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Filed 10/3/24 P. v. Pacheco CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

EMMANUEL PACHECO,

Defendant and Appellant.

C098192

(Super. Ct. No. 20FE015862)

Shortly after a jury began deliberating on two gun-related charges against 

defendant Emmanuel Pacheco, the trial court substituted an alternate juror to replace a 

juror who had a family emergency. The jury ultimately found Pacheco guilty on both 

counts. On appeal, Pacheco argues that the trial court erred because it did not instruct the 

jury to set aside its prior deliberations and begin deliberating anew when the alternate 

juror was empaneled. Pacheco also notes an error in the abstract of judgment. The 

People concede both errors but argue that reversal is unwarranted because the 

instructional error was not prejudicial. We conclude that the instructional error was 

harmless, affirm the judgment, and direct that a corrected abstract of judgment be issued.
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BACKGROUND

I.

Following an argument between two groups of people near a liquor store, a 

gunman opened fire, striking the victim and leaving her paralyzed. The People charged 

Pacheco with assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b); 

count one) and possession of a firearm by a prohibited person (§ 29820; count two).1 The 

prosecution also alleged that he had a prior strike conviction. (§§ 667, subds. (b)–(i), 

1170.12.)

Witnesses identified the source of the gunfire as the group of which Pacheco was a 

member. The group was near a van, across the liquor store parking lot from the victim.

The primary issue at trial was whether Pacheco or someone else in his group was 

the shooter. Pacheco argued that either Thomas Epps or Sergio Morales had fired the 

shots.

B.O., the van’s driver, testified for the prosecution under a grant of immunity. 

There were six other people in the van, including Pacheco, Epps, and Morales. As the 

group was leaving the liquor store, one of the passengers realized she had lost her phone. 

B.O. parked in the parking lot in front of a gym. After the three men got out of the van, 

she heard a noise and turned to see Pacheco shooting a gun. She saw him pulling the 

trigger and heard gunshots but did not see muzzle flashes. He was shooting toward the 

liquor store. Epps and Morales were not standing with Pacheco, and Pacheco was the 

only person she saw firing or holding a gun.

After the shooting, the group got back in the van, and B.O. drove away. At some 

point, a police car drove up behind them. Pacheco told B.O. not to pull over, but she did 

anyway. Pacheco and Epps exited the van and fled. Both were detained by police shortly 

thereafter.

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 Undesignated statutory references are to the Penal Code.
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A detective interviewed one of the van passengers. She identified Pacheco as the 

shooter and said she did not see any of the other men in the van with a gun. She was 

uncertain but was “pretty sure” Pacheco was the shooter. She said she had not seen any 

flashes coming from the firearm. She did not see “anything sticking out of the bottom” 

of the firearm and answered affirmatively when the detective asked if the firearm looked 

like an “old western kind of gun[]” such as a revolver. She did not think Epps had a gun. 

At trial, she denied telling the detective she heard gunshots or saw who was shooting.

A different passenger testified that she did not see who fired the shots, but 

Pacheco had “kind of like a smirk, but not really a smirk” on his face. She also said that 

Pacheco was carrying a gun after the shooting.

Deputies found a nine-millimeter Glock semiautomatic firearm with an extended 

magazine in a bush near where Pacheco and Epps had exited the van. The magazine was 

wrapped in a blue handkerchief. Police also searched the parking lot where the shooting 

occurred and found 27 shell casings and one bullet fragment that had been fired from the 

firearm in the area where the van had been. There were no shell casings in front of the 

liquor store. A criminalist found gunshot residue on Pacheco and Epps, suggesting that 

they had handled a firearm, discharged a firearm, or were near a firearm when it was 

fired.

II.

The jury began deliberating on March 21, 2022, at 2:45 p.m. At 3:01 p.m., the 

jury asked the trial court to see the firearm and extended magazine, the handkerchief 

found with the firearm, and shell casings; the court produced the exhibits for the jury. At 

4:30 p.m., the court adjourned for the day.

At 9:00 a.m. the next morning, a juror stated that the juror had a family emergency 

and needed to go to the airport. The parties agreed to substitute a random alternate juror. 

At 9:28 a.m., the drawing was held, and the alternate juror arrived at 9:55 a.m. The 

jurors began their deliberations without receiving further instructions.
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At 10:32 a.m., the jury requested a readback of the testimony of four witnesses: 

the three women who had been in the van and the detective who interviewed one of them. 

The court reporter began the readback at 11:34 a.m. At 4:27 p.m., the jury asked for 

clarification about a typographical error on the verdict form for count two. The trial court 

recessed for the day at 4:30 p.m.

The jury resumed deliberations at 9:07 a.m. the next morning. The trial court 

provided a corrected verdict form for count two. At 2:41 p.m., the jury announced it had 

reached verdicts.

The jury found Pacheco guilty of both counts. As to the assault charge, the jury 

found true the allegation that he personally used a semiautomatic firearm (§ 12022.5, 

subds. (a), (d)), but found not true the allegation that he personally inflicted great bodily 

injury (§ 12022.7, subd. (b)). The trial court later found true a prior strike conviction 

allegation and imposed a total aggregate sentence of 22 years.

DISCUSSION

I.

Pacheco contends that the trial court erred when it failed to instruct the jury to set 

aside its deliberations and begin deliberating anew after the court replaced the departing 

juror with an alternate. We agree that the court committed error but conclude that it was 

harmless even under the more stringent harmless-beyond-a-reasonable-doubt standard.

Section 1089 authorizes substitution of an alternate juror before or after final 

submission of the case to the jury on a showing of good cause. Our state Supreme Court 

addressed this provision in People v. Collins (1976) 17 Cal.3d 687, superseded by statute 

on another ground as stated in People v. Boyette (2002) 29 Cal.4th 381, 462, footnote 19. 

The court explained that, under the state constitution’s jury-trial guarantee, a “defendant 

may not be convicted except by 12 jurors who have heard all the evidence and argument 

and who together have deliberated to unanimity.” (People v. Collins, supra, 17 Cal.3d at 

pp. 692-693, fn. 3.) The “requirement that 12 persons reach a unanimous verdict is not 
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met unless those 12 reach their consensus through deliberations which are the common 

experience of all of them. It is not enough that 12 jurors reach a unanimous verdict if 

1 juror has not had the benefit of the deliberations of the other 11.” (Id. at p. 693.) The 

court thus concluded that when a juror is replaced after the case has been submitted, a 

trial court must instruct the jury to set aside past deliberations and begin deliberating 

anew. (Id. at p. 694.)

CALCRIM No. 3575, the pattern instruction given in cases of postsubmission 

substitution, reads as follows: “One of your fellow jurors has been excused and an 

alternate juror has been selected to join the jury. [¶] Do not consider this substitution for 

any purpose. [¶] The alternate juror must participate fully in the deliberations that lead 

to any verdict. The People and the defendant(s) have the right to a verdict reached only 

after full participation of the jurors whose votes determine that verdict. This right will 

only be assured if you begin your deliberations again, from the beginning. Therefore, 

you must set aside and disregard all past deliberations and begin your deliberations all 

over again. Each of you must disregard the earlier deliberations and decide this case as if 

those earlier deliberations had not taken place. [¶] Now, please return to the jury room 

and start your deliberations from the beginning.”

The trial court here did not give this instruction when it substituted the alternate 

juror. Nor does it appear from the record that the court provided any similar direction to 

the jury to disregard past deliberations and begin deliberating anew. We thus agree with 

the parties that the trial court erred.

Our state Supreme Court has applied the harmless error standard in People v. 

Watson (1956) 46 Cal.2d 818 to this type of instructional error. (People v. Collins, supra, 

17 Cal.3d at p. 697.) Under Watson, a court determines whether there is a “reasonable 

probability that a more favorable verdict would have been returned had the jury been 

properly instructed following the substitution.” (Ibid.) When applying this test, 

California courts “consider whether the case is a close one and compare the time the jury 
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spent deliberating before and after the substitution of the alternate juror.” (People v. 

Proctor (1992) 4 Cal.4th 499, 537.) The closeness of a case may involve consideration 

of the case’s complexity. (See People v. Martinez (1984) 159 Cal.App.3d 661, 665.)

Pacheco contends that we should use the more stringent standard set forth in 

Chapman v. California (1967) 386 U.S. 18, which applies to federal constitutional errors. 

Under Chapman, reversal is required unless a reviewing court concludes “beyond a 

reasonable doubt that the jury verdict would have been the same absent the error.” 

(People v. Schuller (2023) 15 Cal.5th 237, 261.) Pacheco notes that when Collins was 

decided, the United States Supreme Court had concluded that the federal Constitution did 

not require unanimous jury verdicts in state criminal trials. (People v. Collins, supra, 

17 Cal.3d at p. 692, fn. 3.) The United States Supreme Court has since revisited that 

conclusion, holding in Ramos v. Louisiana (2020) 590 U.S. 83, 93 that “the Sixth 

Amendment’s unanimity requirement applies to state and federal criminal trials equally.” 

Pacheco assumes that, after Ramos, the failure to instruct jurors to set aside prior 

deliberations and begin deliberating anew offends both the Sixth Amendment and the 

state constitution. He also assumes that, under Chapman, the considerations relevant to 

measuring prejudice are the same as those under Watson (i.e., the closeness of the case 

and the amount of time spent deliberating before and after substitution).

Assuming without deciding that Pacheco’s assumptions are correct, we conclude 

that the trial court’s error was harmless beyond a reasonable doubt. In this case, the jury 

deliberated for less than two hours before recessing for the evening, and the trial court 

substituted an alternate juror the next morning. The jury then continued deliberating for 

the next day and a half, reviewing the testimony of key witnesses and noting a 

typographical mistake on the verdict form. The majority of the time deliberating

occurred after the substitution.

Additionally, the evidence against Pacheco was strong. Multiple witnesses 

identified Pacheco as the person firing the gun or saw him holding a gun shortly after the 
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shooting. Although one of the witnesses later denied identifying Pacheco, she had no 

explanation for the change in her statements and offered only a vague statement that she 

could no longer remember being at the scene of a shooting. Notably, the jury requested a 

readback of the testimony of each of these witnesses after the substitution—a fact that 

supports the conclusion that the substituted juror was part of the deliberations on the key 

issue in the case. In contrast, the evidence that the jury requested before the 

substitution—the firearm and its accessories—had no apparent connection to this issue.

Pacheco contends that compelling testimony undermined his identity as the 

shooter, but we read that testimony differently. While the witness he cites provided a 

description of the shooter that did not match Pacheco, the witness admitted that he saw 

the shooter only briefly. The witness also testified that he had not seen anyone shooting a 

gun, that he could not see “anything specific” about the people near the van, and that he 

had been intoxicated at the time.

Pacheco also points out that the jury found not true the allegation that he

personally inflicted great bodily injury. That does not, however, establish that this was a

close case, given the evidence identifying Pacheco as the shooter, the jury’s guilty 

verdicts, and its true finding that Pacheco personally used a firearm.

We conclude that the trial court’s instructional error was harmless beyond a 

reasonable doubt.

II.

“An abstract of judgment is not the judgment of conviction; it does not control if 

different from the trial court’s oral judgment and may not add to or modify the judgment 

it purports to digest or summarize.” (People v. Mitchell (2001) 26 Cal.4th 181, 185.) 

“ ‘It is not open to question that a court has the inherent power to correct clerical errors in 

its records so as to make these records reflect the true facts.’ ” (Ibid.)

The parties agree that the abstract of judgment in this case incorrectly checks the 

boxes indicating that Pacheco was convicted after a court trial, rather than a jury trial. 
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We agree as well and therefore direct the trial court to correct the abstract to indicate that 

the jury convicted Pacheco of both counts.

DISPOSITION

The judgment is affirmed. The trial court is directed to correct the abstract of 

judgment to reflect the fact that Pacheco was convicted of both counts in a jury trial. The 

trial court is further directed to forward a certified copy of the corrected abstract of 

judgment to the Department of Corrections and Rehabilitation.

 /s/ 

FEINBERG, J.

We concur:

 /s/ 

HULL, Acting P. J.

 /s/ 

KRAUSE, J.