P. v. Mansfield

Filed 6/10/08 P. v. Mansfield CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Howard H. Shore, Judge. Affirmed.

A jury convicted Gerry L. Mansfield of sale and possession for sale of methamphetamine. (Health & Saf. Code,  11379, subd. (a) & 11378.) Mansfield was sentenced to the lower term of two years for the sale of methamphetamine.

Mansfield appeals contending the court erred in excusing a juror during deliberations and in denying his motion to disclose personal identifying information regarding the members of the jury. We will reject both contentions and affirm the judgment.

STATEMENT OF FACTS

Since Mansfield does not challenge either the sufficiency or the admissibility of the evidence to support his convictions, we will only set forth a brief statement of the facts in order to provide context for the discussions that follow.

In October 2005, Mansfield met Marcello McKoy and developed a social relationship with him. Mansfield was not aware that McKoy was a confidential informant for various federal agencies, which paid McKoy for his work. On several occasions during their relationship, Mansfield offered methamphetamine to McKoy.

In November 2005, Mansfield agreed to sell McKoy an "eight-ball" and eventually sold McKoy 2.8 grams of methamphetamine for $100. The transaction was observed and audiotaped by law enforcement agents.

Defense

Mansfield defended on the basis he was entrapped and that he did not actually sell drugs to McKoy since the $100 he received was merely reimbursement for the money Mansfield borrowed in order to obtain the drugs.

DISCUSSION

A. Removal of Juror Number 7

Mansfield contends the trial court erred in dismissing Juror No. 7 during deliberations. Mansfield submits there is no evidence of misconduct by the juror and that the trial court abused its discretion in replacing the juror with an alternate juror. We are satisfied there is substantial evidence to support the trial court's finding of misconduct.

Penal Code section 1089 permits a trial judge to excuse a juror whenever the court finds the juror is unable to perform his or her duties. Appellate courts review the trial court's decision to determine if there has been an abuse of discretion. Analysis of that decision necessarily requires a determination of whether there is substantial evidence to support any factual finding upon which the decision was based. (People v. Marshall (1966) 13 Cal.4th 799, 843; People v. Williams (2001) 25 Cal.4th 441, 447-448 (Williams); People v.Cleveland (2001) 25 Cal.4th 466, 474 (Cleveland).) "If there is any substantial evidence supporting the trial court's ruling, [an appellate court] will uphold it. [Citation.] [A] juror's inability to perform as a juror 'must appear in the record as a demonstrable reality.' " (Marshall, supra. 13 Cal.4th 799, 843.)

The trial court first became aware of a potential problem with Juror No. 7 when the court received a note from another juror. In essence, the juror's note indicated a juror believed possession of drugs was okay and that the use of a confidential informant was unethical and unjust.

With the concurrence of counsel, the trial court conducted interviews with various jurors. In the process the parties determined the juror who was alleged to hold these views was Juror No. 7. The court also learned that the juror had made a number of statements about the potential punishment for the offense. Those statements included the observation that it would be a waste of taxpayer money to put the defendant in jail for this minor offense. The juror was also alleged to have speculated that this case might be a three strikes case.

Eventually, the trial court talked to all of the jurors individually, in the presence of counsel. There were a number of views expressed ranging from the view that Juror No. 7's comments were benign and not inappropriate to those which attributed to her statements about punishment and use of informants. Ultimately the trial judge concluded, in part:

"In any event, there were certain common themes. One of the jurors said that as recently as this morning [Juror No. 7] made the statement that she didn't want to see the defendant go to jail for such a small amount, and she doesn't want to waste taxpayer money by putting him in jail. [] That is clearly a violation of the instruction of the court that goes beyond just having an opinion. The jury is told in the instruction that the subject of penalty or punishment is not to affect their deliberations in any way. And I'm not exactly quoting the instruction, but that's the essence of it. They're not even supposed to discuss it. She apparently has mentioned it more than once, and a number of the jurors said that. And if after a full day of deliberations on Friday, she's still talking about that and in such strong terms; that she doesn't want to waste taxpayer money by putting the defendant in jail, it clearly indicates to me that that is on her mind. [] And regardless of what she thinks about the facts in the case, regardless of whether she thinks the defendant was entrapped or not, she is considering a factor that she is not supposed to be considering. And the fact that she thinks enough about that factor to express it to other jurors, indicates to me that it is a considerable factor in her mind. [] Also, one of the jurors said that she made the comment that it is probably a three-strikes case. That is clearly wild speculation. The jury was never told anything about this being a strikes case, and it's not. And the fact that she's speculating about what kind of case it is, means that she once again is concerned about the consequences of her vote, which she is not supposed to be. [] And so I am satisfied from all of the jurors -- and I'm not even focusing on her views about undercover law enforcement because I can understand there might be some ambiguity about whether or not she means in general or whether she's just offended about how it was done in this case. So I'm not even considering the comments that one juror reported that she said, 'If people were prosecuted for small amounts, then all my neighbors would be in jail.' I don't know what that meant, but she was given the opportunity to disclose whether any friends or family members or relatives had been arrested for a crime or charged with a crime. I guess she could truthfully answer 'no' and yet know that neighbors are using drugs, but I did ask separate questions with regard to the use of controlled substances, and she did not provide any information on that, but again, I'm not considering that as a major factor at this point. I am much more concerned about her dwelling, apparently, repeatedly on the consequences of her decision resulting in, number one, a waste of taxpayer money; number 2, the defendant going to jail, and most outrageously, in my opinion, her speculation that this might be a three-strikes case, so I believe that she is not capable of following the law that I have instructed her on. [] I believe also that she was to some extent untruthful during voir dire. And I think it is appropriate for me to discharge her and substitute an alternate. So I am going to ask -- well, before you go in the hallway -- I'm speaking with the bailiff now -- I'm going to have the clerk write the names of the two alternates on a piece of paper and draw one name at random."

We are satisfied first that there is substantial evidence to support the trial court's factual findings. The judge interviewed each juror and was able to assess their credibility and ability to recall. At the end of the process the court accepted as true the statements which indicated the juror was focused on punishment and was in violation of the instructions. Having found those facts the court could reasonably believe the juror was not "capable of performing her duties."

Mansfield relies heavily on Cleveland, supra, 25 Cal.4th 466, to support his argument that the trial court abused its discretion. We believe that case provides no support for challenging the trial court's discretionary decision. Cleveland dealt with removal of a juror for "failure to deliberate." The factual circumstances of Clevelandindicated some considerable doubt as to whether the juror in that case was refusing to deliberate, as opposed to holding a different view from the fellow jurors. The court in Clevelandcautioned against trial courts intruding into the deliberation process, particularly where the problem is more likely reaction by the other jurors to the hold-out juror's disagreement with the majority.

The present case presents juror behavior issues more akin to the problem raised in Williams, supra, 25 Cal.4th at pages 448 through 449, where the question of juror "nullification" was presented. The court in Williams recognized jurors do not have the right to refuse to apply the law, which is the potential of a juror who repeatedly discusses the possible punishment for the offense in this case. Although the trial court discussed other issues raised by the juror's behavior, including that she was likely untruthful in voir dire answers, the reason for dismissal was established misconduct. Accordingly the trial court acted well within its discretion in replacing Juror No. 7 with an alternate juror.

B. Disclosure of Juror Identification Material

In a related argument, Mansfield contends the trial court erred in denying his motion under Code of Civil Procedure section 237 to disclose personal identifying information regarding the jurors. In his declaration in support of the motion, counsel stated he had spoken to jurors after the verdict. Some of them said the jurors had shared information they had learned from the trial court's instructions with the alternate and thus they had not started over with deliberations when the alternate juror arrived.

By way of background, prior to the dismissal of Juror No. 7, the trial court had given the jury supplemental instructions about the defense of entrapment. Once the alternate replaced Juror No. 7, the court instructed the jury to begin its deliberations again. It said in part: "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." !RT 383-384)! In addition the court instructed the jury to disregard any of the discussions that had taken place with the court and also instructed the jury not to discuss any possible punishment for the charged offenses.

In his declaration and on appeal defense counsel takes the position the court had instructed the jury not to consider the court's instruction on the law of entrapment given in response to the jury's question. From that false premise, counsel then argues since some jurors informed the alternate juror of what the court had told the previous jury about entrapment, such jurors committed misconduct. From the further flawed premise, counsel then argues the trial court should have released personal identifying material for the jury. We reject appellant's factual premise and therefore find no error in the trial court's refusal to release the requested material.

In a criminal case personal identifying information about jurors must remain sealed. It may be disclosed where the moving party makes a prima facie showing of good cause to release the data. (Code Civ. Proc.,  237, subd. (a)(2) & (b).) The defense did not make a prima facie showing of good cause in the trial court and nothing in our review of the record changes that assessment. First, the trial court did not tell the jury to disregard any prior instructions given on the law. Second, the alternate juror was apparently not present when the added instructions on entrapment were given. Thus it is unreasonable to believe the jurors, resuming their deliberations would do so in disregard of the law as given to them by the court. While we agree the better practice would have been for the trial court to advise the alternate juror of the additional instructions on the law, which were given after the jury's general instructions, it is manifestly unreasonable to argue that jurors committed misconduct by sharing the additional instructions with the alternate juror.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.

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