Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA097857, Margaret Miller Bernal, Judge.
Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.
MALLANO, P. J.
Manuel Gomez appeals from the judgment entered following a jury trial in which he was convicted of possession of a firearm by a convicted felon and possession of ammunition by a convicted felon. He also admitted that he had suffered a prior felony conviction under the “Three Strikes” law. Defendant contends that the judgment must be reversed because the trial court erroneously dismissed Juror No. 11, who had repeatedly expressed doubts about her ability to convict in the absence of physical evidence. We disagree and therefore affirm the judgment.
BACKGROUND
In August 2006, defendant accompanied Joshua Johnson to a Norwalk residence where Johnson’s ex-girlfriend lived with her father, Dale Medina. Johnson’s purpose was to collect his belongings. As defendant sat in Johnson’s truck while Johnson carried items outside, Johnson and Medina got into an argument. Defendant, whom Medina did not know, got out of the truck and pointed a nine-millimeter semiautomatic handgun at Medina. Medina went into the house and called the police. Medina later identified defendant from a photographic lineup.
On October 26, 2006, officers served a search warrant at defendant’s residence (a converted garage behind defendant’s parents’ house). No firearms were found, but 28 rounds of.22-caliber ammunition were discovered in defendant’s kitchen drawer. Defendant told officers that during the argument between Medina and Johnson, Medina said he was going into his house to get a gun. The firearm described by Medina was a BB gun that belonged to Johnson.
In defense, defendant’s wife testified that she had never seen a gun at their residence. The seized ammunition was found in a “junk drawer,” to which persons other than defendant had access.
Defendant was sentenced to 5 years 4 months in state prison.
DISCUSSION
1. The Record
At the beginning of voir dire, in response to questioning from the court whether jurors would give greater weight to the testimony of a police officer, then-Prospective Juror No. 11 stated: “I would believe the officer more” “[b]ecause they are always right.” Under further questioning, the prospective juror stated that she would believe a law enforcement officer over “just another witness.”
Questioning was then turned over to defense counsel, as follows:
“[Defense Counsel]: Good Afternoon. As the judge said, this is a possession case. Have any of you or do any of you follow shows like CSI and Court T.V.? [¶] Which show do you follow?
“A Prospective Juror: CSI. NCIS. Three CSI’s.
“[Defense Counsel]: Number 12.
“Prospective Juror No. 12: Law and Order.
“Prospective Juror No. 11: CSI.
“[Defense Counsel]: Number 11, do you think they are realistic?
“Prospective Juror No. 11: Well
“The Court: You said police officers tend to, they are always right. Compare that to the show. Do you see the same sort of
“Prospective Juror No. 11: I do believe that most of them are based on cases, things that have happened.
“[Defense Counsel]: Five, how realistic do you think the crime shows are?
“Prospective Juror No. 5: I don’t believe they are all true.
“[Defense Counsel]: Occasionally some of those shows, they have witnesses or court scenes and witnesses testify and they always have some dramatic ending where somebody walks in with a piece of evidence that keeps you tuned to the show until the last commercial shown. [¶] Do you believe that it is possible to convict a person without any evidence, physical evidence?”
After the jurors responded to that question, the prosecutor began his voir dire:
“[The Prosecutor]:... [¶] Ladies and gentlemen, let’s start with the CSI stuff. This isn’t CSI. Everybody understand that. I probably watch as well as anybody else here. [¶] And if you calculate the amount of people working, the amount of hours on one specific case they show on those shows, every county in California would be bankrupt in January.”
“[The Prosecutor:] Now, somebody said, raise your hand again who said they would want physical evidence to find somebody guilty of a crime. Somebody said that. Raise your hands. It just happened a minute ago. Remember, physical evidence. [¶] Juror Number 10. Anybody else believe that way? Number Two. All right.
“Now, let’s give an example here. Let’s say in this courtroom it was a crime for the D.A. to sit on the table with his feet up in the air, not touching the ground and and drinking water. [¶] Can all of you see that I am doing this? Anybody have any doubt that I am doing this? Anybody raise your hand if you think I am somehow magically making a trick here. No tricks. [¶] Okay. How many of you, if you were a juror and heard testimony that I was sitting on the table with my feet off the ground and heard that testimony, how many of you would be able to find me guilty? [¶] Nobody. I mean, you saw it happen, folks. Okay. And that is when you knew it happened. Right. There is not going to be any physical evidence. [¶] Do you understand that? If you demanded physical evidence to every crime, then what we would be saying is society is, that as long as you can commit crimes and not leave any DNA, not leave any video cameras, that that would be okay.”
“[The Prosecutor:] Law also says that you can find somebody guilty of a crime, based on the witness testimony of one witness if you believe that witness. [¶] Anybody feel uncomfortable with that? You are feeling uncomfortable with everything here.
“Prospective Juror No. 10: We base also on the witness.
“[The Prosecutor]: Right. One witness, no other evidence. Tell me now so we can talk. [¶] Besides Juror Number 10, anybody feel uncomfortable with that? Same principle. That Juror Number 2 robbed. There is not going to be witnesses. If we say no robber, go free.
“Prospective Juror No. 11: My problem.
“[The Prosecutor]: This is good. Are asking me questions.
“Prospective Juror No. 11: The case is on possession, so, why is there no evidence?
“[The Prosecutor]: Possession of a weapon. Here we have done two things. We will talk about both things you just did. That is good. [¶] Number one, you have to decide this case based on evidence you hear, right, as a juror. Make sense?
“Prospective Juror No. 11: Yes.
“[The Prosecutor]: One of the rules, jurors not to speculate. Okay. So, part of what you are kind of doing is speculating. Do you see what I am saying? [¶] The law says, and I am not talking about this case, but just because want to make sure everybody understands. The law says if somebody of a certain class of people, that being someone with a prior felony conviction, can’t have a gun. Not today, not tomorrow, not ever. [¶] Your decision as a juror is, did you hear evidence that convinced you beyond reasonable doubt that he had, that the person had a gun. That is what you are going to be making that decision. [¶] Does that make sense?
“Prospective Juror No. 11: Yes. But no evidence. With no evidence.
“[The Prosecutor]: Now, to hear evidence. You are going to hear evidence. May not be any physical evidence.
“Prospective Juror No. 11: Physical evidence.
“[The Prosecutor]: Right. Few minutes ago I was sitting on the table, right? What was I doing?
“Prospective Juror No. 11: Your feet were off the ground and drinking water.
“[The Prosecutor]: Right. So, if you hear witnesses come in here and say, I was drinking water. The fact that you don’t see any water, would that bother you?
“Prospective Juror No. 11: No.
“[The Prosecutor]: Okay. So, things can happen and there not be any physical evidence. Does that make sense? [¶] But now that I have you here, let me ask you one more question. Judge asked, can you follow the law? Everybody agrees you can follow the law. [¶] Okay. I find with jurors, no disrespect to anybody, it is simple to say that, so I have a little test. Here is my test. The test, I am picking on you, Juror Number 11. [¶] You are sitting on the jury and the person is charged with shoplifting, theft, petty theft. There is no doubt about the facts. [¶] Okay. The facts are that he went into Ralph’s. Went over to the produce section. Plucked a grape off a bushel of grapes. Ate the grape. And left without paying for it. No dispute at all about that. [¶] Would you have any problems finding that person guilty?
“Prospective Juror No. 11: No.”
As voir dire continued, challenges were exercised by both sides and jurors and alternates were ultimately selected. Upon the jurors and alternates being sworn in, the following took place:
“Juror No. 11: Before we go on, I know it is about possession of a weapon. I am going to have problems because I feel that I am going to need physical evidence and apparently there is no physical evidence.
“The Court: Well, that discussion was had, so
“Juror No. 11: If this has to be.
“The Court: Ma’am, you are going to get evidence and you just determine from the evidence whether it is enough. Okay. He had that discussion with you.
“Juror No. 11: I thought I did answer.”
The colloquy with Juror No. 11 ended when counsel approached the bench. Following the bench conference, the jurors were given preliminary instructions and all except Juror No. 11 were excused from the courtroom. Proceedings then continued as follows:
“The Court: Okay. For the record, all jurors are now out of the courtroom except Juror Number 11. You had indicated to the court briefly after you were sworn in that you felt that unless there was actual physical evidence, you would not be able to come back with a verdict of guilty. [¶] Is that correct?
“Juror No. 11: I have seen too much CSI, I guess. I don’t know. I figure if there is no evidence, that
“The Court: I am not saying there is isn’t any evidence. You will have witnesses testifying and other information. But I am sure you remember the district attorney explaining how or describing in his discussion with you about drinking of the water and the water is gone and it is gone at that point. That there is other reasons and explanations, and asking you if you would be able to listen to those and accept those. [¶] My understanding was that you said yes; is that correct?
“Juror No. 11: Yes.
“The Court: Have you changed your mind?
“Juror No. 11: Well, based on this case
“The Court: You haven’t heard anything about the case yet.
“Juror No. 11: Well, possession of a weapon, right?
“The Court: Yes.
“Juror No. 11: I figure if, if they caught him with a weapon, then should have been taken away from him.
“The Court: Well, as I said, you haven’t heard anything on the case. All you have heard is what the charges are. I guess the problem is that you are not allowed to make a decision and deliberate on a case until you have actually heard the evidence, and you haven’t heard anything yet and the questions to you earlier were as to whether you were going to be able to have an open mind as to the issues and listen to the explanations and then make your decision based upon all of it.
“Juror No. 11: I could do that. I just wanted to be truthful.
“The Court: That is fine. And I do appreciate that. I just would appreciate it before we swore you in. [¶]...
“[The Prosecutor]: I just want to make sure, maybe we are all, I understand you have been saying about physical evidence; but what we are really concerned about now at this point is that whatever ideas you have, can you set them aside, listen to the evidence and base solely on the evidence, not your opinions or your beliefs, but based on the evidence, can you make a decision?
“Juror No. 11: I could do that.
“[The Prosecutor]: Because right now what you have been doing is actually deliberating.
“Juror No. 11: I know.
“[The Prosecutor]: And that is not good. And if you can’t stop doing that, you need to just tell us now and we will resolve the problem. But that is the critical question we are all wondering now.
“Juror No. 11: Well, I have never been in a criminal trial, so I don’t know what the process is. It has to be unanimous when we do go back.
“The Court: And you know what, you will get instructions and that is what the purpose of those instructions is, to explain all of that to you. [¶] At this point, your position is just to be listening and absorbing it all. You don’t need to make, you are not allowed to make a decision at this point. That is the law. You have to be open to both sides. You can’t presume this case. You haven’t heard anything. [¶] So, your presumption is not guilty at this point, which is actually a fair presumption. However, the district attorney has a right to have a juror who would be open-minded and listen to his, all of his evidence and not conclude before any of that evidence has been given that the case is not good. [¶] Do you understand that?
“Juror No. 11: Yes.
“The Court: So, tell us how you feel.
“Juror No. 11: Well, that is how I felt, that to me, when these are the charges, I expect to see physical evidence. [¶] I am not saying that he did have it, so, therefore, you know, but if he didn’t have it, so, he didn’t have it. It is his word against the police officer.
“The Court: And that is fair for you to ask that question and that is why the People indicate that they will be giving you what they have and based upon what they have, you can make that decision at that point. But not now. You can’t make that decision now. [¶] Do you understand that?
“Juror No. 11: Yes.
“The Court: Okay. And are you willing to do that?
“Juror No. 11: Yes.
“The Court: Be fair and open and listen to what their evidence and their explanations are?
“Juror No. 11: Yes. I can hear what they have to say.
“The Court: Okay. Any other questions?
“[The Prosecutor]: No.”
Prospective Juror No. 11 then left the courtroom and the following ensued:
“[The Prosecutor]: The problem I have now is what she said prior to being sworn in and what she said after she was sworn in, had that occurred before she was sworn in, she would have been excused. [¶] And I am not even clear at this point, other than she is saying what we want to hear, but she doesn’t seem to be saying it with much conviction. [¶] I am going to ask her be excused for cause just to play it safe here.
“The Court: Okay....
“[Defense Counsel]: I would object to that, your Honor. As she said when she was talking, her concern was that she disclosed everything so that she is not misleading the court. [¶] I, I think that is what she was trying to indicate and she, never having juror experience before, wanted to be certain she was not doing something wrong. But I think by the time we finished questioning her, she understands that she is to listen to the evidence and make a decision based on that and that is what she said.
“The Court: Okay. Anything else?
“[The Prosecutor]: No. I don’t disagree with that other than she said it after she was sworn and not before, and that that changes the whole status of her ability to communicate with us. [¶] And that is, unfortunately, the dishonest part of what occurred.
“The Court: I am going to grant the request to excuse her for cause. [¶] I think from her answers, she has pre-judged the case. Every time we come back, she says but, but, but. That is my basis for it.”
Juror No. 11 was then dismissed and an alternate juror seated in her place.
2. Analysis
“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.) “A juror who is actually biased is unable to perform the duty to fairly deliberate and thus is subject to discharge. [Citations.]” (People v. Barnwell (2007) 41 Cal.4th 1038, 1051.)
An appellate court “‘review[s] for abuse of discretion the trial court’s determination to discharge a juror and order an alternate to serve. [Citation.] If there is any substantial evidence supporting the trial court’s ruling, [the appellate court] will uphold it. [Citation.] [The Supreme Court] also ha[s] stated, however, that a juror’s inability to perform as a juror “‘must appear in the record as a demonstrable reality.’” [Citation.]’ [Citation.]” (People v. Cleveland (2001) 25 Cal.4th 466, 474.)
In addition, as noted in the context of challenges for cause on death penalty voir dire, “we pay due deference to the trial court, which was in a position to actually observe and listen to the prospective jurors. Voir dire sometimes fails to elicit an unmistakably clear answer from the juror, and there will be times when ‘the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.... [T]his is why deference must be paid to the trial judge who sees and hears the juror.’ [Citations.] Thus, if the juror’s responses are conflicting or equivocal, the trial court’s determination as to bias is binding on the reviewing court.” (People v. Cain (1995) 10 Cal.4th 1, 60.)
Here, substantial evidence supports the trial court’s decision to excuse Juror No. 11. During voir dire, she expressed a hesitance to convict in the absence of physical evidence. Immediately upon being sworn and in the presence of other jurors she said she was “going to have problems because I feel that I am going to need physical evidence and apparently there is no physical evidence.” And in the discussion that took place after the other jurors had been excused, she reiterated that she “expect[ed] to see physical evidence.” Although Juror No. 11 also asserted that she could judge the matter fairly, the perspective she expressed provided a legitimate basis for the trial court’s conclusion that “[Juror No. 11] has pre-judged the case.” Accordingly, the trial court did not abuse its discretion in granting the request to excuse Juror No. 11.
DISPOSITION
The judgment is affirmed.
We concur: ROTHSCHILD, J., WEISBERG, J.
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.