Filed 2/26/18 P. v. Regalado-Godoy CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE


THE PEOPLE,
Plaintiff and Respondent,
v.
FRANCISCO REGALADO-GODOY,
Defendant and Appellant.

A150659

(Sonoma County
Super. Ct. No. SCR-646697)

In this appeal we examine whether the original trial court erred in handling the bias of a prospective juror, excusing the person who expressed hostility toward domestic violence suspects but not dismissing the entire venire. Based on the record in this case, we find no error in the conduct of the trial court and affirm the judgment.
STATEMENT OF THE CASE
On May 28, 2014, the Sonoma County District Attorney filed an amended information charging appellant Regalado-Godoy with attempted kidnapping, a violation of Penal Code sections 207, subdivision (a)/664 (count 1), criminal threats, a violation of section 422 (count 2), burglary of an inhabited dwelling, a violation of section 459 (count 3), and misdemeanor battery on a person in a dating relationship, a violation of section 243, subdivision (e)(1) (count 4).
On September 22, 2014, a jury found appellant guilty of counts 1, 3, and 4. Appellant was found not guilty of count 2. On February 4, 2015, the trial court granted appellant’s motion for a new trial on counts 1, 3, and 4.
The Attorney General appealed the new trial ruling. On September 7, 2016, we affirmed the new trial ruling regarding counts 1 and 4. We reversed the trial court’s ruling on count 3. (People v. Regalado-Godoy (Sept. 7, 2016, A144357 [nonpub. opn.].)
On November 9, 2016, the People dismissed counts 1 and 4 of the amended information. On December 21, 2016, the court sentenced appellant to four years in prison on count 3.
On February 21, 2017, appellant filed a notice of appeal.
STATEMENT OF FACTS
Jane Doe was romantically involved with appellant during the summer of 2013. Within two months after the relationship started, Doe ended it due to appellant’s conduct. The two continued as friends after the breakup.
Around 4:00 a.m. on December 31, 2013, Doe was walking towards her apartment when appellant confronted her. He grabbed her by the neck and pulled her towards a parked car near her apartment. During this struggle, he punched her and threatened to kill her. Sensing appellant wanted to force her into the car, Doe began screaming for assistance.
A neighbor in Doe’s apartment complex, Maria Sanchez, woke up to Doe’s screams. She looked outside her apartment window and saw Doe and appellant in a struggle; she did not know either personally. Sanchez noticed appellant had his hands around Doe’s neck and heard him tell her he would kill her. Sanchez, from her window, ordered appellant to release Doe and stated she would call the police. After Sanchez threatened to call the police, appellant released his hands from Doe’s neck and entered his car, ostensibly leaving the scene. With this action by appellant, Sanchez went downstairs and helped Doe.
Sanchez invited Doe to come to her apartment for the time being. As the women were together, they saw appellant running toward them. Appellant ran quickly and grabbed Doe’s arm. Doe was able to break away and run with Sanchez up the stairs to the Sanchez apartment. Appellant chased the two women.
While the women entered the Sanchez apartment, they were not able to close the door because appellant was so close in pursuit. Appellant succeeded in pushing the door with sufficient force to break the lock on the door. Again, inside the Sanchez apartment, appellant tried to grab Doe. Doe was pleading with Sanchez to help her avoid going with appellant. Sanchez’s boyfriend, Rafael Enriquez, was also in the apartment. He heard the commotion and confronted appellant, asking what he was trying to do. Appellant told Enriquez he wanted to take Doe out of the apartment. Enriquez forcibly interfered with the effort and called 911. Appellant left the apartment before the police came.
DISCUSSION
The initial appeal in this case concerned only the trial court ruling on the motion for new trial. We are now asked to review an issue arising during the jury selection process. At the start of jury selection, appellant moved to dismiss the venire panel due to alleged misconduct by one member of the panel. The trial court, after a hearing on the issue and review of the case law, decided to not dismiss the remaining panel members. That decision is challenged here in the appeal, as well as a claim trial counsel for appellant was ineffective.
Factual Background
The incident involving the prospective juror’s remarks came to the court’s attention on August 19, 2014. A prospective juror, No. 632, advised the trial court regarding what she had heard at the start of jury selection:
“[THE COURT]: Good morning. So I know you talked to the bailiff briefly yesterday afternoon, and given we got sort of general information I was concerned about what caused you concern. I wanted to bring you in and talk to you about that.
“[PROSPECTIVE JUROR NO. 632]: Okay. Only because if I was on the defense side I would want to know this, and my defense attorney to know this. But I did hear a possible juror talking really adamant about being against domestic violence and she felt that—her quotes were ‘I would hang them all.’ So I just kind of thought he should know.
“[THE COURT]: Absolutely. This is someone—are you able to identify this person by number? Who was it?
“[PROSPECTIVE JUROR NO. 632]: Only because he asked her a question yesterday and I remembered the number. It is 647.
“[THE COURT]: And this conversation that you overheard, was this person talking directly to you?
“[PROSPECTIVE JUROR NO. 632]: No, not to me, to the person next to me. I was just sitting next to them and they were having a conversation about domestic violence and she felt really strong against domestic violence. I mean who wouldn’t? But like I said, it is one of those what would you do moments and I thought that it should be known.
“[THE COURT]: Absolutely. You did the right thing. I mean we always want to know that. And your concern or what you overheard was ‘and I would hang them all’ statement—
“[PROSPECTIVE JUROR NO. 632]: That’s what stuck to my head when she said that.
“[THE COURT]: When this conversation was happening were there a lot of people around involved in this conversation?
“[PROSPECTIVE JUROR NO. 632]: No there was only one other woman, she was talking to someone else.
“[THE COURT]: Were you able to hear the other side of that conversation, the person that was being spoken to?
“[PROSPECTIVE JUROR NO. 632]: I think she was talking about she knew somebody that was in a domestic violence situation.
“[THE COURT]: But you didn’t get from that person that they were—
“[PROSPECTIVE JUROR NO. 632]: No I just strongly—it was the woman with the kind of like Irish accent.
“[THE COURT]: Counsel, do either of you want to ask her any additional questions before I call in the other juror?
“[PROSECUTOR]: I do not.
“[DEFENSE COUNSEL]: Do you recall the identity of the person that juror number 647 was talking to?
“[PROSPECTIVE JUROR NO. 632]: You know, I knew you were going to ask me that. I’m not 100 percent sure, so I’m not going to say. I just saw her right now talking to somebody, it could have been her. But I don’t remember the other person she was talking to.
“[DEFENSE COUNSEL]: Thank you.
“[THE COURT]: Thank you very much.”
After this colloquy, defense counsel did not request further questioning of prospective juror No. 647. The court, with the consent of both sides, immediately excused juror No. 647 for cause from the venire.
Importantly, before the resumption of jury selection, trial counsel for appellant moved to dismiss the entire venire because the panel did not represent the cross-section of the community. No additional ground was stated by counsel. The trial court, based on this defense motion, continued the jury selection process in this case for four additional weeks so counsel could file a written motion on this particular jury venire issue.
Eventually, the defense did not file a motion to dismiss the panel due to a lack of proper cross-representation of the community. Counsel did file a motion to dismiss the panel because of the lone remark by excused juror No. 647.
After reviewing the submissions, the trial court engaged in a lengthy statement on the matter:
“With regard to the issue that was raised, Mr. [Prosecutor], before I allow you to address those, I did go back and actually order a copy of the transcript because my recollection was that we had fully questioned that juror to the satisfaction that I didn’t believe at that time I needed to take any further action, further question anybody else, or that the panel, remaining panel had been so tainted that they should be released. So I just want to read to you out of the transcript what the Court is relying on and ruling on in this. First of all, with regard to what the juror told us who was complaining about the one juror who made the offensive comments, that juror said that what she overheard was this woman was really adamant about being against domestic violence and she felt that her quotes were, quote, ‘I would hang them all.’ That comment was made in regard to domestic violence, not in regard to any race or ethnicity issues based on what this juror overheard. I further asked her later on were there a lot of people around involved in this conversation. The prospective juror who had been the complaining juror said no, there was only one other woman. She was talking to someone else. And I further questioned her about that. So the Court was confident at the end of the discussion that we had that this was a conversation that happened with one other person. She happened to overhear it. No one else was around at that time. . . . I believe that issue has been sufficiently resolved so that there is no issue of tainting the rest of the panel based on the comments of the person who was a percipient witness to this egregious conduct by one juror who was immediately relieved upon us becoming aware of that statement. So the Court does not intend to release the remaining panel from that group. It is now a small group because we had to release several others, but I don’t believe that there has been any tainting of that panel. The Court will again remind that panel as well as all the others that they are to immediately report anything that they hear that would be inappropriate, comments made by anyone. Also that they are not to take into consideration any conversations that they may hear but to notify the Court immediately. I have or will order a second panel because of the small number that we are down to and what I intend to do is bring that panel in, the new panel in . . . . So that we can do hardships with that group and then I will release that group to meet up with the already started group . . . .”
Legal issues involved.
In his brief, appellant contends the trial court erred because it did not excuse the remaining members of the original venire based on the remark by excused prospective juror, No. 647. The trial court has considerable discretion when it is asked to determine if sufficient bias or prejudice has been identified to trigger the dismissal of the entire venire in a criminal case. (People v. Medina (1990) 51 Cal.3d 870, 889.) Discharging the entire panel is a remedy usually reserved for the most egregious instances of demonstrated prejudice or bias, where the interrogation or removal of the actual offending prospective juror or jurors would not be sufficient to protect the rights of the accused. (Ibid.) Great deference is provided the trial court’s determination on this matter and we would reverse only if a clear showing of abuse of discretion is demonstrated by appellant. (People v. Martinez (1991) 228 Cal.App.3d 1456, 1466.)
In this case, the court found the remark by juror No. 647 was at best heard by one other prospective juror and juror No. 632. Appellant provides no further evidence suggesting a broader reach of taint by the remark. This is not a case where the panel heard something from a member that took place in open court. (People v. Nguyen (1994) 23 Cal.App.4th 32, 40–41.) Here the trial court promptly dismissed the offending panelist, No. 647. Eventually juror No. 632 was excused during the jury selection process. Also, the record does not indicate if the potential juror No. 647 spoke with continued during jury selection. However, nothing is presented by appellant that any other prospective juror had any bias personally, or was exposed to prejudicial comments as a participant in the jury in this matter. Appellant asks us to speculate such taint on a record devoid of any suggestion the panel was affected by the lone statement of juror No. 647. This we will not do.
A criminal defendant is clearly entitled to a fair and impartial jury; excused members of the venire can have no effect on the impartiality of the individual jurors who actually decide the case. (People v. Mason (1991) 52 Cal.3d 909, 954.) We are unable to determine the number of members of the original venire who were present in August 2014 when the prospective juror made the remark at issue, and who then returned for jury selection in September 2014. We know the court summoned a new panel of prospective jurors because it lost a considerable portion of the original venire when the court continued the case due to counsel’s proposed motion. We cannot say appellant has demonstrated his case was tried by any juror demonstrating improper bias. A judgment is presumed correct and the burden is on appellant to affirmatively demonstrate the error. (People v. Battle (2011) 198 Cal.App.4th 50, 62.)
It is also the case based on this record appellant has not presented evidence the unknown juror who arguably heard the biased remark by juror No. 647 served in this case, agreed with the improper remark, or was unable to disregard it if selected, especially after being advised of the court’s instructions on juror fairness, the burden of proof, and the voir dire of trial counsel. It is nearly impossible to shield jurors from the involuntary exposure to matters outside the evidence presented in trial. Our system cannot “ ‘shield jurors from every contact or influence that might theoretically affect their vote.’ ” (In re Hamilton (1999) 20 Cal.4th 273, 296.) In the jury selection conducted in this case, the court discussed prejudice regarding domestic violence and whether evidence of such conduct would prevent individual jurors from being fair. Based on this record, we do not find an abuse of discretion by the trial court by refusing to grant appellant’s motion to dismiss the original venire.
Ineffective assistance of counsel.
Appellant now raises the issue whether his counsel was ineffective in his representation. He complains the trial counsel should have personally questioned juror No. 647 to discover the identity of the person she spoke with when she made her statement. We are fully aware of the standards for ineffective assistance of counsel. (See Strickland v. Washington (1984) 466 U.S. 668, 687; In re Jones (1996) 13 Cal.4th 552, 561.) We need to assess whether trial counsel’s performance fell below an objective standard of reasonableness and if so, whether appellant was prejudiced by the conduct. This latter prong requires a determination that but for the performance by counsel, the result would have been more favorable for appellant.
Our review of this matter leads us to conclude trial counsel’s performance was not deficient in the matter. Appellant obtained the removal of juror No. 647 based solely on the testimony from juror No. 632. Successful in removing the source of known bias, trial counsel continued to have the opportunity to rely on his voir dire to detect the prejudices of the remaining panelists. Also, it appears the trial court was aware of potential taint from domestic violence among the panel and questioned the members on these issues. There is no juror misconduct when one does not choose to engage or adopt improper remarks by another juror. (People v. Linton (2013) 56 Cal.4th 1146, 1214.)
It is unclear what value appellant’s counsel would have gained if he interrogated juror No. 647 further on the matter. Our record is silent whether that juror remembered the identity of the listener. The statements by juror No. 632 under oath when she was questioned by the court do not indicate agreement by the unknown juror. Certainly the remedy sought by appellant here in this appeal is the dismissal of the entire venire. That would be a drastic response by the court. For all we now know, the person who heard the remark appellant complains about was legally excused from the 12 who eventually decided the case. In the end, there is no evidence the unknown juror sat in appellant’s case, and there is no evidence any biased juror decided this matter. We fail to see how further questioning of juror No. 647 by defense counsel, the claimed basis for ineffective assistance, was professionally incorrect or that the failure prejudiced appellant.
DISPOSITION
We affirm the judgment.


_________________________
Dondero, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Banke, J.