Opinion
D073710
06-13-2018
THE PEOPLE, Plaintiff and Respondent, v. KARIN ANN BUTTINELLI, Defendant and Appellant.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FMB1500030) APPEAL from a judgment of the Superior Court of San Bernardino County, Rodney A. Cortez, Judge. Affirmed. Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Karin Buttinelli guilty of embezzlement by a public or private officer (Pen. Code, § 504), and found true the allegation that the funds she embezzled were public funds (Pen. Code, § 514). The trial court placed her on three years' formal probation and ordered her to pay victim restitution. On appeal, Buttinelli contends the trial court erred by refusing to allow her to exercise during trial an unused peremptory challenge to remove a trial juror (Juror No. 4) who belatedly revealed she once served on the board of a cemetery that had been the victim of embezzlement about six or seven years earlier. Alternatively, Buttinelli contends the trial court erred by refusing to remove this juror for cause. We reject these contentions, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because the facts regarding Buttinelli's underlying offense are only minimally relevant to the issues on appeal, we provide a very brief summary.
Buttinelli worked as a payroll specialist for the Morongo Unified School District (District). For the August and October 2014 pay periods, she credited her pay with 68 hours of overtime she had not worked, resulting in a $1,927.80 overpayment. Buttinelli denied intentionally causing the overpayment, suggesting it could have resulted from her long fingernails hitting the wrong key on her keyboard, or someone else having access to her computer. The jury found her guilty of embezzlement, and found true the public-funds special allegation.
DISCUSSION
A. Background
Jury selection occurred over two afternoon court sessions. The court informed the jury venire that Buttinelli was charged with one count of embezzling public funds. After screening the entire panel for eligibility (e.g., that no one lived outside the county or had a prior felony conviction), the court randomly selected 18 prospective jurors (among them, Juror No. 4), who moved to the jury box for questioning.
Before substantively questioning these 18 prospective jurors, the court preliminarily asked whether any of them personally knew the court's personnel, the lawyers, Buttinelli, or any of the anticipated trial witnesses. Several jurors said they did. Juror No. 4 disclosed she recognized two of the witnesses' names as being District employees who also used to be customers of her business. She stated she would "be able to treat their testimony the same as other witnesses who testify."
The court then substantively questioned the 18 prospective jurors collectively. The trial court explained the concepts of "bias, prejudice, and fairness," including that "there are times when we can set aside our biases and prejudices and we can be fair." When the court asked if anyone had "any biases that would affect [their] ability to be fair in this specific case," or whether anyone felt "they would not be able to be fair in this case," Juror No. 4 was among those who expressed no concern. After further explaining what it means to be fair, the court asked collectively, "if you are selected, will you provide fairness to both sides in this case?" Juror No. 4 was among those who responded, "Yes."
The court asked the prospective jurors, "whether you [or] someone in your family has ever been accused of a crime, not traffic infractions or speeding, been to jail or prison, or been the victim of a crime." After several other prospective jurors responded, Juror No. 4 disclosed the business she had owned for 32 years (before her recent retirement) had been burglarized. She reported the burglary to the police, and the perpetrators were prosecuted.
The court concluded its questioning by asking the 18 prospective jurors to provide certain standard demographic information (e.g., place of residence, marital status, occupation, number of children, etc.). The court then turned over questioning to counsel.
Defense counsel asked the prospective jurors about their prior jury experience, the applicable burden of proof, their willingness to deliberate, and their assessment of witness credibility. She asked whether any of the prospective jurors worked for the District (several indicated they did), or whether they could not be fair because "this is an embezzlement case" involving "not just any funds," but "public funds." Juror No. 4 did not indicate she would have a problem.
Defense counsel also asked prospective jurors about their experience with bookkeeping, payroll, or being inadvertently overpaid. She ended her initial questioning with the catch-all, "Is there anyone here who for some reason we have not heard about today . . . cannot sit on this jury?" Juror No. 4 did not respond.
The prosecutor then asked prospective jurors about their understanding of the applicable burden of proof, their comfort level with computers, their ability to judge credibility, and their attention to detail.
Toward the end of the first afternoon of jury selection, the court excused one juror for cause, and counsel began exercising their peremptory challenges. The court replaced the excused jurors with additional prospective jurors, then adjourned for the day.
The following afternoon, the court and counsel questioned the replacement prospective jurors in substantially the same manner as they had questioned the other prospective jurors the day before. This process repeated as additional prospective jurors were challenged for cause or peremptorily.
When one prospective juror indicated she had a son in prison, the court asked, "Anything related to embezzlement like this case?" The prospective juror responded, "Not that I'm aware of." The court excused by stipulation two prospective jurors who had had prior experiences with embezzlement (one said he or she would be biased due to having been the victim of embezzlement and extortion about 12 years earlier, and the other had been laid off shortly after inquiring about whether his or her boss was embezzling). One prospective juror disclosed he or she had previously worked as a bookkeeper and, therefore, knew "how to fudge the books," "especially when you're working with on-line type of bookkeeping."
After exercising additional peremptory challenges, counsel accepted the jury as constituted. Buttinelli had two unused peremptory challenges remaining. The court replaced the excused jurors with six additional potential jurors, who were then questioned as potential alternates. After questioning by the court and counsel, the court selected two alternates. At the end of the second afternoon (September 14, 2016), the clerk swore in the trial jurors and alternates. The court preinstructed the jury and adjourned for the day.
The next day (Thursday, September 15), counsel delivered opening statements, and the prosecution called two witnesses. At the end of the morning session, the court adjourned for the weekend.
First thing Monday morning, the bailiff informed the court that Juror No. 4 had just disclosed that she had served on the board of a cemetery that "had an embezzlement case at some point, and she completely forgot about it during the voir dire." The court questioned Juror No. 4 outside the presence of the other jurors.
Juror No. 4 explained she previously served on the board of the Twentynine Palms cemetery from 2000 to 2016. About six or seven years earlier, before the cemetery was "computerized," a secretary took $7,000 to $9,000 from customers' cash payments. Juror No. 4 was notified of the embezzlement because of her status as a board member. She did not participate in any investigation regarding this incident. Juror No. 4 believed criminal charges were brought against the secretary, but was unaware of the outcome. The cemetery's insurance company covered the losses.
Juror No. 4 explained how she remembered the incident over the weekend: "I was going to Yucca Valley [on] Saturday. And I came by the courthouse, and it just hit me. I don't see this person, and I'm not on the board anymore, and I don't go over there. So— I'm sorry. [¶] . . . [¶] I've been in business 32 years, and that's what I was searching in my mind[,] having only [been] retired for 15, 16 months."
The court then inquired:
"THE COURT: All right. So are you able to separate that from this case?
"[Juror No. 4]: Yes, sir.
"[THE COURT]: And can you base your decision on this case only on the evidence presented in this courtroom and the law that applies and nothing related to what you recall about this prior incident?
"[Juror No. 4]: Yes, sir."
The court then allowed counsel to examine Juror No. 4. The prosecutor asked Juror No. 4 only one question—whether she could keep an open mind in this case in light of the prior incident. Juror No. 4 responded, "I can truly listen to everything that's being said and I can render you a judgment of fairness." Defense counsel likewise asked only one question—whether the funds embezzled from the cemetery were public in nature. Juror No. 4 explained it was cash taken directly from customers.
Outside Juror No. 4's presence, the court and counsel discussed how to proceed:
"[Prosecutor]: . . . [S]he's fine. I don't have any problem.
"[Defense Counsel]: I would have excused her had I known she had some sort of connection to an embezzlement case and she was a board member. And, um, my mom actually was a board member for a cemetery. I know how involved they are with a cemetery, so I would have excused her. I can't believe that—this is an embezzlement case. We told her two or three times. She didn't bother to volunteer—
"THE COURT: I wouldn't phrase it like that, [']she didn't bother.[']
"[Defense Counsel]: She didn't remember.
"THE COURT: Do you have any reason [sic] she lied to us?
"[Defense Counsel]: No, I don't.
"THE COURT: The way you present it is she lied to us. She didn't lie. She said she drove by the court this weekend. It came to her because she's been in business for 20-plus years. So she searched her background thinking embezzlement, and then this weekend. It's not unusual for those type of things to occur.
"[Defense Counsel]: And they do occur, but we were here sitting with this jury two or three days talking about payroll mistakes, talking about the fact that this was an embezzlement case, and I would ask the Court to excuse her. [¶] . . . [¶]
"[Prosecutor]: I think that one of the things that she did mention, too, . . . is that this happened several years ago. It wasn't recent. It doesn't seem like she was trying to hide something from us. She seemed genuinely concerned that she remembered it. So if it took her that long to remember it, obviously it wasn't on her mind at all when she was here. Um, I take her at her word that she wouldn't consider it . . . .
"THE COURT: Um, given that the defense still had peremptory challenges to exercise, I'm not going to excuse her for cause, but I would take her at her word she would have excused her because of that background, so I will excuse her at this point."
The bailiff then informed the court that Juror No. 5's mother-in-law had been hospitalized over the weekend, and Juror No. 5 needed to drive her husband to the hospital in Camarillo. The court then reminded counsel that Juror No. 3 had a prepaid vacation set to begin in a few days. In light of these developments, the trial court reversed its ruling regarding Juror No. 4, explaining:
"Well, with this new information, I'm not relieving Juror No. 4. We're keeping her. I'm letting Juror No. 5 go, so I'm redoing that order. As I said, there is nothing about cause that would exclude her from being a fair juror in the case. And given that we now may lose another juror, Juror No. 3, if this case is not done. So that order is now changed, given this change of circumstances."
After trial, Buttinelli moved for a new trial on several grounds, including that she "was denied a fair and impartial trial because she did not have an impartial jury." The trial court denied the motion, explaining there was no good cause to remove Juror No. 4:
"Juror No. 4 stated, in no uncertain terms, that she would remain neutral and provide fairness to both sides and not be affected by the previously unmentioned embezzlement. This court was struck by her candor and the fact that the previous incident hadn't even registered with her during the voir dire process leaving this court with the strong impression that it would have no impact on her decision as a juror in this case. The motion based on the lack of fair and impartial jury is denied."
Buttinelli does not challenge the trial court's ruling denying her new trial motion.
B. Relevant Legal Principles
"A criminal defendant has a constitutional right to an impartial jury . . . ." (People v. Wilson (2008) 44 Cal.4th 758, 822 (Wilson); see U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 16.) The "pretrial voir dire process is important because it enables the trial court and the parties to determine whether a prospective juror is unbiased and both can and will follow the law." (Wilson, at p. 822.) Voir dire protects a criminal defendant's right to a fair trial " 'by exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to questions on voir dire may result in a juror's being excused for cause; hints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges.' " (In re Hitchings (1993) 6 Cal.4th 97, 110-111 (Hitchings).)
If a prospective juror's demonstrated or suspected bias becomes apparent during the jury selection process—that is, before the jury is sworn—a party may challenge the prospective juror for cause or by peremptory challenge. (See Hitchings, supra, 6 Cal.4th at pp. 110-111; Code Civ. Proc., § 225, subd. (b)(1), (2) [challenges to prospective jurors are "for cause" or "peremptory"]; Code Civ. Proc., § 226, subd. (a) ["A challenge to an individual juror may only be made before the jury is sworn."].) However, "[o]nce a jury has been sworn, the court lacks authority to reopen jury selection proceedings." (People v. Cottle (2006) 39 Cal.4th 246, 258 (Cottle); see Code Civ. Proc., § 226, subd. (a).) Thus, if a juror's demonstrated or suspected bias becomes apparent only after the jury selection process, the trial court lacks the authority to allow a party to remove the juror via an unused peremptory challenge. (Cottle, at p. 258; Code Civ. Proc., § 226, subd. (a).)
But this "does not leave the court without recourse should a juror become unable to serve" due to the subsequent discovery that he or she concealed information during voir dire. (Cottle, supra, 39 Cal.4th at p. 259.) An aggrieved party may seek to remove such a juror upon a showing of good cause under Penal Code section 1089. (Cottle, supra, 39 Cal.4th at p. 259.) The standard for determining whether good cause exists to remove a juror who concealed information during voir dire turns on whether the concealment was intentional or unintentional. (Wilson, supra, 44 Cal.4th at p. 823.) " 'Although intentional concealment of material information by a potential juror may constitute implied bias justifying his or her disqualification or removal [citations], mere inadvertent or unintentional failures to disclose are not accorded the same effect. "[T]he proper test to be applied to unintentional 'concealment' is whether the juror is sufficiently biased to constitute good cause for the court to find under Penal Code sections 1089 and [former] 1123 that he is unable to perform his duty." ' " (Ibid.)
Penal Code section 1089 provides in part: "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."
" 'Whether a failure to disclose is intentional or unintentional and whether a juror is biased in this regard are matters within the discretion of the trial court. Except where bias is clearly apparent from the record, the trial judge is in the best position to assess the state of mind of a juror or potential juror on voir dire examination.' " (People v. San Nicolas (2004) 34 Cal.4th 614, 644 (San Nicolas).) " 'Before an appellate court will find error in failing to excuse a seated juror, the juror's inability to perform a juror's functions must be shown by the record to be a "demonstrable reality." The court will not presume bias, and will uphold the trial court's exercise of discretion on whether a seated juror should be discharged for good cause under section 1089 if supported by substantial evidence.' " (People v. Jablonski (2006) 37 Cal.4th 774, 807.)
C. Analysis
We find no error in the trial court's refusal to allow Buttinelli to remove Juror No. 4 via an unused peremptory challenge. Although not cited by either party, statutory law and California Supreme Court precedent directly address this issue. Code of Civil Procedure section 226, subdivision (a) states: "A challenge to an individual juror may only be made before the jury is sworn." (Italics added.) Construing this provision, the California Supreme Court held a trial court lacked the authority to allow a party to use a peremptory challenge during an ambiguous period—after the trial jurors were sworn, but before the alternates had been selected. (Cottle, supra, 39 Cal.4th at p. 258.)
Here, no such ambiguity was at issue. By the time Juror No. 4 disclosed the cemetery embezzlement incident (on September 19), the trial and alternate jurors had already been sworn and preinstructed (on September 14), and they had heard opening statements and the testimony of two witnesses. Thus, the trial court lacked authority to reopen jury selection to allow Buttinelli to exercise an unused peremptory challenge. (Cottle, supra, 39 Cal.4th at p. 258; see Code Civ. Proc., § 226, subd. (a).) Instead, the trial court could only remove Juror No. 4 upon a showing of good cause. (Cottle, supra, 39 Cal.4th at p. 258.)
Buttinelli maintains the Attorney General is estopped from relying on this "technical argument" on appeal because the prosecutor did not raise it in the trial court. However, as the appellant, Buttinelli bears the burden of showing the trial court erred. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) She has not done so. Indeed, to the contrary, the trial court would have erred had it allowed Buttinelli to belatedly exercise a peremptory challenge. (Cottle, supra, 39 Cal.4th at p. 258.)
We likewise find no error in the trial court's finding that there was no good cause to remove Juror No. 4. As a threshold matter, the record does not show that Juror No. 4 actually concealed any information. That is, neither the court nor counsel asked any direct, unambiguous question to which Juror No. 4's experience on the cemetery board would necessarily have been responsive. (See Wilson, supra, 44 Cal.4th at p. 824 [juror "did not conceal his views on the subject because he was never asked about them."].) Although the trial court asked the venire "whether you [or] someone in your family has ever . . . been the victim of a crime" (italics added), Juror No. 4 was not, strictly speaking, the victim of any embezzlement—the cemetery was. And although defense counsel asked as a catch-all whether anyone felt they "cannot sit on this jury" due to "some reason we have not heard about today," Juror No. 4's unequivocal assurances to the court that she could fairly perform her duties indicates she did not believe she could not sit on this jury.
In any event, even if Juror No. 4 "concealed" the cemetery embezzlement incident, we conclude the trial court did not abuse its discretion in finding that the concealment was unintentional and did not support a finding of good cause to remove her. Juror No. 4 explained that the incident did not occur to her during voir dire because (1) she was evaluating the questions from the perspective of having recently retired from a 32-year career as a business owner (a claim that is substantiated by the fact she disclosed this business had been burglarized); (2) the incident occurred six or seven years earlier; (3) her only involvement in the incident was being notified as a board member—she did not participate in any investigation; (4) she is no longer on the cemetery board; (5) she does not "go over there" (i.e., to the cemetery); and (6) she does not "see this person" (i.e., the embezzling secretary). Once Juror No. 4 recalled the incident over the weekend, she notified the court first thing Monday morning. The trial court found "[i]t's not unusual for those type of things to occur," and defense counsel even conceded she had no reason to believe Juror No. 4 had lied—that is, intentionally concealed information—during voir dire.
Further dispelling any concerns of bias, Juror No. 4 repeatedly and unequivocally assured the trial court she would fairly perform her duties as a juror in this case notwithstanding the prior cemetery embezzlement incident. The court explained (in denying Buttinelli's new trial motion) it "was struck by [Juror No. 4's] candor" in this regard, "leaving [the trial] court with the strong impression that it would have no impact on her decision as a juror in this case." The trial court was in the best position to make this determination. (See San Nicolas, supra, 34 Cal.4th at p. 644.)
Buttinelli has not shown as a demonstrable reality that Juror No. 4 was unable to fairly fulfill her obligations as a juror due to any bias resulting from the cemetery embezzlement incident.
Buttinelli's heavy reliance on People v. Romero (2017) 14 Cal.App.5th 774 is misplaced. In a case that hinged on the victim's eyewitness identification testimony, the Court of Appeal found the trial court had abused its discretion by refusing to remove a juror who revealed during trial that she had been the victim's high school teacher three years earlier, and had "positive[]" memories of the "good student." (Id. at pp. 779-780, 783.) The appellate court reasoned that the juror's positive memories indicated a deep, "relatively sustained" teacher/student relationship that was not sufficiently overcome by the juror's equivocal assurances that she thought she could still be fair to both sides. (Id. at pp. 779, 782-783.)
By contrast, the record here reveals no deep, relatively sustained connection between Juror No. 4 and the cemetery embezzlement incident. The incident had occurred years earlier; Juror No. 4 had been notified of it, but was not involved in the investigation into it; she was uncertain what came of the perpetrator's criminal charges; and Juror No. 4 no longer served on the cemetery board at the time of trial. Moreover, unlike the Romero juror who only thought she could be fair, Juror No. 4 unequivocally assured the court she would be fair.
The other cases Buttinelli cites fare no better. They are distinguishable on their facts (e.g., because the trial courts found that a juror intentionally concealed information), or their procedure (e.g., because the trial courts made no finding regarding a juror's intent).
For example, United States v. Parse (2d Cir. 2015) 789 F.3d 83 involved " 'exceptional circumstances' " in which a juror admitted telling " 'deliberate lies engineered to create a fictitious, "marketable" juror . . . .' " (Id. at p. 101.) In Hitchings, supra, 6 Cal.4th at p. 119, the Supreme Court observed: "the referee found—and our independent review of the evidence confirms—that [the subject juror] intentionally concealed her knowledge of the case." And in People v. Blackwell (1987) 191 Cal.App.3d 925, 930-931, the court concluded from the clarity of voir dire questions "that the only inference or finding which can be supported is that Juror R. was aware of the information sought and deliberately concealed it by giving false answers. In fact, she could be prosecuted for perjury."
For example, in Poth v. United States (D.C. 2016) 150 A.3d 784, 790, the appellate court reversed and remanded for further proceedings because the "trial court's denial of [a hearing regarding alleged juror misconduct] on the ground that [defendant]'s counsel had failed to exercise due diligence was an error of law." In People v. Diaz (1984) 152 Cal.App.3d 926, 934, our court found that even unintentional concealment created a presumption of prejudice, a view subsequently rejected by the California Supreme Court. (See Wilson, supra, 44 Cal.4th at p. 823.) --------
DISPOSITION
The judgment is affirmed.
HALLER, Acting P. J. WE CONCUR: DATO, J. GUERRERO, J.