Opinion
B221865
12-30-2011
THE PEOPLE, Plaintiff and Respondent, v. JOHN MICHAEL McCOY, Defendant and Appellant.
Jennifer Marie Hansen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA107933
APPEAL from a judgment of the Superior Court of Los Angeles County, Allen Joseph Webster, Jr., Judge. Affirmed.
Jennifer Marie Hansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant John Michael McCoy appeals from the judgment entered following his convictions by jury on three counts of misdemeanor vandalism (Pen. Code, § 594, subds. (a) & (b)(2)(A); counts 1, 3, & 7), on three counts of felony vandalism (Pen. Code, § 594, subds. (a) & (b)(1); counts 2, 4, & 6), and on count 5 - criminal threats (Pen. Code, § 422). The court sentenced appellant to prison for nine years. We affirm the judgment.
FACTUAL SUMMARY
The facts of the present offenses are not pertinent to this appeal.
During voir dire of prospective jurors, the court commented on issues pertaining to jury service. The court later stated, "we have a number of people who come from other countries, basically Asian and Latin American countries who come to these courtrooms and indicate that they don't understand English well enough to serve on jury duty, but they've been here anywhere from 30 to 50 years. They've basically been able to traverse the system very, very well financially to their success. [¶] Many came here for many reasons. Maybe religious freedom, political freedom, make money, it goes on and on and on. They've come here, they've done quite well. When they took the oath they indicated, as one became a citizen, they would basically be, you know, active and responsible citizens in this country. So now it is your opportunity to pay back the country, the state, the city or county for whatever, basically, it has done for you. Now it's your time to pay back. You owe big time."
The court continued, "If [you're] lucky enough to be selected by these two lawyers, we don't want to hear that I don't understand, I don't speak English. Most people who come into our system really can understand and speak the language. We do have a few who can't. [¶] And when we do have that problem, we will basically take them aside and figure out whether they are lying to us or telling the truth. Sometimes they lie and sometimes they tell the truth. And we know all of that, okay." (Italics added.)
The court then stated, "But the bottom line is, we believe that jury service is not only for Blacks and Whites, but for Asians and Latinos as well. This is the most diverse county in the country, probably the world. And we believe that a person who is on trial should have a jury of one's peers. [¶] We do get some legal terms and sometimes it's very difficult for people from other countries. By the same token, we have folks who come here from Long Beach and Culver City and Van Nuys, and they don't understand either. They have never left Van Nuys. So it has nothing to do with where you come from. I indicated that it is the kind of terminology that really we explain to you. So if you got any qualms or apprehensions, we'll explain all of that to you, okay."
Later, during voir dire of individual prospective jurors, Juror No. 3 indicated he did not understand English. The court told Juror No. 3 to "come around the table and we'll talk about it privately." Juror No. 3 participated in a bench conference with the court and counsel for the parties. Later during the conference, the court asked Juror No. 3 to have a seat and he sat in the jury box. The bench conference continued and, following its conclusion, the court, in open court, excused Juror No. 3.
The clerk called Juror No. 2566 to replace Juror No. 3, but Juror No. 2566, apparently an Hispanic, also indicated he did not understand English. The court invited Juror No. 2566 to a bench conference. Later during the conference, the court asked Juror No. 2566 to have a seat and Juror No. 2566 returned to the gallery. The bench conference continued and, following its conclusion, the court, in open court, excused Juror No. 2566.
The clerk then called Juror No. 3888, but Juror No. 3888, apparently an Hispanic, said, inter alia, "Sorry. But no English." The court commented that Juror No. 3888 spoke English and said the word sorry in English. The court invited Juror No. 3888 to a bench conference and, later during the conference, the court asked Juror No. 3888 to have a seat and Juror No. 3888 returned to the jury box. The bench conference continued and, during the conference, the parties agreed there was no basis to excuse Juror No. 3888. The court did not excuse her. Later during jury selection, the People exercised a peremptory challenge as to Juror No. 3888.
ISSUE
Appellant claims the trial court abused its discretion and violated his rights to a fair and impartial jury and due process during the voir dire of prospective jurors by admonishing them that the court did not want to hear them say they could not speak English.
DISCUSSION
The Trial Court's Challenged Comment Was Proper.
Appellant claims as previously indicated. We reject the claim. Code of Civil Procedure section 223, states, inter alia, "In a criminal case, the court shall conduct an initial examination of prospective jurors. . . . [¶] Examination of prospective jurors shall be conducted only in aid of the exercise of challenges for cause. [¶] The trial court's exercise of its discretion in the manner in which voir dire is conducted, . . . shall not cause any conviction to be reversed unless the exercise of that discretion has resulted in a miscarriage of justice[.]" A challenge for cause includes a challenge to a prospective juror on the ground said juror does not possess sufficient knowledge of the English language. (Code Civ. Proc., §§ 203, subd. (a)(6), 225, subd. (b)(1)(A), & 228, subd. (a).)
The exercise of discretion by trial courts during voir dire of prospective jurors is accorded considerable deference by appellate courts. Moreover, a trial court has significant discretion with respect to the areas covered in voir dire. Abuse of discretion is found if the voir dire is not reasonably sufficient to test the jury for bias or partiality. (People v. Chapman (1993) 15 Cal.App.4th 136, 141.)
Finally, a trial court's erroneous instruction during voir dire of prospective jurors may, depending on the facts of the case, violate a defendant's constitutional rights to a fair and impartial jury and, therefore, the defendant's constitutional rights to due process, resulting in error which is reversible per se. (People v. Mello (2002) 97 Cal.App.4th 511, 513, 516, 519 (Mello).)
In deciding whether an instruction is erroneous, we determine how it is reasonably likely the jury understood the instruction, and whether the instruction, so understood, accurately reflects applicable law. (People v. Warren (1988) 45 Cal.3d 471, 487.) In addressing the question of how a reasonable juror would understand the instruction, we consider the charge in its entirety. (Id. at p. 487.)
Appellant challenges the trial court's comment that "we don't want to hear that I don't understand, I don't speak English." However, notwithstanding appellant's suggestion to the contrary, the trial court did not make that comment alone. The court made that comment in the context of its commentary on the civic duty of citizens to serve as jurors. Moreover, immediately following that comment, the court acknowledged generally that some prospective jurors in fact could not speak English. The court further acknowledged that, in the past, some prospective jurors had fabricated they could not speak English while others truthfully had stated they could not speak English. The court indicated that should the issue arise in the present case the court would conduct a private inquiry to determine whether the prospective juror was fabricating or telling the truth concerning the matter.
In sum, we believe reasonable prospective jurors hearing the challenged comment in context would have understood the court to indicate that it did not want prospective jurors to claim they did not understand or speak English if they in fact understood and spoke English, and the court would evaluate outside the presence of the rest of the prospective jurors any claim by a particular prospective juror that said prospective juror did not understand or speak English. Appellant cites no authority holding that the making of the challenged comment in its context was error, an abuse of discretion and/or a violation of appellant's rights to a fair and impartial jury and/or to due process.
Moreover, the burden is on appellant to demonstrate error from the record; error will not be presumed. (In re Kathy P. (1979) 25 Cal.3d 91, 102; People v. Garcia (1987) 195 Cal.App.3d 191, 198.) Appellant's apparent argument that the trial court's actions had a chilling effect on prospective jurors who might otherwise have indicated that they had language problems is based on several implicit assumptions which are not supported by the record. First, appellant has failed to demonstrate there were any prospective jurors who may have had difficulty speaking English other than Juror Nos. 3, 2566, and 3888.
Second, those three prospective jurors communicated to the trial court their concerns about their respective abilities to speak English. The remaining prospective jurors witnessed the court excuse Juror Nos. 3 and 2566 apparently because of language problems. This fact would have encouraged, not discouraged, candor on the part of the remaining prospective jurors if any of them actually had a language problem. The record fails to demonstrate the challenged comment and/or the court's subsequent actions in excusing Juror Nos. 3 and 2566 discouraged any of the remaining prospective jurors from alerting the court to the fact, if true, that any of the latter had language problems.
Third, viewed from the perspective of the prospective jurors, the record demonstrates simply that Juror Nos. 3 and 2566 were excused for language-related reasons and Juror No. 3888 may have given the trial court conflicting information as to whether she spoke English. The court then conducted a bench conference with Juror No. 3888 and counsel. Following that inquiry, the court ordered Juror No. 3888 to return to her seat.
The above facts would not have caused reasonable prospective jurors to believe the court had ordered said Juror No. 3888 to return to her seat because she had lied about an inability to speak English. Nor would those facts have caused reasonable prospective jurors to view the court as humiliating Juror No. 3888 by ordering her to return to her seat because she had lied. For all the record reflects, from the perspective of the prospective jurors, the court might have ordered Juror No. 3888 to return to her seat because the court, the parties, and Juror No. 3888 herself ultimately concluded during the bench conference that she was able to sufficiently understand English, notwithstanding any initial uncertainty in open court on the matter. Appellant has failed to demonstrate that the challenged comment and/or the court's subsequent action in refraining from excusing Juror No. 3888 would have discouraged any of the remaining jurors from alerting the court to the fact, if true, that any of the latter had language problems.
The challenged comment by the trial court was proper, and the trial court did not abuse its discretion and/or violate appellant's rights to a fair and impartial jury and to due process by making the comment.
People v. Abbaszadeh (2003) 106 Cal.App.4th 642 (Abbaszadeh) and Mello, supra, 97 Cal.App.4th 511, cited by appellant, do not compel a contrary conclusion. In those cases, the same judge (not the judge in the present case) invited prospective jurors to lie about racial prejudice and fabricate reasons to avoid jury service. (Abbaszadeh, at pp. 644, 646-647, 649.) In the present case, the trial court did not invite prospective jurors to lie about anything or to fabricate reasons to avoid jury service. The trial court's challenged comment in the present case, in context, effectively told prospective jurors not to lie about whether they understood English and told them they would be privately asked about the issue to determine the truth of the matter should they claim they did not understand English.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
We concur:
KLEIN, P. J. ALDRICH, J.