Opinion
D073444
04-06-2018
THE PEOPLE, Plaintiff and Respondent, v. DOUGLAS JORDAN, Defendant and Appellant.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor, and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FVI 1202491) APPEAL from a judgment of the Superior Court of San Bernardino County, Colin J. Bilash, Judge. Affirmed. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor, and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
Douglas Jordan was tried before a jury on one count of continuous sexual abuse with a child under the age of 14 in violation of Penal Code section 288, subdivision (5)(a), and one count of a lewd act upon a child in violation of section 288, subdivision (a). During deliberations, one of the jurors reported to the court that another juror had made a comment in the hallway that made her uncomfortable, and that she and another juror felt pressured by some of the other jurors. After speaking with the juror, the court determined the jury was deliberating in an appropriate manner and sent the jurors back to continue deliberations. The following day, the jury reached a verdict and found Jordan guilty on both counts.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, Jordan asserts the juror's statement to the trial court indicated potential jury misconduct, that the court failed to adequately investigate the issue, and that this court must reverse his conviction as a result. We conclude the trial court conducted an adequate investigation and appropriately determined there was no indication of jury misconduct. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Because Jordan's only argument on appeal relates to the conduct of the jurors, we dispense with the facts of the underlying crimes and focus our discussion on the jury's deliberations.
Jordan plead not guilty to charges that he continuously sexually abused a child under the age of 14 and was tried before a jury. The jury began deliberating at approximately 2:00 in the afternoon on February 9, 2016. At around 3:00 the following afternoon, the jury sent a note to the court indicating that "[o]ne of the jurors would like to speak to the judge, personally," and "if not, the whole jury." The judge responded in writing, stating, "I will meet with the juror tomorrow morning first thing when you arrive to continue deliberations." Approximately 20 minutes later, the jury sent another note asking to have the testimony of one of the witnesses read back.
At 3:45 p.m., the court contacted counsel for the prosecution and defense via telephone. Because defense counsel was several hours away, the court proposed meeting with the juror without counsel or the other jurors present, but limiting the discussion to identifying the issue. Counsel agreed to this approach and the court indicated it would follow up with counsel to discuss how to proceed after the conference with the juror.
The court then held a private conference with Juror 12, the juror that had made the request. The court asked the juror to identify the issue, but explained that it did not want her to talk about the deliberations or anything that was happening with the verdict. The juror explained that she was out in the hallway in the morning, before deliberations had begun, when Juror 5 came up to her and another juror and said, "Did you bring your soap box today?" Juror 12 and the other juror were both confused, so Juror 5 added, "so she can get up on it," apparently referring to Juror 12. Juror 12 told the court that this made her feel uncomfortable and that she felt like she and one other juror were being singled out and bullied. She stated, "I feel that they want to know how I feel and how I come to my conclusions and stuff, but it's like they want to change my mind."
Juror 12 also reported that another juror brought up a similar issue to Juror 5 before the lunch break. It was after hearing this, and continuing to feel uncomfortable about the comments made in the morning, that Juror 12 approached the foreman and said she wanted to speak to the judge. The court told Juror 12 that she did the right thing by alerting the court, and that she could approach the bailiff directly if any further issues came up in the future. The discussion ended at approximately 4:00 in the afternoon, and the jury concluded their deliberations for the day a few minutes later.
After Juror 12 left the courtroom, the court held a second teleconference with counsel and relayed the substance of Juror 12's remarks. Defense counsel responded that it seemed like the type of friction that happens somewhat regularly during jury deliberations. The court agreed and stated that it interpreted Juror 12's remarks as the juror being particularly sensitive about the typical back and forth that often occurs in the jury room.
The prosecutor also agreed but stated it was unusual for a juror to raise such an issue, and therefore suggested that the court bring the juror back in and ask her directly if she felt she could continue to deliberate, out of an abundance of caution. Defense counsel expressed some concerns that asking the juror such a direct question could cause her to say that she could not deliberate in order to get out of an uncomfortable situation when she may have otherwise continued to deliberate without any further issues. After some discussion, the court concluded there was no indication thus far that anyone on the jury was not deliberating in an appropriate manner and, therefore, agreed that it should not conduct any further inquiry unless the juror raised further concerns or expressed on her own that she could not deliberate.
However, the court also determined that the discussion that had occurred in the hallway was at least tangentially related to the case, and therefore suggested bringing the jury in the following morning to admonish them regarding discussing the case out of the jury room. Counsel for both sides agreed.
The following morning, the court brought the jury in and reminded them that they were not to have any discussion related to the case or their deliberations outside of the jury room. The court concluded by saying "keep your deliberations going" and sent the jury back to continue deliberating. Later that afternoon, the jury reached a verdict, finding Jordan guilty on both asserted charges. At defense counsel's request, the court polled each juror and asked if the verdict as stated reflected their own personal verdict. Each juror answered yes, confirming that it did.
Following the verdict, Jordan made a motion for a new trial and argued, in part, that the comments made to Juror 12 in the hallway constituted jury misconduct because they were coercive and made outside the presence of the entire jury. The court reiterated that the juror never indicated she felt intimidated or that she had to change her vote, and that the court and counsel had agreed that what had occurred was nothing more than the typical give and take of jury deliberations. For these reasons, the court denied the motion.
Jordan appeals.
DISCUSSION
Jordan's sole contention on appeal is that the trial court abused its discretion by failing to conduct an adequate investigation into what he alleges was a report of potential jury misconduct, thereby depriving him of his constitutional right to a fair and impartial jury. The People assert that the court made a sufficient inquiry and had no obligation to inquire further, and that any error was invited by defense counsel. I. Relevant Legal Principles
Every defendant has a constitutional right to a trial by 12 unbiased and impartial jurors and, accordingly, a conviction cannot stand if even a single juror was improperly influenced. (People v. Nesler (1997) 16 Cal.4th 561, 578.) A defendant is deprived of this right when, for example, one or more jurors refuses to deliberate, by failing to participate in discussions with the other jurors, to listen to the views of other jurors, or to express their own views. (People v. Cleveland (2001) 25 Cal.4th 466, 475.) At the same time, it is common for members of a jury to engage in vehement disagreements and strenuous attempts to persuade one another during deliberations. (People v. Engelman (2002) 28 Cal.4th 436, 446 (Engelman).) Contentious discussions of this nature do not, without more, suggest improper coercion or misconduct. (Ibid.)
Upon good cause shown, the court may discharge a juror and select an alternate if the juror is unable or unwilling to deliberate as required. (§ 1089.) Where the trial court becomes aware of facts suggesting that good cause to discharge a juror may exist, the court has a duty " 'to make whatever inquiry is reasonably necessary' to determine whether the juror should be discharged." (People v. Martinez (2010) 47 Cal.4th 911, 941 (Martinez), quoting People v. Leonard (2007) 40 Cal.4th 1370, 1409; see also People v. Cowan (2010) 50 Cal.4th 401, 505-506 (Cowan).) Not every situation warrants further investigation, though, and the trial court must also be careful not to improperly intrude on the jury's deliberations. (Cowan, supra, at pp. 505-506; Engelman, supra, 28 Cal.4th at p. 446.) Accordingly, whether and how to pursue further investigation of possible juror bias, incompetence, or misconduct typically rests within the sound discretion of the trial court. (Cowan, supra, at pp. 505-506; Martinez, supra, at p. 942.) A court has an absolute duty to hold a hearing only when it possesses information which, if true, would constitute good cause for dismissal pursuant to section 1089. (Ibid.) II. Analysis
Turning first to the issues of forfeiture and invited error, we agree with Jordan that the court had a sua sponte duty to investigate any potential juror misconduct and, therefore, his counsel could not have forfeited the issue or invited the error. The California Supreme Court addressed a similar issue in Cowen, supra, 50 Cal.4th at page 506, and explained "[t]he duty to conduct an investigation when the court possesses information that might constitute good cause to remove a juror rests with the trial court whether or not the defense requests an inquiry, and indeed exists even if the defendant objects to such an inquiry." Here, as in Cowen, Jordan's counsel did not need to object or request further inquiry to preserve Jordan's claim.
The People contend Cowan is not applicable because the misconduct was more apparent in Cowan than it was here. (See Cowan, supra, 50 Cal.4th at pp. 504-505.) We do not read Cowan so narrowly. The degree to which any alleged misconduct was apparent is pertinent in determining whether the trial court had a duty to investigate in the first instance, and whether any such inquiry was sufficient, but, as discussed, the trial court's duty in that regard is independent from defense counsel's objections. (Id. at p. 506.) Accordingly, we turn to the merits of Jordan's misconduct argument.
Jordan also argues his counsel was ineffective if he did forfeit the claim. Because we address the merits of the argument, we need not address Jordan's ineffective assistance of counsel claim. --------
Jordan contends the report Juror 12 made to the court indicated either that Juror 12 was not deliberating as required or that the other jurors were unduly coercive, such that the court had a duty to investigate the allegations further. However, the court did investigate the initial report by interviewing Juror 12 on the record. After the discussion with Juror 12, the court determined there was no indication the jury was not deliberating in an appropriate manner and exercised its discretion not to discuss the matter further, thereby avoiding any improper intrusion into the jury's deliberations. (See Cowan, supra, 50 Cal.4th at pp. 505-506; Engelman, supra, 28 Cal.4th at p. 446.) Both the prosecutor and defense counsel agreed with the court's determination. Although defense counsel did not forfeit the issue by agreeing with the court, the fact that both attorneys did so supports the conclusion that the court's assessment of the situation was reasonable and was not an abuse of discretion.
Having determined the only issue was the fact that the discussion took place out in the hallway, outside the deliberation room, the court appropriately admonished the jurors to keep their deliberations in the jury room, and then asked them to continue deliberating. The jury did so and none of the jurors, including Juror 12, raised any additional concerns. Once the jury reached their verdict, the court polled each member to confirm the verdict represented the individual views of each juror, further supporting the court's determination that none of the members of the jury had been improperly influenced. (See People v. Keenan (1988) 46 Cal.3d 478, 542 (Keenan) [evidence did not support finding of juror misconduct where juror that was allegedly threatened during heated deliberations was subsequently polled and indicated verdict was her individual verdict].)
Jordan argues Juror 12's statement, "I feel they want to know how I feel and how I come to my conclusions and stuff, but it's like they want to change my mind" somehow indicated Juror 12 was not engaging in discussions about the case. To the contrary, though, the statement indicates the jurors were engaging in discussions about their differing views, and nothing else in the record indicates Juror 12 was refusing to participate. Although she may have been uncomfortable with the process, she returned to the jury room, did not report any further issues even though the court had informed her she could make a request directly to the bailiff at any time, and later agreed the verdict represented her own personal views.
Jordan also asserts Juror 12's statements indicated the other jurors were pressuring or coercing Juror 12 to change her vote but, as discussed, both attorneys and the court agreed this was likely just the normal give and take of jury deliberations. Again, nothing in the record indicates Juror 12 felt the other jurors were not allowing her to participate in deliberations or draw her own conclusions about the case. The mere suggestion that the jurors were disagreeing, even vehemently, is not sufficient to suggest coercion. (Keenan, supra, 46 Cal.3d at p. 540; Engelman, supra, 28 Cal.4th at p. 446.)
In Keenan, a juror allegedly made a direct threat against another juror during deliberations, and the court concluded that, while inappropriate, the outburst was "an expression of frustration, temper and strong conviction" that did not rise to the level of prejudicial misconduct. (Keenan, supra, 46 Cal.3d at pp. 540-541.) The statements made to Juror 12 in the present case were, if anything, less severe than those at issue in Keenan and, as in Keenan, Juror 12 ultimately agreed the verdict represented her own individual views. (Id. at p. 542.) Jordan asserts Keenan is distinguishable because the alleged misconduct there did not come to the court's attention until after the verdict, relieving the court of the duty to investigate. Regardless, here, as discussed, the court conducted an initial inquiry and determined, consistent with the analysis in Keenan, that the reported conduct did not rise to the level of coercion or misconduct.
The superior court conducted an adequate inquiry and determined there was no suggestion any member of the jury committed misconduct. Based on the foregoing, we conclude the court did not abuse its discretion in doing so. Because we find there was no error, we need not address whether the alleged error requires reversal.
DISPOSITION
The judgment is affirmed.
NARES, J. WE CONCUR:
HUFFMAN, Acting P. J.
GUERRERO, J.