P. v. Herron

Filed 7/17/08 P. v. Herron CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Richard J. Oberholzer, Judge.

David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janis Shank McLean and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF THE CASE

On July 26, 2006, the Kern County District Attorney filed an information in superior court charging appellant as follows: Count 1felony aggravated sexual assault on a child under the age of 14 (Pen. Code, 269, subd. (a)(1))^[1]with two prior strike convictions ( 667, subds. (c)-(j), 1170.12), two prior felony convictions ( 667, subd. (a)), and a prior prison term ( 667.5, subd. (b)); Count 2felony lewd and lascivious conduct with a child under age 14 ( 288, subd. (a)) with two prior strike convictions ( 667, subds. (c)-(j), 1170.12), two prior felony convictions ( 667, subd. (a)), and a prior prison term ( 667.5, subd. (b)); and Count 3misdemeanor resisting a peace officer ( 148, subd. (a)(1)).

On July 31, 2006, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.

On September 1, 2006, the court granted the prosecutions motion to compel appellant to give a sample of his DNA.

On September 8, 2006, appellant declined a plea offer entailing a term of 25 years to life in state prison.

On March 13, 2007, the court granted appellants motions in limine to bifurcate trial of the special allegations, to exclude witnesses, and for use of a jury questionnaire.

On March 14, 2007, jury trial commenced. On March 19, 2007, all parties rested.

On March 20, 2007, the jury returned verdicts finding appellant guilty of the three substantive counts and finding all of the special allegations to be true.

On April 17, 2007, the court denied appellants motion to strike his prior conviction. The court then denied appellant probation and sentenced him to a total term of 45 years to life plus ten years. The court imposed the term of 45 years to life on Count 1 and consecutive five-year terms on the two related prior felony convictions ( 667, subd. (a)). The court imposed a concurrent term of 25 years to life on Count 2 and a concurrent jail term of six months on Count 3. The court imposed a $200 restitution fine ( 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole ( 1202.45), and awarded 332 days of custody credits.

On April 17, 2007, appellant filed a timely notice of appeal.

STATEMENT OF FACTS

In June 2006, 10-year-old K. lived with her mother, K.H., and sometimes spent weekends with her father, appellant Willie Herron, and his fiancee, S.B. On June 23, 2006, K. was staying with appellant in his apartment. Father and daughter were alone in the living room. Appellant was seated in a chair and K. was seated on a couch. Appellant told K. to take off her clothes and spread her legs. When she refused, appellant went to the couch, removed her clothes, forced open her legs, and unzipped his pants. Appellant turned her onto her stomach and engaged in sexual intercourse with her as she screamed, No, daddy, no!

Appellants neighbor was taking some food to S.B.s son, who was also at the apartment. The neighbor knocked at the door, received no response, and started to walk away. She then heard K. scream, No, daddy, no! At that time, S.B. returned home and appellant heard her drive up. He stood, zipped up his pants, ordered K. into the bathroom, and then pushed against the apartments front door to keep it closed. S.B. approached the front door and her neighbor told her that K. was crying and that she could not open the door. S.B. started to unlatch the front door but it suddenly slammed shut from the inside. S.B. eventually opened the door.

When S.B. entered, appellant was standing inside the apartment. S.B. followed him into the bathroom. K. was standing naked in the shower stall, bleeding slightly from her vaginal area. The shower was turned off and K. was holding her right hand over her genitals. S.B. asked, What the hell, Will? Appellant left the bathroom. S.B. next asked K. what happened and whether appellant raped her. K. started to tell S.B. that appellant had raped her but he reentered the bathroom and interrupted them. S.B. again asked, What the hell happened, Will? Appellant said he was whooping her ass. S.B. asked K. if that occurred and she said it did. S.B. and appellant argued the remainder of the evening. Appellant eventually took K. back to her mothers home. He told K. if she revealed what he had done, he would rape her again. S.B. left the apartment to stay with a friend.

When K. returned to her mothers home on June 25, 2006, she did not say anything about visiting her fathers home the following weekend. She visited her fathers home again the next weekend, July 1 and 2, but when she returned to her mothers home, she called her mother upstairs. K. was seated on the bottom bunk of her bunk bed. She put her hands on her face, started crying, turned around, and told her mother that appellant had raped her.

Appellants conduct was reported to police and officers went to his apartment on July 3, 2006. They found him locked in the bathroom and ordered him to come out. He refused and told the officers they should just shoot him. The officers attempted to arrest him and appellant struggled before he finally was subdued.

After placing appellant under arrest, officers searched K.s bedroom in the apartment. They found a mixture of blood and semen stains on her clothing. Kaci Wilson, a criminalist with the Kern County Regional Crime Laboratory, testified the DNA profile of the semen on K.s clothing was consistent with appellants known DNA profile. John L. Digges, M.D., a pediatrician, examined K. for trauma to her genitalia. Dr. Digges testified that K. had two transsections, or tears, in the lower portion of her hymen. He also said these tears were consistent with an injury inflicted by a penetration.

DISCUSSION

Appellant contends the trial court committed structural error by diluting the presumption of innocence and discouraging candid responses to questions during voir dire.

A. Presumption of Innocence

Appellant cites a number of examples to illustrate his first point. The following exchange occurred during the voir dire of Prospective Jurors 985480 and 1032699:

Q. [By the Court]: Ms. (Juror #985480), would you invite the defendant to your home for dinner tonight?

A. [By the juror] No.

Q. Why not?

A. Because I dont know him.

Q. Okay. Do you want to know what hes charged with Mr. (Juror #1032699)

A Yeah.

Q. Lets see if I can find a copy here of the Information. [] I guess Ill have to read it and find out myself.

MR. EYHERABIDE [defense counsel]: Your Honor, Im going to have to make Im objecting to the Courts questioning, whether the jurors would invite the defendant, as being inappropriate, prejudicial to my client.

THE COURT: All right. Your objection is noted.

A short time later, the following exchange occurred:

Q. [By the Court:] Ms. (Juror #985480), would you invite him to your house now for dinner?

A. No. I dont know him.

Q. Well, now you know something about him. Would you invite him to your house now, knowing about what the charge is in this case?

A. I cant answer that question.

Q. How about you, Ms. (Juror #1154964)?

A. Would I invite him to my home for dinner?

Q. Yes.

A. No. Then Id have to cook. I mean

Q. Is it because of what the charge is in this case? Is that the reason you wouldnt invite him to --

A. No. No.

Q. Is that the

A. I dont have any children in my house under ten, so I wouldnt be concerned. I mean, I dont have

Q. Ms. (Juror #898258), would you invited him to your house for dinner?

A. I usually dont invite strangers over to my house for dinner.

Q. Aside from that, would you invite him over to your house for dinner because of what hes charged with?

A. I dont know. Probably not.

Q. Probably not. Why?

A. Because I dont know him.

Q. But you know what hes been charged with.

A. Right.

Q. And that helps you decide whether or not youre going to invite him to dinner, doesnt it?

A. Well, I would need to know a lot more about him. I would need to know him.

MR. EYHERABIDE: Judge, again

THE COURT: Mr. Eyherabide, your objection has been noted. And you can object after its all over again, if you want to, for the record. But right now let me complete this line of questioning to see if you really want to object, okay?

BY THE COURT:

Q. Ms. (Juror #1125511), would you invite him to your house for dinner?

A. No.

Q. Based on what you know here, right?

A. No.

Q. Is that the reason?

A. No.

Q. It isnt?

A. I wouldnt invite anybody here to dinner, to be honest. I dont know anybody.

Q. Ms. (Juror #963259), would you invite him to dinner?

A. No. Because I dont know him.

Q. But aside from that, based on the charge, is that one of the reasons you wouldnt invite him to dinner?

A. No.

Q. It is not. Is there anybody that wouldnt invite him to dinner

A. Absolutely not.

Q. -- because of the charge? Why?

A. Because I love my babies and I protect my home.

Q. And what? What did we say about this case? Youre to presume him to be innocent, right?

A. Thats correct.

Q. And then what was the next question I asked? Do you know if hes innocent?

A. I do not.

Q. Absolutely not. So the response that Ive been getting from you and remember what I said: Just tell me what youre thinking. Because I want to make sure we get your minds going in the right direction. [] I wouldnt expect people to come into the courtroom and sit in the courtroom  I dont care what the crime is sit on a felony and say: I would invite that person to my house for dinner when theyve been charged with a felony. Because you dont know whether or not theyre innocent or not. You dont know whether theyre guilty or not. You dont know at this stage.

At the next break in the proceedings, defense counsel moved for a mistrial, partially based on the voir dire questions relating to taking appellant home to dinner. Counsel explained:

I think I understand where the Court was going with that. But I think the tenor, the way its put to the jury, is that they relate it to a fact that hes here, would not want to go home for dinner [sic]. [] And then I think the way the overall impression left to the jury is there is there should be some bias or prejudice against him because no one wants to take him home for dinner. [] Ive actually never heard that voir dire before in a courtroom. I dont think Ive ever heard it from Your Honor. So it struck me as inappropriate.

The court summarily denied defense counsels motion.

Appellant now submits:

This line of questioning was highly improper, and the impact in regard to undermining the presumption of innocence, and in personalizing the concept to Mr. Herron in such a way as to arouse passion and prejudice against him, was to create structural error requiring reversal. [] ... []

The problem in this case was especially pernicious because the reaction of the jurors, as shown by the responses outlined above, not only directly reflected that the court had moved them in the direction of presuming appellant was guilty rather than innocent ... but also the questions doubtless created prejudice against appellant, as counsel had noted, by personalizing a feeling of fear of Mr. Herron on the part of the prospective jurors. That is, by asking people whether they would invite Mr. Herron to dinner, the court personalized the case to Mr. Herron, rather than focusing on the concept of presumption of innocence in an objective way, in a manner which is impermissible in other contexts because it can invoke the passions and prejudices of a jury against a defendant.

Appellant specifically contends Judge Oberholzer diluted or diminished the presumption of innocence in much the same way that he did in People v. Johnson (2004) 119 Cal.App.4th 976 (Johnson). In Johnson, while conducting voir dire in a homicide case, Judge Oberholzer gave the legal definition of reasonable doubt and equated proof beyond a reasonable doubt to everyday decision-making in a jurors life. The prosecutor took his cue from the courts reasonable doubt instructions in framing his closing arguments to the jury. After both sides rested and argued their cases to the jury, the court instructed the jury with former CALJIC No. 2.90. The jury found defendant guilty of numerous counts and found a number of special allegations to be true. (Johnson, supra, at pp. 978-984.) He appealed, claiming instructional error on reasonable doubt. This court agreed and reversed the judgment of conviction. We determined the trial courts tinkering with the statutory definition of reasonable doubt, no matter how well intentioned, lowered the prosecutions burden of proof below the due process requirement of proof beyond a reasonable doubt. (Id. at pp. 984-986.)

In the instant case, the court did not expressly equate reasonable doubt with everyday decisions, but impliedly related such a decision whether to invite a defendant home for dinner to the presumption of innocence. The Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution protects a criminal defendant from conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he or she is charged. An instruction that lowers the Peoples burden of proof or detracts from the heavy burden suggested by the use of the term reasonable doubt is federal constitutional error requiring reversal per se. The presumption of innocence is inherent in the reasonable doubt standard. Due process likewise requires that guilt be determined only on the evidence presented at trial, not on suspicion, defendants status or facts outside the evidence. A presumption of innocence instruction represents one means of protecting the accuseds constitutional right to be judged solely on the basis of proof adduced at trial. (People v. Mayo (2006) 140 Cal.App.4th 535, 541-543 (Mayo).)

Code of Civil Procedure section 223 states in pertinent part:

In a criminal case, the court shall conduct an initial examination of prospective jurors. The court may submit to the prospective jurors additional questions requested by the parties as it deems proper. Voir dire of any prospective jurors shall, where practicable, occur in the presence of the other jurors in all criminal cases, including death penalty cases. Examination of prospective jurors shall be conducted only in aid of the exercise of challenges for cause....

The goal of voir dire is not to salvage problematic jurors but rather to find 12 fair-minded jurors who will impartially evaluate the case. (People v. Hoyos (2007) 41 Cal.4th 872, 907, fn. 19.) The right to voir dire the jury is not constitutional but is a means to achieve the end of an impartial jury. (People v. Robinson (2005) 37 Cal.4th 592, 613 (Robinson).) Voir dire performs a critical function in assuring the criminal defendant that his or her Sixth Amendment right to an impartial jury will be honored. Without an adequate voir dire, the trial judges responsibility to remove prospective jurors who will not be able impartially to follow the courts instructions and evaluate the evidence cannot be fulfilled. (People v. Bolden (2002) 29 Cal.4th 515, 538.) In California, there is no constitutional right to any particular manner of conducting the voir dire and selecting a jury so long as such limitations as are recognized by the settled principles of criminal law to be essential in securing impartial juries are not transgressed. (Robinson, supra, 37 Cal.4th at p. 613.)

A trial court is in the best position to assess the amount of voir dire required to ferret out latent prejudice and to judge the responses. (Robinson, supra, 37 Cal.4th at p. 617.) The Constitution does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury. The trial court is given wide latitude to determine how to conduct the voir dire. (People v. Tafoya (2007) 42 Cal.4th 147, 168.) Moreover, the trial court is in the unique position to assess demeanor, tone, and credibility firsthandfactors of critical importance in determining the attitude and qualifications of potential jurors. (People v. DePriest (2007) 42 Cal.4th 1, 21.)

The California Supreme Court has advised trial judges to follow closely the language and formulae for voir dire recommended by the Judicial Council in the California Standards of Judicial Administration to ensure that all appropriate areas of inquiry are covered in an appropriate manner. (People v. Holt (1997) 15 Cal.4th 619, 661.) Standard 4.30 of the California Standards of Judicial Administration (examination of prospective jurors in criminal cases) applies in all criminal cases and provides [t]he trial judges examination of prospective jurors in criminal cases should include the areas of inquiry listed below and any other matters affecting their qualifications to serve as jurors in the case. The enumerated topics include physical and time constraints affecting prospective jury service; bias, prejudice, and beliefs affecting jury service; juror acquaintance with the defendant, defense counsel, the prosecutor, and prospective witnesses; prior knowledge of the case; financial or personal interest in the outcome of the case; prior jury service; criminal victimization of a prospective juror or a person in a significant personal relationship with the prospective juror; and criminal investigation of a prospective juror or a person in a significant personal relationship with the prospective juror. (Cal. Stds. Jud. Admin.,  4.30(b).)

As to reasonable doubt, Standard 4.30(b) states in pertinent part:

(15) The fact that the defendant is in court for trial, or that charges have been made against (him)(her), is no evidence whatever of (his)(her) guilt. The jurors are to consider only evidence properly received in the courtroom in determining whether the defendants guilt has been proved beyond a reasonable doubt. The defendant has entered a plea of not guilty, which is a complete denial, making it necessary for the People, acting through the district attorney, to prove beyond a reasonable doubt the case against defendant. If the evidence does not convince you of the truth of the charges beyond a reasonable doubt, the defendant is entitled to a verdict of not guilty.

In the instant case, the trial court deviated substantially from the language and formulae for voir dire recommended by the Judicial Council. Rather than confine itself to the enduring precepts of presumption of innocence and guilt beyond a reasonable doubt, the court broadened its inquiry to ascertain whether the prospective jurors deemed appellant a suitable houseguest and dining companion. Due process requires that guilt be determined only on the evidence presented at trial, not on suspicion, defendants status, or facts outside the evidence. (Mayo, supra, 140 Cal.App.4th at p. 543.) While the trial courts queries may have been well-intentioned efforts to underscore the presumption of innocence in the minds of the prospective jurors, the courts rhetorical detour effectively distorted and diluted the prosecutions burden of proof. With the heightened authority of the trial court in the conduct of voir dire, mandated under Code of Civil Procedure section 223, comes an increased responsibility to assure that the process is meaningful and sufficient to its purpose of ferreting out bias and prejudice on the part of prospective jurors. (People v. Wilborn (1999) 70 Cal.App.4th 339, 343.)

The trial courts repeated inquiries about appellant as a potential dinner guest of the prospective jurors did not serve the salutary purpose of ferreting out bias and prejudice and the judgment of conviction must be reversed.

B.    Alleged Castigation of Candor

Appellant also contends the court intimidated prospective jurors into hiding personal points of view after one prospective juror candidly admitted the misconduct of a relative by marriage and the court commented on the prospective jurors statements before excusing him.

The following exchange occurred during voir dire:

Q. [By the Court] All right.

A. [By Juror No. 1135024] And I dont know anybody here except you. Ive been in the court before. And due to circumstances that happened a long time ago, I dont think I can be fair to this Mr. Herron here.

Q. And whats that.

A. My ex-wifes brother molested his daughter.

Q. Okay.

A. And never even got to trial. And its

Q. Let me just because of the fact I didnt know thats what you were going to say, because I usually take that up privately. I want to point something out for everyones benefit here. We have situations in our lives where we see things that are done that are crimes and others that we may know other people that have committed crimes and all. But what does that got to do with whether or not this person on trial committed a crime?

A. Im prejudice[d], I guess.

Q. Youre prejudice[d] because of his race?

A. No. Because of the crime.

Q. Because of the crime.

A. Race has nothing to do with it.

Q. Are you prejudice[d] against murder?

A. Yeah. I really dont think much of it.

Q. Yeah. Are you prejudice[d] against armed robberies?

A. Depends on whos robbing who.

Q. Well, I mean, the point is: When youre saying youre prejudice[d] against it, Im assuming you dont like any crime. Im wondering why you would associate this defendant with something you something to do with your life or your familys life.

A. Kind of, like, if hes accused, hes guilty.

Q. If hes accused, hes guilty. Okay. Is that how you feel with respect to crimes in America?

A. In respect to that particular crime.

Q. ... What makes that crime different, such that you feel: If theyre accused, theyre guilty. I mean, do you think a child could lie?

A. Oh, yes.

Q. Well, if that were the case, the person wouldnt be guilty, would they, in a situation like this?

A. Why would the child lie?

Q. You just told me that a child could lie.

A. They could. Anybody can.

Q. Right.

A. You get past the age of talking, youre subject to it.

Q. Why do you want to presume at this stage, youre presuming that the charge, itself, is sufficient.

A. Thats exactly what it is.

Q. Yeah. Well, unfortunately, you cant be a juror in the United States. Now, you could be a juror in France, if you want to go to France. Because in France, a person is presumed to be guilty until theyre proved innocent.

A. I know. Thats the way its supposed to be. And, like I said, if he was in here for drunk driving or something, Id be all together different. But its

Q. Im going to send you back to the jury room. But what I want you to do for me, if you would, please because we have a great system of justice in this country.

A. I agree with you. Ive been a part of it before.

Q. Okay. But what I want you to do is think about what youve said here. Because to say: Im going to pick out a certain crime. And for that crime, we have no justice in this country. For that crime, a person goes to prison, whether or not theyre guilty, simply by the accusation. That would be a pretty bad system, wouldnt it?

A. Yes, it would.

Q. Thats what youre advocating in your choice.

A. Im advocating my personal thing. Im not saying this whole room is wrong. Im just saying Im not right for this particular case.

Q. All right. You can go back to the jury room.

A. Thank you.

Q. Im saying: Think about it. Because you cant pick and choose cases and have a system of justice in our country.

At the next break in voir dire, defense counsel moved for mistrial based on the courts voir dire statements to Juror No. 1135024 and the following exchange occurred:

MR. EYHERABIDE: ... My characterization would be that the Court lectured him as to why his attitude was wrong. ... I think he was very up front saying I think he just came out and said he couldnt be fair. He said he was prejudice[d]. He said on this charge, he felt if youre charged, youre guilty. Im paraphrasing, obviously.

And I think the Court spent about five minutes explaining to him why that was the wrong attitude to have as a juror. And if that had been a sequestered voir dire, I wouldnt care. But I think the message the Court sent to everyone else was: Dont give me an honest response, because youre going to be lectured, if the Court happens to disagree with your viewpoint.

I suspect there are many people that feel as he did, that if your children dont make this up; that if youre charged with this, you must have done it, short of some real extenuating circumstances.

At the conclusion of his remarks, defense counsel acknowledged: We need to identify jurors that, perhaps, feel that way. Not that the Court wasnt professional and nice to him, but I think the effect on everybody listening was to discourage feelings like that. The court summarily denied the defense motion for mistrial.

An appellate court reviews the denial of a motion for mistrial under the deferential abuse of discretion standard. A motion for mistrial is directed to the sound discretion of the trial court. A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. Whether a particular incident is incurably prejudicial is by its nature a speculative matter. The trial court is vested with considerable discretion in ruling on mistrial motions. (People v. Cox (2003) 30 Cal.4th 916, 953.)

One accused of a crime has a constitutional right to a trial by impartial jurors. The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the constitutional right to trial by jury. The impartiality of prospective jurors is explored at the preliminary proceeding known as voir dire. Without an adequate voir dire, the trial judges responsibility to remove jurors who will not be able impartially to follow the courts instructions and evaluate the evidence cannot be fulfilled. The efficacy of voir dire is dependent upon prospective jurors answering truthfully when questioned. A juror who conceals relevant facts or gives false answers during voir dire undermines the jury selection process and commits misconduct. (In re Hitchings (1993) 6 Cal.4th 97, 110-111.) Once again, the United States Constitution does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury. (People v. Avila (2006) 38 Cal.4th 491, 536.)

At the inception of voir dire in the instant case, the court advised prospective jurors of the need for honest answers. After the court explained the need for honest answers, the clerk administered the following oath to the prospective jurors:

Do each of you understand and agree that you will accurately and truthfully answer under penalty of perjury all questions propounded to you concerning your qualifications and competency to serve as a trial juror in the matter pending before this Court, and that failure to do so may subject you to criminal prosecution?

The jury panel responded: I do.

Voir dire of any prospective jurors shall, where practicable, occur in the presence of the other jurors in all criminal cases, including death penalty cases. (Code Civ. Proc.,  223.) The question of whether individual sequestered voir dire should take place is within the trial courts discretion. Such discretion is abused if the questioning is not reasonably sufficient to test the jury for bias or impartiality. (People v. Box (2000) 23 Cal.4th 1153, 1179.) In the instant case, the scope and adequacy of the courts examination of the juror is not in issue. The record reveals the trial court engaged in an unrelenting, incisive exchange with Juror No. 1135024 after the latter frankly acknowledged his inability to be impartial to appellant because of prior sexual misconduct committed by the jurors former brother-in-law. The jurors admitted bias and his reluctance to serve were clear within a minute or two of questioning by the court. The court could have exercised its discretion reasonably by excusing the juror at that point or by privately questioning him further in the presence of counsel. In that sequestered voir dire, the court properly could have made further inquiry into the sources of the jurors bias and inability to be impartial. Just as importantly, the court could have (a) thoughtfully reminded the prospective juror of the critical role of the jury trial in our system of justice; (b) encouraged the prospective juror to be open to service in some other, less inflammatory criminal or civil action; and, if need be, (c) admonished the prospective juror that jurors are to consider only evidence properly received in the courtroom in determining whether the defendants guilt has been proved beyond a reasonable doubt. (Cal. Stds. Jud. Admin,  4.30(b)(15).)

Instead, the court kept Prospective Juror No. 1135024 in the jury box, engaged in a lengthy dialogue about civics and the judicial process, and almost reluctantly excused him to return to the jury room for further assignment. All of this took place in the presence of the remaining members of the venire. At the hearing on the motion for mistrial, defense counsel acknowledged that the trial courts demeanor toward the prospective juror was professional and nice but maintained the effect on everybody listening was to discourage feelings like that.

As noted above, denial of a motion for a mistrial is reviewed for abuse of discretion and should be granted only when a partys chances of receiving a fair trial have been damaged irreparably. (People v. Ayala (2000) 23 Cal.4th 225, 282; People v. Welch (1999) 20 Cal.4th 701, 749.) In our view, the courts harangue of Juror No. 1135024 tended to inhibit a free and frank interchange between the court and Juror No. 1135024, not to mention prospective jurors seated either in the jury box or awaiting selection in the courtroom. The entire interchange essentially undermined appellants Sixth Amendment right to an impartial jury. Without an adequate voir dire, the trial judge cannot fulfill his or her responsibility to remove prospective jurors who will be unable impartially to follow the courts instructions and evaluate the evidence. (People v. Bolden, supra, 29 Cal.4th at p. 538.) Here the trial court did not affect the impartiality of the jury by asking too few questions of prospective jurors but by bearing down on a prospective juror who attempted to frankly respond to the courts inquiry, thereby creating a chilling effect on the remainder of the venire.

In our view, the trial court abused its discretion by making such an invasive inquiry of Juror No. 1135024 while the latter was seated in the jury box and reversal is required.^[2]

DISPOSITION

The judgment is reversed.

_____________________

Gomes, J.

WE CONCUR:

_____________________

Vartabedian, Acting P.J.

_____________________

Hill, J.

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^[1]Subsequent statutory references are to the Penal Code unless otherwise noted.

^[2]In view of our holdings in this issue, we need not address appellants remaining contentions (the propriety of CALCRIM No. 306 and the clerical error in the abstract of judgment) on appeal.