P. v. James

Filed 10/16/08 P. v. James CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

I. Introduction

Appellant Tony John James was convicted by a jury of first degree murder (Pen. Code,  187, subd. (a)).[1] The jury also found true allegations that appellant committed the murder for the benefit of a criminal street gang ( 186.22, subd. (b)(1)), and that he personally used a deadly or dangerous weapon ( 12022, subd. (b)(1)). Appellant contends his conviction must be reversed because the trial court abused its discretion in failing to discharge a juror who interviewed for a clerical job with the district attorneys office during jury deliberations. We affirm.

II. Procedural Background

The Sonoma County District Attorneys Office filed an amended indictment, charging appellant with murder. ( 187, subd. (a).) The amended indictment also alleged that appellant committed the murder for the benefit of a criminal street gang ( 186.22, subd. (b)(1)) and that he personally used a deadly or dangerous weapon ( 12022, subd. (b)(1)). Trial commenced on January 25, 2006[2], and on June 13, the jury found appellant guilty of first degree murder, and found true the two enhancement allegations.

On August 23, the trial court sentenced appellant to 25 years to life for first degree murder and imposed a one-year consecutive term for each of the enhancements. This timely appeal followed.

III. Discussion

A. Standard of Review

On appeal, appellant raises a single issue: The denial of defense motions for a mistrial, and alternatively to discharge Juror No. 1203 after it was learned that the juror had interviewed with the Sonoma County District Attorneys Office for a clerical job during deliberations. Section 1089 permits a sitting juror to be dismissed and replaced with an alternate if at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty. ( 1089.)

Good cause exists to discharge a sitting juror when he or she exhibits bias or a fixed prejudgment of the issues; demonstrates an inability or refusal to deliberate; refuses to apply the law as instructed by the trial court; or fails or refuses to perform various other duties. (People v. Cleveland (2001) 25 Cal.4th 466, 485; People v. Ayala (2000) 24 Cal.4th 243, 272 [actual bias is inability to perform jurors duty].)

Both parties agree that we review a decision whether to discharge a juror under the abuse of discretion standard. As our high court noted in Cleveland, the discharge of a deliberating juror by the trial court is reviewed  for abuse of discretion. . . . If there is any substantial evidence supporting the trial courts ruling, we will uphold it. [Citation.] We also have stated, however, that a jurors inability to perform as a juror  must appear in the record as a demonstrable reality.  [Citation.] [Citation.] (People v.Cleveland, supra, 25 Cal.4th at p. 474.)

B. Factual Background[3]

The case was submitted to the jury, and it began deliberations on May 30. On the morning of June 13, while the trial judge was in chambers on a break, the prosecutor and appellants attorney, Mark Retana,[4] advised the judge that the jury foreperson, Juror No. 1203, had applied for a job with the district attorneys office and had come into that office that morning for an interview. Counsel for codefendant Alvarez, Mr. Scott, was not available until later that day, and another attorney agreed, with Alvarezs consent, to stand in for Mr. Scott so the matter could be discussed without delay. In the meantime, the jury, which was still deliberating, was given a recess. After consulting with counsel, the court ordered the jury to return at 2:30 p.m., and separately outside the hearing of the other jurors, ordered Juror No. 1203 to return at 1:30 p.m.

After speaking to the clerical staff further, the prosecutor learned that Juror No. 1203 had submitted a county-wide application on April 27 for a legal processor position. As a result, Juror No. 1203 could have been interviewed by any county department. The previous day, Juror No. 1203 informed the interviewer that she was on a jury, so arrangements were made for her interview to begin at 8:15 a.m. Although Juror No. 1203 mentioned that she was the foreperson of her jury, nothing more was said about the case.

Appellants counsel argued that Juror No. 1203 engaged in deliberate concealment of the fact that she had interviewed with the district attorneys office, and that the juror had an absolute duty to advise the court and counsel of her planned interview. The failure to do so was misconduct, and was prejudicial per se. Counsel also noted that, based on prior communications with the jury, they were deadlocked as to one defendant, and a half an hour away from a verdict on another. Because Juror No. 1203 was the foreperson, it would be impossible to gauge the prejudice this misconduct had on the other jurors, and therefore a mistrial was required. The juror did not know why she was being interviewed in court, and she had a scared feeling. Juror No. 1203 explained that her company closed at the end of January, at about the same time she was selected to be on the jury, and she had been looking for a job since then.[5] She was interested in a job with the County of Sonoma.

In February, she applied for a job as a legal processor with Sonoma County. A legal processor is someone who handles court documents, and organizes them for the employer. It is an entry-level position with the county. Her only previous contact with the law and lawyers was during her prior divorce proceedings. Her first application was to the superior court made in February. She passed the preliminary examinations and had an interview scheduled with the human resources department of the superior court for the following Thursday.

As a result of these applications, she also interviewed that morning with the district attorneys office. She had another interview scheduled for the following Thursday with the adult probation department.

Juror No. 1203 understood that the prosecutor in this case was employed by the same district attorneys office where she was interviewed that morning. In setting up the interview, Juror No. 1203 told the staffer that she was then serving as a juror in a long case in Judge Antolinis courtroom. She did not say what kind of case it was or anything about it.

When the court asked if the fact that she was applying for a job in the prosecutors office who was involved in the case on which she was a juror had crossed her mind, Juror No. 1203 replied as follows:

Juror No. 1203: No, it didnt. Not from what I think youre thinking about this. I have honestly applied. I had lost my job. I need a job. I have been applying to every single county job that came up, that was available that I felt I would be qualified to do and had sort of decided that getting a job with the county would be verysomething I would really like to do at this point in my life. I neverI never thought aboutif this is what youre sayingyou know, the fact that I would apply for the job might be a problem because of [the prosecutor]. It didnt either for her or for me or for the defense or anybody. I applied for everything across the board.

Juror No. 1203 said she had not informed the court about her interview with the district attorneys office because [i]t never even occurred to me that it could or would be a problem. I didnt separatein my mind I didnt separate it out at all from all the other jobs I had applied for. However, now that the court had brought up the issue, Juror No. 1203 could see what you might think and she completely understood the concern. Juror No. 1203 assured the court that she still felt she could be fair and impartial. She explained:

Juror No. 1203: I understand. I completely understand. Im sort of justyou know, sort of shocked. But now that Im here and talking about it, I certainly understand. I think I am a very honest person. I think I tried to do my very best with being a juror and a jury foreperson as well. If the question is does it present any kind of issue that I think would influence me or should the attorneys and the district attorney feel that it would influence my position on the jury? My answer would be no. [] . . .[] . . . And maybe I should say that although I recognize Ms. Cook is in the district attorneys office, I never thought of her as beingI see her in this trial as her role here and youI see the district attorney and her role over there justthere is a whole bunch of people in the district attorneys office and theyre allin me applying for a job theyre all the same including Ms. Cook. I just neverit is not that I didnt know that they were the same department, obviously, but it just had nothing to do withits all coincidental, the timing and the way that job became available. And I applied for many, many jobs here in the county.

She added that perhaps two of her fellow jurors saw her after the interview, and may have noticed that inadvertently she was still wearing her district attorney visitors pass given to her at the time of her interview. No one said anything to her about it, nor did they ask her about the interview. Most of the jurors knew that Juror No. 1203 was looking for a job generally while juggling her jury duty. She may have been asked how did it go, but any comments were no more specific then with regard to any other job application she had made during the trial. There was no specific mention of the district attorneys office.

After Juror No. 1203 left the courtroom, Attorney Scott, counsel for codefendant Alvarez, said that to the extent he had any discomfort, it was certainly ameliorated by her demeanor, description of the facts. While he felt there was an appearance of impropriety, he recognized that this was not the legal standard and commented, I dont know that I see in her response that she has a demonstrable inability to deliberate. She appears to be very fair minded. The court replied, I agree. Mr. Scott said he did not object to Juror No. 1203 continuing as a juror and as the foreperson.

Appellants trial counsel, however, disagreed and argued:

Mr. Retana: . . . I think she is a bright, articulate woman. I think that the fact that she failed to put any of us on notice for the last week to two weeks during deliberations that shes been contacting the district attorneys office and she had an interview with them brings me great concern, brings my client great concern. I cant imagine somebodys mind set if there was an acquittal in this case how she would feel as far as walking into the district attorneys office and having to face them.

Counsel observed further that there may not be anything demonstrable on the record to show absolute bias but in the abundance of caution [because] this is a first degree case, counsel was moving for a mistrial and, in the alternative, for dismissal of Juror No. 1203. Counsel asked for an opportunity to file points and authorities in the event the court was not inclined to dismiss the juror. The court made the following findings:

THE COURT: The court will state at this time even prior to the recess that every one of the jurors [sic] answers as far as demeanor appears to this court to be one hundred percent genuine. The court did not see any deception. I did not hear any deception in her voice. I heard genuineness. I did not see any deception in her body language or attitude. I saw genuineness including two times when she almost cried from what appeared to be emotionalism, one over her prior dissolution and the results therefrom and the same kind of result from the inquiry of her as far as ability to be fair and impartial and so forth as far as being honest. She seemed to be just totally taken by any kind of a thought that she wouldnt be fair and honest and that she hadnt done everything that she had done something wrong. When it dawned on her, that seemed definitely to affect her. I believe her answers when she says she can go on the jury.

After a recess, the court made the following rulings:

THE COURT: So the motions in front of the court are three by [defense counsel]. [] And motion No. 1 for mistrial is denied. [] Motion No. 2 for the removal of the foreperson for bias is denied. The court finds there is no bias thats been shown. I do agree that certainly at first glimpse and my initial reaction was it had the look of impropriety. True. That is it. That is as far as it had gotten. That is the look of impropriety. Truthfully when you look into it, there is no bias. If the cases, as they seem, such as Barber and such there needs to be bias of some sort and its not there. I believe every word she said to reiterate what I said earlier on the record.

The court agreed to accept any points and authorities defense counsel wanted to file, indicating that it would reconsider its ruling if Im wrong on the law, but declined to delay deliberations for that purpose. The jury resumed deliberating.

Later that same afternoon, the jury found appellant guilty of first degree murder and found true the enhancement allegations that he committed the crime for the benefit of a criminal street gang and personally used a deadly or dangerous weapon. As to the murder charge against codefendant Alvarez, the jury could not reach a verdict and was deadlocked 10 to 2.

In his appellate briefs,appellant concedes that the test for juror dismissal under these facts is upon a finding of actual bias, not implied bias. (People v. Ledesma (2006) 39 Cal.4th 641, 670.)[6] He also concedes that the courts factual findings are binding if supported by substantial evidence. Nevertheless, he argues that Juror No. 1203, despite her protestations that [a]bsolutely she could be fair and impartial continuing as a juror, was biased because any reasonable, fairly intelligent person serving as a foreperson of a jury would be likely to think that her pursuit of a job at the District Attorneys office could be adversely affected by the jurys inability or unwillingness to return a guilty verdict.

There was no equivocation in the judges conclusion that Juror No. 1203 was honest in her own assessment of her ability to be fair, and that indeed, there was no bias in favor of the prosecution or against appellant appearing as a demonstrable reality. We note, too, that this assessment was shared by counsel for codefendant Alvarez, who had no objection to Juror No. 1203 staying on the jury. We emphasize that it is not for this court to second guess the trial courts assessment of the credibility of Juror No. 1203s explanation that it never dawned on her that she should disclose her impending job interview. Moreover, it is not our function as a reviewing court to question the determination that the juror was sincere in stating that she had no bias.

In his reply brief, appellant argues extensively that his position is supported by the decision in People v. Terry (1994) 30 Cal.App.4th 97. It does not. In Terry, the trial judge was found to have erred in refusing a defense challenge for cause to a prospective juror who was employed as a deputy district attorney. The appellate court found that the deputy district attorney was subject to a challenge cause based on Code of Civil Procedure section 229, which states: A challenge for implied bias may be taken for one or more of the following causes, and for no other: [] . . . (b) . . . or having stood within one year previous to the filing of the complaint in the action in the relation of attorney and client with either party or with the attorney for either party. (Italics added; Terry, supra, 30 Cal.App.4th at p. 100.)

There was no similar basis for challenging Juror No. 1203 for implied bias, since we have already observed that actual bias had to be shown in her case. (People v. Ledesma, supra, 39 Cal.4th at p. 670.) We conclude that the trial judges findings of fact are supported by substantial evidence, and that the proper legal standard was applied in concluding that Juror No. 1203 could continue to perform her duties as a juror, and that no mistrial or dismissal of the juror was appropriate.

IV. Disposition

The judgment is affirmed.

_________________________

Ruvolo, P. J.

We concur:

_________________________

Sepulveda, J.

_________________________

Rivera, J.

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[1] All subsequent undesignated statutory references are to the Penal Code.

[2] All further date references are in the calendar year 2006, unless otherwise indicated.

[3] Because a single issue relating to juror disqualification has been raised on appeal, we will limit our review of the factual record to that relating to this issue only.

[4] Appellant was tried together with codefendant, Carlos Alvarez, who was represented at trial by attorney Scott.

[5] All members of the jury venire completed juror questionnaires prior to jury selection. The questionnaire completed by Juror No. 1203 indicated that she was 57 years old and unemployed due to her company closing as of 1/1/06. The questionnaire was signed on January 25.

[6] At oral argument, appellants counsel argued that Code of Civil Procedure section 229, which allows for disqualification upon a showing of implied bias, be applied to this case. However, appellants brief correctly concedes that a finding of actual bias is required under the circumstances of the challenge to Juror No. 1203.