Opinion
F069834
01-25-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS MUNGUIA, Defendant and Appellant.
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF153374B)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge. Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury found appellant Jose Luis Munguia guilty of committing first degree robbery and first degree burglary. The only issue raised on appeal is whether the trial court committed prejudicial error during jury selection by allowing the prosecution to exercise a peremptory challenge after both sides had accepted a panel of twelve prospective jurors, but before the jurors were sworn. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Munguia was charged by information with one count of residential robbery (Pen. Code, § 212.5, subd. (a); count 1), one count of residential burglary (§§ 459, 460, subd. (a); count 2), and one count of assault with a deadly weapon other than a firearm (§ 245, subd. (a); count 3). The charges arose out of an incident that occurred in February 2014. For enhancement purposes, it was alleged that Munguia had suffered a prior strike and serious felony conviction (§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d)) and had served four prior prison terms within the meaning of section 667.5, subdivision (b). The substantive charges were tried before a Kern County jury in June 2014, and the enhancement allegations were adjudicated in a bifurcated bench trial.
Except where otherwise specified, all further statutory references are to the Penal Code.
Jury selection took place over the course of four days. The attorneys began exercising their peremptory challenges on the third day of voir dire, excusing a combined total of seven prospective jurors; the defense made three peremptory challenges before accepting the panel as then constituted, and the prosecution made four peremptory challenges before likewise agreeing to accept the panel. After the prosecution passed on its opportunity to make a fifth peremptory challenge, the trial court advised the twelve people in the jury box that they had been "selected as the jurors in this case." Instead of swearing the jury at that point, the court called a 15-minute recess. The trial court's stated intention was to select alternates when the proceedings resumed, and then administer the oath to the entire group.
During the break, the prosecutor requested a chambers conference and moved to reopen voir dire for the purpose of exercising an additional peremptory challenge. The trial court deferred its ruling in order to give defense counsel time to research the issue. The motion was formally heard the next morning, at which time the prosecutor made the following remarks: "I stated yesterday the last challenge exercised by the People was in error. The People intended to dismiss Juror No. 2 as opposed to Ms. G[] who was No. 8 at the time, and noted the error. Immediately after doing so, [I] advised the defense I would be seeking a chambers [conference], which we had, and indicated that the jury had not been sworn, no alternates had been sworn. And therefore jury selection was not complete.... And I think the People's reaction to the error was prompt and did not cause any prejudice to anybody in this case at this point."
Munguia's trial attorney objected to the reopening of voir dire, alleging the prosecution's motion was based on "buyer's remorse." Counsel argued that granting the motion would violate her client's constitutional due process rights, namely the right to a fair trial, and that the jury would "have a difficult time believing what else we tell them," since the trial court had advised the putative panel that they would all be serving as jurors. The attorney added, "The person that the jurors are going to see as the bad guy [is] going to be me. Because if the Court allows this, I am going to continue to exercise the peremptories that I still have left. And it's going to appear to the jurors, and the potential jurors, that I am the one wasting their time, when that's not the case, at all.... My position is inadvertence and neglect, making a mistake, kicking the wrong person [off] because the [surnames] were confused[,] [t]hat's not good cause."
In response to defense counsel's arguments, the prosecutor claimed to have made an "honest mistake." He denied all allegations to the contrary: "[T]his matter was brought up immediately and not the next day. It's not buyer's remorse. I did not come back here and change my mind... I had [prospective Juror No. 2] marked for dismissal, and I made a mistake. I had her mixed up with Ms. G[]." The prosecutor also noted that the mistakenly challenged panel member had given voir dire responses that suggested a disposition favorable to the prosecution.
The excused juror, who is referenced above as "Ms. G," was previously the subject of a defense challenge for cause. Defense counsel had argued that Ms. G showed a lack of understanding or acceptance of the presumption of innocence, and gave equivocal responses concerning her ability to be impartial. The challenge for cause was denied.
The trial court found the prosecution acted in good faith, as opposed to engaging in subterfuge or "gamesmanship." The ruling included the following statements: "I will point out the juror that [the prosecutor] inadvertently excused was a juror that the defense had made a challenge for cause, which I denied. And, obviously, for those reasons, and based on her answers, it appears this would have been a juror that the People would have actually wanted on the jury, [i.e., the] one that he actually dismissed. They were situated in the jury box very closely. One was in [seat No.] 2 - Ms. T[] was in 2, and Ms. G[] was directly below her in Seat No. 8. For what it's worth, they are both Hispanic." The court concluded that good cause had been shown, noting the motion was made promptly and for reasons that were legitimate and "understandable" given the surrounding circumstances.
When proceedings resumed in front of the venire, the trial court took responsibility for the continuation of voir dire: "[Y]esterday, when we left off, I indicated that the 12 [people] in the box had been selected. Actually, I was in error in that regard, and that was [a] mistake. We are still in the process of selecting a jury. That means for the 12 of you in the box, you could still possibly be excused, or you could still be a part of the jury. That will be a determination that's made here in the course of the jury selection. And like I say, that's through no fault of the attorneys."
The prosecution exercised only one additional peremptory challenge, excusing the prospective juror it had intended to remove the previous afternoon. The defense used two additional peremptory challenges before both sides agreed on the jury. Although defense counsel had earlier declared a strong preference for the putative panel as comprised at the time of the motion to reopen voir dire, Munguia used his fourth and fifth peremptory challenges to remove two members of that original group.
Due to the nature of appellant's claim, we provide only an abbreviated summary of the trial evidence. The prosecution's case showed that Munguia and an accomplice gained entry to a man's home through a ruse that involved the shared use of methamphetamine. They got the victim high, then smashed a bottle over his head and robbed him of a television, a laptop computer, two cell phones, and a digital camera. The defense case was devoted to refuting the allegation that the object used to strike the victim constituted a deadly weapon. The item in question was an empty 750 milliliter bottle of the alcoholic beverage sold under the brand name MD 20/20, aka "Mad Dog."
The jury deliberated for approximately five hours before reaching its verdict. Munguia was convicted on counts 1 and 2, but acquitted of assault with a deadly weapon as alleged in count 3 (and of all lesser included offenses). The bench trial followed, wherein the prior strike and serious felony conviction allegations were found to be true. All prior prison term allegations were dismissed.
Munguia was sentenced to 17 years in prison. The trial court imposed the upper term of six years for count 1, which was doubled to twelve years because of the prior strike and enhanced by a consecutive five-year term for the prior serious felony conviction. Punishment for count 2 was stayed pursuant to section 654. The notice of appeal was filed one day after sentencing.
DISCUSSION
Code of Civil Procedure section 231 governs the peremptory challenge process in both civil and criminal cases. (Code Civ. Proc., §§ 192, 231, subds. (a)-(e).) "Peremptory challenges shall be taken or passed by the sides alternately, commencing with the plaintiff or people, and each party shall be entitled to have the panel full before exercising any peremptory challenge. When each side passes consecutively, the jury shall then be sworn, unless the court, for good cause, shall otherwise order." (Code Civ. Proc., § 231, subd. (d).)
Upon a showing of good cause, trial courts have discretion to permit the use of peremptory challenges at any time prior to the jury being sworn. (In re Mendes (1979) 23 Cal.3d 847, 855; People v. Niles (1991) 233 Cal.App.3d 315, 320-321; see Code Civ. Proc., § 226, subd. (a) ["A challenge to an individual juror may only be made before the jury is sworn."]; People v. Cottle (2006) 39 Cal.4th 246, 255 (Cottle) [same].) We thus review the trial court's reopening of voir dire for abuse of discretion, keeping in mind that "a trial court abuses its discretion by basing a discretionary decision on improper factors." (People v. Whitaker (2013) 213 Cal.App.4th 999, 1008.) Case law does not provide a clear definition of "good cause" in this context, but at least one appellate court has accepted that the exercise of discretion "requires taking account of ' " 'real circumstances, substantial reasons, objective conditions, palpable forces that operate to produce correlative results, adequate excuses that will bear the test of reason, just grounds for action, and always the element of good faith....' " ' " (People v. DeFrance (2008) 167 Cal.App.4th 486, 504, quoting Gibson v. Unemployment Ins. Appeals Bd. (1973) 9 Cal.3d 494, 499, fn. 8.)
Munguia cites to California Teachers Assn. v. Governing Board (1977) 70 Cal.App.3d 833 (California Teachers Assn.) and People v. Ramirez (1992) 6 Cal.App.4th 1583 (Ramirez) in support of his argument that a trial court's finding of good cause cannot be predicated on inadvertence or mistake. In California Teachers Assn., our district was tasked with interpreting the term "good cause" as used in a section of the Education Code. The issue was whether an employee's inadvertence in the form of simply forgetting to act in a timely fashion could be construed as good cause for failing to meet a statutory deadline, and we held that it could not. (California Teachers Assn., supra, 70 Cal.App.3d at pp. 836, 841-842.) In Ramirez, the Second District discussed the California Supreme Court's conclusion in Madril v. Superior Court (1975) 15 Cal.3d 73, 74-75 that "haste and inadvertence" were not adequate excuses for the prosecution's failure to proffer additional evidence at a hearing on the defendant's motion to suppress evidence, and thus did not constitute good cause under section 1538.5, subdivision (j) to allow the People to seek reconsideration of the issue at trial. (Ramirez, supra, 6 Cal.App.4th at pp. 1588-1589.)
Although California Teachers Assn. and Ramirez are somewhat helpful to Munguia's position, neither case establishes that a party's mistake is never a legitimate reason to grant relief in a criminal proceeding. For example, mistake is a recognized basis for good cause under section 1018 to withdraw a guilty plea. (People v. Johnson (2009) 47 Cal.4th 668, 679.) In any event, were we to assume the trial court based its ruling on improper factors, we would reject the claim on appeal for lack of prejudice.
Munguia submits that a trial court's abuse of discretion in reopening voir dire is a "structural error" requiring automatic reversal. We are not persuaded, since the authorities upon which he relies merely define the concept of structural error. "Errors of this kind include denial of counsel of choice, denial of self-representation, denial of a public trial, and failure to convey to a jury that guilt must be proved beyond a reasonable doubt." (United States v. Davila (2013) 569 U.S. ___, ___ [133 S. Ct. 2139, 2149].) As well explained in People v. Singh (2015) 234 Cal.App.4th 1319 (Singh), "structural error exists only in a very limited class of cases ... in which the error has the effect of rendering the factfinding process unreliable, or causing the trial to be fundamentally unfair. [Citation.] If, on the other hand, there was adequate legal representation and an absence of any bias on the part of the court or jury, most constitutional errors are subject to review for prejudice." (Id. at p. 1330.) Furthermore, outside of the Wheeler/Batson context, errors related to the use of peremptory challenges before a jury is sworn do not implicate a defendant's federal constitutional rights. (Singh, supra, 234 Cal.App.4th at pp. 1329-1330, citing Ross v. Oklahoma (1988) 487 U.S. 81 (Ross) and Rivera v. Illinois (2009) 556 U.S. 148; see Cottle, supra, 39 Cal.4th at pp. 257-258 [" 'Peremptory challenges are intended to promote a fair and impartial jury, but they are not a right of direct constitutional magnitude.' "].) A defendant's " 'valued right to have his trial completed by a particular tribunal' " lies "within the protection of the constitutional guarantee against double jeopardy," and jeopardy does not attach until the jury is sworn. (Crist v. Bretz (1978) 437 U.S. 28, 35-36.)
People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79. --------
"Absent structural error, it is the well-established California rule in both civil and criminal appeals that the judgment is presumed correct, and a record silent on a point cannot overcome this presumption. [Citations.] As a result, it is not enough for an appellant to identify an error in the proceedings in the trial court without affirmatively establishing 'how the error caused a miscarriage of justice.' " (Singh, supra, 234 Cal.App.4th at p. 1330.) Apart from alleging structural error, Munguia's only other argument for reversal is his misplaced reliance on the decision in People v. Armendariz (1984) 37 Cal.3d 573 (Armendariz).
In Armendariz, the California Supreme Court found reversible error in a trial court's denial of a defense motion to reopen jury selection for the purpose of exercising peremptory challenges. Munguia reasons that because the erroneous denial of a motion to reopen jury selection has previously resulted in reversal of a judgment, the erroneous granting of such a motion compels the same result. There are two major problems with this argument. First, Armendariz involved the application of former section 1068, a now-repealed statute that gave trial courts discretion to allow the use of peremptory challenges after a juror had been sworn. (Armendariz, supra, 37 Cal.3d at p. 581.) "The Legislature has eliminated the language upon which Armendariz [] was based, thus superseding its precedential authority." (Cottle, supra, 39 Cal.4th at p. 255.) Second, the error in Armendariz "amounted to denying appellant the exercise of his allotted peremptory challenges," and "California courts have consistently held that [such a denial constitutes] 'reversible error.' " (Armendariz, supra, 37 Cal.3d at pp. 583-584.) Since the defendant was facing the death penalty, the error "threaten[ed] the fairness of the jury not only as to guilt but also as to penalty." (Id. at p. 583.) Here, the trial court's ruling did not restrict Munguia's ability to exercise any or all of the peremptory challenges to which he was entitled. The Armendariz opinion is clearly inapposite to the present case.
Munguia contends the challenged ruling deprived him of the right to a fair trial and impartial jury, but the record simply does not support his allegation. "Any claim that the jury was not impartial ... must focus not on [the juror who was excused], but on the jurors who ultimately sat." (Ross, supra, 487 U.S. at p. 86.) The jury below deliberated for several hours and ultimately found Munguia not guilty of one of the three crimes with which he was charged. Those circumstances strongly suggest the jury was fair, objective, and impartial. Having found no indication of prejudice, we conclude the alleged error was harmless under any standard of review (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836).
DISPOSITION
The judgment is affirmed.
/s/_________
GOMES, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
SMITH, J.