P. v. Cruz

Filed 2/23/07 P. v. Cruz CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Bernardino County, Douglas A. Fettel, Judge. Affirmed in part; reversed in part.

Gonzalo Cruz appeals from a judgment convicting him of two counts of first degree murder based on his stabbing of Jose Luis Vargas (count 1) and Ricardo Sanchez (count 3). He raises various contentions of error arising from the trial court's dismissal of a juror after the jury had started deliberations. He also argues the judgment must be reversed because of (1) the failure to strike and admonish the jury regarding inadmissible testimony, (2) his shackling during trial, and (3) the failure to record the reading of the jury instructions.

We conclude the count 3 verdict must be reversed based on structural error arising from the dismissal of the juror. After the court dismissed the juror and the juror left the courtroom, the jury foreperson told the court that the jury had unanimously reached a verdict on count 3. Later, when the newly constituted jury reached a verdict on count 1, both verdicts were declared and accepted in open court. The dismissed juror was not present when the jury foreperson told the court that a verdict had been reached on count 3, nor when the count 3 verdict was formally acknowledged in open court. The dismissed juror's absence impacted Cruz's constitutional right to a unanimous jury by depriving him of his right to confirm that the guilty verdict on count 3 was the result of a unanimous vote. This error requires reversal of count 3.

We reject Cruz's remaining assertions of error, and affirm the judgment as to count 1.

FACTUAL AND PROCEDURAL BACKGROUND

Count 1: Vargas Murder

At about 8:30 p.m. on April 21, 2004, Fernando Portillo was with his employer, victim Vargas, in Vargas's truck in a parking lot as they prepared to leave work. Hector Estrada Elias, who had also worked for Vargas, arrived at the parking lot in his Toyota Paseo. Appellant Cruz was a passenger in Elias's vehicle. Vargas backed up his truck and parked adjacent to the Toyota. Elias and Cruz exited the Toyota and approached Vargas at the open window on the driver's side of his truck. Elias was angry and demanded money from Vargas. Elias, still upset, then went to the back of his car. Portillo exited the truck and tried to calm Elias. Cruz stayed by Vargas's window, and Portillo heard Cruz ask Vargas for a Volkswagen Jetta.^[1]Portillo then heard Vargas scream in pain and saw Cruz repeatedly stab Vargas in the heart area.

Portillo started running away, but then joined Vargas as Vargas fled the parking lot in his truck. Vargas was covered with blood. Vargas's truck hit a piece of cement in the road, damaging the tires. Vargas collapsed against Portillo, and the truck eventually came to a stop. Vargas died at the scene from multiple stab wounds to his chest.

Count 3: Sanchez Murder

In April 2004 Cruz, along with his girlfriend (Guisele Orduno) and their two children, lived in a house with victim Sanchez. At around 11:00 p.m. on April 21, 2004 (the night of the Vargas stabbing), Orduno, who was at her mother's house, called Cruz at their home. Cruz told her "not to come home" because "something bad had happened." Orduno returned home about 2:30 p.m. on April 22. Sometime after 3:00 p.m. Orduno and Cruz engaged in an argument lasting about one hour. Cruz, who was very angry, accused Orduno of cheating on him with a friend of his and Sanchez's. During the argument, Cruz went to the kitchen and returned with a children's cup, accusing Orduno of trying to poison him by putting something in the cup. Cruz insisted that Orduno drink out of the cup. When Orduno refused, Cruz hit her and then forced her to drink out of the cup. Cruz stated if Orduno had not poisoned him, Sanchez must have done so.

That same afternoon, Cruz and Sanchez were also arguing with each other. Orduno heard Sanchez accuse Cruz of taking some of his property. The two men went outside and continued to argue. Orduno saw Sanchez back quickly away from Cruz, yelling "Gonzalo, no," while Cruz continued to approach Sanchez. Orduno then saw Cruz repeatedly strike Sanchez in his chest area. Sanchez collapsed and told Orduno to call his sister. Orduno returned to the house, where Cruz told her to get the children because they were leaving. As they were backing out of the driveway in Sanchez's car, Orduno asked where Sanchez was because she could not see him. Cruz said, "Let him die." One of the children stated that Sanchez was "in the trash." Orduno noticed the handle of a knife that she recognized from their kitchen visible under the driver's seat of the car. Cruz dropped off Orduno and the children at her father's residence.

Summoned by neighbors, paramedics found Sanchez groaning in a dumpster by his house. Sanchez was taken to the hospital, where he died from multiple stab wounds to the chest.

Meanwhile, Cruz had started to drive to San Diego. However, he turned back and visited Orduno at her mother's residence the next day. Cruz told Orduno to try calling Sanchez on his cell phone. Sanchez's cell phone was turned off. Cruz left and drove to various places, eventually arriving in North Las Vegas.

The police arrested Cruz in North Las Vegas. When interviewed by the police, Cruz at first denied stabbing Vargas, but later admitted that he did so. Cruz told the police that he had accompanied Elias to contact Vargas about money Vargas owed Elias. After Elias spoke to Vargas at Vargas's truck, Elias returned to his car, handed a knife to Cruz, and told Cruz "to do whatever he felt needed to be done." Cruz approached Vargas, and Vargas called him a " 'f______ asshole.' " Insulted, Cruz stabbed Vargas. Cruz also admitted to the police that he stabbed Sanchez and put him in the dumpster, stating that he was angry because Sanchez "was messing with his head" and had done something to poison his drink.

The jury found Cruz guilty of two counts of first degree murder. He was sentenced to two consecutive terms of 25 years to life, plus two consecutive one-year terms for personal use of a weapon, resulting in a total sentence of 52 years to life.

DISCUSSION

I. Dismissal of Juror Number 11

While the jury was engaged in deliberations, the trial court dismissed juror number 11 because of her repeated tardiness, and replaced her with an alternate juror. After juror number 11 was discharged, the foreperson informed the court that the original jury (which included dismissed juror number 11) had reached a verdict on one of the counts. Juror number 11, who had already been discharged, was not present when the foreperson made this representation to the court. The court sealed this verdict and instructed the reconstituted jury to commence deliberations anew on the remaining count. After jury deliberations were concluded, the two verdicts were read and acknowledged by the jury in open court. Juror number 11 was not present when the count 3 verdict (the verdict reached by the original jury) was acknowledged by the jury.

Cruz raises several contentions of error arising from the dismissal of juror number 11. He asserts (1) the court erred in admonishing juror number 11 outside of his counsel's presence and abused its discretion in dismissing juror number 11; (2) the verdict on count 3 rendered by the original jury (including juror number 11) cannot be sustained because juror number 11 was absent during the open court declaration of this verdict; (3) the jury reconstituted after juror number 11's dismissal was not adequately instructed about its duty to commence deliberations anew on count 1; and (4) the use of the count 3 verdict rendered by the original jury prejudiced the reconstituted jury's deliberations on count 1. We find no reversible error as to the count 1 verdict. However, we reverse as to the count 3 verdict because juror number 11 was never present when this verdict was declared in open court.

A. Background

The jury was sworn on April 19, 2005. Thereafter, juror number 11 was repeatedly late arriving for trial. On Thursday, April 21, the proceedings were set to commence at 1:30 p.m. Juror number 11 again arrived late, and the proceedings did not commence until 1:46 p.m. In the presence of the other jurors and counsel, the trial court asked juror number 11 if she was having a problem. Juror number 11 apologized for her tardiness, explaining that the previous day she had locked her keys in the car, and on this day she had to pick up her daughter from school. The trial court stated it understood that problems can arise, but that she should make more of an effort to be on time so as not to keep everyone waiting.

There were no proceedings on April 22 through 24. On the afternoon of April 25 the parties rested their cases and the jury commenced deliberations. Deliberations continued on April 26 and the morning of April 27. After the lunch recess on April 27, all the jurors were present in the jury deliberation room except juror number 11. Juror number 11 arrived about 20 minutes late. The trial court called juror number 11 into the courtroom. The other jurors and the parties' attorneys were not present at this time. The court advised the juror that she was being "extremely rude" to the other jurors, and inquired why she was late "every day of this trial." Juror number 11 stated that on this particular occasion she was at the courthouse but was downstairs, and she was late on previous occasions because she "ha[d] [her] daughter off track." She acknowledged that her tardiness did not "make sense" and was irresponsible, and told the court she had "already come to a decision."

The trial court then summoned counsel to the courtroom, and, outside the presence of the jury, informed counsel that juror number 11 had been late again and the court had admonished her. The court stated that it wanted to excuse her as a juror, explaining: "She obviously can't get here on time, and she's inconveniencing every one of the other jurors, and I'm not inclined to wait for her any longer. [] . . . [] . . . I think at this point she's becoming not only disrespectful but also disruptive." Defense counsel stated he agreed and he had no objection to replacing her. The prosecutor noted there would be no more alternate jurors left, but did not argue against dismissal of juror number 11.^[2] The court then summoned juror number 11 to the courtroom and excused her.

After excusing juror number 11, and in the presence of counsel, the court communicated with the remaining jurors about the status of their deliberations. The jurors informed the court that the previous day, prior to the dismissal of juror number 11, they had reached a verdict on one of the counts. The court instructed the jury to date and sign the verdict form for that count and give it to the bailiff. The court told counsel that in its view this was a valid verdict (which would remain sealed until the end of deliberations) unless the parties objected. Both the prosecutor and defense counsel agreed that the verdict on that count was valid. In open court in the presence of the jury and counsel, the court asked: "[H]aving spoken to the jurors in the deliberation room, it has been determined that they have arrived at a verdict on one count; is that correct?" The jury foreperson answered, "Yes, sir."

The alternate juror then joined the jury, and the court instructed the reconstituted jury to recommence deliberations on the remaining count. Later that afternoon, the jury announced that it had reached a verdict. The court read the verdicts. The verdict from the reconstituted jury found Cruz guilty of first degree murder of Vargas (count 1). The verdict from the original jury (including dismissed juror number 11) found Cruz guilty of first degree murder of Sanchez (count 3). The court asked the foreperson if the verdict on count 3 was the verdict also of dismissed juror number 11, and the foreperson answered affirmatively. On its own motion, the court then individually polled all the jurors (except for missing juror number 11) to confirm that the count 3 verdict was their verdict, and the jurors answered yes.

B. Admonishment and Dismissal of Juror Number 11

Cruz contends that the reversal of the judgment on both counts 1 and 3 is required because (1) the court violated his due process rights by reprimanding juror number 11 on April 27 about her tardiness without the presence of his counsel, and (2) the court abused its discretion in dismissing juror number 11. The People contend that defense counsel's failure to object forfeited his right to raise these issues on appeal. Cruz responds that his counsel's failure to object constituted ineffective representation. We need not evaluate the issues of forfeiture and ineffective representation because, even evaluating the claims on their merits, there is no showing of reversible error.

1. Ex Parte Admonishment

The People concede that the trial court should not have communicated with juror number 11 outside the presence of defense counsel, but argue the error was harmless beyond a reasonable doubt. (See People v. Hawthorne (1992) 4 Cal.4th 43, 68, fn. 14.) We agree. The prohibition against a trial court's ex parte communication with a juror is designed to afford the defendant " 'an adequate opportunity to evaluate the propriety of a proposed judicial response in order to pose an objection or suggest a different reply more favorable to the defendant's case.' " (People v. Wright (1990) 52 Cal.3d 367, 402.) There is nothing in the record to suggest that defense counsel would have wanted the court to refrain from admonishing juror number 11. To the contrary, defense counsel's prompt agreement to dismiss the juror suggests he too was frustrated by her conduct. Cruz posits that if his counsel had been present during the admonishment, his counsel might have reacted differently when the court proposed dismissing juror number 11. The record does not support this contention. When juror number 11 was questioned by the court on April 27, she conceded her conduct was irresponsible. Her responses do not indicate that defense counsel might have determined her tardiness was excusable had he been present. Because nothing was revealed during the ex parte communication that might have altered defense counsel's agreement with the dismissal, the trial court's improper communication caused no harm.

Cruz also asserts that admonishment of the juror might have made her "more benevolent to the accused or at a minimum less receptive to the state's position," and suggests that if counsel had been present during the admonishment he would have perceived this reaction and objected to her dismissal. Cruz has not explained why an admonishment about tardiness might make a juror favor the defendant over the People. The claim is speculative and does not show harm from the trial court's ex parte communication.

2. Dismissal of Juror Number 11

The record also supports the trial court's discretionary decision to dismiss juror number 11. A trial court has discretion to dismiss a juror if upon "good cause shown to the court [the juror] is found to be unable to perform his or her duty . . . ." (Pen. Code,  1089; People v. Boyette (2002) 29 Cal.4th 381, 462.) The juror's inability to perform as a juror must appear in the record as a demonstrable reality. (Ibid.) We review the court's ruling for abuse of discretion, and uphold the ruling if there is any substantial evidence to support it. (Ibid.; People v. Smith (2005) 35 Cal.4th 334, 348-349.)

Although a juror's occasional tardiness, supported by a valid explanation, might not justify dismissal, repeated tardiness reflects a dereliction of the juror's duty to report to court as instructed. Given her consistent tardiness, the record supports that juror number 11 was no longer able to perform her duty to report as directed. The reasonableness of the court's decision is further supported by the fact that neither counsel argued to keep her on the jury, suggesting that all viewed the juror's tardiness as disruptive of the juror's performance of her duties.

C. Juror Number 11's Absence During Declaration of Count 3 Verdict

Cruz argues that the verdict on count 3, finding him guilty of first degree murder of Sanchez, cannot be sustained because juror number 11 was not present when the verdict on count 3 was declared in open court. The People contend this claim is forfeited on appeal because defense counsel did not object to juror number 11's absence. Cruz responds that juror number 11's absence involves fundamental error that cannot be deemed waived. Under the circumstances of this case, we agree with Cruz.

When a jury reaches a verdict on a particular count before a juror is dismissed and before the jury is reconstituted with an alternate juror, the verdict may be validly used to resolve the count. (People v. Sanborn (2005) 133 Cal.App.4th 1462, 1467.) The reconstituted jury is not required to deliberate on the count resolved by the original panel. (Ibid.) However, as we shall explain, to preserve a juror's right to dissent from the verdict until the time it is accepted by the court, the entire original 12-jury panel must be present when the resolved count is declared in open court. Here, juror number 11's absence renders the count 3 verdict invalid.

1. Applicable Legal Principles

The Penal Code requires the presence of all 12 jurors at the time the trial court accepts the verdict, and requires a mistrial if a juror is absent. Penal Code section 1147^[3]states: "When the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Their names must then be called, and if all do not appear, the rest must be discharged without giving a verdict. In that case the action may be again tried." ( 1147, italics added.) If the full jury appears, the verdict should then be " 'received and read by the clerk, acknowledged by the jury, and recorded . . . .' " (People v. Hendricks (1987) 43 Cal.3d 584, 597, italics added; People v. Bento (1998) 65 Cal.App.4th 179, 188.) Jury acknowledgement of the verdict in open court is essential to the validity of the verdict. (People v. Thornton (1984) 155 Cal.App.3d 845, 858.) If the jury merely returns a written verdict, but fails to unanimously endorse the verdict in open court, the verdict cannot normally be sustained based solely on the written form. (Ibid.; see People v. Green (1995)31 Cal.App.4th 1001, 1009; People v. Mestas (1967) 253 Cal.App.2d 780, 786.)

Acknowledgement of the verdict in open court may be performed by the

foreperson on behalf of the entire jury. ( 1149, 1163, 1164, subd. (a)^[4]; People v. Wiley (1931) 111 Cal.App. 622, 625; Stalcup v. Superior Court (1972) 24 Cal.App.3d 932, 936, disapproved on other grounds in People v. Dixon (1979) 24 Cal.3d 43, 53.)^[5] Additionally, upon request of either party, the jurors may be required to individually acknowledge the verdict through the process of individual polling. ( 1149, 1163, 1164.) "The authenticity of the verdict is ascertained by requiring it to be orally declared in open court by the foreman. If demanded by either party, the verdict must be declared by each member of the jury . . . . This is what is commonly termed polling the jury." (People v. Wiley, supra, 111 Cal.App. at p. 625.)

The acknowledgment requirement, as well as the defendant's right to request individual polling, are founded on the constitutional right to a unanimous jury verdict. (People v. Thornton, supra, 155 Cal.App.3d at pp. 858-859.) During the

acknowledgment and polling, any juror is entitled to dissent from the verdict. (Id. at p. 859.) The process is designed to reveal mistakes in the signing of a particular form or "that one or more jurors acceded to a verdict in the jury room, but was unwilling to stand by it in open court." (Ibid.) "[A]ny juror is empowered to declare, up to the last moment, that he [or she] dissents from the verdict." (Chipman v. Superior Court (1982) 131 Cal.App.3d 263, 266.)

Although the right to poll the jurors individually protects the constitutional right to a unanimous verdict, the right is of statutory origin and is not operative absent a request by a party. "The polling of the jury is a right available only upon the request of either party . . . . A failure to make a proper request imposes no burden upon the court to poll the jury, nor in the absence of such a request does a failure to so poll constitute a denial of a constitutional right." (People v. Lessard (1962) 58 Cal.2d 447, 452.) Whereas the complete failure to orally acknowledge a written verdict in open court would normally invalidate the verdict (People v. Thornton, supra, 155 Cal.App.3d at pp. 856-860), individual polling errors do not require reversal in the absence of a showing of prejudice (People v. Masajo (1996) 41 Cal.App.4th 1335, 1339-1340).^[6] Similarly, when a jury is incompletely polled and defense counsel makes no objection, the claim of error may be found to be forfeited on appeal. (People v. Wright, supra, 52 Cal.3d at p. 415 [issue of failure to individually poll one of the 12 jurors waived by failure to object].) Further, counsel's failure to request individual polling does not support a claim of ineffective representation in the absence of a showing of prejudice, i.e., that "the dangers polling seeks to avoid [a nonunanimous jury, juror coercion, or a mistaken verdict] actually occurred." (People v. Coddington (2000) 23 Cal.4th 529, 656, disapproved on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)

2. Analysis

This case does not involve the mere failure to poll an individual juror, but rather involves the juror's complete absence from the courtroom when the verdict was presented, acknowledged, and accepted in open court. This is fundamental error that may not be waived and requires reversal. The purpose of requiring the jury to openly acknowledge its verdict is to confirm that each juror is willing to stand by his or her individual vote. When one juror is absent, this important objective is defeated and undermines a defendant's right to ensure a unanimous verdict.

After juror number 11 was discharged, the jury foreperson informed the court that the jury had reached a verdict on count 3 the previous day (while juror number 11 was still on the jury). However, because she had already been discharged, juror number 11 was not present when the jury foreperson made this representation. Once deliberations were concluded by the reconstituted jury, the jury foreperson acknowledged the count 3 verdict in open court, stating that the verdict represented the verdict of dismissed juror number 11. On its own motion, the trial court then individually polled the jurors. Again, because she had been discharged, juror number 11 was not present during the foreperson's formal acknowledgement of the verdict.

In order for the count 3 verdict to be valid, it was essential that juror number 11 be present when the verdict was declared in open court. Juror number 11 was not present when the jury foreperson first informed the court that the jury had reached a verdict on one of the counts the previous day, nor when the jury foreperson formally acknowledged the count 3 verdict at the conclusion of the deliberations. Her presence was necessary to preserve Cruz's right to "test" the verdict in open court. To use the original jury's count 3 verdict, the proper procedure would have been for the original jury to acknowledge that verdict in open court before juror number 11 was dismissed. (See, e.g., People v. Thomas (1990) 218 Cal.App.3d 1477, 1483.) Instead, the count 3 verdict was not presented to the court until after juror number 11 had departed.^[7]

We conclude that the fact that juror number 11 was not present at any time when the verdict was declared in open court constitutes fundamental error requiring reversal of the count 3 conviction. The Penal Code recognizes the fundamental nature of the right to the presence of all 12 jurors at the time of the acceptance of the verdict, providing for a mistrial if a juror is missing. ( 1147.) Although the foreperson is statutorily authorized

to acknowledge the verdict on behalf of the individual jurors, this authority is conveyed under the assumption that all jurors are present in court and able to raise an objection if they disagree with the acknowledgement. Case authority is replete with examples of individual jurors who were unable to stand by the written verdict once they were present in open court and required to declare their assent. (See, e.g., People v. Superior Court [Thomas] (1967) 67 Cal.2d 929, 930-932; Chipman v. Superior Court, supra, 131 Cal.App.3d at pp. 264-265; In re Chapman (1976) 64 Cal.App.3d 806, 810-812; People v. Wattier (1996) 51 Cal.App.4th 948, 955.) The Penal Code expressly contemplates this possibility, providing that if any juror disagrees with the verdict during polling, the jury shall be sent back to resume deliberations. ( 1163, 1164.) Even if individual polling is not conducted, the full jury's presence during the open court acknowledgment gives each juror an opportunity to voice an objection.

Although there is nothing in the record to suggest that juror number 11 did not agree with the verdict, Cruz had a right to her presence at the time when the verdict was declared in open court in order to ensure jury unanimity. We are not persuaded by the People's argument that the error arising from juror number 11's absence should be deemed forfeited on appeal because defense counsel failed to object. Although constitutional errors are subject to forfeiture on appeal if not raised before the trial court, "application of the forfeiture rule is not automatic." (In re S.B. (2004) 32 Cal.4th 1287, 1293.) "A defendant is not precluded from raising for the first time on appeal a claim asserting the deprivation of certain fundamental, constitutional rights." (People v. Vera (1997) 15 Cal.4th 269, 276; see People v. Sanborn, supra, 133 Cal.App.4th at p. 1466.) Further, we may properly exercise our discretion to review an issue for the first time on appeal that does not involve factual disputes and that is pertinent to a proper resolution of the case. (See People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 901, fn. 5; People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.)

The right to a unanimous jury verdict is a fundamental right guaranteed by the California Constitution. (People v. Collins (1976) 17 Cal.3d 687, 693.) It is undisputed that juror number 11 was not present during the initial presentation of the count 3 verdict to the court, nor during the formal acknowledgement of the count 3 verdict at the conclusion of deliberations. A juror's complete absence during declaration of the verdict in open court is not akin to a procedural irregularity in individual polling, the latter which is readily subject to forfeiture on appeal. When a juror is present in the courtroom but not individually polled, the juror still hears the verdict and has the opportunity to raise an objection. In contrast, when, as here, the juror is entirely absent during this process, the juror has no opportunity to "declare, up to the last moment, that he [or she] dissents from the verdict." (Chipman v. Superior Court, supra, 131 Cal.App.3d at p. 266.) The presence of each of the jurors during the declaration of the verdict in open court is a minimal requirement essential to ensure a unanimous jury verdict. Because juror number 11's absence is undisputed and affects the fundamental right to a unanimous verdict, we conclude Cruz may properly raise the issue on appeal even though no objection was made below.

Juror number 11's absence constitutes structural error requiring reversal. (See People v. Cahill (1993) 5 Cal.4th 478, 501-502.) "[I]n some instances [errors] may result in a 'miscarriage of justice' . . . without regard to the strength of the evidence presented at trial, because . . . they operate to deny a criminal defendant the constitutionally required 'orderly legal procedure' . . . ." (Ibid.) The presence of juror number 11 was essential to the reliability of the verdict, and without her presence the count 3 verdict cannot stand. (See People v. Thornton, supra, 155 Cal.App.3d at pp. 859-860.)

3. No Double Jeopardy

Although we reverse the count 3 conviction, we reject Cruz's assertion that he may not be retried on this count under double jeopardy principles. "As a general rule, it is well established that if the defendant secures on appeal a reversal of his conviction based on trial errors other than insufficiency of the evidence, he is subject to retrial." (People v. Hernandez (2003) 30 Cal.4th 1, 6.) In Hernandez, the court evaluated the rule precluding retrial after an unnecessary mistrial is declared and the defendant is deprived of a verdict from his or her chosen jury. The Hernandez court concluded this rule should not be applied to the situation where a juror is improperly discharged and a reconstituted jury renders a verdict. (Id. at pp. 8-9.) Although the verdict could not stand because of the improper discharge of the juror, the court reasoned the double jeopardy bar was not applicable because the "defendant's chosen jury was not discharged but instead, with the substitution of a preselected alternate juror, remained intact until a verdict was rendered." (Id. at p. 9.)

Similarly here, Cruz was not deprived of a verdict from his chosen jury; rather, the original jury rendered and delivered a verdict on count 3. Consistent with the holding in Hernandez, we conclude that the fact that the count 3 verdict cannot be sustained on appeal because of juror number 11's absence during declaration of the verdict does not involve circumstances akin to an unjustified discharge of a jury before the rendition of a verdict. There is no reason to deviate from the general rule that reversal on appeal for trial error, other than for insufficiency of the evidence, does not bar retrial.

D. Instructions on Redeliberation for Count 1

Cruz argues the judgment must be reversed as to count 1 (Vargas murder) because the jury was not instructed in the language of CALIC No. 17.51 regarding its duty to commence deliberations anew after juror number 11 was dismissed and the jury was reconstituted with the alternate juror. CALJIC No. 17.51 states:

"Members of the jury: [] A juror has been replaced by an alternate juror. You must not consider this fact for any purpose. [] The People and the defendant have the right to a verdict reached only after full participation of the twelve jurors who return the verdict. [] This right may be assured only if you begin your deliberations again from the beginning. [] You must therefore set aside and disregard all past deliberations and begin deliberating anew. This means that each remaining original juror must set aside and disregard the earlier deliberations as if they had not taken place. [] You shall now retire to begin anew your deliberations in accordance with all the instructions previously given." (Brackets omitted.)

Here, the trial court instructed the jury as follows: "[O]n the remaining count[] that you have not yet arrived at a verdict on, you're hereby instructed that your deliberations shall begin anew on that count as if you had never started deliberating on that count so [the alternate juror] is included in all those deliberations." (Italics added.)

Cruz argues the instruction was deficient because it did not tell the jury that (1) it must not consider the replacement of a juror for any purpose, (2) the People and the defendant have the right to a verdict reached only after full participation of the 12 jurors who return the verdict, and (3) the original jurors must set aside and disregard earlier deliberations. Although the trial court did not track the precise language of CALJIC No. 17.51, it told the jurors that (1) they must begin their deliberations anew, (2) as if they had never deliberated, (3) so as to include the alternate juror in the deliberations. Instructing the jurors to start deliberations over as if they had never deliberated conveyed the concept that they must disregard their earlier deliberations. Telling the jurors that the reason they had to start over was to include the alternate juror in the deliberations conveyed the concept that the parties had a right to the full participation of all 12 jurors. Although it would have been preferable if the court had instructed the jury in the more explicit language of CALJIC No. 17.51 (see People v. Collins, supra, 17 Cal.3d at p. 694), these two concepts were adequately communicated in the instruction given by the court.

The only missing concept in the court's instruction was that the jurors should not consider the replacement for any purpose. There is nothing in the record to suggest the jury might have drawn some improper inference from juror number 11's departure. Thus, there is no showing of prejudice from this omission.

To support his claim of reversible error, Cruz asserts the record clearly shows the jury did not redeliberate as to count 1. He points to the fact that the reconstituted jury redeliberated on count 1 for only about 30 to 49 minutes after the alternate juror replaced juror number 11,^[8]and that the reconstituted jury did not ask for a read-back of testimony pertinent to count 1 that it had requested and obtained during the deliberations of the original jury.^[9]

The trial court expressly instructed the jury to begin anew with the alternate juror as if it had never started deliberating. Absent an affirmative contrary showing in the record, we presume the jurors followed the trial court's instructions. (People v. Sanborn, supra, 133 Cal.App.4th at p. 1468; People v. Thomas, supra, 218 Cal.App.3d at p. 1487.) Although the recommenced deliberations may have been relatively short, they were not so short as to establish a failure to deliberate. The alternate juror may not have felt the need to have a read-back of testimony, and the jurors who had earlier obtained a read-back may not have felt it was essential to their deliberations. The requirement that jurors recommence deliberations does not mean they must conduct the deliberations in precisely the same manner as the original deliberations. The presence of a new juror can change the evolvement of deliberations. On this record, there is no showing of a failure to deliberate.

E. Effect of Count 3 Verdict on Count 1 Deliberations

Cruz argues that the count 1 verdict cannot be sustained because the acceptance of the original jury's count 3 verdict improperly forced the reconstituted jury to accept the factual conclusions that supported the count 3 verdict. Cruz concedes that counts 1 and 3 involved "different homicide scenarios," but asserts that requiring the reconstituted jury to accept the guilty verdict on count 3 prejudiced deliberations on count 1 because both counts involved "identical heat of passion/provocation defenses."

The record does not show that the count 3 verdict impacted the jury's deliberations on count 1. The guilty verdict on count 3 merely represented the original jury's conclusion that Cruz's defenses as to count 3 were not persuasive. The rejection of the defenses as to count 3 did not translate into a rejection of the defenses as to count 1, which occurred on a separate date and involved different individuals and circumstances. Cruz has not shown that the count 3 verdict affected the deliberations on count 1.

II. Failure to Strike and Admonish the Jury Regarding Inadmissible Testimony

Cruz argues that reversal of count 1 is required because the jury improperly heard inflammatory hearsay testimony from Portillo. When describing what occurred as Vargas drove away from the scene of the stabbing, Portillo testified Vargas told him "he had been stabbed in the heart and that his family loved him a lot." Defense counsel objected, and the trial court sustained the objection. Shortly thereafter, when asked if Vargas described his injury, Portillo testified that Vargas stated "I have been stabbed in the heart." Defense counsel did not object to this latter testimony.

Cruz argues that when the court sustained the objection to the first statement, the court should have stricken the testimony and admonished the jury to disregard it. He contends that if his counsel's failure to request these measures constituted a waiver of the issue on appeal, he was provided ineffective representation. He asserts the testimony referring to Vargas's family's love must have evoked sympathy in the jury and was particularly prejudicial because his sole defenses were lack of intent and heat of passion.^[10]

Generally, it is defense counsel's duty to object to evidence and to request that inadmissible evidence be stricken and the jury admonished to disregard it. (See People v. Jackson (1996) 13 Cal.4th 1164, 1214; People v. Kemp (1961) 55 Cal.2d 458, 473.) The trial court was not required to strike the testimony and admonish the jury on its own motion. (See People v. Freeman (1994) 8 Cal.4th 450, 490.) Because defense counsel failed to do so, the claim of error is forfeited on appeal. (People v. Kemp, supra, 55 Cal.2d at p. 473.)

To prevail on his assertion that counsel's omission constituted incompetency of counsel, Cruz must show that defense counsel "failed to act in a manner to be expected of

reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel's failings." (People v. Cudjo (1993)6 Cal.4th 585, 623.) Although technically a motion to strike the testimony was necessary to exclude it from evidence (see 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, 385, pp. 476-477; People v. Carmen (1954) 43 Cal.2d 342, 347; People v. Glass (1954) 127 Cal.App.2d 751, 753), defense counsel could have made a tactical decision to refrain from moving to strike and requesting an admonishment in order not to highlight the testimony to the jury. Even assuming arguendo that reasonably competent counsel would have made a motion to strike the testimony, it is not reasonably probable this omission affected the outcome. Before commencing deliberations, the jury was given the standard admonishment not to consider stricken evidence. Even though no formal motion to strike was made, the fact that defense counsel's objection to the testimony was successful communicated to the jury that the evidence was inadmissible. Reasonable jurors would have understood not to consider it. Further, the reference to Vargas's family's love for him was very brief. There is no reasonable probability the testimony played any role in the jury's determination of guilt.

III. Shackles

Cruz argues the judgment must be reversed because there was no need for him to be shackled at trial, and the jury was made aware that he was restrained. He concedes there is no indication the jury actually saw him in shackles, but asserts the jury must have surmised he was restrained at trial because a detective testified regarding the fact that Cruz was restrained by waist chains with handcuffs while being interviewed in North Las Vegas. He posits that once the detective testified regarding the shackling during the police interview, the trial court should have sua sponte instructed the jury that physical restraints may not be considered in determining guilt. (See CALJIC No. 1.04.) If these issues are forfeited on appeal because of his counsel's inaction, he argues counsel was incompetent for failing to object to the trial restraints, failing to object to the detective's testimony regarding the custodial restraints, and, if overruled, failing to request an instruction to the jury not to consider the restraints.

When discussing whether Cruz should be shackled at trial, the prosecutor pointed out that the nature of the chargesinvolving Cruz's conduct of stabbing two victims with sharp objectsmade restraints necessary to protect persons in close proximity to Cruz during trial. The trial court agreed restraints were required because the nature of the charges created an "unusual situation." The court explained that even though Cruz had not demonstrated any violence while in custody, the excessive violence used during the charged offenses demonstrated a need to protect the interpreter, the attorneys, and other persons near him at trial. Defense counsel stated he understood the trial court's safety concerns given the nature of the charges, and that his only concern was that the shackles not be visible to the jury. When defense counsel noted leg shackles might be visible to the jury, the trial court agreed to remove the leg shackles. Cruz remained restrained with shackles around his waist that attached to his wrist. These shackles were fully obscured by a jacket worn by Cruz, so that it appeared he was "merely . . . sitting with his hands together in front of him." With the removal of the leg shackles, defense counsel made no objection to the shackling. As an added measure not to disclose the restraints to the jury, the trial court instructed that Cruz, defense counsel and the prosecutor should not stand up when the jury entered.

"When a defendant is charged with any crime, and particularly if he is accused of a violent crime, his appearance before the jury in shackles is likely to lead the jurors to infer that he is a violent person disposed to commit crimes of the type alleged." (People v. Duran (1976) 16 Cal.3d 282, 290.) Accordingly, to avoid this potential for prejudice, the courts have fashioned the rule that a defendant cannot be required to wear physical restraints during trial unless there is a manifest need for such restraints. (People v. Mar (2002) 28 Cal.4th 1201, 1216.) Manifest need may arise from a showing that the defendant might engage in violent or disruptive conduct or try to escape while in court. (People v. Hawkins (1995) 10 Cal.4th 920, 944,disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89; People v. Anderson (2001)25 Cal.4th 543, 595.) However, the fact that a defendant is charged with a violent crime does not, without more, justify the use of physical restraints. (People v. Mar, supra, 28 Cal.4th at p. 1218; People v. Hawkins, supra, 10 Cal.4th at p. 944; People v. Seaton (2001) 26 Cal.4th 598, 652.) Rather, the court must make the decision whether to use physical restraints on a case-by-case basis. (People v. Mar, supra, 28 Cal.4th at p. 1218.) When physical restraints are used, they " 'should be as unobtrusive as possible, although as effective as necessary under the circumstances.' " (Id. at p. 1217.)

The key concern is that the defendant not be placed in unjustified restraints visible to the jury for a protracted period during trial. (See Deck v. Missouri (2005) 544 U.S. 622, 628-629; People v. Cunningham (2001) 25 Cal.4th 926, 988-989.) If there is no evidence the jury was aware that a defendant was shackled during trial, error in the use of restraints is harmless. (People v. Coddington, supra, 23 Cal.4th at p. 651; People v. Cleveland (2004) 32 Cal.4th 704, 740.)

Here, the trial court and both counsel agreed restraints were necessary, and after the leg shackles were removed defense counsel did not object to the manner in which Cruz was restrained. Absent an objection, Cruz's challenge to the restraints is forfeited on appeal. (People v. Cleveland, supra, 32 Cal.4th at p. 740.)

Moreover, the record supports the trial court's exercise of its discretion to use restraints. The charges involved allegations that Cruz violently attacked two victims under circumstances suggesting little or no provocation. The trial court could reasonably conclude he might repeat this behavior at trial against an unsuspecting victim. The trial court did not impose the restraint merely because Cruz was charged with a violent crime, but considered that the particular manner in which the charged offenses were committed could be duplicated in a courtroom setting. Having reached this conclusion, the court properly took precautions to ensure the restraints would not be visible to the jury.

Cruz's contention of error based on the detective's testimony that he was restrained during a police interview is unavailing. The testimony arose in the context of the detective explaining that during the interview when Cruz was demonstrating his conduct with the knife, Cruz could not lift his hand higher than waist level because he was wearing waist chains with handcuffs and the North Las Vegas police did not permit the removal of the restraints. Defense counsel did not object to this testimony. Thus, Cruz has forfeited his contention of error derived from admission of this evidence, unless he can show counsel's omission constituted ineffective representation. (See People v. Freeman, supra, 8 Cal.4th at pp. 490-491.)

It is defendant's burden to show inadequacy of trial counsel, and reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance. (People v. Lucas (1995)12 Cal.4th 415, 436.) "Because the decision whether to object is inherently tactical, the failure to object to evidence will seldom establish incompetence." (People v. Freeman, supra, 8 Cal.4th at pp. 490-491.) Cruz's assertion that the jury would surmise that he was restrained at trial because of the detective's testimony is speculative. The fact that an arrested defendant is restrained while in police custody does not automatically translate into a need for restraints at trial. Cruz states that his "obvious lack of arm movement" was visible to the jury. He has cited to nothing in the record to support this claim. Cruz has not shown that there could be no tactical reason for not objecting to the detective's reference to the custodial restraints, or that the reference to the custodial restraints prejudiced the jury's guilt assessment.

Cruz's contention of error based on the failure to instruct the jury not to consider restraints also fails. Because there is no showing the jury was aware Cruz was restrained at trial, the trial court properly refrained from alerting the jury about the restraints through a sua sponte cautionary instruction. (See People v. Duran, supra, 16 Cal.3d at pp. 291-292.) For the same reason, defense counsel could reasonably conclude that a cautionary instruction not to consider restraints was unwarranted because it would suggest to the jury that Cruz was restrained at trial. The record does not support Cruz's claim of incompetency of counsel based on the failure to request the cautionary instruction.

IV. Failure to Record Jury Instructions

Both counsel waived the recording of the trial court's reading of instructions to the jury. Cruz contends this violated his due process rights. To support his argument he cites his constitutional right to meaningful appellate review and the California Rules of Court setting forth the proper appellate record. He argues if the issue is forfeited because of his counsel's agreement, he was provided ineffective representation.

Cruz had a right to have the reading of the instructions recorded by the court reporter (People v. Gloria (1975) 47 Cal.App.3d 1, 5-6) and to have the transcript of the oral instructions in the appellate record (Cal. Rules of Court, former rule 31 (c)(4), current rule 8.320(c)(4)). However, defense counsel's agreement not to have the oral instructions recorded waived this right. (People v. Rogers (2006) 39 Cal.4th 826, 857; People v. Cummings (1993) 4 Cal.4th 1233, 1333-1334, fn. 70; People v. Gaston (1978) 20 Cal.3d 476, 485.)

Moreover, there is no showing that the failure to record the instructions violated Cruz's due process rights. A defendant's due process right to meaningful appellate review is not violated if the record is adequate to evaluate the case for error. (See People v. Hawthorne, supra, 4 Cal.4th at pp. 66-67; People v. Rogers, supra, 39 Cal.4th at p. 857.) The record includes the written packet of instructions which the trial judge read and provided to the jury. The written instructions provide an adequate basis to review the case for instructional error. Although a trial court may make a mistake during the reading of instructions, in the absence of a claim that such error was observed, we will not presume it occurred. (See Evid. Code,  664 [presumption that official duty regularly performed].) For these same reasons, the record does not show prejudice from defense counsel's agreement to forego recording of the oral instructions.

DISPOSITION

The judgment is affirmed as to count 1 (Vargas murder) and reversed as to count 3 (Sanchez murder).

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

McINTYRE, J.

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^[1] According to the police, Portillo also reported that he heard Cruz shout "f___ your mother" at Vargas and heard Vargas respond in like manner. At trial, Portillo testified he did not hear this cursing and he did not tell the police he heard it.

^[2] On April 26 the first of two alternate jurors had replaced juror number 8, who could no longer attend the proceedings.

^[3] Subsequent statutory references are to the Penal Code unless otherwise specified.

^[4] Section 1149 states: "When the jury appear they must be asked by the Court, or Clerk, whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same." (Italics added.) Section 1163 states: "When a verdict is rendered, and before it is recorded, the jury may be polled, at the request of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation." (Italics added.) Section 1164, subdivision (a) states: "When the verdict given is receivable by the court, the clerk shall record it in full upon the minutes, and if requested by any party shall read it to the jury, and inquire of them whether it is their verdict. If any juror disagrees, the fact shall be entered upon the minutes and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury shall . . . be discharged from the case." (Italics added.)

^[5] As a matter of common practice, the verdict is frequently acknowledged by both the foreperson and by the jury collectively. (See, e.g., People v. Thornton, supra, 155 Cal.App.3d at p. 849; People v. Defer (1947) 81 Cal.App.2d 732, 733-734.)

^[6] In Thornton, the court found prejudicial error when a written verdict form was never acknowledged in open court before discharge of the jury, thereby depriving the defendant of his right to test the verdict in open court at the time of its receipt. (Thornton, supra, 155 Cal.App.3d at pp. 856-860.) In contrast, in Masajo, the court found the trial court's accomplishment of the requested polling by a show of hands rather than individual polling was harmless error because there was no indication of nonunanimity or coercion. (People v. Masajo, supra, 41 Cal.App.4th at pp. 1339-1340.)

^[7] After juror number 11 had been discharged and subject to outside influences, she could no longer be called back to court to participate in the acknowledgement of the count 3 verdict. (See People v. Hendricks, supra, 43 Cal.3d at pp. 597-598; People v. Thornton, supra, 155 Cal.App.3d at p. 856.) The only recourse at this point would have been to instruct the reconstituted jury to deliberate anew on count 3 and render a verdict on the count. (See People v. Sanborn, supra, 133 Cal.App.4th at pp. 1467-1468.)

^[8] From our review of the clerk's minutes, we calculate that the reconstituted jury deliberated about 30 minutes on count 1, whereas Cruz calculates the reconstituted jury deliberated about 49 minutes on count 1. Cruz asserts that the original jury deliberated for almost two days on count 1. However, a calculation of the actual minutes spent deliberating over the two-day period shows that the deliberations did not occur for two full days. On the day the jurors reached a verdict on count 3 (which was the day before juror number 11 was dismissed) the original jury had deliberated about three hours (which could have included deliberations on both counts 1 and 3, or just on count 3). During the morning of the next day (before juror number 11's dismissal), the original jury deliberated about 90 minutes on count 1 alone.