P. v. Jones
Filed 9/9/13 P. v. Jones 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
JAY MICHAEL JONES,
Defendant and Appellant.
C071902
(Super. Ct. No. 10F1065)
Jones guilty of six counts of child molestation and sustained five allegations
of substantial
sexual conduct;
it acquitted him of a seventh molestation count. The trial court sustained recidivist
allegations.
The
trial court sentenced defendant to
for 31 years. As is pertinent to this
appeal, it also imposed one fine of $300 under P
fine), among the assessments on which (totaling $840) was a $90 penalty
assessment under Government Code section
76104.7 (the DNA penalty assessment). It
then imposed an administrative fee of 15 percent for the collection of the
restitution it had ordered. This was in
accordance with the recommendations of the probation report.
On
appeal, defendant contends the trial court should have dismissed the entire
jury panel
after five prospective jurors walked out of the courtroom during voir dire when
the prosecutor began describing the nature of the crimes. He also asserts his crimes antedate the 2006
increase in the sex offender fine to $300 and enactment of the D
administrative fee is in excess of that authorized by statute and thus must be
reduced to 10 percent. (P
we do not find the court abused its discretion in failing to dismiss the jury
panel. We shall therefore affirm the
judgment as modified.
The
facts underlying defendant’s convictions are immaterial to this appeal. We therefore omit a summary of them.
DISCUSSION
I.
The Reaction of the Prospective Jurors Did Not Mandate Dismissing the
Panel
A.
The Incident and the Court’s Response
The
parties agreed that before commencing voir dire each would make “mini opening
statements.†Accordingly, the prosecutor
began sketching out her case. “[The
victim] is now a young woman. However,
when she was a young child she was molested by her uncle, the defendant
. . . . [¶] You will hear that the defendant went and
stayed with [the victim’s] mother in Cottonwood
for a period of time. His bedroom was up
in the attic, and one evening he asked [the victim] to take a nap with
him. During the course of that evening,
he kissed her on the mouth using tongue.
He had her masturbate him to the point of ejaculation. He orally copulated her, and he had sexual
intercourse with her. [¶] About a week later, [the victim] was sleeping
in her bedroom. . . .
[D]efendant . . . went into her bedroom, rolled her from her
side to her back . . . , digitally penetrated her vagina and
orally copulated her.â€
The prosecutor began to describe the next incident when
three female prospective jurors announced that they had to leave and started to
walk out of the courtroom. The trial
court directed them to wait in the hallway.
Two more prospective jurors said they wanted to leave as well.
At this point, the trial court stated, “Hang on. Sit down, please. Now, I’m prepared to go through the process,
and if you think you are so emotionally distraught at hearing this
explanation, I’m not going to force you to stay, but remember what I said: [¶]
The fact that [the prosecutor] is telling you what she thinks may be the
evidence in this case does not mean that these things are true. It remains to be seen whether these things
are true. That’s why we’re going to have
a trial. [¶] So, if you think the mere description of
these things is so upsetting to you that you cannot sit by and listen, that
these . . . statements alone are . . . so sensitive to you
that you cannot listen to this explanation and give the defense the benefit of
listening to [its] explanation, then please do step out in the hallway.†The two prospective jurors left the
courtroom. The prosecutor completed her statement,
describing the third incident as involving intercourse when the victim was 11
years old. In response, defense counsel
simply asserted “I want to emphasize it is your duty to listen to all the facts
of this case before you make up your mind.
The evidence will show that none of these acts occurred and the
witnesses will testify to that. Thank
you.†The court then called a
recess. It told counsel it intended to
dismiss the prospective jurors who had left the courtroom. Both counsel agreed this was cause for
dismissal.
Defense counsel expressed “some concern about whether the
rest of the [potential] jurors have been tainted.†The judge responded that if counsel was
“suggesting that I bring up different jurors, I’m not prepared to do that,
although I am certainly mindful of the . . . need we may have to ask
jurors if they were influenced by that.â€
The court dismissed the five jurors.
Defense counsel made a request that he “be allowed to renew the motion
at a later time if it becomes plain that we’re having problems.†The court responded, “We’ll know if it’s
going to be significant based on the voir dire, but I certainly will give you
that opportunity.â€
Before resuming voir dire, the court addressed the
potential jurors at some length:
“[W]e could not let this moment pass without at least
closing up on what we just experienced here as [the prosecutor] was making her
remarks . . . .
“ . . . I’ve been in this a long time. I’ve never had anything like that happen.
. . . I’ve never had people
get up out of the gallery during these brief statements and leave the courtroom
because they were so upset.
“So, I think it does make an important point, that these
charges, as I explained to all of you, are the sorts of things that can
engender a lot of emotion and reaction by jurors. I know that.
“I’ve tried dozens of child molest[ation] cases. I couldn’t count the number that I’ve tried
and I know that people can react that way to the mere mention of these
charges. It’s . . . inconceivable
that we have stuff like this going on and in our minds in the idea that
children can be victims, and, so, hearing charges of this sort and the number
that were read and the allegations that were read, I completely understand, can
create . . . an emotional reaction.
“And what we saw there was apparently a storm of reaction
among at least five members of the jury, and there may be more of you out there
who did not act on an urge or an instinct to get up and leave the courtroom
because of the remarks I made trying to impress on you and remind you all that
we have a presumption of innocence in our country, that we don’t let accusation
alone suffice for proof, that we don’t let charges stand as evidence
. . . . [The prosecutor]
hadn’t even made her complete remarks, and several people were so overcome with
emotion that they could not sit and listen to the rest of her explanation or
give the defense the opportunity to make . . . remarks
. . . .
“So I know there may be some of you out there who are
struggling against that urge . . . , and if you are feeling that
way, I understand and we need to know about that. We certainly don’t want people on this jury
who . . . have so been overcome with emotion that they cannot give a
reasoned, thoughtful, . . . impartial view of the evidence. We . . . just don’t want you on the
jury for our own interests to say nothing of not wanting to put you in that
position.
“But it’s also been my experience over time that people
who come to court and are surprised and shocked at times at the charges that I
read to them, once they kind of regain their equilibrium and they have in mind
the presumption of innocence and they realize that whatever verdict is
appropriate at the end of the case, they’ll be given every opportunity to
enter, they are more able to see the bigger picture and get their feet under
them a little bit and go on with the process, but that’s not true in every case
and I‘m prepared for the fact that it may not be true in your case.
“Ma’am, I’ll get to you in a minute, but I want to make
sure everyone understands that there’s a requirement that if you serve here,
you’ve got to be able to extend the presumption of innocence to [defendant],
and if you can’t do that, I need to know that, because we’ll have to find
others who can.
“Is there anyone on the jury now, who just from what
you’ve seen or heard, feels that you could not extend the presumption of
innocence to [defendant] during this trial?
If not, let me see your hand.â€
One juror indicated a pro-defense bias as the result of
her brother “who was in a similar case as this†in which the witness recanted,
at a cost to the brother of $40,000. On
further voir dire from the court, she agreed that she could decide the present
case on the evidence without a bias for or against either side. The court then asked the panel for a show of
hands if anyone could not be fair and impartial, or could not apply the
presumption of innocence. No one raised
a hand. Defense counsel did not at any
later point renew the issue of dismissing the panel.
B. Analysis
A ruling on a request to dismiss a panel is reviewed for
an abuse of discretion. (
v. Nguyen (1994) 23 Cal.App.4th 32, 41.) “[D]ischarging the entire [panel] is a remedy
that should be reserved for the most serious occasions of demonstrated bias or
prejudice, where interrogation and
removal of the offending [prospective
jurors] would be insufficient
protection for the defendant.†(
v. Medina (1990) 51 Cal.3d 870, 889, italics added [remedy not
warranted merely because "a few†prospective jurors made remarks
indicating belief in defendant’s guilt].)
After relating the above events (with a heavy reliance on
melodramatic adverbs), defendant asserts the walkout of the five prospective
jurors was inherently likely to have influenced the remaining prospective
jurors, including the ones eventually seated on the jury, and therefore his
right to a fair and impartial jury was violated. He analogizes to People v. Nesler (1997)
16 Cal.4th 561, in which seated
jurors learned of prejudicial extrajudicial information about the defendant
(an inapposite context), cites decisions from other jurisdictions finding
irremediable taint from comments during voir dire, and cites other decisions
that disparage the effectiveness of admonitions (including a decision of the
late Justice Jefferson declaring the presumption that jurors heed admonitions
in the context of other crimes evidence is “an exercise in futility and
illusory imagery†(P
119, 130)).
In the first place, we must review the present trial
court’s ruling in light of the specific facts in the record before the court,
and it is generally unproductive to compare different cases on a question of
fact such as this. (Cf.
43 Cal.4th 76, 137-138 [issue of sufficiency of evidence; describing task
of comparing cases as having “little valueâ€]; Robison v. City of Manteca
(2000) 78 Cal.App.4th 452, 458, fn. 5 [issue of undue influence];
of status as independent contractor].)
We thus eschew the task of digesting and distinguishing the results in
other cases assessing taint in the jury selection process.
As for defendant’s suggestion that the trial court’s
efforts were unavailing, the reliance on admonitory remarks generally is a pragmatic presumption essential to the
system of trial by jury, without which we court judicial anarchy because
there would never be any point in instructing a jury (or reversing for improper
instructions). The presumption is
overcome only in extraordinary situations
where it would fly in the face of human nature, such as where an involuntary
confession or the inculpatory extrajudicial statements of a codefendant are
involved. (Richardson v. Marsh (1987)
481 U.S. 200, 211 [95 L.Ed.2d 176, 188]; Francis v. Franklin (1985)
471 U.S. 307, 324, fn. 9 [85 L.Ed.2d 344, 359]; Parker v. Randolph (1979)
442 U.S. 62, 74-75 & fn. 7 [60 L.Ed.2d 713, 724-725] (plur. opn.
of Rehnquist, J.); P
52 Cal.4th 254, 292; P
1104, 1120-1121.) In light of this
uniform body of controlling authority, we reject defendant’s urgings to find
the trial court’s extensive remarks to the panel ineffective.
The conduct at issue here does not involve any suggestion
of defendant’s guilt. Rather, it simply
expressed the heightened sensitivity of the prospective jurors toward the
panel of the obligations to be impartial until deliberations, and to apply the
presumption of innocence, and investigated whether anyone would be unable to
comply with these obligations. The court
and parties thereafter had the opportunity during individual voir dire to
investigate further whether anyone’s ability to remain impartial was impaired,
and defense counsel never indicated any lingering dissatisfaction with the
process. Under these circumstances, the
trial court did not abuse its discretion in declining to dismiss the panel.
II. Financial Issues
In the information included with the jury’s instructions,
six of the offenses were alleged to have occurred between November 2001 and
November 2002, and one between November 2003 and November 2004. At the time of defendant’s offenses, the sex
offender fine was only $200. (Pen. Code,
§ 290.3, as amended by Stats. 1995, ch.
91, § 121, p. 346.) As defendant’s
acts antedate the increase in the fine to $300 in 2006 (Stats. 2006, c
prohibition against applying punitive fines ex post facto precludes applying
the increase to defendant. (
v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248.) We will reduce the fine to $200.
Similarly, the DNA
penalty assessment was also enacted in 2006.
(Gov. Code, § 76104.7, added
by Stats. 2006, ch. 69, § 18, pp.
1251-1252.) We determined this was a
punitive fine that could not be applied ex post facto. (P
159 Cal.App.4th 587, 591.) We must
therefore strike the penalty assessment.
Defendant recalculated the total of the sex offender fine
with its associated assessments as $600 rather than $1,140. The People do not take issue with defendant’s
math, and we modify the judgment accordingly.
An administrative fee of 10 percent applies to the
collection of restitution from prisoners.
(Pen. Code, § 2085.5, subd. (e).) An administrative
fee of 15 percent applies only to the
collection of restitution from probationers. (Pen.
Code, § 1203.1, subd. (l).) We will modify the judgment to apply the
correct percentage.
DISPOSITION
The judgment is modified to reduce the sex offender fine
to $200, strike the DNA penalty
assessment, and reduce the other associated assessments to a total of $400; and
to reduce the administrative fee to 10 percent.
As modified, the judgment is affirmed.
The trial court shall prepare an amended abstract of judgment and
forward a certified copy to the
Rehabilitation.
BUTZ , J.
We concur:
RAYE , P. J.
HOCH , J.
interchangeably, the Supreme Court has designated pool as the master list of potential jurors assembled from source
lists, venire as the subgroup of the
pool assembled at the courthouse, and panel
as the subgroup of the venire assigned to a courtroom for voir dire in a
particular case. (People v. Bell (1989)
49 Cal.3d 502, 520, fn. 3; cf. Code
Civ. Proc., § 194 [defining terms “ ‘[m]aster list,’ â€
“ ‘[j]uror pool,’ †and “ ‘[t]rial jury panel’ â€].)
