P. v. Watson





Filed 9/26/11 P. v. Watson CA1/5





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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




THE PEOPLE,

Plaintiff and Respondent, A128628

v. (Alameda County
Super. Ct. No. H46696)
WILLIAM OBANA WATSON,

Defendant and Appellant.
_________________________________________/

A jury convicted appellant William Obana Watson of multiple felonies, including spousal rape (Pen. Code, § 262, subd. (a)(1)),[1] criminal threats (§ 422), and assault with a firearm (§ 245, subd. (a)(2)). The trial court sentenced him to state prison. On appeal, appellant contends he was denied his due process right to a fair and impartial jury “by a combination of prosecutorial and juror misconduct.” We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize only the facts relating to appellant’s claims of prosecutorial and juror misconduct.

Jury Selection and Juror No. 6
During voir dire by the court, Juror No. 6 stated he is a juvenile correctional officer and that he did not know the parties, attorneys, or witnesses. During defense voir dire, he stated he had been a juvenile correctional officer for nine or ten months; before that, he was “a high school teacher and a high school football coach for many years” and was “hoping to get back into coaching.” When questioned by the prosecutor, Juror No. 6 explained that he “resigned from coaching” because he disagreed with the parents of some of the children on his football team. The prosecutor mentioned her husband is a football coach at Serra High School; in response, Juror No. 6 stated, “I’ve lost many athletes to Serra High School.” The prosecutor then said, “I probably shouldn’t have told you that.”
Attorneys for both parties indicated they were satisfied with the composition of the jury and Juror No. 6 was seated as a juror. As he left the jury box, Juror No. 6 asked the prosecutor whether her “husband was Patrick, and [she] said yes, and [Juror No. 6] smiled and made no response after that.” Despite characterizing the conversation as “kind of innocent,” defense counsel informed the court he had a “concern” about it. The prosecutor described the interaction with Juror No. 6 and said, “So apparently, yes, [Juror No. 6] does know my husband.”
At the prosecutor’s suggestion, the court allowed defense counsel to voir dire Juror No. 6. Defense counsel began, “I knew that you were involved in football. The district attorney mentioned that. But we have these admonitions: Don’t talk to us. It’s just very important that you’re going to be able to separate as a member of the jury any relationship you may have with another football coach. Do you know Mr. Walsh‌” In response, Juror No. 6 answered, “We’ve rubbed elbows, I guess you can say. We’ve been to the same conference or clinics. He’s a well-respected coach as well. . . . [H]e coaches at a private school; I coach at a public school. . . .” Juror No. 6 explained that when the prosecutor “brought up that her husband coached [football] and said the name of the school,” he “put one and one together.” Juror No. 6 said he asked the prosecutor whether her husband’s name was Patrick Walsh and “[s]he said yes.” Juror No. 6 assured defense counsel and the court he could be fair and impartial. The court then advised Juror No. 6 he needed to take the admonition not to speak to the attorneys “seriously” and that the admonition must be “really strictly followed.”
Opening Statements
The parties gave their opening statements and the prosecution examined its first witness. Defense counsel cross-examined the witness. During a break in the proceedings, defense counsel asked the court to dismiss Juror No. 6. Counsel explained, “during the voir dire, Juror [No.] 6 mentioned that he was formerly . . . [a] football coach at which time the District Attorney brought in personal information that she was married to a football coach. Subsequent to that, there was a conversation, albeit brief, related to the District Attorney’s husband as a head coach of a very well respected, one of the top programs, private programs in the entire state. We had a chance to voir dire the juror and the defense felt that the juror still was able to be fair and impartial.”
Counsel continued, “on the first day of opening the football coach [the prosecutor’s husband] actually showed up and prior to the opening, the football coach was sitting . . . [on] the far right-hand side of the courtroom . . . but not in view of Juror [No.] 6. Juror [No.] 6 would not have been able to see the football coach. The football coach who could potentially hire him at one of the top [C]atholic programs in the state. As soon as that presentation began, the football coach walked . . . over to the far corner on the left, . . . in clear view . . . of Juror Number 6.” Defense counsel argued Juror No. 6’s receipt of “unnecessary private information during voir dire,” along with the presence of the prosecutor’s husband during opening statements, violated appellant’s “constitutional rights for a fair trial[.]” Counsel asked the court to excuse Juror No. 6.
In response, the prosecutor explained that defense counsel knew her husband was in the courtroom before she began her opening statement but did nothing until after she completed her statement. She also noted that her husband had attended opening statements and closing arguments in three to five of her cases and that her husband moved to another location in the courtroom after she began her opening statement to see her better.
The court declined to excuse Juror No. 6. It described the prosecutor’s decision to have her husband attend opening statements as “somewhat questionable” given the circumstances, but noted that “these are open courtrooms; people can come if they wish to.” The court concluded, “[t]o excuse a juror, a sworn juror, I need something real. We talk about juror misconduct all the time. It gets raised on a regular basis and it requires a lot more than speculation. . . . I think that our juror is well aware of his obligation, so nothing to indicate that he in any way was making contact or anything.”[2]
Verdict
The jury convicted appellant of spousal rape (§ 262, subd. (a)(1)), three counts of criminal threats (§ 422), forcible oral copulation (§ 288a, subd. (a)(1)), forcible oral copulation by threat of future retaliation (§ 288a, subd. (c)(3)), stalking (§ 646.9, subd. (a)), assault with a firearm (§ 245, subd. (a)(2)), and possession of a deadly weapon (§ 12020, subd. (a)(1)). The jury also convicted appellant of misdemeanor battery (§ 243, subd. (e)(1)) and two counts of misdemeanor child abuse (§ 273a, subd. (b)). The court sentenced appellant to state prison.
DISCUSSION
I.
There Was No Prosecutorial Misconduct
“The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] (People v. Navarette (2003) 30 Cal.4th 458, 506, internal quotation marks omitted; People v. Monterroso (2004) 34 Cal.4th 743, 785.)
Appellant contends the prosecutor committed misconduct on two occasions: first when she “responded to Juror No. 6’s question about her husband’s identity;” and second when she “fail[ed] to control her husband’s conduct during her opening statement[.]” As an initial matter, we conclude appellant has forfeited his claim of prosecutorial misconduct by failing to timely object and request an admonition. “‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]’” (People v. Hill (1998) 17 Cal.4th 800, 820-821, quoting People v. Samayoa (1997) 15 Cal.4th 795, 841.) Defense counsel did not raise a prosecutorial misconduct objection after the prosecutor’s exchange with Juror No. 6, nor did counsel request an admonition. Similarly, defense counsel knew the prosecutor’s husband was in the courtroom before she began her opening statement but did not object. Instead, appellant waited until after both parties delivered their opening statements and examined the first prosecution witness to object to the alleged prosecutorial misconduct. Notably, appellant did not request an admonition. Appellant’s objection was not timely; the request for an admonition was nonexistent. (People v. Ennis (2010) 190 Cal.App.4th 721, 737; People v. Foster (2010) 50 Cal.4th 1301, 1351.) On appeal, appellant does not argue that an objection and request for an admonition would have been futile. (Cf. People v. Cole (2011) 33 Cal.4th 1158, 1201.) As a result, we conclude appellant has forfeited his prosecutorial misconduct claim.
Even if appellant had preserved this issue, we could conclude it has no merit. Appellant claims the prosecutor attempted to ingratiate herself with Juror No. 6 when she responded to Juror No. 6’s question about her husband’s name. We have no quarrel with the general proposition that attempting to ingratiate oneself with the jury “is not an acceptable basis for voir dire” (People v. Huffman (1977) 71 Cal.App.3d 63, 74) but we cannot agree the prosecutor was ingratiating herself with Juror No. 6 or using “deceptive or reprehensible” methods to persuade Juror No. 6 when she responded to Juror No. 6’s question about her husband’s name. (Navarette, supra, 30 Cal.4th at p. 506.) We conclude it is reasonable to infer that the prosecutor commented on her husband’s occupation during voir dire to determine whether there was a relationship warranting disclosure to court and counsel, and whether her husband’s occupation would improperly influence Juror No. 6. The prosecutor’s one word, knee-jerk response to Juror No. 6’s question was not “deceptive or reprehensible,” particularly where defense counsel characterized the exchange as “kind of innocent.” The second purported instance of misconduct, according to appellant, occurred when the prosecutor “fail[ed] to control her husband’s conduct during her opening statement[.]” Appellant cites no authority to support this argument, and we have found none. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“absence of . . . citation to authority allows this court to treat the contentions as waived”].)
Finally, we are not persuaded by appellant’s reliance on People v. Franco (1994) 24 Cal.App.4th 1528, 1535. In Franco, the “prosecutor reacted to a prospective juror’s statement that she knew an Officer Ken Bell. The prosecutor stated ‘It’s a small world’ because ‘I work with the District Attorney’s Hardcore Gang Division’ and have contact with Officer Bell. The prosecutor indicated it was possible Officer Bell could be a witness and questioned the juror about whether, in that event, she could be impartial in assessing his credibility. The prospective juror was later excused.” (Id. at pp. 1535-1536.) The appellate court rejected the defendant’s claim that the prosecutor’s comments constituted misconduct, noting, “[a]though inappropriate, this unelaborated reference to the hardcore gang division did not deprive appellant of a fair trial. The comment was addressed to a prospective juror who did not sit on the jury, was made months before jury deliberations began, was neither repeated nor elaborated upon, was not inflammatory and if not common knowledge (that such specialized units exist), was hardly startling.” (Id. at p. 1536.) Franco does not assist appellant for at least two reasons. First, the court in that case did not conclude the prosecutor’s comments constituted misconduct. Second, Franco is inapposite because the prosecutor in this case did not refer to appellant as a hardcore criminal.
II.
There Was No Prejudicial Juror Misconduct
Appellant contends Juror No. 6 committed misconduct by violating the “court’s admonitions” and “approach[ing] the prosecutor to confirm his suspicions about her husband’s identi[t]y.” “An accused has a constitutional right to a trial by an impartial jury. [Citations.] An impartial jury is one in which no member has been improperly influenced [citations] and every member is ‘“capable and willing to decide the case solely on the evidence before it.”’ [Citations.]” (In re Hamilton (1999) 20 Cal.4th 273, 293-294 (Hamilton).)
Appellant contends Juror No. 6 committed “inadvertent” misconduct because he “learned that the prosecutor was possibly married to a person he respected and who could potentially help him realize his dream of returning to coaching football. . . .” We disagree. As a general rule, “evidence that the internal thought processes of one or more jurors were biased is not admissible to impeach a verdict. The jury’s impartiality may be challenged by evidence of ‘statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly,’ but ‘[n]o evidence is admissible to show the [actual] effect of such statement, conduct, condition, or event upon a juror . . . or concerning the mental processes by which [the verdict] was determined.’ [Citations.] Thus, where a verdict is attacked for juror taint, the focus is on whether there is any overt event or circumstance, ‘open to [corroboration by] sight, hearing, and the other senses’ [citation] which suggests a likelihood that one or more members of the jury were influenced by improper bias.” (Hamilton, supra, 20 Cal.4th at p. 294, fn. omitted.)
Here, we cannot conclude there was a likelihood that Juror No. 6 was “influenced by improper bias.” (Hamilton, supra, 20 Cal.4th at p. 294, fn. omitted.) After further voir dire of Juror No. 6, the court advised him to refrain from speaking to the attorneys and advised him to follow the admonition “strictly.” Juror No. 6 indicated he understood the admonition and explained he could be fair and impartial. The presence of the prosecutor’s spouse in the courtroom during opening argument does not alter our conclusion. As the trial court correctly recognized, the courtroom is open to the public. While the better practice might have been to have her husband avoid viewing this opening statement, the prosecutor had no obligation to restrict her husband from watching her deliver her opening argument in the absence of a court order excluding him from the courtroom. Moreover, there is no indication Juror No. 6 saw the prosecutor’s husband, made eye contact with him, or communicated with him at any point during or after the trial. There is simply no evidence suggesting a substantial likelihood Juror No. 6 was influenced by improper bias. (Id. at p. 296.) The mere possibility that the prosecutor’s husband could have helped Juror No. 6 in some way on some unknown future date is just that — a possibility — and is insufficient to demonstrate a likelihood of bias. (People v. Vieira (2005) 35 Cal.4th 264, 289 [identification of “potential, rather than actual, bias . . . is not a basis for reversing a judgment”].)
Juror No. 6’s conduct was not prejudicial because there is not a “substantial likelihood” that he was “actually biased against [appellant].” (Hamilton, supra, 20 Cal.4th at p. 296.) As our high court has explained, “before a unanimous verdict is set aside, the likelihood of bias under either test must be substantial . . . . [T]he criminal justice system must not be rendered impotent in quest of an ever-elusive perfection. The jury system is fundamentally human, which is both a strength and a weakness. [Citation.] Jurors are not automatons. They are imbued with human frailties as well as virtues. If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias. To demand theoretical perfection from every juror during the course of a trial is unrealistic.’ [Citation.]” (People v. Danks (2004) 32 Cal.4th 269, 304 [unsolicited comments from one juror’s “pastor, [another juror’s] conversation with her pastor, and the introduction of the Bible passages to the jury room were misconduct, but . . . this misconduct was not prejudicial”].)
The court was not, as appellant suggests, required to conduct “further voir dire [of] Juror No. 6” after defense counsel asked the court to excuse him. The California Supreme Court has held that “‘“[o]nce a trial court is put on notice that good cause to discharge a juror may exist, it is the court’s duty ‘to make whatever inquiry is reasonably necessary’ to determine whether the juror should be discharged.”’ [Citations.] . . . ‘But not every incident involving a juror’s conduct requires or warrants further investigation. “The decision whether to investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror—rests within the sound discretion of the trial court.”’ [Citations.] ‘“[A] hearing is required only where the court possesses information which, if proven to be true, would constitute ‘good cause’ to doubt a juror’s ability to perform his duties and would justify his removal from the case.”’ [Citation.]” (People v. Martinez (2010) 47 Cal.4th 911, 941-942; see also People v. Dykes (2009) 46 Cal.4th 731, 809-810.)
Appellant has not demonstrated the court abused its discretion by declining to conduct either “further voir dire” or a hearing. First, appellant did not request additional voir dire or a hearing. Second — and assuming appellant has preserved this issue — defense counsel’s speculation that Juror No. 6 was biased because of his desire to coach football again is simply not enough to constitute “‘good cause’” to cast doubt on Juror No. 6’s ability to serve as a juror. (Martinez, supra, 47 Cal.4th at p. 942.) There is no evidence in the record suggesting that he was unable to perform his functions as a juror or that Juror No. 6 was “actually biased” against appellant. (Hamilton, supra, 20 Cal.4th at p. 296.)
DISPOSITION
The judgment is affirmed.




_________________________
Jones, P.J.


We concur:

_________________________
Simons, J.

_________________________
Bruiniers, J.


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