Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. BAF006221 Craig Riemer, Judge.
Susanne C. Washington, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
Ramirez P.J.
After a juror was excused for cause during the presentation of testimony, and lacking an alternate juror, defendant Thomas Dante Flucker declined to proceed with the remaining jurors and the prosecutor withdrew from a stipulation to reopen jury selection. The trial court therefore granted a mistrial over defendant’s objection. On retrial, defendant was convicted of one count of selling more than one ounce of marijuana (Health & Saf. Code, § 11360, subd. (a)), and was placed on formal probation. Defendant appeals the conviction arguing that (1) the retrial was barred by double jeopardy principles, and (2) the trial court erroneously admitted statements made by Miguel Davis to the undercover officer as a statement by a coconspirator. We affirm.
BACKGROUND
On April 16, 2008, Riverside Sheriff’s Deputy Judith Edwards (Deputy Edwards) went into a business establishment known as RES Records as part of an undercover narcotics operation. In the store she met defendant. Deputy Edwards introduced herself to defendant, who introduced himself to her. Deputy Edwards asked defendant where she might find a good place to party (i.e., use drugs), and where she could buy a marijuana pipe. Defendant told her of a head shop where she could buy a pipe. They also discussed the upcoming Coachella Music Festival, and Deputy Edwards purchased a shirt to wear to the festival. Deputy Edwards left after indicating she might meet up with defendant at a nearby bar.
On May 29, 2008, Deputy Edwards returned to RES Records in her undercover capacity. Deputy Edwards parked in the parking lot and entered the store. Inside the store were three people: the defendant (who is Black), a white male who was talking on his cell phone (later identified as Justin), and another Black male later identified as Michael Tyrone Davis (or Miguel). Detective Edwards knew who Justin (the man on the cell phone) was because the case agent on the case showed her a picture of him before she entered the store. Justin was the person Detective Edwards wanted to contact. Deputy Edwards made contact with defendant first and asked if he remembered her. Defendant indicated he did remember her and asked how the Coachella Music Festival was.
After some more conversation, Detective Edwards asked defendant where she could get some “weed.” Defendant replied by pointing to Justin, the man on the phone, and told her that Justin was the man who could get anything she wanted. Because Justin was still on the phone, Detective Edwards continued talking with defendant. When she could not get Justin’s attention, Detective Edwards asked defendant if she could get something at the bar down the street from the store. Defendant said yes, and Detective Edwards said she would see him at the bar that night. Detective Edwards then left the store and got into her car to leave.
After Detective Edwards got into her car and started it up, she saw defendant approach her; he came up to the passenger window and leaned in when she lowered it. Defendant told Detective Edwards that after she had left the store, “the other guy” (Miguel) told him he could sell her marijuana, if she still wanted some. Detective Edwards indicated she did, and defendant went back into the store.
Then the “other guy” (Miguel) came out of the store and came up to the passenger window. Miguel said defendant had told him she wanted marijuana and asked her how much she wanted to purchase. Detective Edwards indicated she had $100, but Miguel said he did not want to take the entire amount, so he told her he could sell her $30, $40, or $60 worth of marijuana. Detective Edwards then told Miguel she was interested in buying $40 worth of Chronic, a type of marijuana. Detective Edwards handed Miguel the money and Miguel went back inside the store, returning shortly with a green leafy substance in a plastic baggie. Miguel then went back into the store and Detective Edwards drove back to the office where she turned the green leafy substance over to the case agent. Laboratory tests of the substance in the baggie revealed it to be 1.32 grams of marijuana. The amount was a usable quantity.
By an amended information, defendant was charged with possession for sale of marijuana (Health & Saf. Code, § 11359, count 1), and selling or furnishing more than one ounce of marijuana. (Health & Saf. Code, § 11360, subd. (a).) Jury trial commenced on May 11, 2009. Although the court apparently intended to select an alternate, but after the jury panel was sworn, no alternate was selected.
The defense objected to the fact that an alternate was not selected; however, the court noted that the decision whether or not to use an alternate was entirely within its discretion, and an entirely new panel would have to be called up because they ran through the entire venire selecting the jury and had exhausted all peremptory challenges. Because trial was estimated to last less than a day, the time necessary to select an alternate seemed disproportionate to the length of the trial.
Midway through the testimony of the first prosecution witness, a juror recognized the name of Michael Tyrone Davis from one of the exhibits. Defense counsel argued that it would be “extraordinarily prejudicial” to allow the juror to sit on the jury. The court inquired further of the juror to determine if the Michael Davis he knew was the same person as the codefendant named in the complaint. The juror was familiar with two persons of that name, father and son, and he had known the son, the person who was named in the complaint, for about 19 to 20 years. The court decided to excuse the juror and asked both counsel whether they preferred to declare a mistrial, or to keep the 11 jurors they had and call up a new venire panel, to select a new juror as well as an alternate. Defendant opted to pick another juror and an alternate. The prosecutor acquiesced in the decision to select a new juror and alternate, and juror No. 10 was excused.
Michael Tyrone Davis was the person identified as “Miguel.”
The next day, the prosecutor indicated the People no longer approved of that alternative because the original 11 jurors had already heard certain evidence and requested that the court declare a mistrial. The defense objected to a mistrial, but absent a stipulation to an alternative to a mistrial, the court declared a mistrial.
Prior to commencement of retrial, defendant made a motion to dismiss, arguing that retrial was barred because jeopardy had attached. The motion was denied. During retrial, defendant made a motion for acquittal of count 1 (the possession for sale count), which was granted and count 1 was dismissed. Defendant was convicted of the sale of marijuana in count 2. Defendant was granted probation, and appealed.
DISCUSSION
1. Mistrial Was Legally Necessary So Retrial Did Not Violate Double Jeopardy Principles.
Defendant argues that retrial was barred because jeopardy had attached. We agree that jeopardy had attached, but we disagree that retrial was barred since the mistrial was legally necessary.
Once a jury has been sworn, jeopardy has attached for purposes of state and federal constitutional prohibitions against double jeopardy. (People v. Riggs (2008) 44 Cal.4th 248, 279, fn. 12, citing People v. Smith (1983) 33 Cal.3d 596, 600; Crist v. Bretz (1978) 437 U.S. 28, 35 [98 S.Ct. 2156, 57 L.Ed.2d 24].) Once jeopardy has attached, a discharge of the jury without a verdict is equivalent in law to an acquittal and bars a retrial, unless the defendant consented thereto or legal necessity required it. (People v. Compton (1971) 6 Cal.3d 55, 59; Curry v. Superior Court (1970) 2 Cal.3d 707, 712-713.)
“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 or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a 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.” (Pen. Code, § 1089.) If there is no alternate juror, the jury shall be discharged and a new jury then or afterwards impaneled and the cause may again be tried. (Code Civ. Proc., § 233.)
The belated discovery of a ground for disqualification of a juror while trial is in progress may amount to good cause to order the juror’s discharge. (People v. Compton, supra, 6 Cal.3d at pp. 59-60.) The trial court at that point is charged with evaluating the “legal necessity” of discharging the sworn jury. (People v. Riggs, supra, 44 Cal.4th at p. 279, fn. 12, citing People v. Upshaw (1974) 13 Cal.3d 29, 33.) Absent legal necessity, the discharge of the jury without the defendant’s consent is equivalent to an acquittal of the charge and constitutes former jeopardy on a subsequent trial on the same charge. (People v. Snyder (1976) 56 Cal.App.3d 195, 201-202; Hutson v. Superior Court (1962) 203 Cal.App.2d 687, 689.)
Legal necessity for a mistrial typically arises from an inability of the jury to agree or from physical causes beyond the control of the court, such as the death, illness, or absence of judge or jury or of the defendant. (Curry v. Superior Court, supra, 2 Cal.3d at pp. 713-714.) The discharge of a juror for good cause amounts to a legal necessity. (People v. Hernandez (2003) 30 Cal.4th 1, 5, citing People v. Collins (1976) 17 Cal.3d 687, 696-697; see also Mitchell v. Superior Court (1984) 155 Cal.App.3d 624, 627-628.)
Defendant raises several points in arguing that mistrial was not legally necessary. First, he argues that because the prosecutor intentionally withdrew from the stipulation to a select a new twelfth juror and an alternate, in order to establish a basis for mistrial, the second trial was barred by double jeopardy. Defendant also argues that the disqualification of the juror did not support a finding of legal necessity for mistrial, relying on the holding of Larios v. Superior Court (1979) 24 Cal.3d 324, 329, and Curry v. Superior Court, supra, 2 Cal.3d at page 712. These arguments ignore the fact that it was defendant who challenged the juror for cause, and who strenuously argued that prejudice would result if the juror remained on the panel. It was also defendant who declined to be tried by the remaining 11 jurors, which created the legal necessity in the first instance. (Code Civ. Proc. § 233.) The fact that the prosecutor withdrew from the stipulation to select a new juror does not change the situation, because the court lacked authority to reopen jury selection after the jury has been sworn. (Code Civ. Proc., § 226, subd. (a) ; People v. Cottle (2006) 39 Cal.4th 246, 255, 258.) Whether defendant would have withdrawn his challenge to the juror, or would have agreed to proceed with the remaining jurors to avoid a mistrial is not for us to speculate, since defendant did not do so.
At oral argument, defendant asserted that Code of Civil Procedure section 226 was inapplicable to this case, arguing that it only applied to peremptory challenge situations. We read the statute to apply to any challenge to an individual juror, as opposed to challenges to the panel as a whole, given the specific reference to both types of challenge.
Defendant points to the last sentence of Code of Civil Procedure section 233, which states, “Alternatively, with the consent of all parties, the trial may proceed with only the remaining jurors, or another juror may be sworn and the trial begin anew” [italics added] as support for his argument that mistrial was not a legal necessity. However, we have found no case in which jury selection has been recommenced, with a new venire, after witnesses have been sworn and testified.
In People v. Cottle, supra, 39 Cal.4th 246, the California Supreme Court held that once the jury has been sworn, even though the alternates have been selected, the court lacks authority to reopen jury selection proceedings, citing section 226 of the Code of Civil Procedure. However, it went on to hold that this conclusion did not leave the court without recourse should a juror become unable to serve. “Code of Civil Procedure sections 233 and 234 and Penal Code section 1089 provide for the removal of a juror upon a showing of good cause.” (Id. at p. 259.) Cottle says nothing about reopening jury selection after the evidentiary phase of the trial has commenced.
In People v. DeFrance (2008) 167 Cal.App.4th 486, a juror expressed his inability to serve after both sides had passed consecutively, but before the panel had been sworn. The prosecutor requested use of a peremptory challenge to remove the juror and, over the defendant’s object, the court reopened jury selection. The reviewing court held that the finding of “good cause” permitted the court to reopen jury selection. (Id. at p. 504.) Because of the stage of the jury selection proceedings in DeFrance, it is not authority for defendant’s assertion that discharge of a juror after jeopardy has attached was not legally necessary.
The discharge of the juror for good cause amounted to a legal necessity for mistrial. Since the defendant did not agree to proceed with trial with the remaining jurors, and since the court lacked authority to reopen jury selection, it had no recourse but to discharge the entire panel. (Code Civ. Proc., § 233.) There was no double jeopardy violation.
2. Admission of Miguel’s Statement to Deputy Edwards Was Harmless.
Defendant argues that it was error to allow Deputy Edwards to testify that Miguel said defendant had told him she wanted marijuana and asked her how much she wanted to purchase. The trial court admitted the evidence as a statement by a coconspirator. On appeal, defendant urges there was an insufficient prima facie showing of the existence of a conspiracy. We review for abuse of discretion. (People v. Sanders (1995) 11 Cal.4th 475, 516; People v. Fields (1998) 61 Cal.App.4th 1063, 1067.) We find no error.
Hearsay evidence is generally inadmissible. (Evid. Code, § 1200.) However, a hearsay statement is admissible against a party if (a) the statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy; (b) the statement was made prior to or during the time that the party was participating in that conspiracy; and (c) the evidence is offered either after the admission of evidence sufficient to sustain a finding of the facts of (a) and (b), or, in the court’s discretion as to the order of proof, subject to the admission of such evidence. (Evid. Code, § 1223; see People v. Hardy (1992) 2 Cal.4th 86, 139.)
A conspiracy is an agreement between two or more persons, with specific intent, to achieve an unlawful objective, coupled with an overt act by one of the conspirators in furtherance thereof. (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1402.) Only prima facie evidence of a conspiracy is required to permit the trial court to admit evidence under the coconspirator’s exception; the conspiracy may be shown by circumstantial evidence and the agreement may be inferred from the conduct of the defendants mutually carrying out a common purpose in violation of a penal statute. (People v. Jeffery (1995) 37 Cal.App.4th 209, 215, citing Olivencia, at pp. 1402-1403; see also, People v. Longines (1995) 34 Cal.App.4th 621, 626.)
In the present case, Deputy Edwards initially asked defendant where she could buy some marijuana while she was in the store, and defendant pointed to Justin, the individual who was on the phone. After some conversation, Deputy Edwards exited the store and got into her car as if to leave, when defendant approached her in the parking lot. This time defendant indicated that “the other guy” could sell her some marijuana. When Deputy Edwards signaled that she was still interested, the defendant went back into the store and “Miguel” came out and approached Deputy Edwards’s car window. This is sufficient prima facie evidence of an agreement between defendant and Miguel-if not all three of the people who worked at the store-to sell marijuana to Deputy Edwards after defendant reentered the store and before Miguel went out to speak to Deputy Edwards.
Defendant’s theory of the case was that he was hoping to “hang out” with Deputy Edwards, who had been flirting with him, and did not intend to engage in a drug transaction with her. However, in his enthusiasm, he facilitated a sale of marijuana to the undercover officer by telling her that Michael (or Miguel) had some marijuana, and then dispatching Miguel to Deputy Edwards’s location where the transaction took place. Even if we were to conclude otherwise, we would find any error in admitting the statement to be harmless in light of defendant’s own testimony that he told her “My boy says that he has some weed.” Whether defendant intended to mean that Miguel would smoke some marijuana with her or sell it to her is irrelevant, since the crime of which defendant was convicted covers furnishing and giving away marijuana, as well as selling it. (Health & Saf. Code, § 11360, subd. (a).)
There was no abuse of discretion in admitting the statement.
DISPOSITION
The judgment is affirmed.
We concur: King J., Miller J.