Opinion
F061119 Super. Ct. No. BF131194A
09-22-2011
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN LLOYD FINLEY, Defendant and Appellant.
Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent .
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Louis P. Etcheverry, Judge.
Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Benjamin Lloyd Finley was convicted of one count of lewd and lascivious acts upon a child under the age of 14 years and was found to have a prior felony conviction, which was both a prior serious felony and a prior strike conviction.
On appeal, Finley contends that the trial court erred by failing to conduct a sufficient inquiry to determine whether good cause existed to discharge a juror. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORIES
In February 2010, M.L. lived in a one-bedroom apartment in Bakersfield with her two children, four-year-old B.L. and the victim in this case, 11-year-old D.L. M.L. and Finley were coworkers at Goodwill Industries. They began dating, and Finley watched M.L.'s children a couple times.
On the morning of Sunday, February 28, 2010, M.L. was scheduled to work and Finley volunteered to watch M.L.'s children. Finley arrived at M.L.'s apartment. Finley and B.L. watched television in the living room. D.L. started doing some homework, sitting on her bed in the bedroom.
Finley went into the bedroom and closed the bedroom door. He asked D.L. if she was doing okay in school and if the family was doing okay, "like for paying the rent." Finley asked D.L. if she would let him touch her "private part" and he would pay all the bills and make her mom happy. If she did not let him, he would turn her mother in to immigration. At first D.L. said no, but Finley asked again and again. She said okay. Finley asked her to pull down her pants and underwear and lie down on the floor. He started "touching [her] private part like forward and backward."
D.L. told Finley she had to go to the bathroom. She went to the bathroom and saw blood in her urine. She was afraid because she had never seen that before as she had not had a period at that point. D.L. took a shower. When she came out of the bathroom, she noticed that Finley was not in the apartment.
That evening, M.L. and her two children went to a friend's house for dinner. On the drive home, M.L. told D.L. about a coworker's daughter who was abused by a man. D.L. then asked M.L. if she could take her to the doctor because she had vaginal bleeding. M.L. asked D.L. what happened and whether Finley had touched her, and D.L. told her mother what had happened. M.L. called 911.
The police went to the apartment and spoke to D.L. She and M.L. then went to the hospital. D.L. was examined that night by an emergency room nurse trained in examining sexual assault victims. D.L. reported to the nurse that her mother's boyfriend had put his fingers into her vagina. The nurse observed abrasions and a laceration on her genitalia. These injuries were consistent with what D.L. reported had happened to her.
Finley was charged with one count of lewd and lascivious acts upon a child under the age of 14 years in violation of Penal Code section 288. It was also alleged that Finley had a prior conviction that was both a prior serious felony (§ 667, subd. (a)) and a prior strike conviction for purposes of the three strikes law (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e).)
Subsequent statutory references are to the Penal Code unless otherwise indicated.
A jury found Finley guilty of the charge of lewd and lascivious acts upon a child. In a bifurcated proceeding, the court found true the allegations that Finley had suffered a prior serious felony and a prior strike. The court sentenced Finley to a total term of 21 years in prison.
DISCUSSION
During the trial, Finley's attorney, Mr. Lidgett, observed Juror No. 6 and was concerned that he appeared to become very emotional and later appeared not to be listening to a witness or looking at the evidence. Mr. Lidgett requested that the court voir dire the juror to determine whether he had already made up his mind. The court declined to do so. Counsel also feared that Juror No. 6 was prejudiced against him based on his perception that the juror was "challenging" him. He moved for a mistrial, and the court denied the motion. The only issue Finley raises on appeal is that the trial court erred by failing to conduct a sufficient inquiry to determine whether good cause existed to discharge Juror No. 6.
Section 1089 provides that a trial court may discharge a juror who "becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty ...." "'A juror's inability to perform his or her functions ... must appear in the record as a "demonstrable reality" and bias may not be presumed.' [Citations.]" (People v. Beeler (1995) 9 Cal.4th 953, 975.)
The decision whether to discharge a juror for good cause is reviewed for an abuse of discretion. (People v. Beeler, supra, 9 Cal.4th at p. 989.) "The court's discretion in deciding whether to discharge a juror encompasses the discretion to decide what specific procedures to employ including whether to conduct a hearing or detailed inquiry." (Ibid.)
In order to determine whether the trial court abused its discretion, it is necessary to review the parties' various discussions regarding Juror No. 6. D.L. was the first witness to testify at trial. During her testimony, Mr. Lidgett asked for a sidebar. After a discussion that was not reported, the court ordered a morning break. Outside the presence of the jury, the court and attorneys discussed Juror No. 6's emotional state. Mr. Lidgett observed the juror crying, although the court and the prosecutor, Mr. Spielman, did not. The court asked the bailiff to speak with Juror No. 6 and make sure he could compose himself.
The prosecution's next witness was the emergency room nurse who examined the victim. After the nurse's testimony concluded, and outside the presence of the jury, Mr. Lidgett raised the issue of Juror No. 6 again. He told the court that it appeared to him that Juror No. 6 had already formed an opinion in the case. Counsel observed that the juror was not listening to the witness or looking at the photographic evidence of the victim's injuries. In addition, counsel asserted that Juror No. 6 was "staring [him] down." The court stated that it had looked at Juror No. 6 quite a few times and noticed him paying attention. The court commented that jurors often look out the window or close their eyes, but they are listening. The court proposed expanding on the admonition to the jury not to form an opinion until all the evidence was heard.
Mr. Lidgett was not satisfied with a jury admonition and asked to bring Juror No. 6 in to see if he had formed any opinions in the case. The court denied this request, stating, "[I]f I bring [Juror No. 6] in and ask him that, I'm confident that he is not, then you [Mr. Lidgett] would probably have him against you."
The court also said that it had seen jurors "who stare at people and then end up voting for them." Mr. Lidgett responded, "[T]here are stares and there are certain other things. He challenged me right now. If you want to keep him on there right now, a guy that is challenging, I think there should be a mistrial on this case." The court disagreed. It explained, "[R]ight now I'm looking at your perception. I have not seen anything to justify singling him out. I will look at him and I will pay attention." The court reiterated that it would observe Juror No. 6 and would consider questioning him if it observed any conduct warranting such an inquiry: "I will watch .... I will pay attention. You [Mr. Lidgett] brought it to my attention and if, in fact, I see that, and we will have more evidence this afternoon, then I may very well reverse myself and do what you suggest. The very best I can do is look myself."
The jury returned to the court room, and the court admonished it:
"When I admonish you not to talk about the case among yourselves, not to form any opinions on the case, and not to talk with any third parties, there is a good reason for that because we are still in what's called the People's case, we haven't got into the defense side of the case yet.
"So it is very important that you remember two things. You have to hear all the evidence in this case before you make up your mind and form your opinions. Not only do you have to hear all the evidence, you have to hear the arguments of the lawyers and then you have to hear my instructions on the law....
"And further, you are not advocates. These are the advocates, Mr. Spielman and Mr. Lidgett. They are the advocates. You are the judges of the facts. All right. It is your job to judge the facts, not to advocate one
side or the other. You are supposed to, each of you, make up your individual mind as to whether the facts are true or not true. Then, during your deliberations, you share all that and you come up with a verdict, if you can. And it is very important that you understand that.
"So that—in these kind of cases here, especially in a situation we have a child molestation case, you have to—you have to still exercise constraint and recognize that you have to sit through the whole trial before you make up your opinions on anything. So that's very important for you to know."
After another witness's testimony (D.L.'s school teacher), the court asked whether Mr. Lidgett had intended his earlier statement to be a motion for a mistrial. Counsel responded, yes, he was making a motion for a mistrial. The motion was denied.
The entire discussion on the motion, held outside the presence of the jury, was as follows:
"THE COURT: Okay. I needed to clarify something for the record. And Mr. Lidgett, when we talked last you mentioned a mistrial. Were you making—did you make a motion for mistrial or did you not?addresses any potential problem. I don't see anything that rises to a level of a mistrial.
"MR. LIDGETT: I was making a motion for mistrial.
"THE COURT: You were.
"MR. LIDGETT: Yes.
"THE COURT: All right. Do you want to address that motion for mistrial then? I didn't understand it as such. But go ahead.
"MR. SPIELMAN: The circumstances including the—I think the court was probably watching.
"THE COURT: I watched this whole testimony.
"MR. SPIELMAN: Okay. And I haven't noticed anything that— Mr. Lidgett has a better view of it because he is across from him, but he is certainly in my peripheral vision. And I haven't noticed anything by the juror. And the court gave an admonition, that I don't think it really even needed to, and it probably—I don't know if it really affects my case, but it was something above and beyond what normally is done. So I think it
"THE COURT: I want to make a comment so Mr. Lidgett can address it. I did watch. In fact, I was going to mention that on two different occasions he gave a smile of approval to you, Mr. Lidgett. And I don't know if you picked it up or not. The thing—but go ahead and you get the last word before I rule.
"MR. LIDGETT: Your Honor, as to the last time we came in, I made certain not to make any eye contact with him so I did not watch him one bit. I didn't want to inflame any more. Looked like when he came in, he did not look at me. I left it at that. So the reason that I'm scared, I have never had this—a number of years being an attorney and all the jury trials that I have had before. It looked like—originally he had basically—when the witness started crying the first time, he seemed to lose control of himself, he started crying. He did compose himself, I grant that. And then afterwards though when Donna Beeson, the nurse, was talking about the injuries, I saw him, he stopped looking at the TV, put his head down and almost covered his ears in that type of position as to—that he didn't want to hear this any more. And when he got up, he gave me a—shot me a look. When I went outside, he shot me a look. I have never had this type of strong feeling from a juror before with such dislike or distaste, at least so overtly. They might be secretly doing that though but not so overtly. So that was the reason why I just don't think with him up there—I would like to have asked individually whether or not he's formed an opinion. And if he obviously says that he has not formed an opinion, then we can continue. The reason I'm asking for the mistrial, we didn't get to do that, I think he's formed an opinion. Obviously though I have not, in the last session, seen anything to where he has done anything negative towards me.
"THE COURT: Okay. So submit it, Mr. Lidgett?
"MR. LIDGETT: Submit it.
"THE COURT: Submit it, Mr. Spielman?
"MR. SPIELMAN: Yes.
"THE COURT: I do want to make a couple notes. I went back, also looked at my notes, there was a couple things that bothered me and I didn't mention them because I didn't think we were talking about a mistral. But when you started your—I could see where somebody could get upset if they interpreted, like I did, when you started your cross-examination of the
victim this morning at 11:27, you opened with the fact that—about asking her questions about her father, which immediately got her crying again. She started crying quite violently when Mr. Spielman touched on this subject. And I have in my notes used father, setup. I don't know if it's a setup or not to get her off balance by having her crying again. But I could see where a juror could get upset about that. I want you to listen to what I'm saying.[]
"MR. LIDGETT: Okay.
"THE COURT: I'm not making my things up. What I'm trying to say, what are some things that could happen that would have gotten any juror mad. The other one was the use of the baseball bat tearing out the inside of the gal or something like that. You tried to dehorn it after you said it when you were cross-examining Ms. Beeson [the emergency room nurse]. I could see that would bother any juror when you described something by using a baseball bat.[] And don't think that you did that intentionally, but I'm just saying I'm thinking of other things. Then as to the photos, the vaginal photos, I don't know anybody that likes particularly looking at those things. And like I say, you don't have to look very long at them to see it. I didn't notice that to see what is there and then he will have those photos again for them. So, I am going to deny your motion.
"And then also I did watch him very closely. And there is no doubt in my mind—in fact, I was a little surprised on two different occasions he gave you a smile of approval. And then if it helps you any, the person that he has been looking at is me a couple times not with the most approving situation. But I just think it is his makeup. I don't—just—I don't see anything here that would indicate anything for me to grant a mistrial. So that motion is denied."
During direct examination, Mr. Spielman asked about D.L.'s father. He asked if she knew where her father was. D.L. responded that he was in the hospital and apparently started crying. (The reporter's transcript does not note that the witness was crying, but the court pointed out the Kleenex and Mr. Spielman said, "It is okay. It is okay.") At the beginning of cross-examination, Mr. Lidgett asked, "Do you love your father?" D.L. apparently began crying again, as Mr. Lidgett said, "I don't mean to make you cry, honey. Do you love your mommy?" D.L. answered yes to both questions. Mr. Lidgett then asked if she wished they were together and she responded yes.
The emergency room nurse testified that D.L.'s injuries were consistent with the history she gave; however, she could not determine definitively whether D.L. had been sexually abused. On redirect examination, the nurse testified that on only one occasion in three years of performing sexual assault medical examinations was she able to say definitively that the child's injury was the result of sexual assault, and, in that case, the victim required surgery. On recross-examination, Mr. Lidgett asked if, in the case of the victim who required surgery, the assault was "done by ... a man's penis, finger" or "like it was some foreign object, something really large like a baseball bat or something ungodly like that?"
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On appeal, Finley argues that, once the court was put on notice of the possibility that a juror could not perform his duty, it was obligated to make whatever inquiry was reasonably necessary to determine whether the juror should have been discharged. (People v. Bradford (1997) 15 Cal.4th 1229, 1349.) Finley further contends that the trial court was required to question Juror No. 6 about whether he had formed an opinion. As we have observed, however, a court has "the discretion to decide what specific procedures to employ" to investigate whether a juror should be discharged. (People v. Beeler, supra, 9 Cal.4th at p. 989.) Here, the trial court chose to conduct an initial inquiry by closely observing Juror No. 6, rather than by questioning him. The court did not observe any conduct warranting further investigation. Under these circumstances, we conclude that the court acted within its discretion.
In People v. DeSantis (1992) 2 Cal.4th 1198 (DeSantis), defense counsel reported to the court that four jurors appeared to be dozing. (Id. at p. 1233.) The court stated that it had not noticed them to be dozing. Later, defense counsel again raised the possibility that a particular juror was sleeping. The court disagreed, stating, "'I was watching, and he was twiddling his thumbs while he had his eyes were closed, so it was apparent ... you can't sleep and twiddle your thumbs at the same time.'" The court also noted, "'I was keeping a close eye on it [whether jurors were dozing], and I was ready to call a recess ....''' (Ibid.)
On appeal, the defendant in DeSantis argued that the court had failed to act after being advised of the possibility of sleeping jurors. Our Supreme Court disagreed, finding that the court had engaged in an appropriate inquiry. (DeSantis, supra, 2 Cal.4th at
p. 1234.) The court rejected the notion that a formal hearing is always required when a party raises the possibility that a juror is unable to perform his duties:
"[T]he failure to conduct a formal hearing is not always error and was not error here. The record reveals that the court was constantly alert to the danger of jurors' dozing and observed the allegedly offending members closely. It found that none was dozing and made specific observations to that effect .... [T]he court did undertake a self-directed inquiry, short of a formal hearing, that recognized the conflict between the need for a fair trial by 12 competent jurors and the undesirability of interrupting the proceedings whenever a question of juror inattention is raised. We believe the court's self-directed inquiry was adequate under the state and federal Constitutions and state law, and find no error." (DeSantis, supra, 2 Cal.4th at p. 1234.)
Likewise, in this case, the court conducted a self-directed inquiry, watching Juror No. 6 "very closely" after defense counsel complained about him. An initial observational investigation seems especially appropriate here since counsel's concerns were based solely on his own observations. The court indicated that it would consider questioning Juror No. 6 if it observed any conduct corroborating Mr. Lidgett's concerns that the juror was "challenging" him and had already formed an opinion on the case. The court noticed, to the contrary, that Juror No. 6 gave a smile of approval to counsel on two occasions. (See People v. Beeler, supra, 9 Cal.4th at p. 989 ["the trial court was in the best position to observe the juror's demeanor"].) As in DeSantis, the court's self-directed inquiry was adequate under the circumstances, and we conclude there is no error.
Finley argues that "the trial court took the view that it did not matter that [Juror No. 6] had prejudged the case if it was defense counsel's [cross-examination] of the victim that brought about that state of affairs." We reject the premise of this argument. The court merely noted that (1) it could understand a juror becoming upset about Mr. Lidgett asking the victim about her father and causing her to cry and (2) counsel's question of the emergency room nurse about whether a baseball bat had been used to sexually abuse a young victim could bother a juror. The trial court did not make a determination that Juror No. 6 had prejudged the case.
Finley also contends that a juror who is upset physically and emotionally by evidence provides a sufficient basis to remove the juror, citing People v. Van Houten (1980) 113 Cal.App.3d 280. In Van Houten , the juror asked to be removed from the jury because she was so upset by the grisly photographic evidence. (Id. at p. 285.) Here, in contrast, Juror No. 6 did not request to be removed from the jury or alert the court that he was too upset to perform his duties as a juror. In addition, the court watched Juror No. 6 closely after counsel brought the issue to its attention, and there is no indication that it observed the juror being unduly emotional. Even Mr. Lidgett acknowledged that Juror No. 6 composed himself after he cried. In short, the record does not reveal a "demonstrable reality" that Juror No. 6 was so emotionally upset that he was unable to perform his functions as a juror. (People v. Beeler, supra, 9 Cal.4th at p. 975.)
Finally, we observe that the court acted reasonably under the circumstances by asking the bailiff to check on Juror No. 6 after Mr. Lidgett reported that he had been crying and, later, by admonishing the jury not to form an opinion until all the evidence was presented. Finley suggests that the bailiff must have "rebuked" Juror No. 6 for being overtly hostile to defense counsel. There is no basis for this suggestion. At the time the court asked the bailiff to check on the juror, Mr. Lidgett had not yet raised the issue of Juror No. 6 staring at him and "challenging" him. The court only asked the bailiff to talk to Juror No. 6 because defense counsel had noticed that the juror was becoming emotional. The record does not disclose what the bailiff said to Juror No. 6 or his response, but there is no reason to infer that the juror was rebuked.
For these reasons, we reject Finley's claim of error.
DISPOSITION
The judgment is affirmed.
Wiseman, Acting P.J. WE CONCUR:
Levy, J.
Kane, J.