1

Filed 8/11/16

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S130659

v. )

)

CRAIGEN LEWIS ARMSTRONG, )

) Los Angeles County

Defendant and Appellant. ) Super. Ct. No. YA049592

____________________________________)

A jury convicted defendant Craigen Lewis Armstrong of numerous crimes 

stemming from three separate, but interrelated, incidents. Specifically, the jury 

found defendant guilty of the 2001 first degree murders of Christopher Florence 

and his two older brothers, Michael Florence and Torry Florence (Pen. Code, 

§ 187, subd. (a)),

1 and it found true the multiple-murder special-circumstance 

allegations associated with those counts. (§ 190.3, subd. (a)(3).) The jury also 

found true the special circumstance allegations (1) that Christopher‟s murder was 

committed while defendant was an active participant in a criminal street gang and 

was carried out to further the gang‟s activities, and (2) that the murders of Michael 

and Torry were committed by means of discharging a firearm from a motor 

vehicle. (§ 190.2, subd. (a)(21), (22).) In connection with the three first degree 

 

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

indicated.
2

murders, the jury also found that defendant intentionally discharged a firearm 

causing death, for purposes of sentence enhancement pursuant to former section

12022.53, subdivisions (b), (c), and (d). 

Defendant was further convicted of the premeditated attempted murders of 

Christopher‟s younger brother Brian Florence and Floyd Watson, a friend of the 

Florence family (§§ 187, subd. (a)/664, subd. (a)), and the jury found true the 

firearm discharge allegations associated with these crimes. (Former § 12022.53, 

subds. (b), (c).) 

The jury found defendant guilty of five additional counts stemming from an 

incident involving an attempt to intimidate a former girlfriend, Tyiska Webster, to 

whom defendant had admitted shooting the murder victims. In connection with 

that incident, defendant was convicted of torture with the infliction of great bodily 

injury (§ 205, former § 12022.7), second degree robbery (§ 211), first degree 

burglary (§§ 459), assault with a semi-automatic firearm (§ 245, subd. (b)), and 

false imprisonment by violence (§ 236). The jury returned a verdict of guilty on a 

second count of false imprisonment by violence, this crime involving Webster‟s

three-year-old daughter, C. A. (§ 236). 

Defendant later admitted the allegation that he was on bail at the time he 

committed the crimes. (Former § 12022.1.) 

After the penalty phase, the jury returned death verdicts as to all three 

murders. Defendant moved for new trial and for modification of his sentence to 

life without the possibility of parole. The trial court denied those motions and 

sentenced defendant to death.2 This appeal is automatic. (§ 1259.) 

 

2 In sentencing defendant for the noncapital crimes, the court imposed the 

midterm of three years for the robbery count consecutive to eight months (onethird the midterm) for the false imprisonment of Webster‟s daughter, consecutive 

(footnote continued on next page)
3

During guilt phase deliberations, the trial court discharged a juror for 

failing to deliberate. Because the record does not show as a demonstrable reality 

that the juror was unable to perform her duty, we agree with defendant that the 

court abused its discretion in removing the juror. We conclude furthermore that 

the error compels reversal of the judgment in its entirety. 

I. FACTS

A. Guilt Phase Evidence

1. Prosecution Evidence

a. Shooting of Christopher Florence

On the evening of September 27, 2001, 21-year-old Christopher Florence 

was driving his car to meet a young woman near the area of 104th Street and 

Crenshaw Boulevard in Inglewood. Attempting to follow directions written on a 

piece of paper, he mistakenly turned right off of 104th Street onto 10th Avenue, 

going the wrong way on a one-way street. This portion of 10th Avenue is in an 

area known as “the Bottoms,” which was claimed by the Crenshaw Mafia, a 

Bloods gang of which defendant was a member. Several shots were fired. 

Christopher was badly injured and drove a few blocks until he crashed into a 

median barrier on Crenshaw Boulevard. He died a short time later from a bullet 

wound to his left side. One bullet was recovered from his body and three others 

from inside the car. 

 

(footnote continued from previous page)

to a life term for the torture conviction, and life terms with a 20-year enhancement 

for each of the two premeditated attempted murder counts. The court ordered 

sentences on all remaining counts stayed pursuant to section 654. 
4

Tyiska Webster, who was defendant‟s girlfriend at the time, went to the 

Bottoms the next morning and heard about the shooting. When she asked 

defendant about it, he told her he shot at the car because it was traveling the wrong 

way on a one-way street, which he believed was a maneuver used by members of 

rival gangs before they commit a drive-by shooting. Defendant pointed out 

broken glass on the street that he said had come from the shooting. 

b. Shooting of the other Florence brothers

On the morning of September 29, 2001, two days after Christopher‟s death, 

Christopher‟s mother and his three brothers, Brian, Torry, and Michael Florence,3

drove to the Bottoms, near the area where Christopher had been shot. They saw a 

number of gang members on 10th Avenue, and Michael pointed his finger at them, 

gesturing as if he had a gun. Around midnight that night, a number of people had 

gathered at the Florence home to mourn the death of Christopher, including his 

three brothers and their friend, Floyd Watson. In the course of conducting his own 

investigation into the shooting, Michael received a call from a woman identifying 

herself as “Nicole,” who said she had information about Christopher‟s death and 

would meet with him. The four men left the house in Michael‟s Ford Mustang to 

get something to eat. Michael then drove the group in search of the place where 

he was scheduled to meet Nicole, in the area of 104th Street and South Van Ness

Avenue. 

They were driving east on Century, and stopped at the intersection of 

Century and Doty, when Watson looked through the rear windshield and saw a

burgundy Ford Contour behind the Mustang in the lane to the left. Defendant was 

 

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

names. 
5

leaning out the window of the rear passenger side of the Contour, yelling 

something. Watson told Michael that defendant was yelling at them and Michael 

began to roll down his window. Defendant pulled out a gun and started shooting

as the Contour moved forward, parallel to the Mustang. After several gunshots the 

Contour pulled away. Michael was shot in the head and Torry was shot in the 

neck. 

Brian jumped into the front seat and steered the Mustang out of the way of 

traffic. Brian and Watson then waved down passing vehicles and left the scene to 

call for help. When the police arrived, Michael was in the driver‟s seat and not 

speaking or moving. Torry was lying in the street. When asked if he knew who 

the shooter was, he responded, “CMGs,” which the officer understood to mean the 

Crenshaw Mafia Gangsters. Torry stated that a female named “Randi” was 

involved in the shooting. 

Brian and Watson soon returned to the scene and spoke to police. Brian 

described the shooter as a light-skinned African-American male in a red 

sweatshirt, Johnny Blaze brand, and he indicated that the shooter had fired from 

within a red Ford with three females inside. Based on this description, the officer 

suspected there might be a connection between the shooting and an assault that 

had occurred earlier that night at a nearby 7-Eleven store. Defendant had exited a 

red vehicle outside the 7-Eleven store and approached a man, asking him where he 

was from. A few minutes later, defendant punched the man in the face. An 

officer who had had prior contacts with defendant reviewed the store‟s 

surveillance videotape and identified defendant as the assailant. At the police 

station later that night, Brian and Watson identified defendant in a photographic 

lineup of known gang members. 

Also that same night, defendant met Tyiska Webster, got into her car, and 

directed her to the scene of the second shooting. According to Webster, defendant 
6

looked at the Mustang and said, “I did that.” He told her that he pulled up next to

the car and asked its occupants where they were from and then “let them have it.” 

Both Torry and Michael died from their gunshot wounds, and a bullet was 

removed from each of their bodies. No evidence was found in the Mustang that 

any gunshots had been fired from inside the car. 

On October 2, 2001, two days after the second shooting, police officers 

conducted surveillance of a house occupied by defendant and his brother, Darrin

Armstrong. They spotted defendant, dressed entirely in red, riding as a passenger 

in a red Ford Contour driven by Tenesha Washington, the car‟s registered owner. 

Officers stopped the car and arrested defendant. The police later conducted a 

search of defendant‟s residence and recovered a red Johnny Blaze sweatshirt from 

defendant‟s closet. 

Also on the day of defendant‟s arrest, the police stopped a car being driven 

by defendant‟s brother Darrin. After obtaining his consent to search, officers 

found a loaded nine-millimeter pistol. Ballistics analysis indicated that the bullets 

recovered from Christopher‟s car and body and the bullets recovered from the 

shooting of Michael and Torry all had been fired from this weapon. Earlier, police 

had determined that the red Ford Contour in which defendant was riding at the 

time of his arrest had sustained no gunshot damage. 

c. Torture of Tyiska Webster

In May 2002, about seven months after the shootings, defendant‟s former 

girlfriend Tyiska Webster was living temporarily in the Beverly Garland Hotel 

under a witness protection program because of her anticipated testimony in a 

different case. Webster was seven months pregnant at the time and her three-yearold daughter C. was living there with her. Webster was scheduled to move to a 
7

more permanent location, and the police detective who was working with her 

recently had given her a card that showed the new address. 

In the early evening of May 1, 2002, Webster heard a knock on the door. A 

female voice said, “Housekeeping,” and Webster opened the door. When she did, 

four people rushed into the room, including defendant‟s brother Darrin, and three 

others. After Webster had been pushed onto the bed, Darrin questioned her about 

money she was supposed to send to defendant in jail and asked why she was in the 

witness protection program and whether she was “snitching” on defendant. 

Meanwhile, Webster‟s young daughter had been taken into the bathroom. When 

Webster denied informing on defendant, Darrin hit her on the head with an 

unloaded nine-millimeter handgun. He then loaded the gun. The intruders placed 

a pillowcase over Webster‟s head and beat her. At one point, Webster heard 

Darrin answer a telephone call, telling the caller, “We found her” and “What do 

you want me to do to her.” Darrin also said they had not found any money and 

asked if they should “oop” her, which Webster understood to mean shoot or kill 

her. He then put the phone next to Webster‟s ear. The caller, whose voice 

Webster recognized as defendant‟s, asked why she had not deposited money into

his account. Webster had deposited money for defendant a few times in the past, 

but had since stopped doing so. Webster told defendant that she would put money

in his account if he told Darrin and the others to leave. Darrin took back the phone 

and continued to talk, then ended the call by saying, “We‟ll just beat her up some 

more.” The group used a telephone cord to whip and attempt to strangle Webster. 

They also lit some sticks and used them to burn her approximately 140 times. 

They left after taking her clothes and the contents of her wallet, ordering her not to 

tell anyone about the incident and warning her that they knew where her 

grandmother lived. 
8

Detectives interviewed Webster while she was in the hospital being treated 

for her injuries. She reported to them, for the first time, that defendant told her he 

was responsible for the murders of the three Florence brothers. Items taken from 

Webster were later recovered from Darrin‟s room in the home he shared with 

defendant. Inside defendant‟s jail cell, detectives found a receipt from the jail‟s 

canteen with the address of the location where police had been planning to move 

Webster. 

d. Gang Evidence

Detective Kerry Tripp testified at trial as an expert on gangs. He told the 

jury that defendant had admitted that he was a member of the Crenshaw Mafia 

Gangsters, a criminal street gang with about 400 members who tended to 

congregate in the part of Ingleside known as the Bottoms, on 10th Avenue, south 

of Bardton. For a gang member to stare at someone or walk up to someone and 

ask where he is from constitutes a challenge to that person. According to 

Detective Tripp, when gang members see a car going in the wrong direction on a 

one-way street, they typically assume it is being driven by either a police officer or 

a rival gang member. 

Detective Tripp also told the jury that none of the Florence brothers was in 

the police department‟s gang database, and to his knowledge none of them was a 

gang member. Brenda Florence, the mother of Christopher, Michael, Torry, and 

Brian, testified that none of her sons was a gang member or otherwise engaged in 

criminal activities. 

2. Defense Evidence 

Defendant testified on his own behalf, and admitted he was a member of 

the Crenshaw Mafia Gangsters. But he denied having anything to do with 

Christopher‟s shooting, and claimed that he spent that evening at his mother‟s 
9

home in Downey with his son. He also denied ever talking about that shooting 

with Webster. Defendant told the jury, furthermore, that he, his brother, and three

of their friends had access to a nine-millimeter handgun that was hidden on 10th 

Avenue behind some mailboxes, but he denied having the gun in his possession on 

the day that Christopher was shot. 

Defendant did acknowledge his involvement in the shooting of 

Christopher‟s brothers, but he claimed that he acted in response to perceived 

threats of violence. He testified that, the morning after Christopher‟s death, he 

saw a truck or SUV with two or three people in it driving slowly in the area of the 

Bottoms. At the time, defendant was standing with a group of fellow gang 

members. When the vehicle passed by the group, the driver pointed the fingers of 

his hand at them as if he had a gun. That gesture led defendant to believe they 

would be back to shoot him. Later that night, at about midnight, he saw Webster

in the Bottoms. As they socialized with some friends, one of the friends received 

a call from some of the “homegirls,” asking for help. In response to the call, 

defendant armed himself with the nine-millimeter handgun, got into Webster‟s car 

with her and several others, and drove to a club, which was located in the territory 

of a rival gang. When the group arrived at the club, defendant learned that his 

“homegirls,” Tonesha, Randi, and Vanessa, had been beaten by some males who 

had since left the scene. Defendant directed Webster to return to the Bottoms and 

he got into Tonesha‟s red Ford Contour with the other two young women. Randi 

sat in the front passenger seat, Vanessa sat in the rear driver‟s side seat, and 

defendant sat in the rear passenger side seat. They started driving back to the 

Bottoms. 

Defendant next offered the jury his account of the incident at the 7-Eleven 

store that preceded the second shooting. According to defendant, on their way 

back to the Bottoms, they took a shortcut through a 7-Eleven store parking lot. As 
10

they did so, defendant saw a man standing in front of the store wearing a red belt, 

which defendant believed meant he was a member of the Bloods gang. Defendant 

asked Tonesha to park the car so he could alert the man that he was not safe

because he was standing in the territory of a rival Crips gang. When defendant 

asked the man where he was from, the man told him he was a member of the 

Crenshaw Mafia Gangsters, defendant‟s gang. Defendant did not recognize the 

man, however, and thought he might be setting defendant up for an assault. When 

the man then asked defendant where he was from, defendant hit him in the face. 

Defendant testified that after leaving the store parking lot, they were near 

the intersection of Century and Doty when Vanessa told him that some men in 

another car were staring. Defendant looked over at a Ford Mustang and saw the 

driver staring at him. He recognized the driver as the man who previously had 

made the gesture with his hand as if he had a gun. According to defendant, the 

man rolled down his car window, asked if defendant was from the Crenshaw 

Mafia Gangsters, and pointed a gun at him. Defendant told the jury he became 

frightened and started shooting. 

Afterward, according to defendant, the group drove back to the Bottoms, 

where Webster was waiting for him. Defendant got into Webster‟s car and told 

her he could not believe what had happened. He directed Webster to the scene of 

the shooting, and told her that he had to shoot. He told Webster that the driver 

probably had been hit. Later, defendant‟s brother Darrin picked him up in his car, 

where defendant placed his gun under the seat. 

Defendant testified further that following his arrest two days after the 

second shooting, he called Webster a few times and the two exchanged letters. He 

stopped communicating with her, however, after he received a letter that broached 

the subject of getting married and having children. In May of 2002, he did not 

know where Webster was living and was not aware that she was in the witness 
11

protection program. He denied speaking to anyone about harming her and denied 

speaking to her on his brother‟s cell phone on May 1. Defendant testified that 

Darrin did give him an address for Webster, which he wrote down. Defendant 

explained that Darrin had asked him to write to Webster to encourage her not to 

press charges against Darrin for the May 2002 assault, but defendant never wrote 

such a letter. 

A physician who treated Webster after she was assaulted testified for the 

defense that Webster told him she did not know who attacked her. 

B. Penalty Phase Evidence

1. Prosecution’s case in aggravation

The prosecution presented evidence that defendant had one prior felony 

conviction, a robbery adjudicated in juvenile court, and that he had engaged in 

violent criminal conduct on four occasions. The prosecution‟s evidence showed 

that in May of 2000, defendant attempted to intimidate a witness not to press car

theft charges against his brother, and in June of 2000, he robbed and beat a man 

outside an Inglewood nightclub because he believed the man was gay. The 

prosecution also presented evidence that a few weeks before shooting Christopher,

defendant approached an occupied car and threw a brick through the passenger 

side window. Other evidence indicated that in October of 2003, subsequent to his 

arrest for the present murders, defendant stabbed a fellow inmate in the county 

jail. 

The prosecution called various witnesses to testify regarding the impact that 

the murders of Christopher, Michael, and Torry Florence had had on them and the 

people close to them. According to the witnesses, at the time Michael and Torry 

were killed, they both were engaged to be married. In addition, Torry and his 

fiancée had a young daughter who was very close to her father, and Torry had 
12

helped raise his fiancée‟s two other daughters. The victims‟ mother, Brenda 

Florence, testified that Christopher, Michael, and Torry had each graduated from 

high school and were employed full time. She also told the jury that she felt “as if 

[she had] been dropped in the pits of hell.” According to Mrs. Florence, the loss

of her three older sons likewise had been hard on her surviving son, Brian, who 

had lost 40 pounds and developed a number of medical problems. 

2. Defense case in mitigation

The defense called a number of witnesses who testified about defendant‟s 

difficult childhood. According to their testimony, until defendant was five years 

old, his father spent a lot of time with him and he was a happy child. Defendant 

also was very close to his brother Darrin. However, his father beat his mother 

every week, sometimes in front of him. The incidents frightened defendant and 

caused him to wet the bed. Once, defendant saw his father point a gun at his 

grandmother. 

When defendant was six or seven years old, his mother stabbed his father. 

The couple soon separated, and defendant lived with his father while his brother 

Darrin lived with his mother. One year later, defendant came to live with his 

mother but he continued to see his father regularly and was close to him. When 

defendant was 13 or 14 years old, however, his father called to say he had to move 

out of town and he never contacted his children again. At that time, defendant 

began to associate with an older man in the neighborhood who was a gang 

member, and defendant eventually joined a gang. When testifying on defendant‟s 

behalf, defendant‟s mother, uncle, and grandmother asked the jury to spare his life. 
13

II. DISCUSSION 

A. Excusal of Juror for Failure to Deliberate

The jury began guilt phase deliberations after a nine-day trial. After two 

full days of deliberating, the foreperson informed the court that the jury was 

deadlocked on all counts. The court directed the jury to continue its deliberations. 

By the next court day, however, the court had received a series of notes, two of 

which indicated that Juror No. 5 was not objectively considering the evidence and 

was refusing to listen to other jurors‟ views, and that she harbored possible biases 

with regard to gang members and the police. A note from Juror No. 5 reported 

that Juror No. 12 was biased. The court individually questioned the foreperson, 

Juror No. 5, Juror No. 12, and two other jurors who were involved or mentioned in 

the exchange of notes. The court discharged Juror No. 12 for implied bias based 

on his friendship with defendant‟s cousin and failure to report the relationship to 

the court. The court excused Juror No. 5 for refusing to deliberate. 

The court appointed two alternate jurors, and the reconstituted jury began 

deliberations anew. Three days later, the jury returned verdicts finding defendant 

guilty on all counts and entering true findings on all of the special circumstance 

and firearm allegations. 

Defendant argues that the court erred in dismissing Juror No. 5 for failing 

to deliberate. Mindful of the heightened scrutiny umder which the trial court‟s 

excusal of a deliberating juror is assessed on appeal, we cannot say with 

confidence that the record shows as a “demonstrable reality” that there was good 

cause to discharge Juror No. 5. We therefore agree with defendant that the court 

abused its discretion in dismissing Juror No. 5 and that the error compels reversal 

of the judgment in its entirety.
14

1. Details regarding the trial court’s ruling 

Jury deliberations at the guilt phase began midafternoon on Wednesday, 

August 18, 2004. On Friday afternoon, August 20, the transcript of defendant‟s 

testimony regarding self-defense was read to the jurors at their request. After the 

readback, the court notified counsel that it had received a note from the foreperson 

indicating that the jury was deadlocked on all counts. The court found it 

“astonishing” that the jury would reach that conclusion after only two full days of 

deliberations. In the court‟s experience, “That happens only when a juror is not 

really deliberating.” However, the court agreed with defense counsel‟s 

observation that there was no indication in the foreperson‟s note that anyone was 

not participating, and the court decided accordingly to direct the jury to continue 

deliberations. 

The jury was then summoned into the courtroom. The court did not ask the 

jurors how they were split or whether they thought they could resolve any 

deadlock. Instead, the court asked the jurors whether a readback, further 

explanation of the law, or additional argument would be helpful, and inquired 

whether any of the jurors had time commitment problems. The court then directed

the jurors to continue deliberating, remarking that “given about nine days of 

testimony, 38 witnesses testified, there are 130 items of evidence, I don‟t think 

that any jury in two days can say that they have done everything that can be done 

in trying to evaluate that evidence and come to a conclusion.” The jury resumed 

deliberations that same afternoon. 

On the next court day, Monday, August 23, the court informed counsel that 

it had received two notes late in the day the previous Friday, and one additional 

note on Monday morning, after the jury had checked in for the day. A note from 

Juror No. 5 claimed that Juror No. 12 was biased. She explained that Juror No. 12 

had told her and Juror No. 6 sometime before deliberations that he was “close 
15

friends” with defendant‟s cousin, who described defendant as a “cold, heartless 

killer, and an active criminal.” 

A note signed by the foreperson indicated that a majority of the jurors felt 

that one juror was not fulfilling her obligation to objectively consider all of the 

evidence, and some jurors wondered whether she had accurately disclosed during 

voir dire her possible sympathies for gang members and mistrust of the police. 

The note submitted to the court on Monday morning was signed by

“A Concerned Juror,” but the clerk identified the author as Juror No. 12. This note 

identified Juror No. 5 as the reason the jury was deadlocked. It also reported that 

Juror No. 5 “refuses to listen to the other juror‟s points on why they are voting the 

way they are,” and that she “either does something on her cell phone or reads her 

book.” According to the note, Juror No. 5 challenged the other jurors to 

“convince” her she was wrong, and when the other jurors asked how they might 

persuade her, Juror No. 5 responded, “I don‟t know. I‟m not psychic.” The note 

related moreover that Juror No. 5 indicated she had once lived near the Bottoms 

and had friends who were gang members, and that she believed police officers are 

corrupt. 

After seeking input from counsel for both sides regarding how an inquiry 

should proceed, the court decided to interview the foreperson and Juror No. 5, 

Juror No. 6, and Juror No. 12. At the prosecutor‟s suggestion, the court later 

decided to also interview Juror No. 11, who had authored the note signed by the 

foreperson. The court conducted the questioning, but allowed counsel to suggest 

areas of inquiry or specific questions. 

a. Testimony of the jury foreperson 

The court began its inquiry by questioning the foreperson regarding the 

jury‟s deliberations generally, and then focused more specifically on Juror No. 5. 
16

The foreperson indicated that at the outset of deliberations, all jurors “seemed 

really eager to talk” and that “conversations were going very nicely. We were 

testing evidence [and] we were looking into possibilities.” According to the 

foreperson, when Juror No. 5 was “engaging with all of us, she‟s very articulate” 

and “seems bright.” Later, according to the foreperson, “we started to not get so 

much input” from Juror No. 5. For example, “we would start to feel sort of a 

consensus going and then we would somehow just try to integrate her into the 

conversation.” But she “just seemed a little less open minded” and was unable “to 

weigh the evidence in a more objective fashion to accept anything.” The 

foreperson indicated that he would not describe Juror No. 5 as “passive or 

anything like that, but just not willing to make a larger decision.” As he 

explained, “when it came down to making a call on a specific piece of evidence, 

[Juror No. 5] would get choked up by too many possibilities . . . .” 

With regard to the day the jury indicated it was deadlocked on all counts, 

the foreperson explained that the jury had stalled on “the big crux of the matter” 

and tried to work on other counts. But it “kept coming back to . . . a difference of 

perception, I guess,” and the jury explored other means to introduce points of 

view. “We would come up with a theory, we‟d test it, . . . and it seems as though 

at that point [Juror No. 5] just really didn‟t even participate. She just kind of sat 

there.” 

According to the foreperson, some of the other jurors were getting 

frustrated. He explained that Juror No. 5 “has her feelings, this is the way she 

looks at things. . . . It seems like she brought in a lot of preconceptions” based on 

her association with gang members. She also “comes up with a lot of possibilities 

and says things in large general terms that anything is possible and any person can 

do anything , . . . but then she doesn‟t really grasp on to what can be probable.” 

The foreperson further reported that the jurors felt that Juror No. 5‟s comments 
17

regarding police officers‟ untruthfulness came “out of nowhere.” But when asked 

whether Juror No. 5 had made any statement during deliberations that would 

indicate a bias regarding gang members or the police, the foreperson replied, “No 

direct comments. You get more of a feeling I suppose.” 

In response to the court‟s question whether the foreperson did anything to 

encourage Juror No. 5 to join in when she seemed not to be participating, the 

foreperson indicated that he did so indirectly by commenting to the jury as a whole 

that it is not easy to look at the evidence objectively and to make decisions, but we 

have to do so at a certain point. The foreperson added that “it just seems our 

discussions don‟t hold any water with her as well as our different means to 

determine the truth in this. . . . There is a point where she doesn‟t even look 

anymore. . . . She doesn‟t observe, she doesn‟t participate at all. She maybe looks 

at her book,” or her trial notes, or messages on her cell phone. When the court 

asked how often Juror No. 5 was using her cell phone, the foreperson replied, “I 

don‟t think really at all that much” and admitted that someone else brought that to 

his attention; he himself had not noticed it. 

b. Testimony of Juror No. 6

Juror No. 6 was with Juror No. 5 when Juror No. 12 indicated to them at 

some point prior to deliberations that he was acquainted with defendant‟s cousin. 

The court briefly examined Juror No. 6 with regard to that encounter, which she 

did not recall in any significant detail. The court also inquired about Juror No. 5‟s 

conduct during deliberations. Juror No. 6 reported that Juror No. 5 looked at a 

book and a cell phone “one or two times” for “a few minutes.” When asked 

whether Juror No. 5 was deliberating, Juror No. 6 indicated that Juror No. 5 had

been participating, that she‟s “tried,” but that she‟s “already made a conclusion.” 

The court then asked whether, after Juror No. 5 had made that conclusion, she was
18

no longer listening to what the others say and expressing her opinion further. 

After a confusing exchange that suggested an affirmative answer to that question, 

the court asked, “So . . . after drawing that conclusion, she‟s not at that point 

participating further?” Juror No. 6 replied, “Right. That‟s right.” With regard to 

Juror No. 5‟s possible bias regarding gang members and police, Juror No. 6 

indicated that Juror No. 5 said during deliberations that the police are sometimes 

untrustworthy and that she is acquainted with some gang members, and therefore 

“kind of knew how they thought,” but gave no specifics. 

c. Testimony of Juror No. 5

Much of Juror No. 5‟s testimony focused on the conversation in which 

Juror No. 12 informed her and Juror No. 6 that he had recently discovered that his 

close friend was defendant‟s cousin. 

The court further inquired into the issue of Juror No. 5‟s book and cell

phone. When the court asked Juror No. 5 whether she had been reading a book

during deliberations, she replied, “Oh, no.” In response to the court‟s question 

whether she had been looking at her cell phone during deliberations, Juror No. 5 

responded, “No, only on breaks. [¶] Or maybe I‟ll look at the time, but I won‟t 

call in or text messages.” She denied hearing the court direct jurors to turn off 

their cell phones during deliberations. 

With regard to deliberations, Juror No. 5 denied having formed opinions to 

the point that she was not willing to discuss the evidence with other jurors. She 

also indicated that she was freely discussing the issues with the other jurors, 

analyzing what they said, and making points in response. 

The court also questioned Juror No. 5 regarding possible bias. When asked 

directly whether she had any concerns or biases regarding gang members or the 

police, for or against either group, she replied, “No.” 
19

d. Testimony of Juror No. 11

Juror No. 11 was the author of the note asserting that one juror was not 

fulfilling her obligation to objectively consider all of the evidence, and questioning 

whether that juror had accurately disclosed during voir dire her possible biases 

with regard to gang members and law enforcement. The court elicited from Juror 

No. 11 that the juror in question was Juror No. 5. According to Juror No. 11, Juror 

No. 5 indicated that she had a lot of friends who are or were gang members, and 

that she believed police officers coach witnesses and manufacture crime scene 

evidence to maintain consistency with their theory of the case. 

e. Testimony of Juror No. 12

The court‟s examination of Juror No. 12 focused solely on the disclosure 

that he was close friends with defendant‟s cousin and his failure to report that 

relationship to the court at the time he discovered the connection. Although Juror 

No. 12 admitted having several conversations with his friend while the trial was 

pending, he asserted that the subject of the case never arose. He also indicated 

that his friendship would have no effect on his ability to be a fair juror. The court 

asked no questions pertaining to the assertions in the anonymous note regarding 

the jury deadlock and Juror No. 5‟s conduct during deliberations. 

2. The trial court’s rulings

After the jurors‟ testimony and an exchange between the court and counsel, 

the court announced that, based “on what we‟ve heard, the testimony we‟ve 

taken,” both Juror No. 5 and Juror No. 12 should be excused. 

With the assent of counsel for both sides, the trial court first ruled it would 

discharge Juror No. 12 for implied bias, based on his acquaintance with 

defendant‟s cousin and his failure to report that relationship to the court. Defense 

counsel moved for a mistrial on the ground that some of the sentiments regarding 
20

gang members expressed by Juror No. 12 during deliberations may have infected 

other members of the jury panel, but the court denied the motion. 

Over defense objection, the trial court then ruled it would discharge Juror 

No. 5, concluding that she was unable to perform her duty as a juror within the 

meaning of section 1089. Crediting the testimony of Juror No. 6, the court found 

that although Juror No. 5 “has deliberated with the other jurors, [she] is now of a 

fixed opinion, is not deliberating further.” The court observed that Juror No. 5‟s 

lack of participation in the deliberation process was further evidenced by her 

“taking time outs with the cell phone and the book,” as reported by the foreperson. 

The court also expressly found that it did not believe Juror No. 5‟s statements at 

the hearing. For example, the court later explained, Juror No. 5‟s “denial of so 

many of the things [said by the other jurors] caused me to believe that she was not 

being truthful when she talked to us about the use of the cell phone.” 

The court clarified that the basis of its decision to discharge Juror No. 5 

was her failure to deliberate further, which was corroborated by her “time outs” 

with the cell phone and book. The court observed, “in addition and separately,” 

that the testimony of Juror No. 11 regarding Juror No. 5‟s statements to the effect 

that she has or has had gang member friends expresses a bias on her part that she 

did not disclose during voir dire. 

The two excused jurors were replaced with alternates, and the court 

instructed the jury to set aside all past deliberations and begin deliberations anew. 

The reconstituted jury began deliberating on Monday afternoon, August 23. On 

Thursday morning, August 26, the jury requested and received additional 

argument from counsel. Later that same day, the jury returned verdicts of guilt on 

all charges and found true all of the special circumstance and firearm use 

allegations. 
21

3. Discussion 

Defendant contends the trial court abused its discretion in excusing Juror 

No. 5. We agree, for the reasons explained below.

A trial court may discharge a juror at any time during trial if the court finds 

that the juror is “unable to perform his or her duty.” (§ 1089.) A juror who 

refuses to deliberate may be removed “on the theory that such a juror is „unable to 

perform [her] duty‟ within the meaning of Penal Code section 1089.” (People v. 

Cleveland (2001) 25 Cal.4th 466, 475 (Cleveland).) 

Although this court reviews for abuse of discretion a court‟s ruling 

discharging a juror pursuant to section 1089 (Cleveland, supra, 25 Cal.4th at 

pp. 485-486), we have made clear that such review involves a “heightened 

standard [that] more fully reflects an appellate court‟s obligation to protect a 

defendant‟s fundamental rights to due process and to a fair trial by an unbiased 

jury.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052 (Barnwell); see 

Cleveland, supra, at p. 488 (conc. opn. of Werdegar, J.).) Specifically, the juror‟s 

“inability to perform” his or her duty “must appear in the record as a demonstrable 

reality.” (People v. Compton (1971) 6 Cal.3d 55, 60; accord, People v. Wilson

(2008) 44 Cal.4th 758, 821; Barnwell, supra, at p. 1052.)

Under the demonstrable reality standard, a reviewing court‟s task is more 

“than simply determining whether any substantial evidence in the record supports 

the trial court‟s decision.” (People v. Lomax (2010) 49 Cal.4th 530, 589.) 

“A substantial evidence inquiry examines the record in the light most favorable to 

the judgment and upholds it if the record contains reasonable, credible evidence of 

solid value upon which a reasonable trier of fact could have relied in reaching the 

conclusion in question. Once such evidence is found, the substantial evidence test 

is satisfied. . . . [¶] The demonstrable reality test entails a more comprehensive

and less deferential review. It requires a showing that the court as trier of fact did
22

rely on evidence that, in light of the entire record, supports its conclusion that 

[good cause for removing the juror is] established. It is important to make clear 

that a reviewing court does not reweigh the evidence under either test. Under the 

demonstrable reality standard, however, the reviewing court must be confident that 

the trial court‟s conclusion is manifestly supported by evidence on which the court 

actually relied. [¶] In reaching that conclusion, the reviewing panel will consider 

not just the evidence itself, but also the record of reasons the court provides.” 

(Barnwell, supra, 41 Cal.4th at pp. 1052-1053.) 

Applying this heightened standard of review that governs our assessment of 

a trial court‟s decision to discharge a juror under section 1089, and based on our 

examination of the record as a whole, we conclude that the court abused its 

discretion in discharging Juror No. 5 because her inability to perform her duty as a 

juror does not appear in the record as a demonstrable reality. 

The court indicated that its rulings removing Juror No. 5 and Juror No. 12 

were based on “what we‟ve heard [and] the testimony we‟ve taken.” That is, the 

court relied on the testimony of the jurors who were individually examined by the 

court. Notably, at no point during the hearing did the court refer to the anonymous 

note submitted earlier that morning. Nor did the court inquire of Juror No. 12 

whether he had authored it. From this we can infer that the court did not actually 

rely on the note to reach its decision to discharge Juror No. 5. Nor did the court 

rely on the testimony of Juror No. 12 or Juror No. 11. The record shows that 

neither juror provided any testimony whatsoever on the subject of Juror No. 5‟s 

failure to deliberate with fellow jurors. 

Juror No. 5 testified she had been freely discussing the evidence with the 

other jurors, and she denied reading a book or using her cell phone to make calls 

or read text messages while the rest of the jury was deliberating. The record 

shows that the court found her not credible, however. As this court explained in 
23

Barnwell, supra, 41 Cal.4th at page 1053, we afford deference to the trial court‟s 

credibility determinations, “based, as they are, on firsthand observations 

unavailable to us on appeal.” 

The record shows further that, in reaching its decision to remove Juror 

No. 5, the court affirmatively relied on the testimony of the foreperson and Juror 

No. 6. We are not confident, however, that the trial court‟s determination that 

Juror No. 5 refused to deliberate “is manifestly supported” by this evidence. 

(Barnwell, supra, 41 Cal.4th at p. 1053.) 

“Examples of refusal to deliberate include, but are not limited to, 

expressing a fixed conclusion at the beginning of deliberations and refusing to 

consider other points of view, refusing to speak to other jurors, and attempting to 

separate oneself physically from the remainder of the jury.” (Cleveland, supra, 

25 Cal.4th at p. 485.) Neither the foreperson nor Juror No. 6 suggested that Juror 

No. 5 entered deliberations with a fixed conclusion about the case and declined to 

consider the views of other jurors. Indeed, both of them testified to the contrary 

that Juror No. 5 was deliberating. According to the foreperson, “everybody 

seemed really eager to talk” when deliberations first began, and Juror No. 5 “was 

engaging with all of us” and was “very articulate.” Juror No. 6 likewise indicated 

that Juror No. 5 had been participating. 

Relying on this testimony, the court expressly found that Juror No. 5 had 

deliberated with the other jurors. But it also concluded that Juror No. 5 was “not 

deliberating further,” and found that Juror No. 5‟s reading her book and using her 

cell phone during deliberations further demonstrated her lack of participation. We 

can agree that, like the juror who will not sit with her fellow jurors at the 

deliberations table, a juror who reads a book or looks at messages on a cell phone 

during deliberations may be attempting to separate herself from the other jurors,

and that such conduct may reflect a refusal to deliberate. The court‟s conclusion 
24

in this regard is not manifestly supported by the evidence, however. The 

foreperson indicated only that Juror No. 5 “maybe looks at her book.” At one 

point in his testimony, the foreperson stated more decisively that at one point 

when he was talking to the entire group during deliberations, Juror No. 5 “had her 

phone open and was doing some sort of text message.” But the foreperson also 

admitted that he had learned about Juror No. 5‟s cell phone use from other jurors 

and that he had not personally witnessed her sending or receiving text messages. 

Thus, the only evidence supporting the court‟s finding regarding Juror No. 5‟s 

book and cell phone use was the testimony of Juror No. 6, who reported that Juror 

No. 5 looked at a book and a cell phone “one or two times” for “a few minutes.” 

Such de minimis references to a book and cell phone do not support a 

determination that Juror No. 5 was refusing to deliberate. 

As mentioned above, this court‟s decision in Cleveland provided a 

nonexhaustive list of scenarios that reflect a failure to deliberate. Cleveland also 

described some of the circumstances that do not constitute a failure to deliberate. 

Cleveland observed, for example, that a juror may not be removed for failing to 

deliberate simply because he or she “does not deliberate well or uses faulty logic

or analysis.” (Cleveland, supra, 25 Cal.4th at p. 485.) Moreover, Cleveland

explained, “the circumstance that a juror disagrees with the majority of the jury as 

to what the evidence shows, or how the law should be applied to the facts, or the 

manner in which deliberations should be conducted . . . is not a ground for 

discharge.” (Ibid.) 

The foreperson testified that Juror No. 5 was unable “to weigh evidence in 

a more objective fashion to accept anything” and was “not willing to make a larger 

decision.” The foreperson also related that “when it came down to making a call 

on a specific piece of evidence, [Juror No. 5] would get choked up by too many 

possibilities,” and that she didn‟t “really grasp on to what can be probable.” But 
25

significant evidence in the record shows that the foreperson‟s testimony regarding 

the manner in which Juror No. 5 was deliberating amounted to complaints, first, 

that she was not weighing the evidence in the way that he and the other jurors 

thought to be objective and, second, that her assessment of the evidence was 

different from theirs. The foreperson indicated, for example, that Juror No. 5 “has 

her feelings, this is the way she looks at things.” He testified furthermore that the 

jury‟s discussions and “our different means to determine the truth in this” do not 

“hold any water” with her. The evidence regarding Juror No. 5‟s manner of 

deliberating does not state a proper ground for her discharge. (Cleveland, supra, 

25 Cal.4th at p. 485.) 

The foreperson also complained that after a good start to deliberations, the 

jurors “started to not get so much input from” Juror No. 5. As he described it, 

“We would start to feel sort of a consensus going” and try to integrate her into the 

conversation, but she “seemed a little less open minded.” Juror No. 6 offered a 

similar account, saying that although Juror No. 5 had been deliberating, she had

“already made a conclusion” and was no longer participating. From this testimony 

the trial court concluded that although Juror No. 5 had been participating, she “is 

now of a fixed opinion [and] is not deliberating further.” That Juror No. 5 was not 

willing to engage in further discussion, by itself, does not show as a demonstrable 

reality that she was failing to deliberate. It is not uncommon, or grounds for 

discharge, “for a juror (or jurors) to come to a conclusion about the strength of a 

prosecution‟s case early in the deliberative process and then refuse to change his 

or her mind despite the persuasive powers of the remaining jurors.” (People v. 

Bowers (2001) 87 Cal.App.4th 722, 734.) 

In light of our duty to apply a heightened standard of review (Barnwell, 

supra, 41 Cal.4th at p. 1052), we cannot say on this record that Juror No. 5‟s 

failure to deliberate is shown as a demonstrable reality. Although the foreperson‟s 
26

testimony related that some of the jurors were frustrated with Juror No. 5, the 

record indicates that the source of that frustration was her disagreement with their 

view of the prosecution‟s evidence. Juror No. 5 “simply viewed the evidence 

differently from the way the rest of the jury viewed it.” (Cleveland, supra, 25 

Cal.4th at p. 486.) Also apparent from the record is that while deliberating with 

the other jurors, Juror No. 5 reached a conclusion regarding the strength of the 

prosecution‟s case and refused to change her mind. “[T]he court may not 

discharge a juror for failing to agree with the majority of other jurors or for 

persisting in expressing doubts about the sufficiency of the evidence in support of 

the majority view . . . .” (People v. Engelman (2002) 28 Cal.4th 436, 446.) 

We conclude that the trial court abused its discretion in discharging Juror 

No. 5. The error is prejudicial and requires reversal of the judgment. (Cleveland, 

supra, 25 Cal.4th at p. 486.) There is no double jeopardy bar to retrial of the case. 

(People v. Hernandez (2003) 30 Cal.4th 1, 6.) 

In reversing the judgment in this case, we remind trial courts that the 

removal of a seated juror for failing to deliberate is a serious matter that implicates 

a defendant‟s state and federal constitutional right to a unanimous decision by the 

jury. (Barnwell, supra, 41 Cal.4th at p. 1052.) Although a trial judge has 

discretion to remove a juror for a failure to deliberate, the exercise of that 

discretion should be undertaken with great care. 

B. Remaining Claims 

In light of our conclusion that the judgment must be reversed, we need not 

address defendant‟s assertion that the trial court erred in failing to question all of 

the jurors regarding their possible exposure to information concerning Juror 

No. 12‟s friendship with defendant‟s cousin. Nor is it necessary to examine his 

contention that the court‟s substitution of alternates after the discharge of Juror 
27

No. 5 and Juror No. 12 effectively endorsed the view of a majority of the jurors 

and had a coercive effect on the alternates. 

There is likewise no need to order correction of clerical errors in the 

abstract of judgment or to address any of defendant‟s claims relating to the penalty 

phase of trial. For the purpose of providing guidance in the event of a retrial, 

however, we address below defendant‟s claim that the trial court erred in denying 

his pretrial motions to sever the charges. 

Prior to trial, defendant moved to sever the three sets of charges and 

conduct three separate trials — one on the first shooting (charging the murder of 

Christopher), one on the second shooting (charging the murders of Michael and 

Torry and attempted murders of Brian and Floyd Watson), and one on the charges 

stemming from the assault on Webster. His motion was heard by the judge who 

presided over several months of pretrial proceedings. The court denied 

defendant‟s motion without prejudice, expressing concern that, if the charges were 

severed, Webster would have to testify twice. Defendant later renewed his 

motion, this time before the judge who tried the case, asking the court to sever the 

capital from the noncapital charges. The court determined that “the three incidents 

can and should be tried together,” and denied the motion. 

Defendant contends that the courts‟ rulings amounted to prejudicial error 

and deprived him of a fair trial. We conclude to the contrary that the court did not 

abuse its discretion in denying defendant‟s motions to sever. 

Section 954 provides that “two or more different offenses” may be charged 

in the same pleading if the offenses are either “connected together in their 

commission” or “of the same class.” This “statute permits the joinder of different 

offenses, even though they do not relate to the same transaction or event, if there is 

a common element of substantial importance in their commission, for the joinder 
28

prevents repetition of evidence and saves time and expense to the state as well as 

to the defendant.” (People v. Scott (1944) 24 Cal.2d 774, 778-779.) 

The charges were properly joined under section 954, and defendant does 

not argue otherwise. The two shootings were connected in their commission 

because the same gun was used in both incidents, and because the evidence 

suggested that Christopher‟s brothers were looking for Christopher‟s killer when 

they were shot. The assault on Webster was likewise connected to the two 

shootings because defendant‟s admissions to Webster regarding both shootings 

provided defendant with a motive to intimidate her. (See People v. Valdez (2004) 

32 Cal.4th 73, 119 [murder and escape charges were “ „connected together in their 

commission‟ ” because “the motive for the escape was to avoid prosecution” on 

the murder charge].) In addition, the assault induced Webster to report 

defendant‟s admissions to police. 

Even if charges are properly joined under section 954, the trial court retains 

discretion to try them separately, but “[t]he burden is on the party seeking 

severance to clearly establish that there is a substantial danger of prejudice 

requiring that the charges be separately tried.” (People v. Bean (1988) 46 Cal.3d 

919, 938.) “As we often have observed, because consolidation or joinder of 

charged offenses ordinarily promotes efficiency, that is the course of action 

preferred by the law.” (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220 

(Alcala).) In ruling on a severance motion, “the court must assess the likelihood 

that a jury not otherwise convinced beyond a reasonable doubt of the defendant‟s 

guilt of one or more of the charged offenses might permit the knowledge of 

defendant‟s other criminal activity to tip the balance and convict him.” (People v. 

Bean, at p. 936.) We review the trial court‟s decision to deny a severance motion 

for abuse of discretion. (Alcala, at p. 1220.) To establish an abuse of discretion, 
29

the defendant must make a “ „clear showing of prejudice.‟ ” (Ibid., italics 

omitted.) 

In reviewing a trial court‟s denial of a motion for severance, “we consider 

the record before the trial court when it made its ruling.” (Alcala, supra, 43 

Cal.4th at p. 1220.) We first consider whether evidence of each of the offenses 

would be cross-admissible in “hypothetical separate trials.” (People v. Soper

(2009) 45 Cal.4th 759, 774 (Soper).) If the evidence is not cross-admissible, we 

then consider “whether the benefits of joinder were sufficiently substantial to 

outweigh the possible „spill-over‟ effect of the „other-crimes‟ evidence on the jury 

in its consideration of the evidence of defendant‟s guilt of each set of offenses.” 

(People v. Bean, supra, 46 Cal.3d at p. 938.) In making this assessment, “we 

consider three additional factors, any of which — combined with our earlier 

determination of absence of cross-admissibility — might establish an abuse of the 

trial court‟s discretion: (1) whether some of the charges are particularly likely to 

inflame the jury against the defendant; (2) whether a weak case has been joined 

with a strong case or another weak case so that the totality of the evidence may 

alter the outcome as to some or all of the charges; or (3) whether one of the 

charges (but not another) is a capital offense, or the joinder of the charges converts 

the matter into a capital case. [Citations.] We then balance the potential for 

prejudice to the defendant from a joint trial against the countervailing benefits to 

the state.” (Soper, supra, at p. 775.) 

On the other hand, if the evidence is cross-admissible, “that factor alone is 

normally sufficient to dispel any suggestion of prejudice and to justify a trial

court‟s refusal to sever properly joined charges.” (Soper, supra, 45 Cal.4th at 

p. 775.) We conclude that even if the three sets of offenses had been tried 

separately, evidence of each would have been admissible in the trials of the other 
30

two, and that the court was justified in denying defendant‟s motions to sever the 

properly joined charges. 

Defendant first argues that the three sets of crimes were not sufficiently 

similar to one another to qualify as cross-admissible on the issue of identity. 

Defendant correctly observes that the admission of evidence of an uncharged 

crime under Evidence Code section 1101, subdivision (b), to prove identity4

requires the highest degree of similarity between the charged offense and the 

uncharged crime, and that “the offenses must share common features that are so 

distinctive as to support an inference that the same person committed them.” 

(People v. Scott (2011) 52 Cal.4th 452, 472; see People v. Ewoldt (1994) 7 Cal.4th 

380, 403 [“ „The pattern and characteristics of the crimes must be so unusual and 

distinctive as to be like a signature‟ ”].) Here, however, the cross-admissibility of 

the three criminal incidents in hypothetical separate trials does not depend on the 

application of Evidence Code section 1101, subdivision (b), to prove identity, and 

the relevance of the three criminal incidents to each other does not derive from 

their similarity. Rather, their relevance derives from the fact and sequence of their 

commission. Defendant‟s desire to avoid prosecution for Christopher‟s murder 

provided a motive for the shooting of Christopher‟s brothers, and his desire to 

avoid prosecution for both shootings provided a motive for his role in the torture 

of Webster. (See People v. Zambrano (2007) 41 Cal.4th 1082, 1129-1130 

[evidence that offenses are similar is “not crucial where the mere fact that the 

 

4 Evidence Code section 1101, subdivision (b), provides in relevant part: 

“Nothing in this section prohibits the admission of evidence that a person 

committed a crime, civil wrong, or other act when relevant to prove some fact 

(such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or] 

absence of mistake or accident . . .) other than his or her disposition to commit 

such an act.” 
31

defendant committed a prior offense gives rise to an inference that he had a motive 

to commit a later one”].) 

Notwithstanding defendant‟s assertion to the contrary, the evidence that he 

committed the second shooting would have been admissible in a separate trial on 

the first shooting. Specifically, evidence that defendant shot Christopher‟s 

brothers only two days after Christopher was shot, when they were in the 

neighborhood actively looking for their brother‟s killer, tended to establish 

defendant‟s consciousness of guilt with regard to Christopher‟s shooting, which 

would be probative of his identity as the perpetrator of that murder. (See People v. 

Harrison (2005) 35 Cal.4th 208, 230 [trial court properly admitted evidence as 

proof of the defendant‟s consciousness of guilt, “which in turn was probative of 

his identity as the perpetrator of the charged offenses”]; see also People v. Cain

(1995) 10 Cal.4th 1, 32; People v. Wilson (1992) 3 Cal.4th 926, 940.) 

Defendant‟s involvement in the first shooting likewise would have been 

admissible in a separate trial on the second shooting. Because Christopher‟s 

brothers were trying to find the person who shot him, Christopher‟s killer had a 

motive to eliminate them. At the time they were shot, Michael, Torry, Brian, and 

Watson were headed toward the location where they planned to meet a woman 

named “Nicole,” who had contacted Michael to tell him she had information about 

Christopher‟s killer. Although there was no direct evidence adduced at the 

preliminary hearing that defendant used “Nicole” to set up Christopher‟s brothers, 

the evidence raised a reasonable inference that it was no coincidence defendant 

happened to pull up next to the brothers‟ car, and that defendant was aware the 

brothers likely would be in that place at that time. (See People v. Arias (1996) 

13 Cal.4th 92, 127-128 [evidence of prior murder would have been admissible in 

trial on kidnapping and robbery charges because it supplied evidence that the 

motive for the robbery and kidnapping was to obtain money and transportation to 
32

avoid apprehension for the murder].) Evidence of defendant‟s involvement in 

Christopher‟s shooting, because it suggested a motive to shoot Christopher‟s 

brothers, also would have had some bearing on the issues of whether defendant 

intended to kill the brothers and premeditated that shooting. (See, e.g., People v. 

Cummings (1993) 4 Cal.4th 1233, 1284 [evidence of robbery would have been 

admissible in trial on charge of murdering a police officer, because evidence of the 

robberies established the motive for killing the officer, and motive to avoid arrest 

was circumstantial evidence of premeditation and deliberation].)

Finally, evidence of defendant‟s involvement in both shootings would have 

been admissible in a separate trial on the torture of Webster as evidence of 

defendant‟s motive to prevent her from testifying about his admissions regarding 

the two shootings. (See People v. Zambrano, supra, 41 Cal.4th at pp. 1129-1130 

[evidence of assaults would have been cross-admissible in trial on the murder 

charge to prove that the motive for the murder was to eliminate a witness to the 

assaults].) And evidence of defendant‟s involvement in the torture of Webster 

likewise would have been admissible in separate trials on both shootings to show 

defendant‟s consciousness of guilt and therefore, his identity as the perpetrator. 

(See People v. Harrison, supra, 35 Cal.4th at p. 230 [evidence of the defendant‟s 

attempt to murder a witness to whom the defendant had admitted his involvement 

in the shootings was properly admitted in his murder trial as consciousness of guilt 

evidence].) Finally, the evidence of defendant‟s involvement in the shootings also 

would have been admissible on the issue of Webster‟s credibility, because it 

explained why she finally reported defendant‟s admissions to the police. (See 

ibid. [evidence of the defendant‟s attack on a witness was relevant to the 

credibility of the witness‟s testimony that defendant had admitted committing two 

murders because it explained why “after the attack, [he] told the police about 

defendant‟s admission, when he had not previously done so”].) 
33

Defendant argues that there was no evidence presented at the preliminary 

hearing suggesting that Webster was tortured to prevent her from testifying against 

him. We disagree. Webster testified that defendant had admitted to her his 

involvement in both shootings. She also indicated that during the assault at the 

hotel room, defendant‟s brother Darrin told her that defendant was “ „stressing 

out‟ ” and thought that she was “ „snitching him out.‟ ” Webster testified further 

that defendant called Darrin during the incident and that Darrin asked defendant 

whether he should kill Webster. When Darrin handed Webster the phone, 

defendant asked her why she was lying and why she had not put money in his jail 

account. 

Contrary to defendant‟s assertion, there was ample evidence in the 

preliminary hearing record from which to draw the inference that Webster was 

tortured, at defendant‟s behest, to dissuade her from testifying against defendant. 

For example, viewing this incident in the context of defendant‟s admissions to 

Webster, it could reasonably be inferred that defendant‟s complaint that Webster 

had stopped giving him money reflected a concern that she had become disloyal to 

him. 

Defendant further contends that even if each of the charges had some 

relevance to the others, the evidence of other offenses would not have been crossadmissible in hypothetical separate trials because it would have been excluded as 

more prejudicial than probative under Evidence Code section 352. He argues, in 

particular, that in a separate trial on the charge that defendant murdered 

Christopher, evidence that defendant had shot and killed his two brothers and had 

attempted to murder the two other passengers in their car, was highly 

inflammatory and had limited relevance. We are not persuaded. Evidence of the 

second shooting would have been highly probative in a trial concerning the 

homicide of Christopher, first, because whoever killed Christopher had a motive to 
34

kill his brothers, and second because the subsequent shooting would have tended 

to show defendant‟s consciousness of guilt, which in turn would be probative of 

his identity as the perpetrator of the first shooting, as previously discussed. In 

addition, although there were more victims in the second shooting, the 

circumstances of that crime would be no more likely to inflame the jury than 

would be the circumstances of the first shooting. 

Defendant also contends that the evidence of the torture of Tyiska Webster 

was particularly inflammatory and would have been excluded under Evidence 

Code section 352 in separate trials on the murder charges because it had little 

probative value. As explained above, however, evidence of the torture was highly 

relevant to the murder charges not only because it evidenced defendant‟s 

consciousness of guilt, but also because it was relevant to Webster‟s credibility. 

Furthermore, it is not clear that the evidence of the crimes against Webster, which 

involved the prolonged infliction of pain, albeit not directly by defendant, would 

be more likely to inflame the jury against defendant than evidence of the 

shootings, which resulted in the deaths of three young men from the same family. 

Because evidence of each of the crimes was fully cross-admissible, the trial 

court did not abuse its discretion in denying defendant‟s motion to sever the 

charges.
35

III. CONCLUSION

The judgment is reversed in its entirety. Retrial of the case is not barred by 

the double jeopardy clauses of the state and federal Constitutions. 

CANTIL-SAKAUYE, C. J.

WE CONCUR:

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Armstrong

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S130659

Date Filed: August 11, 2016

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: William R. Pounders

__________________________________________________________________________________

Counsel:

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

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, 

Assistant Attorney General, Jaime L. Fuster and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and 

Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Patricia A. Scott

1042 Willow Creek Road, #463

Prescott, AZ 86301

(928) 445-8380

Eric J. Kohm

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 897-2273