Opinion
D069021
03-22-2017
THE PEOPLE, Plaintiff and Respondent, v. ADAM MICHAEL STARKEY, Defendant and Appellant.
Eric S. Multhaup, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Daniel J. Hilton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1201085) APPEAL from a judgment of the Superior Court of Riverside County, Irma Poole Asberry, Judge. Affirmed. Eric S. Multhaup, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury found Adam Michael Starkey not guilty of murder (Pen. Code, § 187, subd. (a)), but guilty of the lesser included offense of manslaughter (§ 192, subd. (a); count 1). The jury also found that Starkey intentionally and personally discharged a firearm causing death, in violation of section 12022.5, subdivision (a). The trial court sentenced Starkey to an aggregate term of 21 years in state prison, consisting of 11 years for manslaughter and 10 years for the firearm enhancement.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
The jury trial occurred upon remand from this court's decision in People v. Starkey (Mar. 11, 2015, D066853) [nonpub. opn.].
In accordance with our remittitur in People v. Starkey, supra, D066853, the trial court also imposed a sentence for a conviction for illegal possession of a firearm (§ 29805; count 2) stemming from a prior jury trial in this case. The court imposed a term of 365 days in custody on count 2, but stayed execution of the sentence pursuant to section 654.
On appeal, Starkey claims that the trial court erred in denying his motion to suppress evidence of statements that he made during a custodial interrogation in the hours after the homicide. Specifically, Starkey argues that he did not validly waive his "Miranda[] rights" due to his intoxication and emotional distress, and a law enforcement officer's "exploitation of those conditions." Starkey also claims that the trial court erred in discharging a juror in the absence of the juror's commission of misconduct warranting such discharge. We affirm the judgment.
(Miranda v. Arizona (l966) 384 U.S. 436 (Miranda).)
Starkey contends that his Miranda waiver was not "knowing, intelligent, and voluntary." However, he does not contend that the statements that he made to law enforcement officers were involuntary.
II.
FACTUAL BACKGROUND
We provide an abbreviated summary of the facts of the manslaughter because they are not relevant to Starkey's claims on appeal.
A. The People's evidence
On the evening of January 24, 2012, Starkey and his girlfriend, Jennifer Bowers, were drinking alcoholic beverages in their small trailer located in a rural area of Menifee. Their argument escalated to a physical altercation that culminated in Starkey shooting Bowers in the head with a gun. At 10:18 p.m., Starkey called 911 to report that he had shot and killed Bowers. During the call, Starkey sounded emotionally distraught and stated, "We got in a fuckin' argument. I fuckin' pulled out the .38, and I fuckin' shot her." Early the next morning, during a police interview, Starkey admitted shooting Bowers, but contended that the shooting had been accidental. The parties stipulated that Starkey's blood alcohol level was .23 at 2:51 a.m. on the morning after the shooting. B. Defense case
The defense presented expert evidence pertaining to how intoxication affects balance and coordination, and also presented the testimony of an expert on firearms who suggested that the gun may have fired accidentally. Starkey testified that he had accidentally shot Bowers. Starkey stated that, during an argument, Bowers lunged at him and that while he was trying to keep the gun from her, his body hit a counter, causing the gun to discharge.
III.
DISCUSSION
A. The trial court did not err in denying Starkey's motion to suppress evidence of statements that he made during a custodial interrogation
Starkey claims that the trial court erred in denying his motion to suppress evidence of statements that he made during a custodial interrogation because the People failed to establish that he knowingly, intelligently, and voluntarily waived his "Miranda rights." In support of this contention, Starkey argues that his waiver was invalid because a detective improperly "capitalize[d]" on Starkey's intoxication and emotional distress in obtaining the statements.
1. Standard of review
" 'In reviewing the trial court's denial of a suppression motion on Miranda . . . grounds, " ' "we accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained." ' " [Citations.] Where, as was the case here, an interview is recorded, the facts surrounding the admission or confession are undisputed and we may apply independent review.' " (People v. Jackson (2016) 1 Cal.5th 269, 339 (Jackson).)
2. Governing law
In Jackson, the California Supreme Court outlined the law governing the admissibility of a defendant's statements obtained during a custodial interrogation:
"The Fifth Amendment provides that '[n]o person . . . shall be compelled in any criminal case to be a witness against himself.' [Citations.] To safeguard a suspect's Fifth Amendment privilege against self-incrimination from the 'inherently compelling pressures' of custodial interrogation (Miranda, supra, 384 U.S. at p. 467), the high court adopted a set of prophylactic measures requiring law enforcement officers to advise an accused of his right to remain silent and to have counsel present prior to any custodial interrogation (id. at pp. 444-445). '[I]f at any point in the interview [a defendant] invokes the right to remain silent or the right to counsel, "the interrogation must cease." ' [Citation.] . . . '[T]he prosecution bears the burden of establishing by a preponderance of the evidence that [a Miranda] waiver was knowing, intelligent, and voluntary under the totality of the circumstances of the interrogation.' " (Jackson, supra, 1 Cal.5th at pp. 338-339.)
The California Supreme Court "has repeatedly rejected claims of incapacity or incompetence to waive Miranda rights premised upon voluntary intoxication or ingestion of drugs, where . . . there is nothing in the record to indicate that the defendant did not understand his rights and the questions posed to him." (People v. Clark (1993) 5 Cal.4th 950, 988 (Clark); see, e.g., People v. Breaux (1991) 1 Cal.4th 281, 301.)
3. Factual and procedural background
a. Starkey's motion to suppress
Prior to the trial, Starkey filed a motion in limine to suppress statements that he made during a custodial interrogation in the hours after the homicide. In his motion, Starkey stated:
"Defense specifically moves for an order barring the introduction and/or admissibility of STARKEY'S interview with law enforcement . . . due to STARKEY'S inability to render a knowing, intelligent waiver of his Miranda rights due to excessive intoxication at the time of his interview with law enforcement. STARKEY'S alleged waiver of his rights was not voluntary under the circumstances due to his intoxication and should be excluded." (Italics added.)
b. The Evidence Code section 402 hearing
i. Detective Peters's testimony
The trial court held an Evidence Code section 402 hearing concerning the admissibility of statements that Starkey made during the custodial interrogation. At the hearing, Riverside County Sheriff's Department Detective James Peters testified concerning the circumstances of his interview of Starkey in the hours after the homicide. Detective Peters stated that he read Starkey his Miranda rights prior to interviewing him and that Starkey appeared to understand those rights. Detective Peters agreed with the prosecutor that Starkey appeared to be "intoxicated." The prosecutor also asked, "Did he appear to be drunk?" Detective Peters responded, "No." Detective Peters stated that, although Starkey had the smell of alcohol emanating from his breath and person, he was able to walk on his own, he was orientated to time and space, he knew where he was, and he did not appear to be "disorientated." Detective Peters also stated that Starkey indicated that he understood his Miranda rights and that Starkey agreed to speak with Peters after having been read those rights.
Evidence Code section 402 authorizes a trial court to determine the admissibility of evidence outside the presence of the jury.
Detective Peters conducted the interview with Investigator James Merrill.
On cross-examination, Detective Peters acknowledged that, during portions of the interview, Starkey slurred his words and that Starkey's level of intoxication was "something that needed to be considered," before conducting the interrogation.
On redirect, Detective Peters stated that he began Starkey's interview at approximately 2:15 a.m. on the morning after the homicide. Detective Peters also stated that he had been "called at 11:30 [p.m.]," and that it was his "guess" that Starkey had been taken into custody "somewhere between 10 and 11."
ii. The video of the interrogation
The People played the initial portion of the video of the interrogation at the hearing. At the outset of the relevant portion of the video, Detective Peters entered the interview room, awakened Starkey, and removed his handcuffs. Detective Peters asked Starkey whether he was "understanding [him] all right" and Starkey answered in the affirmative. Starkey asked whether he could smoke a cigarette, and Peters responded that he would "hunt around" for one. Detective Peters and three forensic technicians subsequently directed Starkey to stand against a wall in various positions while he was photographed. Starkey complied.
It is not entirely clear from the record exactly how much of the interrogation the court watched. However, in its ruling the court stated:
"During [Detective Peters's] testimony, the initial portion of the police interview video was played. It depicted events through the detective's giving of the Miranda advisement. The video was stopped at a point that the attorneys agreed."
Although appellate counsel notes in his brief that the trial court viewed a video of the interrogation, counsel failed to request that the exhibit containing the video be transmitted to this court. (See Cal. Rules of Court, rules 8.320(e) & 8.224(a).) We remind counsel of appellant's responsibility to have transmitted to this court all exhibits necessary to review appellant's claims on appeal. We directed the trial court to transmit the exhibit containing the interrogation to this court for our review. (Cal. Rules of Court, rules 8.320(e) & 8.224(d).)
A technician asked Starkey where he worked. Starkey responded, "I work for Target, logistics ma'am." The technician asked Starkey whether he remembered when he had last washed his hands. Starkey responded, "Before I ate dinner." In response to the technician's request for clarification as to the time, Starkey clarified, "Seven thirty, 8:00."
Shortly thereafter, the following colloquy occurred:
"Starkey: I'm fucking tripping out, man.
"Detective Peters: And, and, and I hear ya.
"Starkey: My best friend is dead. She's dead, right?
"Detective Peters: I heard you . . . and I see it.
"Starkey: She's dead, right?
"Detective Peters: You know.
"Starkey: I felt her pulse. She's fucking dead.
"Detective Peters: Adam, you've been through something very traumatic tonight, okay? And we want to talk with you about what happened. Are you . . .
"Starkey: I should have fuckin' shot myself, God damn it."
Detective Peters again asked Starkey whether he was understanding him. Starkey responded in the affirmative. Detective Peters then explained that he had to read Starkey his Miranda rights:
"Detective Peters: I need to read you something before we can go any further, all right? You, you understand what I'm . . .
"Starkey: [Unintelligible].
"Detective Peters: You understand what I'm doin'?
"Starkey: Reading me, my Miranda rights?
"Detective Peters: That's, that's what I'm gonna do. You came down here wearin' a whole bunch of handcuffs. You came down here in the back of a police car. That means you're not free to leave, right? Anybody would think, 'Oh, I'm not free to leave I rode down here in a police car. I'm at a police station.'
"Starkey: I don't deserve to leave.
"Detective Peters: Well, but, but let's, let's jump off that bridge when we get to it, okay. Let's, let's start here at the beginning and then we'll roll from there. Is that fair enough?
"Starkey: Yes, sir."
For a third time, Detective Peters asked Starkey whether he was understanding him. Starkey responded, "Yes, sir. Yes, sir. I'm not stupid."
Detective Peters responded, "That's not what I mean." Starkey explained, "I'm just upset." Detective Peters provided the following explanation for his repetitiveness:
"Detective Peters: . . . We've never me before, right? So I have no idea . . .
"Starkey: Yes, sir.
"Detective Peters: . . . if you normally wear a hearing aid, or any of those kind of things. That's why I'm asking.
"Starkey: No, sir. No, sir.
"Detective Peters: I don't mean to be repetitive. Okay?
"Starkey: Sorry, I'm . . ."
Detective Peters then read Starkey his Miranda rights and Starkey indicated that he understood those rights:
"Detective Peters: You don't have to be sorry. Adam, you have the right to remain silent. Anything you say can or will be used against you in a court of law. Do you understand me?
"Starkey: Yes, sir.
"Detective Peters: You have the right to have a—you have the right to talk to a lawyer and have them present with you while you are being questioned. If you cannot afford to hire a lawyer one will be appointed to represent you before any questioning, if you wish one. Do you understand that, as well?
"Starkey: Yes, sir.
The following colloquy then occurred:
"Detective Peters: Have you had your rights read to you before? Have you ever been arrested before?
"Starkey: Well I, drinkin' in public. I mean shit like small (unintelligible) like this. I . . .
"Detective Peters: Well Adam, this, this is, you, you know and I don't have to tell it to you this is as big as it comes. But there are reasons for everything that happens in the world, okay? And, and,
and you can just take any, anything and look at it a certain way. And it can look—to each person it can look completely different, okay? Somethin' can look like some horrible atrocity. And something' else can look like, 'Hey, you know, that's explainable. And I can understand.' And that's—that makes sense to me. Okay? Are you willing to speak with us about this? We'd like to understand it if you're willing to talk to us.
"Starkey: Yes. Really, like, just. . . ."
Detective Peters then asked Starkey a series of biographical questions before asking him, "Tell me what happened."
iii. Argument from counsel on the admissibility of Starkey's statements
Defense counsel argued that Starkey did not provide a knowing and intelligent waiver of his Miranda rights due to his intoxication. The prosecutor argued that Starkey's responses to Detective Peters's questions demonstrated that he had the capacity to validly waive his Miranda rights, and that case law supported the proposition that "mere intoxication, even high levels, is insufficient to automatically disprove an ability to understand rationally."
Defense counsel noted that Starkey's blood alcohol level at the time of the interrogation was determined to be .23.
Although the prosecutor referred to her "supplemental brief" on the issue during her argument to the court, no such brief is contained in the record.
iv. The trial court's ruling
The following day, the trial court ruled that the statements that Starkey made to law enforcement officers were admissible. The court provided a detailed statement of reasons for its decision. The court explained that it had viewed the video of the key portion of the interrogation, listened to Detective Peters's testimony concerning Starkey's waiver, and considered the arguments made by the prosecutor and defense counsel. The court specifically noted that it had observed "Mr. Starkey's demeanor and responses," on the video of the interrogation. The court found that Starkey was "coherent and responsive," and that he "displayed awareness to his circumstances."
The court's ruling spans seven pages of the reporter's transcript.
The court also noted that Detective Peters "did give consideration to the fact that there was alcohol on Mr. Starkey's breath as he was making a determination whether to interview Mr. Starkey and go forward with the Miranda advisement." In addition, the court noted that the detective concluded that Starkey "understood the questions and thus was able to waive his Miranda rights and agree to speak with him." The trial court also stated, "I did find the detective's testimony credible."
The court ultimately ruled that the "People have presented evidence by a preponderance to show that there were no Miranda violations." After noting that "the totality of the circumstances . . . must be considered," the court stated:
"So, folks, in total, there is nothing that I found in viewing the video, nothing from the detective's testimony, nothing that has been presented to me that has shown that the defendant did not understand his Miranda rights. There is nothing that's been shown to me that causes me to find that even though Mr. Starkey had consumed some alcohol on that evening or had alcohol on his breath that he was impaired to the point that he didn't have the capacity to understand the Miranda advisements and properly waive them."
4. The trial
The People played the video of Starkey's custodial interrogation for the jury.
5. Application
Prior to advising Starkey of his Miranda rights, Detective Peters asked Starkey three separate times whether he was able to understand him. Starkey responded in the affirmative on each occasion. Starkey's responses to questions from a field technician and Detective Peters prior to the Miranda waiver were also consistently appropriate. In addition, prior to obtaining Starkey's Miranda waiver, Detective Peters preempted Starkey's discussion of the homicide by stating, "I need to read you something before we can go any further, all right?" Immediately thereafter, when Detective Peters asked Starkey whether he understood what Detective Peters was doing, Starkey interjected, "Reading me my Miranda rights?" Moreover, when Detective Peters told Starkey that he had the right to remain silent and the right to counsel and questioned Starkey with respect to whether he understood those rights, Starkey responded in the affirmative.
Starkey contends that "the evidence of intoxication, emotional distress, and [Detective Peters's] enticement," precludes a finding that he had a " 'full awareness' " of the consequences of participating in the interrogation. We are not persuaded. While Starkey was intoxicated, his level of intoxication was not such that he was unable to stand or speak or respond appropriately to questions. On the contrary, as discussed above, the record indicates that he was responsive and understood the nature of the Miranda admonitions. Under these circumstances, the trial court reasonably concluded that Starkey's intoxication did not render his waiver of his Miranda rights involuntary. (See Clark, supra, 5 Cal.4th at p. 988.) Similarly, while the record indicates that Starkey was emotionally distressed, there is nothing in the record to indicate that Starkey was so distressed that he was unable to appreciate the Miranda admonitions that Detective Peters provided.
We assume for purposes of this decision that Starkey adequately preserved the entirety of his argument in favor of suppression, including his contention that Detective Peters improperly induced his waiver of his Miranda rights, notwithstanding that his briefing and argument in the trial court was premised entirely on Starkey's intoxication.
Finally, we are not persuaded by Starkey's contention that Detective Peters engaged in a "ploy" to "induce [Starkey ] to waive his Miranda rights." Specifically, Starkey notes that, immediately prior to asking Starkey whether he was willing to speak with him, Detective Peters suggested that Starkey might be able to make the incident "explainable." A law enforcement officer's suggestion that a defendant will benefit from speaking with police does not render a Miranda waiver invalid, as long as the suggestion does not constitute an express or implied offer of leniency. (See People v. McCurdy (2014) 59 Cal.4th 1063, 1088 ["statement is involuntary and inadmissible when the motivating cause of the decision to speak was an express or clearly implied promise of leniency or advantage"]; People v. Musselwhite (1998) 17 Cal.4th 1216, 1236 [rejecting defendant's claim that his "Miranda waiver was improperly induced by promises of lenity"]; State v. Pyles (2014) 166 N.H. 166, 171 [90 A.3d 1228, 1232] [rejecting defendant's claim that Miranda waiver was invalid because, "by repeatedly exhorting him to 'help [him]self,' the detectives 'falsely implied that, by waiving his Miranda rights and making a statement, [he] would secure a more lenient resolution' "].) Detective Peters's statement did not constitute an express or implied offer of leniency, and Detective Peters did not improperly induce Starkey's waiver of his Miranda rights.
In sum, the totality of the circumstances supports the trial court's conclusion that Starkey validly waived his Miranda rights and that his statements were thus admissible at trial. Accordingly, we conclude that the trial court did not err in denying Starkey's motion to suppress evidence of his statements to law enforcement officers during his custodial interrogation.
B. The trial court did not abuse its discretion in discharging a juror due to the juror's misconduct
Starkey claims that the trial court erred in discharging a juror in the absence of sufficient evidence that the juror engaged in misconduct.
1. Governing law and standard of review
In People v. Williams (2015) 61 Cal.4th 1244, 1262 (Williams), the Supreme Court outlined the law governing a trial court's discharge of a juror and the standard of review applicable to an appellate court's review of such discharge:
" 'The court may discharge a juror for good cause [citation], which includes a failure to follow the court's instructions . . . .' [Citation.] 'A juror who violates his or her oath and the trial court's instructions is guilty of misconduct.' [Citation.] 'We review a trial court's decision to discharge a juror under an abuse of discretion standard, and will uphold such decision if the record supports the juror's disqualification as a demonstrable reality. [Citations.] The demonstrable reality test "requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that [disqualification] was established." [Citation.] To determine whether the trial court's conclusion is "manifestly supported by evidence on which the court actually relied," we consider not just the evidence itself, but also the record of reasons the court provided. [Citation.] In doing so, we will not reweigh the
evidence. [Citation.]' [Citation.] We defer to the trial court's credibility assessments 'based, as they are, on firsthand observations unavailable to us on appeal.' "
The Williams court also noted that the Penal Code requires that a trial court instruct the jury as follows concerning the jury's conduct during a criminal trial:
"Section 1122 requires that after the jury is sworn and before opening arguments it be instructed about 'its basic functions, duties, and conduct,' including that the jurors 'shall not converse among themselves, or with anyone else, . . . on any subject connected with the trial.' (§ 1122, subd. (a)(1).) . . . . Section 1122 also requires that '[t]he jury shall also, at each adjournment of the court before the submission of the cause to the jury, . . . be admonished by the court that it is their duty not to . . . converse among themselves, or with anyone else, on any subject connected with the trial, or to form or express any opinion about the case until the cause is finally submitted to them.' (§ 1122, subd. (b).)" (Williams, supra, 61 Cal.4th at p. 1262.)
The Williams court stated that, "[a] juror's violation of these directions constitutes serious misconduct." (Williams, supra, 61 Cal.4th at p. 1262, italics added.)
2. Factual and procedural background
a. Trial court's admonitions
Prior to opening statements, the trial court instructed the jury pursuant to CALCRIM No. 101 in relevant part as follows:
CALCRIM No. 101 is a standard jury instruction that implements the requirements of section 1122.
"During the trial, do not talk about the case or about any of the people or any subject involved in the case with anyone, not even your family, friends, spiritual advisors, or therapists. Do not share information about the case in writing, by e-mail, by telephone, on the Internet, or by any other means of communication. You must not talk about these things with other jurors either until you begin
deliberating. As jurors, you may discuss the case together only after all the evidence has been presented, the attorneys have completed their arguments, and I have instructed you on the law. After I tell you to begin your deliberations, you may discuss the case only in the jury room and only when all jurors are present." (Italics added.)
Throughout the trial, the court repeatedly admonished the jury not to have any discussions regarding any of the issues involved in the case.
For example, prior to the first recess, the court stated:
"Folks in the jury, I do want to remind you that you're not to discuss any of the issues or any of the people involved in this case with anyone, including each other."
The court provided similar admonishments to the jury prior to each recess.
In total, the court admonished the jury not to discuss the issues in the case at least 13 times prior to the hearing on the potential juror misconduct discussed in part III.B.2.b., post.
b. The hearing concerning juror misconduct
During a recess in the trial, the prosecutor informed the court that the victim's ex-husband, Anthony Bowers (Anthony), had been attending the trial and that Anthony had just informed the prosecutor that he had heard a juror speaking about the case in the hallway. The trial court summoned Anthony to the courtroom and questioned him under oath about what he had heard that morning. Anthony testified in relevant part:
"I heard a guy going into some other conversation and then all of a sudden he went into—he—something had changed his mind. There was a witness on the stand yesterday that had changed his mind. He was mentioning this to somebody in front of him.
"I know the two jurors that it was. It was really quick because I wanted to see how long it would go on. And I was just sitting there. I wasn't making any conversation any way. He said somebody had
gotten on the stand that made up his mind. And then the guy said, [']Yeah. We're going to deliberate about it.['] And then he went into a case that somebody was wrongfully accused, you know. Because he had been a police officer before, I guess. And that was the extent of it pretty much."
Anthony estimated that the conversation had lasted "about ten seconds maximum," and explained that "they did stop it abruptly once they knew what they were doing, I think." The court, the prosecutor, and defense counsel asked Anthony some additional questions, primarily concerning the identity of the jurors involved. From the questioning, the court could reasonably determine that Juror No. 3 was the juror who had stated that one of the witness's testimony had changed his mind.
After excusing Anthony from the courtroom, the trial court discussed with counsel how to proceed. The prosecutor requested that the court question the jurors individually. Defense counsel agreed. The court agreed with counsel, and stated "rather than start off with Juror No. 3, I think I just will go in chronological order and that way it's clear that no individual is being singled out."
During the ensuing questioning, Juror No. 2 stated that, the previous day, Juror No. 3 told him that "a question was asked that kind of pushed his [Juror No. 3's] decision one way." Juror No. 2 elaborated:
"A question from either the defense attorney or the prosecuting attorney—I don't know which one asked the question—but it kind of—he didn't say it really sealed his fate with a decision either way, but he said it kind of—it kind of helped."
Juror No. 2 also stated the following:
"Nobody was speaking with [Juror No. 3]. He was just speaking directly with me. I was kind of listening to him. He didn't really
elaborate on what witness or . . . the evidence he was talking about. He was just kind of . . . —it kind of influenced his decision either way."
Alternate Juror No. 1 stated that he had heard Juror No. 3 say that he had written down a question the previous day for a witness, and that his question had been asked by one of the lawyers and answered by a witness.
Although, Alternate Juror No. 1 did not specifically identify the juror in question as Juror No. 3, Starkey does not dispute that the trial court could have reasonably determined that it was Juror No. 3. This determination was supported by the fact that the previous day, Juror No. 3 had sent the trial court a note to be asked of a witness, and a form of the question was asked and answered. In addition, Alternate Juror No. 1 described the physical appearance of the juror in question and the location where the juror sat in the jury box.
The court also extensively questioned Juror No. 3 concerning whether he had discussed "anything concerning this case," with "any of [his fellow jurors]." Among other questions, the court asked:
"Sir, have you heard any conversations or said anything yourself to any of you fellow jurors about anything concerning this case or any of the people involved in this case?"
"Have you yourself or have you heard any of your fellow jurors say anything regarding any of the witnesses involved in the case?"
"Sir, is there anything that has occurred out in the hallway areas with your fellow jurors that has caused you to have some concern that there may be some conversations going on about this case?"
"And there is nothing that you have directly said to any of your fellow jurors regarding a witness or any issues in this case?"
Juror No. 3 responded in the negative to all of these questions.
With respect to the final question, Juror No. 3 responded, "No. We've mentioned—we mentioned it was a long day or—that's about all. I mean that's all we discussed, you know. It's a long day; we're tired. That's about it."
After speaking with each juror individually, the trial court discussed the issue with the prosecutor and defense counsel. During the discussions, the prosecutor stated that she believed that Juror No. 3 was being "a bit disingenuous." Defense counsel agreed that Juror No. 3 was "not being forthright." The prosecutor stated that Juror No. 3's behavior gave her "grave concern," and that while she did not "know if it [rose] to the level of removal," the prosecutor believed that Juror No. 3 had engaged in "misconduct because it's a direct violation of the Court's . . . repeated admonition."
Defense counsel stated that "it does appear there is some consistency with what [Anthony] stated and what the jurors relayed to the Court." However, defense counsel also stated, "I can't say that I've heard enough that I would say that I can definitively request that he be removed, but I would just submit to the court." Both the prosecutor and defense counsel suggested that no further inquiry into the misconduct was necessary.
The court informed the prosecutor and defense counsel that it would take a recess and consider the issue. The court further stated, "I want to look at some of the factors that I need to consider as to whether I find that I have a demonstrable reality on the part of Juror No. 3 to be unable to perform his duties as a juror. That's the standard that I have to look at . . . ."
c. The trial court's discharge of Juror No. 3
After the recess, outside the presence of the jury, the trial court informed the People and the defense that it was going to discharge Juror No. 3. The court explained that it was "vested with . . . the responsibility of making sure that we have a fair trial, that there is a panel of jurors that follow the instructions." The court stated that it had instructed the jury at the outset of the case not to discuss "any of the issues involved in the case," and that it had repeated that admonition prior to each recess. The court commented that it was "very concerned" that a family member of the victim had heard Juror No. 3 state that, "the testimony of some witness had changed his mind or had been a deciding factor for him and that there was some kind of conversation that was ongoing about some type of case where somebody had been wrongfully accused." The court also noted that Juror No. 2 reported that he had heard "Juror No. 3 make comments yesterday that [Juror No. 3] had heard a question that had pushed his decision . . . ." The court added that Alternate Juror No. 1 "describe[d] even another conversation of Juror No. 3," during which Juror No. 3 "reported he wrote out a question to be asked of the witness and that his question had, in fact, been asked." The court noted that in light of these reports, the court "was concerned about Juror No. 3 having ongoing conversations."
The court stated that it was "very bothered" that "not only did [Juror No. 3] not disclose the fact that he . . . made the comments yesterday to Juror No. 2, but he did not report that he had, in fact, made the comment to [Alternate] Juror No. 1 that he had written out the question and . . . that his question was answered." The court further stated that it was "very concerned" that "we have a person in Juror No. 3 that is not following the Court's instructions not to discuss the case" and that it "causes me concern about whether he will follow other instructions of the Court . . . because the most basic one— don't talk about the case outside of the courtroom—he has clearly violated and did not even note in any of his comments."
The trial court concluded its comments stating, "[T]he standard that I am required to look at is the demonstrable reality test." In applying that test, the court stated that it had been "demonstrated to the Court that I have a juror that is unable to do his work as a juror . . . because he's not able to follow the rules of the Court." The court added, "There is good cause that has been shown to find that Juror No. 3 has performed an act of misconduct."
Shortly thereafter, outside the presence of the other jurors, the court discharged Juror No. 3.
3. Application
The trial court heard evidence from which the court could reasonably have determined that Juror No. 3 committed "serious misconduct." (Williams, supra, 61 Cal.4th at p. 1262.) Specifically, three individuals stated that Juror No. 3 had made comments about the case to other jurors prior to deliberations, on at least two different occasions. Moreover, the trial court also reasonably determined that Juror No. 3 had not been truthful when questioned extensively by the court with respect to whether he had engaged in any such misconduct. Further, the trial court held a lengthy and thorough hearing on the subject, cited the appropriate legal standard, and provided a detailed statement of reasons for its discharge of Juror No. 3. The evidence in the record, quoted above, supports the trial court's determination that Juror No. 3 demonstrated his disqualification to serve as a juror in the case based on both his misconduct in discussing the case with other jurors prior to deliberations and his failure to disclose those discussions when questioned by the court.
We are not persuaded by Starkey's contentions to the contrary. Starkey's primary argument appears to be that the trial court erred in discharging Juror No. 3 because the record does not demonstrate a " 'disabling bias' " on the part of Juror No 3. (Italics added, quoting People v. Fuiava (2012) 53 Cal.4th 622, 713.) While bias was the type of alleged juror misconduct at issue in Fuiava (see Fuiava, at pp. 710, 712), the Supreme Court has clearly stated that it is a juror's disqualification that must be established in order to discharge a juror—a status that may be based on misconduct other than bias. (See People v. Wilson (2008) 43 Cal.4th 1, 26 (Wilson) ["The demonstrable reality test 'requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that [disqualification] was established.' "], quoting People v. Barnwell (2007) 41 Cal.4th 1038, 1052-1053 (Barnwell), bracketed word added in Wilson.) In Williams, for example, the Supreme Court made clear that a juror's misconduct in discussing the case prior to deliberations may support a trial court's discharge of a juror. (See Williams, supra, 61 Cal.4th at p. 1262 [affirming trial court's discharge of juror who discussed case with another juror even after "the court . . . drew the jury's attention to the prohibition against discussing the case until it was submitted to them"].)
In Wilson, the Supreme Court replaced the word "bias" from the opinion in Barnwell with the word " '[disqualification].' " (Wilson, supra, 43 Cal.4th at p. 26, quoting Barnwell, supra, 41 Cal.4th at p. 1052.)
We are not persuaded by Starkey's contention that the trial court erred in discharging Juror No. 3 based on the juror's failure to disclose his misconduct when questioned by the court. Starkey argues that the "generality of the [court's] questions precluded the court from making a finding of deliberate concealment." As discussed above, the trial court asked Juror No. 3 numerous questions concerning whether he had discussed the case with other jurors, and Juror No. 3 denied having done so in each instance. The trial court could have reasonably concluded that Juror No. 3 was not being candid with the court. The court was not required to ask additional clarifying questions before it could make such a determination.
As noted above, defense counsel agreed with the prosecutor that Juror No. 3 was "not being forthright," during the court's questioning. Defense counsel also stated, "I don't believe that further inquiry of Juror No. 3 would be productive based on the initial inquiry of Juror No. 3."
Finally, we are unpersuaded by Starkey's contention that the trial court's admonitions not to discuss the "issues . . . in this case," was "not adequate to convey to a reasonable juror that comments of the type made by Juror [No.] 3 were prohibited." A reasonable juror would understand that the court's admonitions prohibited the jurors from making the statements attributed to Juror No 3. For example, no reasonable juror who had received the trial court's numerous admonishments throughout the trial prohibiting the discussing of the issues or witnesses in the case would think it permissible to state that a witness's testimony had caused the juror to make up "his mind." Yet, Anthony testified, "[Juror No. 3] said somebody had gotten on the stand that made up his mind."
Starkey notes that while section 1222 requires that the trial court instruct the jury not to " 'converse among themselves' . . . on 'any subject connected with the trial,' " the trial court's admonitions prior to each recess generally admonished the jurors not to discuss " 'issues or people in this case.' " (Italics added.) Referring to the trial court's admonitions provided before each recess, Starkey contends that "[i]t was error for the trial court to treat Juror [No.] 3 as if he had committed misconduct under the section 1222 instruction when in fact the juror had been [instructed] with a less encompassing instruction."
As discussed above, the trial court did instruct the jury pursuant to CALCRIM No. 101 at the outset of the case, the standard jury instruction implementing section 1222. The instruction plainly and clearly admonished the jurors as follows, "During the trial, do not talk about the case or about any of the people or any subject involved in the case with anyone . . . ." (CALCRIM No. 101.) Starkey acknowledges, "The instruction contained in section 1222 and CALCRIM [No.] 101 is clear and categorical."
Accordingly, we conclude that the trial court did not abuse its discretion in discharging Juror No. 3 due to the juror's misconduct.
IV.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR: HUFFMAN, Acting P. J. O'ROURKE, J.