Opinion
H023829.
10-30-2003
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM CARL JAHN, Defendant and Appellant.
Defendant William Carl Jahn was found guilty of two counts of first degree murder with multiple-murder and lying-in-wait special circumstances. He was sentenced to state prison for two consecutive terms of life without parole. On appeal he challenges the trial courts refusal to replace a juror whom he would have challenged if she had revealed during jury selection that she knew several peace officers. The juror made the revelation after the jury was sworn. Defendant also claims the prosecutor should not have been allowed to impeach his credibility with a prior conviction for possession of a firearm by a felon.
FACTS
The shootings that killed John Evans and his brother Mickie King at Evanss home on September 14 to 15, 1984, also wounded Evanss close friend, Michael Osorio. Osorio survived and testified at defendants trial. Evans was a methamphetamine dealer who did not like methamphetamine users hanging around the house where he lived with his girlfriend Barbara Payne and their 10-month-old child and where King lived in the converted garage. Evans was trying to get out of the business and move to Sacramento.
The killings were in retaliation for Evanss shooting of Nicky Nickerson, a methamphetamine user who was brought to Evans house after his recent release from jail. Nickerson would laugh about robbing drug dealers and raping their girlfriends in front of them, and Evans did not want him around. On Nickersons first visit, Evans told him to leave and never come back. At least three times after that, Nickerson came to Evanss house to pound on the door and threaten to kill Evanss "old lady" and child and burn down the house.
About a month before the killings, Evans shot Nickerson when he came to Evanss house armed with a sawed off shotgun and accompanied by another man and assaulted Barbara Payne. After the shooting, Nickersons family told police that if Evans was not adequately dealt with within 30 days, they would take care of the matter themselves.
On the evening of the killings, several men possibly including defendant broke into Evanss home, handcuffed King and Osorio and waited for Evans to return home. Defendant denied being in the house before Evans got there, but testified he met up with Evans at a 7-Eleven store and arranged to meet Evans at his house for a drug transaction. When defendant arrived, Evans was waiting for him in his car parked in the driveway. Defendant accompanied Evans to his front door, and when Evans opened it, he was fatally shot. Defendant was also shot four times.
Defendant ran as fast as he could away from the scene to a friends house for help. The friend got a home care aide to attend to defendants wounds. She was told that defendant had been in a fight but that nothing illegal had happened and that the wounds were not gunshot wounds. Years later, defendant was connected to the incident when DNA testing of blood collected outside Evanss house matched his. The prosecutions theory was that defendant was an aider and abettor or conspirator in the shootings.
Defendant was convicted by a jury on September 11, 2001, and was sentenced on November 16, 2001. This appeal ensued.
ISSUES ON APPEAL
Defendant asserts that the trial court committed reversible error by refusing to replace Juror No. 12 and by allowing defendant to be impeached by a prior conviction for possession of a firearm by a felon.
REPLACEMENT OF THE JUROR
Defendant asserts that the denial of a peremptory challenge to which the defendant is entitled is per se reversible error when the record reflects his desire to excuse a juror before whom he was tried. (United States v. Annigoni (9th Cir. 1996) 96 F.3d 1132, 1139; People v. Bittaker (1989) 48 Cal.3d 1046, 1087.)
Jury selection took three court days on July 17, 18 and 24, 2001. The 12 jurors were sworn on July 18 before the alternates were selected. Over the recess, Juror No. 12 sent a letter dated July 20 to the court disclosing that during voir dire, she failed to mention that she knew two Santa Clara County deputy sheriffs and two San Jose police officers from her childrens activities in school and sports. She also wrote that her husband had reminded her after she was selected that they had an old friend who was an investigator in the district attorneys office. The next court day, July 24, selection of the alternates was completed and the prosecutor started his opening statement. On July 25, after the prosecution finished its opening statement, the court held a hearing on the issues raised by Juror No. 12s letter.
During voir dire, the trial court had asked successive groups of jurors who were seated in the jury box whether any of them were acquainted with law enforcement officers. On the second day of jury selection which was Juror No. 12s first day in court, the trial judge inadvertently failed to ask the question of her group. Juror No. 12 had heard the inquiry made of two prior groups who were questioned that morning, and she was waiting to be asked the question, but she was not in fact asked it. At a hearing on Juror No. 12s letter, the court verified with Juror No. 12 that her group was not asked about law enforcement acquaintances although she was listening for it. She stated, "the next thing I knew, I was being sworn in. It was that fast." She stated she thought she should say something, but she had revealed on voir dire that she thought an officer named on a witness list was someone with whom she had grown up and she had been selected as a trial juror anyway. Therefore, she thought her relationship with any law enforcement officer was not significant and would not have made a difference. She stated knowing these officers would not affect her ability to be fair.
The prosecutor stated there was no intentional misconduct and asked defense counsel if he would have exercised a peremptory challenge against Juror No. 12 if he had known the information during voir dire. Defense counsel said, "I think so," and the prosecutor declared that in view of defense counsels statement, he did not mind discharging Juror No. 12 and replacing her with one of the six alternate jurors. However, the prosecutor added that he did not feel there was cause to discharge her in view of her statements.
The court responded that it believed Juror No. 12 had been honest and straight forward and that it did not believe there was juror misconduct so it was not inclined to remove her. Defense counsel explained that he had exercised some of his peremptory challenges based on contact with law enforcement. He did not challenge Juror No. 12 because although she knew the witness, the witness he was going to cross-examine was "favorable to [the defense]" and was not going to be subject to rigorous examination. However, he added, "its one thing to know just one person and . . . another thing to have a total of five people that she knows in law enforcement."
The trial judge stated he would research the point and invited counsel to give the court the benefit of any further research and thoughts they had. Notwithstanding, the court closed the subject by stating, "I am not going to remove her."
Without objecting to proceeding with the trial before the matter of the composition of the jury was settled, defense counsel gave his opening argument and the first witness was called. In the next four days, a number of witnesses testified. Finally after excusing the jury on the 10th day of trial on August 2, the court returned to the subject of Juror No. 12. The court stated it checked with the court reporter, and that the questions asked of Juror No. 12s group did not include whether the jurors knew any law enforcement officers. Defense counsel requested removal of Juror No. 12, the prosecutor had no objection, but the court refused to remove the juror.
Defendant claims that because the juror disclosed the information before the evidence had begun, because the prosecutor did not oppose replacing Juror No. 12, and because there were alternates already chosen and sworn, the court should have discharged Juror No. 12. Defendant claims that the error requires reversal without a showing of prejudice because "`[t]he denial of a peremptory challenge to which the defendant is entitled is reversible error when the record reflects his desire to excuse a juror before whom he was tried. (People v. Bittaker (1989) 48 Cal.3d 1046, 1087.)" Defendant distinguishes People v. Cochran (1998) 62 Cal.App.4th 826, 831, which declined to adopt a "nearly per se reversal rule . . ." because "Cochran fails to appreciate that the rule which applies to an infringement of the right to exercise peremptory challenges controls where, as here, the defendant makes clear he would have challenged the juror peremptorily . . . and the juror ends up as one of the jurors deciding the case."
"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, or if a juror requests a discharge and good cause appears therefore, the court may order the juror to be discharged . . . ." (Pen. Code, § 1089.) "Once jury selection has been completed, a juror may be discharged only for cause. [Citations.]" (People v. Burgess (1988) 206 Cal.App.3d 762, 766.) On appeal, this court is bound by the trial courts finding of absence of cause for the discharge of a juror. (Ibid.)
Defendant states that whether the jurors concealment of her law enforcement acquaintances was intentional or unintentional, it "adversely affected [defendant]s ability to exercise peremptory challenges." Consequently, defendant claims, "`there is a reasonable probability of actual harm to [the] complaining party resulting from the misconduct. (In re Hitchings [(1993)] 6 Cal.4th [97,] 119, internal quotation marks and brackets omitted.)" The actual harm was interference with the exercise of a peremptory challenge because of the lack of relevant information.
Concealment occurs where "`a prospective juror in a criminal case fails to respond to a relevant, direct and unambiguous question" presented in voir dire. (People v. Diaz (1984) 152 Cal.App.3d 926, 935.) To determine whether concealment has occurred, the trial court should "`determine whether the question propounded to the juror was (1) relevant to the voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited." (Ibid.) Absent a showing that the jurors response to a question on voir dire was untruthful, there is no misconduct. (See People v. Duran (1996) 50 Cal.App.4th 103, 112.)
In the instant case there is no showing that the juror responded to the questions actually put to her untruthfully or that she intentionally concealed information she knew to be relevant. She exhibited no unfairness or bias toward either party. Although she did not volunteer that she had law enforcement acquaintances until after the 12 jurors were sworn, she did make the disclosure before the alternates were selected. The trial court expressly found that she was honest and credible and that she did not "intentionally or negligently fail to disclose anything." After the juror was questioned and the voir dire record was investigated, there was no claim of juror misconduct. Indeed, after the court refused to remove the juror, defense counsel stated, "I am not in disagreement with your ruling."
Unintentional nondisclosure cannot amount to the sort of juror misconduct that raises a presumption of prejudice. "What is clear is that an honest mistake on voir dire cannot disturb a judgment in the absence of proof that the jurors wrong or incomplete answer hid the jurors actual bias." (In re Hamilton (1999) 20 Cal.4th 273, 300.) "[T]he trial court has at most a limited discretion to determine that the facts show an inability to perform the functions of a juror, and that inability must appear in the record as a demonstrable reality." (People v. Compton (1971) 6 Cal.3d 55, 60.) The record does not show that Juror No. 12 had a disqualifying bias.
Defendant recognizes that the United States Supreme Court has stated that "[t]o invalidate the result of a 3-week trial because of a jurors mistaken, though honest, response to a question, is to insist on something closer to perfection than our judicial system can be expected to give. A trial represents an important investment of private and social resources, and it ill serves the important end of finality to wipe the slate clean simply to recreate the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination." (McDonough Power Equipment, Inc. v. Greenwood (1984) 464 U.S. 548, 555.) However, defendant claims that in his case, the trial court failed to take advantage of the opportunity it had to replace Juror No. 12 before any witness was called.
It is true that the court had the opportunity to remove the juror, but the court did not have the authority. That no good cause for removal existed was a demonstrable reality. There was no juror misconduct, no showing of actual bias, and no showing that Juror No. 12 could not perform her duty as a juror. (People v. Compton, supra, 60 Cal.3d at p. 60; § 1089.) Even if peremptory challenges applied during a trial, "improper denial of peremptory challenges warrants reversal only if the accused can show the error affected his right to a fair and impartial jury." (People v. Webster (1991) 54 Cal.3d 411, 438-439.) Defendant makes no such showing here. Reversal is not warranted.
IMPEACHMENT
Next, defendant contends that the court erred in allowing the prosecutor to impeach his credibility with a felony conviction for possession of a firearm by a convicted felon. (§ 12021.) Defendant asserts that notwithstanding the contrary holding of People v. Littrel (1986) 185 Cal.App.3d 699, 702-703 (Littrel), a violation of section 12021 is not a crime of moral turpitude.
At trial, the prosecutor requested to impeach defendant with two drug offenses, grand theft, and the section 12021 conviction. Defense counsel questioned the admission of the latter by stating that it would "probably qualify" as a moral turpitude offense, but that he would look at it. The trial court stated that it would allow the use of all four offenses because they were crimes of moral turpitude.
After Proposition 8, evidence of a prior conviction is admissible so long as the conviction involves moral turpitude or a readiness to do evil. (People v. Castro (1985) 38 Cal.3d 301, 307-308.) Moral turpitude is not limited to dishonesty, but extends to crimes that involve other sorts of moral depravity, such as child molestation and crimes of violence, torture, or brutality. (Id. at p. 315.) Moral turpitude has also been defined as involving an act of baseness, vileness, or depravity in the private and social duties which a person owes to others or to society in general, contrary to the accepted and customary rule of right and duty between people. (People v. Brooks (1992) 3 Cal.App.4th 669, 671.)
Whether a particular offense involves moral turpitude or a readiness to do evil must be determined on a felony-by-felony basis (People v. Castro, supra, 38 Cal.3d at p. 316), and the court must evaluate whether the least adjudicated elements of the felony necessarily involve moral turpitude. (Id. at p. 317.) "[B]y enacting Penal Code section 12021, the State of California has decreed that it recognizes no legitimate use of a concealable firearm by a convicted felon. The statute is based on the theory that a convicted felon has, by his prior conduct, demonstrated that if he comes into possession of a concealable firearm, he will use it to do evil. Therefore, we conclude that possession of a firearm by a felon is a crime involving moral turpitude." (Littrel, supra, 185 Cal.App.3d at pp. 702-703, fn. omitted.)
Defendant challenges Littrel because "[i]f the prior conduct [of the felon] involves no violence, force or weapon, there is nothing in the prior conduct which demonstrates that the defendant will use a gun to do evil."
The purpose of section 12021 is to protect the public welfare by precluding the possession of guns by those who are more likely to use the guns for improper purposes. (People v. Pepper (1996) 41 Cal.App.4th 1029, 1037.) Defendant argues, "[b]ut the fact that felons are more likely to use a gun for an improper purpose does not mean that the defendant found possessing the gun has used or will use it for such a purpose. . . . [T]he element that is essential for a conviction is mere possession[,] not use for an unlawful purpose. Viewed in terms of its least adjudicated necessary elements, the mere fact of possession does not display a readiness to use the gun for an evil or improper purpose."
Defendant also argues that although "an ex-felon by his felony conviction has demonstrated instability and a propensity for crime, it does not follow that such a person, when he arms himself, commits a crime inherently dangerous to life, unless it is shown that one who so demonstrates instability and a propensity for crime is inherently disposed toward acts dangerous to human life." Defendant quotes our Supreme Court in People v. Satchell (1971) 6 Cal.3d 28, 40: "Surely it cannot be said that a person who has committed a crime in this latter category [crimes which do not manifest a propensity for acts dangerous to life], when he arms himself with a concealable weapon, presents a danger to human life so significantly more extreme than that presented by a non-felon similarly armed. [Footnote omitted.]" Defendant states that this criticism applies to Littrel, supra, 185 Cal.App.3d at page 703, also. "[O]ne cannot logically reach the conclusion that such a person, when he arms himself, will use the firearm to do evil unless it also is shown that one who committed a prior felony is inherently disposed to commit evil acts with a gun, . . ."
"`An ex-felon by his felony conviction has demonstrated instability and a propensity for crime. Thus, there is a core of logic in the assumption that if such a person arms himself with a concealable weapon he commits a crime per se dangerous to human life." (People v. Satchell, supra, 6 Cal.3d at p. 38, italics omitted.) If an ex-felon who has demonstrated instability and a propensity for crime by his past crimes voluntarily arms himself with a concealable weapon which poses a risk of violence (People v. Bell (1989) 49 Cal.3d 502, 544-545), he shows "`baseness, vileness or depravity in the private and social duties which [he] owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." (People v. Brooks, supra, 3 Cal.App.4th at p. 671.) In short, he shows a readiness to do evil.
As does escape by a convicted felon without force, possession of a firearm by an ex-felon "necessarily involves some form of stealth, deceit, or breach of trust and the potential for violence . . . . Moral turpitude was found even though an injury to another or the likelihood of injury to another was not an element of the crime. [¶] Although the least adjudicated elements of Penal Code section 246 do not require that an intent to injure or a likelihood of serious injury to another be present, there is always present a potential for violence in the commission of a violation of section 246. Penal Code section 246 is clearly a crime of moral turpitude." (People v. White (1992) 4 Cal.App.4th 1299, 1305.) There is always a potential for violence in possession of a firearm by a person who has shown him- or herself willing to seriously, i.e., feloniously, breach the law. The court did not err in allowing the use of the conviction for impeachment.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J. and Bamattre-Manoukian, J. --------------- Notes: Further statutory references are to the Penal Code unless otherwise stated.