P. v. Frank
Filed 11/8/13 P. v. Frank 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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.
KYLE DOUGLAS FRANK,
Defendant and Appellant.
C068050
(Super. Ct. No. 09F06893)
On four
separate occasions during the summer of 2009, defendant Kyle Douglas Frank
opened fire at vehicles on the freeway while driving under the influence of
both alcohol and cocaine. He was tried
by jury and convicted of eight counts of attempted murder (Pen. Code, §§
664/187, subd. (a))
title="">[1],
during which he personally and intentionally discharged a firearm (§ 12022.53,
subd. (c)), and four counts of willful and malicious discharge of a firearm at
an occupied vehicle (§ 246). The trial
court sentenced defendant to serve an aggregate determinate term of 90 years in
state prison and imposed other orders, including an order requiring defendant
to pay a main jail booking fee.
On appeal,
defendant contends: (1) the trial
court prejudicially erred and violated his constitutional rights to due process
and to a unanimous jury verdict by dismissing a juror (Juror No. 9) during
deliberations for intentionally concealing material information during voir
dire; (2) the trial court abused its discretion by ordering a sheriff’s
deputy to stand near defendant while he testified based on standing practice
rather than a case-specific analysis that balanced the need for heightened
security against the danger of prejudice to defendant’s case; and (3) the
main jail booking fee must be stricken because there is no substantial evidence
of defendant’s ability to pay the fee imposed.
We disagree
and affirm the judgment. As we explain,
the record supports the trial court’s conclusion that Juror No. 9
intentionally concealed material information during voir dire. Juror No. 9 was directly asked on his
juror questionnaire whether “[he], a close friend or relative [had] ever been a
victim of crime.†He initially answered,
“No.†During voir dire, after some of
the prospective jurors mentioned their homes being broken into, Juror No. 9
amended his response to reveal his “parents were victims of burglary a long,
long time ago,†and he “was witness to that.â€
However, during deliberations, he revealed to his fellow jurors he was
home when the burglary occurred and was shot in the foot by the
perpetrator. During voir dire,
prospective jurors who revealed an assault during a burglary or that they were
shot at were removed from the jury.
Juror No. 9 omitted the fact he was shot during the burglary. And when he was selected as one of the
jurors, he stated: “I made it.†Based on these facts, the trial court was
justified in concluding Juror No. 9’s concealment of this fact was
intentional. His removal from the jury
violated neither section 1089 nor defendant’s constitutional rights.
Turning to
defendant’s remaining contentions, we conclude his failure to object when the
trial court ordered a sheriff’s deputy to stand near him while he testified
forfeits his assertion on appeal that this decision constituted a prejudicial
abuse of discretion. In any event, even
if the issue were preserved, we find no prejudice. Finally, defendant has also forfeited his
contention that the order requiring defendant to pay the main jail booking fee
is not supported by substantial evidence.
FACTS
Defendant
was fired from his job as a truck driver in the summer of 2009. The job loss resulted in defendant moving in
with his father and stepmother. His
girlfriend broke up with him around the same time. In August 2009, defendant was hired by
Thunder Valley Casino as a porter, doing janitorial work, but he “wasn’t happy
about that job.†These events caused
defendant to begin drinking on a daily basis, “at least a six-pack at the
minimum.†Defendant also began using
cocaine “[a]t least once a week.†The
combined effect of alcohol and cocaine made defendant “nervous†and
“paranoid.†Shortly before the first
shooting incident, defendant began carrying a loaded .25 caliber semi-automatic
handgun in the center console of his Nissan Altima.
First Shooting Incident (Counts 1 and
2)
On August 22, 2009, at around 11:00 p.m., defendant was driving eastbound
on the Capitol City Freeway. He was
under the influence of both alcohol and cocaine and was driving below the speed
limit in the fast lane. Before the Watt
Avenue exit, defendant’s Altima was approached quickly from behind by a Nissan
350Z driven by Paul Adcock. After
briefly tailgating the Altima, Adcock changed lanes to pass defendant. Adcock looked into the Altima as he passed
and saw defendant “screaming†and giving him the “single finger salute.†Adcock, who is African-American, could not
hear what defendant was yelling, but he “could make out the word
‘nigger’ †by reading defendant’s lips.
Adcock returned to the fast lane after passing the Altima. Defendant then changed lanes, caught up to
the 350Z a few seconds later, and continued his angry tirade alongside Adcock’s
car. As Adcock described: “The [word] nigger came up quite a few times
again and he was angry. He just seemed
very tense about something.â€
At this
point, Adcock realized defendant’s Altima would not be able to keep up with his
350Z, so he pressed down on the gas pedal.
As Adcock created some distance between himself and the unwanted
confrontation, defendant grabbed the handgun he kept in his center console and
fired “four or five shots†at Adcock’s car.
One bullet shattered Adcock’s passenger side mirror and others hit the
passenger door, passenger side windshield frame, and hatchback roof. Adcock called 911 on his cell phone as he
drove home. Officers with the California
Highway Patrol (CHP) met Adcock at his house and took his statement.
Second Shooting Incident (Counts 3
through 6)
On August
31, 2009, at around 8:00 p.m., defendant was driving on Florin Road
approaching Interstate Highway 5. He was
again under the influence of both alcohol and cocaine. As defendant got onto the freeway onramp, he
began tailgating a Dodge Caravan driven by Tina Arteaga. Arteaga’s 14-year-old daughter, Isabella, and
four-year-old son, Christopher, were also in the minivan. Christopher was in the front passenger
seat. Isabella was seated directly
behind Arteaga. Noticing defendant
following at a distance of “[m]aybe a foot,†Arteaga “veered over to the right
a little bit so [defendant] could see that there was a big rig in front of [her]
and there was nowhere [she] could go.â€
Defendant began “going to the left, going to the right, going to the
left, going to the right, getting closer, scooting back, getting closer.†When Arteaga reached the freeway, she stayed
to the right while defendant passed her on the left and yelled something at
her. Arteaga responded by yelling: “Watch how you are fucking driving. My kids are in the car with me.†Defendant then pulled out the handgun used in
the previous shooting, reached over the back seat with the gun, and fired four
rounds at Arteaga’s minivan through the Altima’s open right rear window. Bullets hit the driver’s side headlight,
wheel well, and door frame. Arteaga
called 911 and met with CHP officers at Isabella’s father’s house.
Third Shooting Incident (Counts 7 and
8)
On
September 6, 2009, at around 10:00 p.m., defendant was driving northbound
on Interstate Highway 5 near Sutterville Road.
Again, he was under the influence of both alcohol and cocaine. Jaime Hernandez was traveling the same
direction in a Nissan Maxima. Hernandez
noticed defendant “swerving in and out of traffic cutting people off left and
right.†When defendant cut in front of
Hernandez’s Maxima, Hernandez flashed his high beams, prompting defendant to
hit his brakes three times in rapid succession.
Hernandez also hit the brakes to avoid colliding with defendant’s
Altima. He then changed lanes to the
right and “accelerate[d] past [defendant] to get away.†Defendant followed in pursuit, catching up to
Hernandez a short distance down the freeway. At this point, defendant changed lanes to the
right, pulled up beside the Maxima, and fired four rounds into the side of
Hernandez’s car. Three bullets lodged in
the front and rear passenger doors. One
bullet went through the front passenger door and lodged in the back of the
front passenger’s seat. Hernandez
accelerated away from the gunfire and watched as defendant merged onto the
Capitol City Freeway. Hernandez then
exited the freeway at Richards Boulevard and pulled into a McDonald’s parking
lot to assess the damage. Several days
later, Hernandez gave a statement to police, providing a description of
defendant’s car along with a partial license plate number (“5NZK†or “5MZKâ€);
the plate number of defendant’s Altima was 3NZK296.
Shooting Incident (Counts 9 through
12)
On
September 9, 2009, at around 8:00 p.m., defendant was driving eastbound on
Interstate Highway 80 near Antelope Road.
Yet again, defendant was under the influence of both alcohol and
cocaine. Monica Esparza was traveling the
same direction in a Dodge Caravan.
Esparza’s niece, Osiris, and son, Antonio, were also in the
minivan. Osiris was in the front
passenger seat. Antonio was seated
directly behind Osiris. Defendant’s
Altima approached Esparza’s minivan from behind at a high rate of speed,
causing Esparza to change lanes to the right to allow him to pass her on the
left. Instead, defendant followed
Esparza to the right, cut across two lanes of traffic, and pulled up next to
the minivan’s passenger side. Defendant
pulled out the same handgun used in the previous shootings and yelled, “what
nigga,†“fuck you,†and “motherfucker†out the window. With defendant’s left hand on the steering
wheel and the gun resting on his left bicep, defendant fired at least five
rounds into the side of the minivan.
Three bullets hit the front passenger door. One of these bullets penetrated the door and
hit Osiris in the leg. One bullet hit
the minivan’s rear sliding door. A fifth
bullet went through the right rear passenger door window. Esparza took the next exit, drove home, and
called the police.
Arrest and Conviction
On
September 13, 2009, defendant was stopped by a CHP officer while driving under
the influence of alcohol and cocaine. Based
on defendant’s “red, watery eyes†and “dilated pupils,†the officer believed
defendant was under the influence of either alcohol or marijuana. Defendant was taken into custody after
failing a field sobriety test. On the
way to the CHP office, defendant asked why he was under arrest when his breath
had not been tested. When the officer
explained such a test would not detect the presence of marijuana, defendant
began an “aggressive, agitated and extremely derogatory†rant, exclaiming that
“only niggers smoke that†and asking the officer whether he “look[ed] like a
stupid nigger.†He used “the word
‘nigger’ probably approximately 12 times all the way up to the [CHP]
office.â€
Law
enforcement officers found four expended shell casings inside defendant’s
Altima. Defendant’s handgun was found in
his bedroom. Bullets taken from
Arteaga’s minivan and Hernandez’s Maxima were identified as having been fired
from defendant’s gun. Bullets taken from
the other vehicles were consistent with defendant’s gun, but could not be
conclusively matched.
As
mentioned, defendant was tried by jury and convicted of eight counts of
attempted murder, during which he personally and intentionally discharged a
firearm, and four counts of willful and malicious discharge of a firearm at an
occupied vehicle. Hate crime allegations
attached to each count were found to be not true. At trial, defendant admitted to the
shootings, but denied intending to kill anyone and further denied harboring any
racial animus.
DISCUSSION
of Juror No. 9
Defendant
contends the trial court prejudicially erred and violated his constitutional
rights to due process and to a unanimous jury verdict by dismissing Juror No. 9
during deliberations for intentional concealment of material information during
voir dire. We disagree.
Background
Juror No. 9
was asked on his juror questionnaire whether “[he], a close friend or relative
[had] ever been a victim of crime.†He
answered, “No.†During voir dire, after
some of the prospective jurors mentioned their homes being broken into, Juror
No. 9 stated: “I need to add
something to the voir dire,†and explained:
“Because my parents were victims of burglary a long, long time ago, I
was witness to that.†In response to the
trial court’s questions, Juror No. 9 revealed the burglary occurred in
Detroit, Michigan, and no one was arrested for the crime. The trial court then asked: “Is there anything about having witnessed
that incident and not having anybody arrested or prosecuted that would cause
you a concern yourself on your own ability to stay objective in this
case?†Juror No. 9 answered: “No.â€
The trial court then asked: “Can
you think of anything else in your background or training the attorneys might
find of interest?†Juror No. 9
answered: “No.â€
Prior to
Juror No. 9 being questioned by the trial court, one of the prospective
jurors (R.) revealed an incident that occurred “10 years ago,†in which his
house was “burglarized†and his mother was “attacked . . . with an ice pick in
[the] garage†during the burglary. Also
prior to Juror No. 9 being questioned, another prospective juror (C.)
revealed an incident that occurred “20 years ago,†in which her brother was
driving her father’s car and someone fired a shotgun at the vehicle. After Juror No. 9 was questioned,
another prospective juror (V.) revealed an incident that occurred “30 years
ago,†in which she and a friend were shot at while driving. V. was removed by the trial court after she
stated she “would not be in the frame of mind to be fair to anyone†because the
school she worked for would not be able to cover for her absence and she would
be “worried about [her] kids.†During
the first round of peremptory challenges, the prosecution used a peremptory challenge
to remove R. from the panel. Immediately
thereafter, defense counsel used a peremptory challenge to remove C.
Voir dire
continued. Other prospective jurors
revealed that their homes had been broken into.
One prospective juror, who was seated on the jury as Juror No. 5,
revealed he witnessed a “breaking and entering†that occurred “30, 35 years
ago.†Juror No. 5 also revealed he
was the victim of an armed robbery that occurred “35, 40 years ago.†In connection with the “breaking and
entering†incident, the trial court asked whether there were “any weapons
involved.†Juror No. 5
answered: “No.â€
Despite the
fact Juror No. 9 was aware he could amend his previous response to voir
dire questions, having done so after hearing other prospective jurors
mentioning their homes being broken into, and despite the fact he witnessed one
prospective juror removed after revealing that his mother was attacked during a
burglary and two other prospective jurors removed after recounting shooting
incidents, Juror No. 9 did not amend his previous response to reveal what
he later shared with his fellow jurors during deliberations, i.e., that he was
not simply a witness to his parents
having their house burglarized. Instead,
he was home when the burglary occurred and was shot in the foot by the burglar. Thus, Juror No. 9 omitted the fact
firearm during the burglary.
During
deliberations, the trial court received a note from the jury stating that a
majority of the jury wanted Juror No. 9 “removed for obstructing the
process and bias.†Upon receiving the
note, the foreperson was brought into the courtroom and questioned. She explained that six or seven jurors had
complained Juror No. 9 did not “seem mentally stable,†he was “changing
his mind every 30 seconds,†he had accused her of having “ulterior motives†and
“trying to sway the [jury’s] decision,†and he was “deriding [her] personal
experience†and that of other jurors.
Juror
No. 9 was then brought in for questioning.
The trial court explained:
“[T]here have been some concerns raised by other jurors that maybe
you’re not allowing the process to move forward in a way that somehow manifests
some bias and a concern about whether or not you’re really treating the other
jurors courteously. [¶] Do you have -- as you sit here talking about
it, do you have in mind things that you’ve done in the deliberation room that
would be viewed by the other jurors as not being courteous?†Juror No. 9 responded: “No, I wouldn’t characterize it as that. May be taken as that.†He then mentioned he had “some problems†with
certain comments made by the foreperson at the start of their deliberations he
perceived as the foreperson “immediately trying to skew [the deliberations] in
her favor.†The trial court explained it
was “not in any way in the position to dictate how the jury goes and does its
duty†and asked Juror No. 9 whether he had said anything in the
deliberation room that “could be perceived by other jurors as indicating a bias
about the matter.†Juror No. 9
responded: “Uh, first of all, I’m the
lone hung juror in the verdict in several of the counts, so several of them
have accused me of being biased. But
you’re asking me have I said something that they perceived as bias --†The trial court clarified: “Well, you know, something that as you look
at it now would say, yes, that was an indication that I wasn’t able to keep
deliberating, wasn’t --†Juror
No. 9 answered: “I haven’t told
them that I was in any way not wanting to deliberate anymore. I did tell them based on my experience -- and
we all shared some of our experiences in trying to resolve the decisions from
this case, and it was [in] the instructions to use your experiences.†The trial court responded: “Sure.â€
Juror No. 9 continued: “I
had a particular instance that made it clear to me that there was a reasonable
doubt on something. And I think that
that was perhaps perceived as bias.†The
trial court then stated it wanted to avoid “getting into specifics,†again
stated it was not in the “position in any way to get in and resolve things for
a jury,†and asked: “Is there anything
that in your mind precludes you from continuing to deliberate with the other
jurors, continuing to treat them courteously and going on with the
process?†Juror No. 9 responded: “There’s nothing. It’s a two-way street. I told you I’m the one that’s under the
gun. I’ve been called an idiot
already. Okay. I’ve never called anybody an idiot. I never told them I didn’t want to go on or
answer their questions.â€
The trial court
called in the entire jury and reread a portion of CALCRIM No. 3550: “It is your duty to talk with one another and
to deliberate in the jury room. You must
try to agree on a verdict, if you can.
Each of you must decide the case for yourself but only after having
discussed the evidence with the other jurors.
[¶] Do not hesitate to change
your mind if you become convinced that you are wrong, but do not change your
mind just because other jurors disagree with you. Keep an open mind and openly exchange your
thoughts and ideas. [¶] Please treat one another courteously. Your role is to be an impartial judge of the
facts, not to act as an advocate for one side or the other.†The trial court then ordered the jury to
return to their deliberations.
After the
jury stepped into the hallway, Juror No. 10 returned to the courtroom and
asked the trial court: “Can I say
something to you?†The trial court had
Juror No. 10 take a seat in the jury box and heard her complaints about
Juror No. 9: “Well, this guy I just
don’t think he’s mentally stable. I
mean, he’s not rational. He’s in
everybody -- everybody thinks that. All
of us think that. And we’re just never
going to come to a conclusion. I mean,
he’s just not in his right mind.
[¶] And when he was sitting here
when you guys were picking jurors, he was writing all kinds of bizarre stuff
and saying -- you know, when they picked him and he was sworn in, he was, like,
I made it. And he’s just -- he’s not in
his right mind. [¶] And I personally can’t sit there and just --
I can’t argue with -- I mean, I can’t even -- he’s not rational. I can’t do it. And I can’t -- I want to do the right thing
and -- I don’t know how long this is going to go. I’ve got to pay my bills. I’ve got to do things, and this guy is
enjoying this. He’s enjoying
antagonizing me. [¶] I really believe that he has a mental problem
and he’s not using his common sense. And
everybody -- if you would bring everybody in, and I would beg you to do that,
they would all say the same thing.
[¶] . . . [¶]
And he didn’t tell you that he brought up an incident -- when you asked
us if we had certain issues from the past, he told us that he got -- he was --
some guy attempted to shoot him in the foot when he was younger. [¶] He
had an incident he didn’t tell you about, any of you guys about. He didn’t share that with you, and I think
that he has a bias. I mean, I think
that’s important. And we all -- when you
asked us questions, we gave you our correct answers to the questions and we
told you what happened in our past. He
didn’t tell you that.†Juror No. 10
also stated Juror No. 9 was playing Sudoku “during the testimony†in the
trial.
The trial
court then brought Juror No. 9 back in for questioning concerning Juror
No. 10’s allegations of his “not sharing something that he would have been
obligated to share [during voir dire] and not paying attention during the
testimony, playing games.†With respect
to his failure to disclose the shooting incident, Juror No. 9 explained he
was shot in the foot during the burglary incident he did disclose in voir
dire. He elaborated: “It was a home invasion robbery. Well, I don’t know if I -- somebody broke
into my house. I was taking a nap. Guy woke me up. At the same time he heard my parents coming
in the door, so he gathered us all up and he had a gun and he shot down at the
ground to scare me and then that bullet didn’t go off at all. And I challenged him and he shot at me again
at my foot.†The trial court asked: “And when he shot at you, it actually hit
your foot?†Juror No. 9
responded: “Yeah.†The trial court asked: “So you had a gunshot wound in the
foot?†Juror No. 9 answered: “Yes.â€
Juror No. 9 also explained that while the perpetrator was “wearing
a mask,†he believed the man “looked like an African American,†and added: “I lived in inner city Detroit.†With respect to playing Sudoku, Juror
No. 9 denied playing the game during trial, but admitted he “[m]ay haveâ€
played during jury selection.
Juror
No. 11 was then questioned and confirmed he observed Juror No. 9
playing Sudoku during the first or second day of trial, but did not know
whether witnesses were testifying at the time.
After Juror
No. 11 exited the courtroom, the trial court stated that what Juror
No. 9 revealed during voir dire (i.e., that his “parents were victims of
burglary a long, long time ago†and he “was witness to thatâ€) is “quite
different than being the victim of a home invasion where he’s actually
shot.†The trial court also found Juror
No. 11’s statement regarding the Sudoku incident to be credible.
The
prosecutor asked that Juror No. 9 be removed from the jury and
argued: “When we questioned him about
the home invasion that . . . I am positive he did not mention during voir dire. He at first seemed nervous and then he seemed
more emotional when he began to discuss the portions of the incident more
specifically, being woken up, being assaulted with the firearm. [¶]
Also, when the Court asked him about the race of the perpetrator, he hesitated
and then said that the -- the person was wearing a mask, but he could tell that
that person was African American and then made a comment about living in inner
city Detroit. [¶] . . .
[M]y concern would be that [Juror No. 9] harbors some ill [will]
towards African Americans because of the fact that he was the victim of a home
invasion robbery perpetrated by what he believed to be an African American
male. [¶] And because of that, and the representations
about him playing Sudoku when [Adcock], I guess, would have been on the stand
when we first began, according to [Juror No. 11]. Based upon that and the other issues, not
paying attention, I’d ask he be excused.â€
Defense counsel objected to Juror No. 9’s removal and pointed out
the importance of the trial court’s decision, “especially with [Juror No. 9’s]
comment being an unsolicited comment -- he shouldn’t have made it maybe -- that
he’s the lone holdout on a number of counts.â€
The trial
court responded: “The Court absolutely
appreciates that, but I would say for the record’s purposes that I’m
specifically not making any determinations based on that part of his
representation because from my standpoint, that’s not an issue that I wanted to
know, need to know. [¶] I have to make the determination absolutely
putting that aside and just looking and saying, you know, what do I have in
front of me? And what I have is somebody
who now it looks like there’s pretty good evidence that he wasn’t candid with
the Court over all the things that he’s witnessed. [¶]
You know, to say, you know, he witnessed that burglary and it really
wasn’t a burglary, it was a home invasion, at least he would have told us he
was shot or that there was a gun being used.
[¶] The Court thinks that I asked
at some point the generic question of whether, you know, people had been shot
at. I may not have asked every witness
-- or every potential juror, but for [Juror No. 9] to miss the import of, you
know, hey, this is something that counsel and the Court would have wanted to
have them told and to say, hey, you can respond that there’s no concern over it
and my follow up would have been looking at his questionnaire to start with,
which had the specific representation that he was not a personal witness to
something, you know, would have downplayed my inquiry, just like it happened
and say, no, this is just something that’s come up because somebody else
mentioned a burglary. [¶] That’s not what this person now has said they
had happen and that causes the Court great concern if then the scenario is the
person writes so that another juror can see it, you know, I made it. [¶]
And the inference is, yes, there is potential bias that’s inferred from
that, just the failure to disclose and writing after that failure to disclose
‘I made it’ and then the actions being that he’s playing Sudoku at the
beginning of the trial when we had the African American victim. [¶] So
from the Court’s standpoint, the Court will, even over the defense objection
here, excuse [Juror No. 9].â€
ADDIN BA xc <@osdv> xl 12 s
CDQIEO000029 l "Section 1089" Section 1089 gives the trial
court the authority to discharge a juror who, upon good cause shown, is found
to be unable to perform his or her duty.
Because “[a] juror’s duty is to weigh the evidence and credibility of
witnesses with impartiality and to reach a fair and unbiased verdict,†a finding
of “actual bias, which would have supported a challenge for cause, renders [the
juror] ‘unable to perform his [or her] duty’ and thus subject to discharge and
substitution†under ADDIN BA xc <@$osdv> xl 12 s
CDQIEO000029 section
1089. ( ADDIN BA xc <@cs> xl 49 s
CDQIEO000016 xhfl Rep xpl 1 l "People
v. Thomas
pursuant to ADDIN BA xc <@$osdv> xl 12 s
CDQIEO000029 section
1089, even after deliberations have commenced, ‘ “does not offend
constitutional proscriptions.†’
[Citation.]†( ADDIN BA xc <@cs> xl 47 s
CDQIEO000017 xhfl Rep xpl 1 l "People
v. Wilson
CDQIEO000017 xpl 2 Wilson).) However, in order to protect a defendant’s constitutional
rights to due process and to a fair trial by an unbiased jury, “a juror’s
inability to perform as a juror must be shown as a ‘demonstrable
reality.’†( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id. at
p. 821; see also ADDIN BA xc <@cs> xl 47 s
CDQIEO000018 xhfl Rep xpl 1 l "People
v. Barnwell
A potential
juror’s intentional concealment of material information during the voir dire
examination may constitute implied bias justifying removal. ( ADDIN BA xc <@$cs> xl 35 s
CDQIEO000017 xhfl Rep xpl 1 Wilson, supra,
44 Cal.4th at p. 823; ADDIN BA xc
<@cs> xl 46 s CDQIEO000019 xhfl Rep xpl 1 l "
Cal.4th 1148" People v.
McPeters (1992) 2 Cal.4th 1148, 1175 ( ADDIN BA xc <@$cs> xl 8 s
CDQIEO000019 xpl 2 McPeters),
superseded by statute on another point as stated in People v. Wallace (2008) 44 Cal.4th 1032, 1087 ADDIN BA xc <@cs> xl 58 s
CDQIEO000020 xhfl Rep xpl 1 l "Verdin
v. Superior Court
CDQIEO000021 xhfl Rep xpl 1 l "People
v. San Nicolas
failures to disclose are not accorded the same effect. ‘[T]he proper test to be applied to
unintentional “concealment†is whether the juror is sufficiently biased to
constitute good cause for the court to find under [ ADDIN BA xc <@$osdv> xl 12 s
CDQIEO000029 xpl 1 section 1089] that [the juror] is unable to
perform his [or her] duty.’†( ADDIN BA xc <@$cs> xl 37 s
CDQIEO000019 xhfl Rep xpl 1 McPeters, supra,
2 Cal.4th at p. 1175.) “Whether
a failure to disclose is intentional or unintentional and whether a juror is
biased in this regard are matters within the discretion of the trial
court.†(Ibid.)
In
(Diaz), the Court of Appeal held that
the trial court prejudicially abused its discretion in not discharging a juror
upon learning the juror concealed during voir dire that she had been a victim
of the same crime with which the defendant was charged, i.e., assault with a
deadly weapon. The court explained that
“the juror’s failure to correctly respond to voir dire questions having a
substantial likelihood to disclose facts showing a strong potential for juror
bias prevented [the defendant] from intelligently inquiring into an area of
potential bias upon which to base a challenge for cause or to knowingly
exercise one of his remaining peremptory challenges.†(Id.
at p. 930.) Aside from pointing out that
“[a] juror’s misconduct is good cause which, under the provisions of either
section 1089 or [former section] 1123, may permit the [trial] court to replace
him or her with an alternate†(id. at
p. 934), the court explained that “‘[t]he peremptory challenge is a critical
safeguard of the right to a fair trial before an impartial jury . . . .’ [Citation.]â€
(Id. at p. 932.) “Where a party has examined the jurors
concerning their qualifications during voir dire and any of them have failed to
respond truthfully, ‘ “it is manifest that he [or she has been] deprived
of his [or her] right to challenge for cause, and [has been] deceived into
foregoing his [or her] right of peremptory challenge.â€â€™ [Citation.]
Any particular manner in which a jury is impaneled which
‘ “prevents or embarrasses the full, unrestricted exercise by the accused
of that right, must be condemned.†’
[Citations.]†(
Here, as
was the case in Diaz,
concealment of the fact that he was the victim of an assault with a deadly
weapon constitutes misconduct and good cause for his discharge from the
jury. Juror No. 9 was directly asked on
his juror questionnaire whether “[he], a close friend or relative [had] ever
been a victim of crime.†As in
[the] voir dire examination, unambiguous in character, and pertained to matters
about which [Juror No. 9] had substantial knowledge of the information
sought to be elicited.†(
answered, “No.†He amended his response
during voir dire to reveal his “parents were victims of burglary a long, long
time ago,†and he “was witness to that.â€
However, during deliberations, he revealed to his fellow jurors he was
not simply a witness to his parents having their house burglarized. He was home when the burglary occurred and
was shot in the foot by the perpetrator.
Despite the fact Juror No. 9 was aware he could amend his previous
response to reveal these facts, and despite the fact he witnessed one
prospective juror removed after revealing his mother was attacked during a
burglary and two other prospective jurors removed after recounting shooting
incidents, Juror No. 9 did not amend his previous response to reveal what he
later shared with his fellow jurors, i.e., he
was the victim of an assault with a firearm during the burglary. Moreover, when Juror No. 9 was selected as
one of the jurors, he stated: “I made
it.†From these facts, the trial court
was justified in concluding Juror No. 9’s concealment of the shooting was
intentional. Such intentional concealment
of material information may constitute implied bias justifying removal. ( ADDIN BA xc <@$cs> xl 35 s
CDQIEO000017 xhfl Rep xpl 1 Wilson, supra,
44 Cal.4th at p. 823.) The trial
court’s removal of Juror No. 9 from the jury violated neither section 1089 nor
defendant’s constitutional rights.
name="_ftnref2" title="">[2]
While
court prejudicially abused its discretion by failing to discharge the juror in
question, the People have the same right as a criminal defendant to challenge
jurors for cause and to the use of peremptory challenges to obtain an impartial
jury drawn from a fair cross-section of the community. (Code Civ. Proc., §§ 225, 231; see also
746, fn. 23.) Where, as here, it would
have been an abuse of discretion not to discharge Juror No. 9 had defendant
requested his removal, it would defy logic to hold the removal of the same
juror upon the prosecution’s request amounted to an abuse of discretion.
Defendant’s
reliance on ADDIN BA xc <@cs> xl 34 s
CDQIEO000022 xhfl Rep l "People v.
Dyer
CDQIEO000017 xhfl Rep Wilson, supra,
44 Cal.4th 758 and ADDIN BA xc <@cs> xl 48 s CDQIEO000023
xhfl Rep l "Sanders v.
Lamarque
CDQIEO000023 xpl 1 Sanders)
is misplaced. In ADDIN BA xc <@$cs> xl 29 s
CDQIEO000017 xhfl Rep Wilson, a juror was removed during the penalty phase of a capital
murder trial. He was the sole juror
voting for life imprisonment, and made a number of comments concerning race
during penalty phase deliberations, including:
“ ‘I don’t expect you to understand; you’re not black.’ ‘Black people don’t admit being abused.’ ‘Black kids have a different relationship
with their fathers.’ †( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id. at
p. 818.) The trial court found he
“ ‘concealed his racial biases and fundamental belief in racial
stereotypes on voir dire.’ †( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id. at
p. 819.) Our Supreme Court
disagreed: “The record fails to
demonstrate that [the juror] concealed anything. He was never asked whether he would interpret
evidence of any abuse defendant may have suffered as a child through the prism
of his own experiences; indeed, we expect jurors to use their own life
experiences when evaluating the evidence.
[Citation.]†( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id. at
p. 823.) While the juror affirmed during
voir dire that “he would not consider defendant’s race to benefit or
disadvantage him and that he would treat him like he would anyone else,†he
explained during the penalty phase that “he viewed the mitigating evidence
favorably because defendant came from a broken, disadvantaged family, not
simply because he was African-American.â€
(
ADDIN BA xc <@$id> xl 5 s ID xpl 1 Ibid.) And while the trial
court “apparently concluded that [the juror] had concealed certain race-based
assumptions regarding the nature of family dynamics in African-American
families, especially with regard to young men who grow up without strong
positive male role models,†he was not asked about that subject during voir
dire, and the “failure to express his views about African-American family
dynamics is not the kind of concealment that would justify [his] removal from
the jury under ADDIN BA xc <@$osdv> xl 12 s
CDQIEO000029 section
1089, i.e., something showing ‘good cause’ he was ‘unable to perform his . . . duty [as a juror].’ †( ADDIN BA xc <@$id> xl 18 s ID
xhfl Rep xpl 1 Id. at
pp. 823-824.)
In ADDIN BA xc <@$cs> xl 28 s
CDQIEO000023 xhfl Rep Sanders, supra, 357 F.3d
943, a juror was removed because the trial court erroneously concluded she
failed to disclose that her sons claimed gang affiliation, and she lived in a
neighborhood where there was open gang activity. In reality, the juror “answered questions
about her sons’ activities in detail and did not, in fact, live ‘in a
neighborhood where apparently there was . . . gang activity going
on.’ †( ADDIN BA xc <@$id> xl 18 s ID
xhfl Rep xpl 1 Id. at
pp. 947-949.)
ADDIN BA xc <@$cs> xl 6 s CDQIEO000017
Here,
as mentioned, Juror No. 9 was directly asked whether “[he], a close friend or
relative [had] ever been a victim of crime.â€
While he revealed his parents had their house burglarized, he omitted
that he was the victim of an assault with a firearm during the burglary. Substantial evidence supports the trial
court’s conclusion that his concealment of this fact was intentional.
We conclude
the trial court did not violate section 1089 or violate defendant’s
constitutional rights by removing Juror No. 9 for intentional concealment of
material information during voir dire.
Security Measures
Defendant
also claims the trial court prejudicially abused its discretion by ordering a
sheriff’s deputy to stand near him during his testimony based on a standing
practice in the Sacramento County Superior Court rather than a case-specific
analysis that balanced the need for heightened security against the danger of
prejudice to defendant’s case. This
claim has been forfeited by defendant’s failure to object to the heightened
security measures. (See
406 [failure to object to security measures taken at trial forfeits claim on
appeal]; People v. Tuilaepa (1992) 4
Cal.4th 569, 583 [same].)
In any
event, even if the issue were preserved, we find no prejudice. In People
v. Hernandez (2011) 51 Cal.4th 733 (Hernandez),
our Supreme Court held the trial court erred by stationing a deputy at the
witness stand during the defendant’s testimony based on a general policy rather
than a case-specific determination as to whether such heightened security was
appropriate. The court first explained
that, unlike visible physical restraints, “a security officer’s presence near a
testifying defendant is not
inherently prejudicial. [Citation.] . . .
‘[S]o long as the deputy maintains a respectful distance from the
defendant and does not behave in a manner that distracts from, or appears to
comment on, the defendant’s testimony, a court’s decision to permit a deputy’s
presence near the defendant at the witness stand is consistent with the decorum
of courtroom proceedings.’
[Citation.]†(
exercise its own discretion in ordering such a procedure and may not simply
defer to a generic policy.’
[Citation.]†(
Additionally, the trial court “ ‘should consider, upon request,
giving a cautionary instruction, either at the time of the defendant’s
testimony or with closing instructions, telling the jury to disregard security
measures related to the defendant’s custodial status. [Citations.]’ †(Id.
at p. 743, quoting People v. Stevens
(2009) 47 Cal.4th 625, 642.) Finding the
trial court did not engage in the required “case-specific consideration of the
need for heightened security, or of the potential prejudice that might result,â€
our Supreme Court held the error to have been harmless under the standard of
818. (Hernandez, supra, 51
Cal.4th at pp. 743-747.)
Assuming
the trial court in this case erred under Hernandez,
the error was harmless. As was the case
in Hernandez, “it is not reasonably
probable that defendant would have obtained a more favorable result absent the
[assumed] error. Defendant was monitored
by a single deputy, and, as in [People v.
Stevens, supra, 47 Cal.4th 625],
nothing in the record suggests that this deputy’s demeanor was anything other
than respectful and appropriate.†(
Indeed, when defendant initially took the stand, the trial court was
careful about positioning the deputy outside the direct line of sight of the
jury. As defense counsel described the
deputy’s position, “[s]he’s standing, not sitting, but standing probably five
feet, would be my estimate, [from defendant] -- as I’m looking at [defendant]
on the witness stand [that] would be [defendant’s] left, obviously to his right
as he sits.†The following day, a
different deputy was positioned near defendant as he testified. The trial court stated this deputy “for most
of the day was seated out of sight of the jury while the defendant was
testifying so that there was no -- not only not in the line of sight, but for
most of the time completely out of sight of the jury.†Based on the record in this case, we are
confident the deputies maintained a respectful distance from defendant and did
not behave in a manner that distracted from or appeared to comment on his
testimony.
Also like
defendant was strong. Indeed, he
admitted to each of the shooting incidents.
Nevertheless, defendant argues his “testimony and credibility were
crucial to convincing the jury he did not have the intent to kill for the
attempted murder counts.†However,
which the defendant’s state of mind was at issue, i.e., whether the defendant
reasonably believed in the need to defend himself from imminent harm. The defendant there also claimed that
“ ‘the result necessarily depended on the jury’s evaluation of the
credibility of [the defendant] versus that of [the victim].’ †(Hernandez,
supra, 51 Cal.4th at p. 746.) Similarly, here, the jury had to weigh the
credibility of defendant versus that of the alleged victims. “But this aspect of the case is not unique. ‘In nearly every case when an accused
testifies in his [or her] own defense, the jury will have to weigh the
credibility of the defendant and the alleged victim.’ [Citation.]â€
(Ibid.) We find no reasonable probability that,
without the presence of a deputy near the witness stand, the jury would have
believed defendant’s testimony that he did not intend to kill the victims when
he fired multiple rounds into the sides of their vehicles while driving on the
freeway under the influence of alcohol and cocaine.
Finally, in
Hernandez, our Supreme Court found
the error to be harmless despite the fact that the trial court refused the
defendant’s request that the jury be instructed to disregard his custodial
status. (Hernandez, supra, 51
Cal.4th at p. 740.) Here, such an instruction
was given to the jury. “We presume that
jurors comprehend and accept the court’s directions. [Citation.]
We can, of course, do nothing else.
The crucial assumption underlying our constitutional system of trial by
jury is that jurors generally understand and faithfully follow
instructions.†(People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17;
139.)
In sum,
defendant has forfeited his claim that the trial court erred by stationing a
deputy near the witness stand during his testimony based on a general policy
rather than a case-specific determination as to whether such heightened
security was appropriate. And even if
the issue were preserved, there is no reasonable probability defendant would
have received a more favorable outcome in the absence of such security
measures.
Fee
Finally, by failing to object to the
trial court’s imposition of the booking fee, defendant has forfeited the
ability to challenge the sufficiency of the evidence to support this fee on
appeal. (People v. McCullough (2013) 56 Cal.4th 589, 590 [a defendant who
fails to contest the booking fee when the trial court imposes it forfeits the
right to challenge the sufficiency of the evidence to support the fee],
disapproving of People v. Pacheco
(2010) 187 Cal.App.4th 1392 [holding defendant’s failure to object to
imposition of a booking fee does not forfeit an appellate challenge based on
insufficiency of the evidence].)
DISPOSITION
The
judgment is affirmed.
HOCH , J.
We concur:
BLEASE , Acting P. J.
BUTZ , J.
name="_ftn1" title="">[1] Undesignated statutory references are
to the Penal Code.
name="_ftn2" title="">[2] While we disagree with the Court of
Appeal’s statement in Diaz,
concealment “constitutes juror misconduct giving rise to a presumption of
prejudice regardless whether nondisclosure was unintentional and based upon a
good-faith misunderstanding of the meaning of the question posed†(
where, as here, the question propounded is relevant to the voir dire
examination and is unambiguous, and where the juror has substantial knowledge
of the information sought to be elicited, the trial court may appropriately
conclude the concealment was intentional, giving rise to a rebuttable
presumption of prejudice. (See
CDQIEO000015 xhfl Rep xpl 1 Blackwell (1987) 191 Cal.App.3d 925, ADDIN BA xc <@$cs> xl 42 s
CDQIEO000015 xhfl Rep xpl 1 929-930.)
