P. v. Cho

Filed 4/18/07 P. v. Cho CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. William R. Pounders, Judge. Affirmed.

David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant Jae Cho.

Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant Kyu Lee.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Jae Cho and Kyu Lee appeal their murder convictions (Pen. Code,[1] 187) on the ground that the trial court improperly dismissed a juror during the trial. We find no abuse of discretion and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Ki Hong was killed in the Los Angeles County Mens Central Jail in October 2003. Cho and Lee were identified as the assailants by several inmates and were charged with murder.

During trial, Juror No. 8 was discharged from the jury at her request.

Cho was convicted of second degree murder, with enhancements imposed for committing the crime for the benefit of a street gang ( 186.22, subd. (b)(1)); the use of a weapon in the commission of the offense ( 12022, subd. (b)(1)); and a prior serious felony conviction ( 667, subd. (a)(1)). Lee was convicted of first degree murder with the same enhancements as Cho. Both appeal.

DISCUSSION

The sole issue raised on appeal is the propriety of the discharge of Juror No. 8 during the trial. From the start, Juror No. 8 told the court of time pressures relating to her medical school applications. On the day jury selection began, May 24, 2006, she contacted the court clerk about a school interview she had scheduled for the following day, and the court advised counsel of that scheduled interview before Juror No. 8 was questioned at voir dire. During voir dire on May 24 she explained that the interview the following day was in connection with her application for admission to the University of California at Davis. She asked to leave the courtroom by 10:30 a.m. the next day so that she could prepare for the interview ahead of time. Juror No. 8 was selected for the jury.

After swearing in the jurors, the trial court excused them until May 30, 2006. On May 30, the attorneys made opening statements and the presentation of evidence began. The following day, June 1, Juror No. 8 wrote the following note to the court:

To whom it may concern, I would like to discontinue my jury service due to the fact that several commitments of mine are in jeopardy of being strained.

After realistically looking at my stren[u]ous schedule for the next couple of months, I can now say with all honesty that this case and its lengthiness is causing me undue hardship.

For one, I am waiting for acceptance into one school [] which is not in Los Angeles, but out of town up North . . . and I have already been accepted to another school in Illinois. This means that I need to be, at this very moment, in preparation for one or the other[.] I have never lived outside of Los Angeles, let alone outside of the State of California . . . so this means that I need ample time to ensure that my transition is smooth. I did in fact mention this at the beginning of the trial as well.

In addition to this, I have transitioned to part-time at my place of employment recently, to give myself time to study for a very BIG exam . . . the M.C.A.T. (Medical College Admissions Test)[.] This exam is extremely important and I have already taken it once before. I do not want to jeopardize getting an acceptable score on this exam, because I was unable to study and prepare properly. This exam ultimately determines my future as a prospective medical student and I do not want to take any chances.

Again, I apologize for the inconvenience, but I am asking permission of Judge Pounders to be dismissed from this case. Thank you[.]

On June 2, 2006, the trial court shared Juror No. 8s letter with counsel. When Juror No. 8 entered the courtroom, the court advised her that the case was ahead of schedule and would be finished at least a week earlier than expected. The court clarified Juror No. 8s reference to part-time work in her letter and determined that she was not in fact working while on jury duty. Juror No. 8 explained that although the MCAT was not until August, it required extensive preparation and she was already missing study groups and studying opportunities. She said she could not afford to lose more time and would resume studying immediately if released from service.

The court asked counsel if they had questions for Juror No. 8, and they did not. The court sent Juror No. 8 back to the jury room and discussed the situation with the attorneys. Counsel for Cho and Lee objected to her dismissal. The prosecutor believed that Juror No. 8 should be excused, expressing the concern that her focus on her studies would hamper her deliberation.

The court informed counsel that it believed that the juror had sufficiently demonstrated undue hardship meriting her dismissal. The court referred to the letter and its statement that the length of the case was causing hardship, that her commitments were in jeopardy of being strained, and that she was preparing for the MCAT and a move. The court emphasized that study time was so important to Juror No. 8 that she had changed from full-time work to part-time work and said, It obviously is very serious. She also indicates that the exam is extremely important. Shes already taken it once, and she doesnt want to jeopardize getting an acceptable score for those two schools that shes applied to.

The court called Juror No. 8 in once more to ask how she would feel if she were asked to stay and deliberate on the case. The court asked, [I]f we get into deliberations Tuesday or Wednesday of next week and the jury might finish by the end of the week, how would it affect you if we didnt excuse you on the case? [] Would you be able to deliberate and be fair in the case and not be overly concerned about these other matters? Juror No. 8 responded, No, not honestly speaking, because I have a lotthis is like my career goal in life, and so this is like, you know what I mean, its a big deal. Its not like something I want to put to the side.

The court asked what had changed since they first discussed jury service. Juror No. 8 said nothing had changed and that she had mentioned the time problem earlier but was kept on the jury nonetheless. She said, [N]ow I have to decide which school I want to go to. But both of the schools are out of town. Ive never lived outside of Los Angeles before, so this will be a big deal for me to move, which will take preparation for me to pack my stuff. [] So its a lot of stuff going on besides just the school. Juror No. 8 confirmed that she studied each night after jury service until she was too tired to continue. The court then excused Juror No. 8 on the grounds of undue hardship.

Appellants contend that the trial court abused its discretion in discharging Juror No. 8 and that this erroneous discharge compromised their right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution.[2] We review for abuse of discretion the trial courts determination to discharge a juror and order an alternate to serve. [Citation.] If there is any substantial evidence supporting the trial courts ruling, we will uphold it. [Citation.] . . . . [A] jurors inability to perform as a juror must appear in the record as a demonstrable reality. [Citation.] (People v. Marshall (1996) 13 Cal.4th 799, 843.)

Section 1089 provides that the trial court may discharge a juror for good cause before the case has been submitted to the jury: If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors. A variety of personal issues may constitute good cause, including anxiety over a job issue that would affect deliberations (People v. Fudge (1994) 7 Cal.4th 1075, 1098-1100); the inability to focus on the trial because of a pending legal matter that could result in the loss of ones job (People v. Marshall, supra, 13 Cal.4th at pp. 845-846); an impending move out of the state (People v. Green (1971) 15 Cal.App.3d 524, 529); and an inability to concentrate (Mitchell v. Superior Court (1984) 155 Cal.App.3d 624, 629).

Here, the trial courts decision to discharge Juror No. 8 was supported by evidence and was not an abuse of discretion. Juror No. 8 was studying for the MCAT, interviewing with medical schools, and preparing to move. Her commitments to her educational and professional future had already caused her to change her work schedule so that she had more time available to study. Juror No. 8 studied at night after jury duty until she was too tired. Because of jury duty she was missing study group sessions and she feared that jury duty would interfere with her preparation for the test. Although she had not previously requested to be excused on this basis, she had earlier raised the conflict between jury duty and her educational responsibilities when she asked for time to attend an interview during court hours. She told the court that she believed that she could not be able to deliberate and be fair in the case given her concerns about her career. The court did not abuse its discretion in concluding that this evidence demonstrated good cause to excuse the juror for undue personal hardship.

Appellant Lee compares this case to People v. Lucas (1995) 12 Cal.4th 415, 487-489 (Lucas), in which the Supreme Court found no abuse of discretion in the discharge of a juror who had reported a conflict between the trial and her vacation, could not easily change her vacation schedule, and was distraught over the conflict. Distinguishing Lucas, Lee observes that Juror No. 8 had not previously requested that she be excused on the basis of hardship and that the trial court did not make specific findings that Juror No. 8 was concerned and agitated about her conflicts.

The fact that there are differences between this case and Lucas, supra, 12 Cal.4th 415 does not establish that there was no good cause to excuse Juror No. 8; Lucas does not purport to establish rules about when the jurors extenuating circumstances must be mentioned or what findings the court must make about the jurors distress. Here, Juror No. 8 had informed the court of the conflict prior to requesting that she be excused from serviceshe told the court at the start that she was applying to medical programs and requested that the court accommodate her interview schedule. While she had not previously requested excusal, her early disclosure of the circumstances was evidence that this was not an instance of a juror belatedly announcing a possibly spurious conflict to evade further service.

As far as the jurors demeanor, the court may not have made specific findings as to the degree of her agitation and concern, but there was ample evidence to support the courts implicit finding that the jurors state of mind was affected by her need to prepare for her move and for the MCAT. Juror No. 8 told the court that this was her career goal in life, that it was a big deal, and that she could not afford to lose another few days of preparationto the point where if she was excused, she planned to go from the courthouse directly to the library. As Juror No. 8 wrote, the MCAT ultimately determines [her] future as a prospective medical student. Juror No. 8 told the court that the pressure of preparations would affect her ability to be fair and to deliberate in the case.

Appellant Lee also compares the present matter to that in People v Fudge, supra, 7 Cal.4th at pages 1098 through 1100, in which a jurors anxiety over her new position and the need to complete appropriate paperwork before the job change were considered to be good cause to permit her discharge from the jury during deliberations. Lee concedes that the fact that the nature of the hardships in Fudge and in the present case are similar, but observes that the juror in Fudge repeatedly raised the hardship concerns to the court and that she was dismissed only two weeks before she was to start her new position. Here again, these distinctions do not demonstrate that the trial court lacked good cause to dismiss Juror No. 8. Juror No. 8 brought her educational conflict to the attention of the trial court early in the proceedings when she requested an accommodation to permit her to attend an interview; the fact that she did not request to be excused during voir dire or when sworn in does not invalidate the good cause that was shown for her dismissal. Similarly, the facts that there remained more than two months until the MCAT and that she intended to remain employed on a part-time basis do not affect the legitimacy of dismissing Juror No. 8. As Juror No. 8 reported and as is common knowledge, the MCAT is an exam that requires intensive preparation; study groups were already convening, and Juror No. 8 was only able to study in the evenings and was missing her study group sessions due to jury duty. We are aware of no requirement that a juror must be within two weeks of a significant event in order to be excused from jury service on the basis of hardship.

Counsel for Cho argues that the discharge of Juror No. 8 was not supported by good cause because the actual further imposition on Juror No. 8s time would not have been significant, as the exam was not for two months, trial had already begun, and the trial was proceeding more quickly than originally expected. The actual amount of time that she would have had to serve was of course unknowable and cannot be a determinant of whether there was good cause. As we have explained, Juror No. 8 believed that she could not lose more preparation time and that the pressure of the exam would impact her ability to deliberate. The actual amount of time that she would have served had she completed her service has no bearing on whether the evidence supported the trial courts determination that there was good cause to dismiss her.

Cho also claims that the trial court did not adequately investigate why Juror No. 8 was studying for the MCAT given that she had already applied to medical schools. The trial courts investigation into the jurors circumstances was sufficient. It does not matter why the juror was taking the MCAT for the second time, only that she was taking it, it was approaching, she was preparing for it, preparation conflicted with her service, and she believed that her concern over the exam would interfere with her fairness and her ability to deliberate.

Lee contends that because Juror No. 8 had not previously requested to be excused when hardship requests were heard, and that the MCAT was more than two months away at the time of her discharge from the case, Juror No. 8 was merely expressing a momentary anxiety over the tasks she had before her. Juror No. 8 appears to have become overwhelmed by adding jury duty to her upcoming move and second attempt at the MCAT, but the record suggests that her anxiety was not in fact momentary and fleeting. As set forth more fully above, Juror No. 8 told the court that she could not afford to lose any more time, expressed an unwillingness to put to the side her lifelong goal of a medical career, and said that the pressures upon her would result in her being overly concerned about her personal matters and unable to deliberate and be fair. While the trial court was not compelled to find that these circumstances constituted hardship, its determination that Juror No. 8 should be excused is supported by evidence and was not an abuse of his discretion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

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[1] Unless otherwise indicated all further statutory references are to the Penal Code.

[2] The Attorney General contends that the argument is forfeited because appellants counsel did not restate their objections to discharging Juror No. 8 after the court questioned her for the second time. This argument is meritless. Counsel made the requisite contemporaneous objection. (People v. Mickey (1991) 54 Cal.3d 612, 664-665.) The court then discharged Juror No. 8 during its second colloquy with her without soliciting further input or argument from counsel. Under these facts, counsels objections were sufficient to preserve the issue for our review.