Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA065617, James R. Dabney, Judge.
John D. O’Loughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jason Tran and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, J.
A jury convicted Paris Elgin Shanklin of inflicting corporal injury on his cohabitating girlfriend, and pimping his girlfriend. On appeal, Shanklin contends his convictions must be reversed because the trial court failed to remove a biased juror. We disagree, and affirm the judgment.
FACTS
On October 3, 2007, Hawthorne Police Department Officer Robert Shay went to the Del Aire Hotel on Imperial Highway in response to a radio call reporting a battery. When he arrived at the scene, Officer Shay met Crystal S., who was waiting with another officer in an alley behind the premises. Officer Shay observed that Crystal had a bruised knee and a swollen lip, and that blood was dripping down from her mouth and onto her clothing. Officer Shay asked Crystal a series of questions, and Crystal provided the following information.
Shanklin was Crystal’s boyfriend and pimp. She had been working for him as a prostitute for several months, during which time they lived together in various motels. Earlier that day, Shanklin started yelling at her after she had said that she did not have any money. When she yelled back, Shanklin hit her in the face. She injured her knee when she tried to run away, tripped and fell. Shanklin “required” Crystal to earn $300 a night. She gave him all of the money that she earned, and he provided her with food and shelter. Tattoos on Crystal’s arm and neck showed that she was Shanklin’s “property,” and showed Shanklin’s street name and pimp name.
In November 2007, the People filed an information charging Shanklin with one count of inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), and one count of pimping (§ 266h, subd. (a)). The information alleged that Shanklin had been convicted of a prior strike offense –– attempted burglary –– in 2005, and that the prior conviction made him ineligible for probation. (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d); 1203, subd. (e)(4).)
All further section references are to the Penal Code.
At a jury trial in January 2008, the prosecution presented evidence –– primarily Officer Shay’s testimony –– establishing the facts summarized above. For his part, Shanklin presented a third-party culpability defense. Leland Coleman testified that Crystal had called him on the phone on the day that the police responded to the motel, and that Crystal had said that she “just got fucked up by a couple of girls.” The jury commenced deliberations at 2:15 p.m. on January 29, 2008. At 11:20 a.m. the next day (January 30, 2008), the jury advised the trial court that it had reached verdicts. Shortly thereafter, the jury returned verdicts finding Shanklin guilty as charged.
The prosecution also called Crystal as a witness. Crystal admitted that she worked as a prostitute, but otherwise essentially refuted all the information that she had given to Officer Shay. According to Crystal, Shanklin was not her pimp, he did not pay for her room and shelter, and she did not give him any of the money she earned from working as a prostitute. Crystal’s answer to many of the prosecutor’s questions about the events on October 3, 2007, was “I don’t remember.”
On February 11, 2008, the trial court found true the allegation that Shanklin had been convicted of attempted burglary in 2005. The court then sentenced Shanklin to 10 years in state prison as follows: a four-year middle term for his conviction for inflicting corporal injury, doubled to eight years for his prior strike conviction, plus a consecutive one-year term (one-third the middle term of three years) for his pimping conviction, doubled to two years for his prior strike conviction.
Shanklin filed a timely appeal.
DISCUSSION
Shanklin contends the jury’s guilty verdicts must be reversed because the trial court erroneously denied his motion to remove a biased juror. We disagree.
I. The Jury
On Friday, January 25, 2008, the prosecutor and defense counsel commenced voir dire of a panel of 50 prospective jurors. By the end of the day, 12 jurors and one alternate juror were sworn and admonished, and trial was recessed until the following Monday, January 28.
II. Juror No. 7’s Note During Crystal’s Testimony
On Monday, January 28, 2008, the prosecutor and defense counsel gave their opening statements, following which the prosecutor called Crystal as the People’s first witness. The prosecutor finished her direct examination of Crystal shortly before the scheduled noon recess, and the trial court then excused the jury for lunch. Before trial resumed for the afternoon session, and before the jury had been brought back into the courtroom, the trial court and counsel addressed a note that Juror No. 7 had submitted prior to the lunch recess. The note indicated that Juror No. 7 wanted Crystal to be asked the following questions: “Are you still in love with Paris? Do you feel you will hurt him if you remember October 3rd? Do you want him to be safe?”
Defense counsel argued that Juror No. 7 should be dismissed for the following reasons: “I believe [the note] establishes actual cause. I believe that the juror has already preformed her opinion in this case. I don’t think she can provide . . . [Mr. Shanklin] with any kind of fair and impartial juristic attitude.” The trial court denied the motion to dismiss Juror No. 7 for the following reasons: “It seems to me these are questions that the D.A. would –– one might normally ask as far as potential motivations, but I don’t think they evidence a prejudgment of the issues in this matter, but a recognition of what the issues might be. And I think those are two different things.”
III. Juror No. 7’s Interruption During Defense Counsel’s Argument
On Tuesday, January 29, 2008, the prosecutor and defense counsel presented their arguments to the jury. During defense counsel’s argument, he talked about two films dealing with the criminal justice system, Twelve Angry Men (United Artists 1957) and The Shawshank Redemption (Columbia Pictures 1994). When defense counsel started to segue into a discussion of another film, the following exchange occurred:
“[DEFENSE COUNSEL]: With regard to Legally Blonde –– I know [the prosecutor] doesn’t like me talking about the movies but . . . .
“JUROR No. 7: I don’t like you talking about the movies either. Can you move on please?
“THE COURT: That’s not appropriate. Counsel has an opportunity to argue. That’s something you could save for yourself.
“[DEFENSE COUNSEL]: May we approach, please, your Honor?
“THE COURT: Sure.
“(The following proceedings were held at the bench, out of the hearing of the jury panel.)
“THE COURT: Can I just suggest that you finish up and we’ll deal –– we can talk to her later.
“[DEFENSE COUNSEL]: Okay. I don’t want to waive any of my . . . .
“THE COURT: I understand.”
IV. The Trial Court’s Inquiry
After defense counsel finished his argument, the trial court excused the jury for the lunch recess. After the jury left the courtroom, the following discussion took place:
“THE COURT: All right. We’ll deal with Juror No. 7, who –– I don’t know. I assume you want me to remove her from the panel.
“[DEFENSE COUNSEL]: I do. I have –– well, I’m going to make a motion for a mistrial. . . .
“[¶] . . . [¶]
“THE COURT: . . . Do you wish to be heard?
“[THE PROSECUTOR]: Yes, your Honor. I think she was just –– I don’t think she exhibited any bias. I think she just –– maybe she
“THE COURT: Didn’t like the movie analogy?
“[THE PROSECUTOR]: Maybe she thought it was annoying. She didn’t say anything about the facts of the case or about Mr. Shanklin. I think she was admonished properly. And I don’t think that –– I mean, it was obnoxious, but I don’t think it rises to the level of having prejudice or bias against counsel. [¶] I mean, she could be questioned with regard to that, but I just –– I think she was talking about his movie analogy. She wasn’t talking about his reviewing the facts of the case.
“THE COURT: I understand. My concern is that, first of all, I’ve never had anything similar like that ever happen in a trial; and, secondly, I’m not concerned so much just about what she said, but the manner in which she stated it. And it does cause me concern whether or not that evidences a certain amount of animosity towards counsel. And I’m concerned about that. I’ll rule at 1:30. We’ll see at that time. . . .”
Before the afternoon session began, out of the presence of the jury, the trial court indicated that it done “a little research into this, and it would appear that the appropriate approach for [the court] is to conduct inquiry of Juror No. 7 to determine whether or not she is in any way biased. So let’s do that now . . . .” The trial court’s ensuing inquiry went as follows:
“THE COURT: I’ve asked Juror No. 7 to come into court. I wanted to ask you some questions. [¶] During [defense counsel]’s closing argument, you made a statement during the course of the argument that you didn’t want to hear about the movies either and asked him to move on. And I’m concerned that that may reflect more than a mere annoyance [at] the use of a movie analogy. So I wanted to . . . .
“JUROR No. 7: Sir, I apologize for the interruption. I’m –– I thought it was annoying in the first time as well. It’s just after three references –– I was okay with the first three, but when it kept on going, I really felt that it was sort of irrelevant, disrespectful of our time, just disrespectful of how serious things we were discussing, and that it may be –– you know, so distracting that I’m very frustrated where I’m no longer focusing on the issues at hand. [¶] We’re going over actors’ names, so on, so forth. It’s hard enough to keep track of the information that’s thrown at us. There’s never a point where we go over everything to say this is what we’ve just heard, so we’re going by our own notes. We’re trying to listen, keep track. I feel this is extremely distracting, not relevant to the case, and I’m trying to –– really hard to focus on what’s being said.
“THE COURT: Okay. Do you think –– well, as a result of, I guess, that frustration or whatever, do you think it will affect you at all in terms of being able to focus in on the evidence?
“JUROR No. 7: No. I assume these are court-appointed lawyers. I’m not sure. But either way, someone may choose their lawyer for all kinds of different reasons. It doesn’t really have anything to do with the person, their situation, their lawyer. That’s two separate people. I may not appreciate the way one lawyer presents a case or other things about them, but it’s not the same thing as their client. It’s two separate issues.
“[¶] . . . [¶]
“THE COURT: . . . Do you think it at this point would affect your ability to actively evaluate the evidence?
“JUROR No. 7: No.
“THE COURT: Okay. Given that that was part of [defense counsel]’s closing arguments, did you stop paying attention at that point, or were you considering his arguments in terms of the substance, how they related to the evidence and the law in this case?
“JUROR No. 7: Trying to do my best, just as I am now, with conversation going on in the background, people entering the courtroom. There’s lots of interruptions. I’m trying very hard to focus. I have the similar ability all throughout the statement where it’s difficult, but it does mean I’m not trying my hardest to listen. And I did take notes on the second half of his argument and
“THE COURT: Do you think that there’s any reason why it would be difficult for you at this point to continue on as a juror and actively evaluate the evidence and give Mr. Shanklin a fair trial?
“JUROR No. 7: I do not think so, no.
“THE COURT: All right. Thank you. You can step outside.”
V. The Trial Court’s Ruling
After talking to Juror No. 7, the trial court listened to argument from counsel, and then denied Shanklin’s motion to remove Juror No. 7 for the following reasons:
“[With regard to defense counsel’s assertion that Juror No. 7 had a consistent look of disdain on her face when she was listening to the defense], I have not observed that. I am . . ., after the inquiry, I guess the issue is if the –– the question was whether the burden to remove a sitting juror is abundance of caution. I would [remove her if that was the standard], but I don’t think that’s the burden.
“Having heard her, I think that she is an emotional person, as evidenced by her conduct before and then during the closing arguments here. And . . . I mean, I’ve never seen it where a juror has made a comment during the process of [argument].
“The question for me is whether that evidence [suggests] bias. She’s made up her mind, would not deliberate. And I think that, after listening to her and observing her throughout the trial, that she was exasperated and not the type of person who is able to control her emotions very well; and that the outburst was a result of her disliking the [movie] analogies.
“And I don’t think it necessarily, based on what I’ve heard –– she indicated very carefully that she was frustrated by the bailiff who was on the phone, making her explanation it was somewhat distracting to her. And it was the pressures of having to sit in the rol[e] of a juror and try to maintain focus throughout.
“But –– so all in all, I think I’m not going to remove her. And I think it may create more problems than it’s worth to do it. I don’t think she’s expressed any inability to fulfill her duties as a juror.”
VI. The Right to an Impartial Jury & the Duty to Assure an Impartial Jury
A defendant has an inviolate constitutional right to a trial by an impartial jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16.) The presence of a biased juror on a defendant’s jury is prejudicial per se, and there is no room for a harmless error examination. (People v. Nesler (1997) 16 Cal.4th 561, 578.) For these reasons, a trial court must investigate the relevant facts and circumstances when it is confronted with a colorable claim that a juror has some internal actual bias which was not disclosed by the voir dire process, or that a juror has become infected with bias as a result of his or her exposure to some external factor which may interfere with his or ability to be impartial. (People v. Burgener (1986) 41 Cal.3d 505, 519-520; and see People v. Pinholster (1992) 1 Cal.4th 865, 928 [a failure to conduct an adequate inquiry is an abuse of discretion].)
When a trial court has conducted a sufficient inquiry into a juror’s possible bias, the court’s ensuing decision whether to discharge the juror becomes a matter within the court’s discretion. (People v. Burgener, supra, 41 Cal.3d at p. 520.) Before an appellate court will find error in a trial court’s failure to excuse a seated juror, “the juror’s inability to perform a juror’s functions must be shown by the record to be a ‘demonstrable reality.’ The [reviewing] court will not presume bias, and will uphold the trial court’s exercise of discretion on whether a seated juror should be discharged for good cause . . . if supported by substantial evidence.” (People v. Holt (1997) 15 Cal.4th 619, 659; and see People v. Burgener, supra, 41 Cal.3d at p. 520; and see also People v. Nesler, supra, 16 Cal.4th at p. 582 [the trial court’s credibility determinations in the context of a juror inquiry are binding on appeal].)
VII. The Trial Court’s Decision Not to Discharge Juror No. 7 is Supported by Substantial Evidence
We simply cannot accept the proposition that the trial court’s decision not to discharge Juror No. 7 is devoid of evidentiary support. The trial court questioned Juror No. 7 regarding her reasons for interrupting defense counsel’s argument, and whether she believed that she would fairly deliberate and decide the charges against Mr. Shanklin, based on the evidence and not on personal animosity. Based upon the answers that it heard, the trial court found that Juror No. 7 was an “emotional” person, and that she was “exasperated” by the trial process and by the general ambiance of a trial courtroom, but that she had not prejudged the case. Juror No. 7’s answers to the trial court’s questions, which we have reproduced above, provide the evidentiary support for the court’s decision not to discharge Juror No. 7.
We reject Mr. Shanklin’s assertion on appeal that the trial court “missed the mark” when, according to Mr. Shanklin, the court characterized Juror No. 7’s outburst as no more than an “expression of her momentary exasperation with the proceedings, not an indication of serious bias.” The trial court directly hit the mark. The court understood that its task was to make an inquiry and then determine whether or not Juror No. 7 was biased. The trial court considered Juror No. 7’s assertions of impartiality to be credible, and we cannot cast aside the trial court’s credibility calls, nor may we re-assess Juror No. 7’s credibility for ourselves. (People v. Pride (1992) 3 Cal.4th 195, 260 [a reviewing court must defer to a trial court’s observations and credibility determinations in the context of the issue whether juror misconduct occurred].)
Mr. Shanklin’s reliance on People v. Kaurish (1990) 52 Cal.3d 648 (Kaurish) for a different result is not persuasive. In Kaurish, the trial court excused the jury so that the court and counsel could discuss the scope of cross-examination of a defense witness. When the jury returned, defense counsel declined to call the witness, and, instead, rested. This turn of events prompted a juror to mutter the words “‘you-son-of-a.’” (Id. at p. 694.) On appeal, the defendant contended that once the trial court “was put on notice that a juror might be biased against his counsel, it had a sua sponte duty to inquire into the state of mind of the jury making the remark to determine if he could still be impartial.” (Ibid.) The Supreme Court disagreed, and found no error in the trial court’s failure to sua sponte inquire into the juror’s state of mind. It held the record showed nothing more than a juror’s “momentary exasperation with the proceedings,” and that the record otherwise showed no indication of bias. (Ibid.)
Kaurish does not help Mr. Shanklin because it involved the issue of whether the trial court erred by not making an inquiry in that case. That situation just does not fit the issue presented by Mr. Shanklin in his current case. Here, there really was no question in anyone’s mind in the trial court that Juror No. 7’s conduct was sufficiently unique so as to trigger an inquiry into her possible bias. Kaurish is inapposite because, in the current case, the trial court did undertake the required inquiry . The fact that the trial court decided –– after its inquiry –– not to discharge Juror No. 7 does not mean that there was Kaurish error. Mr. Shanklin’s understandable displeasure with the trial court’s decision does not establish the type of error that Kaurish discussed.
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P. J. FLIER, J.