P. v. Frankie

Filed 10/23/06 P. v. Frankie CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Lassen)

A jury convicted defendant Harry Frankie of possessing a sharp instrument while in prison (Pen. Code, § 4502, subd. (a)). The trial court sustained two prior strike allegations and sentenced defendant to 25 years to life.

On appeal, defendant contends the denial of his mistrial motion violated his rights to due process, jury trial, and confrontation. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant is a prisoner at High Desert State Prison. On April 11, 2003, a metal detector search of his cell discovered a four-inch piece of metal with a sharpened point and a knife-like edge hidden in a cup of hand lotion. Defendant was X-rayed and eventually expelled an object from his anal cavity. The object was three to four inches long and cylindrical.

DISCUSSION

Defendant claims the trial court’s denial of his motion for a mistrial was an abuse of discretion.

The following exchange took place between the trial court and prospective juror 14 (juror 14), a correctional officer at High State Prison, during voir dire:

“The Court: And do you know the inmate?

“Juror 14: Yes, sir.

“The Court: Did you know anything about the case before you came to court?

“Juror 14: Not this particular case, no.

“The Court: Okay, other cases possibly that you knew about?

“Juror 14: Yes, sir.”

The juror subsequently stated he could be a fair and impartial juror, and the prosecution did not stipulate to his removal. While both parties exercised peremptory challenges, the record does not indicate whether juror 14 was removed from the jury.

Defendant did not move to dismiss the jury panel but moved for a mistrial based on juror 14’s comments.^[1] The trial court denied the motion, reasoning that since the jury already knew defendant was an inmate at High State Prison, the reference to another case was “quite vague,” and “[t]here was so little time spent on it,” defendant was not prejudiced by the remarks.

“Denial of a motion for a mistrial is reviewed for abuse of discretion and should be granted ‘only when “‘a party’s chances of receiving a fair trial have been irreparably damaged.’”’ [Citation.] The motion should be granted only if the trial court is informed of the prejudice and it judges the prejudice to be insusceptible of being cured by admonition or instruction. [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 444.)

Defendant asserts juror 14’s reference to “other cases” “established [defendant] as a repeat perpetrator of in-prison crimes . . . .” He concludes this reference prejudiced his defense and denied him his constitutional rights to due process, confrontation, and a jury trial.

A criminal defendant has the constitutional right to have a fair and impartial jury determine guilt or innocence. (U.S. Const., 7th & 14th Amends.; Cal. Const., art. I, § 16; People v. Betts (2005) 34 Cal.4th 1039, 1054.) “We believe the trial court possesses broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required.” (People v. Medina (1990) 51 Cal.3d 870, 889, (Medina).) The conclusion of the trial judge on the question of group bias and prejudice by a jury is reversed on appeal only on a clear showing of abuse of discretion. (People v. Martinez (1991) 228 Cal.App.3d 1456, 1466-1467.)

Few California appellate decisions have considered the circumstances under which an entire jury panel must be dismissed because potentially prejudicial information is revealed during voir dire. But our Supreme Court has made clear that “discharging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice . . . .” (Medina, supra, 51 Cal.3d at p. 889.)

In Medina, one of the few California cases to provide any guidance on this subject, several prospective jurors reported to the trial court that at least five other prospective jurors made remarks such as “‘even [the defendant’s] own lawyers think he’s guilty,’” “‘they ought to have [sic] him and get it over with’” and “‘in frontier justice style’ the authorities should ‘bring the guilty S.O.B. in, we’ll give him a trial, and then hang him.’” (Medina, supra, 51 Cal.3d at p. 888.) Although none of the offending prospective jurors ultimately sat on the jury, the defendant moved to dismiss the entire panel. The trial court denied the motion without prejudice to a renewed motion after further voir dire. (Id. at pp. 888-889.) Defense counsel did not conduct further voir dire, fearing it would further antagonize the jurors causing additional bias against his client. (Id. at p. 889.)

In concluding the trial court did not err in denying the motion, the Supreme Court stated: “Defendant cites no case, and we have found none, indicating that such a drastic remedy is appropriate as a matter of course merely because a few prospective jurors have made inflammatory remarks.” (Medina, supra, 51 Cal.3d at p. 889.)

Other decisions illustrate how rare it is for a juror’s voir dire remarks to fatally prejudice the panel. In People v. Vernon (1979) 89 Cal.App.3d 853 (Vernon), a prospective juror responding to a voir dire question stated defendant had been tried for raping her niece. (Id. at p. 865.) This did not require a mistrial or sua sponte admonishment. (Ibid.) In the trial of a Vietnamese defendant, a Vietnamese prospective juror indicated he feared retaliation from the Vietnamese community if he sat on the case. While this justified dismissing the juror, dismissing the entire panel was not necessary. (People v. Nguyen (1994) 23 Cal.App.4th 32, 40-41 (Nguyen).) In People v. Henderson (1980) 107 Cal.App.3d 475, 493 (Henderson), the trial court was within its discretion to deny a motion to dismiss the panel after one prospective juror “revealed that the victim had been her client in psychotherapy ‘this year.’”

Here, only Juror 14 made a claim which could have prejudiced defendant. His “other cases” remark was brief, and neither the trial court nor the parties dwelled on it. The remark did not identify any particular crime, record of conviction, or criminal behavior tied to defendant. The jury already knew defendant had a criminal record. Defendant was charged with a crime that could only be committed by a prisoner, and the trial took place in High Desert Prison. Juror 14’s comment is too vague to be considered more prejudicial than the remarks in Medina, Vernon, Henderson, and Nguyen.

Defendant relies on Mach v. Stewart (9th Cir. 1998) 137 F.3d 630 (Mach) and Paschal v. United States (5th Cir. 1962) 306 F.2d 398 (Paschal) to support his claim the trial denied defendant his constitutional rights. Although we are bound by the decisions of the United States Supreme Court interpreting the federal Constitution, we are not bound by the decisions of lower federal courts, even on federal questions. (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.) Even if we were inclined to follow these decisions, they would not help defendant.

In Mach, the defendant was charged with sexual conduct with a minor. (Mach, supra, 137 F.3d at p. 631.) A prospective juror, who was a child protective services social worker, stated in front of the jury panel she had never become aware of a case in which a child had lied about being sexually assaulted. (Id. at p. 632.) The defendant in Paschal was charged with passing counterfeit currency. (Paschal, supra, 306 F.2d at p. 398.) A prospective juror, who was a stockholder and director of a bank, stated in front of the jury panel that his bank had received “‘[s]ome Paschal money’ -- ‘[t]his defendant’s money,’ about three years previously.” (306 F.2d at p. 399, fn. omitted.)

Juror 14’s bare reference to “other cases” does not approach the level of prejudice found in Mach and Paschal. As it is no more prejudicial than the statements in Medina, Henderson, and Nguyen, we hold the trial court’s decision to deny defendant’s motion for a mistrial was not an abuse of discretion.

Defendant contends the abstract must be corrected to reflect that defendant was sentenced to 25 years to life with the possibility of parole by the trial court, rather than life without parole as stated in the abstract. The Attorney General correctly concedes the issue.

Under our power to order the correction of a clerical error in the record at any time (People v. Mitchell (2001) 26 Cal.4th 181, 185), we direct the trial court to make the necessary correction.

DISPOSITION

The judgment is affirmed. The trial court is ordered to correct the abstract of judgment to show defendant was sentenced to 25 years to life with the possibility of parole and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.

BLEASE , Acting P. J.

We concur:

NICHOLSON , J.

CANTIL-SAKAUYE , J.

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^[1] While the motion to dismiss the jury panel is the standard method of addressing prejudicial remarks that irrevocably infect the jury panel, precedent exists for raising this issue with a mistrial motion. (See People v. Gonzales (1969) 269 Cal.App.2d 586, 597.) Defendant’s mistrial motion was made the day after voir dire concluded and the jury was sworn in. The primary difference between the two is timing; the motion to dismiss occurs before the jury is sworn, while a mistrial motion is necessary after the jury has been sworn. (See People v. Silva (2001) 25 Cal.4th 345, 372-373.) We conclude defendant did not forfeit his claim by relying on a mistrial motion rather than a motion to dismiss the jury panel.