Opinion
C040387.
7-16-2003
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL PAUL MONTELBANO, Defendant and Appellant.
Defendant Michael Paul Montelbano was convicted after a jury trial of two counts of driving under the influence of alcohol, causing bodily injury to another (Veh. Code, § 23153, subd. (a)); two counts of driving with a blood-alcohol level of .08 percent or higher, causing bodily injury to another (Veh. Code, § 23153, subd. (b)); and one count of child endangerment (Pen. Code, § 273a, subd. (a)). The jury also found he had inflicted great bodily injury on another (Pen. Code, § 12022.7, subd. (a)) in connection with the Vehicle Code offenses. The trial court sentenced defendant to an aggregate term of five years in state prison.
On appeal, defendant contends the trial court erred when it failed to excuse a juror. We affirm.
BACKGROUND
Jury selection commenced on December 11, 2001. Counsel stipulated to the use of 14 jurors to hear the case, with the alternates being randomly chosen after closing arguments and instruction of the jury. After the prosecutor exercised two peremptory challenges and defense counsel exercised five, 14 jurors were sworn to hear the case.
The prosecutor and defense counsel made their opening statements, the trial court read CALJIC No. .50 (pretrial admonition) to the jury, and the noon recess was taken. After the noon recess, one of the jurors asked to confer with the court and attorneys, and the following discussion took place:
"THE COURT: (Juror), you wanted to see me with the attorneys?
"JUROR: Yes, Your Honor.
"THE COURT: Lets go on the record in the matter of People versus Montelbano. And were in chambers with one of the jurors, (Juror). (Juror), you wanted to talk to me and the attorneys in this case?
"JUROR: Yes, I did. And simply to make you aware that I am currently involved in a mediation case, an open case here in Superior Court which directly involves the use of alcohol and the operation of a motor vehicle. My wife requested mediation to get to come to agreement that I would not drive with my children for a period of one month beginning about a week and a half ago. And I just wanted to make everyones [sic] aware of it more than anything. And I dont know, you know, I just didnt want it to have any bearing on the outcome of this regardless. This is the order.
"THE COURT: Do either of you have any questions about this?
"[DEFENSE COUNSEL]: No.
"[PROSECUTOR]: Maybe just to know a little more.
"THE COURT: Well, I would like to — now this is just a mediation process?
"JUROR: Uh-huh.
"THE COURT: It wasnt a decision made by the court?
"JUROR: No.
"THE COURT: The two of you sat down, and you worked it out and you agreed to it?
"JUROR: Right, right.
"THE COURT: Just like its supposed to work. Thats how the system is supposed to work.
"JUROR: Right, exactly.
"THE COURT: So the merits of the issue have not been presented to a court in a court decision?
"JUROR: No, they have not.
"THE COURT: Now do you think the fact that your — I guess its your wife; is that correct?
"JUROR: Yes. My ex-wife.
"THE COURT: Your ex-wife has gotten into this area that its going to influence you in a case like were dealing with today because that is one of the counts in the case. Basically, the allegation is that it constitutes a potential child abuse because the children were in the car when he was allegedly driving under the influence of alcohol.
"[PROSECUTOR]: Uh-huh.
"THE COURT: Now do you think that would influence you in deciding this case here today?
"JUROR: I dont know. I mean its hard for me to say at this point. Im not quite sure it would influence me either way. I have mixed feelings about it. Unfortunately, I didnt think it was appropriate at the time to in the jury selection process to.
"THE COURT: Thats the reason I made the comment if you had a response you were a little reluctant to answer in open court, you could come back and talk to us.
"JUROR: Right.
"THE COURT: This gets a little confusing and its hard to hear everything thats going on, much less pay attention to whats going on. But do I have your assurance that you will base any decision youre asked to make in this case based solely on the evidence received in the trial?
"JUROR: Absolutely.
"THE COURT: And not let this domestic situation youre in with your ex-wife interfere in your deliberations at all if youre selected as a juror?
"JUROR: I dont believe they would. Again, my intention here was simply to make everyone aware of this mediation going on in this court. And, again, I had no idea what bearing that could have, whether it could potentially influence the outcome of the.
"THE COURT: Its just something I think its good that its out on top of the table and were talking about it. Thats the correct procedure. Thats exactly right. We should do it this way. Did you have any further questions?
"[PROSECUTOR]: Just a couple. Is this something that you — you know, is this kind of resolved in terms of there was a discussion, now there was some sort of an agreement. And its kind of something thats in the past and kind of over with, or.
"[JUROR]: Yeah. I think it is, but its also its fairly recent development. I am in treatment for alcohol abuse. I did attend a 28-day program about a year and a half ago. So its ongoing. Its acknowledged as an issue in our relationship, and of course my ex-wifes concern was the childrens safety. And so part of this agreement is to seek further treatment for alcoholism. And thats where we are now.
"[PROSECUTOR]: Is it something that you have a really strong feelings about that you think might slop over, so to speak, into this case where it could affect the way you see the evidence and that kind of thing?
"JUROR: No, I think my ability to understand the subtleties of the case arent necessarily impaired in any way.
"THE COURT: I have no question about that myself. You appear to be a very articulate person. And of course thats exactly what were looking for in a juror. But I have an additional question, (Juror). That is youve apparently recognized a problem with alcohol, and youre addressing that problem?
"JUROR: Uh-huh.
"THE COURT: Now would you hold it against someone if you thought they had alcohol problems and were not addressing it?
"JUROR: Probably not. I think, if anything, I would tend to be a bit more sympathetic, understanding intimately the problems associated with alcohol abuse. With that said, you know, there is no excuse for driving under the influence. There is no tolerance.
"THE COURT: If its established?
"JUROR: Right, exactly. So, at any rate, you know, I can honestly say that I dont know exactly how this might influence my decision making in the case. Its just its simply more of me wanting to make a statement of fact and again make everyone aware.
"THE COURT: Okay. Okay. Well, thats what we talk about when we talk about people of experiences of life coming in and judging. Thats exactly what were talking about. People who dont know what these experiences are like or have no relationship to them at all its not in anyones best interest. If there are no further questions Im going to ask (juror) to step back into the courtroom, and Ill have a chat with you two guys.
"Okay. (Juror) has now left my office. Do either of you have any questions about this?
"[PROSECUTOR]: Yeah. I do.
"THE COURT: You want to release him?
"[DEFENSE COUNSEL]: I think we should release him.
"THE COURT: What do you have to say about that, [prosecutor]?
"[PROSECUTOR]: Well, I dont feel that I need to ask him to be released, although I would think that he could actually favor the defendants [sic] more than the prosecution. But.
"THE COURT: Listen, Im not going to release him. Hes indicated in a very conscientious way indicating that hes going to do whats — follow the courts instructions on the law, which would include instructions on how you evaluate evidence. He did waffle just a little bit. But I think he was just being honest when he said that because how could he know whether its going to influence him until hes heard the case? I think thats an honest answer. Very forthright. And I think hell be a very good juror for both sides, okay.
"[PROSECUTOR]: Okay.
"THE COURT: So Im going to deny the request to release him.
"[DEFENSE COUNSEL]: Okay."
This juror was one of the jurors ultimately selected to deliberate the cause and render the verdict. Defendant now contends the trial court erred when it denied his request to dismiss the juror and that the error was compounded by the courts improper procedure of impaneling 14 jurors and selecting the alternates only after instructing the jury.
DISCUSSION
Initially, we address defendants claim that the trial courts impaneling 14 jurors to hear the case and not selecting the alternates until after the close of evidence was a violation of Penal Code section 1089. The procedure used by the trial court was expressly disapproved in People v. Glenn (1990) 225 Cal. App. 3d 618, 622-623, 275 Cal. Rptr. 276 (Glenn ). But while we do not sanction its use, it did not violate defendants constitutional rights. (Id. at pp. 620-621.) Thus, having stipulated to the procedure, defendant will not now be heard to complain on appeal about its use. (People v. Visciotti (1992) 2 Cal.4th 1, 36-38, 825 P.2d 388; see also People v. Gordon (1990) 50 Cal.3d 1223, 1251, 270 Cal. Rptr. 451, 792 P.2d 251.)
Next, defendant contends that because the alternates had not yet been chosen, jury selection was not complete at the time he requested release of the juror in question. Accordingly, he claims, his request to release the juror should be construed as a peremptory challenge that the trial court was required to permit. Under defendants theory, counsel would be able to exercise peremptory challenges throughout trial, closing arguments, and instruction of the jury. We reject this absurd argument, which highlights one of many reasons the trial courts method of impaneling a jury should not be utilized. Under the unorthodox procedure used by the trial court, jury selection was clearly completed when the jury was sworn and opening statements commenced. Thus, defendants request to discharge the juror may not be construed as a peremptory challenge.
Finally, defendant contends the trial court abused its discretion by denying his request to discharge the juror for good cause under Penal Code section 1089. We find no error.
Penal Code section 1089 provides, in relevant part: "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.
"In reviewing a trial courts decision either to retain or discharge a juror, we use the deferential abuse of discretion standard. [Citations.] And we will uphold the decision unless it "falls outside the bounds of reason." [Citation.]" (People v. Earp (1999) 20 Cal.4th 826, 892, 978 P.2d 15.) If any substantial evidence supports the trial courts exercise of discretion, the ruling will be upheld on appeal. (People v. Bradford (1997) 15 Cal.4th 1229, 1351, 939 P.2d 259 (Bradford ).) A jurors inability to perform his duty must appear in the record as a demonstrable reality, and bias may not be presumed. (People v. Beeler (1995) 9 Cal.4th 953, 975, 891 P.2d 153.)
"Assessing the qualifications of jurors challenged for cause is a matter falling within the broad discretion of the trial court." (People v. Weaver (2001) 26 Cal.4th 876, 910.) "A juror will often give conflicting or confusing answers regarding his or her impartiality or capacity to serve, and the trial court must weigh the jurors responses in deciding whether to remove the juror for cause." (Ibid.)
Here, the juror in question was specifically asked about his ability to be fair. The juror responded that he did not believe his domestic situation involving alcohol abuse would interfere in his deliberations and assured the court that he would base any decision solely on the evidence received at trial. Although the juror did later state that he could not honestly say exactly how it might influence his decision making, the trial court drew the reasonable inference that the juror was only being honest about not being able to assess how anything might affect him before he heard the case.
The trial court determined the juror had only come forward because he was being conscientious and that the juror was capable of and intended to perform his duty and follow the courts instructions. (Accord, People v. Jackson (1985) 168 Cal. App. 3d 700, 706, 214 Cal. Rptr. 346.) The trial courts assessment of the jurors state of mind is generally binding on the appellate court and, in this case, sufficiently supported by substantial evidence. (See People v. Bittaker (1989) 48 Cal.3d 1046, 1089, 259 Cal. Rptr. 630, 774 P.2d 659; Bradford, supra, 15 Cal.4th at p. 1351.) We therefore find no error in the courts decision not to excuse the juror.
DISPOSITION
The judgment is affirmed.
We concur SIMS, Acting P.J. and KOLKEY, J. --------------- Notes: The court in Glenn, supra, 225 Cal. App. 3d at pp. 622-623 listed four reasons for condemning this method of impaneling a jury: (1) it technically violates Penal Code section 1089; (2) there has been no empirical evidence establishing that alternate jurors do not pay attention during trial; (3) it necessitates extreme care by the court to assure counsel receives the proper number of peremptory challenges; and (4) unless counsel is warned in advance, counsel may not take the opportunity to question prospective jurors about their willingness to serve as alternates.