Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County No. SWF023656, Albert J. Wojcik and Jean Pfeiffer Leonard, Judges.
McCONNELL, P. J.
INTRODUCTION
Following an initial mistrial, a jury convicted Ricky Dean Fletcher of making a criminal threat. (Pen. Code, § 422.) The jury also found true allegations Fletcher used a deadly and dangerous weapon during the commission of the crime (§§ 12022.5, subd. (b)(1), 1192.7) and Fletcher committed the crime because of the victim's race or color (§ 422.75, subd. (a)). In addition, the trial court found true an allegation Fletcher had a prior prison conviction. (§ 667.5, subd. (b).) The trial court sentenced Fletcher to five years and four months in prison.
Further statutory references are to the Penal Code unless otherwise specified.
Fletcher appeals, contending the double jeopardy clauses of the federal and state Constitutions barred his second trial because the trial court declared a mistrial in the first trial without legal necessity. In addition, he contends the trial court erred in denying him access to personal information of a juror in the first trial to develop impeachment evidence for the second trial. He also contends the trial court erroneously failed to instruct the jury in the second trial on two applicable defenses. We agree that the double jeopardy clause of the state Constitution barred Fletcher's second trial and reverse the judgment. In view of our conclusion, we do not address Fletcher's other contentions.
FACTUAL AND PROCEDURAL BACKGROUND
The charges against Fletcher stem from an encounter with James Sheffield in front of Fletcher's home. According to Sheffield, who is an African-American, he saw an empty bottle on the lawn in front of Fletcher's home and picked it up. A young male told him to put the bottle down and leave. As Sheffield put the bottle down and turned to leave, Fletcher approached him with a machete. Fletcher raised the machete, threatened to kill him, and yelled racial slurs at him as he walked away.
At the first trial, the prosecutor called Sheffield as a witness in the morning on the first day. Before the prosecutor completed her direct examination of him, the trial court recessed for lunch. While returning from the recess, Juror No. 3 overheard a person whom she thought was Sheffield talking with another person about the incident. According to Juror No. 3, the person asked Sheffield, "Well, was he gonna hurt you?" Sheffield responded, "I don't think so, but still." Prior to the recess, Sheffield had testified he became nervous and scared when Fletcher approached him with the machete and yelled racial slurs. Sheffield also testified he was afraid that if he turned his back on Fletcher, Fletcher might hurt him.
Juror No. 3 approached Juror No. 1 seeking confirmation Sheffield was the person she had overheard. Juror No. 1 in turn asked Juror No. 12, who confirmed the person was indeed Sheffield. Juror No. 3 explained to Juror No. 1 and Juror No. 12 why she sought confirmation of Sheffield's identity. No other jurors were involved in the conversation. At Juror No. 12's suggestion, Juror No. 3 reported the matter to the trial court.
The trial court interviewed the three jurors separately in chambers in the presence of the prosecutor and defense counsel. At the conclusion of Juror No. 3's interview, the trial court asked her whether Sheffield's remarks impacted her ability to be a juror. Juror No. 3 assured the trial court three times they did not.
Similarly, at the conclusion of Juror No. 1's interview, the trial court asked her, "This information that you have been provided with [by Juror No. 3], would that have any impact on your ability to be fair and impartial? From what you've heard?" She replied, "No." The trial court further inquired, "And when you are deliberating, when you are on break, [and] when you are talking to the other jurors, you cannot mention that to anybody; can you accept that?" She replied, "Yes." The trial court then asked her, "And you could be fair and impartial and disregard that conversation?" She replied, "Yes." Finally, before excusing her from chambers, the trial court admonished her, "You cannot repeat to others what you were told was said. Okay? I have — I am not judging Juror No. 3 as to what she repeated, if it was or was not said in that fashion, but you could not repeat that yourself, though. Okay?" She replied, "I understand. Yes."
The trial court's interview with Juror No. 12 was lengthier and more complex than its interview with the other two jurors. The trial court asked Juror No. 12 whether his conversation with Juror No. 3 and Juror No. 1 would impact his "ability to evaluate the evidence, be fair and impartial, disregard any statements made by anybody outside the courtroom?" He replied, "No. I mean, it's still gonna be based on all the facts in whole, as a whole."
The trial court also asked Juror No. 12 whether hearing of Sheffield's remarks "is going to have any bearing on your decision in this case?" He replied, "Well, it's — I heard it secondhand. And I can't say that it's not gonna weigh on my decision. But I'm still going to weigh all the facts at the end of the hearing. If I would have heard it myself, it would have a little bit more weight. But again, it came from somebody, and it's secondhand. I don't know if what she said was completely accurate. So to me, it's up to me to listen to the facts and make a decision on my own. So... but in a way, in a way it does say, you know, 'I didn't think he was gonna hurt me.' Now, if he says, 'I thought he was gonna hurt me,' it's tough, you know, right there. But it still is my — my personal opinion is that I am going to wait until I hear everything, and then make a decision based on what I have heard and not really what somebody else heard. It's just like speculating, you can't really speculate. You have to define what speculation is and what fact is at the end, anyways."
The defense attorney then inquired of Juror No. 12, "Do you think you can just disregard that statement altogether, or —." Juror No. 12 replied, "I'm gonna have to."
The trial court clarified, "Okay. So you will disregard that statement?" Juror No. 12 replied, "Yes." The trial court continued, "And jurors could only consider what they hear in the courtroom from witnesses under oath, exhibits." Juror No. 12 replied, "I understand that." The trial court pressed further, "Easier said than done. But I mean, you believe you could adhere to that?" Juror No. 12 replied, "Yes, I do." Juror No. 12 then explained, "I know there is a lot more evidence to be presented, and you come to conclusions every step of the trial. I mean, you know — but again, you'd have to understand, you have to differentiate at the end what's fact and what's speculation and make your decision based on that. I mean, that's what I'm basing my whole experience here on."
After admonishing Juror No. 12 not discuss the matter further with Juror No. 3, Juror No. 1, or anybody else and not to discuss the matter during deliberations, the trial court asked Juror No. 12 once again, "And this would have no impact on your ability to be fair and impartial?" Juror No. 12 replied, "No. I'm gonna be as fair as I humanly can be." He went on to state, "I wouldn't want to be in either [Sheffield's or Fletcher's] position. So I'm gonna be as fair as I can be to either one."
Following the interviews, the prosecutor expressed her belief the three jurors would not be able to deliberate without thinking about Sheffield's remarks, but was unsure how to address the problem. The trial court indicated that it must take the jurors at their word and it did not feel uncomfortable keeping them, but could be persuaded otherwise if either party presented a strong reason.
The trial court took a short recess to allow the prosecutor an opportunity to confer with a supervisor. Upon returning from the recess, the prosecutor reported that she asked Sheffield about his conversation and his version of events differed from Juror No. 3's version. Specifically, when the person asked him whether he was scared or thought he was going to be hurt, he said his response was, "Yes." Concerned the three jurors were potential impeachment witnesses, the prosecutor requested a mistrial.
There were no alternate jurors.
The trial court thought the possibility of the three jurors being witnesses was unlikely. In addition, the defense attorney objected to a mistrial and indicated she was not planning on cross-examining Sheffield about his remarks during the recess.
After conferring with her supervisors once more, the prosecutor again asked for a mistrial. She argued it was impossible for the jurors to refrain from considering Sheffield's remarks during their deliberations. She also indicated she felt uncomfortable ignoring the conversation since it was her duty to bring out the truth. The defense attorney again objected to the mistrial, arguing Fletcher did nothing to cause it and would be greatly prejudiced by it.
Changing its earlier view, the trial court expressed concern that Sheffield's remarks were going to be weighing on Juror No. 12's mind notwithstanding the juror's assurances he would put them aside and be fair and impartial. The trial court then decided to declare a mistrial, stating "I just don't how we could move off with these three jurors, one of which, [Juror No. 12], I thought his statements were fairly convincing. And I just think there's a problem with moving on."
DISCUSSION
Fletcher contends the double jeopardy clauses of federal and state Constitutions barred his second trial because the trial court declared a mistrial in his first trial without legal necessity. We agree the state Constitution's double jeopardy clause barred the second trial.
"The federal [U.S. Const., 5th Amend] and state [Cal. Const., art. I, § 15] Constitutions protect persons against being twice placed in jeopardy for the same offense. [Citations.] Retrial after discharge of a jury without 'manifest' (in federal terminology) or 'legal' necessity violates the protections afforded under both charters." (People v. Halvorsen (2007) 42 Cal.4th 379, 425.) "California provides its citizens a greater degree of protection against double jeopardy than that provided by federal law by placing limitations on what constitutes 'legal necessity.' [Citations.] A judicial error of law or procedure does not constitute legal necessity. [Citations.] Rather, 'legal necessity for a mistrial typically arises from an inability of the jury to agree [citations] or from physical causes beyond the control of the court [citations], such as the death, illness, or absence of judge or juror [citations] or of the defendant [citations].' " (Carrillo v. Superior Court (2006) 145 Cal.App.4th 1511, 1525, fn. omitted.)
I
No Good Cause to Discharge Jurors
The People contend there was legal necessity for a mistrial in this case because the trial court had good cause to discharge the three jurors and, after their discharge, the jury would have consisted of less than 12 members. "We review a trial court's decision to discharge a juror under an abuse of discretion standard, and will uphold such decision if the record supports the juror's disqualification as a demonstrable reality. [Citations.] The demonstrable reality test 'requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that [disqualification] was established.' [Citation.] To determine whether the trial court's conclusion is 'manifestly supported by evidence on which the court actually relied,' we consider not just the evidence itself, but also the record of reasons the court provided. [Citation.] In doing so, we will not reweigh the evidence." (People v. Wilson (2008) 43 Cal.4th 1, 26.)
Applying these principles, we conclude the trial court did not have good cause to dismiss Juror Nos. 1 and 3. The trial court did not give a specific reason for discharging them and the evidence in the record does not establish as a demonstrable reality they were unable to perform their duty to fairly deliberate. Both jurors repeatedly assured the trial court Sheffield's remarks would not affect their ability to be fair and impartial. The trial court did not state it found their assurances insincere nor is there any evidence in the record to support such a finding. To the contrary, the fact the jurors voluntarily reported the matter to the trial court at the earliest opportunity demonstrates their earnestness.
For similar reasons, we conclude the trial court did not have good cause to discharge Juror No. 12. The trial court was appropriately more concerned about Juror No. 12 than the other two jurors because Juror No. 12 did not immediately assure the trial court Sheffield's remarks would not factor into his decision. However, after the trial court explained he could not consider extraneous information, he readily agreed to disregard the conversation and refrain from discussing the matter with other jurors before or during deliberations. He further assured the court the conversation would not affect his ability to be fair and impartial and he intended to be as fair as humanly possible.
Despite these assurances, the trial court decided to grant a mistrial because it was concerned the matter would still weigh on Juror No. 12's mind. Such a concern does not constitute good cause to discharge a juror during trial unless the juror is actually unable to perform his or her duty to deliberate fairly. (People v. Compton (1971) 6 Cal.3d 55, 59 (Compton) [cause sufficient to disqualify a juror before trial is not sufficient to discharge a juror during trial unless the juror is actually unable to perform his or her duty], disapproved on another point in People v. Boyette (2002) 29 Cal.4th 381, 462, fn. 19.) Since Juror No. 12 agreed not to discuss or consider Sheffield remarks and assured the trial court he could still be fair and impartial, and since the trial court expressly found Juror No. 12 to be credible, the record does not establish as a demonstrable reality that Juror No. 12 was actually unable to perform his duty. Consequently, the record does not establish the trial court had good cause to discharge him.
II
No Legal Necessity for a Mistrial
Even assuming the trial court had good cause to discharge one or more of the jurors, "[t]he fact that a juror's actions or beliefs would provide 'good cause' for his replacement if an alternate were available does not mean that there is 'legal necessity' for a mistrial where no alternate is available." (Larios v. Superior Court (1979) 24 Cal.3d 324, 332 (Larios).) In Larios, a juror independently investigated and uncovered facts the juror believed corroborated a prosecution witness's testimony. (Id. at pp. 327-328.) The juror also believed the information would affect his ability to judge the case fairly because he was likely to determine the credibility of witnesses based on the facts he uncovered. (Id. at p. 328.) Nonetheless, the juror recognized it would be unfair to the defendant if the juror used the information to influence the jury. (Ibid.)
As there were no alternate jurors and defense counsel would not stipulate to an 11-person jury, the trial court declared a mistrial, denied defendant's motion to dismiss, and set the matter for retrial. (Larios, supra, 24 Cal.3d at p. 328.) The California Supreme Court reviewed the matter and concluded retrial of the defendant would violate the state Constitution's double jeopardy clause because, notwithstanding the juror's actions, a 12-person jury was present and available to render a verdict, the other jury members did not know anything about the juror's independent investigation, and the juror recognized it would be unfair to reveal his findings to the other jury members. (Id. at p. 331.) Although the court acknowledged there was good cause to dismiss the juror, the court reasoned that as long as the jury is not actually precluded from rendering a verdict, even palpably prejudicial juror misconduct does not constitute legal necessity for a declaring a mistrial. (Id. at pp. 330-331; see also Mitchell v. Superior Court (1984) 155 Cal.App.3d 624, 628 (Mitchell) [juror misconduct does not typically constitute legal necessity for a mistrial because juror misconduct does not necessarily prevent or disable a juror from performing his or her duty].)
Here, as in Larios, a 12-person jury was present and available to render a verdict notwithstanding the actions of the three jurors. Moreover, the other nine jurors knew nothing about Sheffield's remarks and the three jurors understood they could not discuss the matter further or consider the matter during their deliberations. Accordingly, as the Supreme Court did in Larios, we conclude the trial court discharged the jurors in the first trial without legal necessity.
The People's reliance upon Mitchell is misplaced. In Mitchell, a juror was exposed to negative remarks about the racial composition of the jury. (Mitchell, supra, 155 Cal.App.3d at p. 626.) The juror initially told the trial court he had laughed off the remarks, but the juror later sent the trial court a note stating he was unable to take notes or listen to the testimony because his mind was wandering thinking about the remarks. (Ibid.) In a subsequent chambers hearing, the juror told the trial court he did not think he could continue as a juror because his mind was wandering, he missed some of the evidence, and he was starting to judge the case despite not having all the facts. (Ibid.) The trial court discharged the juror, finding that he was unable to concentrate on the evidence or consider it impartially and that he had prejudged the matter. (Id. at pp. 626-627.) After the defense counsel declined to stipulate to an 11-person jury, the trial court declared a mistrial. (Id. at p. 627.)
At the Supreme Court's behest, the appellate court reviewed the matter. (Mitchell, supra, 155 Cal.App.3d at p. 627.) Based on the Supreme Court's decisions in Larios and Compton, the appellate court concluded "[t]he fact that the juror entertained or expressed some prejudicial attitude" did not constitute legal necessity for a mistrial. (Mitchell, at p. 629.) Nevertheless, the court concluded the juror's inability to concentrate did constitute legal necessity for a mistrial because it actually prevented the juror from being able to perform his duty. (Id. at p. 629.)
Unlike in Mitchell, the record in this case does not show Sheffield's remarks would have distracted the three jurors or otherwise actually prevented them from being able to perform their duty. Rather, the record shows they all steadfastly assured the court they were willing and able to perform their duty fairly and impartially. Therefore, contrary to the People's assertions, Mitchell does not support the existence of legal necessity for a mistrial in this case.
DISPOSITION
The judgment is reversed.
WE CONCUR NARES, J., AARON, J.