Opinion
B145238.
7-29-2003
THE PEOPLE, Plaintiff and Respondent, v. MANUEL HERNANDEZ, Defendant and Appellant.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Richard T. Breen, Deputy Attorneys General, for Plaintiff and Respondent.
Manuel Hernandez appealed from his conviction on 22 counts of sexual abuse of a child and related charges for which he received a sentence of more than 43 years. In his appeal, he raised the issues of whether the trial courts removal and replacement of a single juror from the panel was without good cause and, if so, whether double jeopardy barred retrial. In our prior opinion and order (People v. Hernandez (Feb. 6, 2002, B145238), review granted May 15, 2002, S105271), we answered both questions in the affirmative, and reversed the judgment without remanding for a new trial. Review was sought before the Supreme Court. In People v. Hernandez (2003) 30 Cal. 4th 1, the court held that removal of a juror without good cause and substitution of an alternate did not create a double jeopardy bar to retrial where the defendant sought reversal of his conviction. The matter was remanded to this court for further proceedings. In accordance with the Supreme Courts decision, we reverse and remand for a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts were set forth in our previous opinion. The victim, a minor, testified that appellant had committed various lewd and lascivious acts and sexual crimes from the time when she was nine or 10 and in the third grade through November 2, 1999.
Appellant was charged and ultimately convicted under Penal Code sections 288, subdivisions (a) and (c)(1), 288a, subdivision (b)(2), and 289, subdivision (i).
Appellant was interviewed by Hawthorne Police Detective Joel Romero. During the videotaped interview, appellant admitted that for about a year he had engaged in sexual activity with the victim but denied that any of the incidents involved penetration or oral copulation, which he contended was totally taboo in his culture.
At trial, testifying on his own behalf, appellant denied having any sexual relations with the victim, and reiterated his denial of penetration and oral copulation. In his testimony, appellant recalled that during the police interview, he repeatedly denied having sexual relations with the victim and did not make any admissions about her. He also presented a defense of lack of opportunity through two additional witnesses — his former employer and his brother, Wilfredo Hernandez, who had lived with the family during part of the relevant timeframe.
Interview of Juror No. 8
Near the end of the trial, just prior to the cross-examination of appellant, Juror No. 8 informed the court that she "needed help to clarify [her] mind," because "over the last two days a couple of things [had] dropped [her] respect with this system . . . ." She said she was bothered by the tone of the prosecutors cross-examination of a defense witness and her perception that during the testimony, both the prosecutor and the judge were smirking or making faces. She also expressed concern that much of Detective Romeros testimony was "so much based on truths [sic]," not knowing whether that was "just normal" or whether there was going to be "any direction [from the court] as to how to consider that." She was clear that she "really wanted to finish this service" and that it was "important to [her] personally and also for the sake of the case." The reason for requesting the conference was "to clear [her] mind."
As will be seen, the juror was referring to untruths apparently told to the appellant during the police interview.
The following colloquy ensued:
"THE COURT: I dont know what you mean by clearing your mind.
"JUROR NUMBER 8: Well, those two situations that I just explained are making it difficult for me to remain open-minded.
"THE COURT: If youre not feeling open-minded, what are you feeling?
"JUROR NUMBER 8: I just need some I guess response from about whether this is common practice or — [P] . . . [P]
"[PROSECUTOR]: May I ask — you suggested that because I used an aggressive voice in questioning, that you dont think thats appropriate?
"JUROR NUMBER 8: Yeah. . . . Ive been listening to Detective Romero for two days. I feel that the defense witnesses deserve all respect. I felt like there were judgments. Their [sic] facial expressions and your tone. I mean I saw you smirking during [the testimony of] Wilfredo [Hernandez]
"THE COURT: On my face?
"JUROR NUMBER 8: During Wilfredos testimony.
"THE COURT: You are grossly mistaken. I remain expressionless up there and purposely try to remain as blank-faced as possible. And when Wilfredo was testifying, I observed him; I took notes of his testimony and personally did not disclose any facial expressions. I think its inappropriate for a judge to exhibit either verbal or physical expressions during the course of a trial. I would parenthetically point out that I dont believe that [appellants attorney] made any [facial expressions]."
We presume the court meant the prosecuting attorney.
The court allowed the prosecutor to question the juror. The prosecutor asked: "You just dont think you could be fair at this point because of my approach on cross-examination?" The juror denied that she would be unfair: "I still feel I could be fair. Im committed to being fair. But I was thinking last night and this morning I wanted to write a letter to you after the case was finished and share my observations and how I was disappointed in certain aspects. And I thought, well, wait a minute. Rather than writing a letter, why dont you share what youre thinking?"
The court inquired further about Juror No. 8s perception of Detective Romeros testimony, and clarified that the jurors concern was not that he had lied in his testimony, but that he had been untruthful during appellants interrogation. The court also asked the juror, "What about the other counsels manner of questioning caused you concern?" The juror explained: "There is no concern about the manner of questioning, other than the tone that happened yesterday during Wilfredos testimony. Theres no concern about the manner of questioning other than that."
The following exchange took place:
"THE COURT: You believe Detective Romero has lied in his testimony; is that correct?
"JUROR NUMBER 8: No. I was saying that so much of his testimony was that he was untruthful during the interrogation; that I have difficulty differentiating between that kind of violence and other violence.
"THE COURT: Im sorry. What do you mean violence?
"JUROR NUMBER 8: I dont know if thats normal practice, procedure.
"THE COURT: To confront a defendant with false evidence; is that correct?
"JUROR NUMBER 8: Yes. During an interrogation and if youre going to advise the jury about that. I didnt know. It caused me to be very disappointed in the way our country operates. I thought that kind of thing only happened in third-world countries."
After the prosecutor indicated she had no more questions, appellants attorney asked: "Have you formed any opinion as to the outcome of this case?" Juror No. 8 said, "No." Appellants attorney further inquired: "And have you formed an opinion — let me put it this way: could you be open-minded if you were to hear all the rest of the testimony?" Juror No. 8 responded: "Yes."
Trial Courts Findings and Ruling
After this exchange, the court directed Juror No. 8 to return to the deliberation room, and made the comment, "I dont think she can give a fair trial to the People. I dont think she should be kept on the jury." The prosecutor agreed, noting the following personal observations "for the record": "The juror is extremely depressed in body language. Her lower lip was quivering. Shes almost frantic." The prosecutor expressed the opinion that the upcoming cross-examination of appellant in which the prosecutor intended to "be more aggressive" would "pull her over the edge for sure." She professed to be concerned for Juror No. 8s "safety" and "psychological health" in seeking the jurors discharge.
The court also expressed concern about Juror No. 8s emotional state. The court portrayed Juror No. 8s demeanor as "very tortured," and noted that she clenched and unclenched her fists and tightly closed her eyes during the interview. The court described the prosecutors earlier cross-examinations as "on the mild side," "professional," and not subjected to argumentative or badgering objections. The court was not concerned that the jurors view of the courts attitude would have "any effect on her ability to be fair," but thought it might be "a reflection of her psychological state where she was reading some expressions that I had." The court denied having made facial expressions and expressed "surprise[] that she would make such a statement" or "draw that inference." The court was also troubled that the juror had described the use of false evidence in questioning appellant as "violence," expressing the opinion that that choice of words was "somewhat irrational." Because of this the court did not believe the juror could "give a fair trial to the People."
Appellants attorney noted that the prosecutor had suggested during cross-examination that Wilfredo was "bumming" off his relatives. The record reflects the court sustained an argumentative objection to the question, and the prosecutor apologized, saying she had "slipped."
Appellants attorney stated he "would describe [Juror No. 8s] behavior as concerned." He stressed that Juror No. 8 "stated she could be fair," and therefore would "oppose a challenge for cause."
The court did not disagree with counsels assessment. Nevertheless, the court concluded "the totality of the circumstances," including the jurors "words" and "body language that she made with her hands" led the court to believe that the jurors ability to do her job and "remain an impartial juror without leaning towards one side or the other" had been "substantially impaired." The court then invited a "challenge for cause" on the part of the prosecution, and promptly granted the request.
Although the court and counsel referred to "challenge for cause," since the time for challenge was long past (see Code Civ. Proc., §§ 225, 226), we presume the intention was to invoke Penal Code section 1089 (hereafter section 1089) which, as will be discussed in greater detail, permits discharge of a juror for good cause after he or she has been empaneled and sworn. (See also Code Civ. Proc., § 233.)
The court next recalled Juror No. 8 and inquired whether she had expressed her concerns to any other juror or if any other juror had expressed any opinion about the case to her. She responded in the negative. The court told her she was excused. Juror No. 8 responded, "Im real disappointed. If I thought that was going to be the result, I probably would have chosen to write a letter after the case instead."
After removing Juror No. 8, the court designated an alternate juror to take her place. The court then inquired of each of the 12 jurors and the remaining alternate separately and apart from the other jurors whether he or she had observed anything during trial or if anything had happened since the onset of trial which affected that jurors impartiality. Each juror responded in the negative. The court stated, "It appears the former juror number 8s views were hers and hers alone. And based on the response of the twelve jurors and now one alternate further confirms in my mind that at least the gestures she observed on my part were imagined. Im also mindful of the fact that none of the other jurors expressed any concern or difficulty with the manner of the questioning by either counsel.
"The court concluded, "It appears to me that this jury remains a fair and impartial jury."
DISCUSSION
I
"A trial courts authority to discharge a juror is granted by Penal Code section 1089, which provides in pertinent 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 duty, or if a juror requests a discharge and good cause appears therefor, the court may order him to be discharged and draw the name of an alternate, who shall then take his place in the jury box, and be subject to the same rules and regulations as though he had been selected as one of the original jurors." (People v. Williams (2001) 25 Cal.4th 441, 447-448, fn. omitted, italics omitted.)
Appellate courts "review for abuse of discretion the trial courts determination to discharge a juror and order an alternate to serve. [Citation.] If there is any substantial evidence supporting the trial courts ruling, we will uphold it. [Citation.]" (People v. Marshall (1996) 13 Cal.4th 799, 843, 919 P.2d 1280; accord, People v. Williams, supra, 25 Cal.4th at p. 448; People v. Cleveland (2001) 25 Cal.4th 466, 474.) However, "before a juror may be dismissed for losing, during trial, the ability to render a fair and unbiased verdict, the jurors inability to perform his functions must appear as a demonstrable reality." (People v. Williams (1997) 16 Cal.4th 153, 231, 940 P.2d 710, quoting People v. Van Houten (1980) 113 Cal. App. 3d 280, 288, 170 Cal. Rptr. 189.) "Bias in a juror may not be presumed." (People v. Williams, supra, 16 Cal.4th at p. 232.)
"The most common application of these statutes permits the removal of a juror who becomes physically or emotionally unable to continue to serve as a juror due to illness or other circumstances." (People v. Cleveland, supra, 25 Cal.4th at p. 474; see, e.g., People v. Dell (1991) 232 Cal. App. 3d 248, 253-254, 256, 283 Cal. Rptr. 361 [excusal of juror whom all parties knew was sick during trial following attack of phlebitis, and excusal of juror taken to hospital following automobile accident].) Similarly, inattentiveness is a proper reason to discharge a juror. (See, e.g., People v. Johnson (1993) 6 Cal.4th 1, 21-22, 859 P.2d 673 [juror "exhibiting various physical indicia of sleep"]; People v. Thomas (1994) 26 Cal.App.4th 1328, 1333 [juror inattentive to fellow jurors and court].) Also, "[a] sitting jurors actual bias, which would have supported a challenge for cause, renders him unable to perform his duty and thus subject to discharge . . . ." (People v. Keenan (1988) 46 Cal.3d 478, 532, 250 Cal. Rptr. 550, 758 P.2d 1081; see, e.g., People v. Green (1956) 47 Cal.2d 209, 215-216, 302 P.2d 307, overruled on another ground in People v. Morse (1964) 60 Cal.2d 631, 36 Cal. Rptr. 201, 388 P.2d 33 [juror stated she did not think she could be fair to People]; People v. Feagin (1995) 34 Cal.App.4th 1427, 1437 [juror "prejudged the credibility of the police officers . . . and was unable to cast aside her personal bias in weighing the evidence"].)
On the other hand, ground for discharge does not exist where the juror merely "does not deliberate well" or "relies upon faulty logic or analysis" or "disagrees with the majority . . . as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted . . . ." (People v. Cleveland, supra, 25 Cal.4th at p. 485.) "[A] court must take care in inquiring into the circumstances that give rise to a request that a juror be discharged, . . . lest the sanctity of jury deliberations too readily be undermined." (Id. at p. 484.)
The right to trial by an impartial jury guaranteed by the Sixth Amendment of the United States Constitution is an integral aspect of due process in light of the jurys role as "an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." (Duncan v. Louisiana (1968) 391 U.S. 145, 156, 20 L. Ed. 2d 491, 88 S. Ct. 1444.) Moreover, such right is "no less implicitly guaranteed by the declaration of article I, section 16, of the California Constitution that "Trial by jury is an inviolate right and shall be secured to all."" (Rubio v. Superior Court (1979) 24 Cal.3d 93, 101, 154 Cal. Rptr. 734, 593 P.2d 595.) Because the right to trial by jury is a cornerstone of our system of jurisprudence, it should be zealously guarded by the courts which must resolve any doubt in favor of preserving and furthering such right. (See, e.g., Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 411, 212 Cal. Rptr. 151, 696 P.2d 645; Byram v. Superior Court (1977) 74 Cal. App. 3d 648, 653, 141 Cal. Rptr. 604.)
Mindful of these principles, we conclude that the trial court abused its discretion in removing Juror No. 8 because evidence of her inability to fulfill her duty to conduct herself as an impartial juror does not appear in the record as a demonstrable reality. (People v. Williams, supra, 25 Cal.4th at p. 448.)
The record does not reflect that Juror No. 8 was biased in favor of the defense or prejudiced against the People. Although her statements indicated sympathy for a defense witness and dismay over the practice on the part of law enforcement officials of misleading arrestees in order to extract confessions, the juror repeatedly stated she had not made up her mind about the case and would be open-minded and fair. Her concern about Detective Romeros tactics in confronting appellant during the interview with false statements could have been addressed by an appropriate instruction from the court prior to deliberations. Indeed, the juror noted her expectation that the court was "going to advise the jury about that." Similarly, Juror No. 8s concerns regarding her perception of the judges and the prosecutors facial expressions could have been resolved by a curative instruction to the jury to disregard such matters during deliberations. (See CALJIC No. 17.32 [jury to disregard anything trial judge said or did with respect to its fact finding and credibility of witnesses determinations]; see also People v. Adcox (1988) 47 Cal.3d 207, 253, 253 Cal. Rptr. 55, 763 P.2d 906 [jury presumed to have followed the courts instructions].)
In any event, the trial court acknowledged that the jurors perception that defense witnesses were not well treated and that the detective was untruthful in his interrogation of appellant did not demonstrate an inability to be fair and impartial. The grounds for discharging the juror were the courts concern about her psychological state and mental acuity in view of her "body language," her misuse of the word "violence, "and her perception or misperception of the judges facial expressions.
Although the ultimate decision whether to retain or discharge a juror is subject to the sound discretion of the trial court, that discretion "is bridled to the extent the jurors inability to perform his or her functions must appear in the record as a demonstrable reality, and courts must not presume the worst of a juror." (People v. Bowers (2001) 87 Cal.App.4th 722, 729.) Here, it is undisputed that Juror No. 8 was agitated and upset during questioning, but the record does not support the courts presumption that Juror No. 8s emotional state rendered her unable to carry out her duties as a juror. The court did not ask Juror No. 8 the reason behind her observed agitation which could easily have been due to being isolated from the panel and subjected to questioning by the court and counsel. The record is clear that despite her agitation, Juror No. 8 responded rationally to the questions and expressed an unequivocal desire to remain on the jury, repeatedly indicating that she was able to put aside her concerns and compose herself sufficiently to proceed with the trial.
In fact, as we have seen, she became indignant when the court announced its intent to remove her as a juror and stated that had she known this would be the result of her coming forward, she would have raised her concerns afterwards in a letter rather than during trial.
The trial court also sought to base the discharge on Juror No. 8s misuse of the word "violence" in reference to the interrogation of appellant by Detective Romero. Although the juror, under the stress of the moment, misused the word, the record also does not support an inference that she was either irrational or so ignorant of the English language as to be incapable of understanding and following the courts instructions or communicating with her fellow jurors. Her inaccurate usage suggests a lack of eloquence under pressure but it does not demonstrate lack of a sufficient command of English to apply the courts instructions and to participate meaningfully in deliberations. (See People v. Elam (2001) 91 Cal.App.4th 298, 316 [court held that existence of "some language difficulty is insufficient [ground for discharge of juror]. If, with repeated explanations and discussions, [juror in question] could comprehend matters, then it is immaterial that he had a pronounced accent, his English was not the best and juror communication was not quick and easy"].)
Where a charge of misconduct or inability to perform is made against a juror, the court must conduct "an inquiry sufficient to determine the facts . . . ." (People v. Burgener (1986) 41 Cal.3d 505, 519, 224 Cal. Rptr. 112, 714 P.2d 1251, overruled on another ground in People v. Reyes (1998) 19 Cal.4th 743, 968 P.2d 445.) In People v. Castorena (1996) 47 Cal.App.4th 1051, 1066, this court held that the failure to conduct an adequate inquiry into allegations of juror misconduct was prejudicial where the trial court "did not have the requisite facts upon which to decide whether [the discharged juror] in fact failed to carry out her duty as a juror to deliberate or whether the jurys inability to reach a verdict was due, instead, simply to [the jurors] legitimate disagreement with the other jurors." Similarly, in People v. Delamora (1996) 48 Cal.App.4th 1850, where two jurors were dismissed immediately upon asking for the courts assistance in obtaining pay from their employers for an extra day of service, the court said: "The trial courts determination that good cause exists to discharge a juror must be supported by substantial evidence [citation] and where, as here, there is no evidence at all to show good cause (because no inquiry of any kind was made), the procedure used was by definition inadequate." (Id . at p. 1856.)
The courts inquiry here must likewise be deemed inadequate. The purported bases for the courts removal of Juror No. 8 was concern about her mental acuity, use of language, and emotional ability to continue as a juror. But not a single question was asked of the juror about these topics. Rather than conducting an inquiry to ascertain whether Juror No. 8 was too upset to go on or whether aggressive cross-examination of appellant such as the prosecutor proposed would render her incapable of acting as a fair and impartial juror, the court simply assumed that would be the case due to its reading of her "body language" during the discussion of other subjects. Likewise, instead of attempting to ascertain the limits of the jurors language abilities, the court assumed that misuse of a single word rendered her incapable of performing the functions of a juror. The result of this lack of inquiry was a dearth of objective evidence to support the courts findings. Upholding the discharge of a juror in the middle of trial under these circumstances, where the sole support is the courts and the prosecutors subjective belief that the juror is unable to go on, would place unbridled discretion in the courts hands and compromise a defendants fundamental constitutional right to trial by jury. We conclude that the trial court abused its discretion in discharging the juror.
II
The next issue is whether removal of Juror No. 8 was prejudicial to the defense. On this point, we are bound by a decision of our Supreme Court in a case which is directly analogous to the one before us. In People v. Hamilton (1963) 60 Cal.2d 105, 32 Cal. Rptr. 4, 383 P.2d 412, overruled in part in People v. Morse, supra, 60 Cal.2d 631, a juror, during the penalty phase of the trial in which the defendant had been convicted of first degree murder, asked several questions concerning the circumstances under which a prisoner serving a life sentence could be released. She further revealed that she had attempted to read the entire Penal Code during the trial, but that she would accept the law as explained by the court. The trial court ordered her discharged and replaced by an alternate. The appellate court concluded that the discharge was without good cause: "It cannot be said that because a juror has read a code, become confused thereby, requested the court to explain the law to her, stated that she will accept the explanation as given to her by the court, and will not communicate what she has read to the other jurors, she has shown any inability to perform her duty as a juror." (People v. Hamilton, supra, 60 Cal.2d at p. 127.)
The People cited authority for the proposition that an irregularity in the discharge of a juror and substitution of an alternate was nonprejudicial error. The appellate court disagreed. In one case cited by the People, People v. Howard (1930) 211 Cal. 322, 295 P. 333, disapproved in part in People v. Thomas (1945) 25 Cal.2d 880, 156 P.2d 7, "the discharged juror had expressed a prejudice against two defense witnesses" and thus "the substitution of an alternate in his place was favorable to the defense." (People v. Hamilton, supra, 60 Cal.2d at p. 127.) In the other, People v. Abbott (1956) 47 Cal.2d 362, 303 P.2d 730, "the juror was discharged because he worked in the same office as defendants brother, although he did not know that individual by sight before he was pointed out at the trial" and "there was no showing that the juror would have been more favorable to one side or the other." (Hamilton, at p. 127.) The case before it "presented an entirely different situation." (Ibid.) "Here, the prosecution moved for the substitution of the alternate for [the discharged juror] on the stated ground that she had disclosed her opposition to a verdict imposing the death penalty. Thus, her disqualification could only be beneficial to the prosecution and prejudicial to the defense." (Id. at pp. 127-128.)
The court went on to explain: "While it has been said repeatedly, in the cases cited above, that a defendant is not entitled to be tried by a jury composed of any particular individuals, but only by a jury composed of qualified and impartial jurors, this does not mean that either side is entitled to have removed from the panel any qualified and acting juror who, by some act or remark made during the trial, has given the impression that he favors one side or the other. It is obvious that it would be error to discharge a juror for such a reason, and that, if the record shows (as it does here), that, based on the evidence, that juror was inclined toward one side, the error in removing such a juror would be prejudicial to that side. If it were not, the court could load the jury one way or the other. That is precisely what occurred here. The juror asked, in good faith and in order to be instructed by the court, questions which indicated that (temporarily at least) she was considering the probability of a life sentence. To dismiss her without proper, or any, cause was tantamount to loading the jury with those who might favor the death penalty. Such, obviously, was prejudicial to appellant." (People v. Hamilton, supra, 60 Cal.2d at p. 128.)
The same is true here. Shortly before the close of evidence, Juror No. 8 asked in good faith for an explanation of behavior she thought she had noticed during trial and testimony which caused her to be concerned about police techniques. Her remarks created the impression that she might have been, at least for the moment, sympathetic to the defense. Nevertheless, she stated she had not formed an opinion about the outcome and vowed to keep an open mind. The prosecutor, at the trial courts invitation, immediately sought discharge on less than compelling grounds. The court granted the prosecutions request without adequately exploring whether the jurors emotional state rendered her unfit for duty. Although the court may well have been sincerely motivated by concerns about Juror No. 8s ability to continue to function in her role as a juror, the result was the loss of a juror who seemed inclined to give serious consideration to the testimony of the defense witnesses. "Such, obviously, was prejudicial to appellant." (People v. Hamilton, supra, 60 Cal.2d at p. 128.)
III
The final issue raised is whether substitution of an alternate juror for a member of the panel is tantamount to a mistrial without necessity and precludes retrial due to state and federal constitutional prohibitions on double jeopardy. The Supreme Court held in Hernandez that the seating of a preselected alternate juror does not destroy the unity of the jury panel and that therefore "the substitution of an alternate for a regular juror in an unauthorized manner does not place the defendant twice in jeopardy but is merely an error of law . . . ." (People v. Hernandez, supra, 30 Cal.4th at p. 9, quoting People v. Burns (1948) 84 Cal. App. 2d 18, 32, 189 P.2d 868.) Relying on the general rule that double jeopardy does not bar retrial following reversal of a conviction on appeal based on trial errors other than insufficiency of evidence, the court concluded that appellant is subject to retrial. Accordingly, the case must be remanded for a new trial.
DISPOSITION
The judgment is reversed. The matter is remanded for a new trial.
We concur: VOGEL (C.S.), P.J., EPSTEIN, J.