Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. BA 311600, H. Randolph Moore, Jr., Judge.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, Acting P.J.
Defendant Albert Davis timely appealed from his conviction on one count of selling or offering to sell a controlled substance (cocaine base). The court sentenced defendant to a three year prison term. Defendant contends the court committed reversible error when it denied his for cause challenges to three prospective jurors, one of whom was an actual juror. We affirm.
The jury was unable to reach a unanimous verdict as to co-defendant Steven Harris, who was also charged with the sale of a controlled substance, and the court presumably declared a mistrial in his case.
FACTUAL BACKGROUND
On October 29, 2006, police officers, including undercover officers, were working on a “buy bust team” in the skid row area of downtown Los Angeles where narcotics activity is prevalent. At about 3:30 p.m., an undercover officer made eye contact with co-defendant Harris, who was sitting on the sidewalk. Harris approached the officer and asked what she was looking for. The officer said she was looking to buy “a 20,” meaning $20 worth of narcotics. Harris responded he knew where to get a good “dub” ($20 of rock cocaine) and asked the officer to follow him. Harris walked over to appellant, who was standing on the sidewalk. Harris told appellant they needed a dub.
Appellant had pieces of what appeared to be rock cocaine in the palm of his open hand, including three or four off-white solid pieces and some smaller crumbs. The officer handed appellant a pre-recorded $20 bill. In exchange, appellant gave the officer one of the off-white solid pieces. The officer walked away and signaled to other officers on her team that the transaction was complete. Within about two minutes, uniformed officers arrived and detained both appellant and Harris.
The officers searched appellant and recovered the pre-recorded $20 bill from his right front coin pocket. Appellant was also carrying a glass pipe. The parties stipulated that the off-white solid piece sold to the officer weighed 0.6 grams and contained cocaine base. A piece of rock cocaine that size generally sells for about $60 on the street.
DISCUSSION
I. Background
The prospective jurors are referred to as jurors.
Juror 9975 stated her cousin was in jail for selling and using cocaine. On the day of her cousin’s arrest, his father suffered a fatal heart attack. As a result of those events, the juror no longer communicated with her cousin. When counsel for co-defendant asked about her fitness to serve as a juror, she said “where there’s smoke there must be fire” and she would be more likely to vote for conviction. Initially, the juror stated she could not be fair because of her painful memories.
Then, when questioned by the prosecutor if she was a fair person, the juror responded positively and said if she did not believe the prosecution evidence, she would not vote for conviction. The juror did not assume appellant was guilty and her family situation would not cause her to vote for guilt.
At a sidebar, the court indicated the prosecutor had rehabilitated the juror. Harris’s counsel argued the juror was not going to apply the facts to the law but was more likely to vote guilty given her family experience. The court indicated it believed juror 9975’s statement she could be fair. After both defense counsel argued that being a fair person and being fair in this case were two separate things and that it would be tough for her to be fair, the court opined it was the arrest which caused the heart attack and found no cause to excuse the juror. The court also denied the defense request to conduct additional voir dire. The juror was then dismissed on a peremptory challenge by the defense
B. Juror 9539
Juror 9539 had cousins who had been incarcerated “a number of years ago” for possession and sale of drugs and it pretty much broke up the family. One of his cousins had died, and it had to do with the “drug thing.”The juror initially doubted his ability to be impartial and would view the case from a perspective skewed towards guilt.
The juror said he would “look at the facts,” and would not automatically vote for guilt. The juror hoped he would not be distracted or biased by his family’s experiences. In response to questioning by the court, the juror stated he would be fair and impartial.
C. Juror 2950
Juror 2950’s stepmother and brother in the Philippines had long-standing drug problems. The juror initially said he thought their experience would affect his ability to be fair and impartial because the family drug problem had been going on forever, he had to go to the Philippines to deal with it, and his brother had threatened to kill him. The juror then stated that if he did not believe the prosecution evidence, he would not vote guilty. If the evidence had two possible interpretations, guilty and not guilty, the juror considered himself more likely to believe a version of the evidence indicating guilt, but the juror also stated he would not vote for guilt if the prosecution had not proved appellant’s guilt. The juror believed voting for conviction in a case in which appellant’s guilt had not been established would not help the drug problem he had described.
Juror 2950 would not give the prosecution a pass if there was a question about the evidence. If there was not enough proof, the juror would vote not guilty, and the juror had no objection to the requirement of proof beyond a reasonable doubt in a drug-related case. The juror did not think his ability to focus on appellant’s case would be affected by his experiences with his stepmother and brother.
After the attorneys finished asking questions, the court informed the prospective jurors it was having trouble understanding how a family drug problem could affect the ability to be a fair and impartial juror in the case. At one point, the court stated: “But what does that have to do with your listening to evidence in a case and making a determination as to whether or not you believe or disbelieve the facts in that case and come to a conclusion.”
Juror 2950 then indicated he would try to be impartial. However, subsequently, juror 2950 responded “Yes,” when the court asked him “Can you listen to the evidence and come to a decision when I give you the instructions on what the law is?” The court then stated, “You’re going to listen to the facts, I’m going to tell you what the law is, we’re going to put the two together and you’re going to come out with a decision. And it has to be fair and impartial. Can you do that?” Juror 2950 again answered, “Yes.”
Jurors 2950 and 9539 were called into the jury box after the defense had exercised all of their peremptory challenges. After jurors 2950 and 9539 were questioned, the court impliedly denied defense for cause challenges to those jurors. Juror 2950 sat as an actual juror.
There is no indication in the reporter’s transcript that juror 2950 was selected as an actual juror. After the defense ran out of peremptories, the prosecutor thanked and excused the juror in seat 12. Juror 2951 was placed in seat 12, and the prosecutor again thanked and excused the juror in seat 12. Even though there is no indication a replacement juror was selected, the prosecutor then stated: “Your Honor, I believe we have our jury. Your Honor, the People accept the panel as presently constituted.” Presumably juror 2950, who was in the group of prospective jurors being questioned, must have been placed in seat 12, which was vacant. On the jury management system case info sheet, the box under “swn” is marked for juror 2950.
II. Appellant preserved the issue
“To preserve a claim based on the trial court’s overruling a defense challenge for cause, a defendant must show (1) he used an available peremptory challenge to remove the juror in question; (2) he exhausted all of his peremptory challenges or can justify the failure to do so; and (3) he expressed dissatisfaction with the jury ultimately selected.” (People v. Maury (2003) 30 Cal.4th 342, 379.) Respondent argues appellant did not preserve the issue for appeal as he did not object to the composition of the panel. Appellant moved to excuse juror 2950 for cause, and when the jury was impaneled shortly thereafter, appellant had used all his peremptory challenges. Under the circumstances, appellant expressed dissatisfaction with the jury.
III. The court did not abuse its discretion
A defendant has a right to a “verdict rendered by impartial and unprejudiced jurors.” (People v. Wheeler (1978) 22 Cal.3d 258, 265.) “Challenges for cause are the means by which partial or biased jurors should be eliminated.” (United States v. Gonzalez (9th Cir. 2000) 214 F.3d 1109, 1111.) “An appellate court applies the abuse of discretion standard of review to a trial court’s sustaining or overruling of a challenge for cause against a prospective juror.” (People v. Waidla (2000) 22 Cal.4th 690, 715.)
Though not expressly stated, appellant claims he was denied a fair trial because juror 2950 sat on his jury; he makes no claim that any of the other sitting jurors were not impartial. (See People v. Crittenden (1994) 9 Cal.4th 83, 121 [“If a defendant contends that the trial court wrongly denied a challenge for cause, he or she must demonstrate that the right to a fair and impartial jury thereby was affected.”]; People v. Bittaker (1989) 48 Cal.3d 1046, 1087.)
“A ‘for cause’ challenge to a prospective juror should be sustained when the juror’s views would ‘prevent or substantially impair’ the juror’s ability to perform his or her duties in accordance with the instructions and oath. A reviewing court examines the context in which the trial court ruled to determine if its decision is fairly supported by the record. If a prospective juror’s responses to voir dire questions are halting, equivocal, or even conflicting, ‘we defer to the trial court’s evaluation of a prospective juror’s state of mind, and such evaluation is binding on appellate courts.’” (Citations omitted.) (People v. Mendoza (2000) 24 Cal.4th 130, 169; see also People v. Cunningham (2001) 25 Cal.4th 926, 975 [We accept “as binding the trial court’s determination as to the prospective juror’s true state of mind when the prospective juror has made statements that are conflicting or ambiguous.” (Internal quotations omitted.)].)
Although juror 2950 initially stated the fact he had family members involved in drugs would affect his being fair and impartial, he also stated he would not vote guilty if he did not believe the evidence or the prosecutor did not prove appellant’s guilt and he did not have a problem with the requirement of proof beyond a reasonable doubt. Even though juror 2950 indicated he might be more likely to believe a guilty interpretation of the evidence if it had two possible interpretation, after questioning by the court, he later agreed he would listen to the evidence and come to a fair and impartial decision using applicable law. (See People v. Bittaker, supra, 48 Cal.3d at p. 1089.)
In denying the motion to excuse jurors 2950 and 9539 for cause, the court stated it thought the jurors did not really understand the question they were asked and that was why it pinpointed its questioning the way it did to determine if the jurors thought they could be fair and impartial. Thus, the court impliedly found the latter response by juror 2950 that he could be fair and impartial reflected the juror’s true state of mind.
Accordingly, the court did not abuse its discretion when it denied appellant’s for cause challenge to juror 2950.
DISPOSITION
The judgment is affirmed.
We concur: ZELON, J. JACKSON, J.