Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 02F04747 & 05F00783
BLEASE , Acting P. J.
Defendant Lilgjay Edward Johnson appeals from the judgment of conviction on count three for possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and a prior drug conviction. (Health & Saf. Code, § 11370.2, subd. (a).) The trial court sentenced him to an aggregate prison term of seven years.
The court dismissed count two for possession of a controlled substance, MDMA pills, for purposes of sale (Health & Saf. Code, § 11378) and the jury acquitted defendant on count one for both the greater offense of possession of marijuana for purposes of sale (Health & Saf. Code, § 11359) and the lesser included offense for possession of marijuana. (Health & Saf. Code, § 11357, subd. (c).)
The trial court also revoked probation in case number 02F04747 and sentenced defendant to a prison term of four years to be served concurrently with the sentence imposed in the present case.
On appeal, he contends his conviction should be reversed due to Batson/Wheeler error and the lack of an adequate record to review of that error, and juror and trial court misconduct.
Batson v. Kentucky (1986) 476 U.S. 79, 89 [90 L.Ed.2d 69, 83] (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
We find no error and shall affirm the judgment.
FACTUAL BACKGROUND
On January 25, 2005, at approximately 9:15 p.m., the Sacramento City SWAT team prepared to enter a residence located at 3654 G Parkway in the City of Sacramento pursuant to a search warrant. As the team approached the front door, a female exited the residence and then re-entered the home upon seeing the officers. At the same time, the officers heard the sound of breaking glass coming from the backyard of the residence.
The SWAT team opened the security door and forced open the front door. Officers found and detained the female in the living room. Defendant was found laying face down in the family room and was taken into custody. Three other men were caught running from the residence.
During a search of the residence and patio area, officers found several firearms, some of which were loaded, live ammunition, a TV monitor in the kitchen that was hooked up by cables to a camera over the garage, a digital scale, baggies of various sizes, some of which contained marijuana, a baggie containing nine tablets of Ecstasy, $1,500 in cash in a man’s jacket and $450 in a woman’s coat.
A law enforcement officer who searched defendant found a plastic baggy containing nine individually wrapped pieces of crack cocaine in one of his pockets. Each piece of cocaine was approximately .2 grams and sold for about $20 apiece on the street.
Sacramento Police Detective Michel Hutchins, an expert on illegal drugs, and Special Agent Brian Cole of the Drug Enforcement Agency, both opined that the cocaine was possessed for sale. Hutchins based his opinion on the amount of cocaine, the manner in which it was packaged, the size of the individual pieces, which were in common dosage units, and defendant’s presence in a house used to sell drugs. Hutchins concluded the house was being used for that purpose based upon the automobile traffic to and from the house, the security camera and door, the firearms, the absence of any smoking paraphernalia, the large amount of cash, and the hole in the security gate for the exchange of money and drugs.
DISCUSSION
I.
Batson/Wheeler Error
During jury selection, defendant made a Batson/Wheeler motion challenging the prosecution’s exercise of two peremptory challenges to excuse Ms. Hill and Ms. Interiano, two women defendant asserts are African-American. On appeal, he contends the trial court committed reversible error by denying his motion after applying the wrong legal standard to determine whether he had established a prima facie claim of racial discrimination. Defendant further contends reversal is required because there is an inadequate record to allow full and fair appellate review of his motion.
Respondent argues the Wheeler motion was properly denied and that the record is adequate for appellate review. We agree with respondent and after reviewing the record, we conclude defendant failed to establish a prima facie case of discrimination.
A. Factual Background
At the start of jury selection, 18 prospective jurors were called and seated in the jury box. During voir dire of this first group by the court, Ms. Hill stated that she had worked for The Limited, a clothing store, and she was presently a student at California State College (CSC) studying psychology. She hoped to obtain a degree in that subject and possibly become a teen counselor. Her mother worked for the Employment Development Department in human resources and her father had been arrested for driving under the influence of alcohol (DUI) in 2003, resulting in his having to perform community service and take classes. She thought his punishment was fair and there was nothing about his experience that would affect her ability to be fair and impartial. When questioned by the prosecutor about her interest in counseling teens, she stated that she liked to help people, she liked troubled youth, and she thought it would be interesting work. She further indicated she was a full-time student.
Ms. Interiano stated that she was a student at Sacramento City College but was undecided about her major. She was taking general courses and wanted to teach Spanish after she completed her education. Ms. Interiano indicated she was a full-time student and prior to being a college student, she worked at 24 Hour Fitness for almost a year. When asked about a defendant’s right not to testify, Ms. Interiano stated “[i]t would be nice to hear from both sides.” In response to the question whether she would have a hard time deliberating if the defense failed to present any evidence, she said, “[p]ossibly in a way, but not necessarily.” Finally, in response to the prosecutor’s question, she indicated that she was not sure whether she would be hesitant once deliberations began.
The prosecutor exercised her first peremptory challenges to excuse Ms. Interiano, excused three other prospective jurors, Mr. Helman, Mr. Vang and Ms. Fox, and then excused Ms. Hill. After six new prospective jurors were called to the jury box, the court went into recess and heard defendant’s Wheeler motion.
Defense counsel challenged “the prosecution’s decision to excuse [Ms. Hill and Ms. Interiano] who are the same racial descent as my client, when it does not appear on the face of either of their questionnaires or their statements in the court that there are any reasons that the District Attorney could question their ability to be fair and impartial jurors.”
When the trial court asked whether there was anything other than the two jurors’ common race, counsel responded that “both of these jurors are young students, neither one of them has experience with the victims of crimes or have any experience with law enforcement. . . . They did not provide any other statements in our oral voir dire that would give parties any reason to believe that they would side with one party or another in this case.”
The court found the defense had failed to establish a prima facie case, reasoning that Ms. Interiano had been questioned extensively about her need to hear from the defense and indicated that it might affect her verdict and the way she would deliberate. With respect to Ms. Hill, there was not much on her juror questionnaire, but she indicated her father was arrested for a DUI. The court concluded that in its view, these prospective jurors were excused for nondiscriminatory purposes in that they were both young and based on their questionnaires, did not have much life experience.
The prosecutor questioned whether Ms. Interiano was African-American. She advised the court that earlier that day while in chambers, defense counsel referred to Ms. Interiano as “Hispanic.” The prosecutor conceded that Ms. Hill was African-American but suggested that Ms. Interiano might be a “dark skinned Hispanic.” The court agreed with the prosecutor, stating that it was unclear whether Ms. Interiano was African-American, although it noted that she was dark skinned.
Reiterating that it had denied defendant’s Wheeler motion for lack of a prima facie case, the court nevertheless asked the prosecutor to state her reasons for excusing these two jurors. The prosecutor first pointed out that she had excused five jurors, two who were white (Helman and Fox), one who was African-American (Hill), one who was of uncertain nationality (Interiano), and one who was of Asian descent (Vang). She also noted that an African-American male, who was ultimately sworn in as a juror, remained in the jury box.
The prosecutor’s stated reasons for excusing Hill and Interiano were the lack of information on their questionnaires, their lack of life experience, and the fact that they were both students who, unlike “Ms. [Sworn Juror No. xxxx 2791]”, did not work at the same time. The prosecutor stated that she was “not comfortable” with Ms. Hill because she had been very quiet throughout the whole proceeding, did not raise her hand to answer any question, and the prosecutor “could not get a whole lot of information out of her” when she questioned her directly. The prosecutor had the same concerns regarding Ms. Interiano, her youth, lack of life experience, and lack of information on her questionnaire. In addition, the prosecutor was concerned because Ms. Interiano indicated that she would have to hear defendant’s evidence and the prosecutor was unable to determine whether Ms. Interiano was inclined to vote guilty if the defense chose not to present any evidence or would be unable to render a verdict at all because she did not have all of the information she wanted.
B. Analysis
It is well established that the exercise of peremptory challenges to exclude prospective jurors because they are members of a cognizable group violates the equal protection clause of the United States Constitution (Batson, supra, 476 U.S. at p. 89 [90 L.Ed.2d at p. 83] and the right to be tried by a jury drawn from a representative cross-section of the community under the California Constitution. (Cal. Const., art. I, § 16; Wheeler, supra, 22 Cal.3d at pp. 276-277; People v. Huggins (2006) 38 Cal.4th 175, 226.)
The high court in Batson formulated a three-step burden shifting procedure for evaluating a constitutional challenge to the prosecution’s exercise of its peremptory challenges. “First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, . . . , the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.’ (Citation.]” (Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 138] (Johnson), fn. omitted & italics added.)
The standard under Wheeler for evaluating the constitutionality of a prosecutor’s use of peremptory challenges is reviewed under a similar three-step process. (People v. Reynoso (2003) 31 Cal.4th 903, 915.)
A prima facie case may be established “by offering a wide variety of evidence.” (Johnson, supra, 545 U.S. at p. 169 [162 L.Ed.2d at p. 138].) However, to establish a prima facie case based solely on evidence concerning the prosecution’s exercise of its peremptory challenge at the defendant’s trial, “the defendant first must show that he is a member of a cognizable racial group [citations], and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’ [Citation.] Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” (Batson, supra, 476 U.S. at p. 96 [90 L.Ed.2d at pp. 87-88].)
Circumstances relevant to this inquiry include a pattern of discrimination against racial minorities, the impact of the prosecution’s challenge on the composition of the jury, and the prosecutor’s questions and statements during jury selection. (Batson, supra, 476 U.S. at p. 97 [90 L.Ed.2d at p. 88]; United States v. Vasquez-Lopez (9th Cir. 1994) 22 F.3d 900, 902.)
Defendant first argues that the trial court applied the wrong standard of proof in assessing whether he made a prima facie case. Respondent concedes error but argues that in such a case, the appellate court may conduct its own review, giving no deference to the trial court’s decision. We agree with respondent.
Under Wheeler the standard of proving a prima facie case is met by showing there is “a strong likelihood” the prosecutor exercised his or her peremptory challenges in a discriminatory manner. (22 Cal.3d at p. 281.) That standard was recently rejected by the United States Supreme court in Johnson, supra, 545 U.S. 162 [162 L.Ed.2d 129], where the high court found the Wheeler standard is “an inappropriate yardstick by which to measure the sufficiency of a prima facie case.” (Johnson, supra, 545 U.S. at p. 168 [162 L.Ed.2d at p. 138].) To establish a prima facie case under Batson, a defendant must only produce “evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Id. at p. 170 [at p. 139].) “An ‘inference’ is generally understood to be a ‘conclusion reached by considering other facts and deducing a logical consequence from them.’” (Id. at p. 168, fn. 4 [at p. 138].)
Because the trial court in this case ruled before the decision in Johnson was rendered, we shall assume it applied the Wheeler standard. In this situation, where the trial was pre-Johnson and the record does not demonstrate what standard of proof was used, the California Supreme Court has, in several cases, determined Batson/Wheeler issues by conducting its own review of the record, proceeding on the assumption the trial court’s decision is not entitled to deference. The court reviews the record, applies the Johnson standard, and “resolve the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race.” (People v. Cornwell (2005) 37 Cal.4th 50, 73; see also People v. Gray (2005) 37 Cal.4th 168, 187; People v. Avila (2006) 38 Cal.4th 491, 554; People v. Buchanan (2006) 143 Cal.App.4th 139, 145-146.)
Applying that standard of review, we reject defendant’s claim because the “‘record “suggests grounds upon which the prosecutor might reasonably have challenged” the jurors in question . . . .’” (People v. Box (2000) 23 Cal.4th 1153, 1188.)
1. There is No Inference of Discrimination
We begin by limiting our review to the question whether excluding one African-American female from the panel constitutes racial discrimination. Although defendant’s Wheeler motion was based upon the prosecutor’s exclusion of two females who defendant alleged were African American, there is nothing in the record to establish that Ms. Interiano is African-American. The prosecutor questioned her racial identity suggesting that she appeared to be a dark-skinned Hispanic female who defense counsel had previously referred to as “Hispanic.” The trial court agreed, indicating that it was unclear whether Ms. Interiano was in fact African American. Defense counsel did not challenge or counter any of these remarks.
When making a Batson/Wheeler motion, the defendant has the burden of establishing a prima facie case (Johnson, supra, 545 U.S. at p. 168 [162 L.Ed.2d at p. 138]) and must “‘establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule.’” (People v. Morris (2003) 107 Cal.App.4th 402, 408.) In addition, the defendant “should make as complete a record of the circumstances as is feasible.” (Wheeler, supra, 22 Cal.3d at p. 280.) Defendant has failed to do either.
Although persons with Hispanic surnames are a cognizable group for purposes of Wheeler and Batson (People v. Barber (1988) 200 Cal.App.3d 378, 393-394), defendant’s claim of racial discrimination was based on his assertion the prosecutor excluded two African-American females from the venire. As neither the prosecutor nor the trial court were able to discern whether Ms. Interiano was African-American and the record fails to affirmatively demonstrate that she was in fact African-American, we shall limit our discussion to the exclusion of Ms. Hill. Having done so, we find the record does not raise an inference of racial discrimination and shall determine whether the prosecutor excused Ms. Hill for racial bias.
Nor is it certain that Interiano is a Hispanic surname.
It is undisputed that Ms. Hill, as an African-American female, falls into a cognizable group (Wheeler, supra, 22 Cal.3d at p. 280, fn. 26) and it is well established that the constitution forbids striking even a single prospective juror for a discriminatory purpose. (United States v. Lorenzo (9th Cir. 1993) 995 F.2d 1448, 1453-1454.) However, striking the only black juror from the venire does not, by itself, raise a reasonable inference of racial discrimination and is not per se unconstitutional. (United States v. Vasquez-Lopez, supra, 22 F.3d at p. 902.) Similarly, challenging one out of two African-American prospective jurors does not support an inference of bias, particularly when another African-American juror was passed repeatedly by the prosecutor from the beginning of voir dire and ultimately seated on the jury. (People v. Cornwell, supra, 37 Cal.4th at pp. 69-70; People v. Turner (1994) 8 Cal.4th 137, 168 [exclusion of two African-American venire persons while seating two other African-American persons as jurors does not raise an inference of group bias]; People v. Snow (1987) 44 Cal.3d 216, 225 [presence of one or more African-American persons on the jury is a factor to be considered in assessing the prosecutor’s good faith].)
Here, Ms. Hill was the only African-American female excluded from the jury while at the same time, an African-American male, was seated in the jury box and was ultimately sworn in as a juror. Thus, there was no pattern of discrimination. In addition, there were legitimate race-neutral reasons for excluding Ms. Hill as a college student with little work or no life experience. Age and corresponding lack of life experience are acceptable race-neutral reasons to exercise a peremptory challenge. (United States v. Ferguson (7th Cir. 1991) 935 F.2d 862, 865 [age]; People v. Perez (1994) 29 Cal.App.4th 1313, 1328 [limited life experience].)
These race-neutral reasons applied equally to Ms. Interiano. Moreover, the inability to follow legal concepts is a legitimate reason to challenge a prospective juror (People v. Barber, supra, 200 Cal.App.3d at p. 398) and Ms. Interiano was unsure whether she could render a verdict if the defense failed to introduce any evidence.
Defendant argues that the prosecution failed to excuse a young non-African-American college student who was later sworn in as a juror. The prosecution has an interest in securing a jury panel in which all jurors are able to fully deliberate and express their views. The prosecutor noted that Ms. Hill was very quiet during voir dire and did not disclose much information in her questionnaire or when questioned. Peremptory challenges may be exercised for some demeanor-based reasons (People v. Reynoso, supra, 31 Cal.4th at pp. 925-926) and a juror's shy and withdrawn demeanor may be considered among other valid reasons. (People v. Barber, supra, 200 Cal.App.3d at p. 397.) Given Ms. Hill’s youth and lack of life experience, her quiet demeanor may have caused the prosecutor to conclude she would be unable to hold her own during deliberations or that her failure to disclose much information was an indication she was hiding something.
In sum, because there were legitimate race-neutral reasons for excluding Ms. Hill and she was the only African-American female excluded from the panel, while an African-American male was sworn in as a juror, the record fails to raise an inference of discrimination. We therefore conclude the trial court properly denied defendant’s Wheeler motion.
2. The Record Is Adequate for Appellate Review
Defendant contends his constitutional right to meaningful appellate review of his Wheeler motion was violated because the prospective juror questionnaires and case information sheet were destroyed by the clerk’s office after trial and were determined by the superior court to be beyond reconstruction. We are not persuaded.
“A criminal defendant is . . . entitled to a record on appeal that is adequate to permit meaningful review. . . . The record on appeal is inadequate, however, only if the complained-of deficiency is prejudicial to the defendant's ability to prosecute his appeal. [Citation.] It is the defendant's burden to show prejudice of this sort. [Citation.]” (People v. Alvarez (1996) 14 Cal.4th 155, 196, fn. 8.)
Defendant argues that the trial court and counsel relied upon the questionnaires during the hearing on the Wheeler motion and that without the destroyed documents, it is impossible to adequately review the prosecution’s justification for dismissing Ms. Hill. We disagree.
The trial court made reference to the questionnaires, summarizing them in part and noting that there was not much information on them. Defense counsel did not object to the court’s summary or characterization of the contents of the questionnaire and it is counsel’s duty to bring to the trial court’s attention any disagreement with the representation made by the court or the prosecutor regarding the content of Ms. Hill’s questionnaire. (People v. Heard (2003) 31 Cal.4th 946, 970.)
Nor as defendant argues are the lost documents necessary to conduct a comparative analysis as was done in Miller-El v. Dretke (2005) 545 U.S. 231 [162 L.Ed.2d 196] (Miller-El).
The California Supreme Court has stated that it will not engage in comparative juror analysis for the first time on appeal because it deems such analysis unreliable for evaluating the prosecutor’s stated reasons for excusing prospective jurors. (See People v. Box, supra, 23 Cal.4th at p. 1190; People v. Ervin (2000) 22 Cal.4th 48, 76, and cases cited.)
The court in People v. Box, supra, 23 Cal.4th at page 1190, explained that it has “‘previously rejected a procedure that places an “undue emphasis on comparisons of the stated reasons for the challenged excusals with similar characteristics of nonmembers of the group who were not challenged by the prosecutor,” noting that such a comparison is one-sided and that it is not realistic to expect a trial judge to make such detailed comparisons midtrial.’ [Citations.] ‘In addition, we have observed that “the same factors used in evaluating a juror may be given different weight depending on the number of peremptory challenges the lawyer has at the time of the exercise of the particular challenge.”’ [Citation.] ‘Moreover, “the very dynamics of the jury selection process make it difficult, if not impossible, on a cold record, to evaluate or compare the peremptory challenge of one juror with the retention of another juror [who] on paper appears to be substantially similar.”’ [Citation.]”
Miller-El, supra, 545 U.S. 231 [162 L.Ed.2d 196] does not compel a comparative juror analysis under the circumstances in this case. There the prosecution exercised its peremptory challenges to excuse 10 out of 11 black venire members in a capital murder case. On remand, the trial court found true the prosecutor’s stated race-neutral explanations for excusing the 10 black venire members (id. at p. 236 [at p. 211]) despite extensive prima facie defense evidence of purposeful discrimination by the Dallas County District Attorney’s office before and during the defendant’s trial. (Id. at pp. 235-236 [at pp. 210-211].)
On federal habeas corpus review, the question before the United States Supreme Court was whether the state court’s findings of fact were “unreasonable.” In making that determination, the high court conducted a comparative juror analysis, observing that “[i]f a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar non-black who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.” (Miller-El, supra, 545 U.S. at p. 241 [162 L.Ed.2d at p. 214].)
Thus, Miller-El does not compel comparative juror analysis in a first-stage Batson/Wheeler motion where the trial court determined the defendant had failed to establish a prima facie case. Because the veracity of the prosecutor’s stated reasons for excusing Ms. Hill were not at issue, a comparative analysis is not called for.
Moreover, the questionnaires would not provide a pertinent basis for a comparative analysis because as both the trial court and the prosecutor noted, Ms. Hill’s questionnaire was devoid of much information and the prosecutor’s stated reasons were based upon Ms. Hill’s demeanor and conduct during voir dire. Indeed, the prosecutor stated she was uncomfortable with Ms. Hill because she was so quiet during jury selection and was not very forthcoming when questioned directly by the prosecutor. Since neither defendant’s motion nor the prosecutor’s reasons were based on the questionnaires, they have no material bearing on a first-stage Batson review and defendant has failed to establish prejudice.
II.
Juror and Trial Court Misconduct
Defendant contends he was deprived of his right to a fair trial by an impartial jury as a result of jury and trial court misconduct. Respondent counters that the jury misconduct was not prejudicial and that there was no trial court misconduct. We agree with respondent.
A. Factual Background
Jury deliberations began on June 15, 2005. The jury deliberated for an hour and then adjourned for the evening.
The jury returned the next morning, June 16th, and sent the trial court a written message requesting reread of one of the witness’s testimony. The jury sent the court a second note that morning requesting clarification of its duty to participate in deliberations because one juror did not feel comfortable participating in the ongoing discussions and was willing to vote but felt uncomfortable with discussions. After discussions between the court and counsel, the court reinstructed the jury on its duty to deliberate and the jury resumed its deliberations until it adjourned for the weekend.
The jury returned on Monday morning, June 20th and was advised that the trial court had excused Juror No. 1 due to a death in the family. The court seated alternate Juror No. 2 in Juror No.’s 1 seat and instructed the jury regarding its duty to begin deliberations anew. At 1:30 p.m. the same day, the jury sent the trial court a third note which advised that it could not come to a consensus on count 3 for possession of cocaine base for the purpose of sale but had a verdict on count 1. In response to that inquiry, the court instructed the jury on its duties as jurors and ordered it to continue deliberating.
Section 1089 provides in pertinent part “[i]f 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 or her duty . . . the court may order the juror to be discharged” and replaced with an alternate juror.
The jury returned to deliberate the next day, June 21, 2005, and at 1:30 p.m., it sent the court a fourth note advising that one of the jurors had disclosed that he had independently gone online to investigate the law and definition of the term “credible witness.” The jury requested clarification on whether this was a violation of the jury instructions.
The court questioned the offending juror, Juror No. 1, who admitted that he looked up the online definition of “credible witness” but assured the court he did not disclose his results to any of the jurors. The court excused this juror from jury service and replaced him with the first alternate Juror, who was then seated as Juror No. 1. At 3:37 p.m., the remaining jurors and the alternate juror returned to the courtroom, were reinstructed on their duty to begin deliberations anew and the jury resumed deliberations until it adjourned at 4:40 p.m.
At 9:30 a.m. the following day, June 22, 2005, the jury sent the trial court a fifth note, which advised that one of the jurors had discussed the case with the discharged juror (former Juror No. 1), although no information had been shared with the other jurors. At 10:34 a.m., the court questioned the foreperson and Juror No. 2 outside the presence of the jury.
The foreperson advised that Juror No. 2 seemed frustrated with the process and mentioned that he had a discussion with the discharged juror about this case but did not talk to the other jurors about the details or circumstances of his conversation.
Upon questioning by the court, Juror No. 2 admitted that he had spoken to the discharged juror but indicated he only disclosed to the other jurors the fact of the conversation and not its substance. He explained that the discussion took place on the way to lunch the day before (June 21st) and did not occur in the presence of other jurors. Juror No. 2 stated that he and the discharged juror discussed their frustration with a holdout juror and that they did not believe that juror would ever change his/her mind regarding the verdict.
In response to the court’s question whether Juror No. 2 and the discharged juror had discussed the evidence in any way, Juror No. 2 explained that they had not discussed specific evidence. They only discussed the fact that everyone was in agreement on the facts but could not agree about the verdict. Seeking to clarify, the court asked whether the discussion was about the other juror’s conduct or whether they discussed specific evidence. The juror repeated that they agreed the outcome was inevitable, nothing was going to change, there was no rational reason for the outcome, and they did not expect a change. When asked whether they discussed how Juror No. 2 was going to vote, he stated that they had just taken a vote and knew how each other were voting because they “were of like minds.” The discharged juror did not share any of the information he obtained from his Internet search with Juror No. 2.
The trial court then asked a series of questions about whether Juror No. 2’s discussions with the discharged juror would affect his ability to deliberate. Initially, when asked whether he could put the substance of his conversation with the discharged juror out of his mind, Juror No. 2 said “No” and when asked whether the conversation would affect his ability to deliberate, he said “Yes.” When the court asked whether he could be fair and impartial, he said his impartiality was gone. When the court asked whether he could put his discussion with the charged juror out of his mind and deliberate with his fellow jurors, he said “I don’t think in this situation I can do that. . . . In that conversation, as short as it was, I came to a conclusion that that is not going to go away. I can’t take that conclusion out of my mind. You know, I have been troubled by this all night . . . before we came in when the slate was cleaner that I could not worry about things and keep them out of my mind, I can say that honestly now . . . this is what’s been on my mind the last 24 hours. It’s pretty well etched in there.”
In response to the second question, Juror No. 2 stated, “I’m firm that what we discussed was the truth, that nothing will change, and because I don’t believe anything would change . . . and we have gone over the same information item by item, I can’t at this point say that, you know, I can put everything aside. I can’t put everything aside anymore because it’s - - You know, I’m overwhelmed with it. It’s not going to change.”
After further questioning, the trial court stated that as it understood Juror No. 2, he had a definite feeling about how this case was going to end up and that the holdout juror was not going to change his mind. When asked whether, despite his feeling about the other juror, he could engage in further deliberations, Juror No. 2 said he could not because the situation had reached an irrational level and he had lost the ability to engage in conversation about the case at a calm rational level. Finally, the trial court asked Juror No. 2 whether he would still feel the same way if had not had the conversation with the discharged juror the day before and he replied that he “probably would feel the same way if that conversation” did not take place, “but I can’t say for sure, but that’s probably why the conversation happened, because that was the way I was feeling, and when the opportunity came for me to speak about it with somebody that I knew with a like mind, I automatically did it without . . . thinking about the consequences.”
The jury was reconvened in the courtroom at 11:05 a.m. At that time, the trial court reinstructed the jury with CALJIC No. 1.03. It also instructed the jury to disregard any statements made by Juror No. 2 on the subject matter that he raised in the morning and ordered the jury to continue deliberating.
After the jury exited the courtroom, defense counsel objected, arguing that the court should have discharged Juror No. 2 from the jury. The trial court disagreed, finding that while Juror No. 2 had committed misconduct it was not prejudicial. The court reasoned that in its view, the substance of the conversation between Juror No. 2 and the discharged juror was an expression or a venting of his own frustration with the process and progress of the deliberations rather than a discussion about the evidence, the merits of the case, or how he was going to vote. Moreover, Juror No. 2 indicated he would have felt the same way even if he had not had that conversation with the discharged juror. About 30 minutes later, after resuming its deliberations, the jury reached a verdict.
B. Juror Misconduct
Defendant argues that Juror No. 2 committed two types of misconduct; (1) speaking to the discharged juror, and (2) refusing to deliberate. Respondent argues that the conversation between the two jurors was not prejudicial and that Juror No. 2 did not refuse to deliberate. We agree with respondent on both points.
“As a general rule, juror misconduct ‘raises a presumption of prejudice that may be rebutted by proof that no prejudice actually resulted.’ [Citations.] Thus, ‘[a] judgment adverse to a defendant in a criminal case must be reversed or vacated “whenever . . . the court finds a substantial likelihood that the vote of one or more jurors was influenced by exposure to prejudicial matter relating to the defendant or to the case itself that was not part of the trial record on which the case was submitted to the jury.” [Citation.]’” (In re Hitchings (1993) 6 Cal.4th 97, 118.) This rule applies when a juror has discussed the case with a nonjuror while the case is pending (Ibid.)
It is undisputed that Juror No. 2 committed misconduct when he spoke to another juror outside the presence of the other jurors in violation of the trial court’s order and the jury instructions and the trial court so found. However, the trial court also found the misconduct was not prejudicial and defendant does not make a contrary argument.
The trial court instructed the jury at the beginning of trial that “[y]ou must not converse among yourselves or with anyone else.”
We find the presumption of prejudice was rebutted with respect to Juror No. 2’s discussion with former Juror No. 1. This discussion took place during their lunch break on June 21st before Juror No. 1 was discharged. Their conversation was brief, it did not relate to any of the specific evidence to any witness in the case, nor did it relate to any prejudicial matter outside the trial record. Rather, the two jurors discussed their frustration with the holdout juror and the deliberative process because the jury as a whole agreed on the facts but differed on their legal conclusions. As a result, Juror No. 2 believed the outcome was fixed and did not expect it to change. None of this information was imparted to the other jurors and of course deliberations began afresh after former Juror No. 1 was discharged. In sum, because Juror No. 2 was not in receipt of any potentially prejudicial information outside the trial record, it is not substantially likely his vote was influenced by exposure to any extraneous prejudicial matter relating to the defendant or to the case itself.
Nor does the record support defendant’s claim that the trial court erred by refusing to remove Juror No. 2 and grant a mistrial because this juror refused to deliberate. A juror who refuses to deliberate may be excused from the jury on the theory he or she is “unable to perform his duty" within the meaning of Penal Code section 1089. (People v. Thomas (1994) 26 Cal.App.4th 1328, 1333.) However, as the Supreme Court in People v. Cleveland (2001) 25 Cal.4th 466 at page 475 explained, “caution must be exercised in determining whether a juror has refused to deliberate. California courts have recognized the need to protect the sanctity of jury deliberations.” This is to “‘“assure[] the privacy of jury deliberations by foreclosing intrusive inquiry into the sanctity of jurors’ thought processes.” [Citation.]’ [Citation.]”
“A refusal to deliberate consists of a juror's unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views. Examples of refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury. . . . A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views.” (People v. Cleveland, supra, 25 Cal.4th at p. 485.)
We review the trial court’s ruling on whether or not to discharge a juror for abuse of discretion (People v. Cleveland, supra, 25 Cal.4th at p. 474) and discharging a juror where the record fails to establish the juror refused to deliberate “as a demonstrable reality’” constitutes an abuse of discretion. (Ibid.)
Although Juror No. 2 told the court he could no longer deliberate, there is no evidence he reached his own conclusion without participating in deliberations up until that point. To the contrary, Juror No. 2 was present during jury deliberation after Juror No. 1 was discharged the day before and there is no evidence or allegations that he refused to deliberate during that time. On the other hand, when questioned by the court, Juror No. 2 stated that the jury had “gone over the same information item by item”, that he had fully participated in the deliberations, but now, on June 22nd, felt he had “lost the ability to engage in conversation about the case . . . on a calm rational level” and had nothing further to say because in his view, further discussion would not change the situation.
Juror No. 2 told the court “I have lost the ability to engage in conversation about the case . . . on a calm rational level without -- You know, I don’t see -- I can’t deliberate. [¶] I want to help you out. I came here with every intention of doing my civic duty. I have been here for several days trying to do that, and, you know, I’m -- I am actually worried that -- One of the things that I was thinking about last night was, you know, are the other jurors going to start really looking at me like they are not sure if I am being rational because, you know, I’m not deliberating like I was. I felt like I was a full participator. Now I feel like I have nothing to say because nothing will change, and I feel ridiculous saying anything” further because he would just be repeating himself in the expectation that of a different result.
In sum, juror No. 2 was frustrated with the deliberative process and at his wits end by the time he was questioned by the court the morning of June 22nd. Nevertheless, he was present during the crucial deliberative process on June 21st and June 22nd, there was no evidence he had refused to deliberate during that period, and he advised the trial court that up to the hearing on June 22nd, he had “fully participated in the deliberations.” Under these circumstances, his expression of fear that he had lost the ability to continue to deliberate in a calm and rational manner and his belief that further discussion would not be fruitful did not constitute a refusal to deliberate as a “demonstrable reality.” Accordingly, we find no abuse of discretion.
C. Trial Court Misconduct
Last defendant argues the trial court gave the jury an instruction that coerced it to reach a verdict on count 3 in violation of his constitutional right to due process, an impartial jury, and a unanimous verdict. The portion of the instruction challenged by defendant states as follows:
“. . . May I suggest, that since you have not been able to arrive at a verdict using the methods that you have chosen, that you consider to change the methods that you have been following, at least temporarily, and try new methods. [¶] For example, you may wish to consider having different jurors lead the discussions for a period of time, or you may wish to experiment with reverse role playing by having those on one side of an issue present and argue the other side’s position, and vice versa. This might enable you to better understand the others’ positions. [¶] By suggesting you should consider changes in your methods of deliberations, I want to stress that I am not dictating or instructing you as to how to conduct your deliberations. I merely . . . find it productive to do whatever is necessary to ensure each juror has a full and fair opportunity to express his or her views and consider and understand the views of the other jurors.”
Section 1140 provides, “Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.”
“The determination whether there is reasonable probability of agreement rests in the discretion of the trial court. [Citations.] The court must exercise its power, however, without coercion of the jury, so as to avoid displacing the jury's independent judgment ‘in favor of considerations of compromise and expediency.’ [Citation.]” (People v. Breaux (1991) 1 Cal.4th 281, 319.)
The basic test of coerciveness is “whether the instruction and the remarks of the court, viewed in the totality of the circumstances, operated to displace the independent judgment of the jury in favor of compromise and expediency.” (People v. Ozene (1972) 27 Cal.App.3d 905, 913.) Instructions have been found to be coercive when the court emphasized that a verdict must be reached because of the simplicity of the evidence or for any other reason (People v. Crossland (1960) 182 Cal.App.2d 117, 119), when the judge threatened to lock up the jury until the verdict was agreed upon (People v. Carter (1968) 68 Cal.2d 810, 817), or where the judge directed its remarks to the dissenting juror while knowing the numerical division of the jury and how the jurors were divided upon the question of guilt. (People v. Baumgartner (1958) 166 Cal.App.2d 103, 106-108.)
In Baumgartner the trial court gave an instruction that directed the dissenting juror to consider whether a doubt in his or her own mind was a reasonable one, while no such doubt occurs to other jurors who are equally honest and intelligent and have heard the same evidence with the same attention with an equal desire to arrive at the truth. The court found this instruction was coercive when the trial court knows how the jury is divided on the question of guilt because it may appear to have been leveled at the holdout with the implication that in achieving “holdout status the recalcitrant juror had not paid proper respect to the opinions of the others, had not listened to their arguments with a disposition to be convinced, and that he ought to have done so. Under the circumstances, the 11 might well have returned to the jury room, not . . . to reason further with, but to attack, the recalcitrant one.” (166 Cal.App.2d at p. 108.)
The instruction given by the trial court in the present case had no such coercive effect. The instruction merely suggested some alternative methods for deliberating that might facilitate full and open discussion. The instruction made no reference to the evidence or the necessity of reaching a verdict, nor did it direct its remarks to the dissenting jurors.
On the other hand, it is not coercive for the trial court, knowing the jury is split 11 to 1, to order it to keep deliberating if it finds there is a “‘reasonable probability’" of agreement. (People v. Pride (1992) 3 Cal.4th 195, 265-266; Baumgartner, supra, 166 Cal.App.3d at p. 108.) Defendant’s claim fails because it is based upon the assumption the trial court knew the holdout juror was in favor of acquittal. The record supports no such inference.
Although the trial court may have inferred from its questioning of Juror No. 2 that the jury was split 11 to 1, Juror No. 2 did not inform the court how the jury was divided on the question of guilt. Given the fact the court gave the instruction on June 20th, two days before it questioned Juror No. 2, the court could not have been aware of the jury’s numerical division, much less the posture of that division. Accordingly, we find the instruction was not coercive and reject defendant’s claim of error.
DISPOSITION
The judgment is affirmed.
We concur: MORRISON , J., HULL , J.