PEOPLE v. BLACK

Appellant’s Petition for Review

Cal.November 28, 2012

SUPREME COURT LIV, J. FILED NOV 28 2012 IN THE SUPREME COURT OF CALIFORNIA Frank A. McGuire Clerk PEOPLE OF THE STATE OF CALIFORNIA, ) Case No. Deputy ) Plaintiff and Respondent, ) Court of Appeal ) Case No. A131693 ) Vv. ) Alameda County ) Superior Court ; ) No. C163496 CHARLES ALEX BLACK, ) Deli nde.t ) Petitioner/Appellant. ) ) ) PETITION FOR REVIEW After Decision by the Court of Appeal First Appellate District, Division One Filed October 25, 2012 ROBERT L.S. ANGRES Attorney at Law 4781 E. Gettysburg Ave., Suite 14 Fresno, CA 93726 Telephone: (559) 348-1918 State Bar No. 178032 Attorney for Petitioner by appointmentofthe Court of Appeal under the First District Appellate Project IN THE SUPREME COURT OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) Case No. | ) Plaintiff and Respondent, ) Court of Appeal ) Case No. A131693 ) Vv. ) Alameda County ) Superior Court ) No. C163496 CHARLES ALEX BLACK, ) ) Petitioner/Appellant. ) ) ) PETITION FOR REVIEW After Decision by the Court of Appeal First Appellate District, Division One Filed October 25, 2012 ROBERT L.S. ANGRES Attorney at Law 4781 E. Gettysburg Ave., Suite 14 Fresno, CA 93726 Telephone: (559) 348-1918 State Bar No. 178032 Attorney for Petitioner by appointment of the Court of Appeal underthe First District Appellate Project TABLE OF CONTENTS Page PETITION FOR REVIEW... 0.0.00 ccccc ccc cc cece cece cess te eeeeuasseeaeevereneutnennes 1 QUESTION PRESENTED FOR REVIEW........ 000.00. cccccececccncecuceseeuenceeuens2 1. In those instances where defense counsel exercises peremptory challenges to remove prospective jurors following the erroneous denials of his challenges for cause, does prejudice result when, after the exhaustion of defense counsel’s peremptory challenges, he unsuccessfully challenges a sitting juror for cause, expresses dissatisfaction with the composition ofthe jury, and learnsthatthe trial court will not grant his request for an additional peremptory challenge?......0...ccccccccssesessecseesssssesesscesststscereseesees2 NECESSITY FOR REVIEW. 2.00... .ccccc cc ccc ccc eccecnce see seustusateescaeatavenenenaens2 STATEMENTOF THE CASE......... 0.00. ccccccc cece ccecaececeeccveuceeeeaeetneesesenaens 3 STATEMENT OF THE FACTS. ....0..0. 0. ccccc cc ccccecccececcecce cause vaseeetensttesecevevenens4 ARGUMENT...000 00. ccccec cee ee ccc cece es cssnee see sceneeeessaavensterseseetsttntnnestens4 I. PETITIONER CONTENDS THAT WHEN A TRIAL COURT ERRONEOUSLY DENIES ONE OR MORE CHALLENGES FOR CAUSE, PREJUDICE RESULTS WHEN DEFENSE COUNSEL LOSES THE USE OF A PEREMPTORY CHALLENGE TO REMOVE A SITTING JUROR WHO SURVIVES A CHALLENGE FOR CAUSE......4 A. INTRODUCTION....00 0...ccece ccc e ea seece eae veeneeseneerens4 B. THE LAW IS MURKY AS TO WHEN A DEFENDANT HAS SUFFERED PREJUDICE FOLLOWING THE ERRONEOUS DENIAL OF ONE OR MORE OF HIS CHALLENGES FOR CAUSE...ccccec eee c cece ec ta een eee een ee ensnesesavaeceeeaeeneans 5 C. THE COURT OF APPEAL’S RELIANCE ON PEOPLEV. GORDONTO REJECT PETITIONER’S ARGUMENTIS ZAES)od0720)5) e7 TABLE OF CONTENTS,cont’d Page CONCLUSION............ Lee eee eee nent ee eet needed eat ne tent bate beneverseeanenganens 10 ul TABLE OF AUTHORITIES,cont’d Page CASES (FEDERAL) Duncanv. Louisiana (1968) BOLUS. 14Scececece eben eee e neti bbb btn bribe beeseue7 Johnson v. Armontrout (8" Cir. 1992) 961 F.2d 748...eee cece cece ccc eee cneeeteeeen ete bbcrebebebeeeecc 7 Wainwright v. Witt (1985) OSO 6 CASES(STATE) People v. Baldwin (2010) 189 Cal.App.4™ 991... o.oo ceccccescecececeseeusccseceteetetteeeee ces.6-7 Peoplev. Bittaker (1989) 48 Cal.3d 1046.2...cecccccecce cc ccceeeeeae tee eeneteeee see neeeeece, 5-6, 9 Peoplev. Blair (2005) 36 Cal.4" 686.....00cccccceccceesceeeseeeeseceeceseeseteeeeeerecee6,93 People v. Bonilla (2007) AV Cab4313.cececeesecesteeesevseteseeteeeeeteterteeeeee6 People v. Edwards (1991) 54 Cal.3d 787.0...eee cece eeceecceeeseeaeeeeu ete eeteti eevee beeeeeece7 People v. Gordon (1990) 50 Cal.3d 1223.0... ccc ceccceteeceesseee tee eeeeecbebeeebeeecce7-9 People v. Yeoman (2003) 31 Cab93.oleccecsceeeeeseeteseecetecsseteeeteseeeeces5-6 ili TABLE OF AUTHORITIES,cont’d Page CONSTITUTIONAL PROVISIONS (FEDERAL) Federal Constitution Fourteenth Amendment..0.00.0....000..ccccceceeccceeeeeeeeeceeececeeeeeee cc.7 Federal Constitution Sixth Amendment......0..000 000. ccoccceccccecceececccccceecceeebee eeeeeeueecenes 7 RULES OF COURT California Rules of Court, rule 8.500(D)(L)... cee eceeee eeevee ce eee eeseeen 3,9 iv IN THE SUPREME COURT OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) Case No. ) Plaintiff and Respondent, ) Court of Appeal ) Case No. A131693 ) V. ) Alameda County ) Superior Court ) No. C163496 CHARLES ALEX BLACK, ) ) Petitioner/Appellant. ) ) ) PETITION FOR REVIEW TO THE HONORABLETANI G. CANTIL-SAKAUYE, CHIEF JUSTICE AND TO THE ASSOCIATE JUSTICES OF THE SUPREME COURT OF CALIFORNIA: Petitioner Charles Alex Black petitions this Court to review the decision of the Court of Appeal, First Appellate District, Division One filed on October 25, 2012. The Court of Appeal affirmed the judgmentin its entirety. Petitioner did not petition the Court of Appeal for a rehearing. A copy of the Court of Appeal’s unpublished opinion is attached as Exhibit A. QUESTION PRESENTED FOR REVIEW l. In those instances where defense counsel exercises peremptory challenges to remove prospective jurors following the erroneousdenials ofhis challenges for cause, does prejudice result when, after the exhaustion of defense counsel’s peremptory challenges, he unsuccessfully challenges a sitting juror for cause, expresses dissatisfaction with the composition ofthe jury, and learnsthat the trial court will not grant his request for an additional peremptory challenge? NECESSITY FOR REVIEW This case highlights the uncertainty in the law as to exactly when the erroneous denial of one or more challenges for cause results in prejudice. In this case, petitioner alleged that the trial court wrongfully denied two of defense counsel’s challenges for cause. Respondent did not counter by saying that no error occurred. Instead, respondent contendedthat since no “incompetent juror” was forced upon petitioner after he exhausted his peremptory challenges, any error was harmless. Respondent characterized an “incompetent juror” as one who should have been excused for cause. (See Exhibit A; Slip Opn., p. 4; RB 25.) Petitioner, on the other hand, characterized an “incompetent juror” as one that he would have excused with a peremptory challenge had he not been forced to exhaust his supply in response to an erroneous denial of a challenge for cause. (See Exhibit A: Slip Opn., pp. 5-7; AOB 27-28.) As a result, petitioner argued that an “incompetent juror” wasindeed foisted upon him,and thus thetrial court’s erroneous denials cannot be labeled as harmless. The Court of Appeal properly recognizedthat “[t]he issue before us is therefore not the propriety of the trial court’s conduct but the nature of defendant’s burden in demonstrating a violation of his right to a fair and impartial jury.” (Exhibit A; Slip Opn., p. 5.) The Court of Appeal devoted a significant portion of its opinion tracing the jurisprudential history of this question and noted that since 1989, appellate courts have issued conflicting decisions on the issue — some in support of petitioner’s position and someagainst. (Exhibit A; Slip Opn., pp. 5-7.) The Court of Appeal did not choose oneline of cases over another, but instead relied on a parallel line of authority to reject petitioner’s argument. (Exhibit A; Slip Opn., pp. 8-10.) Reviewis essential in this case because there is exists a split of authority as to the “nature of [a] defendant’s burden in demonstrating a violation of his rightto a fair and impartial jury” after he suffers the erroneous denial of one or more challenges for cause. This case presents a perfect vehicle by which this Court can clarify the aforementioned burden and establish once and for all which line of cases correctly states the law. (Cal. Rules of Court, rule 8.500(b)(1).) STATEMENT OF THE CASE Petitioner adopts the statement of the case in the opinion of the Court of Appeal. (Exhibit A; Slip Opn., pp. 1, 4.) STATEMENT OF THE FACTS Exceptas otherwise noted, petitioner adopts the statement of the facts in the opinion of the Court of Appeal. (Exhibit A; Slip Opn., pp. 1-4.) ARGUMENT 1. PETITIONER CONTENDS THAT WHEN A TRIAL COURT ERRONEOUSLY DENIES ONE OR MORE CHALLENGES FOR CAUSE, PREJUDICE RESULTS WHEN DEFENSE COUNSEL LOSES THE USE OF A PEREMPTORY CHALLENGE TO REMOVEA SITTING JUROR WHO SURVIVES A CHALLENGE FOR CAUSE A. INTRODUCTION Petitioner contends that whena trial court erroneously denies one or more of his counsel’s challenges for cause and compels him to exhaust his supply of peremptory challenges, the error is prejudicial when the ruling prevents counsel from resorting to a peremptory challenge that he would have used to remove a sitting juror following an unsuccessful attempt to removethat same juror for cause. With that said, petitioner acknowledgesthat the law is unclear as to the nature of the burden that a defendant mustshow in orderto establish that thetrial court’s error impinged upon hisright to a fair and impartial jury. B. THE LAW IS MURKY AS TO WHEN A DEFENDANT HAS SUFFERED PREJUDICE FOLLOWING THE ERRONEOUS DENIAL OF ONE OR MOREOF HIS CHALLENGES FOR CAUSE Atpresent, the law is unclear as to what constitutes prejudice in the context of an erroneous challenge for cause. Older cases indicate that a “defendant must show that he used a peremptory challenge to remove the juror in question, that he exhausted his peremptory challenges [citation omitted] or can justify his failure to do so [citation omitted], and that he wasdissatisfied with the jury as selected. But if he can actually show that his right to an impartial jury was affected because he was deprived of a peremptory challenge which he would have used to excuse a juror whosat on his case, heis entitled to reversal; he does not have to show that the outcomeofthe case itself would have been different.” (People v. Bittaker (1989) 48 Cal.3d 1046, 1087-1088.) Asthe Court of Appeal noted in its opinion, this Court later took a different tack and held that a defendant’s exercise of a peremptory challenge following the erroneous denial of a challenge for cause only results in prejudice “‘if the defendant exhausts all peremptory challenges and an incompetentjuror is forced upon him.” (People v. Yeoman (2003) 31 Cal.4" 93, 114, internal quotations omitted; Exhibit A, Slip Opn., pp. 5-6.) Yeoman did not actually define what constitutes “an incompetentjuror,” but found no prejudice because the defendant failed to challengea sitting juror, and thus “[n]o incompetent juror was forced upon him.” (People v. Yeoman, supra, 31 Cal.4" at p. 114; Exhibit A; Slip Opn., p. 6.) Relying on People v. Bonilla (2007) 41 Cal.4" 313, 340 and Wainwrightv. Witt (1985) 469 U.S. 412, 430, the Court of Appeal construed an incompetent juror in this context as one “properly excused for cause.” (Exhibit A; Slip Opn., p. 6.) The Court of Appeal then noted a seemingretreat by this Court from its position in Yeoman. (People v. Blair (2005) 36 Cal.4"" 686, 742.) In Blair, this Court held that “[t]o establish that the erroneous inclusion of a juror violated a defendant's right to a fair and impartial jury, the defendant must show either that a biased juror actually sat on the jury that imposed the death sentence, or that the defendant was deprived of a peremptory challenge that he or she would have used to excuse a juror whoin the end participated in deciding the case.” (/d. at p. 742.) This Court found the error harmless because the defendant used his peremptory challenges to remove those jurors he had challenged for cause and could not identify a juror whom he would have excused had he not exhaustedhis peremptory challenges. (/bid.) Blair cited Bittaker and Yeoman but“did not acknowledge the apparent disagreement between them.” (Exhibit A; Slip Opn., p. 7.) The Court of Appeal then looked to People v. Baldwin (2010) 189 Cal.App.4" 991 for guidance. Failing to cite Blair, Baldwin found Yeomanto be more persuasive than Bittaker. Ud. at pp. 999-1001.) Baldwin held that the erroneous denial of for cause challenges only leads to a deprivation ofthe right to an impartial jury if “the trial court erroneously denied a challenge for cause to a sitting juror.” (People v. Baldwin, supra, 189 Cal.App.4" at p. 1001.) The Court of Appeal partially assessed the state of the law as follows: “weare [therefore] faced with a 2003 Supreme Court decision apparently rejecting [petitioner’s] position, a more recent Supreme Court decision from 2005 acceptingit, and a 2010 Court of Appeal decision definitively rejecting it, without discussing the conflicting 2005 Supreme Court decision.” (Exhibit A; Slip Opn., p. 7.) Reviewis essential because, as the Court of Appeal properly notedin its opinion, there presently exists profound uncertainty in the jaw regarding the nature of the burden a defendant must demonstrate in establishing prejudice when he suffers the erroneous denial of one or more challenges for cause. Petitioner further submits that the error has a federal constitutional dimension, becauseit infringes on the rightto a trial by an impartial jury as guaranteed under the Sixth and Fourteenth Amendments. (Duncanv. Louisiana (1968) 391 U.S. 145, 155- 156; Johnson v. Armontrout (3 Cir. 1992) 961 F.2d 748, 751-752 [Sixth Amendmentright to an impartial jury is violated if any juror is biased against the defendant].) Given the importanceofthis issue, petitioner urges this Court to grantthis petition. C. THE COURT OF APPEAL’S RELIANCE ON PEOPLEV. GORDONTO REJECT PETITIONER’S ARGUMENTIS MISPLACED Faced with abovementioned conflicting authority, the Court of Appeal ultimately relied on People v. Gordon (1990) 50 Cal.3d 1223, disapproved on another point in People v. Edwards (1991) 54 Cal.3d 787, 835 to reject petitioner’s argument. Gordon doesnotsettle the issue because petitioner’s case is distinguishable from it. (Exhibit A; Slip Opn., pp. 8-10.) In Gordon, the defendant challenged three prospective jurors forbias. (People v. Gordon, supra, 50 Cal.3d at p. 1246.) The exercise of peremptory challenges removed two ofthe three jurors, and the third “was never drawninto the box.” (/bid.) “When the jurors were sworn, defendant did not indicate any dissatisfaction with the panel and in fact had a peremptory challenge remaining.” ([bid.) This Court in Gordon assumedthatthe trial court erred in denying the challenges for cause, but found no prejudice because “[nJone of the prospective jurors whom defendant found objectionable actually sat on his jury. Hence, none could havetainted the panel's members with his alleged bias. Accordingly, none could have affected the processor result of the deliberations to defendant's detriment.” (/d. at p. 1247.) The facts of petitioner’s case contrasts sharply with Gordon. Not only did he exercise a peremptory challengeto a sitting juror, he also expressed dissatisfaction with the jury as a whole. (AOB 21.) Thus,the very taint that this Court found impossible in Gordon was very possible here given that defense counsel feared that the juror in question, though admittedly not subject to a challenge for cause, might adversely infect the jury with his linkage of appellant to guns, violence, and drugs. (AOB 28.) The Court of Appeal nonetheless found petitioner’s argument indistinguishable from Gordon, because “{i]n the absence of a demonstrationthat Juror No. 8 should have been removedfor cause, this argumentis no different from the general claim made in Gordon ofprejudice from the unnecessary use of peremptory challenges.” (Exhibit A; Slip Opn., p. 9.) This contentionis puzzling becauseit ignores cases that predate and postdate Gordon — namely Bittaker and Blair — whichaffirm that prejudice emerges whenthe errorhasthe effect of denying a defendant a peremptory challenge that his counsel would have otherwise exercised to remove the objectionable juror — the exact situation in petitioner’s case. (People v. Bittaker, supra, 48 Cal.3d at pp. 1087-1088; People v. Blair, supra, 36 Cal.4"at p. 742.) Petitioner respectfully submits that the Court of Appeal’s reliance on Gordonfails to reconcile the split of authority noted in the unpublished opinion and, if anything, highlights the need for this Court to secure some uniformity of decision in this area of the law. (Cal. Rules of Court, rule 8.500(b)(1).) With the law in this area in sucha flux, review by this Court is critical. CONCLUSION For the foregoing reasons, petitioner respectfully requests that this Court grant review on the issue presented in this brief and reverse the judgmentofthe Court of Appeal accordingly. Dated: November Ao , 2012 Respectfully submitted, ReledHips ROBERT L.S. ANGRES Attorney for Petitioner 10 CERTIFICATE OF LENGTH I, Robert L.S. Angres, counsel for petitioner Charles Alex Black,certify pursuant to the California Rules of Court, that the word count for this documentis 2,057 words, excludingthetables, this certificate, and any attachment permitted underrule 8.504(d)(1). This document was prepared in Microsoft Word, andthis is the word count generated by the program for this document. I declare under penalty of perjury underthe lawsof the State of California that the foregoing is true and correct. Executed at Fresno, California on November iC , 2012. KiboKip Robert L.S. Angres Attorney for Petitioner COPY Filed 10/25/12 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1145(a), prohibits courts and parties from citingor relying on opinions not certified for publication or ordered published, except as Specified by rule 8.1115(b). This opinion as not been certified for publication or ordered published for purposesof rule 8.1 : IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE COURT OFAPPEAL ELSEPPELLATEDISTRICL OCT 25 2012),I THE PEOPLE, DIANA HERBERT, CLERK -Plaintiff and Respondent, A131693 2RUTcoe v. CHARLES BLACK, . (Alameda County . Super. Ct. No. 163496) Defendant and Appellant. Defendant was convicted of two counts of animal cruelty afterhe was twice . videotaped while beating his dog. Defendantcontendsthetrial court deprived him ofthe night to a fair and impartial jury by denying his requests to excuse two jurors for cause and erred by failing to instruct the jury on the lesser includedoffense of attemptedanimal cruelty with respect to one of the charges. We affirm. | | | | I. BACKGROUND Defendant was charged in an information,filed April 22, 2010, with two counts of animalcruelty. (Pen. Code, § 597, subd. (a).) Separate incidents of abuse were alleged to have occurred on June 30, 2009 and February 19,2010. The information also alleged defendanthad suffered onepriorstrike conviction (Pen. Code, §§ 667, subd. (e)(1), 1170.12, subd. (c)(1)) and oneprior prison conviction (Pen. Code, § 667.5, subd. (b)). A. Denial of “For Cause” Challenges During jury selection, two prospective jurors expressed concem abouttheir respective abilities to serve impartially. Thefirst, M.P., characterized herself as “a very devout Hindu” who was“taught to not harm any animals whatsoever.” Although M.P. said she would “try” to put aside her beliefs, when asked whether she could be “completely impartial, unbiased,” she responded, “Probably notfor this particular case.” The second prospective juror, A.D., had been abused as a child, raising concerns inhis ~ mind abouthis ability to act impartially. Further, he told the court in chambers he “already sided with the [district attorney], because ofwhat happened todayin the morning andat lunch.” Asked to explain, A.D.said hefelt defendant’s conductin the courtroomwasdisrespectful, since he arrived late and was “singing and stompinghis feet” as he entered. When the court denied defendant’s “for cause” challenges to the two prospective jurors, he used peremptory challenges to remove them. | A third prospective juror, eventually seated as Juror No.8;also expressedconcern in a note to the court. In chambers, he explained he was a process server who had been sent earlier that year to serve an unlawful detainer summons on a “Charles Black”at'an Oakland Housing Authority building. Because this Charles Blackwas neverat home | when Juror No. 8 attempted to serve him, the juror did not know whether defendant was the sameperson as the subject of the summons. Although he had served residents of the Housing Authority‘‘Lo}ver 100 times,” this attempt at service stood out: inJurorNo. °°5 . memory because he receiveda police escort, which only occurredif “guns and/or drugs wereinvolved in the reasonforthe eviction.” The jjurorsaid he would“try” not to let the incident affect his consideration of the case and promisedhe would not disclose it to other jurors. Defense counsel requested Juror No. 8 be excused for cause“in an abundance ofcaution.” The court declined the request, concludingthe juror was conscientious and noting there was no evidence of a gun in this case. | Afterexhausting his peremptory challenges, defendant sought additional peremptory challenges from the court in order to remove Juror No.8 and another unspecified juror. The request was denied. B. Evidence ofthe June 30 Incident The primary witnessesat trial were defendant’s neighbors. One neighborin particular, whose home had a view ofthe rear balcony of defendant’ s apartment, witnessed several incidents ofabuse. On these occasions, defendant would typically take the dog onto the balcony, reprimandit, and kick it “pretty hard” or hit it with a mop — handle. The dog would yelp and cower. Theneighbor found defendant’s conduct so “appalling” that he decided to videotapeit. On June 30, 2009, the neighbor was in his bedroom when he heard defendant’s _ voice and a dog yelping. The neighbor grabbed his camera and wentto a sliding glass | door from which he could view defendant’s balcony. As he wasfilming, the neighbor saw defendantraise the mop overhis head,using both hands,and bring it down on the dog. He swungat the dog “no more than three times,’“each timestriking the dog “‘across the back anywhere from the backofthe neck to all the way down to the rear.”" The dog was yelping as defendant reprimandedit. The resulting video of the events was of poor quality. Only a portion of defendant’s balcony was visible; the remainder was obscured by vegetation.’ Bright . sunlight from the left bleached out details. Although.defendant was visible throughout | mostofthe video, the dog was not. Earlyin the video, the dog was twice heard yelping suddenly and there was shouting, but at those times defendant’s body was largely obscured, and the dog could not be seen. At thecritical point on which the neighbor _ focusedhis testimony, slightly more than one minute into the video, defendant was visible walking around the balcony carrying the mop or broom with the head down, At certain points he made sudden movements, appearing to thrust the mop or broom downward one time and to swing it another time, and an unseen dog was heardcrying out loudly at least five separate times. It was not possible to determine from the video, however, that defendant’s movements caused the dog’s cries. - In his own testimony about the June 30 incident, defendant said he wentto the balcony where the dog had beenputafter he noticed it had chewed an electrical cord. Whenthe dog growled at him, defendantpicked up the mop “to signify that his defiance wouldn’t be tolerated.” Defendant acknowledgedhe used the mopto “make contact” ' The neighbortestified he had amuch better ofviewofthe events on the balcony than is suggested bythe video. with the dog, but he deniedraising the mop overhis head andbringing it down forcefully. Instead, he usedit to “push or . . . touch” the dog twice. He then reentered his apartment. The neighbor had also recorded the February 2010 incident underlying the second count. This video wasoffar better quality, unmistakably showing defendant swinging a steel axe over his head andbringing it down on the cowering dog, striking the animal repeatedly. Defendantshouted angrily at the animalasit squealediin pain, in a manner identical to the cries: heard on theJune 30video. A veterinarian’s subsequent examination confirmed the dog was wounded by thestrikes. ~ Defendant was convicted on both counts and sentencedto a four-year prison term. _ I. DISCUSSION Defendant contends (1) his right toa fair and impartial jurywas violated when the court refused to excuse Prospective Jurors MLP.and A.D.for cause, leaving him without sufficient peremptory challenges to remove Juror No.8; and (2) the trial court erredby failing to instruct the jjury on the lesserincluded offense of attempted animal cruelty with respect to the June30 incident. A. Right to an Impartial Jury Defendant contends the trial court erred in refusing to excusefor causeM.P and AD., which required him to exercise peremptory challenges to prevent these prospective jurors from being seated. Although defendant does not contend thefrial courterred in refusing to excuse JurorNo.8 for cause, he argueshis right toa fair and impartialjjury | was violated because the unwarranted use of two peremptory challenges to removethe other prospective jurors left him unable to use a peremptory challenge to remove Juror No.8 | The Attorney General does not defendthetrial court’s decisions not to excuse MP. and A.D. Instead, she contends defendant’s right to a fair and impartial jury was violated only if his use of peremptory challenges to remove these two jurors left him unable to preventthe seating of an “incompetent” juror, which she definesas a prospective jurorwho should havebeen excused for causé. ‘Because defendant does not contend Juror No. 8 should have been excusedfor cause, itis argued, he has failed to | demonstrate he was deprivedof a fair and impartial jury. The issue before usis therefore not the propriety ofthe trial court’s conductbutthe nature of defendant’s burden in demonstrating a violation of his right to a fair and impartial jury. | A defendant accused of a crime has a constitutionalright to a trial by unbiased, . impartial jurors. (People v. Nesler (1997) 16 Cal.4th 561, 578.y ‘To find actual bias on the part of an individualjjuror, the court mustfind “the existence of a stateof mind”with referenceto the caseorthe parties that would preventthe prospective juror “from acting with entire impartiality and without prejudiceto the substantial rights of either party.” ” » (People v. Horning (2004) 34 Cal.4th 871, 896.) | | | | In its decisions addressing the specific i ssueraised by defendant, our‘Supreme Court has been of two minds. In People v. Bittaker (1989) 48 Cal.3d 1046 (Bittaker), the defendant claimed he was deprived ofhis night to a fair andimpartial jjurybecause he had beenrequired to use peremptory challenges to remove five prospective jurors who should have been excused for cause and was granted only two compensatory peremptory challenges. by the court. (Cd. at p. 1087.) Responding tothe argument, the court held “defendant must show that he used a peremptory challenge to remove the jjuror in question, that he exhaustedhis peremptory challenges [citation] or canjustifyhis failure to do so [citation], and that he was dissatisfied with the jury as selected. But if he can actually show that his right to an impartial jjury was affected because he was deprived of a peremptory challenge which he would have used to excuseaJuror who sat on hiscase, heis entitled to reversal; he does not have to show that the outcome of the. case itself would have beendifferent.” (/d. at pp. 1087-1088, italics added.) Accordingly, thecourt held the defendant was required to show thetrial court erred in denying at least three challenges for cause to gain a reversal, since the court provided two additional — peremptory challenges. (/d. at p. 1088.) Because the court found only two ofthedenials erroneous,it did not reverse. (/d. at pp. 1088-1091.) Thereis no question the highlighted language from Bittaker supports defendant’s contention. More recently, in People v. Yeoman (2003) 31 Cal.4th 93(Yeoman), the court appeared to changeits view, holding a defendant’s use of a peremptory challenge to removea juror who should have been excusedfor cause is not prejudicial unlessit resulted in the seating of an “incompetent” juror. (Jd. at p. 114.) The court reasoned, “To prevail on such a claim, defendant must demonstratethat the court’s rulingsaffected his _ rightto a fair and impartial jury. [Citation.] None ofthe four prospective jurors [whom the defendant unsuccessfully challenged for cause] couldpossibly have affected the jury’s faimess because nonesat on the jury. [Citations.] The harm to defendant, if any, was in being required to use four peremptory challengesto cure whathe perceived as the trial court’s error. Yet peremptory challenges are given to defendants subject tothe : requirement that they be used for this purpose. [Citation.] While defendant’s compliance with this requirement undoubtedly contributed to the exhaustion of his peremptory challenges, fromthis aloneitdoes not follow that reversibleerror occurred.. .. [T]he iss ofa peremptory challenge in this manner‘ “provides grounds for reversal only ifthe — defendant exhausts all peremptory challenges and an incompetentjurorisforcedupon - him.’ [Citations. ] Here, defendant cannot show his right to an impartialjjurywas- affected because hedid not challenge for cause any sitting juror. No incompetentjuror | was forced upon him.” (Ibid., italics added by Yeoman-) Although Yeoman cited Bittaker without acknowledging anydisagreement (Yeoman, at P. 114), it appears to impose a stricter standard for prejudice than Bittaker by!requiring‘the defendantto. demonstrate that the exhaustion of hisperemptory challenges resulted inthe seating ofan “incompetent”juror, ratherthan merely a juror whom the defendant wouldhave preferred to remove. This interpretation is reinforced by Peoplev. Bonilla (2007) 4] Cal.4th 3 13, 340, which construes Yeoman as referring to “a juror incompetent under Wainwrightv. " Witt [(1985)] 469 U.S. 412.” While Wainwright does not to use the term ‘“incompetent,” it discusses jurors “properly excused for cause.” (dd. at p. 430.) The Supreme Court later appearedto retreat from its position in Yeoman. In People v. Blair (2005) 36 Cal.4th 686 (Blair), the court held, “To establish that the erroneousinclusion of a juror violated a defendant’s rightto a fair and impartial jury, the defendant must showeither that a biasedjjuror actually sat on the jJury that imposed the: death sentence, or that the defendant was deprived ofa peremptory challenge that heor she would have used to excuse ajuror who in the endparticipated in deciding the case.” (Id. at p. 742,italics added.) The court found no reversible error because the defendant used peremptory challenges to remove the prospective jurors challenged for cause, had not identified any sitting juror whom he challenged for cause, and “fail[ed] to identify | any juror whom he would have excusedhad henotusedhis peremptory challenges to remove[the jurors challenged for cause].” (/bid.; see also People v. Alfaro (2007) | 41 Cal.4th 1277, 1314 [“Defendanthas not identified any person who sat onherjury panel whom she would haveperemptorily challenged but for the circumstance that she had usedher final challenge to excuse another prospective juror”].) Although Blair cited both Bittaker and Yeoman, it did not acknowledge the apparent disagreement betweenthem? : : : In People v. Baldwin (2010) 189 Cal.App.4th 991 (Baldwin), the court discussed Bittakerand Yeoman at length, ultimately concluding Yeoman did adopt a stricter | standard than Bittaker. Under Yeoman, the court held, “the defendant cannot showthat. his nght to an impartialjjury was affectedby the denial of the for-cause challenges, unless the trial court erroneously denied a challenge for cause to sitting juror.’” (Baldwin, at pp. 1000-1001 .) In soholding, Baldwin equated Yeoman’s “tacompetentjuror:"with, a juror who should have been removedfor cause, in the process rejecting an argument - identical to that raised by defendanthere. (Baldwin, atp. 1001.) Although Blair had been decided in the interim since Yeoman, Baldwin did not mention Blair. As a result, weare faced with a 2003 Supreme Court decision apparently rej ecting defendant’s position, a more recent Supreme Court decision from 2005 acceptingit, and a 2010 Court of Appeal decision definitively rejecting it, but without discussing the conflicting 2005 _ Supreme Court decision. * An even morerecent decision, People v. Mills (2010) 48 Cal.4th 158, reaffirms - Yeoman’s requirementthat an “incompetent” jurorremainon thejury. (Mills, at p. 187; see also People v. Farley (2009) 46 Cal.4th 1053, 1096 [“ ‘So long:asthe jury thatsits is impartial, the fact that the defendant had to use a peremptorychallenge to'achieve that — result does not mean the Sixth Amendmentwasviolated’ ”].) Wealso conclude we mustreject defendant’s argument, but we rely on a parallel line of Supreme Court authority not mentioned by Baldwin or, for that matter, the parties. In People v. Gordon (1990) 50 Cal.3d1223 (Gordon), overruled on another groundin People v. Edwards (1991) 54 Cal.3d 787, 835, which wascited by Yeoman, the court rejected the argument thatthe use ofa peremptory challengeto remedy a trial court’s erroneous denialof a “for cause” challenge results in a constitutional violation. In’ Gordon, the defendant challenged three jurors for cause during voir dire. One of the jurors was neverseated, but the defendant was required to use peremptorychallenges to removethe other two. (Id. atp. 1246.) Thecourtheld that atrial court’s erroneous - failure to excuse jurors challengedfor cause “is not automatically reversible butis subject to scrutiny for prejudice under harmless-error analysis.” Cd.at p. 1247,) Althoughno challengedjjuror was actually seated, the defendantcontendéd“hewas harmedbecause he waseffectively deniedtwo peremptory challenges whenhe chose to exercise those challengesto ‘cure’ the“error.” ” (Id. at p. 1248.) The courtrejected theclaim of” prejudice, noting, “A criminal defendant may, and indeed must, exercise the peremptory challenges granted him by‘law ‘to remove prospective jurors who should have been excludedforcause’ [citation]—thatiis to say, to cure theverykindoferror claimed.here.” (Ibid) - | | : In a footnote, Gordon rejected the defendant’s constitutional claims, explaining the right to afair and impartial jury wasnot violated because no juror challeviged for causeactually sat on the jury and “the court’s refusal to removethethree prospective jurors for cause did not infringe defendant’s right to due process by arbitrarily depriving him ofhis full complement ofperemptory challenges. Since peremptory challengesare a creation ofstate law and notconstitutionally required,the right to exercisesuch © challenges would be denied or impaired only if the defendantdid not receive whatthe law provides. Althoughat-the time relevant here state law gave.capital defendants 26 peremptory challenges [citation], it did so subjectto the requirement that the defendant exercise those challengesto cure erroneous refusals to excuse prospective jurors for cause [citation].” (Gordon, supra, 50 Cal.3dat p. 1248, fn. 4. ) Gordon’s holding onthis point has been summarily reaffirmed by the Supreme Court at least twice, most recently last year. (People v. Clark (201 1) 52 Cal.4th 856, 902 [rejecting under Gordon the argument “because the court’s rulings compelled [the defendant] to use his peremptory challenges | to excuse jurors who should have been excused for cause, he was deprived ofhis federal constitutional right to a state-created liberty interest in 20 peremptory challenges”); People v. Weaver (2001) 26 Cal.4th 876, 913.) | ; Defendant’s argument. is legally indistinguishable from the argument re}jected jin Gordon. Defendant’ S argument is not that his right toa fair andAmpartial jjury was _ compromised because a juror who should have been excused for cause actually.sat on his jury. Rather, he argues he was prejudiced because his need to remedy thetrialcourt’ S erroneousfailure to excuse two jurors for causeleft him unable to removeJuror No.8, a sitting juror whom he would otherwise have removed using a peremptory challenge. In. the absence of ademonstration that Juror No. 8 should have been removed for cause, this argument is no different from the general claim made in Gordonofprejudice:from the unnecessary use ofperemptory challenges. Defendanthasmerely identified a particular jurorwhom he would have removedhadhe not been required to exhaust hisperemptory challenges.° . Defendant argues that an incompetent juror should be defined under Yeoman2as, | one who drewa “for cause” challenge from defense counsel, without regard.to themerits of that challenge, contending*‘[iJncompetence in this context is ultimatelynothing more than [defense] counsel’s opinionthat a prospective juroris notfit to sit on the panel.mo Werecognizethis position is superficially consistent with Yeoman’s observation that “defendant cannot show his right to an impartial jury was affected because he didnot challenge for cause any sitting juror. No incompetent juror was forced upon him.” (Yeoman, supra, 31 Cal.4th at p. 114.) Read in context, however, Yeoman’s observation is not intendedto define an incompetentjuror as one whohas drawn a challenge for ° Defendant’s reply brief confirmshe does not contendthetrial court erred in not excusing Juror No. 8 for cause. In any event, having reviewed the record with respect to Juror No. 8, we find no error in the trial court’s denial of defendant’s challenge. cause. Rather, Yeoman’s pointis that a challengefor causeis a necessary prerequisite to a defendant’s demonstration of prejudice, since if no juror challenged for cause sat on the jury, the defendantislegally precluded from claiming the jury contained ann incompetent juror. oe Further, underthe constitutional analysis of Gordon, the right toa fair and impartial jury is not violated unless a juror who should have been removedfor cause— thatis, a legally biased juror—actually sat on the jury. As Gordon explained, the loss of a peremptory challenge used to remove a juror who should have been removedfor cause does not alone constitute a constitutionalviolation because (1) peremptory challenges are not constitutionally required, and (2) they are granted understate lawinpart forjust this purpose—to avoid prejudice as a resultof trial court’s erroneousfailuretoremovea juror for cause. (Gordon, supra, 50 Cal.3dat p. 1248, fn. 4) Because the privilege granted by aperemptory challengeiis not constitutionally required, a defendant’s loss of the ability to remove a juror whois not biased, but whom counsel believes tobe unsuitable, does not riseto the level of a constitutionalviolation. Further, because © peremptory challengesare granted in part to allow the parties to avoidprejudicefrom a trial court’s wrongful denial of a “for cause” challenge,there is no loss of state- granted rights in the use of peremptory challenge for this purpose.Accordingly,as Gordon implicitly holds,a defendant must showthe use of a peremptory challenge toremovea juror who should have been excusedfor causeleft him or her unableto prevent the seating of anotherjjuror who should have been excused forcause beforeaconstitutional: violation will be found. Because defendantdoes not argue Juror No. 8 should have been excused for cause, he hasfailed to demonstrate a violation ofhis right to afair and impartial jury. | | | B. Lesser Included Offense Instruction Defendantcontends the trial court failedtofulfill its sua sponte duty to instruct the jury on the lesser included offense of attempted animal abuse with respecttothe charge based on June 30 incident. 10 _“ “The trial court is obligated to instruct the jury onall general principles of law relevant to the issues raised by the evidence, whetheror not the defendant makes a formal request.” {Citations.| ‘That obligation encompassesinstructions on lesser included offenses if there is evidence that, if accepted by thetrier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser.’ ” (People v. Rogers (2006) 39 Cal.4th 826, 866..) In other words,the duty to instruct on lesser included offenses | exists only ifthereis substantial evidence supporting a jury determination thatthe _ defendant“wasin fact guilty only of the lesser offense.” (People v. Parson (2008) _ 44 Cal.4th 332, 348-349.-) “ “As our prior decisions explain, the existence of“any| evidence, no.matter how weak”will not justify instructions ona lesser includedoffense, but such instructions are required whenever evidencethat the defendanti1Sguilty only of the lesser offenseiis“substantial enough to merit consideration” by thejjury. [Citations.1. “Substantial evidence” m this contextis ‘ * “evidence from which aJury composed of reasonable [persons] could . . . conclude[]’ ” that the lesser offense,but not thegreater,- was committed.”7”| (People v. Moye (2009) 47 Cal.4th 537, 553.) | ce Wefind no error here because there was no substantial evidence supporting ajJury. finding that defendant attempted, but failed, to commit animal cruelty. The testifying witnesses presented the jury with two conflicting stories, The neighbor testified defendantstruck the dog forcefully with a mop or broomhandle. Defendant acknowledged using the mopto “makecontact” with dog, but he denied anycruelty, saying he used it merely to “push or . . . touch” the dog twice. The images on the video are not clear enough to determine what defendant was doing, although the auditory evidence, which featured repeated heart-rending cries from the dog, was consistent with a finding of harm. Accordingly, there was evidence to support both conviction and acquittal of the charged crime, depending upon which witness the jury believed. No witness provided evidenceto support a finding defendant intended andattempted, but failed, to abuse the dog. Defendant’s argumentis based on the video, which, he contends, shows him “lunging at something near the screen door”but does not show him actually striking the 1] dog. If the jury believedthe videoreflected the view available to the neighbor, he argues, the jury could have concluded defendanttried toharm the dog but found insufficient evidence to conclude he actually succeeded. The argument fails for two reasons. First, . the evidence of the videois not clear enough even to support a finding defendant attemptedto strike the dog. At best, it showed defendant moving the mopin a suggestive manner. It providesnoreliable evidence, standing alone,that defendant acted i na manner consistent with an intent to harm the dog. If the jjury concluded, as defendant — argues, that the video accurately reflected what the neighbor saw,it would have acquitted defendant. Second, the argumentconsiders the videoiin isolation, without taking account ofthe testimony of the two eyewitnesses to the events. Neither witnesstestified defendantfailed tomake contact with the dog. The neighbor saiddefendant struck the — dog violently, as he had donein the past. Defendant acknowledged making contact with the dog, but he denied any attempt to abuse. Accordingly,the eyewitness testimony precluded any interpretation of the video asa failed attempt at abuse, and any such — finding by the jury would have been speculation, Thetrial court was therefore under no| dutytto instruct onn attempt. , : It. DISPOSITION Thejudgmentofthe trial court is affirmed. 12 Margulies,J. Weconcur: Marchiano,P.J. Dondero,J. A131693 People v. Black 13 CERTIFICATE OF MAILING ] hereby certify that I am a memberofthe State Bar of California, that my business address is 4781 E. Gettysburg Avenue, Suite 14, Fresno, CA 93726,that I am nota party to this action, and that I mailed a true copy of the foregoing to the following persons at the following addresses on November , 2012: First District Appellate Project Court of Appeal, First Appellate District 730 Harrison Street, Suite 201 Attn: Division One San Francisco, CA 94107 350 McAllister Street San Francisco, CA 94102 Office of the State Attorney General Counsel for Plaintiff and Respondent on Appeal 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-3664 Charles Black, AG4844 c/o SCC 5150 O’Bymmes Ferry Road Jamestown, CA 95327 District Attorney, County of Alameda 1225 Fallon Street, Room 900 Oakland, CA 94612 Public Defender, County of Alameda 1401 Lakeside Drive, 4" Floor Oakland, CA 94612 Superior Court of California, County of Alameda Attn: The Honorable Allan D. Hymer, Judge 1225 Fallon Street Oakland, CA 94612 I declare under penalty of perjury of under the laws of the State of California that the foregoing is true and correct. Executed on November___, 2012 at Clovis, California. ROBERTL.S. ANGRES