Opinion
No. A150350
02-23-2018
THE PEOPLE, Plaintiff and Respondent, v. FESUIAI SOLI FUIMAONO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. H57713)
Defendant Fesuiai Soli Fuimaono appeals from a judgment against him issued upon his conviction for multiple sexual assaults against Jane Doe when Jane Doe was a minor. He argues his conviction must be reversed because the trial court abused its discretion when it discharged a juror without conducting a sufficient investigation into possible juror misconduct. We conclude the trial court did not abuse its discretion and affirm.
BACKGROUND
In July 2015, the Alameda County District Attorney charged defendant by information with committing a lewd act on Jane Doe, a child under the age of 14 (Pen. Code, § 288, subd. (a) ); continuous sexual abuse of Jane Doe between May 29, 2003, and May 28, 2004 (§ 288.5, subd. (a)); two counts of unlawful sexual intercourse with Jane Doe, a minor more than three years younger than defendant, spanning a period from May 29, 2010 to May 28, 2012 (§ 261.5,subd. (c)); two counts of oral copulation of Jane Doe, a person under the age of 18, spanning a period from May 29, 2010 to May 28, 2012 (§ 288a, subd. (b)(1)); and sexual penetration with a foreign object of Jane Doe, a person under the age of 18, from May 29, 2011, to May 28, 2012 (§ 289, subd. (h)).
All statutory references are to the Penal Code. --------
Jane Doe, 22 years of age at the time of trial, was the principal witness against defendant. She testified that defendant, her mother's boyfriend, had sexually assaulted her repeatedly during two different time periods when she was a minor, the first period beginning when she was about nine years old and the second period beginning when she was 15 or 16. These assaults included molestation, oral copulation and penile penetration. Although there was no eyewitness testimony to corroborate Jane Doe's accounts, relatives testified that as a child, Jane Doe told them of defendant's earlier assaults on her. Also, Jane Doe testified that defendant had certain scars in his pelvic area, the existence of which was confirmed by other testimony.
The jury began its deliberations at 3:41 p.m. on Wednesday, October 26, 2016. The next day, it deliberated from 9:05 a.m. to 4:21 p.m., which included time spent sending questions to the court and requesting read-backs of testimony. Just after 11:00 a.m. the next day, Friday, the jury notified the court that it was hung without indicating how it was divided. After discussing the matter with counsel and expressing the view that the jury had engaged in actual deliberations—as opposed to writing questions and requesting read-backs—for only a few hours, the court instructed the jury to continue deliberations. After about another 45 minutes of deliberations, the proceedings were recessed for the day as scheduled and the jury was instructed to return the following Wednesday.
According to the later recollections of the court and the prosecutor, after the jury left for the day at around 12:04 p.m., "two additional buzzes" came from the jury room and "uncontrollable sobbing" was heard coming from behind the jury room's closed door. With counsel's concurrence, the judge investigated and brought Juror 12 to the courtroom.
Juror 12 was "very tearful" in the courtroom. The court told her it did not want to know anything about the deliberations and asked if her emotional state had anything to do with her sitting as a juror. Juror 12 responded, "I think that, without divulging any vital information or too much, I feel like I have been personally attacked by my peers, or some of my peers, and I don't feel like—I feel like, in continuing, that I'm forced to try to defend myself. And it's very difficult. I feel attacked . . . . [¶] I came in with the best intentions, trying to do the best job that I can because this is my civic duty, but this is—. . . ." The court then asked Juror 12 if she was asking to be removed from the jury, and a few moments later asked again. Juror 12 said "yes" each time. Crying, she told the court her request was not related to the type of charges, but just to her "responsibilities in deliberating." The court asked Juror 12 to return at 10:00 a.m. on the following Tuesday, the day before jury deliberations were to resume, so that she could calm down and the court and counsel could discuss what to do. She agreed to return on Tuesday.
The court convened a hearing with counsel only the following Monday, October 31, at which time the court and counsel made a record of the events that we have just recounted. Counsel also referred to section 1089 and several cases regarding removal of a juror. The prosecutor contended the relevant law contemplated two different scenarios, one involving jury misconduct, which was not at issue, and the other involving removal of a juror at his or her request. Defense counsel agreed there was a need to further question Juror 12 regarding her emotional state, but also argued the inquiry should encompass whether any type of jury misconduct occurred in order to ascertain whether good cause existed to discharge her as a juror. The court stated it would inquire further of Juror 12 the following day.
The next day, the court, counsel and Juror 12 again gathered in the courtroom. As it began addressing her, the court noted that Juror 12 was "tearing up now." The court repeated that it did not want to know about the jury's deliberations and, noting Juror 12 had previously said she "felt attacked," asked if any of the jurors physically touched her, threatened to use force on her, or used force on her in any way; Juror 12 replied in the negative. The court asked if Juror 12 felt any juror was "acting grossly inappropriately in what they said or did that I should check out further," or if "it's just the reality there were several people, they all seemed rude." Juror 12 responded, "The latter," and said several people were more than just rude. She continued, "It's personal. Things have been said to me that are, like, personally shaming of my views. People who don't know me," and Juror 12 said she felt "bullied." She told the court a "handful of other jurors" were engaging in this "continuing behavior." Asked by the court if this was "a part of the reality of deliberations," she said, "Yes."
After Juror 12 left the courtroom, the court stated, "That she teared up again should not be surprising to me. It's clear I intend to go forward and let her go. It is clear that the stress of this is an emotional issue; so clear that it provides good cause. [¶] Separately from that, as the defense suggested, I felt a duty to investigate about deliberations, without asking about deliberations, to see if the further investigation is needed." The court asked if counsel had any suggestions about further inquiries.
The prosecutor had no suggestions. Defense counsel objected to the court discharging Juror 12, arguing that the juror was essentially alleging that other jurors had engaged in misconduct, including rudeness, personal shaming, and bullying. He contended that the court was obligated to further investigate and that the misconduct might be cured by an admonishment to the jury as a whole or a rereading of relevant jury instructions.
The court disagreed that further investigation or instruction was needed under the circumstances. It recounted finding Juror 12 crying in the jury room, characterizing her as having "basically emotionally collapsed," and stating that to say Juror 12 was "crying" understated her condition. It continued, "It is so clear that, emotionally, it's not proper to expect her to go forward. I don't know that time changes that. I don't know what I'm supposed to do to magically make that better. [¶] From the point of view of what I saw of her, her ability to deliberate is broken. If she goes in, I push her back in, deliberation is not going to happen; she's going to acquiesce or she's made up her mind. But that's not the key. What's the key here is it's not fair to her to put her in that position. [¶] That's where I'm at."
The court discussed the case law briefly and then continued, "I've seen a breakdown. . . . And the hurt's not gone away. There's nothing in her demeanor or what she said to suggest she's made up her mind, that she's going to try again or she is eager to do it at all. I don't know how I can, for the purposes of her well-being, put her back in that situation. Whatever that situation is. It may be the conduct of jurors has been totally appropriate. It may be it's been somewhat inappropriate. It's clear from what I've asked it's not totally inappropriate." The court did not think it was a "feasible alternative" to push Juror 12 further about what happened, which might result in her getting into the content of deliberations. It thought "the case law is very clear jurors don't have to be courteous to each other." It would pursue the matter if the problem was a threat from another juror, but it noted that Juror 12 was not indicating this was the case.
Defense counsel disagreed, and again suggested that "if we can cure the conduct, the quote/unquote bullying, the rudeness, then perhaps she can continue to deliberate." The court thought it only fair to discharge her, but agreed to try to pinpoint further if there was another problem. The court brought Juror 12 back into the courtroom. Upon further inquiry by the court, Juror 12 stated there was nothing involving any of the other jurors that she felt warranted further investigation by the court. The court then discharged Juror 12 and denied defense counsel's motion for a mistrial.
The following day, the court seated an alternate juror. It brought the jury foreperson into the courtroom and informed him that the court had found good cause to release Juror 12 "for basically personal reasons." The foreperson, responding to the court's inquiries, said that no juror had made any "physical threats" or "gestures of a physical nature that would normally appear threatening," and indicated that deliberations had been consistently "courteous" and "civil." After soliciting further questions from counsel, the court asked the foreperson whether anyone on the jury engaged in any name-calling. The foreperson responded, "No." The court asked if the foreperson had difficulty controlling any conduct during deliberations. The foreperson said, "We had a Juror No. 12 that was very passionate about [¶] . . . how she felt" and agreed that other jurors similarly "may have shown some passion about how they felt." The foreperson indicated that "the clashes" were one-sided, but that opinions were discussed "in a civil manner."
The court then called in the jury and instructed it again on the proper procedures and appropriate decorum to follow in deliberations. The jury resumed deliberations at 11:19 a.m. and recessed for the day at 4:00 p.m. It resumed deliberations at 9:45 the following morning and reached its verdicts of guilty on all counts at 11:24 a.m.
The trial court subsequently sentenced defendant to state prison for a total term of 15 years and 4 months, imposed standard fines and fees, and awarded defendant presentence credit for a total of 310 days.
Defendant filed a premature notice of appeal before sentencing and entry of judgment, which we liberally construe as an appeal from the judgment. (Cal. Rules of Court, rule 8.104(d)(2).)
DISCUSSION
Defendant argues we must reverse his conviction because the trial court abused its discretion by discharging Juror 12 before it conducted a sufficient investigation into the conduct of other jurors. He contends that there was no good reason why her "discomfort" during deliberations could not have been cured. We disagree.
A criminal defendant has a constitutional right to a unanimous verdict by a fair and impartial jury. (U.S. Const., 6th & 14th amends.; Cal. Const., art. I, § 16.) A trial court may discharge a sworn juror under certain circumstances. Section 1089 states in relevant part, "If at any time . . . a juror . . . upon . . . good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors." "Removing a juror is, of course, a serious matter, implicating . . . constitutional protections . . . . While a trial court has broad discretion to remove a juror for cause, it should exercise that discretion with great care." (People v. Barnwell (2007) 41 Cal.4th 1038, 1052, fn. omitted (Barnwell).)
"Once a trial court is put on notice that good cause to discharge a juror may exist, it is the court's duty 'to make whatever inquiry is reasonably necessary' to determine whether the juror should be discharged." (People v. Espinoza (1992) 3 Cal.4th 806, 821.) Such an inquiry "is central to maintaining the integrity of the jury system, and therefore is central to the criminal defendant's right to a fair trial." (People v. Kaurish (1990) 52 Cal.3d 648, 694.)
We review a court's decision to remove a juror under section 1089 for abuse of discretion, "asking whether the grounds for such removal appear in the record as a demonstrable reality." (People v. Thompson (2010) 49 Cal.4th 79, 137 (Thompson).) "The demonstrable reality test entails a more comprehensive and less deferential review [than the substantial evidence test]. It requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion . . . ." (Barnwell, supra, 41 Cal.4th at pp. 1052-1053.) We "consider not just the evidence itself, but also the record of reasons the court provides." (Id. at p. 1053.)
As with a substantial evidence review, we do not reweigh the evidence in applying the demonstrable reality test. (Barnwell, supra, 41 Cal.4th at p. 1053.) We afford deference to the trial court's credibility determinations and factual determinations, as they are based on firsthand observations. (Ibid.) "[N]ot every incident involving a juror's conduct requires or warrants further investigation. 'The decision whether to investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror—rests within the sound discretion of the trial court.' " (People v. Cleveland (2001) 25 Cal.4th 466, 478.) "[A] trial court's inquiry into possible grounds for discharge of a deliberating juror should be as limited in scope as possible, to avoid intruding unnecessarily upon the sanctity of the jury's deliberations. The inquiry should focus upon the conduct of the jurors, rather than upon the content of the deliberations." (Id. at p. 485.)
Defendant contends that "[e]ven if Juror 12 felt somehow 'attacked' because of her passionate expressions, or that her opinions were countered by other jurors' passionate opinions, there is no reason to believe any resulting stress could not have been relieved by reinstruction and further admonition by the court, as requested by defense counsel." But instead of conducting a further investigation that could have led to such curative action, the court, "operating in a factual vacuum, . . . simply relieved Juror 12 because she expressed some discomfort in deliberating. But to exercise the power of judicial discretion, all the material facts in evidence must be both known and considered, together also with the legal principles essential to an informed, intelligent and just decision. . . . [T]hat did not occur in this case. . . . [T]he court's premature and unsupported release of Juror 12, without having attempted any available potential remedies before doing so, deprived [defendant] of his constitutional rights to due process and trial by jury."
Defendant's argument ignores the findings that led to the trial court's decision. After it inquired and observed Juror 12 on two occasions separated by three days during which she could have, but did not, regain her composure, the court found she had had an emotional breakdown that had "broken" her ability to deliberate, that her emotions were not abating and that there was no feasible cure. As the California Supreme Court has held on multiple occasions, a juror's emotional state may provide good cause for the juror's discharge if it prevents the juror from performing his or her duties. (See People v. Lynch (2010) 50 Cal.4th 693, 744-745 [trial court acted within its discretion in discharging a juror because of a concern that his "negative emotional state" was affecting his objectivity and ability to perform his duties after the court "exhaustively examined" the juror and gave him a day to regain his composure]; Thompson, supra, 49 Cal.4th at p. 138 [trial court had good cause to discharge a juror based on the court's concern that "her extremely distressed state" interfered with her ability to deliberate]; People v. Lucas (1995) 12 Cal.4th 415, 489 [court did not abuse its discretion in discharging a juror under section 1089 because, "[a]lthough the juror stated the cancellation of her vacation would not affect the discharge of her duties as a juror, her behavior and demeanor" indicated otherwise to the court].)
Here, the trial court thoroughly examined and observed Juror 12 regarding her emotional state. The court noted repeatedly that Juror 12 appeared to be very upset, including after she had three days to compose herself. Juror 12 made clear that she had been personally upset by how she had been treated by other jurors and did not feel capable of performing her duties any longer, and she requested to be discharged. This was, in the court's words, "a person basically emotionally collapsed," whose "ability to deliberate is broken. If she goes in, I pushed her back in, deliberation is not going to happen; she's going to acquiesce or she's made up her mind." The evidence coupled with the court's findings meet the demonstrable reality standard and supports its decision to remove Juror 12.
Defendant's argument that the court should have further investigated the reasons for Juror 12's "discomfort" neither contends with the court's conclusion that her ability to deliberate was broken, nor explains how further investigation would have enabled her to again deliberate. The court made its decision only after Juror 12 responded to its inquiries by saying that no threats had been made to her, that the hurtful things said to her were a part of the reality of deliberations, and that there was nothing involving any of the other jurors that she felt warranted further investigation by the court. (Although it was after discharging Juror 12, the court also inquired of the foreperson, who confirmed that the interactions in the jury room were nothing more than a passionate exchange of views, and the court then reinstructed the jury on appropriate decorum in deliberations.) Nothing in the cases defendant cites requires further investigation under such circumstances, and, indeed, the cases caution against investigating too much. (See People v. Cleveland, supra, 25 Cal.4th at p. 485 [cautioning that "a trial court's inquiry into possible grounds for discharge of a deliberating juror should be as limited in scope as possible, to avoid intruding unnecessarily upon the sanctity of the jury's deliberations"]; Thompson, supra, 49 Cal.4th at p. 137 [trial court did not abuse its discretion in choosing not to investigate further the defense's speculations of threat, where the trial court's questioning of the emotionally affected jurors did not reveal evidence to suggest that threats or attempts to drive off certain jurors were occurring].) The court did not abuse its discretion in concluding further inquiry of the other jurors would not have changed Juror 12's emotional state or enabled her to regain the ability to participate in deliberations.
DISPOSITION
The judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.