Opinion
Solano County S.Ct. No. VCR192469
NOT TO BE PUBLISHED
Lambden, J.
Defendant Tamel Ray Johnson seeks reversal of his conviction below, on the ground that the trial court abused its discretion and denied his constitutional rights to an impartial jury and a fair trial under the Sixth and Fourteenth Amendments of the United States Constitution by failing to conduct a sufficient inquiry into possible juror bias before denying defendant’s motion to dismiss two jurors. We affirm the judgment.
BACKGROUND
In September 2007, the Solano County District Attorney filed an information charging defendant with possession of a firearm by a felon in violation of Penal Code section 12021, subdivision (a)(1), and carrying an unregistered loaded firearm in violation of section 12031, subdivision (a)(1). The information also alleged that defendant had suffered a prior serious or violent felony (§ 1170.12, subds. (a)-(d), § 667, subds. (b)-(i)), and a prior felony conviction (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise stated.
A jury trial followed. One of the witnesses at trial was Tonja Shields, who identified herself as defendant’s girlfriend.
During closing argument, after the jury was released for a break, defendant’s counsel brought to the court’s attention a conversation he had overheard between one of the jurors and the bailiff. Counsel’s impression was that the juror had felt intimidated by a spectator who walked out in the company of a defense witness and “got in her face.” He also stated to the court that a second juror had been present during some of this conversation with the bailiff. Defendant’s counsel asked the court to look into the matter, and the prosecutor did not object.
The court stated that it knew about the matter because the bailiff had brought to the court’s attention a juror’s report that, while walking out of the courthouse, a man walking with defense witness Tonja Shields said to a juror, “How’s the case going.” The juror had ignored the man and continued walking, and he then said, “Oh, look, she’s scared.” Defendant’s counsel stated that he would most likely ask to remove the juror. The court responded that it would first ask the juror if the incident would affect the juror’s “decision making powers,” and that if it was not going to affect her, the court saw no reason to remove her from the jury. Defense counsel responded, “All right.”
After the jury returned, the prosecutor gave his closing argument, and the court instructed the jury. The court then sent the jurors to the jury room, except for Juror No. 12, whom the court asked to stay in the court room. The court and Juror No. 12 then engaged in the following exchange:
“THE COURT:... Ma’am, it was reported to us today that yesterday, after we completed the trial, and I think you told the bailiff of this, something happened that was unusual, that you thought was unusual, as you were on your way out of the court building.
“JUROR NO. 12: Correct.
“THE COURT: Is that correct?
“JUROR NO. 12: Yes, it is.
“THE COURT: Could you tell me what happened?
“JUROR NO. 12: We were walking out. As we were exiting the building toward the parking lot, a gentleman came from behind me, within an inch of my ear, bumping into my shoulder, and very loudly said into my ear, ‘How’s the case going,’ in kind of a sarcastic way. And I just kind of looked back, because it startled me, and I didn’t respond to him. I kept walking.
“THE COURT: Is this a person you recognized?
“JUROR NO. 12: Not as somebody I knew.
“THE COURT: No, as a person who had either been a spectator or a witness in the case yesterday?
“JUROR NO. 12: No.
“THE COURT: Continue, please.
“JUROR NO. 12: So I didn’t respond, and I kept walking, and then from behind I heard him giggle and start laughing, ‘Oh, look at her—’ I don’t know whether he said, ‘she looks scared,’ or ‘she is scared’ or ‘acting scared,’ because I had another juror who began to talk.
“THE COURT: Who?
“JUROR NO. 12: It was Juror Number 11 who was with me, and we were walking together out, and at that point I just kind of let it go, and went to my car.
“THE COURT: And there was no further contact or comment?
“JUROR NO. 12: Not between the two of us, no.
“THE COURT: No, I mean, between that person and you?
“JUROR NO. 12: No, there was no more contact.
“THE COURT: Are you saying that Juror 11 was next to you, and overheard, or could have overheard what was going on?
“JUROR NO. 12: Yes, she did witness what happened, because it kind of startled her too, because as I turned around, I kind of bumped into her.
“THE COURT: Well, I would remind you that anything that happened either in here, when we are not in session, or outside the courtroom, not to influence your judgment in this case.
“JUROR NO. 12: Oh, absolutely.
“THE COURT: But my question to you, is anything that happened under the circumstances, going to influence your judgment in the case?
“JUROR NO. 12: No.
“THE COURT: That’s what I needed to know, and if you’ll go now. As soon as the other deputy comes back, I’ll ask to talk with Juror Number 11, but just wait there and we’ll have the bailiff escort you in a moment back to the jury room.
“JUROR NO. 12: Maybe I should mention, too, I think I wrote it down, that the reason I thought it might be relevant, was the fact that when I was walking to my car, when I got into my car, I saw the gentleman who had said this to me, walking next to somebody who had been a witness in the case that day.
“THE COURT: I think you did report that to the bailiff, and I think it was the witness
“[DEFENSE COUNSEL]: Shields.
“JUROR NO. 12: Yes, Tonja Shields. He was walking in the parking lot with her, and that’s why I thought maybe it would be relevant.
“THE COURT: Yes, and we appreciate you telling us that.”
The court then questioned Juror 11 about the incident in the following exchange:
“THE COURT:... Ma’am, in asking some questions of Juror 12, she advises that yesterday afternoon when she was leaving the building, you were with her as she walked out, and an incident occurred that you may have overheard some, or part of what happened. Were you with her?
“JUROR NO. 11: Yes. I was walking here and she was walking right here (indicating).
“THE COURT: And describe what you remember happening.
“JUROR NO. 11: Well, there was a van outside, that was like a reporter van. I made a comment, “Oh, something’s happening.” And then this guy, this black guy, came up on her side.
“THE COURT: From the van?
“JUROR NO. 11: No, no, from behind us. It was like we all walked out together. They were behind us, and he said something about—I don’t remember exactly what he said, but something about how the trial was going, or how is the trial going, or how is it going, and we just kind of looked at each other, like, oh. And then this morning, she said that he actually followed her out further, and I told her that she needed to talk to somebody about it.
“THE COURT: Yes, that’s good. But that’s all you heard? She didn’t respond, or you didn’t respond to this person?
“JUROR NO. 11: No, she said something, but it was something like, ‘I can’t discuss it,’ I think is what she said. And I was like
“THE COURT: You were surprised?
“JUROR NO. 11: I was very surprised, I am very intimidated anyway, so
“THE COURT: Is there anything from that, that you think would affect your judgment in this case?
“JUROR NO. 11: Mine, no. I thought it was strange, and the more I thought about it, the more I thought she needed to say something, because she told me a little bit more about it this morning.
“THE COURT: We’ve heard about it, and that’s fine. [¶] All right. That’s all we needed to know. Thank you. You can go back.”
After the juror left the court room, defendant’s counsel asked that the court discharge both jurors. At the court’s invitation, counsel argued the merits of this motion. The court then stated that, “[h]aving talked to both jurors, I don’t see anything that would cause us to discharge either of them.” Defendant’s counsel argued that both jurors should be removed. The court stated that it was denying this request because it did not find “anything that would be prejudicial to the defendant in the comments made by both of those jurors. They actually did the right thing in coming forward and explaining to me. They said it won’t affect their verdict in any way in the case, and I just don’t find any reason to discharge either of those jurors, so I deny your request.”
The court also instructed the jury that it must decide what happened “based only on the evidence that has been presented to you in this case” and “us[ing] only the evidence that was presented in this courtroom,” and that it was required to “disregard anything you saw or heard when the court was not in session, even if it was done or said by one of the parties, or by a witness.”
The jury found defendant to be guilty on both charges, and found true the allegation that Johnson was not the registered owner of the firearm, and the trial court found the allegations of defendant’s prior convictions to be true. The trial court sentenced defendant to five years in state prison. Defendant filed a timely notice of appeal.
DISCUSSION
Defendant argues that the court abused its discretion, and violated his constitutional rights under the Sixth and Fourteenth Amendment of the United States Constitution, by denying his motion to dismiss Juror Nos. 11 and 12 based on an insufficient inquiry regarding the jurors’ encounter with the man outside the court building. According to defendant, “[i]n order to really find out if the affected jurors could be impartial, the court needed to ask a series of questions.” He further contends the court’s interrogation of Juror No. 11 was “especially disturbing” because “when she said she was ‘very intimidated anyway,’ it appears the court cut her off.” He also contrasts the trial court’s examination of Juror Nos. 11 and 12 with what he characterizes as an extensive examination by the trial court discussed in People v. Holt (1997) 15 Cal.4th 619, 659.) We find his arguments lack merit.
Along with defendant’s constitutional rights to a fair trial before an impartial jury pursuant to the Sixth and Fourteenth Amendments of the United States Constitution, defendant also has the protections afforded by Penal Code section 1089, which 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 replaced with an alternate juror.
Generally, once the trial court is put on notice of the possibility that a juror is subject to improper influences that cannot be solved by instruction, it is the court’s duty to make whatever inquiry is reasonably necessary to determine if the juror should be discharged. (People v. Cleveland (2001) 25 Cal.4th 466, 477, 480 (Cleveland).) Such a hearing is required “ ‘only where the court possesses information which, if proven to be true, would constitute “good cause” to doubt a juror’s ability to perform his duties and would justify his removal from the case.’ ” (Id. at p. 478.) Although the court must conduct an inquiry sufficient to determine the facts, it is within the court’s discretion to determine the mode of its investigation into juror misconduct. (People v. Keenan (1988) 46 Cal.3d 478, 539; People v. Pinsholster (1992) 1 Cal.4th 865, 928.)
We review a trial court’s decision about whether or not to discharge a juror “ ‘for “abuse of discretion”.... If there is any substantial evidence supporting the trial court’s ruling, we will uphold it.’ ” (Cleveland, supra, 25 Cal.4th at p. 474.) The trial court’s decision will be upheld “unless it ‘ “falls outside the bounds of reason.” ’ ” (People v. Earp (1999) 20 Cal.4th 826, 892.) Furthermore, we must “ ‘accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence.’ ” (People v. Jenkins (2000) 22 Cal.4th 900, 1049.)
The California Supreme Court has stated “ ‘that a juror’s inability to perform as a juror “ ‘must appear in the record as a demonstrable reality.’ ” ’ ” (People v. Cleveland, supra, 25 Cal.4th at p. 474, quoting from People v. Marshall (1996) 13 Cal.4th 799, 843.) Discharging a juror where the record does not establish such a demonstrable reality constitutes an abuse of discretion. (Cleveland, at pp. 485-486.)
Defendant specifically argues that the trial court violated his constitutional rights and abused its discretion by failing to conduct a sufficient examination of the two jurors’ reactions to their encounter with the man outside the courthouse. He contends that the court’s interview with these jurors “was exceedingly brief,” merely asking them what happened and then proceeding “immediately to the ultimate question whether either of them thought the episode would affect her decision-making.” Defendant contends that this inquiry was “insufficient... to uncover any bias from that incident” because the jurors merely recited what they knew was the “correct” answer to the court’s question about whether they could be impartial, and their answers were “based on almost no facts about how they were affected by the encounter.”
Defendant’s arguments are unpersuasive. The essential events were a couple of obnoxious references to the trial by a man in the company of a defense witness who was a stranger to the jurors, said in a single episode within a matter of seconds. The record indicates that the jurors promptly spoke to the bailiff about the incident and, when the court inquired, each juror readily and directly described what had occurred, each telling a story that was consistent with the other. The court asked follow-up questions for clarification. It reminded Juror No. 12, to whom the man had spoken, that she must not be influenced by anything that happened outside the courtroom, and later instructed the jury as a whole of this same requirement. The court asked each juror directly whether the incident would affect her judgment in the case, and each answered without qualification in the negative. In light of Juror No. 11’s prompt answer that her judgment would not be affected, and her testimony that she encouraged Juror No. 12 to inform the court of the incident, we find no issue with the court’s interruption of her when she referred to “being intimidated,” which the juror did not appear to be saying directly in regard to the man’s statements in any event. Furthermore, the court heard argument from counsel before it ruled. We see no reason to second-guess this mode and extent of investigation, or the court’s ruling based upon it.
Defendant does not cite any case law that establishes the court was required to conduct a more extensive inquiry. In People v. Holt, supra, 15 Cal.4th 619, which involved allegations of criminal assault, after the jury had been sworn, opening arguments made, and pre-instructions given, a juror informed the court that his son had been arrested and charged with a felony assault. (Id. at p. 658.) The court “interrupted the juror’s explanation of the incident, and questioned him on his ability to be fair. [The juror] expressed his belief that he could continue to be so and remained on the jury after the court expressly found that [he] could continue to serve as a juror as he had indicated his ability to follow instructions and decide the case based upon the evidence and that he could be fair to both sides.” (Ibid.) The appellate court noted, much as we do here, that the juror “had informed the court of the incident immediately, and nothing in his responses to the court’s inquiries suggested that he would be biased against defendant and could not perform his duty. [Citation.] His tone and demeanor apparently satisfied... the judge[.]” (Id. at p. 659.) While the appellate court noted that the trial court afforded counsel the opportunity to ask the juror additional questions (ibid), which did not occur in the present case, we fail to see this distinction as significant, particularly when defendant’s counsel did not ask for the opportunity and presented argument to the court before it ruled. If anything, Holt supports the rejection of appellant’s claim.
The jurors’ prompt informing of the court, their direct responses to the court’s questions, and their ready denials that their judgment would be affected by the incident are substantial evidence to support the court’s ruling. Defendant fails to suggest any additional questions that the court could have asked either juror, or what information the court lacked before it made its ruling. We conclude that the trial court did not conduct an insufficient inquiry, or abuse its discretion in denying defendant’s motion to dismiss the jurors.
In light of our conclusion, we need not, and do not, address the parties’ debate about whether or not any error by the court was prejudicial or harmless.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Haerle, J.