 3551 "did not implicitly approve a movement toward unanimity or otherwise send a message that the holdout juror was to cooperate with the majority"]; People v. Moore (2002) 96 Cal.App.4th 1105, 1121 [in giving CALCRIM No. 3551, the trial court exercised its power without compelling the jurors to surrender
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their independent judgment in favor of compromise or expediency].) As such, the instructions were not improper.
Nayeri also complains the trial court never polled the jurors to find out if they believed further deliberations would be fruitful. However, a
"trial court does not abuse its discretion merely by declining to poll the jury as to the likelihood of reaching a unanimous verdict." (People v. Peoples (2016) 62 Cal.4th 718, 782; see, e.g., People v. Proctor (1992) 4 Cal.4th 499, 539; People v. Moore (2002) 96 Cal.App.4th 1105, 1121-1122.) Even if the jury had been polled and reported negative on the prospects for a unanimous verdict at that time, it still would not have been unreasonable for the trial judge to have them continue deliberating. (See People v. Sandoval, supra, 4 Cal.4th at pp. 194-197; People v. Rodriguez (1986) 42 Cal.3d 730, 765-770.) After all, they had only been deliberating for two days when they first reported having issues with deliberations. That is not a particularly long time for a month-long trial.
Nayeri further faults the trial judge for not answering the jury's question about what would happen if deliberations broke down due to frustrations in the jury room. However, defense counsel did not propose any answers to that question, and the trial judge was wise to steer clear of it because it alluded to the prospect of a retrial. That topic is best avoided when the jury is struggling to reach a verdict because it could lead the jurors to abandon their independent judgment and decide the case based on considerations that are wholly irrelevant to the defendant's guilt or innocence. (See People v. Gainer, supra, 19 Cal.3d at p. 852, fn. 16.) All things considered, we do not believe the trial judge's acts or omissions improperly coerced the jury or put undue pressure on the holdout juror to conform her views to the majority position. In fact, we know from the
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jury's hung verdict on one of the charges that she did not do this, which is a strong indicator the deliberations were not tainted by anything the trial judge did or did not say. (See United States v. Ailsworth (10th Cir. 1998) 138 F.3d 843, 852 [the jury's inability to reach a unanimous verdict on some of the counts demonstrates it "'was not compelled or coerced to reach a unanimous verdict'"]; Perez v. Marshall (9th Cir. 1997) 119 F.3d 1422, 1428 [same].) No cause for reversal has been shown.
F. Request for Juror Contact Information
Nayeri contends the trial court erred in denying his request to obtain the jurors' contact information. However, we discern no abuse of discretion in the court's decision to keep the jurors' contact information private.
1. Factual Background The jury rendered its verdict in August 2019. However, Nayeri was not sentenced until over a year later, on October 30, 2020. One of the reasons for this delay was that Nayeri fired his retained attorney and a new attorney, Renee Garcia, was appointed in his stead. Following Garcia's appointment on January 17, 2020, she requested and received all of the transcripts associated with Nayeri's trial.
On June 11, 2020, Garcia filed a motion to disclose the jurors' contact information. The purpose of the motion was to develop a factual basis for a juror misconduct claim that Garcia intended to present in her motion for a new trial. In regard to that future claim, the disclosure motion not only referenced the various notes the jury had sent to the trial judge during its deliberations. It also brought up the fact that the jury foreperson had recently appeared on the television program 20/20 as part of a broadcast about Nayeri's trial. According to Garcia, the foreperson discussed her
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frustration over deliberations on the program and said the reason it took the jury so long to reach a verdict is because one of the jurors initially believed that Nayeri was not guilty.
Based on all of these circumstances, Garcia surmised "[t]he conflict and frustration exhibited by the jury caused at least [that] one juror to change [her] vote out of fear and intimidation versus independent judgment." Garcia requested access to the jurors' contact information so she could investigate that issue.
The prosecution opposed the request for lack of good cause. It further argued the request violated Evidence Code section 1150, which bars evidence bearing on a juror's mental processes. And it raised a hearsay objection to any statements that were attributed to the jury foreperson in the motion. Finding the hearsay objection well taken, the trial court granted the defense leave to file declarations in support of its request to divulge the jurors' contact information.
Garcia responded with a declaration from defense investigator Thomas Gleim. Gleim declared that in speaking to the foreperson about the case, he learned there were now nine jurors who were willing to discuss the case with the media. The foreperson also told Gleim that, during deliberations, there was lots of yelling, anger, and insults directed toward the holdout juror, and at one point, things got so heated that the bailiff had to admonish them to quiet down.
According to Gleim, the foreperson also told him that she saw the holdout juror approach the bailiff after deliberations one day. The foreperson got the impression the holdout juror was "very emotional due to being yelled at and [ ] beat up by the other jurors." So, the foreperson took the holdout juror to dinner that evening, in an attempt to make her feel better. However,
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the foreperson believed "this was after the verdicts were turned into the court," meaning after deliberations had already come to an end. During the dinner, they talked about how the holdout juror had been singled out during deliberations, but they tried not to talk about the case itself. In his declaration, Gleim also alleged that he had spoken to Nayeri's trial attorney. Counsel told Gleim that when the jurors were polled individually following their verdict, the holdout juror hesitated before saying she agreed with the verdict. In light of this, counsel made an off-the-record request to have the judge poll each of the jurors to find out if there was any coercion or undue influence in the course of deliberations. However, the judge declined to do so.
In support of her disclosure motion, defense counsel Garcia also submitted copies of four online news articles about the case. The articles quote the foreperson as saying the reason the jury was unable to reach a verdict on the mayhem count is because one of the jurors had doubts about Shegerian's testimony and whether Nayeri was personally involved in the mutilation of Michael's genitals. In fact, the holdout juror did not believe Nayeri was guilty of any of the charged offenses.
In hearing the matter, the trial court agreed with the prosecution that there was still a potential hearsay problem with the disclosure request because Gleim's declaration contained statements that were attributed to the foreperson. As to that issue, Garcia informed the court that the foreperson was not willing to submit a declaration of her own, and other jurors had refused to speak to the defense, even though they had agreed to speak to the media. Garcia also took issue with the foreperson's recollection that she took the holdout juror to dinner after the jury had already returned its verdict.
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Based on the timing of the jury's notes, Garcia argued it was more likely the dinner occurred before deliberations had been completed. After taking the matter under submission, the trial court determined there was not a sufficient showing of possible juror misconduct to warrant disclosure of the jurors' contact information to the defense. The court reasoned that, although there was evidence to suggest the holdout juror had been pressured during deliberations, it did not rise to the level of undue coercion. Furthermore, based on the foreperson's stated belief that she took the holdout juror to dinner after the jury had returned its verdict, the court found that particular incident was insufficient to justify the release of the jurors' personal contact information.
2. Analysis Juror confidentiality is an important aspect of our criminal justice system. In order to protect juror privacy, once the verdict is recorded,
"the trial court must seal the record of 'personal juror identifying information,' including 'names, addresses, and telephone numbers.' (Code Civ. Proc., § 237, subd. (a)(2).)" (People v. Munoz (2019) 31 Cal.App.5th 143, 165.) This information is subject to disclosure upon a showing of good cause, but "[t]his showing must '"support a reasonable belief that jury misconduct occurred, that diligent efforts were made to contact the jurors through other means, and that further investigation is necessary to provide the court with adequate information to rule on a motion for new trial."' [Citation.]" (Ibid.)
"'Good cause does not exist where the allegations of jury misconduct are speculative, conclusory, vague, or unsupported.' [Citation.] '"Absent a satisfactory, preliminary showing of possible juror misconduct, the strong public interests in the integrity of our jury system and a juror's right to privacy outweigh the countervailing public interest served by disclosure of
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the juror information."' [Citation.] We review a trial court's denial of a petition for the release of juror information for abuse of discretion. [Citation.]" (People v. Munoz, supra, 31 Cal.App.5th at p. 165.) No such abuse occurred in this case. In support of her disclosure request, defense counsel Garcia offered the foreperson's statements (as reflected in Gleim's declaration and various news articles) to help explain why the holdout juror ultimately joined the majority in voting to convict Nayeri on some of the counts. However, the reasoning behind a juror's decision-making process cannot be used to impugn a verdict. (See People v. Peavey (1981) 126 Cal.App.3d 44, 50-51 [the subjective considerations which influenced a juror's decision, such as their desire to go along with the other jurors, are inadmissible under Evidence Code section 1150].) Even the foreperson's subjective understanding that the holdout juror appeared to be emotionally distraught from the grief she allegedly received from other jurors was inadmissible, to the extent it was intended to reflect the holdout's subjective mental processes. (People v. Keenan (1988) 46 Cal.3d 478, 542.) Nayeri contends the objective circumstances surrounding the deliberations—yelling, insults, etc.—proved the jurors were so hard on the holdout juror that an inference of misconduct can be inferred. But, the trial court noted on the record that it did not hear any loud noises coming from the jury room during the jury's deliberations. And to the extent there may have been some verbal clashing, we must remember that "'[j]urors may be expected to disagree during deliberations, even at times in heated fashion.'" (People v. Keenan, supra, 46 Cal.3d at p. 541.) "Virtually any juror whose views differ from those of others on the panel may feel 'somewhat coerced' or that the deliberations process is 'very difficult.'" (People v. Jones (2020) 50 Cal.App.5th
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694, 703.) But, standing alone, that is insufficient to permit inquiry as to the validity of a verdict. (People v. Keenan, supra, 46 Cal.3d at pp. 541-542.) In support of her petition, defense counsel Garcia also relied on the dinner that occurred between the foreperson and holdout jury. However, there is substantial evidence to support the trial judge's finding that the dinner did not take place until after the jury had already returned its verdict. Although the record is a bit murky on this issue, the foreperson recalled the verdict preceded the dinner, and we are not at liberty to second guess the trial judge's decision to credit her belief in that regard. (People v. Nadey, supra, 16 Cal.5th at p. 172; People v Linton (2013) 56 Cal.4th 1146, 1194.) The foreperson also made it clear that the dinner was intended to provide emotional support for the holdout, not discuss the case. And although the foreperson was willing to talk to a defense investigator, she was reluctant to submit a declaration to the court, and other jurors on the case did not want to be contacted by the defense at all. On this record, we agree with the trial court that there was an insufficient showing to justify the release of the jurors' private contact information. No abuse of discretion or grounds for reversal have been shown.
G. Request for Self-Representation
Nayeri contends the trial court erred in denying his request to act as his own attorney. However, the record fully supports the trial court's decision to deny the request as untimely.
1. Factual Background This issue did not arise until October 2020, about a month after the trial court denied defense counsel's request to obtain the jurors' contact information. At that time, Nayeri first asked the trial court to appoint him a new attorney pursuant to People v. Marsden (1970) 2 Cal.3d 118. The request
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was primarily based on Nayeri's dissatisfaction with the new trial motion that Garcia had filed on his behalf, which was then pending before the court. Although that motion was nearly 100 pages long, Nayeri felt it did not adequately address all of the issues that he believed justified a new trial. But after hearing arguments on the matter, the trial judge determined Nayeri was receiving competent representation and denied his request for a new attorney.
At that point, Nayeri sought to represent himself, so he could file his own motion for a new trial. When the judge asked how much time he would need to do that, Nayeri said "as long as it would take me to do [the] motion." When pressed for a more definitive estimate, Nayeri was unable to provide one. In fact, he could not even offer a rough time estimate for the motion, saying that would depend on how long it took him to review the trial transcripts, research and investigate potential issues, and put everything together.
Citing the victims' need for closure, the prosecution opposed Nayeri's request for self-representation on that basis it had already been over a year since the jury had returned its verdict. The trial court agreed the motion was untimely. It refused to allow Nayeri to represent himself for fear it would lead to further delay and disruption of the proceedings. The court did grant Nayeri leave to personally supplement his attorney's new trial motion, but he elected not to do so.
2. Analysis As our Supreme Court explained in Doolin, supra, "A criminal defendant has a constitutional right to counsel at all critical stages of a criminal prosecution, including [post-conviction proceedings]. [Citations.] The right to counsel may be waived by a criminal defendant who elects to
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represent himself . . . . [Citation.] The right of self-representation is absolute, but only if a request to do so is knowingly and voluntarily made and [timely presented]. Otherwise, requests for self-representation are addressed to the trial court's sound discretion. [Citation.] (Doolin, supra, 45 Cal.4th at p. 453.)
"The timeliness requirement 'serves to prevent a defendant from misusing the motion to delay unjustifiably the trial or to obstruct the orderly administration of justice.' [Citation.]" (Doolin, supra, 45 Cal.4th at p. 454.) Thus, if the circumstances indicate the defendant's request for self- representation is untimely and would disrupt or delay the proceedings, the trial court has every right to deny it. (Ibid.)
In Doolin, the defendant sought to represent himself in postconviction proceedings immediately after the trial court denied his request for a new attorney. In upholding the denial of that request, the Supreme Court stated, "Defendant's request was manifestly untimely. He never requested self-representation during the guilt or penalty phase. He appeared on the day set for sentencing and sought, not to act as his own counsel, but to replace his appointed lawyer with a new one and to secure a continuance. Only when this approach failed did defendant seek self- representation, and . . . [w]hen pressed on the question of [why he wanted to act as his own attorney], defendant answered vaguely that 'there are still things that need to be done that could be presented to the Court.' Defendant provided no specific information about any new evidence he expected to find, when he expected to find it, or how long he might need to prepare his motions. He was not prepared to proceed and could not provide a reasonable estimate of when he would be ready. The trial court's ruling was well within the scope of its discretion." (Doolin, supra, 45 Cal.4th at pp. 454-455.)
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Like the defendant in Doolin, Nayeri never sought to represent himself during the trial or at any time before his request for a substitution of counsel was denied. And while Nayeri expressed displeasure with his attorney's new trial motion, he could not provide any specifics as to how he intended to proceed with the motion, saying only that "further investigation"
was required. As in Doolin, Nayeri was also unable to offer any estimation as to how long it would take him to investigate and prepare his own motion. These circumstances strongly support the trial court's decision to deny Nayeri's request for self-representation as untimely and disruptive to the orderly administration of justice.
Nayeri cites two countervailing considerations. First, the court complimented the handwritten letters he had submitted in support of his request for a new attorney, which suggests he was competent to act as his own attorney. Second, the parties agreed to a three-week continuance for the hearing on the new trial motion, so a delay was required regardless of whom was handling the motion. However, the problem was, Nayeri could not offer any assurances that the motion would not have to be continued well beyond that time if he were representing himself. And by then, it had already been over a year since he had been convicted. Under these circumstances, the trial court was justifiably concerned that an unspecified delay in the proceedings would unnecessarily disrupt the orderly and timely administration of justice. (See People v. Windham (1977) 19 Cal.3d 121, 128 [in considering a motion for self-representation, the trial court may consider "the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion"].)
Although not dispositive, it is also worth noting that the trial court gave Nayeri permission to file a letter brief to supplement defense
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counsel's new trial motion. That way, Nayeri could raise any arguments he felt were missing or underdeveloped in the motion. However, Nayeri did not avail himself of that opportunity, which casts doubt on the sincerity of his request to act as his own attorney. Considering all the attendant facts and circumstances, the trial court did not abuse its discretion in denying that request.
H. New Trial Motion
We now turn to the merits of the new trial motion. Nayeri contends the motion should have been granted based on newly discovered evidence related to the third-party culpability theory that his attorney floated in his opening statement to the jury. However, we find no abuse of discretion in the trial court's decision to deny the motion.
1. Factual Background As we explained above in connection with Nayeri's prosecutorial misconduct arguments, defense counsel told the jury during his opening statement that Nawal Figueroa was prepared to testify that she befriended Kevorkian's ex-wife Marisol Garcia while they were in prison together. Defense counsel expected Figueroa to testify that Garcia told her she had recruited some Mexican gang members to carry out the kidnapping with Kevorkian. However, Figueroa ended up defying her subpoena, and the defense was unable to secure her testimony at trial. In support of its new trial motion, the defense presented a declaration from investigator Gleim saying he interviewed Figueroa on August 11, 2020, roughly one year after Nayeri was convicted. Gleim declared that he was unable to reach Figueroa before then because "she disappeared during the trial" and he did not have her contact information. Furthermore, although Figueroa allegedly stood by her claim as to what Garcia had told
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her in prison regarding the kidnapping, Figueroa was unwilling to submit an affidavit or testify due to safety concerns for herself and her cousin. Following his interview with Figueroa in August 2020, Gleim tried to contact her numerous times to obtain a declaration or arrange for her to testify in court, but he was unsuccessful in that regard. After hearing argument on the issue, the trial court determined this offering was insufficient to justify a new trial and denied Nayeri's motion.
2. Analysis Pursuant to section 1181, the trial court may grant a motion for a new trial when new and material evidence is discovered by the defendant which he could not with reasonable diligence have discovered and presented during the trial. (§ 1181, subd. (8).) "The central question in the determination of whether a new trial should be granted on the ground of 'newly discovered evidence' is whether that evidence would probably result in a different verdict upon retrial. [Citation.] That is a question which normally can best be answered by the trial judge, who has been witness to the presentation of all the evidence at trial. Consequently, the trial court's determination that a new trial should not be granted may be disturbed only where it is shown that there had been an abuse of discretion—as, for example, where the 'newly discovered evidence' contradicts the strongest evidence introduced against the defendant." (People v. Cooper (1979)
95 Cal.App.3d 844, 852.) It is also well established that "[w]hen a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given[.]" (§ 1181, subd. (8).) In this case, however, Nayeri simply presented a declaration from his own
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investigator. Because he failed to present a declaration from Figueroa—the witness from whom the newly discovered evidence was expected to be given— his motion was procedurally deficient. (People v. Beeler (1995) 9 Cal.4th 953, 1005, abrogated on other grounds in People v. Edwards (2013) 57 Cal.4th 658, 704-705; People v. Miramontes (1957) 153 Cal.App.2d 402, 403; People v. Merrill (1951) 104 Cal.App.2d 257, 268.)
Moreover, the fact defense counsel referenced Figueroa's proposed testimony in his opening statement is proof her testimony was not
"new" for purposes of establishing grounds for a new trial. (§ 1181, subd. (8).)
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Nor was her expected testimony material in the sense that it would have rendered a different result probable on retrial. (People v. Delgado (1993) 5 Cal.4th 312, 328.) Figueroa's story about what Garcia allegedly told her in prison had inherent credibility problems, due to their status as convicted felons. And beyond that, the story itself—that the kidnapping was carried out by Mexican gang members, i.e., persons of Hispanic descent—was severely undermined by the evidence adduced at trial.
To be sure, there was some evidence the kidnappers may have been Hispanic. In speaking with the police about the men she observed near Michael's house on the afternoon of the kidnapping, Teresa T. described two of them as being Hispanic. However, at trial, Teresa testified she did not get a very good look at the men, and she was not very good at discerning people's
14
In arguing otherwise, Nayeri relies on People v. Ebaniz (2009)
174 Cal.App.4th 743. However, in denying review in that case, the Supreme Court ordered that opinion not to be published. (See People v. Ebaniz (2009)
175 Cal.App.4th 142.) Therefore, it has no precedential value. (Cal. Rules of Court, rules 8.1105(e)(2), 8.1115; Farmers Ins. Exchange v. Superior Court (2013) 218 Cal.App.4th 96, 109-110 ["depublication nullifies the opinion as precedent and it is as if the opinion had not been written"].)
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ethnicity. In bringing up these points, Teresa signaled she did not have a lot of confidence in her prior statement to the police about the men being Hispanic.
Other evidence bearing on the ethnicity of the kidnappers included Michael's statement to investigators that his captors were listening to a Spanish-speaking radio station while they were torturing him in the van on the way out to the desert. Also, at trial, Michael and Mary both testified that the kidnappers used some Spanish words and talked with a Spanish accent at times. However, Mary, who was raised with a Spanish-speaking grandmother and speaks some Spanish herself, was convinced the kidnappers' accents were contrived. In fact, she testified their accents were so bad that they reminded her of Speedy Gonzales, the cartoon character known for his exaggerated Mexican accent. This testimony contradicted a key premise of Nayeri's Mexican gang member theory, that being, the kidnapping was carried out by people of Hispanic descent.
The Mexican gang member theory was also significantly
hampered by the nature of Figueroa's proposed testimony. While she alleged that Garcia had told her that Mexican gang members helped Kevorkian and Handley carry out a kidnapping, she did not say anything—one way or the other—as to whether Nayeri was involved in the crime. Her inability to expressly exculpate Nayeri left the door open for the jury to conclude that even if Mexican gang members were part of the kidnapping scheme, Nayeri was too.
For all these reasons, it is exceedingly unlikely Nayeri would have obtained a more favorable result at trial if Figueroa been available to testify about what Garcia allegedly told her in prison. Therefore, aside from its procedural flaws, Nayeri's motion was substantively insufficient to
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warrant a new trial. As such, the trial did not abuse its discretion in denying the motion.
III.
SENTENCING
A. Aggravated Kidnapping Counts Nayeri contends he did not receive sufficient notice that he could be sentenced to life without parole (LWOP) on the aggravated kidnapping counts. Although the information did not expressly allege the specific factual circumstances giving rise to that potential sentence, we believe Nayeri was given adequate notice of the punishment he received.
1. Factual Background Nayeri was charged with two counts of aggravated kidnapping in violation of section 209(a). That provision mandates an LWOP sentence if the victim "suffers death or bodily harm, or is intentionally confined in a manner that exposes that person to a substantial likelihood of death[.]" (§ 209(a).) Otherwise, the proscribed punishment is life with the possibility of parole. (Ibid.)
Although section 209(a) contains two different punishment options, the statute actually defines but one crime, aggravated kidnapping. Whether the victim dies, suffers bodily harm or is subjected to a substantial likelihood of death are special factors pertaining to the issue of punishment, but they do not affect the singular nature of the underlying offense. (People v. Britton (1936) 6 Cal.2d 1, 4-5 (Britton).)
In this case, the complaint and information alleged Nayeri committed aggravated kidnapping in violation of section 209(a) by kidnapping Michael (count 1) and Mary (count 2) for ransom, reward,
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extortion and to exact money from another person. The prosecution did not allege any special sentencing factors related to the issue of punishment. However, during the conference on jury instructions, the court discussed CALCRIM No. 1202, the standard instruction on aggravated kidnapping. In addition to setting forth the elements of that offense, the instruction contains a paragraph entitled, "Sentencing Factor," which states:
"If you find the defendant guilty of [aggravated kidnapping], you must then decide whether the People have proved the additional allegation that [the victim died/suffered bodily harm or was confined in a way that created a substantial likelihood of death]." (CALCRIM No. 1202.) Although the trial court alluded to the sentencing factors in CALCRIM No. 1202, indicating they were apt in this case, defense counsel did not object to the instruction. Nor did he request instructions on any lesser included offenses. Because his sole defense was misidentification, he did not see the need for any such instructions.
Alas, the jurors were instructed per CALCRIM No. 1202 that if they found Nayeri guilty of aggravated kidnapping as alleged in count 1, they must decide whether the prosecution proved the additional allegation that Michael suffered bodily harm. And, if they found Nayeri guilty of aggravated kidnapping in count 2, they must decide whether the prosecution proved the additional allegation that Mary was confined in a manner that subjected her to a substantial likelihood of death.
During closing arguments, the prosecutor argued there was ample evidence to support those allegations, and defense counsel did not express any disagreement with that claim. Defense counsel instead took the position that Nayeri had nothing to do with the kidnapping plan that led to
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Michael suffering bodily harm and Mary being exposed to a substantial likelihood of death.
The jury rejected defense counsel's argument. It not only found Nayeri guilty of aggravated kidnapping, as alleged in counts 1 and 2, it also found true the special allegations of bodily harm as to Michael and substantial likelihood of death as to Mary. The question we must decide is whether this verdict, and Nayeri's subsequent sentence for LWOP on those counts, violates due process because Nayeri was never formally charged with those special allegations.
2. Analysis Due process is an integral component of our criminal justice system. Among other things, it requires that an accused be afforded "'fair notice of the charges against him in order that he may have a reasonable opportunity properly to prepare a defense and avoid unfair surprise at trial.' [Citation.]" (People v. Toro (1989) 47 Cal.3d 966, 973, disapproved on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3.; see also People
v. Anderson (2020) 9 Cal.5th 946, 964 (Anderson) [proper notice allows the defendant "to make informed decisions about the case, including whether to plead guilty, how to allocate investigatory resources, and what strategy to deploy at trial"].) This requirement extends to both substantive offenses and sentence enhancements alike. (Anderson, supra, 9 Cal.5th at p. 953.) However, as the Supreme Court's early decision in Britton, supra, makes clear, due process was not violated by the charging procedure utilized in this case.
As here, the defendant in Britton argued his LWOP sentence for aggravated kidnapping under section 209 was unlawful because, although the evidence amply proved as much, the accusatory pleading did not formally
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allege the victim suffered bodily harm; instead, it simply alleged the requisite elements of aggravated kidnapping. However, the Britton court found nothing wrong with this charging method. It ruled, "A charge in the language of [section 209] that the accused had kidnapped his victim [for one of the reasons proscribed in the statute] apprises the accused of what he will be expected to meet and of the several punishments prescribed therefor, any one of which, upon conviction, may be imposed upon him." (Britton, supra,
6 Cal.2d at p. 5.) Therefore, it was immaterial that the accusatory pleading failed to allege the particular sentencing factor that was used to increase the defendant's punishment from life in prison to LWOP. (Ibid.) In rejecting the defendant's lack-of-notice argument in Britton, the Supreme Court stated, "It is well settled in this state that an indictment or information need not allege the particular mode or means employed in the commission of an offense, except when of the essence thereof. [Citation.] In other words, particulars as to manner, means, place or circumstances need not in general be added to the statutory definition. [Citations.] The indictment or information need only charge the essential elements of the statutory offense. It then fairly apprises the defendant of what he is to meet at the trial." (Britton, supra, 6 Cal.2d at p. 5.)
To his credit, Nayeri acknowledges Britton undermines his due process argument. Nonetheless, he contends it "appears" that Britton was impliedly overruled by the Supreme Court's more recent decision in Anderson, supra. We cannot agree.
In Anderson, the defendant was charged with first degree murder and multiple counts of second degree robbery. In connection with the murder charge, the information alleged a sentence enhancement that Anderson was vicariously liable for a codefendant's injurious discharge of a firearm.
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(§ 12022.53, subds. (d), (e).) That enhancement, which we will refer to as the vicarious discharge enhancement, carried a mandatory sentence of 25 years to life. (Ibid.) In contrast, the robbery counts contained less serious allegations that Anderson personally used a firearm. (§§ 12022.53, subd. (b), 12022.5, subd. (a).)
However, even though the vicarious discharge enhancement was not alleged as to the robbery counts, the jury instructions and verdict forms permitted the jury to return findings that would support the enhancement with respect to each of those counts. And, ultimately, that is what it did. Based on the jury's true findings on the uncharged vicarious discharge allegations, Anderson's sentence was enhanced 125 years above and beyond what the original charges would have otherwise permitted. (Anderson, supra,
9 Cal.5th at pp. 950-952.) In finding the accusatory pleading failed to provide Anderson with adequate notice of that possibility, the Supreme Court stated, "Fair notice requires that every sentence enhancement be pleaded in connection with every count as to which it is imposed. [Citation.]" (Anderson, supra,
9 Cal.5th at pp. 956-957.) Thus, it did not matter that the vicarious discharge enhancement was alleged as to the murder count. Because that enhancement was not alleged with respect to the robbery counts, Anderson had no way of knowing he faced five additional 25-year-to-life enhancements on those counts. (Ibid.) In fact, because the vicarious discharge enhancement was alleged only on the murder count, Anderson was "entitled to assume the prosecution made a discretionary choice not to pursue the enhancement on the [robbery counts], and to rely on that choice in making decisions such as whether to plead guilty or proceed to trial. [Citation.]" (Id. at p. 956.)
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This reasoning clearly does not apply to the present case. The fundamental reason Anderson was blindsided by the vicarious discharge enhancements is that they had no inherent relationship to the underlying crime of robbery. Standing alone, that offense does not contemplate increased punishment for vicarious discharge of a firearm. (§ 211.) Therefore, from a charging perspective, the only way Anderson could have known he was looking at additional prison time on his robbery counts for vicariously discharging a firearm was if the prosecution alleged a separate and distinct sentencing enhancement with respect to those counts. (See also In re Vaquera (2024) 15 Cal.5th 706 [due process violated where defendant was punished for an unalleged enhancement that was not encompassed in his underlying offense]; People v. Mancebo (2002) 27 Cal.4th 735 [same]; People v. Perez (2015) 240 Cal.App.4th 1218 [same].)
Here, in contrast, the underlying crime of aggravated kidnapping and the relevant enhancement factors are not set apart from each other in different provisions of the Penal Code. Rather, they are embedded in a single statutory provision, section 209(a). That provision plainly states that if the victim of an aggravated kidnapping dies, suffers bodily harm, or is exposed to a substantial likelihood of death, the defendant's mandatory sentence is LWOP. (§ 209(a).) As our Supreme Court explained in Britton, this close relationship between crime and punishment obviates the need to charge the sentencing factors in the accusatory pleading when a violation of section 209 is alleged.
Therefore, irrespective of Anderson's holding on different facts and charges, Britton is still good law and binding in this case. Pursuant to that decision, the fact Nayeri was charged with the essential elements of aggravated kidnapping under section 209(a) provided him with sufficient
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notice he could be sentenced to LWOP if the evidence established his victims suffered bodily harm or were subjected to a substantial likelihood of death. (Britton, supra, 6 Cal.2d at p. 5; accord, People v. Reeves (1955) 135 Cal.App.2d 449, 453-454; People v. Holt (1949) 93 Cal.App.2d 473, 476; People v. Haley (1941) 46 Cal.App.2d 618; but see People v. Soto (1977)
74 Cal.App.3d 267, 271, fn. 2 [declining to follow Britton in an aggravated kidnapping case where the prosecutor had affirmatively represented that he was not going to prosecute the defendant for inflicting bodily harm on the victim].)
Even if Britton is not controlling, the timing of how Nayeri's case played out support the conclusion he had notice of a possible LWOP sentence. On March 18, 2015, he and Handley were jointly charged in a consolidated information with aggravated kidnapping in violation of section 209(a). The information did not allege the special factors governing the punishment for that offense. Nevertheless, following Handley's separate trial in 2017, he was sentenced to LWOP based on the jury's finding that Michael suffered bodily harm and Mary was subjected to a substantial likelihood of death during the kidnapping. That sentence came down on July 20, 2018, which was nearly a full year before Nayeri's trial got under way. Thus, Nayeri had plenty of time to construct his case strategy with Handley's fate in mind. Knowing that Handley had been sentenced to LWOP for the same charges he faced, Nayeri cannot plausibly maintain he lacked notice that he too could receive such a sentence. For that reason, as well, we find Nayeri's due process claim unavailing.
15
15
Given this conclusion, we need not consider respondent's claims that Nayeri forfeited his due process argument by failing to raise it in the trial court, or that the charges were informally amended by virtue of the
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B. Section 654 Nayeri also faults the trial court for sentencing him for both kidnapping and torturing Michael. He claims those two crimes were part of the same course of conduct and done for the same reason, i.e., to get money from Michael, and therefore dual punishment was prohibited under section
654. The claim is not well taken. Pursuant to section 654, "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) The statute "applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.]" (People v. Perez (1979)
23 Cal.3d 545, 551; accord, People v. Corpening (2016) 2 Cal.5th 307, 311; In re Calvin S. (2016) 5 Cal.App.5th 522, 533.)
Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the defendant. If all of his crimes were carried out pursuant to a single objective, multiple punishment is prohibited. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) However, if the defendant "entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible preliminary hearing evidence, the trial court's instructions, and the prosecutor's closing argument.
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course of conduct." (People v. Beamon (1973) 8 Cal.3d 625, 639; accord, People
v. Blake (1998) 68 Cal.App.4th 509, 512.) The crimes in this case involved a course of conduct that started with the victims being kidnapped from their home in Newport Beach and ended two and a half hours later when they were left out in the Mojave Desert. During that period of time, the kidnappers tortured Michael repeatedly, and once they realized they were not going to get the million dollars they were after, they cut off his penis and doused him with bleach. Nayeri contends section 654 applies to preclude punishment on the torture count because the only reason he and his cohorts tortured Michael was to get him to tell them where the million dollars was, which is why they kidnapped him in the first place.
At sentencing, the trial judge rejected this contention on the basis the kidnappers did not only torture Michael on the way out to the desert, when they were focusing on the million dollars, they also tortured him in the desert, after they had given up all hope of getting the money. Indeed, some of the torture occurred after the kidnappers cut off Michael's penis, when they poured bleach over his body. This act clearly added to Michael's suffering, yet it had nothing to do with the kidnapper's quest for money, which was obviously a lost cause by that time. Therefore, the court properly determined that section 654 did not apply to the torture count. (See People v. Nichols (1994) 29 Cal.App.4th 1651, 1657 [upholding multiple punishment for both the crime of kidnapping and a separate offense that added to the victim's suffering].)
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IV.
INEFFECTIVE ASSISTANCE OF COUNSEL
Nayeri claims his trial attorney was ineffective for not securing Figueroa's testimony at trial to support the Mexican gang member theory he talked about in his opening statement. However, "[m]aking promises about the defense evidence in opening statement and then failing to deliver does not constitute ineffective assistance per se." (People v. Burnett (2003)
110 Cal.App.4th 868, 885; see, e.g., People v. Stanley (2006) 39 Cal.4th 913, 955 [failing to deliver promised testimony on the issue of identification did not render defense counsel's performance prejudicially deficient].) And we see no reason to conclude Nayeri's attorney was ineffective for failing to deliver on his promise in this case.
As we explained above, even if Figueroa had testified as to what Garcia allegedly told her in prison, it is not reasonably probable that Nayeri would have obtained a more favorable result at trial. That is because Figueroa and Garcia are both convicted felons, and Garcia's story about how she allegedly recruited Mexican gang members to carry out the kidnapping was severely undermined by Mary's testimony that the kidnappers spoke in a fake, cartoonish Spanish accent. Mary's testimony not only refuted the suggestion the kidnappers were Hispanic, it also permitted the jury to infer that Nayeri and his cohorts took evasive steps to conceal their identity, which is circumstantial evidence of their guilt.
Considering as well that Garcia's story did not directly exculpate Nayeri with regard to the charged offenses, we do not believe Nayeri was prejudiced by its absence. Therefore, defense counsel was not ineffective for failing to produce the story through Figueroa. (See People v. Hester (2000)
22 Cal.4th 290, 296-297 [the lack of prejudice from counsel's alleged failings
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will defeat a claim of ineffective assistance of counsel irrespective of whether counsel's performance was actually deficient].)
Alternatively, Nayeri contends defense counsel was ineffective for failing to take steps to ensure the jury understood the absence of Figueroa's testimony was attributable to her own unwillingness to appear for trial, rather than any sort of problem with what she intended to say on the witness stand. Nayeri contends this measure was needed to prevent the jury from inferring Figueroa was not called as a witness because of defense counsel's dereliction or because her testimony would not have assisted the defense. However, during his closing argument, defense counsel came clean on this issue and apologized for the fact that some of the things he mentioned in his opening statement did not come out during the trial. The prosecutor also talked about this issue in his rebuttal argument. Although he briefly commented on the lack of evidence to support the Mexican gang member theory, the prosecutor did not fault defense counsel for that evidentiary void or imply that Figueroa would not have been a helpful witness for the defense. Rather, he told the jury that defense counsel was "a phenomenal lawyer" and that he did not have to apologize for anything because "trials are fluid" and "he didn't do anything wrong."
Thus, the jury was unlikely to draw an adverse inference against the defense for failing to produce Figueroa as a witness at trial. It is not reasonably likely that Nayeri would have achieved a more favorable verdict had Figueroa actually testified or had defense counsel handled her absence from trial any differently than he did. That being the case, we find no violation of Nayeri's right to effective assistance of counsel. (See In re Fields (1990) 51 Cal.3d 1063, 1079 [irrespective of the wisdom of counsel's chosen
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trial tactics, the lack of any resulting prejudice will doom a claim of ineffective assistance of counsel].)
V.
CUMULATIVE ERROR
In his final argument, Nayeri contends the alleged errors at this trial overlapped and compounded each other in a manner that undermined his constitutional right to due process. Therefore, even if the errors do not individually warrant reversal, he should be afforded a new trial on the basis of cumulative error. We acknowledge "'a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.'" (People v. Cunningham (2001)
25 Cal.4th 926, 1009; People v. Sorden (2021) 65 Cal.App.5th 582, 618.) But we do not believe those circumstances exist in this case.
"Cumulative error is present when the combined effect of the trial court's errors is prejudicial or harmful to the defendant. [Citations.] Although a defendant is entitled to a fair trial, he or she is not entitled to 'a perfect one.'" (People v. Capers (2019) 7 Cal.5th 989, 1017.) For cumulative error to mandate reversal, it must be shown to have violated the defendant's fundamental right to a fair trial. (People v. Rivas (2013) 214 Cal.App.4th
1410, 1436.)
Nayeri's trial was not perfect, but it was fair. Having carefully studied Nayeri's multitudinous arguments and the voluminous record of his trial, we have full confidence the jury's verdict was based on the law and the facts, as opposed to other improper considerations. We do not believe the few errors that did occur—whether considered individually or in conjunction with each other—rendered Nayeri's trial unfair. Alas, there is no basis to disturb the judgment against him.
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DISPOSITION
The judgment is affirmed. O'LEARY, P. J.
WE CONCUR:
DELANEY, J.
GOODING, J.