Opinion
C056037
10-29-2008
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND ESPINOZA, Defendant and Appellant.
Not to be Published
Defendant Raymond Espinoza robbed two Sacramento grocery stores at gunpoint: Your Family Grocery and Fast Stop Food Store. Defendant was tried by jury and found guilty on two counts of second degree robbery, two counts of assault with a firearm, and one count of attempted robbery. The jury also found that defendant personally used a firearm during the commission of these offenses. The trial court sentenced defendant to 17 years and four months in state prison.
Defendants sole contention on appeal is that the trial court abused its discretion by declining to remove a juror for cause after the juror informed the court that he was casually acquainted with two of the prosecutions witnesses, both employees of Your Family Grocery. As will be explained more fully below, defendant is incorrect. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Robbery of Your Family Grocery
On the morning of February 25, 2006, defendant and another man entered Your Family Grocery on 14th Avenue in Sacramento. The men were wearing black hooded sweatshirts with the hoods over their heads. Jamie Day, the morning cashier, was behind the counter. The men grabbed a roll of paper towels and went to the register as if to pay. As Jamie rang up the sale, defendant pulled a nine-millimeter handgun and demanded: "give me all your money." Jamie opened the register, pulled out the drawer, and placed it on the counter. Defendants accomplice took the money.
Jack Lee, the store manager, was also behind the counter, attempting to repair another cash register. After the men secured the money from Jamie, defendant turned the gun on Jack and demanded that he open up his register. Jack was unable to open the broken register, and the men left without its contents.
As soon as the men left the store, Jamie yelled that they had been robbed and that the robbers were heading around the back of the store. She also dialed 911 and reported the robbery to police. Sam Day, the butcher, heard Jamies cry and went out the back door where he saw a yellow Volvo with three occupants drive away. Two of the occupants were wearing black hooded coats. Sam was able to write down a partial license plate. In all, the robbers escaped with roughly $300 in cash and 10 books of stamps.
Robbery of Fast Stop Food Store
On the afternoon of March 11, 2006, William Omspach was working as a cashier at Fast Stop Food Store on 46th Street in Sacramento. From his position at the cash register, he noticed a beige or tan Volvo slowly drive by the store. Shortly thereafter, defendant and another man entered the store wearing dark hooded sweatshirts with the hoods over their heads. Defendants accomplice placed a bag of pistachios on the counter. As William rang up the sale, defendant pulled a handgun and demanded the money from the register. William complied. After the robbers fled the store, William dialed 911 to report the robbery to police and watched as defendant and his accomplice got into the same tan Volvo William saw minutes before the robbery. This heist yielded defendant and his accomplice roughly $100 in cash and several cartons of cigarettes.
Scott Burton was driving by Fast Stop Food Store as the robbers fled to the Volvo. Their haste aroused his suspicion. Scott followed the Volvo for a few blocks, wrote down the license plate number, and called police to report a possible robbery. Less than an hour later, Scott drove by the Fast Stop again, saw a police vehicle in the parking lot, and stopped to give a statement to police. The license plate number Scott provided matched a 1983 Volvo sedan registered to defendant.
Defendant was arrested and subsequently charged and convicted of several crimes relating to the two robberies. As to the robbery of Your Family Grocery, defendant was charged and convicted of second degree robbery (Pen. Code, § 211), attempted robbery (§§ 211/664), and two counts of assault with a firearm (§ 245, subd. (a)(2)). As to the robbery of Fast Stop Food Store, defendant was charged and convicted of second degree robbery (§ 211). The information also charged, and the jury found true, that defendant personally used a firearm during the commission of these crimes. The trial court sentenced defendant to 17 years and four months in state prison (midterm of three years on the first robbery count plus 10 years for the firearm enhancement, and a consecutive term of one year (one-third the midterm of three years) on the second robbery count plus three years and four months for the firearm enhancement). The court also imposed various fines and fees and awarded defendant a total of 517 days of presentence custody credit.
Defendant was also charged with second degree robbery and assault with a firearm in connection with a third robbery at Juice It Up on 19th Street in Sacramento. Defendant was acquitted of these charges.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendants sentence on the first assault with a firearm count (midterm of three years) was stayed by the court. The court also stayed defendants sentence (midterm of two years) on the attempted robbery count. Defendants sentence on the second assault with a firearm count (midterm of three years plus four years for the firearm enhancement) was ordered to run concurrent with his sentence on the first robbery count.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends that the trial court abused its discretion by denying his request to remove Juror No. 10 for cause. Defendant claims that this denial deprived him of his right to a fair trial by an impartial jury under the state and federal Constitutions. We disagree.
Additional Background Information
During voir dire, Juror No. 10 disclosed that he worked at Your Family Grocery when he was in high school, that he grew up in the neighborhood and shopped there frequently prior to graduating from high school, that he knew the previous owners and employees of the store, and that he had shopped there as recently as two to three weeks prior to voir dire. He also informed the court that the store had changed ownership since he worked there, and that he was not familiar with the current owners or employees.
Defendant challenged Juror No. 10 for cause, arguing that the juror would be unable to separate his memories of working at the store from the testimony adduced during trial and that he might in fact know some of the stores current employees. The court denied the challenge for cause, finding that Juror No. 10 was "very direct" and that his prior history with Your Family Grocery would not "[a]ffect his ability to analyze the facts."
At the beginning of the trial, before any witnesses had taken the stand, Juror No. 10 notified a court attendant that he recognized some of the witnesses he believed would be testifying in the trial. The court questioned the juror concerning the new development. Juror No. 10 first explained that he had recognized "Sam" and "the Asian gentleman" from Your Family Grocery. The court then asked whether the juror would "have a tendency to believe or disbelieve their testimony" because of his prior knowledge of these people. Juror No. 10 responded: "My only knowledge of them is being at the store. I know one is a produce clerk, and one is a butcher, but I dont know any personal information about them of anything that would cause me to be of any bias." He then assured the court that nothing about his knowledge of these witnesses would cause him to feel any sort of sympathy or bias concerning their testimony, and that his prior knowledge would not affect his evaluation of their testimony at trial. The juror also explained that while he worked at the store for less than a month during high school, the butcher did not work there at that time and the Asian gentleman worked different hours.
Defendant again requested that Juror No. 10 be removed for cause. The court again denied the request: "I guess Im looking at it from the viewpoint of cause, in that he had a part time job in high school, just about six years ago. So it doesnt appear that hes a party or related to the party or anything along those lines. And, you know, . . . Juror Number Ten is pretty straight forward, and I do believe that he can isolate his knowledge of this incident."
On appeal, defendant does not challenge the trial courts first ruling denying his challenge for cause. His sole contention on appeal involves the trial courts second ruling denying defendants renewed request to remove Juror No. 10 for cause.
Nor would such a challenge be preserved for appellate review, as defendant did not exercise a peremptory challenge to remove Juror No. 10, nor does the record reveal that defendant exhausted all of his peremptory challenges and expressed dissatisfaction with the jury as finally empanelled. (People v. Bonilla (2007) 41 Cal.4th 313, 339; People v. Ramirez (2006) 39 Cal.4th 398, 448.)
Analysis
Section 1089 of the Penal Code provides for the discharge of a juror "before or after the final submission of the case to the jury" if upon "good cause shown to the court" the juror "is found to be unable to perform his or her duty . . . ." (§ 1089.) "The courts decision whether to discharge a juror under section 1089 is reviewed for abuse of discretion. [Citations.] The jurors inability to perform must appear as a `demonstrable reality and will not be presumed. [Citations.]" (People v. Lucas (1995) 12 Cal.4th 415, 489; People v. Cleveland (2001) 25 Cal.4th 466, 474.) Moreover, we will uphold the trial courts determination as to the ability of a juror to perform his or her duty if there is any substantial evidence supporting that determination. (People v. Beeler (1995) 9 Cal.4th 953, 975.)
Applying these well established rules, we find no abuse of discretion. The record does not reveal as a demonstrable reality that Juror No. 10 was so contaminated by his prior history with Your Family Grocery as to be unable to perform his duty as an impartial juror in this case. Juror No. 10 testified that his only knowledge of "Sam" and "the Asian gentleman" was that they both worked at the store. While he previously worked with Jack Lee, this working relationship lasted less than a month, terminating roughly six years prior to his jury service. Moreover, Juror No. 10 testified that the two men worked different hours. Based upon the testimony of Juror No. 10, he and Jack Lee and Sam Day were at best casual acquaintances, and by no means close personal friends. Indeed, the fact that he referred to Jack Lee as "the Asian gentleman" during his testimony reveals the casual nature of the relationship between these men.
Given the casual nature of the relationship between Juror No. 10 and the prosecutions witnesses, it was not an abuse of discretion for the court to conclude that he could separate his memories of Your Family Grocery and its employees, and impartially find the facts relating to this case. (See People v. McPeters (1992) 2 Cal.4th 1148, 1174, 1176 (McPeters ), abrogated by statute on another point as recognized in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107 [upholding retention of juror who was acquainted with and "thought highly of" one of the witnesses, the husband of the murder victim; husband was the real estate agent for the seller of a house juror was buying]; People v. Ray (1996) 13 Cal.4th 313, 344 [no evidence of juror bias where juror worked at the high school attended by the victims daughter; that the juror brought the connection to the courts attention suggested that his failure to disclose earlier was inadvertent and that he harbored no bias against the defendant].)
Moreover, Juror No. 10 assured the court that his knowledge of Jack Lee and Sam Day would not affect his evaluation of their testimony at trial. The trial court found Juror No. 10s assurance to be credible. Nor is there any indication in the record that Juror No. 10s "familiarity with the store itself . . . subverted the fact-finding process." During voir dire, in response to the courts admonition that he must rely solely on the testimony presented at trial concerning the layout of the store, Juror No. 10 stated: "It has changed a lot since when I was in high school." Juror No. 10 further assured the court that he understood the admonition. The court also found this assurance to be credible. "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." (McPeters, supra, 2 Cal.4th at p. 1175; Eaton v. Southern Pac. Co. (1913) 22 Cal.App. 461, 471-472 [juror testified that he was familiar with defendants tracks and regarded the railroad crossing at issue as unsafe when defendants yard was filled with cars; retention of the juror upheld because juror assured the court that his familiarity with the tracks would not influence his ability to find the facts based on the evidence adduced at trial].)
Defendants reliance on Turner v. Louisiana (1965) 379 U.S. 466 (Turner), and People v. Tidwell (1970) 3 Cal.3d 62 (Tidwell), is misplaced.
In Turner, the United States Supreme Court held that defendants right to a fair trial by an impartial jury was violated where two of the prosecutions witnesses, sheriffs placed in charge of sequestering the jury, were given the opportunity to "renew old friendships and make new acquaintances among the members of the jury" throughout the three days of deliberations. (Turner, supra, 379 U.S. at p. 473 , fn. omitted.) There, a personal relationship developed between these witnesses and the jury as the sheriffs drove them to a restaurant for each meal, ate with them, conversed with them, and drove them to their lodgings each night. (Id. at p. 468 [at p. 426].) Here, the record reveals no such relationship between Juror No. 10 and any of the prosecutions witnesses. Nor is there any evidence that Juror No. 10 spoke with any of the witnesses during trial. At most, the record reveals what began as a fleeting relationship of employer and employee, and quickly became a casual relationship of grocery clerk and patron.
In Tidwell, our Supreme Court held that the trial court prejudicially erred in denying defendants motion for change of venue where defendant, a stranger to the area, was tried in rural Lassen County for the highly-publicized murder of two prominent members of the community. (Tidwell, supra, 3 Cal.3d at pp. 64-68.) There, many of the jurors personally knew several of the prosecutions witnesses. Three jurors personally knew the county sheriff, one of the prosecutions witnesses who testified as to the murder investigation. One of the jurors described the sheriff to be a "lifetime friend." Two other jurors trusted another prosecution witness enough to rely upon his medical services. (Id. at pp. 67, 73-74.) As the court explained, "the fact that jurors have known witnesses as old friends infects the whole process of guilt adjudication." (Id. at p. 74.) Here, again, there is no evidence of an old friendship between Juror No. 10 and any of the prosecutions witnesses. Being casually acquainted with a store clerk and a butcher at the local grocery store is not the sort of relationship that infects the process of guilt adjudication.
Substantial evidence supports the trial courts determination that Juror No. 10 possessed the ability to perform his duties as an impartial juror in this case. Consequently, we find no abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur:
SCOTLAND, P. J.
BUTZ, J.