Opinion
B159041.
7-29-2003
THE PEOPLE, Plaintiff and Respondent, v. DAVID R. DOWELL, Defendant and Appellant.
Tara K. Allen, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Supervising Deputy Attorney General, and Michelle J. Pirozzi, Deputy Attorney General, for Plaintiff and Respondent.
Appellant David R. Dowell timely appeals from his conviction for assault with a deadly weapon by means
of force likely to produce great bodily injury, personal infliction of great bodily injury, and battery with infliction of serious injury. Appellant claims the court erred in (1) discharging the jury foreperson without good cause, and after determining he was the sole holdout juror for acquittal on Count Two, (2) reconstituting the jury with an alternate, thereby triggering double jeopardy, and (3) instructing the jury under CALJIC No. 17.41.1.
We find no error because (1) the record shows the courts removal of the jury foreperson was justified, (2) the replacement of the foreperson with an alternate juror did not create a new jury and thus did not trigger double jeopardy, and (3) the use of CALJIC No. 17.41.1 constitutes harmless error that had no bearing on the jurys verdict.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL HISTORY
On the evening of October 23, 2001, Joel Beers joined some friends for drinks at Ferns Bar in Long Beach to celebrate a mutual friends birthday. During the course of the evening, appellant arrived at the bar and at some point encountered Beers, whom he had known on a casual basis for approximately one year. Appellant, who earlier in the evening had been drinking at a friends house, joined Beers, and the two men continued to drink until closing time.
Appellant asked Beers to drive him home, since he was too intoxicated to drive. While driving appellants vehicle, Beers lost control and got into an accident, damaging the vehicle. The two men began arguing as to who was responsible for the accident, and appellant struck Beers, knocking him to the ground. Appellant, who was wearing steel-toed boots, then kicked, stomped and jumped on Beers head and body a number of times while Beers was lying on the ground. Residents who had witnessed the altercation called the police, and appellant was arrested.
Beers was admitted to the hospital, and was later diagnosed with severe brain injury caused by blunt force trauma. The assault left him with a number of problems, including loss of memory and reasoning skills, and difficulty in concentrating and paying attention, with little chance of ever regaining his lost mental abilities.
Appellant was charged with (1) attempted murder, (2) assault with a deadly weapon or by means of force likely to produce great bodily injury, and (3) battery with infliction of serious injury. After deliberating for several hours, the jury found appellant guilty of count three. The jury also sent a note to the court stating, "In reference to count two, we (11 of the jury) believe that we have one juror who expresses an intention to disregard the law based on his own personal opinion and experience rather than the law in our jury instructions." The court interviewed the jury foreperson, who turned out to be the juror referred to in the note.
The foreperson admitted to referring to his previous experiences while in the Navy with persons injured in fights when discussing the seriousness of Beers injuries with other members of the jury. The foreperson also expressed his doubt as to whether appellants steel-toed boots qualified as deadly weapons, and further explained that there was confusion as to whether the terms "great bodily harm" and "serious injury" were synonymous. The definitions of all three terms were contained in the instructions given to the jury.
The court then interviewed Juror No. 6, the author of the note, who testified that the note represented the unanimous opinion of the remaining eleven jurors. The court also interviewed Juror No. 3, who testified that the foreperson had made comments during deliberations to the effect that "Brain injury is not bodily injury because its not on the body," and "Deadly weapon must be a weapon." The same juror also testified that the foreperson had expressed an intention to consider the consequences of finding appellant guilty of the more serious charge in Count No. 2, in deliberate disregard of the instructions given to the jury.
After Juror No. 3 had returned to the jury room, the court heard argument from counsel for both sides, and decided to replace the foreperson with one of the alternate jurors, reasoning that the evidence showed the foreperson was refusing to obey the law. The court then instructed the jury to start its deliberations over from the beginning. The jury reached a unanimous verdict on all three counts in just under one hour, finding appellant not guilty of the first count, and guilty of counts two and three.
As appellant had one prior strike against him for an earlier, similar assault, and had previously violated the conditions of his parole resulting from that crime, the trial court sentenced him to the maximum possible term of seventeen years in state prison.
Appellant appeals.
DISCUSSION
I. The Courts Dismissal Of The Jury Foreperson Was Proper.
Appellant makes two major arguments concerning the removal of the jury foreperson: (1) the removal denied him his constitutional right to a fair trial and an impartial jury; and (2) the court failed to conduct a proper investigation of the matter prior to removing the juror. As set forth below, neither contention has merit.
Penal Code section 1089 provides that: "If 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 duty . . ., the court may order him to be discharged and draw the name of an alternate, who shall then take his 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." (Italics added.)
This court reviews the trial courts determination to replace a juror with an alternate for an abuse of discretion; nonetheless, "a jurors inability to perform as a juror "must appear in the record as a demonstrable reality." (People v. Marshall (1996) 13 Cal.4th 799, 843, 919 P.2d 1280.) We will affirm if there is any substantial evidence supporting the trial courts ruling. (Ibid.)
Appellant argues that the court denied his federal and state constitutional right to trial by a fair and impartial jury by improperly dismissing the jury foreperson without good cause. Appellant contends the foreperson was replaced because his logic and analysis was faulty, and he was misapplying the law to the facts. As support for this contention, appellant cites People v. Cleveland (2001) 25 Cal.4th 466, 485, which provides that neither failure to deliberate well nor reliance upon faulty logic or analysis constitute a refusal to deliberate. However, unlike the juror in Cleveland, the foreperson here was not charged with refusing to deliberate.
Moreover, appellant misstates the record in alleging that the basis for the forepersons removal was the courts concern over the "ridiculousness" of his views on the law. The record shows the court was concerned that someone who believed the brain was not part of the body was unable to follow the elements of the law as instructed and unable to perform as a juror.
Not only was the foreperson apparently unable to follow the law, he was also apparently unwilling to do so. A note from the remaining eleven jurors stated the foreperson had expressed his intention to disregard the law based on his personal experience. The foreperson himself admitted to the judge during deliberations he had considered Beers injuries in light of his previous experiences with persons who had been injured in fights while he was in the Navy, in disregard of the courts instructions. Moreover, according to jurors the foreperson had expressed an intention to consider the consequences of finding appellant guilty of the more serious charge in Count No. 2, in deliberate disregard of the instructions given to the jury.
The California Supreme Court has held that a juror who is unable or unwilling to follow the courts instructions may be discharged. (People v. Williams (2001) 25 Cal.4th 441, 448.) Substantial evidence in the record shows that this was indeed the case, and the trial courts decision to dismiss the foreperson was therefore proper.
As for appellants contention that the trial court failed to investigate the matter sufficiently, the California Supreme Court has placed limitations on the ability of trial courts to investigate such matters, stating "[a] trial courts inquiry into possible grounds for discharge of a deliberating juror should be as limited in scope as possible, to avoid intruding unnecessarily upon the sanctity of the jurys deliberations." (People v. Cleveland , supra, 25 Cal.4th at p. 485.)
Here the record shows that the trial judge questioned the foreperson and two other jurors at length regarding the allegations, and heard argument from counsel for both sides as to whether or not the juror should be replaced, before making his decision. Had the inquiry proceeded further, there was a substantial risk that it would have intruded into forbidden territory. The court in Cleveland set out strict guidelines for ending such inquiries, stating: "The inquiry should cease once the court is satisfied that the juror at issue is participating in deliberations and has not expressed an intention to disregard the courts instructions or otherwise committed misconduct." (Ibid.) In our view, in light of the record, the courts investigation into this matter was sufficient.
In passing, we note appellants argument the court made the decision to replace the foreperson only after discovering that he was the sole hold-out juror for acquittal on count two. Such an argument assumes that, given the same testimony from all three jurors, the court would not have replaced the foreperson had there been other jurors also uncertain as to whether appellant was guilty of count two. However, there is no evidence in the record to support such an assumption, and indeed, appellant offers none.
Likewise, there is no evidence to support appellants conflicting contentions that he was denied an impartial jury, and that the foreperson was replaced because he was not an impartial juror. To the contrary, the evidence supports the conclusion that in performing its bound duty to discharge a juror who is unable to follow the law, as stated in People v. Sanchez (1997) 58 Cal.App.4th 1435, 1446, fn. 2, the court was ensuring that appellants case was decided by a competent, impartial jury.
II. The Substitution Of An Alternate Juror Did Not Trigger Double Jeopardy.
Appellant next argues that the substitution of an alternate juror for the dismissed foreperson constituted the discharge of the entire jury and the subsequent empanelling of a new jury, and thus violated his constitutional right to be free from double jeopardy. The California Supreme Courts recent decision in People v. Hernandez (2003) 30 Cal.4th 1, is dispositive.
The Court in Hernandez explained "The reason for holding that jeopardy attaches when the jury is empanelled and sworn lies in the need to protect the interest of an accused in retaining a chosen jury. . . . [There is] a strong tradition [in the Anglo-American system of criminal justice] that once banded together a jury should not be discharged until it [has] completed its solemn task of announcing a verdict." (People v. Hernandez, supra, 30 Cal.4th at p. 9.)
The Court went on to explain that "an alternate juror, even if improperly seated, is part of the same jury chosen by defendant, so that he is not subjected to two different juries and double jeopardy is inapplicable." (People v. Burns (1948) 84 Cal. App. 2d 18, 189 P.2d 868.) Here, as in Hernandez, "[Appellants] chosen jury was not discharged but instead, with the substitution of a preselected alternate juror, remained intact until a verdict was rendered." (People v. Hernandez, supra, 30 Cal.4th at p. 9.) Thus, also as in Hernandez, double jeopardy is inapplicable.
III. The Use Of CALJIC No. 17.14.1 Did Not Violate Appellants Federal Constitutional Rights.
Finally, appellant argues that the use of CALJIC No. 17.14.1 improperly chilled the jurys deliberations, misinformed the jury as to its power of nullification, denied appellant the right to jury nullification, and interfered with appellants right to an independent, impartial jury free from judicial interference.
CALJIC No. 17.14.1 provides: "The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on [penalty or punishment, or] any [other] improper basis it is the obligation of the other jurors to immediately advise the Court of the situation."
In People v. Engelman (2002) 28 Cal.4th 436, 441, although the California Supreme Court held the instruction did not infringe upon a defendants federal or state constitutional rights, and further held that a jury lacks the right to engage in nullification, it directed the instruction should not be given in the future. The court in Engelman based its decision on the belief that the jury instruction had the potential to induce jurors to needlessly expose the content of their deliberations, as well as lead to unnecessary and potentially coercive inquiry on the part of the court into the subject matter of deliberations. (Engelman, supra, 28 Cal.4th at pp. 446-447.)
Here there is no evidence to show any jurors needlessly exposed the content of deliberations. Nor, as discussed above, is there evidence to show there was any unnecessary inquiry on the part of the court. However, as the instruction here was given well before the decision in Engelman was handed down, we also follow the approach adopted in People v. Molina (2000) 82 Cal.App.4th 1329, 1332, assume for the sake of argument that CALJIC No. 17.14.1 should not have been given, and review the matter for harmless error under the Chapman standard. (Ibid.)
Chapman v. California (1967) 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 ("Before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.")
As the United States Supreme Court explained in Sullivan v. Louisiana (1993) 508 U.S. 275, 279-280, 124 L. Ed. 2d 182, 113 S. Ct. 2078, "the inquiry [under harmless-error review] is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." (Original italics.) Here there is no doubt that was the case.
CALJIC No. 17.14.1 was nothing more than a further clarification of the jurys duty to report juror misconduct. Such direction, as the court in Engelman pointed out, is already set out in a number of other jury instructions. (Engelman, supra, 28 Cal.4th at pp. 448-449.) It had no bearing on any of the elements of the crimes with which appellant was charged, and there is nothing in the record to show that the instruction had any bearing on the verdict ultimately handed down by the jury. For these reasons, we hold that the giving of CALJIC No. 17.14.1 to the jury was harmless error.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., MUNOZ (AURELIO), J.