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People v. Averett

California Court of Appeals, Fourth District, First Division
Jul 8, 2008
No. D050673 (Cal. Ct. App. Jul. 8, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. WARREN AVERETT, Defendant and Appellant. D050673 California Court of Appeal, Fourth District, First Division July 8, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. SCE265062 William J. McGrath, Judge.

McINTYRE, Acting P.J.

Warren Averett appeals a judgment convicting him of one count each of assault with a deadly weapon likely to produce great bodily injury and battery with serious bodily injury. He contends that the trial court committed prejudicial error by (1) dismissing the only juror of his same race (African-American) from the jury panel during the jury's deliberations and (2) improperly instructing the jury on the lesser included offenses of simple assault and simple battery. We find his arguments unavailing and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

One evening while Averett was at a night club, his friend (Kevin Barlow) got into an altercation with one of the club's bouncers (Donald Hartley) just outside the front door of the club. Returning to the club from a nearby convenience store, Averett saw Hartley pinned on the ground under Barlow and threw a 30-pound bar stool toward the men. The bar stool hit Hartley in the face, cracking several of his teeth and cutting his lip; the incident broke up the altercation, allowing Barlow time to get up, brandish a knife and flee the scene; Averett also ran away. Averett was ultimately caught, arrested and charged. (Barlow was also arrested and later pleaded guilty to undisclosed charges arising out of the incident.)

At trial, Averett contended that he had acted in lawful defense of Barlow, that he had merely "tossed" the stool without any intent to injure anyone and that Hartley did not suffer great bodily injury as a result. A jury convicted Averett and found true allegations that he used a deadly weapon and caused great bodily injury. The trial court sentenced Averett to the middle term of three years on the assault count, plus a consecutive three-year term for the great bodily injury enhancement, stayed sentence on the battery count and dismissed prison prior allegations set forth in the complaint. Averett appeals.

DISCUSSION

1. Removal of Juror No. 11

The jury began deliberating in the afternoon of Thursday, January 25, 2007. The next morning, Juror No. 11 called the court and left a message that he was ill and would not be able to come in that day. The court confirmed that Juror No. 11 indeed sounded "100 percent sick" and invited stand-in counsel (neither the prosecutor nor the defense attorney were present at court that morning, but each had sent another attorney to represent his and her side, respectively) to listen to the message themselves. The court informed counsel that Juror No. 11 was the only African-American juror on the panel and also indicated that the alternate juror (who was not African-American) had been contacted and was ready to report in if needed.

The court expressed that its inclination was to excuse Juror No. 11 from further service because "delay[ing] continued deliberations over the weekend . . . would be a tremendous inconvenience" for the remaining jurors. It also noted that Juror No. 11 had told the court clerk that he thought he would probably be available if deliberations started again on the following Monday, but indicated that the inconvenience to the other jurors of putting over deliberations for the weekend was greater than putting the matter over one day during the week.

The prosecution's representative took no position on the issue, although the defense representative argued that the jury had not been deliberating very long, that the court's release of Juror No. 11 from service would detract from Averett's right to a trial by a jury of his peers and that the court should not excuse Juror No. 11, but instead defer deliberations. After indicating that the situation was complicated by the fact that Juror No. 11 was the only juror who was of the same race as Averett, the court concluded that it was nonetheless going to "do the same thing that I would have done if [Juror No. 11] had not been African-American, and that is [to] excuse him," which it thereafter did. The jury began deliberations anew and, after requesting a read back of certain trial testimony, reached a verdict that afternoon. On appeal Averett argues that the court violated his right to a trial by a jury of his peers, and abused its discretion, by excusing Juror No. 11.

Pursuant to Penal Code section 1089, "[i]f 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, . . . 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." This process for substituting jurors "preserves the essential features of the jury trial required by the Sixth Amendment and due process clause of the Fourteenth Amendment." (People v. Bowers (2001) 87 Cal.App.4th 722, 729.)

The determination of whether there is good cause to substitute a juror rests in the sound discretion of the court. (People v. Thomas (1994) 26 Cal.App.4th 1328, 1332-1333; accord, People v. Holloway (2004) 33 Cal.4th 96, 124-125.) The court's decision to substitute a juror will be upheld so long as the juror's inability to perform his or her functions appears in the record as a "demonstrable reality" and its finding of good cause is supported by substantial evidence. (People v. Cleveland (2001) 25 Cal.4th 466, 474; People v. Thomas (1994) 26 Cal.App.4th 1328, 1332-1333.)

Averett specifically contends that the court's stated reason for dismissing Juror No. 11 was "illogical" since juries do not deliberate over the week-end and that the real basis for its ruling was an "eagerness to be finished with the case[.]" We disagree with these characterizations. The court's stated reason for replacing Juror No. 11 was to avoid the inconvenience to the other jurors of having deliberations put off and being required to return to court at the beginning of another work week rather than potentially completing their deliberations on that Friday. Given the very short nature of this trial (the parties' presentation of the evidence in this case took less than three hours), the court's stated reason for its decision was not in the least bit illogical. Further, to the extent that Averett suggests that the court made its decision for its own convenience, there is simply no basis in the record to support this suggestion.

Averett argues, however, that the court failed to properly consider his constitutional rights in reaching its decision. In this regard, we find this court's analysis in People v. Bell (1998) 61 Cal.App.4th 282 (Bell) enlightening. There, the trial court discharged a juror on the second day of trial after the juror called in to inform the court he had to take his son to the doctor due to a medical emergency. (Id. at p. 287.) Although the juror did not disclose details about the nature of the emergency, he indicated he anticipated being able to return to court that afternoon at the earliest. Bell, who was an African-American man being tried for third strike offenses, asked that the court continue the trial to later in the morning (when the juror was supposed to call the court with an update of his situation) or to the afternoon and argued that, in light of the fact that the juror in question was one of two African-Americans, and the only African-American male, on the panel, a release of the juror would upset the racial balance of the jury. (Bell, supra, 61 Cal.App.4th at p. 287.) Based on the juror's inability "to make any firm commitments regarding when he would return" and in light of the number of witnesses scheduled to testify that day, the court declined Bell's request and instead replaced the absent juror with an alternate. (Id. at p. 288.)

On appeal, this court found no abuse of discretion in the decision to discharge the juror "given the uncertain timing of his return and the fact so many jurors, alternates, and witnesses were waiting[.]" (Bell, supra, 61 Cal.App.4th at p. 289.) We recognized the importance of jury selection and Bell's understandable disappointment in losing that juror, but noted that he could not "reasonably expect the court system to be placed in 'park' in the hope that an ostensibly favorable juror will return at some future time." (Ibid.) We also rejected Bell's argument that the discharge of the juror violated his constitutional rights because although discharging a juror based on race would contravene constitutional principles, "discharging a Black person from jury service upon a finding of good cause, due to a family illness or injury, plainly does not." (Ibid.)

Admittedly, the facts of Bell are somewhat different than the facts of this case since the juror's unavailability arose during the evidence phase of the trial, such that a delay would have kept witnesses and attorneys, as well as other jurors, waiting. However, a trial court does not abuse its discretion by virtue of the fact that the need to substitute a juror, and thus the substitution itself, occurs only after deliberations have started. (See People v. Collins (1976) 17 Cal.3d 687, 694-695, fn. 4). Further, although the unavailable juror in Bell was one of two African-American members of the jury panel, whereas Juror No. 11 was the only African-American member of the panel in this case, it remains that, as in Bell, good cause nonetheless existed for his replacement. In addition, the delay in Bell was potentially limited to a portion of the trial day, whereas the delay required by Juror No. 11's absence was going to be at least an entire day.

Notwithstanding the factual differences between the cases, the application of the analysis of Bell leads to the conclusion that there was no abuse of discretion in the decision to replace Juror No. 11. As in that case, there was good cause to release Juror No. 11 based on his illness and because of the existence of such good cause, the court's decision did not violate Averett's constitutional rights.

2. Instructions Regarding Lesser Included Offenses

Even in the absence of a formal request, a trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence. (People v. Blair (2005) 36 Cal.4th 686, 744.) Thus, the court must instruct its jury on all the elements of the charged offenses (People v. Cummings (1993) 4 Cal.4th 1233, 1311), as well as on any lesser included offenses as to which there is evidentiary support, i.e., lesser included offenses of a greater offense as to which the evidence may or may not establish all of the elements. (People v. Breverman (1998) 19 Cal.4th 142, 154 [the court must instruct on lesser included offenses supported by the evidence, even over the defendant's objection].)

Here, the court instructed the jury on the elements of aggravated assault and aggravated battery and, with the consent of both counsel, purported to instruct the jury as to the lesser included offenses of simple assault and simple battery by simply adding "Simple assault: Same definition minus 'with a deadly weapon'" and "Simple battery: Same definition minus element #2 (serious bodily injury)," respectively, to those instructions and giving similar oral directions to the jury. (Copies of those written instructions are attached to this opinion.) Understanding that the court provided these instructions for time-saving reasons, we nonetheless reject the Attorney General's argument that this technique satisfied its obligation to fully instruct the jury on the relevant principles of law and on each of the elements of the offenses the jury was to consider.

Having so found, however, we also conclude that this error (even when coupled with the prosecutor's unfortunate argument that the jurors should simply "throw[] [the lesser included verdict relating to simple assault] in the trash" if they found Averett had committed assault with a deadly weapon, a comment that the court promptly clarified) was in any event harmless under the circumstances presented. The verdict forms required the jury to find not only whether Averett committed aggravated assault and aggravated battery, but also to make findings on the enhancement allegations, to wit, whether, in committing the offense, he used a deadly weapon and inflicted great bodily injury on Hartley. The jury made affirmative findings on those allegations, thus negating the possibility that it would have found Averett guilty of simple assault and/or simple battery if the court had properly instructed it on those lesser included offenses. For this reason, the court's error in instructing the jury on the lesser included offenses was harmless. (E.g., People v. Beames (2007) 40 Cal.4th 907, 929.)

Although the error here was harmless, we emphasize that the technique the trial court used in instructing the jury regarding the lesser included offenses was not acceptable and should not be used in future.

DISPOSITION

The judgment is affirmed.

WE CONCUR: O'ROURKE, J., IRION, J.


Summaries of

People v. Averett

California Court of Appeals, Fourth District, First Division
Jul 8, 2008
No. D050673 (Cal. Ct. App. Jul. 8, 2008)
Case details for

People v. Averett

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. WARREN AVERETT, Defendant and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Jul 8, 2008

Citations

No. D050673 (Cal. Ct. App. Jul. 8, 2008)