Plaintiff and Respondent,



    Defendant and Appellant.


(Super. Ct. No. 42985)


    APPEAL from a judgment of the Superior Court of Stanislaus County. David G. VanderWall, Judge.

    Katherine Hart, under appointment by the Court of Appeal, for Defendant and Appellant.

    Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Harry Joseph Colombo and Timothy L. Rieger, Deputy Attorneys General, for Plaintiff and Respondent.


    In an ever increasing trend, this murder case arises from an all too familiar formula: one party commits a relatively minor "infraction" which quickly escalates into street violence and then death or serious injury. Many of us can relate to this phenomena by reflecting upon our own experience behind the wheel of a car when a driver cuts too close to your vehicle, and "road rage" sets in.

    The roots of this case are planted in a simple street scene. A group of men were crossing the road when Alex Bernal sped around the corner in his vehicle, and had to quickly brake. Words were exchanged, threats were hurled, and moments later Bernal was dying with a knife wound to his heart.

    What makes this case unusual is defense counsel's attempt to introduce expert testimony on the sociology of poverty, and the role of honor, paternalism, and street fighters in the Hispanic culture. Although interesting, we conclude the trial court correctly decided this evidence was irrelevant to 1) whether defendant actually believed he was in imminent danger of death or great bodily injury; and 2) whether such a belief was objectively reasonable. In the words of the trial court, we are not prepared to sanction a "reasonable street fighter standard." The judgment is affirmed.


    By information, defendant was charged with the murder of Alex Bernal. (Pen. Code,See footnote 1 § 187.) It was further alleged defendant personally used a knife in the commission of the murder. (§ 12022, subd. (b).)

    Defendant pled not guilty and denied the knife use allegation. A jury found him guilty of second degree murder, and determined the knife use allegation to be true.

    Defendant's motion for a new trial was denied. Probation was also denied, and defendant was sentenced to prison for a term of 15 years to life on the murder, plus an enhancement of one year for the knife use, for a total of 16 years to life.

    Timely notice of appeal was filed.


    In the late hours of August 3, and early hours of August 4, 1995, defendant, Allen Powell, defendant's brother, Freddy Romero, Michael Madera, Jackie Fisher and Caytano Robles III (Junior), were all together at Junior's father's house in Modesto drinking alcohol. At some point they decided to walk to Diana Cantu's apartment to continue the party.

    As they crossed the street near the corner of Riverside and Miller Streets, a car came speeding around the corner. The vehicle braked quickly to allow the group to cross the street. Some of the members of the group, including defendant, angrily yelled at the driver, Alex Bernal, to slow down. Bernal stated they should move out of the way, and that he was looking for somebody. He then sped up, and defendant again yelled at him to slow down.

    At this point, Bernal pulled the car over and parked by the sidewalk. Defendant walked across the street toward the car shouting obscenities. Junior also approached the car on the passenger side. Bernal then pushed the driver's door open with his foot and kicked toward defendant, who was approaching him. Defendant backed off a little. As they swore at each other, Bernal said he was just looking for his daughter, Carolina, but also kept stating, "You want to fight? Come on, let's fight then." Defendant responded that he did not care that Bernal was looking for someone; he still should not have come around the corner so fast. Defendant also stated, "'I'll fight, I'll fight ..'" When Powell heard Bernal say he was looking for Carolina, he told the group that Bernal was Carolina's father, and to "settle down."

    Bernal then kicked off his shoes and began kicking into the air. Freddy Romero testified that both defendant and Junior fought with Bernal. After Bernal attempted to kick defendant and Junior, defendant struck Bernal in the chest with his bare hand. Then, Junior hit Bernal with his fist. Bernal fell, and defendant started walking away. Bernal also began to walk away, however, he yelled, "'I'll be back.'" At this point, defendant took out a knife, unfolded it, held it by the grip, and swung it twice at Bernal missing both times. After another swing, Bernal stated, "'I'm bleeding, you cut me.'" Everyone then left.

    Allen Powell testified that both defendant and Junior approached Bernal as he attempted to get out of his car. When he opened the door, Powell saw that Junior had a knife and made a stabbing motion toward Bernal. It appeared that Junior made contact with Bernal, but Powell could not tell whether Junior had stabbed him. Bernal then began kicking, trying to get out of the car, however, he did not appear to be hurt. Although Junior remained in the area with defendant, Junior did not do anything else. Bernal kicked three or four times in the air, but never hit anyone. Bernal then took up a boxer's stance, ready to fight. He swung at defendant, but defendant dodged the blow and punched Bernal in the chest. Defendant immediately stepped back. Powell did not see a knife in defendant's hands. However, Bernal backed up and began to hold his chest. Bernal stated, "'My heart, my heart. Stabbed me in my heart.'" As Bernal held his chest, Powell saw blood dripping down his fingers and onto his feet. Everyone began to walk away. Powell asked Bernal if he was all right. Bernal simply stated "'I'll be back. I'll be back.'" Bernal then walked toward some apartments.

    Michael Madera testified that it was not much of a fight. Bernal and defendant were fighting, and as Madera approached they were holding each other. As Madera got closer, he recognized Bernal as Carolina's father. He stated, "'Hey, man, this is Carolina's dad.'" Madera grabbed defendant and pulled him off Bernal. As they separated, Bernal kept saying, "'I'm going to come back for you. I'm going to come back for you.'" He also said, "'You little punk, I'm going to get you.'" Defendant became angry and hit Bernal once in the chest. Bernal grabbed his heart and said, "'I've been stabbed. Go get my daughter.'" Madera did not see a weapon in defendant's hand. He never saw Junior, who stayed on the sidewalk, go near Bernal. As everyone left, the last words he heard from Bernal were "'I'll be back.'"

    The group walked toward their friend's apartment and stood outside. Within 15 minutes, a police vehicle and an ambulance arrived.

    Officer Moniz was dispatched to Miller and Riverside at 2:34 a.m. on August 4, 1995, regarding a stabbing. On his way, Moniz saw a shirtless man on the corner of Yosemite and Miller, who appeared to be out of breath. Moniz stopped and made contact with him. He noticed blood spatters on a T-shirt the man was holding, and on his tennis shoes. The man identified himself as Tommy Romero and then as Tommy Munoz. Moniz noticed abrasions on his upper arms, dried blood on his left palm, and lacerations on his right hand. The man was later determined to be defendant, and taken to the Modesto police station.

    Detectives Owen and Hendee later found two knives in a field approximately 200 yards from Miller and Riverside. Officer Siville spoke with Bernal for over 30 minutes at the Stanislaus County Medical Center. Bernal was able to respond affirmatively when asked if he knew who stabbed him. However, he was in great pain and could give no further responses before he died.

    Doctor Thomas Beaver, a pathologist and coroner, testified that he performed the autopsy on Bernal. Bernal was stabbed once in the right and once the in left side of the chest. He died from a stab wound to the heart. There were no defensive wounds on the victim's hands, arms or feet. Dr. Beaver opined that the knife which caused the wounds probably had a single-edged blade. A knife identified as People's Exhibit 1 was capable of causing the fatal wound to Bernal. Bernal had a blood alcohol level of .12 percent at the time of his death.

    Criminalist John Yoshida conducted protein and enzyme analyses on the blood samples collected from Bernal, defendant, the knives found in the field, and from the crime scene. He found that defendant's PGM type is 2 plus, 1 minus, and Bernal's was a 1 plus. Both defendant and Bernal tested as ACP type B. Defendant had an Esterase D type 1, while Bernal had a 2, 1, type.

    A comparison of the blood stains with the known types of Bernal and defendant disclosed the following information: the blood on the asphalt was consistent with Bernal's and not defendant's blood; a stain on one of the knives was consistent with Bernal's types; a stain on the other knife was consistent with defendant's blood types; and the blood stains on defendant's T-shirt and right shoe were consistent with Bernal's types.


    Defendant testified that when Bernal came around the corner in the car, he yelled, "'Slow down, fool.'" After Bernal parked and got out of his car, he and defendant began fighting. Defendant separated from the group and approached the driver because he felt he had to protect his younger brother. The fighting stopped, and defendant started to walk away. Bernal then struck him from behind. At this point defendant retrieved a knife from an unknown person, and began swinging it at Bernal to scare him away. As defendant swung the knife, Bernal was backing up. Defendant testified, "I had to stop him. From there, I didn't think of nothing else, you know." Bernal kicked at defendant a couple times, and defendant swung the knife at him. His only intention was to stop Bernal, who was kicking toward him. Defendant, however, admitted, "I can't say that I was scared." Defendant felt he had to stop Bernal from getting past him. However, he said, "I can't explain me doing what I did to him .." Defendant acknowledged stabbing Bernal in the heart, but claimed he was attempting to stab Bernal in the leg. While admitting responsibility for Bernal's death, defendant maintained he never intended anyone to die.

    Defendant testified he never saw Bernal with any weapons. He admitted Bernal never did or said anything to give defendant a reason to think Bernal was out to get his brother. When asked what caused him to think he had to stab Bernal to protect his brother, defendant responded: "I don't know where my brother was standing, who was doing what, where. All I know I couldn't let [Bernal] get there." "I can't let him pass me." "All I know is to stop that guy."

    Other defense witnesses testified to Bernal's drinking problem, his temper, and his violent past. One witness, James Howard, testified that in 1979, his passenger/friend had thrown a shot glass at Bernal's car. In retaliation, Bernal shot Howard's car with a shotgun.


I.    The court properly excluded the testimony of a proposed expert witness regarding self-defense in the Hispanic culture.

    Defendant contends the trial court erred by ruling that the proposed testimony of Martin Sanchez Jankowski, a sociology professor, was irrelevant and inadmissible.See footnote 2 According to defense counsel, Professor Jankowski had authored a book and numerous articles on the subject of street violence, and was an expert in Hispanic culture. We reject the claim of error and, in any event, find defendant was not prejudiced by the court's ruling.

    Defendant cites People v. Humphrey (1996) 13 Cal.4th 1073 in support of his position that the proposed testimony was relevant. At pages 1082-1083, Humphrey summarized the law on self-defense as it relates to the use of deadly force:

    "For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is 'imperfect self-defense,' i.e., 'the defendant is deemed to have acted without malice and cannot be convicted of murder,' but can be convicted of manslaughter. [Citation.] To constitute 'perfect self-defense,' i.e., to exonerate the person completely, the belief must also be objectively reasonable. [Citations.] As the Legislature has stated, '[T]he circumstances must be sufficient to excite the fears of a reasonable person ....' (Pen. Code, § 198; see also § 197, subds. 2, 3.) Moreover, for either perfect or imperfect self-defense, the fear must be of imminent harm. 'Fear of future harm--no matter how great the fear and no matter how great the likelihood of the harm--will not suffice. The defendant's fear must be of imminent danger to life or great bodily injury.' [Citation.]

    "Although the belief in the need to defend must be objectively reasonable, a jury must consider what 'would appear to be necessary to a reasonable person in a similar situation and with similar knowledge ....' (CALJIC No. 5.50.) It judges reasonableness 'from the point of view of a reasonable person in the position of defendant ....' [Citation.] To do this, it must consider all the ' " 'facts and circumstances ... in determining whether the defendant acted in a manner in which a reasonable man would act in protecting his own life or bodily safety.' " ' [Citation.] As we stated long ago, '... a defendant is entitled to have a jury take into consideration all the elements in the case which might be expected to operate on his mind ....' [Citation.]" (Fn. omitted.)

With these principles in mind, we consider the relevance of Professor Jankowski's proposed testimony.

    According to defense counsel, Professor Jankowski's expertise deals with the sociology of poverty. He would testify that (1) street fighters have a special understanding of what is expected of them; (2) for a street fighter in the Hispanic culture, there is no retreat; (3) the Hispanic culture is based on honor, and honor defines a person; and (4) in this culture a person "would be responsible to take care of someone," i.e., defendant had a strong motivation to protect his younger brother. Stated differently, "He's the eldest male. He would assume a paternalistic role whether he wanted to or not. Something is expected of him."

    Given the law, we conclude the testimony of Professor Jankowski was irrelevant to whether defendant actually believed he was in imminent danger of death or great bodily injury, and whether such a belief was objectively reasonable. We are unsure what defendant means by his reference to the sociology of poverty, and how it might affect his actual beliefs and the objective reasonableness of those beliefs. Similarly, even if we assume street fighters have a special understanding of what is expected of them, and that this is something with which the jurors are not acquainted, why is it relevant? Are street fighters expected to kill every person they fight with, regardless of the circumstances? If so, does this expectation replace or relax the legal requirement that before deadly force may be used a person must actually fear imminent death or great bodily injury? As noted by the trial court, "Then you're creating a separate standard for what you call street fighters." No authority or case law has been cited which supports a separate standard, and we decline to adopt one here. (People v. Humphrey, supra, 13 Cal.4th at p. 1087 ["Our decision would not, in another context, compel adoption of a '"'reasonable gang member'" standard'"].)

    In the same vein, whether a person should or should not retreat from a "street fight," has no bearing on whether that person may lawfully use deadly force. A decision not to retreat from a physical confrontation and a decision to kill are two separate acts and involve different mental exercises. The laws governing self-defense recognize these distinctions and apply different rules to these legal concepts. See footnote 3 While defendant attempted to blur the distinctions between the laws governing self-defense, the trial court correctly did not.

    The evidence regarding honor, like evidence of street-fighter mentality, is not relevant to whether deadly force was warranted under the circumstances. Is there honor in killing an unarmed man, and assuming that in defendant's mind it was the honorable thing to do, how does this relate to self-defense? Clearly, the question of defendant's honor was irrelevant to whether defendant was in actual fear of death or great bodily injury, and whether his fear was objectively reasonable.

    Finally, even if defendant had a strong motivation to protect his younger brother, this does not answer the question of why it was necessary to use deadly force. Self-defense and defense of another are both recognized in the law.See footnote 4 However, as with the legal concept that one need not retreat, motive is only part of the question. Assuming defendant was justified in using force to defend himself and/or to protect his brother, the question of whether he could use deadly force was a separate issue. Any expert testimony regarding honor, tradition, street mentality, culture, paternalism, poverty or sociology simply was irrelevant.

    People v. Minifee (1996) 13 Cal.4th 1055, does not help defendant's argument. There, the court held it was error for the trial court to have excluded evidence that the defendant (who shot a man that knocked him down and threatened to hit him with a crutch) had been threatened by members of a group who Minifee believed were associated with the victim. Unlike in Minifee, the testimony excluded in this case had nothing to do with a prior threat received by defendant from someone he associated with the victim. Minifee is not analogous to the issue here -- the propriety of excluding sociological evidence.

    Similarly, People v. Davis (1965) 63 Cal.2d 648, does not help defendant. There, the evidence excluded was testimony from independent witnesses of prior incidents where the victim allegedly attacked other persons, sometimes with a knife. (Id. at p. 656.) In this case, defendant was permitted to, and did, present evidence of prior acts of violence by the victim. Thus, no error under the Davis rationale occurred.

    People v. Romero, cited by defendant at 13 Cal.App.4th 315, was deleted from the official published reports following a grant of review by the California Supreme Court. The appellate court decision was therefore superseded. Since the Supreme Court did not subsequently reorder the Court of Appeal opinion to be published pursuant to California Rules of Court, rule 976, subdivision (d), it is not citable as authority under California Rules of Court, rule 977, subdivision (d).

    Finally, defendant relies on People v. Vu (1991) 227 Cal.App.3d 810 for his contention that the exclusion of Professor Jankowski's testimony was error. There the court found the exclusion of an expert's testimony to be harmless error. The expert witness, a psychologist, was to testify about the effects of stress on perception to show that defendant's actual view of events may have differed from reality due to stress and preconceived expectations about what might happen. Defendant had testified he started to leave the apartment where his archenemy lived, after hearing someone call out to remove a gun and grenade. As he entered an alley, the victim, Cong Phan, and another man followed him. When he heard someone mention taking out a gun, and fearing he would be shot, he turned and shot Cong Phan. (Id. at pp. 813-815.) The court held the expert testimony was admissible "because defendant claimed he honestly believed Cong Phan was trying to hurt him." The expert testimony "would have supported defendant's argument that stress and expectations caused him to honestly perceive a threat where no threat was intended or apparent to others at the scene." (Id. at p. 814.) However, since the jury rejected the charge of attempted murder and convicted defendant of voluntary manslaughter on the theory of imperfect self-defense, defendant was not prejudiced by the exclusion of the expert's testimony. (Id. at pp. 814, 815.)

    Putting aside the question of whether Vu was correctly decided, it is distinguishable. Here, unlike in Vu, defendant did not testify he was in imminent fear for his life at the time he stabbed Bernal. Thus, whatever stress he was under or expectation he had when he first started fighting with Bernal changed after it became obvious Bernal was not armed. Any preconceived notion defendant may have had about Bernal having a gun disappeared when Bernal fought by simply kicking into the air, and defendant could see he was unarmed. Under these circumstances, either defendant accidentally stabbed Bernal in the heart while attempting to stab his leg, as defendant testified, or he intentionally stabbed Bernal in the heart with malice aforethought, as established by the prosecution. Either way, defendant was not in fear of imminent death or great bodily injury when he stabbed Bernal. Although only defendant knows what his actual motivation was for stabbing Bernal, even his own testimony indicates it was not fear.

    Further, no sociological expert could have provided this missing mental state of defendant's actual subjective state of mind at the time he stabbed Bernal. Therefore, even assuming Professor Janskowski could provide relevant testimony about street fighting, Hispanic honor and paternalism, its exclusion was harmless. Absent evidence that defendant was in fear of imminent death or great bodily injury, the jury had no evidentiary basis from which to conclude that defendant subjectively had an actual but unreasonable fear which negated malice aforethought. Thus, it is not reasonably probable that but for exclusion of the proffered evidence, defendant would have received a more favorable result. (People v. Watson (1956) 46 Cal.2d 818, 836.)

II.    Prosecutorial misconduct allegations See footnote *

    Defendant contends the prosecutor committed misconduct by failing to turn over discoverable information pursuant to sections 1054.1 and 1054.7. We conclude the record fails to support the misconduct claim, and in any event, assuming defendant was actually surprised at trial, he was not prejudiced.

    Preliminarily, we reject the People's contention that defendant has waived the issue on appeal for failure to timely object and request an admonition at trial. Although defendant originally objected to the prosecutor's question on relevancy grounds, he subsequently made a motion for mistrial on the grounds of prosecutorial misconduct and unfair surprise. When that motion was denied, defendant requested a curative instruction, which was also denied. Thus, the record affirmatively demonstrates the People's claim of waiver is unfounded.

    The alleged misconduct occurred at the start of cross-examination of defense witness Raymond Simpson, the defense private investigator. He testified he was previously employed by the Ceres Police Department for nine years; he conducted criminal investigations during that time, and wrote reports on these investigations; he wrote reports of his investigation in defendant's case; and the methods he used in his interviews were the same as the ones he used as a police officer. Cross-examination of Simpson began as follows:

    "BY MR. STONE [deputy district attorney]: Q. Mr. Simpson, why did you leave the Ceres Police Department?

    "MS. McDERMOTT [defense counsel]: Objection, that's not relevant.

    "THE COURT: You went into his qualifications. Objection overruled.

    "THE WITNESS: I resigned.

    "BY MR. STONE: Q. Were you terminated?

    "A. No, I resigned."

    "Q. Was that a resignation tendered in response to any sort of an inquiry about your performance as a peace officer that was an alternative to a termination?

    "A. It was.

    "Q. And was that inquiry a matter that's referred to in professional parlance as 'for cause'?

    "A. I'm not sure.

    "Q. Well, we weren't inquiring into a termination because they didn't like you, right?

    "A No.

    "Q. It was over a specific incident of misconduct; is that true?

    "A. That's correct."

    When defendant made his mistrial motion, the prosecutor explained he cross-examined Simpson regarding his departure from the Ceres Police Department because defense counsel put Simpson's credibility in issue regarding his law enforcement training, interviewing and investigative techniques. He further explained that all he did was explore a rumor, although he could not recall when or where he had heard it. The court found defendant had put Simpson's qualifications in issue, and the prosecutor had a right to cross-examine him. The court also found the prosecutor did not know more about Simpson's decision to leave the Ceres Police Department than anyone else. The court noted that Simpson left a good department after only nine years to work for a private investigator which would cause anyone to suspect that Simpson did not like the job or left for other reasons. This gave the prosecutor "room to basically go fishing" on cross-examination. Finally, the court found the evidence to be harmless because Simpson's credibility was not destroyed, and since his testimony involved a collateral issue, it would not make a difference in the outcome of the case. The court's findings are supported by the record.

"'In general, a prosecutor commits misconduct by the use of deceptive or reprehensible methods to persuade either the court or the jury.' [Citation.] His 'good faith vel non' is not 'crucial.' [Citation.] That is because the standard in accordance with which his conduct is evaluated is objective." (People v. Berryman (1993) 6 Cal.4th 1048, 1072, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 4.)

    Here, there is absolutely no evidence that the prosecutor failed to comply with his obligations under section 1054.1. See footnote 5 In fact, the California Supreme Court recently held no violation of section 1054.1 occurred under similar circumstances.

    In People v. Tillis (1998) 18 Cal.4th 284, the prosecutor surprised counsel by asking the defense expert about the effects of heroin, and whether he had been convicted of using drugs during a lunch break while testifying as an expert in an earlier case. The expert, a psychologist, admitted he had been discovered by plainclothes officers snorting cocaine in his car. (Id. at p. 288.) The trial court ruled the impeachment material was relevant and admissible, and concluded no authority required its discovery to the defense. (Id. at p. 289.) The Supreme Court agreed, holding: "Because the impeachment information about which defendant complains falls outside the scope of section 1054.1, and because the record does not establish the existence of undisclosed evidence properly discoverable under the statute, we conclude the prosecutor committed no discovery violation." (Id. at p. 287.)

    Similarly here, there is nothing to indicate the prosecutor had any materials or information which he should have disclosed to the defense. Under Tillis, it is apparent that a rumor is not discoverable information. Defendant provides no authority holding that a rumor is discoverable information. Thus, the court's finding that he did not know any more about why Simpson left the Ceres Police Department than anyone else is supported by the record. The prosecutor simply used cross-examination to find out from Simpson why he left the police to become a private investigator. Presumably, at some point in their employment relationship, defense counsel would have asked the same question. See footnote 6 Defense counsel used Simpson's law enforcement experience to bolster Simpson's credibility. By doing so, counsel opened the door to questions by the prosecutor about why Simpson left his employment.

    In any event, no harm was done. Simpson's testimony was on a collateral matter which had minimal relevance to defendant's guilt. He was called to present conflicting statements by defense witnesses James Howard, Vickie Brambila and Irma Gallegos, all of whom had testified regarding specific instances in which Bernal had been violent. In fact, defense counsel conceded, "I would not have called Ray Simpson. What he added was not a whole lot .." Briefly stated, it is not reasonably probable defendant would have received a more favorable result absent evidence that Simpson resigned from the Ceres Police Department under a cloud.

    Lastly, defendant complained to the trial court and on appeal that Simpson was made to appear as "a sleazy defense investigator" before the jury. Granted, the record does reflect that Simpson did not stand up well during cross-examination. However, defendant's complaint is akin to complaining that the prosecution's evidence made him look guilty of murder. The fact is, Simpson created his own problems. He should have disclosed to defense counsel why he resigned as a police officer. Even so, the reasons for his departure were not the type of information which would necessarily repulse a jury. Instead, any so-called "sleaziness" had to do with his conduct in this case.

    During his testimony, James Howard vented his anger at Simpson. Simpson had hounded Howard's mother and subsequently subpoenaed her simply to get Howard to testify. According to Howard, his mother was diabetic, had high blood pressure, had had a hip socket replacement, and knew nothing about Howard's shotgun incident with Bernal. Howard explained the incident had occurred 17 years earlier, and he had since become friends with Bernal and wanted nothing to do with the trial. Finally, Howard's mother called him very upset about having been subpoenaed. When Howard agreed to testify, his mother was released from the subpoena. As Howard put it, "This man [Simpson] went out and harassed my parent to get to me."

    On direct examination, Simpson testified that during the course of his investigation he made "no less than 10 trips out to [Howard's] mother's house in an attempt to locate him." On cross-examination, Simpson was justifiably grilled on the subject, as follows:

    "BY MR. STONE: Q. You understand as an investigator, former peace officer and now private investigator, that a witness has a right not to talk to the police, to you, to anybody, true?

    "[Objection overruled.]


    "A. That's correct.

    "Q. And you understand that piece of paper you served her with, a subpoena, is a court order, a court document, isn't it?

    "A. That's correct.

    "Q. What [does] the phrase 'abuse of process' mean to you?

    "A. It means to go out and subpoena anybody without any cause just to abuse your power.

    "Q. Okay. That lady was not present 17 years ago when this incident over the cars took place, was she, and you knew that?

    "A. That's correct.

    "Q. And that lady was not present and didn't see anything out on Miller Avenue when Alex Bernal died, true, and you knew that too?

    "A. That's correct.

    "Q. You served her with a subpoena just to get at her son, didn't you?

    "[Objection overruled.]


    "A. I served her with a subpoena to get information to locate her son."

    Chances are good that by the end of trial the jury was not fond of Simpson. However, this was not due to prosecutorial misconduct. The prosecutor simply did his job within the rules of evidence and the discovery statutes. Unfortunately for defendant, Simpson did not turn out to be his best witness. This is hardly good cause for a mistrial or reversal of the judgment on appeal.

III.    The alleged juror misconduct See footnote *

    Defendant lastly contends he was denied a fair trial because the jury was biased. Defendant made a motion for a new trial on the same ground, supported by the affidavit of a single juror. Defendant fails to show the trial court abused its discretion by denying his motion for a new trial.

    "Where a party seeks a new trial based upon jury misconduct, the court must undertake a three-step inquiry. First, the court must determine whether the evidence presented for its consideration is admissible. [Citations.] Declarations of jurors may be used to show that a juror concealed bias or other reason for disqualification by providing false answers during voir dire. [Citations.] When considering these declarations, the trial court must take great care not to overstep the boundaries established by Evidence Code section 1150. As pertinent, this section provides: 'Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.' (Evid. Code, § 1150, subd. (a).) This statute has thus been found to allow consideration of evidence of ' "overt acts"--that is, such statements, conduct, conditions, or events as are "open to sight, hearing, and the other senses and thus subject to corroboration" ....' [Citations.] As a result, Evidence Code section 1150 may be violated 'not only by the admission of jurors' testimony describing their own mental processes, but also by permitting testimony concerning statements made by jurors in the course of their deliberations. In rare circumstances a statement by a juror during deliberations may itself be an act of misconduct, in which case evidence of that statement is admissible. [Citation.] But when a juror in the course of deliberations gives the reasons for his or her vote, the words are simply a verbal reflection of the juror's mental processes. Consideration of such a statement as evidence of those processes is barred by Evidence Code section 1150.' [Citation.]

    "Once the court finds the evidence is admissible, it must then consider whether the facts establish misconduct. [Citations.] .


    "The trial court's determination on a motion for new trial '"'rests so completely within [its] discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.'"' [Citation.] . " (People v. Duran (1996) 50 Cal.App.4th 103, 112-113.)

    Here, one of the jurors signed a declaration which stated:

    "3. I believe the deliberations were done in a hostile, threatening climate and that it resulted in an unfair verdict for Mr. Romero.

    "4. The first day of deliberations were fraught with emotion and racial innuendo.

    "5. Even though I was elected foreperson I was considered the "Stupid Student" and essentially told to shut up and sit down.

    "6. There were about four original verdicts for manslaughter and I was holding out for that verdict.


    "8. There were frequent references to 'those people.'


    "10. There were constant references to the defendant's ethnic and socio-economic background. Someone said something to the effect that the Stupid Mexican should get a job. I was outraged by this comment. But due to the degree of tension and hostility, my arguments were met with forceful threats and I backed off.


    "12. . After much abuse, and an offer to compromise, I weakened and caved in.

    "13. I did not believe the People had proved any malice and therefore no murder conviction should stand.

    "14. I believe the jury was biased against the defendant from the beginning and carried that bias into their deliberations and ultimately the verdict."

    After argument by counsel, the court found that "All you're seeing is a reflection of one juror's impressions about his jury experience." The court's assessment of the juror declaration was correct. The juror does not attribute any specific statement to any particular juror which indicates bias. Although there were references to "'those people,'" and given the juror's impressions, this may have been a reference to "Mexicans," this requires us to speculate. Absent the entire statements so that context can be given to the phrase "those people," this is not one of those "rare" cases where a statement made by a juror during deliberations may itself be an act of misconduct. Nor does it show that a specific juror may have been racially biased against defendant. (People v. Duran, supra, 50 Cal.App.4th at p. 112.)

    Similarly, the reference to "Stupid Mexican" may be the declarant's own choice of words rather than a statement made by one of the other jurors, since the declaration indicates "Someone said something to [that] effect .." Thus, the declaration is insufficient to support a finding that any juror said "the Stupid Mexican should get a job."

    Regarding the juror's claim that he "caved in" as an offer of compromise after "much abuse," this was clearly inadmissible evidence of the deliberative process engaged in by the jurors to reach a verdict.

    All in all, the declaration does not reveal any juror misconduct. "The jury system is an institution that is legally fundamental but also fundamentally human." (People v. Marshall (1990) 50 Cal.3d 907, 950.) For this reason, jurors may not only be expected to disagree during their deliberations, they may also be expected to sometimes do so in a heated fashion. (People v. Keenan (1988) 46 Cal.3d 478, 541.) One of the strengths of the jury system is that jurors bring to their deliberations knowledge and beliefs based on their everyday life and experience. (People v. Marshall, supra, 50 Cal.3d at p. 950.) By the same token, however, this may also be one of its weaknesses -- a weakness that must be tolerated. "'[I]t is an impossible standard to require . [the jury] to be a laboratory, completely sterilized and freed from external factors.'" (Ibid.) "Thus, '[t]o permit inquiry as to the validity of a verdict based upon the demeanor, eccentricities or personalities of individual jurors would deprive the jury room of its inherent quality of free expression.'" (People v. Keenan, supra, 46 Cal.3d at p. 541.) "Moreover, under that 'standard' few verdicts would be proof against challenge." (People v. Marshall, supra, 50 Cal.3d at p. 950.)

    We conclude defendant has failed to establish that the trial court abused its discretion by denying his motion for a new trial on the ground of juror misconduct based on the declaration filed in support of that motion. The court's view of the declaration is supported, and no "'"... manifest and unmistakable abuse of discretion clearly appears."'" (People v. Delgado (1993) 5 Cal.4th 312, 328.)


    The judgment is affirmed.

_________________________WISEMAN, J.

_______________________________DIBIASO, Acting P.J.

_______________________________BUCKLEY, J.

Footnote: *     Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of Parts II and III.
Footnote: 1     All statutory references are to the Penal Code unless otherwise indicated.
Footnote: 2     We summarily reject the People's contention that defendant waived this contention by failing to obtain a final decision on the matter. The record establishes the court ruled unequivocally that the proposed testimony was "clearly irrelevant," and "I'm not going to permit him to testify."
Footnote: 3     In this case, the jury was instructed pursuant to CALJIC No. 5.50, as follows:

    "A person threatened with an attack that justifies the exercise of the right of self-defense need not retreat. In the exercise of his right of self-defense such person may stand his ground and defend himself by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge; and such person may pursue such assailant until he has secured himself from danger if that course likewise appears reasonably necessary. This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene."

However, the jury was further instructed pursuant to CALJIC No. 5.31, as follows:

    "An assault with the fists does not justify the person being assaulted in using a deadly weapon in self-defense unless that person believes and a reasonable person in the same or similar circumstances would believe that the assault is likely to inflict great bodily injury upon [him]."

Footnote: 4

    Here, the jury was instructed pursuant to CALJIC No. 5.13, as follows:

    "Homicide is justifiable and not unlawful when committed by any person in the defense of himself or another if he honestly and reasonably believed that the individual killed intended to commit a forcible and atrocious crime and that there was imminent danger of such crime being accomplished. A person may act upon appearances whether such danger is real or merely apparent."

Footnote: *     See footnote *, ante.

    Section 1054.1 provides, in pertinent part:

    "The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies:

    "(a) The names and addresses of persons the prosecutor intends to call as witnesses at trial.


    (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial."

Footnote: 6     The record indicates defense counsel did ask why Simpson left the police department. Unfortunately, counsel was only told that "It was for his own personal reasons," and was not given the whole truth. Thus, while the defense may have been surprised by Simpson's disclosure at trial, it was not due to prosecutorial misconduct.
Footnote: *     See footnote *, ante.