P. v. Knox
Filed 6/20/13 P. v. Knox CA2/3
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
ARTHUR FRANKLIN KNOX,
Defendant and Appellant.
B237511
(Los Angeles
County
Super. Ct.
No. TA116606)
APPEAL from a judgment of the Superior Court of
County, John J. Lonergan, Jr., Judge.
Affirmed.
Johanna R. Pirko, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General,
Victoria B. Wilson and Brendan Sullivan, Deputy Attorneys General, for
Plaintiff and Respondent.
INTRODUCTION
A jury
found defendant and appellant Arthur Franklin Knox guilty of possession of
cocaine base for sale. His sole
challenge to his conviction concerns the trial court’s refusal to dismiss a
juror, who he claims had an insufficient command of English. We find that the court did not abuse its
discretion by refusing to dismiss the juror, and we therefore affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
On February
3, 2011, a group of men, including defendant, were detained. Seven individually wrapped off-white
rock-like substances resembling cocaine were in defendant’s pocket. In another pocket were 17 individually
wrapped baggies of the same substance.
Analysis confirmed that the substance was cocaine. The People’s narcotics expert testified that
the cocaine was possessed for sale based on its packaging and quantity, the
location in which defendant was arrested, and that he had no smoking
paraphernalia.
II. Procedural background.
On
September 9, 2011, a jury found defendant guilty of count 1, possession for
sale of cocaine base (Health & Saf. Code, § 11351.5).
On November
16, 2011, after the court found that defendant had eight prior convictions
within the meaning of the Three Strikes law,
the court sentenced defendant to the high term of five years, doubled to 10
years. The court sentenced him to a consecutive
four years under Penal Code section 667.5, subdivision (b), and to a
consecutive three years under Health and Safety Code section 11370.2,
subdivision (a). His total sentence
therefore was 17 years in prison.
DISCUSSION
I. The trial court did not abuse its
discretion by failing to dismiss Juror No. 2.
Defendant
contends that the trial court’s refusal
to dismiss Juror No. 2 was an abuse of discretion that violated his
constitutional right to a fair trial. Defendant additionally contends that the court
failed to conduct an adequate inquiry into the juror’s ability to serve on the
jury. We do not agree with either
contention.
A. Additional
facts regarding the voir dire of Prospective Juror No. 9032/Juror No. 2.
The trial
court voir dired Prospective Juror No. 9032, who became Juror No. 2:
“Prospective
Juror [No.] 9032: My number is
9032. My last name is Prospective Juror [No.] 9032. I’m married.
Resident of Compton, California.
I’m married. Three children.
“The
court: What does your spouse do? What is their occupation?
“Prospective
Juror [No.] 9032: Oh, housekeeper.
“The
court: You’re a housekeeper?
“Prospective
Juror [No.] 9032: Yes.
“The
court: What about your spouse?
“Prospective
Juror [No.] 9032: Oh, my husband?
“The
court: Yes.
“Prospective
Juror [No.] 9032: He is in maintenance.
“The
court: Maintenance. Okay.
Are your kids over 18, any of your children?
“Prospective
Juror [No.] 9032: Yeah. 24.
“The
court: One is 24?
“Prospective
Juror [No.] 9032: Three.
“The
court: Three?
“Prospective
Juror [No.] 9032: Three.
“The
court: All 24?
“Prospective
Juror [No.] 9032: No.
“The
court: How old are they?
“Prospective
Juror [No.] 9032: 23, 24. Twins 24 and one boy 26.
“The
court: Okay. The boy is 24. And the boy is 26? All boys?
“Prospective
Juror [No.] 9032: Yes.
“The
court: Twenty-four, 26 and what about
the third one?
“Prospective
Juror [No.] 9032: Twins.
“The
court: Twenty?
“Prospective
Juror [No.] 9032: Twins.
“The
court: Twins. I’m sorry.
I’m hard of hearing as you can tell.
[¶] . . . That’s
probably why my kids think I yell.
[¶] So you have two children, two
twin boys?
“Prospective
Juror [No.] 9032: A set of twins and
another son.
“The
court: How old is the other son? There’s two of what? Twenty-four?
“Prospective
Juror [No.] 9032: And my daughter.
“The
court: Okay. What do your sons do? What is their situation now? Are they working?
“Prospective
Juror [No.] 9032: Yes, work.
“The
court: Doing what?
“Prospective
Juror [No.] 9032: In the bank.
“The
court: In the bank?
“Prospective
Juror [No.] 9032: Yeah. [¶] . . . [¶]
“The
court: They both work in the bank?
“Prospective
Juror [No.] 9032: Yeah.
“The
court: Okay. Any previous jury experience?
“Prospective
Juror [No.] 9032: Who, me?
“The
court: Yeah.
“Prospective
Juror [No.] 9032: No.
“The
court: Never got this far?
“Prospective
Juror [No.] 9032: No.â€
Defendant passed for cause, and Prospective Juror No. 9032
became Juror No. 2.
After the
jury was selected, Juror No. 1 addressed the court on Juror No. 2’s
behalf. Juror No. 2 said she was having
a difficult time understanding the court because she was not that fluent in
English. The court said: “And Juror No. 2 we addressed her yesterday
in the voir dire process, and while she does have some difficulty and it is not
her first language, the court did question her in some detail. Both sides had an opportunity to use a
peremptory challenge. The court did not
think it rose to the occasion of good cause.
Therefore, unless there is something either side wants to offer, we will
just continue on. As there’s several
jurors who[se] English is not their first language, part of it may be she’s
surprised she got this far and she is now on the jury so she is going to start
to be more vocal about her language skills.
But unless there is a stipulation by both sides, the court is not going
to excuse her.â€
Defendant
asked that the juror be excused “because that would be a problem.†When the court pointed out that defendant
could have used a peremptory challenge, defendant answered he was not aware the
juror was having problems. The court
said: “Well, the court doesn’t
think––when I questioned her yesterday, she answered my questions. She obviously has an accent, a heavy accent
but it didn’t rise to the occasion of good cause because both sides passed for
good cause. I am not excusing her. I’m only excusing her if both sides agree to
excuse her and it sounds like right now you’re agreeing to excuse her but the
People are not . . . .â€
Thereafter,
Juror No. 2 was late returning from lunch.
When the trial court asked the other jurors if they had seen her, Juror
No. 1 said, “She was having a problem with the language.†When the juror arrived 10 minutes late, this
exchange occurred:
“The
court: . . . [¶] Ma’am, I told all the
jurors to be ready to go at 1:45. Did
you go home at lunch?
“Juror No.
2: Yes.
“The
court: Okay. Also, can you keep your cell phone off when
you’re in court?
“Juror No.
2: No.
“The
court: No. You need to turn it off.
“Juror No.
2: Okay.
“The
court: Okay. We have now delayed this trial for you being
late for ten minutes. You need to be
here when I tell you to be here from now on.
Okay?
“Juror No.
2: And the problem is the elevator.
“The
court: Right. But you have to give yourself enough
time. If you decide to go home for lunch
and come back, you need to give yourself enough time because the elevators are
always slow and only half of them work.
Okay. Do you understand?
“Juror No.
2: Yeah.â€
B. Juror
No. 2’s disqualification does not appear as a demonstrable reality on the
record.
“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].â€
(In re Hamilton (1999) 20
Cal.4th 273, 293-294; see also People v.
Cleveland (2001) 25 Cal.4th 466, 476; Pen. Code, § 1120.) “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 . . . the court may order the juror to be discharged . . . .†(Pen. Code, § 1089; see also
140-141.)
The
standard of review applicable to removing a sitting juror requires the juror’s
disqualification to appear on the record as a “ ‘ “demonstrable
reality.†’ †(
p. 141; People v. Barnwell (2007) 41
Cal.4th 1038, 1052; People v. Fuiava (2012)
53 Cal.4th 622, 711.) “This standard
‘indicates that a stronger evidentiary showing than mere substantial evidence
is required to support a trial court’s decision to discharge a sitting
juror.’ [Citation.]†(Barnwell,
and less deferential†than the substantial evidence standard. (Ibid.) “It requires a showing that the court as
trier of fact did rely on evidence
that, in light of the entire record, supports its conclusion that bias was
established. . . . [A] reviewing court
does not reweigh the evidence under
either test. Under the demonstrable
reality standard, however, the reviewing court must be confident that the trial
court’s conclusion is manifestly supported by evidence on which the court actually
relied.†(Id. at pp. 1052-1053; see also
Fuiava, at p. 712.) The reviewing
court must therefore consider the evidence and the record of reasons the trial
court provided. (Barnwell, at
p. 1053.)
Insufficient command of English to
allow a full understanding of the instructions and participation in
deliberations can constitute good cause to dismiss a juror. (People
v. Elam (2001) 91 Cal.App.4th 298, 316; People
v. Szymanski (2003) 109 Cal.App.4th 1126, 1131; People v. Lomax (2010) 49 Cal.4th 530, 566.) The inability to comprehend the proceedings,
however, must appear as a demonstrable reality in the record. (Elam,
insufficient. (Ibid.)
In Szymanski, the juror told the court, during voir dire, that “
‘everything is okay with me except my English.’ †(People
v. Szymanski, supra, 109
Cal.App.4th at p. 1129.) The juror
was able to answer questions, but her answers were in broken English and “often
her words were unintelligible.†(
and she did not understand common terms such as “ ‘law enforcement’ â€
and “ ‘police department.’ †(
“ ‘[s]ome of the words’ †because she was from China, and she did not
think it was “ ‘fair for me to make any judgment’ †if she did not
understand “ ‘what you guys talking about, and what’s the evidence.’ †(Id. at
pp. 1130, 1132.) Based on this record,
else [the juror] could have said or done to convey that her insufficient
understanding of the English language was a reality.†(Id. at
p. 1132.) The court therefore reversed
the judgment.
We do not think that
case. First, unlike the juror in
voir dire that her language skills impeded her ability to comprehend the
proceedings. She claimed her English was
insufficient only after she became a
member of the jury. The trial court
suggested that the reason she raised the issue at that point in time was
“surprise[] she got this far.â€
Second, the trial court did note
that the juror had a heavy accent and had some difficulty with the
language. Nonetheless, the court found
that the juror was able to answer the questions, a finding that the record
supports. Defendant, however, parses the
exchange between the court and the juror in an attempt to show that the juror
lacked a sufficient knowledge of English to be on the jury. He points out that the juror, for example, initially
said her husband was a housekeeper when the juror meant she was a
housekeeper. There was also some
confusion about how many children the juror had and their age.
But it is hard to determine whether
the confusion resulted from the juror’s inability to understand the questions
or from the court’s inability to
understand the juror due to her accent or from the trial judge being, in his
words, “hard of hearing.†When, for
example, the juror said she had “twins,†the court thought she said “twenty.†The court also sometimes asked multiple
questions at once, and it is therefore unclear to which question the juror was
responding. The court, for example,
asked, “The boy is 24. And the boy is
26? All boys?†The juror answered, “Yes,†which could be a
correct answer, depending on what question she was answering. And when the court asked the juror to keep
her cell phone off in court, the juror said, “No.†Although defendant suggests this demonstrates
the juror’s inability to understand instructions, that is not necessarily the
only conclusion the record supports. An
equally fair reading is the juror did not want to turn off her phone and only
agreed to after the court ordered, “You need to turn it off.â€
Finally, neither defendant nor the
prosecutor discerned a problem with the juror’s ability to understand
English. Neither challenged her for
cause.
Based on this record, we do not
find the juror’s incompetence based on her lack of language skills to be a
demonstrable reality. The record is open
to interpretation, and we will not second guess a trial court’s credibility
judgment where it depends, in part, on observing the witness. (People
v. Barnwell, supra, 41 Cal.4th at p. 1053; People v. Avila (2006) 38 Cal.4th 491, 529 [prospective juror’s
tone of voice, apparent level of confidence, and demeanor divulge valuable
information that does not appear on the record]; People v. Zapien (1993) 4 Cal.4th 929, 994-995.) Where, as here, firsthand observation might
be key to a credibility determination and to understanding the witness, we
afford deference to the trial court.
C.
by failing to inquire further into Juror No. 2’s language skills.
When Juror
No. 2 asked another juror to tell the court she was having a hard time
understanding, the trial court should have, defendant contends, conducted a
further inquiry into Juror No. 2’s competency to serve as a juror. Again, we disagree.
Once a trial court is put on notice
that good cause to discharge a juror may exist, the court has a duty to make
whatever inquiry is reasonably necessary to determine whether the juror should
be discharged. (People v. Cowan (2010) 50 Cal.4th 401, 505-506;
911, 941-942.) “ ‘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. [Citation.]
The court does not abuse its discretion simply because it fails to
investigate any and all new information obtained about a juror during trial.’
†(People
v. Virgil (2011) 51 Cal.4th 1210, 1284.)
The trial court did not abuse its
discretion by failing to conduct a further inquiry by, for example, further
examining Juror No. 2. As we noted
above, the trial court thought that the point at which Juror No. 2 raised her
alleged inability to understand the proceedings was suspicious. The court suggested that the juror’s problem
was related to her “surprise†at being on the jury as opposed to an inability
to comprehend the proceedings. The
record bears that out. The juror raised
the issue soon after she became a member of the jury—before opening statements
and preinstructions had even been given.
The court had just concluded voir dire, and it and the parties impliedly
had found the juror’s English abilities to be adequate.
Given the voir dire and based on
when this issue was raised, we cannot agree that the trial court abused its
discretion by failing to conduct a further inquiry into Juror No. 2’s
ability to understand the proceedings.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ALDRICH,
J.
We concur:
KLEIN,
P. J.
CROSKEY,
J.
trial court struck seven of the strikes.
