Opinion
B225297
01-20-2012
THE PEOPLE, Plaintiff and Respondent, v. DANIEL LEE HALE, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Yun K. Lee and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA080278)
APPEAL from a judgment of the Superior Court of Los Angeles County. Tomson T. Ong, Judge. Affirmed.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Yun K. Lee and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Daniel Lee Hale appeals from the judgment entered following a jury trial in which he was convicted of forcible rape, first degree robbery, forcible oral copulation, first degree burglary, all with personal firearm use findings, and assault with a deadly weapon. Defendant contends the trial court erred by failing to dismiss a juror for concealment of bias. We affirm.
BACKGROUND
On the night of November 14, 2008, defendant entered J.B.'s Long Beach residence. J.B. and her young son were asleep in their respective bedrooms. She awakened upon hearing a noise and saw defendant standing in her bedroom doorway holding a rifle. Defendant had the hood of his sweatshirt pulled down over his face. He turned on the light, pointed the rifle at J.B.'s face, and demanded money. J.B. gave him all of the cash she had. He demanded her car keys and more money and repeatedly threatened to kill her and her son. She offered to withdraw cash from an ATM and to give him her jewelry. Defendant ordered J.B. to undress, then forced her to orally copulate him. He then set the rifle on the floor and raped her. At some point he removed the sweatshirt hood from his face. J.B. thought he looked familiar, and later remembered he was her friend's nephew and her brother's friend who had attended a party in her residence several years earlier. During the rape, J.B. kicked the rifle and lunged backward, knocking defendant to the floor. J.B. then grabbed the rifle. Defendant charged toward her and they fell on the floor, struggling. He choked her, repeatedly punched her in the face, then broke a crystal vase or bowl over her head and used its shards to inflict severe cuts all over her body. The rifle fired once during the struggle, then J.B. purposely fired it several times to try to empty it of ammunition. Defendant begged J.B. to give him the rifle, began crying, and backed toward the front door. J.B. shoved defendant out the door, handed him the rifle, and watched him run down the alley. She then phoned a neighbor and 911.
The jury convicted defendant of forcible rape, first degree robbery, forcible oral copulation, first degree burglary, and assault with a deadly weapon. It found that defendant personally used a gun in the commission of all of the offenses except the aggravated assault. The jury further found, with respect to the rape and oral copulation, that defendant used a firearm and the offenses were perpetrated during the commission of a residential burglary. (Pen. Code, § 667.61, subds. (a), (d), (e); undesignated statutory references are to the Penal Code.) Defendant admitted he had served a prior prison term within the scope of section 667.5, subdivision (b). The court sentenced defendant to prison for 63 years 4 months to life.
DISCUSSION
At the outset of voir dire the trial court read the charges to the prospective jurors. After obtaining basic biographical information from each prospective juror, the court stated, "Just to remind you the charges in this case are forcible rape, forcible oral copulation, robbery, burglary, assault with a firearm allegation." A little later, the court told the group of prospective jurors, "I want to know if any of you have ever been a victim of crime similar to what is before the court, if so, raise your hand and keep it up." Seven prospective jurors, including Prospective Juror No. 15 (who became Juror No. 4), raised their hands and the court asked questions of each. Prospective Juror No. 15 told the court she had been a victim of theft and robbery. Upon questioning by the court, she agreed she understood that defendant had nothing to do with those crimes and could "set that aside and not consider it for any purpose." Prospective Juror No. 20 told the court she had been a victim of robbery, assault, kidnapping, and rape. The court then asked, "Final question that I have for you, other than what you have already told me, any of you know any reason why you could not be fair and impartial, other than what we have discussed? I see no hands." Prospective Juror No. 9 raised his or her hand and asked to discuss the matter with the court "very, very privately."
The court later rejected defendant's challenge to Prospective Juror No. 20 for cause, and defendant exercised a peremptory challenge against her as soon as she was seated.
Immediately after the jury and alternates were sworn, the court recessed for the day. Juror No. 4 (formerly Prospective Juror No. 15) asked to speak to the court. In the presence of defendant and counsel, the court asked her what the problem was. The following dialogue ensued:
"Juror No. 4: I couldn't say it earlier because I have a tough time with it, but I was assaulted as a child so I don't know if I can sit through this trial.
"The Court: Let me put it to you this way, Mr. Hale was not the person who did it, right?
"Juror No. 4: I know that. I'm just saying I just want
"The Court: Tell you what I'll do. Here is the deal. You sit through this trial. If this becomes a problem then you let me know, pass me a note. Fair enough?
"Juror No. 4: Okay.
"The Court: That's why I keep alternates. [¶] Most of the jurors, what they do is sit through a trial and do their best because I honestly believe that the citizens of this community want to do their job. You know, whether this is the appropriate case or not, we will not know until after you hear the evidence, after you hear portions of the evidence. If you feel that you cannot be fair, that's really the standard, you cannot be fair or you cannot discharge your duties as a juror, you let my bailiff know and then I'll have another hearing, fair enough?
"Juror No. 4: Yeah, that's fair."
The court thanked the juror and she left. Defense counsel stated, "Just one thing, for the record, when No. 4 just now mentioned that she had previously been assaulted I had the impression that she was on the verge of tears . . . ." He continued, "She was emotionally upset, and obviously there is an emotional thing there." The court responded, "Now, recalling something like that is not pleasant. I agree."
The next morning, defense counsel raised the topic of Juror No. 4 outside the presence of the jury: "I'm really disturbed about the comments she made about information that she apparently did not respond to questions during voir dire. That indicates a potential serious bias. She indicated she was assaulted." The court interjected, "When she was a child she was, I think, molested." Defense counsel continued, "She indicated she was molested and when she said it, it appeared that she was on the— [¶] . . . [¶] . . . [S]he was on the verge of tears. You know, it sounds to me like she just may well be prejudiced. I would appreciate it if the court could take it away from the rest of the jury."
The court brought Juror No. 4 into the courtroom outside the presence of the other jurors and asked her when the assault had taken place. Juror No. 4 said, "Probably 40 years ago." The court continued to question Juror No. 4 on the topic:
"The Court: Let me ask you this, that incident has nothing to do with Mr. Hale, do you understand that?
"Juror No. 4: I understand that.
"The Court: Are you able to set that aside and not consider it for any purposes in this trial?
"Juror No. 4: I think I can.
"The Court: All right. I'm going to ask you to do that. If, at any time, if you feel that you cannot, will you advise the court?
"Juror No. 4: I will.
"The Court: And you know one of the most important things is that you're not to consider evidence that is not presented in this trial and not have it affect in any way your deliberations or your individual verdict in this case. Do you understand that?
"Juror No. 4: Yes.
"The Court: Can you do that?
"Juror No. 4: Yes.
"The Court: Will you promise to be fair to Mr. Hale in spite of what happened to you 40 years ago?
"Juror No. 4: Yes.
"The Court: Thank you. I'm satisfied.
"[Defense Counsel]: Thank you, your honor."
Defendant at no time asked the court to discharge Juror No. 4, to declare a mistrial, or to take any other action with respect to Juror No. 4. As far as the record reveals, Juror No. 4 did not thereafter inform the court that she felt she could not be fair, and she remained on the jury for the balance of the trial.
Defendant contends that Juror No. 4 committed misconduct by failing to disclose "her history and attendant bias," and the trial court erred by failing to discharge her, resulting in a violation of his right to an impartial jury.
We agree that Juror No. 4's failure to disclose during voir dire that she "was assaulted as a child" was misconduct that deprived defendant of the opportunity to exercise a peremptory challenge against her. Like Prospective Juror No. 9, she could have asked to address the court privately before the jury was sworn. But after Juror No. 4 revealed her history to the court and counsel, defendant never asked the court to discharge her and he thereby forfeited his appellate claim. (People v. Lewis (2009) 46 Cal.4th 1255, 1308 [forfeiture where defendant seemed satisfied and failed to object to continued service of juror who told her husband of her frustration with foreperson's conduct during deliberations]; People v. Stanley (2006) 39 Cal.4th 913, 950 [forfeiture where defendant failed to object to continued service of juror who read newspaper article about trial disclosing matters not presented to jury]; People v. Holloway (2004) 33 Cal.4th 96, 124 [forfeiture where defendant failed to object to continued service of juror who repeatedly asked for photos not introduced at trial and discussed court's denial of request with another juror]; People v. Gallego (1990) 52 Cal.3d 115, 188 [forfeiture where defendant failed to object to continued service of juror who read article about defendant and juror whom he told about article].) It appears from the above-quoted exchange that at the conclusion of the inquiry the court conducted at defense counsel's request, both the court and counsel were satisfied that the juror was not actually or potentially biased.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
MALLANO, P. J. We concur:
CHANEY, J.
JOHNSON, J.