Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Ct. No. RCR20328, Bryan Foster, Judge.
Chris Truax, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Codrington J.
I
INTRODUCTION
A jury found true a petition filed by the People to extend the commitment of defendant Willie Lee Williams, who had previously been adjudged not guilty by reason of insanity (Pen. Code, § 1026.5). Defendant contends the trial court committed reversible error per se by denying his challenge for cause, of a potential juror who had limited English skills. We disagree and affirm. Defendant forfeited his objection to the juror by not exercising a peremptory challenge against the juror, after denial of his challenge for cause. Defendant also did not express dissatisfaction with the jury as finally empanelled. Furthermore, there was no abuse of discretion in denying defendant’s challenge for cause.
II
FACTUAL AND PROCEDURAL BACKGROUND
Since the sole issue on appeal concerns jury selection, the underlying facts are only briefly summarized as follows. Defendant suffers from schizophrenia antisocial personality disorder and alcohol dependence. His symptoms include fixed delusions of being wealthy and being a prize fighter. He experiences hallucinations, hears voices, and responds to internal stimuli.
In 1991, defendant was convicted of threatening police officers with a screwdriver and knocking his mother to the ground. Defendant was found not guilty by reason of insanity and hospitalized at Patton State Hospital (Patton). In 2008, defendant punched another patient at Patton. Because of his schizophrenia, defendant has difficulty controlling his behavior and remains a substantial danger to others. Defendant has not completed or attempted to complete his recommended therapy plan, and therefore has not made any improvement. Defendant’s expert disagreed with the People’s mental health expert’s opinion that defendant remains dangerous.
During the jury trial on the People’s petition to extend defendant’s commitment, Juror No. 15 responded to voir dire questions regarding her ability to understand English. She told the court “The only thing I am afraid of is the English language, but, you know, I have understand everything.” The court asked her, “You have been able to understand everything so far?” Juror No. 15 responded, “Yes, ” and agreed she would be a fair and impartial juror.
Defense counsel questioned Juror No. 15 further regarding her ability to understand English as follows:
“[Defense Counsel]: What happens when we do what we want instead of following the law? [¶]... I know you are struggling a little bit with the English here.
“[Juror 15]: Yeah, I am trying to get the idea, kind of hard situation.
“[Defense Counsel]: Are you having trouble understanding or?
“[Juror 15]: Some of the things, yeah, I do not understand. So that is why after they keep talking, I am trying to get the whole idea, but still it is kind of hard.
“[Defense Counsel’: Let me ask you this because – and again, I don’t want to insult. That is not my intent. But you are going to hear a lot of testimony from doctors, going to be three doctors testifying, one social worker, and going to be a lot of complex medical terms. And it is all going to be in English.
“[Juror 15]: Uh-huh.
“[Defense Counsel]: Is that going to be difficult for you?
“[Juror 15]: Yes, it is. Like you are saying, trying to be fair and if you don’t understand something or misunderstand something, at that point it would be hard to be fair.
“[Defense Counsel]: Difficult for you to follow along?
“[Juror 15]: Yes.”
After questioning the 18 prospective jurors, defense counsel moved to excuse Juror No. 15 for cause based on her difficulty understanding English. The court denied the challenge for cause, explaining:
“There was a challenge for cause by the defense as to [Juror No. 15], who is currently seated in seat number 6, based on her statement that she felt that it is hard on occasion to understand English, that English was not her first language, that she was more conversant in Spanish. That was denied.
“The basis of the denial was [Juror No. 15] seemed to be able to answer the questions, did not seem to have difficulty in interacting with the Court during questioning or with counsel. She didn’t seem to be stumbling over any of the concepts counsel went over. I felt that – And I also indicated to her that if during the trial she had any difficulty, she could signal the Court and we would attempt to alleviate any problem that she had.”
At this point, defendant had not exhausted his peremptory challenges. Defendant had exercised only three peremptory challenges against three other prospective jurors. He still had additional peremptories remaining. Nevertheless, defendant did not use a peremptory challenge to remove Juror No. 15. Voir dire continued and defense counsel used three more peremptory challenges to excuse other prospective jurors. Counsel then accepted the jury as finally constituted and did not express any dissatisfaction with the final jury.
After hearing evidence, the jury found the People’s petition to extend defendant’s commitment true. Defendant appeals the judgment extending his commitment.
III
DENIAL OF CHALLENGE FOR CAUSE
Defendant argues that the trial court erred in denying his challenge for cause to Juror No. 15. “[A] defendant challenging on appeal the denial of a challenge for cause must fulfill a trio of procedural requirements: (1) the defense must exercise a peremptory challenge to remove the juror in question; (2) the defense must exhaust all available peremptory challenges; and (3) the defense must express dissatisfaction with the jury as finally constituted.” (People v. Weaver (2001) 26 Cal.4th 876, 910-911 (Weaver).)
Defendant forfeited this error by not fulfilling the first and third requirements. Although defendant challenged for cause Juror No. 15, defendant did not exercise a peremptory challenge to remove the juror after the trial court denied his challenge for cause. In addition, after defendant used all of his peremptory challenges, he did not “express dissatisfaction with the jury as finally constituted.” (Weaver, supra, 26 Cal.4th at p. 911.) Under these circumstances, defendant has not shown that an incompetent juror was forced upon him. (People v. Baldwin (2010) 189 Cal.App.4th 991, 1002.)
Citing People v. Szymanski (2003) 109 Cal.App.4th 1126, defendant argues that he exhausted his peremptory challenges and demonstrated he was dissatisfied with the jury by challenging Juror No. 15 for cause. Szymanski is distinguishable in that, here, defendant could have eliminated Juror 15 by exercising one of his remaining peremptory challenges but failed to do so. (Id. at p. 1133.) Defendant also did not express dissatisfaction with the resulting jury. Defense counsel stated defendant accepted the panel as finally constituted.
Defendant argues that, even though he could have removed Juror 15 No. with a remaining peremptory challenge, he was not required to do so in order to avoid forfeiting his objection on appeal. Defendant claims that, as long as he ultimately exhausted his peremptories, his objection is preserved for appeal. We disagree. As stated in People v. Mills (2010) 48 Cal.4th 158, 186, “to preserve this claim for appeal we require, first, that a litigant actually exercise a peremptory challenge and remove the prospective juror in question. Next, the litigant must exhaust all of the peremptory challenges allotted by statute and hold none in reserve. Finally, counsel (or defendant, if proceeding pro se) must express to the trial court dissatisfaction with the jury as presently constituted. (People v. Bonilla (2007) 41 Cal.4th 313, 339; italics added.)” (See also Baldwin, supra, 189 Cal.App.4th at p. 1001.)
Defendant has provided no valid justification for noncompliance with these rules. Merely challenging a juror for cause, without taking further action to remove the juror and without objection to the final jury, is insufficient to establish prejudicial error requiring reversal. This is because “it is possible that counsel, despite initial misgivings, was ultimately satisfied with the overall composition of the jury. Also possible is that, had counsel expressed dissatisfaction, the trial court would have allowed him to exercise additional peremptory challenges.” (Weaver, supra, 26 Cal.4th at p. 911.) We thus conclude defendant has not preserved for review his objection to the trial court’s denial of his for-cause challenge to Juror No. 15.
Furthermore, were we to reach the merits of defendant’s objection, we would conclude it lacks merit. “‘[T]he ultimate decision whether to retain or discharge a juror, rests within the sound discretion of the trial court.’ [Citation.]” (People v. Kipp (1998) 18 Cal.4th 349, 366.) We find no abuse of discretion in this instance. The requirement that California jurors understand English is statutory. Code of Civil Procedure section 203 provides: “All persons are eligible and qualified to be prospective trial jurors, except the following: [¶]... [¶] (6) Persons who are not possessed of sufficient knowledge of the English language, ...” A person with sufficient knowledge of English is one who is fully able to understand spoken and written English. (People v. Jones (1972) 25 Cal.App.3d 776, 783.)
Based on the record, we cannot say that Juror No. 15 lacked sufficient knowledge of English to be a juror. The trial court could reasonably determine that, despite Juror No. 15’s expressed difficulty understanding English on occasion, Juror No. 15 was fully able to understand spoken and written English, and therefore capable of discharging the oath she took as a juror to impartially determine the facts and apply the law to reach a just verdict. Because defendant has not shown that an incompetent juror was forced upon him, his assertion of reversible error necessarily fails. (Baldwin, supra, 189 Cal.App.4th at p. 1002.)
IV
DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst Acting P.J., Richli J.