Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 04NF2756, James A. Stotler, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Rhonda Cartwright-Ladendorf, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
In 1999, defendant Gregorio Gomez Echeverria began sexually abusing his then 15-year-old daughter, C.E. In July 2006, defendant was convicted by a jury of 25 counts of forcible rape, one count of performing lewd acts upon a child, and one count of incest. As to one of the counts of forcible rape, the jury also found true defendant personally used a firearm, and tied and bound C.E. and another person in the commission of that offense.
On two separate occasions during trial, the court received a report that a juror had made inappropriate statements about the case. After each report, the trial court promptly conducted a hearing to investigate the alleged juror misconduct, and, after completing its investigation, excused the juror who made the statement. After each hearing, defendant moved for a mistrial; both motions were denied by the court. Defendant contends the trial court abused its discretion by denying his motions for a mistrial and, in doing so, violated his constitutional rights.
We affirm. The trial court cured any prejudice that might have been caused by the alleged juror misconduct by excusing the two offending jurors. The record does not support defendant’s contention the trial court’s denial of his motions for a mistrial impaired his right to due process of law or to an impartial jury.
The underlying facts of defendant’s charged offenses are not material to this appeal, and thus we do not discuss them further in this opinion.
In October 2004, defendant was charged in an information with 25 counts of forcible rape in violation of Penal Code section 261, subdivision (a)(2), one count of incest in violation of section 285, and one count of performing a lewd act upon a child in violation of section 288, subdivision (c)(1). (All further statutory references are to the Penal Code.) As to one of the counts of forcible rape, the information alleged, pursuant to section 667.61, subdivisions (a) and (e), that defendant personally used a firearm in violation of section 12022.53 and “engaged in the tying and binding of the victim and another person” in the commission of that offense.
I.
Juror No. 10’s Alleged Misconduct
After three days of voir dire, on July 11, 2006, 12 jurors and three alternate jurors were sworn by the clerk. That afternoon, the prosecutor and defendant’s counsel made opening statements. The trial court thereafter declared a recess and instructed the jurors to return the following morning for the continuation of trial.
The following morning, the trial court informed counsel (outside the jury’s presence) that a prospective juror in the case (Prospective Juror No. 188) had left a message with a court administrator the previous afternoon, stating that she “would like to speak to the court regarding a comment she overheard one of [the] sworn jurors make to the defendant in this case.” Counsel agreed with the court’s suggestion that they contact her immediately.
Prospective Juror No. 188 informed the court and counsel that she observed a juror, whom the court and counsel understood to be Juror No. 10 based on her description, look directly at defendant and mouth the words, “why don’t you just admit you did it so we can all go home.” Prospective Juror No. 188 stated that at the time of that comment, she was sitting in the sixth row of the courtroom audience; the trial judge, the prosecutor and defendant’s counsel had left the courtroom and when they returned, the 12 jurors were sworn in. She said defendant was not looking at Juror No. 10 when this comment was made. After further questioning, Prospective Juror No. 188 said Juror No. 10 spoke the words “out loud” and “several of the other jurors around him laughed.”
After speaking with Prospective Juror No. 188, the trial court asked counsel for their input on how to proceed. The court, defendant’s counsel, and the prosecutor agreed each juror should be individually questioned about the alleged statement. Each juror (including the three alternate jurors but excluding Juror No. 10) stated that he or she had not heard any juror say anything directed at defendant. At defendant’s counsel’s request, the court asked Juror Nos. 11 and 12 and Alternate Juror No. 2 whether they heard the specific comment. All three denied hearing the comment. Juror No. 10 stated he did not know whether he said, “why don’t you just admit you did it so we can all go home.” He said the statement sounded familiar but he did not think he said it out loud. The court instructed each juror not to discuss what was said during the hearing.
After the questioning, the trial court said, “[w]e’ve talked to every single juror” and asked defendant’s counsel what action she thought the court should take, if any. Defendant’s counsel moved for a mistrial. The court denied the motion for a mistrial, stating: “Number one, the threshold level—I’m mindful of the fact that a juror that called the jury assembly room apparently yesterday afternoon . . . initially said that [Juror No. 10] appeared to mouth the words. Those were her words on the phone. That meant to me that it was at almost an inaudible volume. [¶] But when she was examined further on that she said no, he said it out loud. The fact remains initially she said he mouthed it. [¶] I’m not exactly sure whether he said it at all. I’m not sure what she heard. But she twice said the same thing exactly, ‘why don’t you just admit you did it so we can all go home.’ [¶] So at a threshold level it appears that [Prospective Juror No. 188] believes she heard and saw what she says. However, I did not that [sic] she said he mouthed it. [¶] Secondarily, the remaining jurors, all of them seemed quite credible to me, extremely credible to me. I feel they were all telling the truth. And whether or not [Juror No. 10] made the statement, I don’t believe that they heard it. There’s no question in my mind that those jurors were truthful in here. [¶] I’m not just trying to salvage the case because frankly I don’t care, we can mistry the case and start over again. I just don’t see any basis for it. I heard the jurors. I listened to them. I think they were all honest. They did not hear the statement. Whether [Juror No. 10] made the statement is another matter. He was equivocal in the first place having made the statement. Ultimately he admitted seemingly that he made the statement. So I think that there’s a probability here that [Juror No. 10] made a statement like that or similar to that. The volume with which he made the statement if he made it is another matter. But I’m convinced a hundred percent that none of the other jurors heard it. [¶] But the question then is having denied the mistrial[,] what do I do about [Juror No. 10]?”
Defendant’s counsel asked the court to excuse Juror No. 10, Juror No. 11, and Alternate Juror No. 2. The prosecutor agreed Juror No. 10 should be excused, but objected to the request that Juror No. 11 and Alternate Juror No. 2 be excused, on the ground there was no basis to do so.
The court stated: “[O]ut of an abundance of caution[,] I’m going to excuse [Juror No. 10], and we’ll pick an alternate. If you folks want I can pick an alternate, have the clerk pick an alternate by random selection by picking a name out of the hat. I don’t exactly care how we do that. But you both agree [Juror No. 10] should be excused, and I will abide by that. I think it’s a good idea. Out of an abundance of caution I’m going to excuse him.”
Alternate Juror No. 3 was randomly selected to replace Juror No. 10 and the prosecutor began direct examination of her first witness, C.E., until the lunch recess.
II.
Juror No. 11’s Alleged Misconduct
Following the lunch recess, the trial court met with counsel outside the presence of the jury to discuss a second report of juror misconduct that allegedly occurred during the lunch recess. Juror No. 7 had informed the clerk at the information desk of the courthouse that he was concerned because Juror No. 11 had made some comments about the case while Juror Nos. 7 and 8 were waiting at a stoplight.
The court and counsel agreed that Juror No. 7 should be questioned. Juror No. 7 stated that he was standing next to Juror No. 8, waiting to cross the street, when Juror No. 11 came up behind them and said, “I don’t know what’s going on up there.” Juror No. 11 then said, “that girl there, she’s too flaky.” Neither Juror No. 7 nor Juror No. 8 said anything in response. Juror Nos. 7 and 8 started walking and talking about other things. Juror No. 7 stated the comment did not influence him in any way and did not affect his ability to be a fair and impartial juror. He said he did not draw any conclusions from Juror No. 11’s comment regarding the credibility of the alleged victim in the case. Juror No. 7 was willing to keep an open mind and “listen to everything and decipher [for him]self.”
The court then questioned Juror No. 8 who said Juror No. 11 said something to the effect of “it’s sad.” Juror No. 8 stated he did not hear anything else and the comment he did hear did not affect his judgment or his ability to be a fair and impartial juror. He stated he was not influenced by anything that was said by Juror No. 11.
Juror No. 11 was then questioned. The court asked him whether he talked to Juror No. 7 or Juror No. 8 at the intersection, and he responded, “I don’t think I did.” When asked if he said “I don’t know what’s going on up there. That girl there, she’s too flaky,” Juror No. 11 said, “I certainly didn’t say that.” When asked if he said anything like that, Juror No. 11 said, “I sure don’t remember. I don’t remember saying anything like that.” The court asked him if he said anything at all about the case. Juror No. 11 said, “I don’t think so” and added that the word “flaky” is not a word he usually uses. Juror No. 11 said he did not have an opinion of the witness’s credibility. He said he did not make the statement and did not think he would say that.
After the court finished questioning Juror No. 11, defendant’s counsel renewed her motion for a mistrial, stating, “we have two individuals who are directly contradicting [Juror No. 11’s] statements.” The court denied the motion stating: “[W]e have a juror who says he’s pretty sure he heard what [Juror No. 11] said, and we have [Juror No. 11] denying that he said it. And so the question is what do we do about it. I don’t think [Juror No. 8] heard it if it was said at all. And I think whatever [Juror No. 8] said about [Juror No. 11] talking about the case is so slight, so insignificant that I don’t think it amounts to anything really. [¶] But [Juror No. 7’s] characterization of [Juror No. 11’s] statement is a different matter. Interestingly enough the statement seems to be beneficial to the defendant. It’s a little difficult to believe that [Juror No. 11] would say that because the witness came into court in tears, pretty much you know teary eyed and had to compose herself on the stand and said very little of anything. And for [Juror No. 11] to say that he thinks she’s flaky seems to be a bit premature. [¶] You know, it’s kind of hard to believe that he would say that, you know, under the circumstances of what I saw in this courtroom. And yet [Juror No. 7] says that he heard him say that or something to that effect. There[ are] no grounds for mistrial here. The motion for mistrial is denied.”
The court then asked defendant’s counsel what she thought should be done about Juror No. 11. Defendant’s counsel responded that Juror No. 11’s comment was not beneficial to defendant because Juror No. 11 was not following the court’s instruction to not discuss the case. She requested that Juror No. 11 be excused as well as Alternate Juror No. 2 (based on the earlier incident of Juror No. 10’s misconduct).
The court stated: “I will excuse [Juror No. 11] out of an abundance of caution. Fact remains that [Juror No. 7] heard what he said he heard. [Juror No. 11] was rather hesitant in his answers. He was rather slow in his delivery. I have some question about his credibility. I’m not convinced that he made the statement because it’s really hard to make a credibility call in that regard. But I did notice that he was hesitant, he was not really definite in his denial. [¶] So out of an abundance of caution I’m going to remove him. And folks, with your permission[,] we’re going to draw another alternate at random.”
Defendant’s counsel requested the court to select Alternate Juror No. 1 to replace Juror No. 11. The court denied the request and randomly selected Alternate Juror No. 1 to replace Juror No. 11. No other jury substitutions were made; Alternate Juror No. 2 was therefore never empanelled as a juror.
III.
Verdict and Appeal
The jury found defendant guilty on all counts and found the enhancement allegations true. The trial court sentenced defendant to a total prison term of 169 years to life. Defendant timely filed a notice of appeal.
STANDARD OF REVIEW
We review the denial of defendant’s mistrial motion for an abuse of discretion. “A motion for mistrial is directed to the sound discretion of the trial court. . . . ‘[A] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ [Citation.]” (People v. Jenkins (2000) 22 Cal.4th 900, 985-986.) “In determining whether juror misconduct occurred, ‘[w]e accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence.’” (People v. Schmeck (2005) 37 Cal.4th 240, 294.)
Discussion
Defendant contends the trial court abused its discretion by denying his motions for a mistrial on the grounds the jury was tainted after Juror No. 10 and Juror No. 11 made statements about the case in violation of the court’s instruction. Defendant does not contend the court failed to properly conduct the hearings or otherwise failed to adequately investigate the allegations of those jurors’ alleged misconduct. Nor does defendant challenge the trial court’s decision to excuse Juror No. 10 and Juror No. 11. Defendant solely contends that excusing those jurors was not enough and a mistrial was necessary to protect “his due process right to an impartial jury under the federal and state constitutions.” As we explain, post, we disagree.
I.
The Trial Court Did Not Abuse Its Discretion by Denying Defendant’s Motion for a Mistrial Following Juror No. 10’s Alleged Comment.
In denying defendant’s first motion for a mistrial, based on Juror No. 10’s alleged improper statement, the trial court stated it found it probable that Juror No. 10 made a statement to the effect of “why don’t you just admit you did it so we can all go home.” The court, however, questioned the extent to which the statement was made audibly, noting that Prospective Juror No. 188 originally had reported that “it looked to [her] like [Juror No. 10] looked directly at the defendant who was not looking at him and mouthed the words ‘why don’t you just admit you did it so we can all go home.’” (Italics added.) The trial court observed it was not until Prospective Juror No. 188 was examined further that she said Juror No. 10 made the statement “out loud.” The reporter’s transcript supports the court’s observations.
Although Prospective Juror No. 188 opined other jurors also heard Juror No. 10’s statement, the trial court found the jurors “extremely credible” and stated the court was “convinced a hundred percent that none of the other jurors heard it.” The court’s finding is supported by the reporter’s transcript which shows that each juror was questioned by the court and denied hearing a statement directed at defendant during voir dire. The trial court cured any prejudice that might have occurred as a result of Juror No. 10’s statement by excusing Juror No. 10, confirming no other juror heard the statement, and instructing the jurors not to discuss what occurred during the hearing. If no other juror heard Juror No. 10’s statement, the statement could not have tainted the jury or otherwise prejudiced defendant.
Defendant contends, based on the jurors’ statements during the hearing on Juror No. 10’s alleged misconduct, “it is reasonable to believe more than half the panel was exposed to [Juror No. 10]’s remark, a remark which could not have done anything other than taint the panel.” Defendant cites the “close quarters of a standard jury box”; Juror No. 11’s “elusive answers” to the court’s questions during the investigation of the alleged misconduct; the “absence of any ambient trial activity or noise”; and six jurors’ comments they heard Juror No. 10 and Juror No. 11, or someone in their vicinity, talking and laughing, which, defendant contends, corroborate Prospective Juror No. 188’s report Juror No. 10 spoke aloud. Defendant further contends other jurors who denied hearing any talking or laughing were likely “reluctant to admit anything” in light of “the tedium inherent in the selection process.”
Defendant’s argument, however, challenges the credibility of the jurors. Credibility determinations are squarely within the province of the trial court. (People v. Pride (1992) 3 Cal.4th 195, 260 [“we defer to the court’s observations and credibility determinations” regarding whether juror misconduct occurred].) Here, the trial court found the jurors to be truthful and credible. As discussed, ante, substantial evidence supports the trial court’s findings the jurors did not hear Juror No. 10 make the statement in question. We find no error.
Defendant further argues, “[e]ven assuming panel taint was not established at this point, the taint was accomplished when Juror No. 11, Juror No. 12 and Alternate No. 2 specifically were asked whether they heard the statement, ‘Why don’t you just admit you did it so we can all go home?’ . . . Although the three jurors denied having heard such a remark, the bell was rung and the seeds of partiality planted in each juror’s brains.”
Defendant’s argument lacks merit. First, defendant’s counsel specifically requested that the court ask Juror No. 11, Juror No. 12, and Alternate Juror No. 2 whether they heard the specific comment by Juror No. 10. Indeed, when defendant’s counsel initially proposed that all the jurors be asked whether they heard the specific comment, the trial court warned that “[o]nce we do that then we’re planting that in somebody’s mind.” Defendant’s counsel responded, “[y]ou’re right.” Defendant’s counsel thereafter limited her request that the trial court ask only Juror No. 10, Juror No. 11, Juror No. 12 and Alternate Juror No. 2 about the specific comment. Defendant’s counsel’s limited request was reasonable in light of Prospective Juror No. 188’s comments about who she thought overheard the alleged statement and the proximity of those individuals to Juror No. 10.
Second, we do not agree with defendant that merely asking Juror No. 11, Juror No. 12, and Alternate Juror No. 2 whether they heard the specific statement necessarily prejudiced defendant’s constitutional rights. They were asked whether they heard the alleged statement made during voir dire; thus, the comment could not be construed by the jurors as a comment on opening argument or any evidence.
Juror No. 11 was dismissed from the jury later that same day due to allegations he also committed misconduct. Alternate Juror No. 2 was never empanelled and thus never deliberated in this case.
Finally, defendant argues: “As to those jurors who were not asked about the remark with specificity, each was smart enough to have concluded the court had information that something inappropriate was said to [defendant] and each probably began wondering about the nature of the remark. Since the jurors were told only [to] keep the subject matter of the court’s inquiry secret, but were not told to ignore it . . ., speculation undoubtedly entered their thought processes and permeated their subconsciousness.” Defendant’s argument is speculative in the extreme and without merit. The record does not even suggest those jurors developed any bias of any kind as a result of the hearing investigating the alleged misconduct.
We find no abuse of discretion.
II.
The Trial Court Did Not Abuse Its Discretion by Denying Defendant’s Motion for a Mistrial Following Juror No. 11’s Alleged Comments.
Defendant argues the trial court abused its discretion by denying his second motion for a mistrial, based on Juror No. 7’s report that Juror No. 11 commented during the lunch recess “I don’t know what’s going on up there” and “she’s too flaky,” and Juror No. 8’s report Juror No. 11 said something to the effect of “it’s sad.” The trial court denied the motion for a mistrial, stating that (1) the comment “it’s sad” is “so slight, so insignificant that [the court] d[id]n’t think it amount[ed] to anything really”; and (2) the comments about not knowing “what’s going on up there” and “she’s too flaky” appeared to be beneficial to defendant but, if referring to C.E.’s testimony, seemed premature. In “an abundance of caution,” the court, however, dismissed Juror No. 11, whom the court had found “not really definite in his denial.”
Defendant argues the trial court erred in denying his second motion for a mistrial because the record shows Juror No. 11 was not credible and the court should not have believed him. It does not matter whether the trial court believed Juror No. 11’s denial of the statements attributed to him by Juror No. 7 and Juror No. 8 because he was excused from the case.
Defendant also argues that somehow Juror No. 7’s and Juror No. 8’s “honesty and candor in discussing the contact with Juror No. 11, in turn, bolstered Prospective Juror No. 188’s initial claim that Juror No. 10 had spoken aloud and the statement directed at [defendant] was overhead and laughed at by other jurors, including Juror No. 11.” He further contends, “[g]iven these additional circumstances, and the inferences therefrom, there was no longer any substantial support for the trial court’s earlier findings and conclusions regarding Juror No. 10’s statement, . . . Juror No. 11’s involvement, and the likelihood the initial offending statement was overheard by other jurors. . . . [Citation.] Thus, the addition of the second incident involving Juror No. 11 should have compelled the trial court to reconsider its earlier decision and compelled the mistrial requested by defense counsel.”
Defendant’s argument is without merit. As acknowledged by defendant in the opening brief, the trial court was free to believe Juror No. 11’s statements during the hearing on Juror No. 10’s alleged misconduct, but disbelieve Juror No. 11’s statements during the later hearing on allegations he had engaged in misconduct. (In re Hitchings (1993) 6 Cal.4th 97, 114.)
The trial court cured any prejudice that might have resulted from Juror No. 11’s statements by excusing Juror No. 11 and confirming with Juror No. 7 and Juror No. 8 that the statements did not affect or influence their judgment or their ability to be fair and impartial jurors. The trial court, therefore, did not abuse its discretion.
Disposition
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., ARONSON, J.