Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 202613
Richman, J.
Defendant Erdenechuluun Batochir was admitted to probation for six years after a jury found him guilty of the lesser included charges of battering a cohabitant (Pen. Code, § 243, subd. (e)(1)) and misdemeanor false imprisonment (Pen. Code, §§ 236, 237, subd. (a)). On this timely appeal, he contends that the trial court abused its discretion by: (1) denying his motion for a mistrial made on the ground that the court failed to make an “adequate inquiry” into whether a juror removed for misconduct had tainted the jury; (2) again, failing to make an “adequate inquiry” into the ability of another juror to continue deliberating; and (3) imposing as a condition of probation a requirement that defendant submit to warrantless searches and seizures. We conclude that no abuse of discretion is shown, and affirm.
BACKGROUND
The limited nature of the charges of which defendant was convicted, and the scope of the contentions he raises on this appeal, do not require a detailed recital of the evidence introduced at the trial. The following abbreviated narrative suffices to resolve those contentions.
On the evening of May 18, 2007, Amarzaya Avarzed was walking to meet a friend for dinner when she saw defendant, her “boyfriend” at the time, in his car. After entering the vehicle, she asked defendant if he would drive her to the restaurant. He responded, “No, I’m going to... the ocean to kill you.” Ms. Avarzed tried to escape from the car, but defendant locked her in. She tried to kick out the windshield. She tried to crash into parked vehicles on the street, but defendant smashed her face, breaking and loosening several teeth.
A passenger in the vehicle behind defendant’s observed these events. Defendant’s car slowed to a stop, and Ms. Avarzed was able to open her door and escape. Police arrived at the scene and arrested defendant.
As a result of this incident, a four-count indictment charged defendant with committing the following offenses against Ms. Avarzed: (1) threatening to commit a crime entailing death or great bodily in jury (Pen. Code, § 422); (2) inflicting “corporal injury resulting in a traumatic condition” against a cohabitant (Pen. Code, § 273.5, subd. (a)); (3) assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)); and (4) felony false imprisonment (Pen. Code, § 236.) All of the counts but the first included an enhancement allegation that during the commission of the offense defendant had personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (e)).
The crucial events for this appeal occurred after the case was given to the jury. The jury was instructed and began deliberating on the morning of November 5, 2007. They deliberated the rest of the day without reaching a verdict.
The jury continued deliberating throughout the morning of November 6. About 2:30 in the afternoon, the court received this note from the jury: “One of the jury has stated that she was herself a victim of domestic violence where she was knocked out and her arm was broken. Does this disqualify her? This was not mentioned during jury selection.”
The court immediately spoke with Juror No. 4. No other members of the jury were present. The court stated “it has been brought to my attention that you yourself were a victim. You’ve been a victim of domestic violence, correct?” When Juror No. 4 admitted this was true, the court questioned her as to why she had not mentioned it during voir dire. Further questioning elicited Juror No. 4’s opinion that her own experience would not affect her ability to be impartial. After consulting with counsel, the court discharged Juror No. 4 and decided to replace her with an alternate. The court then advised the jury of the change, and directed them to restart deliberations the next morning.
At this point the following exchange occurred between the court and one of the jurors:
“JUROR NO. 9: What happens to where we are at this point, do we start all over again tomorrow?
“THE COURT: Yes, you do, and I’ll be giving you an instruction.
“JUROR NO. 9: I feel I can’t continue on much, ma’am.
“THE COURT: Sir, that’s what I’m going to need for you to do. I am going to be bringing in the alternate juror. I’ll be giving you the instruction, and I’ll be asking you to do the best you can.
“JUROR NO. 9: I don’t think I can, ma’am. I understand what you’re saying.
“THE COURT: Sir, that’s what I’m going to need for you do tomorrow. If there are problems that develop tomorrow, I’ll take that up tomorrow. But at this juncture, that’s what I’m required by law to do, so that’s what we’re going to have to do.
“Sir, I understand your concerns, but let’s just proceed in this fashion, and if you could, please, everyone needs to be here at 9:00 a.m., and I will give you a further instruction at that time.
“JUROR NO. 9: So we get to talk to you tomorrow at 9:00 a.m.?
“THE COURT: Yes, I will be here. The alternate juror will be here. I’m going to give you an instruction, and I am going to ask you to go back into the deliberating room.
“JUROR NO. 9: I don’t think I can go back into that room, ma’am. I’ll try, but I
“THE COURT: All right. Well then, what I’m going to do at this juncture then, I’m going to instruct all jurors, except Juror No. 9, everyone is excused and Juror No. 9, you need to remain behind.”
When the other jurors had left, the court addressed Juror No. 9;
“THE COURT.... [¶] All right. Juror No. 9, just so you understand, this is the court proceeding when a substitute juror, an alternate juror needs to be brought in. What I’m asking you is—or advising you is that you need to return tomorrow at 9:00 a.m. The alternate juror will be sworn and will accompany you. You will then have 12. You need to go back into the jury deliberating room and I will be giving you further instruction. [¶] Are you telling me you will not do that?
“JUROR NO. 9: I’m telling you I will try my best to do that; however, I’m telling you it is putting a huge strain on myself physically.
“I sit in that room with 11 other people and my blood pressure goes up and it goes down. I put in for a hardship so I wouldn’t have to be in the position that I’m in.
“It’s an extremely uncomfortable place to be in, sitting in that room, so I’m just telling where I’m at. It is not a day of me sitting back there deliberating. It’s a day of me sitting back there just uncomfortable.
“So I’m telling you that I don’t feel healthy sitting back there. I will go through this and keep going, but I just feel a tremendous amount of pressure sitting on top of me sitting there listening to these people deliberate. It’s incredibly frustrating.
“THE COURT: Sir, one thing that may assist perhaps just slightly, maybe I’m not giving or offering enough breaks for everyone.
“JUROR NO. 9: That won’t help me and I’ll tell you why, then I think this is going to last longer. More breaks means that—every time we take a break, I think we should be finishing this off.
“THE COURT: I thought of that to try to continue this afternoon, but felt given the lateness of the hour, I didn’t want you all to keep waiting further, further for the alternate juror.
“What I would ask, sir, please, if you could, just perhaps go home, take a little walk, do something to try to relax tonight, and please return here promptly at 9:00 a.m. And if there becomes a problem later in the day, just let me know, but I would ask that you continue the service that you have undertaken.
“JUROR NO. 9: The alternate [sic] is that basically I’m going against a court order and I am in violation of the law? I don’t know the legality, is what I’m asking.
“THE COURT: Sir, at this juncture I’m instructing you to please return tomorrow morning at 9:00 a.m.”
After the juror left the courtroom, defense counsel stated: “Your Honor, I do have one concern regarding... the last juror. I was wondering if perhaps tomorrow you could ask him how is the way he’s feeling affecting his ability to deliberate, if, in fact, he’s deliberating at all.” The court did not directly respond, but ordered both alternates to report the following morning.
On the morning of November 7, with the jury waiting and while waiting for defendant to “arrive,” the court told counsel: “I just want to let both counsel know at the outset, and I will give you an opportunity to make a record later, but at this juncture, barring something further, I am not going to ask further questions of Juror 9.
“The reason I’m not going to do so is based on what he said yesterday. I don’t have enough information that there is juror misconduct. I think it would be inappropriate for me to press further and inject myself into the deliberation process.
“So at this time the court’s intention is to have the alternate juror sworn in as a regular juror and give the jurors their instruction: They need to commence anew their deliberations.
“All right. We now have Mr. Batochir present with the Mongolian interpreter. [¶] If we could bring the jurors in.”
At this point defense counsel addressed the court:
“MR. STREETS: Your Honor, if I could have just one moment regarding the juror that you’re referring to. [¶]...[¶] Yes, Juror No. 9. I’m concerned about his ability to deliberate or if he’s deliberating at all, given his statement regarding his health, saying that his blood pressure is going up and his blood pressure is going down, that it’s an unhealthy situation with him with him being there with 11 other people.
“So I would ask the court to ask him whether or not he’s—whether it is affecting his ability to deliberate, because if he’s not deliberating, it does no good to have him back there.
“THE COURT: I am going to give my instruction ordering everyone to begin anew their deliberations. I understand the points you are raising, but I also understand it is very stressful for all the jurors. They have now been deliberating almost two full days, so I think it’s—his comments the court is interpreting are very normal and to be expected, frustrations from sitting in a closed room for two days and having to begin anew, but I certainly understand the concerns you’re raising and I will just take these issues up as they come, but at this time, I don’t have enough there to imply some kind of jury misconduct. [¶] So at this point I am not going to ask further questions.
“MR. STREETS: Your Honor, just a head’s up, I’m also going to be moving for mistrial. I’ll wait until you call the jurors in and send them back to deliberate.”
After the court did so, defense counsel made his mistrial motion:
“MR. STREETS: It is my concern that Juror No. 4, who was excused yesterday, tainted the jury deliberations with her talk about her experiences—her past experience as a victim of domestic violence and what happened to her.
“We don’t know the full scope of what she disclosed to the other jurors during the deliberations, but we do know that she disclosed that she was as victim of domestic violence, that she was knocked out, and that her arm was broken. [¶] Based upon that, Your Honor, I am asking the court to declare a mistrial.
“MR. HERDANDEZ [the prosecutor]: Your Honor, I think a mistrial is not necessary at this point. I think the fact that the foreperson sent out a note indicating that a specific juror brought that up indicates that they were concerned whether or not that was something that was appropriate to be addressed by one of the jurors or be brought up by one of the jurors.
“I think the fact that they brought that up as a concern gives us some safety, in that the fact that they were aware that may be something they should not be discussing.
“The court instructed them—or replaced that juror and instructed them to begin anew and disregard what took place previously. So I think the instruction the court gave them will be enough to sanitize any prior discussions that occurred during deliberations.
“MR. STREETS: Well, the problem is that once something like that gets into somebody’s head, they’re not going to be able to get it out. Yes, they have been told and admonished by the court to start anew with their deliberations, but it’s still going to be in their head and on their minds. It’s going to be almost impossible to disregard it and forget about it. You’re not going to forget a story like that. [¶] On that I will submit, Your Honor.
“THE COURT: Very well. Additionally, not only did I advise the jurors to begin anew, but also advised them not to consider the substitution for any purpose. [¶]... [¶] At this juncture, based on the admonition that I gave the jury, the motion for mistrial is denied.”
The jury found defendant not guilty of the felonies of making a criminal threat, inflicting traumatic injury, and felony false imprisonment, as charged in counts I, II, and IV, respectively. It found him guilty on count II of the lesser included charge of misdemeanor battery, and guilty on count IV of the lesser included charge of misdemeanor false imprisonment. The jury was unable to reach a verdict as the felony assault charge; as to it the trial court declared a mistrial.
On January 13, 2007, the trial court suspended imposition of sentence and admitted defendant to three years probation for each of the misdemeanors. Among the conditions were that defendant serve 179 days in county jail (the amount of time he had already spent in that institution), and that “Defendant is subject to a warrantless search condition, as to defendant’s person, property, premises, and vehicle, any time of the day or night, with or without probable cause, by any peace, parole or probation officer.” The court also granted the prosecution’s motion to dismiss the assault charge on which the jury had deadlocked.
DISCUSSION
The Trial Court Did Not Abuse Its Discretion In Denying Defendant’s Motion for Mistrial
Defendant first contends that the trial court abused its discretion when it denied his motion for mistrial. Defendant asserts the trial court prejudicially erred when it “failed to conduct a sufficient inquiry into whether Juror Number 4’s misconduct affected the remaining jurors’ ability to be fair and impartial.” This contention lacks merit.
The denial of a motion for a mistrial is reviewed for abuse of discretion. (People v. Welch (1999) 20 Cal.4th 701, 749.) The motion should be granted only when “ ‘ “a party’s chances of receiving a fair trial have been irreparably damaged.” ’ ” (People v. Ayala (2000) 23 Cal.4th 225, 282.) “ ‘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.]’ [Citation.]” (People v. Wallace (2008) 44 Cal.4th 1032, 1068.)
Several preliminary observations are in order. First, it is unquestioned that Juror No. 4 committed misconduct by not revealing during voir dire that was herself a victim of domestic violence. It is also clear, as evidenced by the jury’s note to the trial court, that this aspect of her background became known during deliberations. And there is no dispute that the trial court properly removed her from the jury.
Second, there is a real question whether defendant’s mistrial motion was timely. Juror No. 4 had already been removed, replaced with an alternate, and the reconstituted jury had resumed deliberating. As previously mentioned, the court consulted with counsel prior to the actual removal, but there is no indication that defendant suggested questioning other jurors. Put another way, there is nothing to show that defendant’s counsel did not acquiesce in the court proceeding as it did. Thus, it may be doubted whether making a mistrial at the later point provided the trial court with a full opportunity to question the original panel, as defendant appears to assume. Nevertheless, we shall accept the motion as sufficient to preserve this issue for review.
Even so, we cannot discern an abuse of discretion. Perhaps the most potent aspect of the trial court’s “considerable discretion” in this area, and the one most worthy of a reviewing court’s deference, is the trial court’s reading of the jury. It is the trial court which has overseen the jury’s selection, and observed its collective demeanor during the trial. How to respond to juror misconduct is an integral part of that discretion:
“Although courts should promptly investigate allegations of juror misconduct ‘to nip the problem in the bud’ [citation], they have considerable discretion in determining how to conduct the investigation. ‘The court’s discretion in deciding whether to discharge a juror encompasses the discretion to decide what specific procedures to employ including whether to conduct a hearing or detailed inquiry.’ [Citation.]” (People v. Prieto (2003) 30 Cal.4th 226, 274.)
Here, the trial court responded instantly when apprised of the problem. It quickly ascertained that misconduct had occurred, and that it required the juror’s removal. However, it also implicitly decided that inquiry among the jury was not necessary, a decision defense counsel did not challenge at the time. The court could not but be impressed by the fact that the misconduct had been discovered and reported by the other jurors. With more than hypothetical justification, the court could—and obviously did—determine that such a jury would be more than commonly obedient to an instruction that the removal of Juror No. 4 was to have no significance in the jury’s restarted deliberations.
Defense counsel’s fear that “once something like that gets into somebody’s head, they’re not going to be able to get it out” clearly did not materialize. Whatever impact Juror No. 4 revelation may have been, it did not transmogrify into the jury’s blanket acceptance of Ms. Avarzed’s version of events. The fact that this jury had already deliberated for the better part of two days, and that it brought the matter of Juror No. 4’s statements to the court’s attention, clearly shows that it was in no rush to convict. Moreover, considering that defendant had five felony charges and serious enhancements made against him, yet the jury found him guilty of only two lesser included misdemeanors, is eloquent proof that it did not fail in its duty to act impartially, thus vindicating the trial court’s determination that defendant’s “ ‘ “chances of receiving a fair trial ha[d] [not] been irreparably damaged.” ’ ” (People v. Ayala, supra, 23 Cal.4th 225, 282.) There was consequently no abuse of its “considerable discretion” in denying defendant’s mistrial motion without further inquiry. (People v. Wallace, supra, 44 Cal.4th 1032, 1068; People v. Prieto, supra, 30 Cal.4th 226, 274.)
The Trial Court Did Not Abuse Its Discretion In Connection With Juror No. 9
Defendant next contends, to quote the caption of his brief, that “the [trial] court abused its discretion in failing to adequately inquire as to whether Juror Number Nine’s health prevented him from deliberating.” We do not agree.
Again, our factual deference to the trial court is at its zenith. It was the trial court, not this court, which had observed Juror No. 9, from voir dire to the time he made known his situation to the court. The trial court heard him, looked him in the eye, and, in light of his words, took the measure of his ability to proceed, incomparable advantages denied to us from the cold pages of the reporter’s transcript. The excerpts quoted above were a completely adequate basis for the trial court to conclude that Juror No. 9 could be relied upon to discharge his function as a juror as deliberations began from square one.
This is not, as defendant characterizes it, “a silent record.” Sensitive to its duty not to “inject myself into the deliberation process,”) the trial court clearly believed it had enough information so that it could reach a decision even though “I am not going to ask further questions.” (Italics added.) For the reasons stated above in connection with the removal of Juror No. 4, we also conclude that no demonstrable abuse of discretion is shown with respect to the trial court’s decision not to inquire further as to Juror No. 9.
Defendant’s concluding argument, which encompasses the removal of Juror No. 4 and the lack of further questions as to Juror No. 9 is that the trial court’s asserted “failures” qualify as a violation of his rights under both the United States and the California constitutions to an impartial jury. Our conclusion that the absence of an abuse of discretion in either particular is amply sufficient to establish no constitutional violation. (See People v. Pinholster (1992) 1 Cal.4th 865, 928 [“failure to conduct a sufficient inquiry is ordinarily viewed as an abuse of discretion, rather than as constitutional error”].)
No Error Occurred When The Trial Court Imposed A Search Condition As A Condition Of Defendant’s Probation
Defendant claims the search condition is invalid under the tripartite-standard of People v. Lent (1975) 15 Cal.3d 481. Realizing that the Attorney General would argue that his failure to object to the condition at the time of sentencing waived the claim, defendant argues that his trial counsel was constitutionally ineffective for not raising such an objection.
Our Supreme Court recently summarized the governing principles: “ ‘Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. [Citations.] The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. [Citations.]...’ [Citations.] Accordingly, the Legislature has empowered the court, in making a probation determination, to impose any ‘reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to the person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer....’ (Pen. Code, § 1203.1, subd. (j).)...
“We review conditions of probation for abuse of discretion. [Citations.] Generally, ‘[a] condition of probation will not be held invalid unless it “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality....” [Citation.]’ (Lent, supra, 15 Cal.3d at p, 486.) This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality. [Citation.]” (People v. Olguin (2008) 45 Cal.4th 375, 379 380.)
In People v. Balestra (1999) 76 Cal.App.4th 57, the court imposed a warrantless search condition on a defendant convicted of committing willful cruelty on an elder. The Court of Appeal held that the condition was not an abuse of the trial court’s discretion: “[W]arrantless search conditions serve a valid rehabilitative purpose, and because such a search condition is necessarily justified by its rehabilitative purpose, it is of no moment whether the underlying offense is reasonably related to theft, narcotics, or firearms: ‘The threat of a suspicionless search is fully consistent with the deterrent purposes of the search condition. “ ‘The purpose of an unexpected, unprovoked search of defendant is to ascertain whether [the probationer] is complying with the terms of [probation]; to determine not only whether he disobeys the law, but also whether he obeys the law. Information obtained under such circumstances would afford a valuable measure of the effectiveness of the supervision given the defendant....’ ” (People v. Reyes (1998) 19 Cal.4th 743, 752, italics added.)’ ” (People v. Balestra, supra, at p. 67.)
Defendant asserts that this Balestra should not be followed in that it is overly broad “because its reasoning dispenses with the necessary question of whether there exists a ‘factual nexus’ between the crime, defendant’s manifested propensities, and the probation condition.” However, in People v. Olguin, supra, 45 Cal.4th 375—which defendant does not mention in either his opening or his reply brief—the Supreme Court cited Balestra with apparent approval on this point. (Id. at p. 381.)
This circumstance alone supports our agreement with Balestra. Moreover, we agree with the reasoning of Balestra, particularly as it appears in tune with the Supreme Court’s earlier decision in People v. Reyes, supra, 19 Cal.4th 743. Defendant’s attempt to distinguish Balestra and Reyes on the grounds that they involved felonies with the option of state prison, while he was convicted only of misdemeanors, is not convincing. His observation that “probation conditions are consented to by defendants for the opportunity to avoid a state prison term” is no less applicable to a defendant’s desire to avoid a term in a county jail.
It follows that imposing the search condition was not an abuse of the trial court’s discretion. It must also be presumed that defendant’s trial counsel reached the reasonable tactical conclusion, in light of Balestra, that objecting to the condition would be pointless. (E.g., People v. Harris (2008) 43 Cal.4th 1269, 1290; People v. Anderson (2001) 25 Cal.4th 543, 587; People v. Cudjo (1993) 6 Cal.4th 585, 623.) Thus, there is no legitimate reason not to apply the waiver principle of People v. Welch (1993) 5 Cal.4th 228, 245 invoked by the Attorney General.
DISPOSITION
The order of probation is affirmed.
We concur: Haerle, Acting P.J., Lambden, J.