Mosk

Defendant and appellant Chang I. Chang (Chang) was convicted by jury of extortion (Pen. Code, §§ 518, 520). Sentenced to the mid term of three years in prison, Chang contends that his conviction should be reversed because of prosecutorial misconduct, jury misconduct, and allegedly erroneous trial court rulings concerning gang evidence. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The Melody Lounge is a karaoke bar and restaurant managed by Wilson Lee (Lee). On July 6, 2000, a party of 20 Asian customers—17 men and 3 women—spent the evening at the Melody Lounge. Among the group were Chang, Sinh Tran (Tran), and Maa Le. Lee recognized Chang from Changs previous visits to the bar.

At Changs request, Lee reserved another table for members of the party who had not yet arrived. Six additional members of the group—all Asian males appearing to be between 16 and 18 years of age—arrived later in the evening. Although Lee instructed the staff not to serve alcoholic beverages to the new arrivals unless they could prove they were older than 21, he later observed one drinking beer. When Lee took the beer away, the young men began to hit him. One of the men in the original party, Maa Le, stood on a chair and hit Lee with a bottle.

The melee ended when Chang said, "Gang brothers, stop!" Placing his arm around Lees shoulders, Chang said he was from the Wah Ching gang. Chang pointed at Tran and said, "I want you to meet my gang brother." Chang guided Lee toward Tran. Chang then removed his arm from Lees shoulders and Tran placed his arm around Lees shoulders. Tran, accompanied by a short, muscular man, pushed Lee to a small area at the back of the lounge; Chang walked with them.

Chang and the muscular man stood behind Tran as he sat with Lee in the back room. Tran said, "This is why you need protection." Lee asked, "What protection?" Tran answered, "You see what happened? You need our protection." Tran told Lee to pay $1,000 per month. Lee asked what gang Tran belonged to. Tran named several gangs and said they were afraid of him. Tran said that if he was not paid, there would be a "drive-by" shooting. Tran asked when Lee would pay the money, and Lee responded that he would consult his boss. Tran gave his telephone number to Lee and said, "This is a 24-hour number. When you talk to your boss, give me a call."

Lee reported the incident to the Los Angeles County Sheriffs Department (Sheriffs Department). At the instruction of the Sheriffs Department, Lee scheduled a meeting with Tran at a local restaurant. Lee wore a recording device and carried $ 1000 provided by the Sheriffs Department. While detectives watched, Tran and Maa Le arrived at the restaurant by car. Tran entered the restaurant while Maa Le remained in the car. Inside the restaurant, Tran asked for the money and Lee handed it to him. Tran agreed that because he had been paid, he would not "bother" Lee any more. Maa Le and Tran were arrested.

Chang was charged with extortion (§§ 518, 520) and pleaded not guilty. At the start of trial, immediately before jury selection, Changs counsel moved to exclude evidence pertaining to gangs on the ground that the prosecution had failed to provide that evidence to the defense. The trial court observed that Changs counsel had previous opportunities to inform the court that the discovery had not been provided but that he had failed to do so. The trial court refused to preclude the introduction of gang-related evidence as a discovery sanction but offered Chang a continuance to interview the detectives expected to provide the gang evidence at trial. Changs counsel declined the continuance, and the trial began.

During the trial, Juror No. 12 was replaced by an alternate juror. At the close of evidence, the trial court refused Changs request to instruct the jury with, inter alia, CALJIC No. 2.28, pertaining to the prosecutors failure to disclose evidence in a timely manner.

Chang was convicted of extortion. He moved for a new trial, alleging prosecutorial misconduct, erroneous admission of gang evidence, error in failing to give CALJIC No. 2.28, juror misconduct, and improper limitations on the evidence Chang was permitted to present. The trial court denied the motion for a new trial and sentenced Chang to the mid term of three years in prison. This appeal followed.

DISCUSSION

I. Trial Courts Refusal to Impose Discovery Sanctions

Immediately before jury selection, Chang moved to bar the introduction of gang-related evidence at trial because it had not been produced in discovery. The trial court observed that although Changs counsel had obtained a discovery order, counsel had taken no subsequent steps to ensure that discovery was received or to inform the court of the prosecutions alleged noncompliance. The trial court noted that it was only on the first day of trial—and at the end of the period within which the defendant could constitutionally be tried because he had not waived his right to a speedy trial—that Changs counsel sought to preclude the introduction of evidence central to establishing Changs participation in an extortion conspiracy.

The trial court offered Changs counsel a continuance to interview the two detectives expected to offer gang-related expert testimony and said it would order the detectives to be available for interviews. Chang declined the continuance. Chang seeks reversal of his conviction because the court neither precluded the introduction of gang evidence nor instructed the jury with CALJIC No. 2.28, concerning the prosecutions failure to timely comply with discovery obligations.

Other than constitutionally required disclosures (see, e.g., Brady v. Maryland (1963) 373 U.S. 83, 87-88), discovery in criminal matters is governed by and limited by statute. (& sect; 1054, subd. (e); § 1054.5, subd. (a).) Section 1054.1, subdivision (a) requires the prosecution to disclose the names and addresses of the witnesses it intends to call at trial. Pursuant to section 1054.1, subdivision (f), the prosecutor must disclose relevant written or recorded statements made by witnesses whom the prosecutor intends to call at trial. Violations of the discovery statutes may result in sanctions under section 1054.5. (People v. Bohannon (2000) 82 Cal.App.4th 798, 805.)

Upon a showing that a party has not fulfilled its discovery obligations and that the moving party has complied with the informal discovery procedures, a court may make all orders necessary to enforce the discovery provisions. (§ 1054.5, subd. (b).) These orders "include[e], but [are] not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order." (Ibid .) The court may also advise the jury of the partys failure to comply with discovery procedures. (Ibid.) The remedy for noncompliance with a discovery order should not be broader than necessary to guarantee a fair trial. (People v. Wimberly (1992) 5 Cal.App.4th 773, 792 (Wimberly).) We review the trial courts discovery rulings for an abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225, 299 (Ayala).)

Although a trial court may consider a range of sanctions in response to a prosecutors violations of discovery rules (Ayala, supra, 23 Cal.4th at p. 299), the court may exclude testimony only if the violation was willful conduct designed to obtain a tactical advantage and if it caused significant prejudice. (People v. Jordan (2003) 108 Cal.App.4th 349, 358.) Moreover, the "court may prohibit the testimony of a witness . . . only if all other sanctions have been exhausted." (§ 1054.5, subd. (c).)

Even if the prosecution failed to comply with the discovery requirements set forth in section 1054.1—a matter disputed by the parties—the trial court did not abuse its discretion by refusing to preclude the presentation of gang evidence because Chang did not demonstrate willful conduct, significant prejudice, or the insufficiency of other sanctions. The trial court did not find that the prosecutor had intentionally withheld discovery, and nothing in the record indicates that the prosecutors conduct was a deliberate effort to gain a tactical advantage at trial.

"[T]he normal remedy for noncompliance with a discovery order is not suppression of evidence, but a continuance." (People v. Barnett (1998) 17 Cal.4th 1044, 1131.) "It is defendants burden to show that the failure to timely comply with any discovery order is prejudicial, and that a continuance would not have cured the harm." (People v. Pinholster (1992) 1 Cal.4th 865, 941.) There is no evidence that the alleged delay in discovery was prejudicial or that the courts remedy—a continuance and offer to make the detectives available for interview—was insufficient to cure any prejudice. As the Supreme Court has observed under similar circumstances, "[w]e fail to see how any delay in disclosing this witness harmed defendant. The court gave defendant ample time to investigate once the witness and his proposed testimony were disclosed. The court said: `Ill give you as much time as you want. You name it, youve got it. Investigate it fully, research it fully. The defense requested no continuance. . . . As a matter of due process there was no suppression of material evidence favorable to the accused, and any failure to timely disclose the witness was harmless and did not undermine the reliability of the proceedings. [Citation.]" (Ibid.)

Chang claims that the prosecution did not know what evidence would be used to establish gang membership, so a continuance would not have helped counsel prepare to rebut gang evidence or to impeach the witnesses providing the evidence. This argument fails because when Changs counsel made this argument in the trial court, the prosecutor described the detectives anticipated testimony to him. Changs counsel did not claim the information was inadequate, nor did he request other relief authorized by section 1054.5. The court encouraged Changs counsel to use the offered continuance in order to interview the detectives, but counsel refused. "Defendant had the opportunity to seek a continuance in order to develop a response [to late-disclosed evidence]. He was entitled to no more." (People v. Barnett, supra, 17 Cal.4th at p. 1131.) Because Chang has not demonstrated that a continuance was an inadequate remedy, he has not established that the trial court abused its discretion in selecting a continuance as the appropriate relief for any delay in discovery.

Similarly, refusing to instruct the jury with CALJIC No. 2.28 was not an abuse of discretion. CALJIC No. 2.28 informs the jury that a party failed to comply with the discovery statutes without legal justification; that the concealment or delayed disclosure of evidence may deny the other party the opportunity to obtain rebuttal evidence; and that although the trial court has permitted the evidence to be introduced, the jury is entitled to consider the partys noncompliance in deciding what weight and significance to give it. (CALJIC No. 2.28.) Here, the trial court selected a continuance as a remedy, and as we have discussed above, Chang has not established that it was insufficient. Accordingly, the trial court—which was authorized to select from a range of remedies those tailored to guarantee a fair trial—did not abuse its discretion by declining to instruct the jury with CALJIC No. 2.28. (Ayala, supra, 23 Cal.4th at p. 299 [court may consider a range of responses to a discovery violation]; Wimberly, supra, 5 Cal.App.4th at p. 792 [remedy for discovery noncompliance should be no broader than necessary to guarantee a fair trial].)

II. Admission of Gang Evidence

Chang contends that the admission of gang evidence violated Evidence Code section 352 because it was more prejudicial than probative. Chang moved to exclude the evidence because it showed that the participants in the extortion were members of different gangs. The prosecution argued that it would present expert testimony that Asian gangs often cooperate in extortion. Concluding that the gang evidence was more probative than prejudicial, the court denied Changs motion to exclude the evidence.

Because of the risk that a jury will improperly infer that the defendant has a criminal disposition and is therefore guilty of the charged offense, evidence of an individuals membership in a gang is admissible only when it is relevant to establish matters other than a predisposition to commit crimes and when its probative value outweighs its prejudicial effect. (People v. Williams (1997) 16 Cal.4th 153, 193 (Williams).) We review the trial courts evidentiary ruling for an abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 201.)

Here, the gang evidence was relevant to establish matters other than a predisposition to commit crime. The prosecutions theory was that Chang acted in concert with Maa Le, Tran, and others to extort Lee. In this context, evidence that Chang, Maa Le, and Tran were gang members—combined with expert testimony that Asian gangs commonly work collectively to commit extortion—was highly probative. One element of extortion is the "wrongful use of force or fear" to obtain the victims consent to giving up his or her property. (§ 518.) Changs statements that he was a Wah Ching member and that Tran was his "gang brother," Trans statement that several Asian gangs were afraid of him, and Lees testimony that he believed Asian gangs to be violent were all relevant to prove the use of wrongful force or fear and to establish Lees fear.

The gang evidence was also probative in establishing that Chang intended to work with the other participants to extort Lee. California law provides that gang membership "may be part of circumstantial evidence supporting the inference of a conspiracy. [Citation.] The circumstances from which a conspiratorial agreement may be inferred include `the conduct of defendants in mutually carrying out a common illegal purpose, the nature of the act done, the relationship of the parties [and] the interests of the alleged conspirators. . . . [Citation.]" (People v. Superior Court (Quinteros) (1993) 13 Cal.App.4th 12, 20-21 (Quinteros).)

Here, the evidence of gang association was circumstantial evidence that supported the inference of a conspiracy. Viewed favorably to the judgment, as it must be on appeal (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Davis (1995) 10 Cal.4th 463, 509), the evidence established the following: Chang was the leader of the large group that caused the planned disturbance at the Melody Lounge; Chang controlled the group, as demonstrated by the members compliance with his order to end the melee; Chang initiated the extortion by ending the fighting and delivering Lee to Tran; and Chang accompanied Lee and Tran to the back room of the lounge and observed as Tran told Lee of his "need" for protection, demanded protection money and threatened a drive-by shooting. The gang-related evidence—that Chang was a senior member of the Wah Ching gang, that Asian gangs operate hierarchically such that it is uncommon for senior members to personally execute crimes, and that although Tran was a member of a different gang, Asian gangs frequently cooperated in extortion schemes—was additional circumstantial evidence of the conspiracy to commit extortion. (Quinteros, supra, 13 Cal.App.4th at pp. 20-21; People v. Contreras (1983) 144 Cal.App.3d 749, 756-758 [gang evidence admissible to prove identity as participant in group action and motive for engaging in conspiracy].)

Focusing on a single statement by an expert witness that members of rival gangs may cooperate to commit crimes based on their personal relationships, Chang contends that the probative value of the gang evidence here was slight because Chang and Tran belonged to different gangs and there was no evidence of a relationship between the "key members" of the gangs. Chang misconstrues the testimony. The expert witness did not testify that the gangs here were rivals such that cooperation would arise only from personal relationships. He testified both that cross-gang participation in extortion was common among Asian gangs and that whether members of rival gangs would be likely to cooperate in crime would depend on the relationships of the individual members. There was no testimony at trial that Chang and Tran were in rival gangs. Moreover, the expert witness testified that it would not be unusual even for members of rival gangs to participate together in crime. Thus, contrary to Changs assertion, the experts opinion was neither qualified nor of limited value.

Given the relevance of the gang evidence to the elements of the offense, we cannot say that the trial court abused its discretion when it determined, after balancing the probative value and prejudicial impact of the proffered evidence, that evidence of the participants gang membership, statements concerning gangs, and expert testimony concerning cooperative conduct among Asian gangs were admissible under Evidence Code section 352. Not only does the probative value of this evidence outweigh its prejudicial nature, but the jury was also instructed regarding the limited purposes for which the evidence was admitted.

III. Alleged Prosecutorial Misconduct

Chang alleges that the prosecutors committed misconduct in discovery, during the examination of Detective Christopher Le, and in closing argument. "`The applicable federal and state standards regarding prosecutorial misconduct are well established. "`A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process."" [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves "`"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."" [Citation.] [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).)

A. Discovery

Chang claims that the prosecutors failure to timely disclose the gang evidence on which she intended to rely at trial constituted misconduct. We concluded in section I, ante, that Chang has not demonstrated any prejudice from this alleged discovery violation, nor has he shown that the continuance offered by the trial court was insufficient to cure any prejudice. (People v. Pinholster, supra, 1 Cal.4th at p. 941.) When the actions alleged to be misconduct cannot have prejudiced the defendant, the reviewing court need not determine whether misconduct occurred. (People v. Millwee (1998) 18 Cal.4th 96, 140 [because the trial court intervened and gave an appropriate admonition when an improper question was asked, no prejudice could be established, and the Supreme Court would not consider whether the incident constituted misconduct]; People v. Bonin (1988) 46 Cal.3d 659, 690 [appellate court will not decide if misconduct occurred when it could not have been prejudicial], overruled on other grounds in Hill, supra, 17 Cal.4th at p. 823, fn. 1.)

B. Examination of Detective Le

Chang contends that the prosecutor committed misconduct by eliciting inadmissible testimony from Detective Christopher Le. The prosecutor asked the detective when was his "first contact" with Chang. Before the detective could respond, the trial court cautioned at sidebar that it did not want testimony concerning other arrests or investigations. When examination resumed, the detective responded to the question by stating, "I believe I recall meeting him initially when I first interviewed him at Mens Central Jail when he was in custody." The prosecutor later told the court that she had not expected this response; that when she had "gone over" the examination with the detective, he had not mentioned jail; and that she had believed that contact between Chang and the detective had been "consensual" and "at cafes."

A prosecutor commits misconduct by deliberately eliciting inadmissible testimony. (People v. Cox (2003) 30 Cal.4th 916, 952.) Although Chang contends that the prosecutor committed misconduct by failing to admonish the witness adequately that he should not volunteer custody status information, there is no evidence in the record that the prosecutor anticipated and intentionally elicited this testimony. Chang has failed to establish prosecutorial misconduct in the examination of Detective Le.

C. Closing Argument

In his closing argument, the prosecutor said, "Wah Ching, Black Dragons, that may have little meaning [to many of us], but its the same scenario, the same dance that has been played out in ethnic neighborhoods in the United States for years. [& para;] Its the same as saying to a shop owner on the lower east side of Manhattan, in the 30s or 40s or 50s, the Black Hand or Cosa Nostra or the Mafia. [¶] Those words have meaning. Just those words instill fear. [¶] And we know that those words were spoken to Mr. Lee in his Melody Lounge, and they were spoken immediately after a physical attack."

The prosecutor continued, "Protection-type extortion is what we are talking about here. Its really kind of admirable in some skewed business sense. [¶] In capitalism, what do you try to do? Identify a market, then you provide a product to fill that market. [¶] Well, in this case, the Wah Ching gangsters make the market themselves. [¶] They come in and cause a disturbance. They attack the business owner, then say, you see what Im saying, you need protection. Look at what just happened. I am your savior. Let me take care of you. Let me protect you. [¶] Of course, who am I being protected from? Im being protected from you. [¶] And I would suggest to you that the same kind of scheme has been used again in ethnic neighborhoods in this country for many, many years."

In his closing argument, Changs counsel argued that there was no evidence that Chang participated in any conspiracy or extortion and that the prosecutions theory of the case was "unbelievable." On rebuttal, the prosecutor contended that the claim that Chang did not participate in the extortion was unreasonable. The prosecutor argued, "[I]f the defendants explanation of his involvement as a benevolent intervenor is unreasonable, it must be rejected. [¶] Why is it unreasonable? [& para;] If he was just trying to come to the aid of a friend, why mention the street gang? [¶] Again, its like telling the person in the 1930s that youre from Cosa Nostra. [¶] And lets think about this for one second.

"Sometimes I like to try to put cases that are in the abstract into images maybe that are more easily memorable for all of us, and I dont know how many of you have seen The Godfather movies. [¶] The Asian criminal street gangs is [sic] not dissimilar to the organization of Cosa Nostra. Marlon Brando as Don Corleone has a soldier work[ing] for[] him called Luca Brotsi [sic]. Luca Brotsi is absolutely for Don Corleone. [¶] And imagine this scenario. Don Corleone really likes this restaurants owner. He really does like him. He doesnt want to extort him. Theres been some problem in the restaurant, and he says Im going to take care of it. Talk to my friend Luca, and well take care of it. Were not going to extort you. We want to protect you. [¶] Do you think there is any way in the world that Luca Brotsi would go against the Dons wishes in that situation, that Luca Brotsi AKA Mr. Tran would seek to extort the person that the Don has just said you leave this guy alone? [¶] No way. Its part of the respect. Its part of the structure.

"Thats maybe the most powerful insight I think to these—to this case, is that how would that have come back to Mr. Tran if he had tried to do an extortion, just sort of out on his own, working against the wishes of his superior? [¶] Its a powerful argument as to why Mr. Chang was involved in this, and this was all done with his blessing and under his direction. [& para;] No way a soldier in the Wah Ching would disrespect his boss. [¶] The unreasonable explanation must be rejected. [& para;] The defendants explanation of himself and his actions here as just a benevolent intervenor, is just that. Its unreasonable."

Chang neither objected to this argument nor requested a jury admonition. To preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely objection, make known the basis of the objection, and ask the trial court to admonish the jury. (Hill, supra, 17 Cal.4th at p. 820.) Citing cases in which reviewing courts have concluded that the prosecutors misconduct could not have been cured by admonition (People v. Johnson (1981) 121 Cal.App.3d 94; People v. Adams (1939) 14 Cal.2d 154, overruled on other grounds in People v. Burton (1961) 55 Cal.2d 328; People v. Taylor (1961) 197 Cal.App.2d 372; People v. Luparello (1986) 187 Cal.App.3d 410), Chang argues that his failure to object is excusable because no admonition could have cured the prejudice from the misconduct. But the evidence here does not establish that an admonition would have been insufficient to remedy any misconduct. Chang has therefore waived this argument by failing to object at trial. (People v. Ochoa (1998) 19 Cal.4th 353, 428.)

Even if the issue had not been waived, we discern no misconduct here. "`"[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature." . . . ." (Williams , supra, 16 Cal.4th at p. 221.) Although the proper scope of argument is not unbounded, "a lawyer arguing his case should be entitled to cover the whole range of human experience in asking the jury to decide in favor of his client. This should properly include not only the sayings of famous men, but illustrations taken from life, or from books, showing the actions and thoughts of human beings, other than the parties and their witnesses, under various types of pressure and stress. To limit a lawyers voice to a bare monotone, or his intellectual plea to a somber discussion of the evidence and the law, without permitting him to range over the field of human experience, would be to cripple the best of advocates and often to reduce a vibrant trial to a dry and inhuman inquiry." (People v. Polite (1965) 236 Cal.App.2d 85, 93.)

Accordingly, it has been held not to be misconduct for a prosecutor to refer to Adolph Hitler and Charles Manson while arguing that because a murder was committed for irrational reasons does not mean that the perpetrator is insane (People v. Jones (1997) 15 Cal.4th 119, 179-180 (Jones), overruled on another ground in Hill, supra, 17 Cal.4th at p. 823, fn. 1); to equate a defendant with the Marquis de Sade while urging the jury not to be misled by his courtroom demeanor (People v. Thornton (1974) 11 Cal.3d 738, 762-763, overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684 and People v. Martinez (1999) 20 Cal.4th 225); and to compare a nurse on trial for plotting a brutal murder to "a Nazi working in the crematorium by day and listening to Mozart by night." (People v. McDermott (2002) 28 Cal.4th 946, 1003.) In each case the prosecutor referred to infamous persons or events to illustrate a point within the proper scope of argument in the context of the case. (Ibid.; Jones, at p. 180; Thornton, at p. 763.)

The Supreme Court has cautioned, "`In general, prosecutors should refrain from comparing defendants to historic or fictional villains, especially where the comparisons are wholly inappropriate or unlinked to the evidence. [Citation.] [Citation.]" (Jones, supra, 15 Cal.4th at p. 180.) Here, however, the prosecutor used the film The Godfather (Paramount Pictures 1972) to illustrate arguments supported by the evidence in the case, not to equate Changs character with that of the fictional Don Corleone. The prosecutors comments were made in the context of his argument that the case presented a classic extortion scenario. His remarks were designed both to convey to the jury the immediate fear instilled in the victim by Chang and Trans mention of Asian gangs and to emphasize the implausibility of the defense argument that Chang, a senior and high-ranking Wah Ching member, was not a participant in the extortion scheme—both points within the proper scope of argument. The statements were neither "wholly inappropriate" nor "unlinked to the evidence." (Jones, at p. 180.) Although it is possible that the trial court would have limited or clarified the prosecutors remarks if Changs counsel had objected at trial, because the prosecutor merely referred to history and film to make familiar a gang culture with which most jurors were presumably unfamiliar, he did not commit misconduct.

IV. Juror Misconduct

Chang contends that the trial court erroneously denied his motion for a new trial because he had demonstrated prejudicial juror misconduct by Juror No. 5451. During the voir dire of prospective alternate jurors, Juror No. 5451 provided the general information requested by the court. When Juror No. 5451 said she was a housewife, the court asked how long she had run her household. Juror No. 5451 responded, "Actually, its—well, since I was married, but in the last two years, I had a stroke a few years ago and then a relapse, so Im on full-time disability." The trial court permitted counsel to question the eight prospective alternate jurors, but neither attorney directed any questions to Juror No. 5451 individually. Neither party exercised peremptory challenges, and Juror No. 5451 was selected as an alternate juror. During trial, she replaced Juror No. 12.

In support of his new trial motion, Chang submitted a declaration from Juror No. 5451 in which she stated that nine years earlier she had suffered a stroke that had caused her to lose her memory of events, people, and her life prior to her stroke. Juror No. 5451 stated that she had been placed on total disability and that she took anti-seizure medications. Juror No. 5451 asserted that she "tend[s] to tire very easily and ha[s] difficulty concentrating for long periods of time." She noted her "difficulty recalling details of conversations" and stated that she had trained herself to write notes to ensure that she does her daily tasks. Juror No. 5451 stated that two years earlier, she had another "small bleed" in her brain, "which contributed to [her] current memory condition."

Juror No. 5451 stated that she took notes during the trial to assist herself in remembering the evidence. She said, "I now recognize the potential that my disability could have had on my ability to participate in deliberations. I understand that my disability may have prevented me from voicing my thoughts to the other jurors that I might have remembered were it not for my handicap. I also recognize the potential that I may have improperly recalled testimony based upon my disability. For example, I do recall hearing testimony that the defendant had a prior extortion conviction." Juror No. 5451 concluded that "knowing myself and the difficulty I have in remembering things if I were in the defendant[]s position and one or more jurors had the same memory deficiency that I suffer from I do not believe that I would feel comfortable having them participate as trial jurors in my case."

The trial court denied the motion because "the defense has not presented sufficient evidence to grant their motion for new trial on the grounds they cited." "When a party seeks a new trial based on juror misconduct, the trial court must determine from admissible evidence whether misconduct occurred and, if it did, whether the misconduct was prejudicial." (People v. Loot (1998) 63 Cal.App.4th 694, 697.)

The California Supreme Court has "long held that a defendants objection to a jurors competency, first made after trial, is belated and not cognizable on appeal. [Citations.]" (People v. Hill (1992) 3 Cal.4th 959, 985, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) "[A] defendant who knew about a jurors incompetency or who should have discovered the incompetency on voir dire may not raise the objection after trial. [Citations.]" (People v. Green (1995) 31 Cal.App.4th 1001, 1016; see also Hill, 3 Cal.4th at pp. 985-986.) Here, the juror disclosed at voir dire that she had suffered a stroke—a commonly-known medical condition involving the loss of brain function—and later had a relapse. The jurors statement that she was presently on complete disability revealed that she continued to experience significant consequences from the stroke and relapse. Because Juror No. 5451s disclosure of her medical problem and continuing disability were sufficient to alert counsel of her possible impairment, Changs counsel—having declined to inquire further into the jurors competency—may not now object on that basis. (Green, at p. 1016; Hill, 3 Cal.4th at pp. 985-986; cf. Jutzi v. County of Los Angeles (1987) 196 Cal.App.3d 637, 655 (Jutzi) ["Ms. Whitsitt made no attempt to conceal her past involvement with [defendant] County Hospital. Once her experience was revealed it was the function of plaintiffs attorney to explore the subject if he wished and decide for himself whether a potential for juror bias existed"].)

Even if the issue were not waived, however, there is no evidence of juror misconduct through concealment here. There is no indication in the record that the juror concealed information at voir dire. (People v. Majors (1998) 18 Cal.4th 385, 417-420 (Majors) [no concealment when juror responded truthfully to questions but did not offer information beyond the questions scope].) Far from hiding her medical condition, Juror No. 5451 volunteered that she had suffered a stroke and relapse in response to a question that did not actually seek that information—the question of how long she had been running a household. (Cf. Jutzi, supra, 196 Cal.App.3d at pp. 654-655 [no evidence of concealment on voir dire when the prospective juror "willingly revealed" her experience with a party in response to a general question].)

Juror No. 5451 was not asked about her memory, any impairment from her stroke, or her fitness to serve, and therefore, contrary to Changs allegations, she did not give "untruthful" or "false" voir dire answers. Defense counsel appears to base his allegations on the jurors silence in response to the following question posed to the prospective alternate jurors as a group: "With respect to anything that youve seen today, any questions the judge has asked of you, any questions or answers you heard yesterday, is there anything that hasnt been asked of you that maybe should have or some certain information that would pertain to a question that you think we attorneys and the court would want to know?" This overly general question was hardly "specific and free from ambiguities so that the only inference which can be supported is that Juror [No. 5451] was aware of the information sought regarding her memory impairment and deliberately concealed it." A jurors failure to disclose particular information in response to an "inartfully framed" question that fails to make clear "what information counsel was soliciting . . . or how it could be answered" may not reasonably be construed as concealment. (People v. Jackson (1985) 168 Cal.App.3d 700, 705.)

This case is distinguishable from the decisions Chang cites in which jurors failed to disclose relevant information directly sought by specific, unambiguous voir dire questions. In People v. Diaz (1984) 152 Cal.App.3d 926, 930-931, the juror did not disclose that she had been assaulted with a knife during an attempted rape and that she had stabbed her assailant, despite voir dire questions asking whether jurors had been the victim of a crime or involved in a knife fight. The juror in People v. Blackwell (1987) 191 Cal.App.3d 925, 928-930 concealed that "she was the victim of an abusive former husband who became physically violent when drinking" when asked whether she "had ever experienced domestic violence, and whether she had ever seen or experienced domestic, and specifically spousal, violence or alcoholism within her family."

Because there is no evidence that Juror No. 5451 concealed information at voir dire, the trial court properly concluded that Chang had not established juror misconduct. (See Majors, supra, 18 Cal.4th at pp. 417-420.) As the court explained in People v. Duran (1996) 50 Cal.App.4th 103, 115, when the party moving for a new trial on the basis of alleged juror concealment has not established that information was concealed, the motion for a new trial was properly denied: "Absent this showing [of concealment at voir dire], there was no misconduct. Without misconduct, there was no error on the part of the trial court in denying the motion for new trial."

DISPOSITION

The judgment is affirmed.

We concur: TURNER, P.J. and GRIGNON, J.