Opinion
D040372.
11-12-2003
THE PEOPLE, Plaintiff and Respondent, v. GERARDO CASTILLO, Defendant and Appellant.
A jury convicted Gerardo Castillo of first-degree residential robbery (Pen. Code, §§ 211, 212.5, subd. (a), 213, subd. (a)(1)(A)) (count 1), first-degree residential burglary (§§ 459, 460) (count 2); and receiving stolen property (§ 496, subd. (a)) (count 3). The jury found true allegations that Castillo committed the crimes charged in count 1 and count 2 while armed with a firearm (§§ 12022.53, subd. (b), 12022.5, subd. (a)(1).) Castillo admitted allegations that he had committed the crimes while on bail (§ 12022.1, subd. (b)); and that he had a prior prison term (§ 667.5, subd. (b)), a serious felony prior conviction (§§ 667, subd. (a)(1), 1192.7, subd. (c)), and a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12). The court sentenced him to an 29-year prison term, including a four-year term for count 3, which the court stayed under section 654.
All statutory references are to the Penal Code unless otherwise indicated.
The abstract of judgment reflects a total prison term of 32 years, as the trial court included a consecutive three-year sentence after Castillo pleaded guilty to attempted robbery and admitted a gang allegation in a pending case. (People v. Castillo (Super. Ct. S.D. County, 2002, No. SCD159581).)
Castillo contends: (1) the court abused its discretion by discharging a juror without good cause or manifest necessity and the error bars retrial on double jeopardy grounds; and (2) the court erred by staying his sentence for receiving stolen property rather than striking the conviction because he cannot be convicted of both stealing and receiving the cash he took during the robbery. The People concede the latter point and we agree it is appropriate to reverse Castillos conviction for receiving stolen property. We otherwise affirm the judgment.
DISCUSSION
In view of Castillos claims and our resolution of them, we need not recite the facts underlying his convictions in detail. It is undisputed that in May 2001, Castillo, accompanied by others, entered an apartment in San Diego, aimed a shotgun at its occupant and demanded money from him, and took cash and a pellet gun found on the premises. Shortly afterwards, police found Castillo with a shotgun shell, a flashlight and $160 in his front pocket.
I. The Court Did Not Abuse its Discretion in Discharging Juror No. 10
Castillo contends the trial court abused its discretion when, before the jury retired to deliberate, it discharged a juror on account of his previously arranged business trip to New York. We reject the contention.
A. Background
At the end of the third day of trial, a Friday, one of the jurors (Juror No. 10) advised the court he had previously scheduled business meetings the next Monday afternoon in Los Angeles and Wednesday in New York:
"THE COURT: Juror Number 10. You have problems on Monday afternoon?
"[Juror No. 10]: Yes, your honor. I assumed spillover would be possibly to finish up possibly Monday morning some time, and then I was not aware that Tuesday there was going to be a cancellation, and that pushes things into Wednesday, and I am traveling to New York on Wednesday, sir, or I had plans to and its fairly important in that we are signing contracts for some business agreements.
"THE COURT: Okay. Well, why dont I leave it at this. Let he [sic] me know Monday morning what your situation is. See if you can can [sic] make arrangements, if at all possible. I dont want to lose a juror, unless absolutely necessary.
"[Juror No. 10]: I understand, sir.
"THE COURT: We are definitely going to be working Monday, and there is no way that you will be done on Monday, and I cant see any way that we will be done, with the way things going, any earlier than Wednesday morning. I think at least deliberations on Wednesday.
"[Juror No. 10]: My assumption, in not bringing it up prior, was the fact that it would probably be Monday, and I could probably push off my Monday afternoon thing, because thats just up in Los Angeles, but the New York, we are having people flying in from Seattle, myself going in, and theres three or four people that would have to quickly change plans. So Ill let you know by Monday morning.
"THE COURT: Why dont you do the best you can and we will talk to you Monday morning. . . ."
The discussion on the subject continued on the following Monday morning, with the juror explaining that he still had obligations in New York two days later. While the juror was making a telephone call to determine at the courts request whether he could remain in court that day, the court had the following dialogue with counsel:
"THE COURT: What is your attitude, counsel, about [Juror No. 10] if he comes back and says he cant stay with us today? You just want to cut him loose?
"[The prosecutor]: Yeah. It looks like were going to lose him. I dont want to lose him.
"[Defense counsel]: I dont — well, I thought he would be here.
"THE COURT: Well, I will keep leaning on him as much as I can, but obviously, if this thing goes to deliberations beyond today, given the fact that we arent going to be here tomorrow, we are going to lose him and we will substitute in one of the jurors."
Later that morning after partially instructing the jury, the court made a final inquiry with the juror:
"THE COURT: [Juror No. 10], this afternoon okay?
"[Juror No. 10]: I did contact him. I mean, took us the whole time to finally get him. He was traveling to Los Angeles from New York. He was not happy with the situation. He understands that were — it is kind of still iffy on what the situation is. He would like for me to be up there if I could. At this stage in the game, I would — I could still fly up instead of drive up, but I told him that, once again, I would just petition the Court.
"THE COURT: All right. Thank you. [¶] Frankly, counsel, I dont think that it is realistic. [¶] I believe that Wednesday is completely out for you?
"[Juror No. 10]: Yeah, I have to fly east.
"THE COURT: I dont think that it is at all realistic that we can get this case to this jury and complete it this afternoon, and I would rather have the jury start out deliberations being the jury that will decide this case.
"[Juror No. 10]: Understood.
"THE COURT: And I think [Juror No. 10], through no fault of his, and, unfortunately, because of the way this case played out, is in a situation where I think there is good cause to excuse him at this time. Anything from the defense?
"[Defense counsel]: No, your Honor, except of my concern that I expressed earlier. But beyond that, I have nothing else to put on the record.
"THE COURT: Thank you. You are excused, then. You are free to go."
The court substituted an alternate juror for Juror No. 10.
B. The Law and Standard of Review
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 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." (§ 1089.) "`We 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.] We also have stated, however, that a jurors inability to perform as a juror "`must appear in the record as a demonstrable reality."" (People v. Cleveland (2001) 25 Cal.4th 466, 474; see also People v. Boyette (2002) 29 Cal.4th 381, 462 (Boyette).)
The trial court has "`broad discretion to investigate and remove a juror in the midst of trial where it finds that, for any reason, the juror is no longer able or qualified to serve." (Boyette, supra, 29 Cal.4th at p. 462, fn. 19, quoting People v. Millwee (1998) 18 Cal.4th 96, 142, fn. 19.) Indeed, few courts have disturbed a trial courts decision to discharge a juror for good cause. (People v. Bell (1998) 61 Cal.App.4th 282, 287 (Bell).)
C. Analysis
We begin by pointing out Castillo waived this claim of error when his counsel neglected to make a contemporaneous and specific objection to Juror No. 10s discharge. (People v. Boyette, supra, 29 Cal.4th at p. 462; People v. Sanders (1995) 11 Cal.4th 475, 541, fn. 28.) "`A defendant may properly raise in this court a point involving an allegedly improper excusal for undue personal hardship only if he made the same point below. The requirement of a contemporaneous and specific objection promotes the fair and correct resolution of a claim of error both at trial and on appeal, and thereby furthers the interests of reliability and finality. When a contemporaneous and specific objection is made, the parties are put on notice to characterize the claim as they think proper and to set out the law and facts as they deem necessary. With their response, the trial court is provided with a basis on which to define the claim and then determine whether it is meritorious and, if so, how any harm may be avoided or cured as promptly and completely as possible. On such a record, the appellate court may then decide whether a challenge to the trial courts ruling is sound." (People v. Earp (1999) 20 Cal.4th 826, 893, quoting People v. Mickey (1991) 54 Cal.3d 612, 664.)
Notwithstanding Castillos waiver, we address the issue with an eye toward Castillos claim of ineffective assistance of counsel, and reject it. The present circumstances fall under the specific provision of section 1089 permitting discharge where "a juror requests a discharge and good cause appears . . . ." (§ 1089.) This ground permits a discharge and substitution even though the juror is capable of performing his or her duties and the defendant does not consent. (5 Witkin & Epstein, Cal. Criminal Law (3rd ed. 2000) § 509, p. 724.) Thus, in Bell, supra, we held the court did not abuse its discretion in excusing a juror, even though he was the sole African-American juror on the panel, when he advised the court he needed to take his son to the doctor for an unspecified emergency. (Bell, 61 Cal.App.4th at pp. 287-289.) Through telephone contact, the court made a reasonable inquiry with the juror and could reasonably infer he might not appear at all that day based on the jurors inability to make a firm commitment as to when he could return. (Id. at p. 288.) In People v. Roberts (1992) 2 Cal.4th 271 (Roberts), the judge did not consult with a jurors doctor prior to dismissing the juror who voiced a medical problem. The Supreme Court concluded the court did not abuse its discretion in ruling that good cause existed to discharge the juror because the court did its duty in telephoning her, discussing the matter on the record with counsel, and then stating its reasons for dismissal. (Id. at p. 325.)
In People v. Delamora (1996) 48 Cal.App.4th 1850 (Delamora), the jury had deliberated for over three days before the court substituted two jurors for employment-related reasons. After two jurors were replaced without any inquiry about whether they would be willing to remain another day even if their employers would not pay them, the reconstituted jury reached a verdict in about three hours. (Id. at p. 1855.) The court stated: "Although a trial court does not abuse its discretion when it discharges a juror because of problems related to the jurors employment, the employment problem must be real and not imagined." (Ibid.) "We are not suggesting that a formal hearing must be held to determine good cause. . . . As noted above, however, 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.)
In contrast to Delamora, but like Bell and Roberts, the court here conducted an inquiry into the matter that revealed good cause to excuse Juror No. 10 — i.e., he had an important, previously scheduled business obligation on the East Coast that would invade into deliberations. The juror stated the matter involved signing contracts, and the court could reasonably infer it required his physical presence. The inquiry was conducted with counsels involvement and the court urged the juror to make efforts to remain as long as possible. The fact the court did not postpone the case while the juror was away, or ask whether the jurors employment would be harmed if he were ordered to remain, does not establish an abuse of the courts broad discretion in these matters. (Bell, supra, 61 Cal.App.4th at pp. 288-289.)
Even if we were to conclude the court abused its discretion in excusing Juror No. 10 in this manner, as the People point out, Castillo has not advanced any argument that the asserted error prejudiced him in any way. The court replaced Juror no. 10 with an alternate. "[W]here an alternate juror, approved by the defendant in voir dire, is allowed to deliberate on the jury panel, the defendant bears a heavy burden to demonstrate that he was somehow harmed." (Delamora, supra, 48 Cal.App.4th at p. 1856, citing People v. Thomas (1990) 218 Cal.App.3d 1477, 1486.) "This is so because alternate jurors are selected at the same time, are subject to the same qualifications and take the same oath as regular jurors. They hear the same evidence and are bound by the same rules and instructions as the regular jurors, and until the verdict is rendered they are at all times available and qualified to participate as regular jurors." (People v. Thomas, at p. 1486.) In Delamora, the court found the defendant was prejudiced when the jury was reconstituted in the midst of lengthy deliberations and reached a guilty verdict in a few hours. Here, there are no such circumstances. Prejudice has not been and cannot be shown. For that reason alone, we must reject Castillos contention, as well as his accompanying claim for ineffective assistance of counsel. (People v. Sapp (2003) 31 Cal.4th 240, 263 [appellant must show reasonable probability that but for the allegedly deficient performance the result of the proceeding would have been different]; Strickland v. Washington (1984) 466 U.S. 668, 686.)
II. Castillo Cannot be Convicted of Stealing and Receiving the Same Property
Castillo contends he was improperly convicted both of stealing (via the robbery conviction) and receiving the same property. The People concede the point. We agree the court erred in entering judgments of conviction both for robbery of the cash found on the premises and for receiving the cash. (§ 496 ["[N]o person may be convicted both pursuant to this section and of the theft of the same property]; People v. Allen (1999) 21 Cal.4th 846, 857; People v. Jaramillo (1976) 16 Cal.3d 752, 757.) Accordingly, we reverse Castillos conviction under count 3 for receiving stolen property. As the sentence for count 3 was stayed under section 654, there is no resulting change in the length of Castillos prison term.
DISPOSITION
Castillos conviction on count 3 for receiving stolen property is reversed and the court is directed to amend the abstract of judgment accordingly and forward it to the California Department of Corrections. In all other respects the judgment is affirmed.
WE CONCUR: HALLER, Acting P. J. and McDONALD, J.