Filed 9/18/17 P. v. Otto CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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A jury found defendant Russell Wayne Otto guilty of committing multiple felony sex crimes against two minors. The trial court sentenced him to an aggregate term of nine years four months in prison.

On appeal, defendant contends the trial court prejudicially erred when it did not allow him to impeach a prosecution witness with prior misdemeanor convictions. Anticipating that he may have forfeited this claim with respect to the witness’s conviction for spousal battery, defendant alternatively argues he received ineffective assistance of counsel. Defendant further contends that the trial court prejudicially erred in discharging Juror No. 6 during deliberations. We affirm the judgment.

Facts and Proceedings

In light of the limited issues raised on appeal, we will only recite those facts necessary to the resolution of this appeal.

On October 14, 2014, defendant was charged by information with committing numerous felony sex crimes against two brothers, minors J. and N. With respect to J., the information charged defendant with 10 counts: one count of committing a lewd or lascivious act upon a child under 14 years old (Pen. Code, § 288, subd. (a); unless otherwise stated, statutory section references that follow are to the Penal Code; count 1); two counts of committing a lewd or lascivious act upon a child 14 or 15 years old (§ 288, subd. (c); counts 2 and 3); one count of attempted forcible oral copulation (§ 664/288a, subd. (c)(2); count 4); two counts of annoying or molesting a child under 18 years old (§ 647.6; counts 5 and 6); two counts of oral copulation with a person under 16 years old (§ 288a, subd. (b)(2); counts 7 and 8); and two counts of oral copulation with a person under 18 years old (§ 288a, subd. (b)(1); counts 9 and 10). With respect to N., the information charged defendant with six counts: four counts of committing a lewd or lascivious act upon a child under 14 years old (§ 288, subd. (a); counts 11 through 14); and two counts of committing a lewd or lascivious act upon a child 14 or 15 years old (§ 288, subd. (c); counts 15 and 16). As to counts 1, 11, 12, 13 and 14, it was also alleged that defendant committed the offenses against more than one victim. (§ 667.61, subd. (e).) Defendant entered not guilty pleas and denied the special allegations.

At trial, J. and N. testified about how defendant, a neighbor and friend of their father, repeatedly molested them over several years. In addition to describing the details of the molestations, they testified that defendant bought them things, took them places, and allowed them to smoke marijuana and drink alcohol at his house. J. also testified that defendant gave him money and would get him to pull his pants down by offering him money or threatening to hit him. N. testified that he used marijuana and drank alcohol sometimes while his brother drank alcohol and used marijuana often. N. explained that his brother stopped going to defendant’s house in the summer of 2014 after their friend, Jacob Cranford-Kyle, saw defendant orally copulating him.

When Cranford-Kyle testified, he stated that he had known J. and N. for about 10 years, considered them to be his brothers, and had lived with them in the past. He admitted, among other things, that he had previously been convicted of a misdemeanor in 2004 for commercial burglary and had “violent charges on [his] record.” With regard to the oral copulation incident, he explained that he was intoxicated when he went to defendant’s house around 9:30 p.m. on June 17, 2014. He further explained that when he walked into defendant’s house, he saw defendant orally copulating J. in the living room. According to Cranford-Kyle, defendant yelled at him for entering the house without knocking. Cranford-Kyle also said that J. appeared embarrassed; he pulled up his pants and ducked into a hallway. After this incident, J. and N.’s older brother called the police.

Following the presentation of evidence, the trial court granted the prosecutor’s motion to dismiss the special allegations and counts 1, 4, 11, and 12 for insufficiency of evidence.

The jury deliberated for several days before reaching a verdict. The jury found defendant guilty of counts 2, 6, 10, 13, and 15. The jury was unable to reach a unanimous verdict as to the remaining counts, which were subsequently dismissed upon motion by the prosecutor. The trial court sentenced defendant to an aggregate term of nine years four months in prison.

Defendant appeals.

Discussion

I

Cranford-Kyle Impeachment

Prior to opening statements, defendant raised the issue of impeachment evidence relating to prosecution witness Jacob Cranford-Kyle. Defendant’s attorney, noting that Cranford-Kyle was to be called as a witness later in the day and referring to a “rap sheet” she had received said: “I would like to be able to impeach him. There’s a [section] 459, misdemeanor. There’s a [section] 148, misdemeanor, a [section] 243(e), misdemeanor. That’s domestic violence.”

Thereafter, the prosecutor referred to other misdemeanor convictions indicated for Cranford-Kyle.

The trial court granted defendant’s request to impeach Cranford-Kyle with the burglary offense but denied reference to other offenses on the ground that they did not involve moral turpitude. The trial court reserved ruling on the spousal battery offense after defense counsel indicated that she had “someone checking” on whether the offense was a crime of moral turpitude. Defendant did not again raise the issue of whether evidence regarding the spousal battery conviction was admissible.

Unfortunately, the record is entirely unclear as to whether defendant’s counsel sought to introduce the fact of the misdemeanor convictions for the purpose of impeachment or the conduct underlying those convictions. The difference is significant.

Misdemeanor convictions themselves are not admissible for impeachment. (People v. Chatman (2006) 38 Cal.4th 344, 373 (Chatman); People v. Wheeler (1992) 4 Cal.4th 284, 298-300 (Wheeler) [evidence of a misdemeanor conviction is inadmissible hearsay].) However, evidence of misdemeanor conduct involving moral turpitude may be admissible subject to the court’s exercise of discretion under Evidence Code section 352 to exclude evidence if its probative value is substantially outweighed by its potential for prejudice, confusion, or undue consumption of time. (Wheeler, at pp. 295-297.) Here, because Cranford-Kyle’s misdemeanor convictions themselves were not admissible for impeachment, the trial court did not err in denying defendant’s request to admit such evidence.

While, upon a proper showing, evidence of the conduct underlying these convictions could have been admitted, defendant made no such argument at trial. Defendant did not ask to present any such evidence, and made no offer of proof. Consequently, even if we construed defendant’s argument on appeal as claiming the trial court erred in preventing him from presenting evidence of the underlying misdemeanor conduct, his argument is forfeited. (Chatman, supra, 38 Cal.4th at p. 373.)

II

Ineffective Assistance of Counsel

Defendant argues that trial counsel rendered ineffective assistance by failing to inform the court that defendant’s misdemeanor conviction for spousal battery was a crime involving moral turpitude. We will assume that reasonably included in that argument is that counsel was ineffective in her failure to make clear that she was attempting to impeach Cranford-Kyle with the conduct underlying his misdemeanor convictions if that was her intention, in not making the necessary offers of proof, and receiving a ruling on her motion.

When a defendant raises a claim of ineffectiveness of counsel, he must establish that his “ ‘counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and there is a reasonable probability that, but for counsel’s unprofessional errors and/or omissions, the trial would have resulted in a more favorable outcome.’ ” (In re Cudjo (1999) 20 Cal.4th 673, 687.) “ ‘ “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” ’ ” (Ibid.)

Whatever else might be said about the state of the record here, reversal for ineffective assistance of counsel does not lie because defendant has failed to show that it is reasonably probable that a result more favorable to him would have occurred if the trial court had admitted the conduct underlying Cranford-Kyle’s misdemeanor convictions. At trial, Cranford-Kyle admitted that he was previously convicted of burglary, had “violent charges on [his] record,” and was intoxicated when he witnessed defendant orally copulating J., which he acknowledged affected his vision. He also admitted that he wanted to “violently hurt” defendant after he saw him orally copulating J., was drunk when he told law enforcement about the oral copulation incident, and had known one of the investigating police officers for 10 years from previous contacts. He further admitted that his cooperation with law enforcement depended on how drunk he was, there was a prior incident in which he did not cooperate with law enforcement, and he had recently gotten out of jail for a probation violation. On this record, even without the evidence underlying the largely minor misdemeanor convictions, we are persuaded that the jury would not have received a significantly different impression of Cranford-Kyle’s credibility.

III

The Discharge of Juror Number 6

Defendant contends the trial court prejudicially erred in discharging Juror No. 6. According to defendant, the trial court failed to find, as a “ ‘demonstrable reality,’ ” that Juror No. 6 was unable to deliberate. Defendant further asserts that the trial court failed to conduct an adequate inquiry into the cause of Juror No. 6’s “ ‘stress.’ ” There was no error.

On the first day of deliberations, the trial court received a note from the foreperson indicating that a juror was requesting to be excused. According to the foreperson, the juror claimed that he was biased and could not take the witnesses and victims seriously. When the trial court questioned the foreperson, he identified Juror No. 6 as the juror who wanted to be excused. As to the meaning of his note, the foreperson explained that Juror No. 6 “feels that he’s not able to look at this case objectively. He says he has bias.” The foreperson also said that Juror No. 6 told the group that he wanted to be excused. The court asked if Juror No. 6 was deliberating, and the foreperson responded, “Yes, he’s an intricate part of the discussions at this point.” The foreperson also indicated that Juror No. 6 was able to state his opinion and listen to other jurors’ opinions, and that all the jurors were being respectful.

When Juror No. 6 was questioned by the trial court, he confirmed that he wanted to be excused. He explained that he did not think he could “make a fair judgment on this case” because “the kids” are “alcoholic plus they are taking drugs.” He stated that he could not “give them any credibility.” The court explained that jurors are supposed to determine credibility, and that making such a determination did not necessarily mean that a juror is biased. The following exchange then took place:

“JN. 06: Well, I pretty much made up my decision and I can’t give credibility to these kids because the fact that they are alcoholics and using drugs.

“THE COURT: Have you been able to go over their testimony with the other jurors and talk about what they think?

“JN. 06: Well, there’s--with just the first person right now, we just stopped.

“THE COURT: Are you able--I know, but are you able to talk to the other jurors about the evidence?

“JN. 06: Yes, but . . . but like I said, I cannot--I want--I can’t.

“THE COURT: There’s one thing--

“JN. 06: I don’t think the kids’ testimony [is] credible at all.

“THE COURT: That’s--that’s your right to think--as a juror, that’s your right to think about the witnesses. That’s your right. [¶] It’s whether you can talk to the other jurors and they can talk to you about why you feel that way and listen to their opinions and have them listen to your opinions. That’s the whole job of being a juror.

“JN. 06: I’m not comfortable. I’m stressed out already.

“THE COURT: You’re stressed out?

“JN. 06: Yeah.

“THE COURT: Are you so stressed out you feel you can’t continue deliberating?

“JN. 06: Yes. I cannot take anymore. I’m exhausted already.

“THE COURT: So you don’t think you’d be able to finish deliberating?

“JN. 06: No.

“[DEFENSE COUNSEL]: I’m objecting to this whole--

“THE COURT: I know. [¶] Is there--is there anything we can do that could make you feel less stressed or more comfortable to help you finish the deliberation process?

“JN. 06: No, I don’t know. I’m already exhausted.

“THE COURT: All right. Sir, if you could go ahead and step back into the jury room.”

After Juror No. 6 left the courtroom, the prosecutor asked that he be discharged because he was too stressed to continue deliberating and indicated he could not be fair. The prosecutor noted that the jurors were only discussing the first count and there was a long way to go in deliberations. Defense counsel objected to the court’s “leading questions” of Juror No. 6, and argued that discharging him was “highly objectionable,” reasoning that Juror No. 6 had made a credibility determination as part of the deliberation process and was deliberating. Defense counsel stated that the court’s leading questions “gave [Juror No. 6] an out and he’s wanting to take it.” In concluding that Juror No. 6 should be discharged, the trial court reasoned that he was stressed out, anxious, and refused to continue deliberating.

Section 1089 provides, “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 . . . .” The determination of good cause rests in the sound discretion of the court, and the court’s finding thereof will be upheld if substantial evidence supports it. (People v. Holloway (2004) 33 Cal.4th 96, 124-125.)

A trial court may discharge a juror “if it appears as a ‘demonstrable reality’ that the juror is unable or unwilling to deliberate.” (People v. Cleveland (2001) 25 Cal.4th 466, 484 (Cleveland).) However, “caution must be exercised in determining whether a juror has refused to deliberate.” (Id. at p. 475.) “[A] court may not dismiss a juror during deliberations because that juror harbors doubts about the sufficiency of the prosecution’s evidence.” (Id. at p. 483.)

“Bias is often intertwined with a failure or refusal to deliberate. ‘A juror who is actually biased is unable to perform the duty to fairly deliberate and thus is subject to discharge. [Citations.]’ ” (People v. Lomax (2010) 49 Cal.4th 530, 589.) “A refusal to deliberate consists of a juror’s unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views. Examples of refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury.” (Cleveland, supra, 25 Cal.4th at p. 485.) “A refusal to deliberate is misconduct.” (Lomax, at p. 589.)

“The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge. A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views.” (Cleveland, supra, 25 Cal.4th at p. 485.)

The “demonstrable reality” standard requires a higher level of scrutiny than the typical “substantial evidence” review. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) To affirm the discharge of a juror, the appellate court reviews the entire record to determine if the trial court actually relied on evidence that supports a conclusion that bias was established. (Id. at pp. 1052-1053.) The reviewing panel does not reweigh the evidence, but “must be confident that the trial court’s conclusion is manifestly supported by evidence on which the court actually relied.” (Id. at p. 1053.)

Applying these principles, we conclude that the trial court’s discharge of Juror No. 6 was not error. The record supports the conclusion that, “ ‘as a demonstrable reality,’ ” Juror No. 6 was unable or unwilling to perform his duties as a juror in this case. Shortly after deliberations began, Juror No. 6 told the foreperson he was biased and could not evaluate the evidence in an objective manner. When questioned by the trial court, Juror No. 6 explained that he did not think he could “make a fair judgment on this case” because “the kids” are “alcoholic plus they are taking drugs.” He stated that he could not “give them any credibility.” After the court explained that jurors are supposed to determine the credibility of witnesses, and that making such a determination did not necessarily mean that a juror is biased, Juror No. 6 stated that he had already made up his mind and was unwilling to continue deliberating. He explained that he was uncomfortable, exhausted, and stressed out. He also indicated that there was nothing the court could do to help him finish the deliberation process. Under these circumstances, the trial court was within its discretion to discharge Juror No. 6. The record discloses that the trial court had good cause to excuse him. The trial court’s inquiry shows that Juror No. 6 expressed a fixed conclusion at the beginning of deliberations and refused to continue in the deliberation process, i.e., participate in discussions with fellow jurors by listening to their views and by expressing his own views. (Cleveland, supra, 25 Cal.4th at p. 485; see also People v. Alexander (2010) 49 Cal.4th 846, 926.)

Contrary to defendant’s contention, the discharge of Juror No. 6 was not based on the fact that he was taking a position contrary to the other jurors. The record shows the problems with Juror No. 6 went beyond a failure to “deliberate well or reli[ance] upon faulty logic or analysis.” (Cleveland, supra, 25 Cal.4th at p. 485.) His problems were not merely “disagree[ment] with the majority of the jury as to what the evidence show[ed], or how the law should be applied to the facts, or the manner in which deliberations should be conducted.” (Ibid.) Rather, we are satisfied that the record supports the conclusion that his problems stemmed from his refusal or inability to engage in the deliberative process.

Finally, we are unpersuaded by defendant’s contention that the trial court failed to perform an adequate inquiry prior to discharging Juror No. 6. As an initial matter, defendant forfeited this argument by failing to raise it in the trial court. (People v. Wilson (2008) 43 Cal.4th 1, 25.) But even if we were to consider the argument, we would conclude that it fails on the merits. When the trial court is alerted to the possibility that a juror cannot properly perform his or her duty, it is obligated to make a reasonable inquiry. (Cleveland, supra, 25 Cal.4th at p. 477.) Here, the court interviewed both the foreperson and Juror No. 6 before determining that discharging Juror No. 6 was warranted. When questioned, Juror No. 6 admitted that he wanted to be excused and refused to continue deliberating, even though deliberations had just begun. He also indicated that there was nothing the court could do to help him finish the deliberation process. Under these circumstances, the trial court performed a reasonable inquiry. Nothing further was required.

Disposition

The judgment is affirmed.

HULL , J.

We concur:

NICHOLSON , Acting P. J.

BUTZ , J.