P. v. Luis

Filed 9/12/07 P. v. Luis CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

A jury found Arthur Medina Luis guilty of second degree murder. (Pen. Code,  187, subd. (a).) On appeal, Luis contends the trial court erred in dismissing a juror during deliberations. We affirm.

FACTS

Luis stabbed Michael Newman 11 times during a fight precipitated by an argument. Newman had stab wounds to his face, chest, back and abdomen. Luis fled to Mexico where he stayed for several weeks before returning. Luis testified he stabbed Newman in self-defense after Newman came at him with a knife.

During the prosecution's case-in-chief, the prosecutor told the court she noticed "odd behavior" from Juror No. 9. The juror was "throwing his hands around" and mouthing words the prosecutor could not quite make out. The prosecutor said she was not sure if he was disgusted with something he was reading or trying to communicate something to her. The court asked the prosecutor if she wanted the court to talk to the juror. The prosecutor said that would not be necessary.

The next day, the court told counsel about another incident involving Juror No. 9. After everyone had left the previous night, the juror asked the bailiff what he should do with transcripts of police interviews. The bailiff told the juror to put them on the juror's chair. The juror said he did not want them on his chair. He gave them back to the bailiff. The transcripts have handwritten comments on them. One comment states, "So what," and another comment states, "Out of context."

The trial court, with the concurrence of counsel, called the juror into chambers. The juror denied he was having trouble keeping an open mind until the case is concluded. He said the writings on the interview transcripts were just his notes. He said the transcripts have "no probative value," and that he found them "offensive." He said he was adhering to his promise not to form a final opinion until all the evidence is presented, "But you cannot but have opinions as evidence is presented." The court returned the juror to the jury panel.

During deliberations, the trial judge told the parties that he was approached by the jury foreperson in the hallway. The jury foreperson said,"[W]e have a problem with a juror who won't deliberate with the rest of us." The trial judge sent the foreperson back to the jury room.

The prosecutor recounted her previous concerns about Juror No. 9, then added that the juror was hostile throughout her closing argument. The juror repeatedly rolled his eyes, threw his hands in the air and looked at the prosecutor with disgust. The prosecutor said she did some research on Juror No. 9 and found he had been charged with felony bookmaking and gambling. He pled guilty to misdemeanors. The prosecutor admitted she never directly asked the juror whether he had been arrested or prosecuted for any crime.

The court said Juror No. 9 appeared "extremely agitated" during the prosecutor's argument. He was shaking his head and rolling his eyes. The bailiff agreed with the court's observations.

The court called in the jury foreperson. The foreperson said Juror No. 9 has expressed his unwillingness to continue to deliberate. Up until that time, the juror had participated in deliberations, but in an "aggressive manner."

The court called in Juror No. 9. The court asked the juror whether he said he would not deliberate any more. The juror replied, "Essentially, yeah, because I was confident that from what we went through here, the definitions of the different things, that this stuff that was going on was - - there's a lot of closed minds in there, your Honor, and this stuff is - - a lot of it[] [is] just superfluous." When asked about his actions during the prosecutor's argument, Juror No. 9 said he was upset when the prosecutor gave her opinion of the eyewitnesses. Juror No. 9 stated the eyewitnesses had "zero credibility." He also said over half the members of the jury told him that his questions have been helpful and that he discussed things fairly. He said that even after he made the "misstatement" about not deliberating, jurors complimented him on seeing both sides. He said he would follow the court's instructions.

In excusing Juror No. 9, the trial court found that he prejudged the case long before he got into the jury room and has violated the instructions of the court.

DISCUSSION

Luis contends the trial court erred in dismissing a juror during deliberations.

Penal Code section 1089 provides in part: "If at any time . . . a juror . . . upon . . . good cause shown to the court is found to be unable to perform his or her duty, . . . the court may order the juror . . . discharged and draw the name of an alternate . . . ." The section permits the removal of a juror who refuses to deliberate, on the theory that such a juror is "unable to perform his duty." (People v. Cleveland(2001) 25 Cal.4th 466, 475.) We review the trial court's determination to discharge a juror for an abuse of discretion. (Id. at p. 474.) The determination will be upheld if it is supported by substantial evidence showing the juror's refusal to deliberate is a "demonstrable reality." (Ibid.; see also conc. opn. of Werdegar, J., at p. 488, emphasizing that the juror's inability to perform must appear on the record as a demonstrable reality.)

Here there is more than enough evidence to show that Juror No. 9's refusal to deliberate is a demonstrable reality. The prosecutor reported that during her case-in-chief, the juror was throwing his hands around and mouthing words. She thought he might be disgusted with something he was reading. The bailiff reported the juror did not want to put transcripts of police interviews on his chair. The juror later described the transcripts as not probative and offensive. The court and bailiff noticed the juror appeared extremely agitated during the prosecutor's argument. The juror was shaking his head and rolling his eyes. Finally, the jury foreperson told the trial court the juror expressed his unwillingness to continue to deliberate. The juror admitted he made such a statement. This evidence supports the conclusion the juror had prejudged the case and was refusing to deliberate. The trial court was not required to believe the juror's assurances that he would follow the court's instructions.

Luis points out the juror told the court that other jurors had complimented him on seeing both sides. Luis argues the trial court should have inquired of those jurors, not just the foreperson. Luis relies on People v. Barber (2002) 102 Cal.App.4th 145. There when the foreperson informed the court the jury was hopelessly deadlocked, the court asked the jurors whether everyone was deliberating in good faith. Seven jurors said yes and five jurors said no. Further questioning identified a holdout juror. The court allowed the prosecutor to examine the holdout juror, and only took the testimony of those jurors who believed the holdout juror was not deliberating in good faith. The court dismissed the holdout juror, and the defendant was convicted of murder. We reversed. It was error for the court to turn what should have been a sensitive inquiry into an adversarial proceeding by allowing counsel to examine jurors. Moreover, taking testimony of only those jurors who believed the holdout juror was not deliberating in good faith, "stacked [the] evidentiary deck." (Id. at p. 153.)

But Barber does not stand for the proposition that the court must, under every circumstance, examine jurors who may support the holdout. When the court is alerted to the possibility that a juror cannot properly perform his duty, it is obligated to make a reasonable inquiry. (People v. Cleveland, supra 25 Cal.4th at p. 477, citing People v. McNeal (1979) 90 Cal.App.3d 830, 838.) What is reasonable will depend on the circumstances. In Barber, all the evidence about the holdout juror's refusal to deliberate came from other jurors. Here the observations of the court, bailiff and prosecutor showed that Juror No. 9 had prejudged the case. Those observations were independent of the jury's foreperson's complaint. Moreover, Juror No. 9 admitted to telling the jury he would not continue to deliberate. Under the circumstances, questioning other jurors was not necessary to a fair inquiry.

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

Edward F. Brodie, Judge

Superior Court County of Ventura

______________________________

Susan B. Lascher, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Kenneth J. Kao, Deputy Attorneys General, for Plaintiff and Respondent.

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