Opinion
A148412
07-17-2018
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY KENT BOYLE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51511559)
Defendant Jeffrey Kent Boyle raises two issues in this appeal following his conviction of carrying a concealed dirk or dagger, exhibiting a deadly weapon, and indecent exposure. Boyle first contends the trial court committed reversible error in refusing to excuse various prospective jurors for cause, requiring him to use some of his peremptory challenges to excuse those prospective jurors. This contention fails because he has not shown that any incompetent juror sat on his jury, and thus he cannot establish prejudice under People v. Black (2014) 58 Cal.4th 912 (Black). Boyle next argues the trial court provided an insufficient response to a jury question on the indecent exposure charge, but we find no error in the court's response. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of June 2, 2015, a woman went to a McDonald's in Antioch with her young children. The children were playing in the restaurant's play area when the woman noticed Boyle looking through a window at her son. Boyle punched at the window and pulled out a knife, scraping the knife against the glass. The woman called the police.
After a few minutes, Boyle walked a short distance to a tree. He looked at the woman while he pulled down his pants and pulled out his penis. Boyle also showed her a hypodermic needle and appeared to inject himself in the arm. Another witness at the McDonald's described Boyle's conduct as "coming up with more ways to . . . mock us" and "sass us."
A police officer arrived and found Boyle behind the McDonald's. A kitchen knife was on top of a dumpster next to him. The officer asked if he could search Boyle, Boyle said he could, and the officer found a hypodermic needle and a metal dirk or dagger in Boyle's pants pocket.
A jury found Boyle guilty of carrying a concealed dirk or dagger (Pen. Code, § 21310), exhibiting a deadly weapon (§ 417, subd. (a)(1)), and indecent exposure (§ 314, subd. (1)). In a bifurcated proceeding, the trial court found true allegations that Boyle had a prior serious felony conviction (§§ 667, subds. (b)-(i), 1170.12) and served a prior prison term (§ 667.5, subd. (b)). The trial court sentenced Boyle to five years in prison.
Further undesignated statutory references are to the Penal Code.
DISCUSSION
A. Failure to Excuse Prospective Jurors for Cause or Grant Additional Peremptory Challenges
1. Background
After the jury and one alternate juror were impaneled and sworn—and outside the presence of the jury—the trial court stated that challenges to prospective jurors had been conducted off the record. The court noted that defense counsel wanted to make a record regarding jury selection and said, "Now is your chance."
Defense counsel then identified five prospective jurors he believed should have been excused for cause, Mr. O., Ms. C., Ms. S., Mr. T., and Ms. B., and briefly explained his reasons. Defense counsel recounted that, after he raised challenges to these five prospective jurors, which the trial court denied, he used peremptory challenges to excuse them, and he eventually used all 10 of his allotted peremptory challenges. Although the jury had already been sworn at this point, defense counsel concluded, "So I would ask for five additional [peremptory] challenges."
In selecting the jury, the prosecution used nine of its 10 peremptory challenges. The parties had an additional peremptory challenge for selecting an alternate juror. The prosecution did not use a peremptory challenge in selecting an alternate; Boyle used one. As it turned out, the alternate was later seated as a juror before the first witness was sworn.
The trial court then stated for the record its reasons for previously denying defense counsel's challenges. The court noted that it had granted other for-cause challenges and allowed a number of prospective jurors to be excused by stipulation of counsel. As to these five challenged prospective jurors, the court observed, "Every one of those five individuals articulated that they would follow the court's instructions, and that they would be fair to both sides." The court further stated that "none of [these five prospective jurors] indicated that any of the issues that you [defense counsel] raised would prevent them from doing that." The court concluded, "All right. And we have our record. We're done."
Because the jury had been sworn, the trial court could not grant defense counsel's belated request for additional peremptory challenges at this point. (Code Civ. Proc., § 226, subd. (a); People v. Cottle (2006) 39 Cal.4th 246, 255 [after jury is sworn, trial court is barred from reopening jury selection and permitting further peremptory challenges].)
2. Analysis
Boyle contends the trial court's denial of his request for five additional peremptory challenges was reversible error, a contention premised on the claim that the court erred in denying his challenges for cause of Mr. O., Ms. C., Ms. S., Mr. T., and Ms. B.
a. Forfeiture
Preliminarily, the Attorney General argues Boyle has forfeited the issue. "To preserve a contention that the court erred in denying a challenge for cause to a prospective juror, the defendant must (1) exercise a peremptory challenge to remove that prospective juror, (2) exhaust all peremptory challenges or somehow justify the failure to do so, and (3) express dissatisfaction with the jury that is ultimately selected." (People v. Rices (2017) 4 Cal.5th 49, 75 (Rices).)
So long as defense counsel conveys dissatisfaction with the jury, no special words are necessary to meet the third step. In Rices, the "defense counsel did not say the precise words, 'I am dissatisfied with the jury,' [but] the action of requesting additional peremptory challenges after the jury had been selected effectively expressed that dissatisfaction." (Rices, supra, 4 Cal.5th at p. 75 [rejecting respondent's contention that claim was forfeited, the court noted, "We have never required any specific wording, just an expression of dissatisfaction."].)
Here, it is questionable whether Boyle preserved the issue. The record shows the jury and one alternate juror were sworn without a timely statement of dissatisfaction or request for additional peremptory challenges from defense counsel. We need not decide the contention on forfeiture grounds, however, because even if we assume Boyle preserved the issue (by timely requesting additional peremptory challenges off the record), his contention fails.
b. Challenging Prospective Jurors for Cause
"In general, the qualification of jurors challenged for cause are 'matters within the wide discretion of the trial court, seldom disturbed on appeal.' [Citation.] When . . . a juror gives conflicting testimony as to her capacity for impartiality, the determination of the trial court on substantial evidence is binding on the appellate court." (People v. Kaurish (1990) 52 Cal.3d 648, 675 (Kaurish).)
In Kaurish, the prospective juror at issue "gave conflicting testimony as to her ability to be unbiased. On the one hand, she stated that she had several relatives employed as police officers and might tend to give greater credence to the testimony of such officers. On the other, she stated her intention to 'try to be an impartial juror.' " (Kaurish, supra, 52 Cal.3d at p. 675.) Our high court concluded the trial court did not abuse its discretion in denying the challenge for cause of this prospective juror. (Ibid.)
In People v. Maury (2003) 30 Cal.4th 342, 381 (Maury), a capital case, the defense counsel asked a prospective juror whether "he could assure the parties that he would keep an open mind regarding punishment if he were convinced beyond a reasonable doubt that defendant committed 'three heinous, premeditated, deliberate killings,' " and the prospective juror responded, he could not. (Ibid.) But later, the prospective juror qualified his answer by emphasizing that he believed he was an open-minded person, that the appropriate punishment would depend on the circumstances and the evidence presented, and that he would follow the instructions. The trial court denied the defense counsel's challenge for cause because the prospective juror stated he could keep an open mind and follow the instructions. Our high court found the trial court's ruling supported by the record. (Ibid.)
In this case, the reporter's transcript of voir dire identifies a speaking prospective juror only as "PROSPECTIVE JUROR"; it does not identify a speaker by number or name. We must rely on the parties' references in their briefs that attribute statements to individual prospective jurors Mr. O., Ms. C., Ms. S., Mr. T. and Ms. B. in places where the prospective jurors are addressed by counsel using their names. On our review of the transcript, we cannot say with precision which individual made each statement attributed to a prospective juror. That makes reconstructing the voir dire as the trial court would have heard it a difficult task.
Defense counsel here asked whether anyone believed a police officer would be more inclined to be a truthful witness "by virtue of the fact that they are a police officer," and Mr. O. agreed that he would. Mr. O continued, "But, I mean if they did say something that I didn't . . . agree with, I would form my own opinions. [¶] But I am more likely to, I guess, believe what they're saying, if that makes sense." Mr. O. noted that he had clients who are in law enforcement, but "I can be fair." Earlier in voir dire, he stated he would have no problem being fair to both sides in the case.
Earlier, Mr. O. said he worked in human resources at UCSF and previously worked in his family restaurant. The reference to "clients" is not explained in the record.
Ms. C. was married to a police officer, and her son is an officer in Concord. Asked whether her connection to law enforcement would affect her role as a juror, she responded, "I would always try to look at something fairly. But in the long run, my heart would be with the policemen." The court explained that most people are "pro law enforcement," but the question was whether she could evaluate the credibility of an officer on his or her own merits. Ms. C. answered that she believed she could do that. Later, she responded affirmatively when asked if she could be fair to both sides in the case.
Given the similar facts of Kaurish and Maury, we are confident on the record before us that the trial court did not abuse its discretion in denying Boyle's challenges to Mr. O. and Ms. C. Mr. O. emphasized that he could be fair after initially indicating he might believe police officers were more likely to be truthful witnesses. Ms. C. believed she could evaluate the credibility of an officer on his or her own merits, and said she could be fair to both sides of the case after initially suggesting she might be biased in favor of police officers.
ii. Ms. S., Mr. T., and Ms. B.
Ms. S. believed she could be fair to both sides in this case. Later, defense counsel asked generally about biases people may have. Ms. S. indicated that she may be biased against the defendant. Defense counsel asked, "you're already sort of starting to feel that bias or tendency to want to vote guilty?" Ms. S. answered, "Correct." Defense counsel asked if the feeling would prevent her from being a fair juror, and she responded, "I would like to say no. I mean, but I don't quite know. I'm just trying to be as honest as I possibly can. [¶] . . . [¶] So I just don't know. I am not quite certain."
Mr. T. said he felt he could be fair to both sides. Later, he said he did not know if he could follow the law that charges had to be proved beyond a reasonable doubt. He said, "I think that the thumb would always be on a little bit on the one side, just because, what I deal with everyday [as an elevator mechanic], in San Francisco, in the Tenderloin and stuff like that, you know." He sees "the dregs of the dregs in the city" and a lot of theft, and "when I first walked in the room, that's what I saw," referring to the defendant. Defense counsel asked if that would prevent him from being a fair juror. He said, "It might. I can't say that it wouldn't. I mean, it would always be there in my mind."
Defense counsel asked whether the prospective jurors would be able to vote not guilty if they thought "something did happen, but the district attorney hasn't proved the charged offenses," and Ms. B. answered she did not know. Asked whether she would have difficulty making any kind of vote, Ms. B. said she would. Asked to explain, she responded, "I don't know, I mean, I guess I will have to hear both sides, to make a decision. But, mainly, I don't know." Defense counsel then asked whether she would have a problem if the defense puts on no evidence, and she responded in the affirmative. Defense counsel asked, "Would you be more likely to vote guilty because you didn't hear from the defense?" Ms. B. answered, "I guess so." Earlier in voir dire, the court asked, "Do you feel you could be fair to both sides?" and Ms. B. responded, "Yes."
As to Ms. S., Mr. T., and Ms. B., they all said at some point during voir dire that they could be fair to both sides. These statements (despite the conflicting testimony regarding potential bias) provided some evidence of impartiality. And the difficulty in recreating a complete picture of the voir dire because of the limitations of the transcript complicates our review. (See fn. 5.) But in any event, even if the trial court erred in not granting the challenges for cause as to these prospective jurors, Boyle has not shown prejudice, as we discuss below.
c. Prejudice
In Black, supra, 58 Cal.4th 912, our Supreme Court described the standard for prejudice when a defendant claims the trial court erred in failing to excuse prospective jurors for cause. There, defendant Black challenged two prospective jurors for cause, the trial court denied the challenges, and Black used two of his allotted peremptory challenges to remove those prospective jurors. Black then asked the trial court to allow him two additional peremptory challenges, a request the trial court refused. On appeal, Black claimed he was entitled to reversal because he used two peremptory challenges for prospective jurors who should have been excused for cause, and as a result, he was unable to use those two peremptory challenges to excuse two other prospective jurors he found objectionable for lawful reasons other than for cause, one of whom, Juror No. 8, sat on the jury. (Id. at p. 914.)
Our Supreme Court rejected Black's contention. (Black, supra, 58 Cal.4th at p. 914.) The court assumed the trial court erred in denying Black's for-cause challenges to the two prospective jurors. But it found Black "cured the error by using two of his statutory peremptory challenges to strike the prospective jurors. Eventually, [Black] exhausted his remaining challenges and was consequently unable to remove Juror No. 8, whom he agrees was not challengeable for cause, but whom he personally found objectionable for other lawful reasons." (Id. at p. 917.) Black did not argue, and the record did not show, that Juror No. 8 was removable for cause. (Id. at p. 921.) The court concluded, "[T]he trial court was under no statutory obligation to grant defendant extra peremptory challenges to remove additional, otherwise competent, jurors. Because no incompetent juror who should have been dismissed for cause sat on his case as a result of [Black] exhausting his peremptory challenges, [he] is not entitled to reversal . . . ." (Id. at p. 914.)
Here, the trial court denied Boyle's challenges to five prospective jurors Boyle maintains should have been excused for cause. Even assuming the trial court erred as to three of them, however, Boyle (like the defendant in Black) cured this error by excusing all five prospective jurors through peremptory challenges. (See Black, supra, 58 Cal.4th at p. 917.) Boyle has not shown that any incompetent juror who should have been dismissed for cause sat on his case. (Indeed, he does not even identify any jurors he found objectionable and would have excused had he been granted additional peremptory challenges.) Therefore, under Black, he is not entitled to reversal. (See id. at p. 914.)
Inexplicably, Boyle did not mention Black in his opening brief, even though it is the seminal case on the subject. In his reply, he argues his position is supported by Justice Liu's concurrence in Black. Justice Liu wrote, "[O]ur prejudice inquiry should examine whether a trial court's errors substantially disadvantaged the defendant relative to the prosecution in the opportunity to remove jurors for lawful reasons short of cause. Today's opinion does not hold to the contrary. [Citations.] [¶] A defendant cannot be said to have suffered substantial disadvantage with respect to the prosecution from the seating of a single objectionable juror. Neither the prosecution nor the defense has the right to an ideal jury, and both sides must sometimes accept less-than-ideal jurors given the limitations of the jury pool and available peremptory strikes." (Black, supra, 58 Cal.4th at pp. 922-923 [conc. opn. of Liu, J.].) Boyle's reliance on the concurrence is unavailing because the "substantial disadvantage" test suggested in the Black concurrence has not been adopted by a majority of the Supreme Court. B. Response to Jury Question on Indecent Exposure
In Rices, supra, 4 Cal.5th at page 75, decided in 2017 more than three years after Black, the defendant used three peremptory challenges to strike three prospective jurors he claimed the trial court should have excused for cause. Our high court, following Black, concluded unanimously that the defendant did not show prejudice even assuming the trial court should have removed the three prospective jurors for cause. (Id. at p. 76.) The court held, "Defendant does not demonstrate that any sitting juror was biased and should have been excused for cause. Accordingly, he has not shown prejudice even if we assume the court should have granted the challenges for cause to the three prospective jurors." (Id. at p. 77.) The Rices court did not assess prejudice under a "substantial disadvantage" standard as suggested in the Black concurrence. Rather, to establish harm, the defendant was required to show an incompetent juror sat on the jury. --------
Boyle was charged with indecent exposure, and the trial court gave CALJIC No. 16.220 as follows:
"Defendant is accused in Count Three of having violated section 314, subdivision (1) of the Penal Code, a misdemeanor.
"Every person who willfully and lewdly exposes his private parts in any public place, or in any place where there are present other persons to be offended or annoyed, is guilty of a violation of Penal Code section 314, subdivision (1), a misdemeanor.
"The term 'private parts' refers to and means a person's genitals.
" 'Willfully' means an intentional exposure of one's private parts.
" 'Lewdly' means with specific intent to direct public attention to one's genitals for the purpose of one's own sexual arousal or gratification, or that of another, or of sexually insulting or offending others.
"In order to prove this crime, each of the following elements must be proved:
"1. A person intentionally exposed his private parts in a public place, or in any place where there were present other persons to be offended or annoyed; and,
"2. That person did so with the specific intent to direct public attention to his genitals for the purpose of his own sexual arousal or gratification, or that of another, or of sexually insulting or offending others." (Italics added.)
During deliberations, the jury sent a note to the trial court that read, "Need Clarification on law for Third Count 2nd Element. Specifically on sexually insulting or offending others." The court responded in writing, "Members of the jury: [¶] 'Insulting or offending' is synonymous with 'affront or affronting,' if that helps." (Capitalization omitted.)
Boyle now claims the trial court's response was incorrect as a matter of law because it is not enough to act with the intent to affront, one must have the intent to affront others sexually. This contention is forfeited.
"When the trial court responds to a question from a deliberating jury with a generally correct and pertinent statement of the law, a party who believes the court's response should be modified or clarified must make a contemporaneous request to that effect; failure to object to the trial court's wording or to request clarification results in forfeiture of the claim on appeal." (People v. Dykes (2009) 46 Cal.4th 731, 802.)
In this case, the clerk's minutes reflect that the jury submitted its question and the court gave its response, but there is no record that any party objected to the court's response. Nor is there any reported discussion by the parties about how to respond to the jury's question. The court's response to the jury's question was generally correct and responsive. (See People v. Archer (2002) 98 Cal.App.4th 402, 406 ["A synonym for 'affront' is 'offend.' "].) Because Boyle failed to object to the trial court's wording, he has forfeited the issue on appeal.
Further, Boyle's claim fails on the merits. The trial court's response did not state or imply that the modifier "sexually" could be ignored; the court did not say the phrase "sexually insulting or offending" was the same as affronting. We presume the jury understood from the court's response to its specifically worded inquiry that the phrase "sexually insulting or offending others" as used in CALJIC No. 16.220 was intended by the court to be synonymous with "sexually affronting others." There is no reasonable likelihood the jury would have understood the court's response to mean that the word "sexually" in the jury instruction could be ignored. (See People v. Bryant (2014) 60 Cal.4th 335, 433 [jury is presumed to be intelligent and capable of understanding the court's instructions; a defendant challenging an instruction must demonstrate reasonable likelihood the jury understood the instruction as claimed by defendant].)
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.