Opinion
H043454
08-11-2017
THE PEOPLE, Plaintiff and Respondent, v. ARTHUR MCADORY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1090236)
Defendant Arthur McAdory was convicted of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1)), seven counts of false imprisonment (Pen. Code, §§ 236, 237), and seven counts of robbery (Pen. Code, §§ 211, 212.5, subd. (c)). The prior appeal resulted in reversal of the judgment with a limited remand for an evidentiary hearing on juror disqualification for possible bias. The disposition stated in relevant part: "If the trial court finds that there are no grounds for juror disqualification, the judgment shall be reinstated as of that date. If the trial court determines that it is not feasible to hold a hearing due to unavailability of these jurors or finds that there are grounds for juror disqualification, the prosecutor shall be afforded the opportunity to retry the case." After a hearing was held, the trial court found no basis for juror disqualification and ordered judgment reinstated. On appeal, defendant contends that the hearing proved inadequate to reconstruct events in connection with the racially charged remark concerning Juror No. 1's possible relationship to defendant. We affirm the judgment.
At the request of the parties, this court has taken judicial notice of the record on appeal in case No. H040483. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
I. Background
A. Prior Appeal
On October 8, 2013, the trial court held a hearing regarding the excusal of Juror No. 1. This court summarized the hearing in the prior appeal: "After the jury had begun its deliberations, it sent a note that Juror No. 1 had requested to be removed. The trial court questioned Juror No. 1 outside the presence of the other jurors. The juror, who was the only African-American on the jury, stated: 'During our deliberations, there have been some statements made that reference race and I felt very offended. I can't continue. I don't want to hear that's a part of their culture. I was asked -- they were talking about certain things and I was asked to let them know if I was related to the defendant.' She stated that it involved two jurors. Juror No. 1 explained: 'Well, in the first comment, we were discussing who would notify or tell their parent that they had committed a robbery. And in the deliberations, juror number two stated, well, that's a part of their culture.' Juror No. 1 understood the comment to be a reference to African-American culture. The juror continued: 'When I notified them this morning that I chose not to be a part of the panel anymore, he said he didn't intend for it to be a racist statement. He was making reference to where he grew up and that was a part of, you know, their culture, being he was Hispanic and grew up with a lot of Afro Americans. And I personally take that as a racist statement. . . . [¶] . . . [¶] . . . This morning he said including his own when I brought it back up.' [¶] As to the second comment, Juror No. 1 stated: 'One of the jurors, juror in seat number three, as we were exiting yesterday, they were wondering what would happen to the defendant's notepads and whether or not he was making reference to who we were. And they were saying, well, I don't think he knows our names. [¶] . . . So when they asked me -- the juror down here asked me to make sure I would let them know if I was related to the defendant. And when I told them this morning that I was very insulted by that because no one else was asked if they were related to the defendant. I'm the only Afro American juror in there.' She also indicated that she would be unable to deliberate in the case. [¶] After the juror left the courtroom, the trial court stated: 'Well, it's obvious to me that juror number one does not feel that she would be able to continue to serve as a juror in this case. We do have two substitute jurors. [¶] Based on what I have heard, it does not appear to me that this jury is basing its deliberations on race. The concern with regard to security happens in every -- I hear that from jurors in every single case where there is an allegation of armed conflict or assault. Jurors are always worried about what's going to happen with their personal information and their notes. [¶] The comment that she has described to the Court from juror in seat number two, No. 34 on the list, you know, appears to -- although I can see how it might have been taken as a racist comment -- it doesn't appear to the Court to have been intended as a racist comment. She is talking about some people in their culture would tell their parents everything, that others might not. I'm not hearing this directed at African Americans specifically, just a recollection that in different cultures, there's a different openness. At least that's the way I infer.' Defense counsel indicated that he wanted the trial court to investigate further and stated that '[f]rom her comments, it's hard to tell of course exactly what's going on.' [¶] Regarding the reference to culture, the following exchange occurred: '[DEFENSE COUNSEL]: The culture. Yeah. I mean, clearly -- I shouldn't say clearly -- to me that indicates at the very least a racial prejudice and a racial element being brought into the deliberations. And I don't think that's appropriate. I'm not sure -- [¶] THE COURT: In what respect does it represent a racial element reflecting on the fact that juror number one understood that he was explaining that he was referring to various cultures, including his own Hispanic culture: [¶] [DEFENSE COUNSEL]: That was his explanation today after the fact, after apparently -- I'm inferring -- felt apologetic or realized that he had said something to offend her and he had an explanation, I was referring to all culture or my culture. When she first described the comment, I believe she described it as clearly racial or racist. And I don't think it's appropriate. I'm not sure what I'm asking the Court to do, but I would at least like to investigate it or have the Court investigate it. [¶] I don't know the procedures that can be utilized, if any. I don't -- well, I'll leave this there. But I'm very concerned about the comments, judge, and all three of those comments I think concern me as there appears to be some racism has come into the deliberation process, and that's with juror number one present. [¶] So I'm concerned about it. [¶] [THE PROSECUTOR]: I agree with the Court's interpretation on that. I understand certainly how juror number one could have taken offense to that. I think that juror in seat number two -- again, we are all reading the tea leaves for lack of a better word -- we are not sure of what the exact context or the deliberation is. I'm in no way excusing that comment, but I'm just saying I think when he asked her to clarify, she said he told her he was referring to his own culture and where he grew up as well, and I don't think that equates to a discussion based on race or animus towards one race.' [¶] The trial court noted that Juror No. 1 was 'literally bristling' and was unable to continue deliberating. When the trial court indicated that it would excuse Juror No. 1, neither party objected. [¶] Following a recess, the trial court again questioned Juror No. 1 regarding whether she was unable to continue to deliberate. After the juror indicated that she was unable to do so, the trial court excused her. The trial court decided not to conduct further inquiry as to racial bias by other jurors. The trial court stated: 'There are two issues that seem quite obvious to me. The first is that juror in seat number one for whatever reason simply did not accept the explanation of juror in seat number two, No. 34 on the list, who the record should reflect is a very dark-skinned Hispanic gentleman, that he was making a reference, and even as he cited it, to his own culture. And because the statement was made in response to what appeared to be a general discussion of is it reasonable to think somebody would tell their dad they had just committed a robbery, I simply do see nothing in this that suggests that racism is somehow a basis for the jurors being prejudiced in such a way that it's influencing their decision making as with respect to the defendant. There is just nothing there in that to suggest that. [¶] With respect to the comment from a person she's unable to identify -- and I would point out that there is no one sitting in seat four or five who is a Caucasian man in his 50s with glasses. [¶] In fact, there is only one person in the front row who is a Caucasian man and he is, one has to assume, at the very least in his 60s and much more likely in his 70s. He is considerably older than anyone else on this jury panel and identifiable by that fact. The only other Caucasian person who has glasses is totally bald and sitting in the back row and appears to be substantially younger than in his 50s. [¶] So I just can't even begin to understand who she might be referring to. [¶] . . . [¶] [DEFENSE COUNSEL]: Judge, if I may. Juror in seat number 12, this morning I noticed had a pair of glasses in his pocket and he took them out and put them back. So he may wear them sometimes and not others. I don't know. [¶] THE COURT: All right. [¶] And he also appears to the Court in any event to be substantially younger than 50, of course maybe everyone is looking young to me these days. But the bottom line is it seems quite apparent to this Court that this was a very unfortunate and misplaced attempt at humor based very much on the way that juror number one described it, and her offense is something that this Court has no way to deal with other than to grant her request based on her indication that she is unable to continue deliberating. [¶] But there is nothing in either of those comments that suggests to this Court that the jury is improperly deciding this case. And I'm not going to inquire into the conduct of their deliberations further. [¶] However, in an abundance of caution, and as a reminder, and particularly because we are now inserting our alternate juror number one into the jury, and I'm going to have to instruct them in any event on starting their deliberations from the beginning, it would be my intention to read from CALCJIC 0.50, beginning only with the portion, you must accept and follow the law as I state it to you, and then must not be influenced by pity, prejudice, sympathy, public opinion and so forth. So just those two paragraphs I'm going to read back to the jury as a whole. [¶] That agreeable to both sides? [¶] [THE PROSECUTOR]: Yes, Your Honor. [¶] [DEFENSE COUNSEL]: Yes, Your Honor. [¶] THE COURT: All right. And I think that will hopefully resolve any issue that might exist, although quite frankly I don't genuinely believe there is one." The trial court then excused Juror No. 1.
B. Hearing on Remand
In February 2016, the trial court held the hearing on limited remand. Juror No. 1, the excused juror, was not present. Juror No. 2 recalled that he had said something during deliberations about "culture," which Juror No. 1 interpreted as racist. He explained that he "meant at the time, it's a -- like a culture of like people who get in trouble a lot that's -- I certainly did not mean anything with regards to color, race, ethnicity, or anything like that." He was shocked when she called him a racist. He told her that he was not referring specifically to African-Americans, but was referring to other cultures. None of the other jurors appeared to agree that something that he had said was racist and they did not participate in the discussion about the comment. Juror No. 2 denied that he or anyone else asked Juror No. 1 to let them know if she was related to any of the defendants. According to Juror No. 2, there was nothing in the jury's discussions or the manner in which it reached a verdict that suggested that the discussions or the verdict were based on racial bias or prejudice.
Juror No. 3 never heard a juror make a racial comment at any point when the jurors were together. She did not hear a comment about "culture" or anyone ask Juror No. 1 if she had a relationship or any kind of connection with defendant. According to Juror No. 3, there was nothing that occurred during deliberations or in the way that the verdict was reached that suggested that racial bias or prejudice by a juror influenced the process. She explained, "if there was, because I'm Mexican American, I think that would have affected me."
Juror No. 4 remembered that there was a disagreement between Juror No. 1 and the other jurors. "[S]he seemed to think that we were just dead set against convicting this guy without doing our jobs which we all firmly disagreed with." He remembered a discussion that had an "undertone" of race, but he could not remember anything specific. He did not remember a comment about "culture" or whether another juror asked her or made a comment as to whether Juror No. 1 was aligned with or related to defendant. There was nothing in the discussions during deliberations that suggested that the deliberations were being influenced by racial bias or prejudice. He also denied that racial bias or prejudice influenced how the verdict was obtained.
Juror No. 5 remembered that Juror No. 1 became "very defensive" during their discussions. "[S]he thought that some people were maybe ganging up on her, but it was really . . . we were just voicing a lot of our opinions and what we saw and what we believed in. And she didn't want to agree with a lot of the stuff that some of us were voicing." Juror No. 5 remembered a comment about "culture" and someone, later identified as Juror No. 2, saying "I'm not racist." "[A]t one point it's like she just checked out and got very defensive and wasn't listening to anybody . . . and she just didn't want to listen and didn't want to pay attention to anything. She was very firm on her decision and what she believed in." None of the jurors made a comment that Juror No. 5 considered racist. None of them said anything or acted in a way that suggested they were racially biased or prejudiced. Juror No. 5 did not remember anyone asking Juror No. 1 if she was aligned or associated with or related to defendant. According to Juror No. 5, there was nothing about the deliberations that caused her to believe that the deliberations or the verdict was affected by racial bias or prejudice.
Juror No. 6 remembered that Juror No. 1 became frustrated during deliberations. He "vaguely" recalled that "there was some comment of that racial bias," but he could not remember the specific incident. However, Juror No. 6 "at that time . . . did not believe that there was any racial bias at all." According to Juror No. 6, nothing occurred during deliberations or in the manner in which the jury reached the verdict that was influenced or affected by any racial bias or motive. Juror No. 6 recalled another juror asked Juror No. 1 to let them know if she was related to one of the defendants. When the trial court questioned Juror No. 6 further on this issue, he responded: "I'm going to take a step back on this because . . . I can't remember who may have stated that or where that impression may have come from, all I remember is that that person was pretty upset with the process that was happening. And all I know is that she was then requesting to be . . . dismissed from the jury panel." He could not "recall any other comments or statements made other than . . . remembering possibly someone asking that question whether there was any relationship and/or ties to the defendant." He did not remember any juror making a statement about culture.
Juror No. 7 did not hear any comment by a juror regarding culture or race that appeared to offend or insult Juror No. 1. She never heard anyone ask Juror No. 1 if she was aligned with or related to defendant. According to Juror No. 7, there was no comment or behavior that made her think that racial bias or prejudice was influencing deliberations or the verdict.
Juror No. 8, the foreperson, remembered that Juror No. 1 became upset with "a comment [Juror No. 2] made in describing the defendant, something to the effect of people like that, and then some description." Juror No. 8 did not think the comment was related to race, and when Juror No. 1 objected to the comment, Juror No. 2 "tried to explain what he had meant." Juror No. 8 did not recall anyone asking Juror No. 1 if she was related to any of the defendants. He thought that he would have recalled a comment like that. He did not observe anything that suggested that there was any racial bias affecting the deliberations or the verdict.
Juror No. 9 remembered that the issue of race did come up and was discussed openly. Juror No. 1 "seemed to be more sensitive about the way things were approached." Juror No. 9 remembered that Juror No. 2 made a comment "to the effect of that's part of the culture" and Juror No. 1 objected to the comment. Juror No. 2 was offended by Juror No. 1's response and he talked about his Hispanic culture. Juror No. 9 did not recall anyone else finding the juror's comment as offensive as Juror No. 1 did. According to Juror No. 9, nothing occurred during deliberations that led him to believe that racial bias or prejudice played a role in the discussions or influenced the verdict. He did not ask Juror No. 1 if she was related to or aligned with defendant and he did not recall if anyone else did.
Juror No. 10 remembered that there was "a little bit of a difference of opinions" between Juror No. 1 and one of the other jurors immediately before she requested to be removed. He did not remember the details. He did not remember anyone making a comment regarding culture during deliberations that offended Juror No. 1. He did not remember anyone making a comment or asking Juror No. 1 if she was aligned or related to defendant. There was never any conduct or comment that caused him to believe a juror was demonstrating racial bias or prejudice. He was "totally surprised" when "[a]ll of a sudden she went bananas and took it completely different and she said she was going to go. But [he] did not see anything that would have been cause from [his] viewpoint." According to Juror No. 10, there was nothing he heard or saw that caused him to believe that the verdict was influenced by racial bias or prejudice.
Juror No. 11 recalled that one of the jurors asked Juror No. 1 "are you or is the family member being like threatened for you to -- kind of like I guess influencing her thought process or something." He did not recall anyone asking her if she was associated with, aligned with, or related to defendant. He did not recall any juror making a comment related to culture. He did not recall any comment that he construed as racist or demonstrating racial bias or prejudice, but he probably would have remembered if something like that had happened. Juror No. 11 did not recall whether Juror No. 1 accused a juror of racism. There was nothing that caused him to believe that deliberations or the verdict was influenced by racial bias or prejudice.
Juror No. 12 remembered that Juror No. 1 was "quite difficult" and he was "completely shocked" when she said that the other members of the jury were "biased and racist." He never heard a comment about "culture" or anything that suggested any kind of racial bias or prejudice. He did not remember anyone asking her if she was aligned with or related to defendant. There was nothing about the deliberations that led him to believe that racial bias was affecting the deliberations or influenced the verdict. Juror No. 12 was "deeply offended" by her accusation and did not know the basis for it. According to Juror No. 12, Juror No. 1 "was completely shut down. [¶] She did not want to go over anything. She did not want to participate. She felt everybody was against her. And it was not the case at all. We were all trying to keep an open mind. We were all trying to address things and she kind of removed herself."
C. The Trial Court's Ruling
The trial court stated that it distinctly remembered Juror No. 1's request to be excused. The trial court explained that when the juror made the request "she was angry and she was emphatic, and it was absolutely clear to this court that there was a significant division between her and the remaining jurors." The trial court noted that Juror No. 1 was unable to identify the person who made the statement regarding whether she was aligned with defendant even though the jurors had spent "a number of days in their respective seats" in court and had begun deliberations. The trial court stated: "What's really significant to this court is the repeated descriptions by a number of our jurors about the polarization of that jury panel based not on anything having to do with race, or bias or prejudice, but on the fact that it appears that during the discussions of the evidence, juror number one was on the opposite side of most of those discussions from the remaining jurors. [¶] . . . [¶] I do not believe, and particularly after speaking to these jurors recently, that 11 other jurors would actively conceal, or even attempt to conceal, the existence of a juror who made a statement so racist or so profoundly demonstrating, or even not profoundly, by demonstrating any form of bias or prejudice, that 11 of them would lie, cover that up, be so adamant that at the time when all this occurred -- and although none of them have a very distinct memory of words spoken and so forth -- what they did remember distinctly was they were all, those that remembered it, surprised that juror number one started making allegations of racism during the jury deliberations. I think two of them said they were shocked it was so well concealed to all of the other jurors. [¶] . . . [¶] I just don't believe frankly what juror number one told us. From everything I observed and from everything I have heard, she became isolated, not because of her race, but because of the position she was taking and the method by which she was deliberating, and her sense that because she was on one side and 11 jurors were on the other, that she was in some way feeling singled out. [¶] There simply, in this court's view, is nothing that would justify construing, one, anything that juror number two said as racist or evidencing a racial bias or prejudice, and I'm not confident about that the second statement even occurred, except to the extent that one juror remembers something sort of along those lines which had to do with are you afraid for your family. I'm just not confident that that statement as juror number one described it ever actually occurred. [¶] I don't believe there is any evidence here that would justify disqualifying any of the 11 jurors who we questioned, which is all of them, on the basis of bias. [¶] I think it's also significant, perhaps to a less extent, that the alternate juror who was substituted in after juror one was excused was also an African American man. And he felt that during the time he deliberated -- of course deliberations started over from the beginning -- he felt that there was no evidence whatsoever of any kind of bias or prejudice. And significantly, it took the jury very little time to reach a verdict once he was substituted in. [¶] So I do find that there is no basis. And based upon the order of the remittitur of the Sixth District, the judgment is therefore reinstated."
II. Discussion
Defendant contends that "the reconstruction of the events and circumstances surrounding the remark about Juror No. 1's possible relationship to defendant was rendered unfeasible by the passage of time and by the possible evasion of the juror who uttered the remark." We disagree.
The Sixth Amendment right to a trial by jury includes the right to unbiased and unprejudiced jurors. (People v. Taylor (1992) 5 Cal.App.4th 1299, 1312.) In conjunction with this right to an impartial jury, the due process clause of the Fourteenth Amendment requires an inquiry into a juror's possible racial prejudice. (Rosales-Lopez v. United States (1981) 451 U.S. 182, 190.) A postjudgment hearing to determine any such prejudice may satisfy the requirements of due process. (Smith v. Phillips (1982) 455 U.S. 209, 217.)
The hearing on remand in the present case was tantamount to a motion for new trial based on juror disqualification. When the defendant has alleged juror misconduct, " '[t]he determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.' [Citations.]" (People v. Williams (1988) 45 Cal.3d 1268, 1318, abrogated on other grounds in People v. Diaz (2015) 60 Cal.4th 1176.)
Here, the trial court specifically found Juror No. 1 not credible. As the trial court noted, Juror No. 1 was unable to identify the juror who allegedly questioned her about her relationship to defendant. Further, none of the jurors corroborated Juror No. 1's allegation. Juror Nos. 2, 3, and 7 denied that any juror had asked Juror No. 1 about her relationship to defendant. Juror No. 8 did not remember the question, but thought that he would have recalled it if it had been asked. Juror No. 9 stated that he did not ask this question, but he did not recall if any other juror had. Juror Nos. 4, 5, 10, and 12 did not remember any juror asking this question. Juror No. 11 remembered that Juror No. 1 had been asked whether she or a family member was being threatened and whether this was influencing her "thought process." Juror No. 6 initially recalled that another juror asked Juror No. 1 if she was related to one of the defendants. Upon further questioning by the trial court, however, Juror No. 6 stated: "I'm going to take a step back on this because since I can't remember who may have stated that or where that impression may have come from, all I remember is that [Juror No. 1] was pretty upset with the process that was happening." That some of the jurors were unable to recall Juror No. 1's allegation was not necessarily due to the passage of time. Given that some jurors denied that any juror made the comment, others most likely did not remember it because it was never made. This conclusion was supported by the testimony of each juror that nothing occurred during deliberations that caused him or her to believe that the deliberations were affected by racial bias. Based on this record, we reject defendant's contention that the "passage of time preempts any confidence that the court was able to draw evidentiary inferences reliable enough to render the limited hearing remand sufficient and fair." (Italics omitted.)
Defendant also suggests that one of the jurors may have been evasive. However, any such evasiveness would presumably have been present at the time of trial and thus was not due to the passage of time. In any event, the determination of credibility was for the trial court. (People v. Nesler (1997) 16 Cal.4th 561, 582.) --------
III. Disposition
The judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.