P. v. Pineda
Filed 1/31/14 P. v. Pineda CA4/3
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
LUIS ALBERTO PINEDA,
Defendant and Appellant.
G047983
(Super. Ct. No. 10NF2388)
O P I N I O N
Appeal
from a judgment of the Superior Court of
Orange County, Richard M. King, Judge.
Affirmed.
Catherine
White, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys
General, for Plaintiff and Respondent.
* * *
A jury convicted Luis
Alberto Pineda of 17 counts of committing a lewd act on a child under 14 years
old (Pen. Code, § 288, subd. (a); all statutory references are to the
Penal Code unless otherwise stated), two counts of forced sodomy (§ 286,
subd. (c)(2)), two counts of sodomy of a child under 16 years old (§ 286,
subd. (b)(2)), two counts of oral copulation of a child under 16 years old
(§ 288a, subd. (b)(2)), two counts of committing a lewd act on a child at
least 10 years younger (§ 288, subd. (c)(1)), one count of oral copulation
or sexual penetration of a child
under 10 years old (§ 288.7, subd. (b)), one count of attempted lewd act
on a child (§ 288, subd. (a), § 664, subd. (a)), and three counts of
misdemeanor assault (§ 240). As to
counts 1-2, 5-11, 14-18 and 26-30, the jury found that appellant committed
crimes against multiple victims (§ 667.61, subds. (b), (e)). As to counts 2, 6-7 and 14-15, the jury found
that substantial sexual contact occurred with the victims (§ 1203.66,
subd. (a)(8)).
Pineda
contends the trial court abused its discretion by excusing an ill juror during
trial and replacing her with an alternate. The parties agree the court’s sentencing
minutes should be amended to reflect that Pineda was found guilty by the jury
of counts 27 through 29. For the reasons
expressed below, we affirm the judgment and direct the trial court to correct
its minutes.
I
Factual and Procedural Background
In
2010, 11 children on Pineda’s youth soccer teams and in his
sexual abuse spanning a time period from 2005 through 2010. The boys testified Pineda touched their
penises, buttocks, anuses, and scrotums, kissed them, placed their hands on his
penis, instructed them to touch his penis, attempted to force their hands onto
his penis, sodomized them, attempted to digitally penetrate their anuses, and
orally copulated them. A lone female child
testified Pineda touched her vagina and breasts. In 2010, Anthony G. disclosed abuse to his
mother, and Anaheim investigators collected rosters of Pineda’s teams and classes that led to
the other victims. The children had not
disclosed the abuse to each other.
The
defense theorized the children made up the sexual abuse so their parents could
obtain U Visas, which grant victims of certain qualifying crimes, such as
sexual molestation, and their families nonimmigrant status in the United States.
Following
trial in November 2012, a jury convicted Pineda as noted above. In December 2012, the
years to life in state prison, plus 13 years and six months.
II
Discussion
A. The Trial Court Did
Not Err in Discharging Juror No. 9
Pineda contends the
trial court abused its discretion by discharging an ill juror rather than grant
a continuance. We disagree.
On October 15, 2012, the trial court seated 12 jurors
and three alternate jurors. On the
fourth day of trial, the court informed the parties outside the presence of the
jury the clerk had received a telephone call and voicemail message at 4:30
a.m. from
Juror No. 9 stating she was ill. The
juror, who took an early bus to court, appeared outside of the courtroom at 8:00 a.m. The court advised the parties that if Juror
No. 9 was not well enough to proceed, “I’m going to send her home and then we’ll
discuss how we proceed from there.†The
parties agreed to that procedure.
The
court asked the juror how she felt. She
explained she was “[j]ust extremely tired†and was “sick all night†with “[d]iarrhea,
upset stomach.†The court asked if she
needed to go home, and she replied, “I’d like to but I’m willing to stay if I
can handle it.†The court stated, “Obviously,
we need you to pay attention, and if you’re sick, I don’t want you to be here
if you’re in discomfort.†She stated she
“would prefer to go home, if it’s all right.†The court consulted with the parties and allowed
her to go home for the day.
The
prosecutor advised the court five children
were scheduled to testify that day. The
court stated it was inclined to excuse the juror based on her condition and because
the testifying children were missing school. Defense counsel objected stating, Juror No. 9 “sat
through this trial for two weeks,†and “it seems . . . that the condition is
not a long condition.†Counsel suggested
“taking a half-day break or a day break.â€
After consideration, the court excused the juror, explaining that based
on “the totality of the circumstances, the court does feel that there is good
cause, based on the condition of the juror and the status of minor children are
willing in the courthouse, . . . who have been taken out of school and having
to come to court in somewhat of an embarrassing, awkward environment.†The court sat an alternate juror.
Section
1089 provides: “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, or if a juror requests a
discharge and good cause appears therefor, the court may order the juror to be
discharged and draw the name of an alternate, who shall then take a place in
the jury box, and be subject to the same rules and regulations as though the
alternate juror had been selected as one of the original jurors.†(§ 1089.)
A
trial court has discretion to discharge a juror who has fallen ill during
trial. (People
v. Bell (1998) 61 Cal.App.4th 282, 286-287 (Bell).) The decision under
section 1089 to discharge a juror and seat an alternate is reviewed for abuse
of discretion. (People v. Smith
(2005) 35 Cal.4th 334, 348-349 (Smith).)
In exercising discretion, “[t]he court
must make a reasonable inquiry to determine whether the person in question is
able to perform the duties of a juror. [Citation.] If the answer is in the negative,
the inability to perform those duties must be shown on the record to be a ‘demonstrable
reality.’ [Citation.]†(Bell, supra, at p. 287.) A “reviewing court must be confident that the
trial court’s conclusion is manifestly supported by evidence on which the court
actually relied. [¶] In reaching that conclusion, the reviewing
panel will consider not just the evidence itself, but also the record of
reasons the court provides.†(
41 Cal.4th 1038, 1053.).)
In Smith, the Court of Appeal
upheld the trial court’s action in discharging a juror who had to deal with a
family emergency, even though the juror stated “he was willing to come back and
serve on the jury if the trial could be delayed to accommodate him.†(Smith,
supra, 35 Cal.4th at p. 348.) The
court in Smith concluded, “[W]hen,
as here, a juror has good cause to be absent from trial for an indefinite
period, the trial court does not abuse its discretion in replacing that juror
with an alternate juror.†(Id.
at p. 349; see People v. Hall (1979) 95 Cal.App.3d 299, 307 [excusal of juror
needing to take wife to doctor’s appointment was not abuse of discretion].)
In Bell, the trial court discharged a juror on the second day of trial after
the juror called in to inform the court he had to take his son to the doctor
due to a medical emergency. (Bell,
supra, 61 Cal.App.4th at p. 287.) The
juror indicated he anticipated being able to return to court that afternoon at
the earliest. (Ibid.) The defendant
recommended continuing the trial to the afternoon, particularly since the juror
was one of two African-Americans on the panel and the only African-American
male. (Id. at p. 287-288.) The
trial court excused the juror after considering the juror’s inability to make a
firm commitment as to when he would return, and in light of the number of
witnesses scheduled to testify that day. (Id. at p. 288.) The reviewing court concluded “given the
uncertain timing of his return and the fact so many jurors, alternates, and
witnesses were waiting, the court was well within its discretion to discharge [the
juror] and replace him with an alternate juror.†(Id. at p. 289.)
Here, the trial court
reasonably inquired of Juror No. 9 and determined she was too ill to perform
her duties, and there was no indication when she would be well enough to
return. As in
second-guess the trial court’s discretionary decisions.†(Bell, supra, 61 Cal.App.4th at p. 288;
Smith,
supra, 35 Cal.4th at p. 348
[no abuse of discretion in discharging juror who was willing to continue
if the court would delay trial so he could care for a sick family member.]) We discern no abuse of discretion.
B. The Court Minutes Should Be Amended to Accurately Reflect Proceedings
Below
The
parties agree the sentencing minute order must be modified to reflect the jury
convicted Pineda of counts 27 through 29. The court’s December 6, 2012 minute order erroneously provides Pineda pleaded guilty to these
charges. We will direct the court to
correct its minutes. (
181, 185 [court has authority to correct clerical error to make the records
reflect the true facts].)
III
Disposition
The
judgment is affirmed. The trial court is
directed to correct its December 6, 2012, sentencing
minute order to reflect the jury convicted Pineda of counts 27 through 29.
ARONSON,
J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
THOMPSON, J.
