Opinion
G061398
07-17-2023
THE PEOPLE, Plaintiff and Respondent, v. STEVEN NEAL PAFF, Defendant and Appellant.
Garrick Byers, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, and Sahar Karimi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 18CF2804 Michael A. Leversen, Judge. Reversed.
Garrick Byers, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, and Sahar Karimi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O'LEARY, P. J.
Steven Neal Paff appeals from a judgment after a jury convicted him of two counts of indecent exposure with a prior conviction (Pen. Code, § 314(1), all further statutory references are to the Penal Code). The trial court sentenced him to two years eight months in prison.
Paff argues the trial court prejudicially erred by failing to conduct an adequate inquiry into whether a juror could continue deliberating because of a toothache. We agree and reverse the judgment.
FACTS
Paff does not challenge the sufficiency of the evidence to support his convictions. Under established appellate principles, we recite the facts in the light most favorable to the judgment. (People v. Curl (2009) 46 Cal.4th 339, 342, fn. 3.)
One morning, Elaina S. was walking to work in the Orange Circle when she saw a dark Dodge Intrepid (the car) stopped at an intersection. In the driver's seat, she saw an "older" Caucasian male looking at her. As she walked in the crosswalk toward the car, Elaina saw the man's right shoulder was moving. When she got closer, she saw he was masturbating. Before she could take a picture of the car, the man sped away.
About a month later, Elaina S. was walking to work with her coworkers when she saw the man in the car at the same intersection. She did not see him masturbating. As he drove away, she memorized his license plate number and wrote it down when she got to work. She gave the plate number to a friend who was a police officer, and he said the car was registered to Paff. She made a flyer that included Paff's photograph and posted it and distributed it in the area. She also reported the incident to the police.
Elaina refused to reveal her friend's identity because he misused police resources.
At trial, Elaina identified Paff as the man in the car.
One afternoon six months later, Sandra C. was walking near an intersection in Anaheim. A car drove toward her, and the driver made a noise to get her attention. When Sandra looked, she saw the man, a Caucasian male, was masturbating. She took a photograph of the license plate as the man drove away; she reported the incident to the police. Sandra could not identify the man.
Three months later, Elaina saw the car as she walked from work to her car. Scared, she stopped. The car drove past her, made a U-turn, and drove toward her. He slowed the car to match her pace as she walked. Paff rolled down the window and said something unintelligible. She ran to a post office and waited inside until she felt safe walking to her car. She reported the incident to the police.
Elaina identified the car in Sandra's photograph as the same car. The plate number Elaina wrote down and that Sandra photographed matched the plate for Paff's car. Paff told an investigator that he was the sole driver of the car. His registered home address was approximately a mile and a half from the Orange Circle.
DISCUSSION
Paff argues the trial court prejudicially erred by failing to adequately inquire whether a juror who had a toothache could deliberate. We agree.
I. Background
The jury deliberated for 21 minutes before recessing for lunch. When the jury returned, it deliberated for 28 minutes before requesting a readback of testimony concerning Elaina's police officer friend. About 40 minutes later, the jury requested a readback of Elaina's testimony concerning her description of the man during the first incident. The court reporter read back testimony. Ten minutes later, the jury notified the court a juror looked up information on the internet. At 3:30 p.m., the court spoke with counsel and questioned each juror. After the court ruled it would discharge the juror, Paff moved for a mistrial, which the court denied. The court excused the juror and recessed for the weekend. The jury had deliberated for about two and one-half hours.
Monday morning, Juror No. 101 (the Juror) told the court clerk she had a toothache. In chambers, the trial court conferred with counsel, stating "simple cases always seem to have the most problems." The court said, "[W]e've got some Asian lady who just came in, Juror [No.] 101 -- [¶] . . . [¶] -- and said she has a toothache and wants to be excused." The court stated it was not inclined to excuse a juror for a toothache and did not want to use the last alternate. The prosecutor agreed, especially because the coronavirus disease 2019 was present in the community. Paff's trial counsel said, "I guess my only concern would be if she says it's so bad she can't focus." The court responded, "She's probably had the toothache all weekend," and counsel said, "Probably." The court said, "So my suggestion was to give her an aspirin, but I guess I won't do that, and just tell her that, you know, we'll see how it goes." The prosecutor suggested telling the Juror to let the court know if it got worse. The court said, "Yeah."
After a brief exchange between the trial court and the clerk, the court stated it would ask the Juror about her toothache and whether she had a dental appointment, but tell the Juror it was not inclined to excuse her. The court explained that if she had an appointment it would consider a recess but if she did not have an appointment, "I don't see that being home is going to be any different than being here." After the clerk said the alternate juror arrived, the court said, "[B]ring in the toothache lady first, please."
After the Juror returned to the courtroom, the following colloquy occurred:
"[Trial court]: You have a toothache. Do you have a dental appointment?
"[The Juror]: Actually, I make appointment at 5:00 p.m. because I'm not sure I can leave today.
"[Trial court]: Well, then 5:00 p.m. will be good. It's not going to be any different being here until 4:20 [p.m.] than it is to be at home. So
"[The Juror]: But just last night, too severe toothache and I couldn't sleep last night. Then I'm afraid may not -- you know.
"[Trial court]: Yeah. That's not a good excuse. Take some Advil or some Aspirin or Tylenol and see if that helps.
"[The Juror]: Actually, I took two Tylenol this morning already.
"[Trial court]: We only have one alternate juror left and I'm not inclined to excuse you because you don't have a dental appointment until 5:00 [p.m.] and you can be here just the same as you can be anywhere else until 5:00 [p.m.].
"[The Juror]: Because the
"[Trial court]: So
"[The Juror]: Because the yesterday is Sunday, though, I don't -- I'm not sure I can leave or not today. So I just at home. And very sorry, I'm afraid I couldn't stay for a whole day.
"[Trial court]: You're going to stay. So we're going to bring in the rest of the jury and we're going to go back and do deliberations. [¶] I'm not going to do this trial over again because you have a toothache. And you don't have an appointment until later on today, which you can make. You can make your appointment. [¶] So bring in the rest of the jury, please."
After seating an alternate juror for the previously excused juror, the jury began deliberations anew at 10:04 a.m. Forty-six minutes later, the bailiff informed the trial court the jury had reached a verdict.
II. Law and Analysis
A. The Issue is Preserved for Review
Anticipating the Attorney General's forfeiture argument, Paff contends his trial counsel's statement he was concerned the Juror could not focus preserved the issue for review. In reply, Paff adds any objection would have been futile. We agree any objection would have been futile.
Generally, a defendant forfeits a claim the trial court conducted an inadequate inquiry by failing to request a more extensive or broader inquiry or object to the trial court's course of action. (People v. Zaragoza (2016) 1 Cal.5th 21, 59.) However, there are exceptions to the forfeiture rule, including that an objection would be futile. (Shanks v. Department of Transportation (2017) 9 Cal.App.5th 543, 551 [objection to trial court's inquiry of juror futile where court's comments established it had "conducted 'enough of an investigation to resolve the matter'"].) Here, the trial court's comments establish any objection to its inquiry would have been futile.
From the outset, it was clear the court did not want to excuse the Juror. In chambers, despite Paff's trial counsel's concern the Juror may not be able to focus, the court was adamant it did not want to excuse her. The court mused it made no difference whether the Juror was in court or at home without knowing her pain level or ability to concentrate. This defies common sense and in fact the court's instructions to "[p]ay careful attention" (CALCRIM No. 200) to the instructions and "impartially compare and consider all the evidence" (CALCRIM No. 220). A juror cannot consider facts and carefully apply them to the law while exhausted and/or in pain.
When the trial court learned the Juror had an appointment at the end of the day, the court repeated it made no difference whether she was in court or at home. When the Juror explained her condition, the court was dismissive, telling her, "That's not a good excuse[,]" and, "You can be here just the same as you can be anywhere else until 5:00 [p.m.]." The court concluded, "I'm not going to do this trial over again because you have a toothache."
The trial court's comments make it abundantly clear it had decided, before it even spoke with the Juror, it was not discharging her. Of course we are reviewing this on a cold record. But the court's tone and tenor bleeds through. The court believed judicial economy demanded the Juror continue deliberating (even though there was one alternate remaining) regardless of her pain level and ability to concentrate. The court was not going to excuse the Juror and replace her with the last alternate because this was a simple case that was not worth retrying. Any objection to the court's inquiry, would have been futile. Paff did not forfeit review of the issue.
B. The Trial Court's Inquiry was Inadequate
A criminal defendant has the constitutional right to be tried by a fair and impartial jury. (U.S. Const., 6th &14th Amends.; Cal. Const., art. I, § 16.) Consistent with this constitutional right, a trial court may discharge a juror if he or she "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." (§ 1089.)
"'Once a trial court is put on notice that good cause to discharge a juror may exist, it is the court's duty "to make whatever inquiry is reasonably necessary" to determine whether the juror should be discharged.' [Citation.]" (People v. Bradford (1997) 15 Cal.4th 1229, 1348.) The court must make a reasonable inquiry to determine whether the person is able to perform the duties of a juror. (People v. Bell (1998) 61 Cal.App.4th 282, 287.) Incapacitation need not exceed a specific time. (People v. Landry (2016) 2 Cal.5th 52, 89.) "'[I]n the right circumstances, an absence of a day or less may warrant excusal. [Citations.]'" (Ibid.)
The decision whether, and to what extent, investigation into whether the person can perform the duties of a juror "rests within the sound discretion of the trial court." (People v. Maury (2003) 30 Cal.4th 342, 434, compare People v. Barnwell (2007) 41 Cal.4th 1038, 1052 [demonstrable reality standard applies in juror removal cases].) "If any substantial evidence exists to support the trial court's exercise of its discretion, the court's action will be upheld on appeal." (Ibid.)
Substantial evidence does not support the conclusion the trial court conducted an adequate inquiry. Frankly, the court conducted no inquiry into the Juror's condition. Instead of calling out sick, the Juror made a dental appointment for 5:00 p.m. because she did not know whether she could leave. When she told the court, the court said the situation was no different being in court or at home. The court did not inquire about the Juror's condition. The court did not tell her to let it know if she became worse as it indicated it would in chambers. When the Juror told the court the toothache was so severe she did not sleep the night before, the court interjected and said that was not a good excuse and to take something for the pain. The Juror explained she already took something, but it did not help. The court repeated it was no different being in court or anywhere else. When the Juror tried to explain, the court interrupted. The Juror continued to explain that because it had been the weekend she did not know whether she could be excused and she was sorry but did not think she could stay for the entire day. The court did not question the Juror about her condition or about her statement she could not stay all day. The court did not ask about her pain level, if she could perform her duties as a juror, or if she could concentrate on the case. Instead, the court said, "You're going to stay[,]" and "I'm not going to do this trial over again because you have a toothache[,]" and "You can make your [5:00 p.m.] appointment."
The trial court's conduct was intemperate. The Juror acted responsibly by scheduling her appointment for the end of the day and reporting to court instead of calling out sick. In consideration for acting responsibly, the court said in effect it did not matter whether she was experiencing severe pain because it would be the same anywhere she was. The court belittled the Juror when she said she had not slept the previous night. And when she tried to explain, the court interrupted her. Essentially, the court told the Juror to "suck it up" because it did not want to try this simple case again.
As the trial court knows, calling citizens for jury duty even under normal conditions has always been a challenge. Being ridiculed by the court does not help. We remind the court a juror's illness even for a short period of time may warrant being excused.
We are perplexed by the trial court's comment it was not going to retry the case because of the Juror's toothache. There was one remaining alternate. If a juror is not competent to perform the duties and there are no remaining alternates, a mistrial must be declared and the matter may be retried. A trial court of course has the inherent authority to control the proceedings to ensure the administration of justice is achieved efficiently. (People v. Cadogan (2009) 173 Cal.App.4th 1502, 1512.) But judicial economy does not empower the court to run roughshod over an accused's right to a jury competent to deliberate.
The Attorney General's primary contention is the trial court was in the best position to observe the Juror's demeanor and determine if additional inquiries were required. (People v. Cowan (2010) 50 Cal.4th 401, 437 [trial court assessed juror's demeanor]; People v. Zamudio (2008) 43 Cal.4th 327, 349-350 [same]; People v. Beeler (1995) 9 Cal.4th 953, 989 (Beeler) [trial court in best position to observe juror's demeanor], disapproved on other grounds in People v. Pearson (2013) 56 Cal.4th 393, 462.) We agree a juror's demeanor is an appropriate factor in determining whether a juror can meaningfully deliberate and the trial court is in the best position to make that determination. But the court did not make that determination here. There must be an appropriate investigation and meaningful dialogue about the juror's condition and whether the juror can perform the duties. The court should question the juror about the illness, observe the juror's body language, and consider the juror' responses to determine whether the juror is competent to continue. Importantly, the court should inform the juror to notify the court if the juror's condition worsens so the court can reevaluate. The trial court here did none of these things. Jurors are a vital part of our justice system. At trial judge should not make a juror feel like she or he is a wrongdoer.
The Attorney General relies on a number of cases to support his claim the trial court's inquiry was adequate. (People v. Lopez (2018) 5 Cal.5th 339, 365 [juror stress]; People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 440-446 [juror physical ailment]; People v. Barnett (1998) 17 Cal.4th 1044, 1117; People v. Williams (1997) 16 Cal.4th 153, 232 [juror misconduct]; Beeler, supra, 9 Cal.4th at p. 989 [death of juror's family member].) What all these cases have in common is the trial court conducted an adequate inquiry into the juror's physical or emotional illness, or misconduct. Again, the court here conducted no inquiry. Instead, the court essentially told the Juror to suck it up because it did not want to try this simple case again.
Contrary to the Attorney General's suggestion, we cannot infer the trial court concluded the Juror could meaningfully deliberate when the court did not investigate the Juror's condition. (People v. Johnsen (2021) 10 Cal.5th 1116, 1170 [in juror misconduct claim, implicit finding juror truthful after meaningful inquiry].) Substantial evidence does not support the conclusion the court conducted an adequate inquiry.
Finally, we remind the trial court it is best to refer to jurors by their juror number. Under no circumstances should a court refer to a juror by the person's race, ethnicity, or gender.
C. Paff was Prejudiced
Relying on People v. McNeal (1979) 90 Cal.App.3d 830, Paff contends the trial court's failure to conduct an adequate inquiry is reversible per se. He adds that if a showing of "further or additional prejudice is required," the disparity in deliberations between the first day and the second day of deliberations demonstrates he was prejudiced.
The Attorney General counters that where the record does not demonstrate actual prejudice, the matter is better raised in a petition for writ of habeas corpus. (People v. Burgener (1986) 41 Cal.3d 505, 522, disapproved on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 753-756.) He adds that even if we review the error pursuant to Chapman v. California (1967) 386 U.S. 18 (Chapman), Paff was not prejudiced.
Two cases, from the same appellate court, applied the reasonably probable standard articulated in People v. Watson (1956) 46 Cal.2d 818, when addressing section 1089 error. (People v. Henderson (2022) 78 Cal.App.5th 530, 564-567; People v. Bowers (2001) 87 Cal.App.4th 722, 735-736.) But in People v. Chavez (1991) 231 Cal.App.3d 1471, 1483, the court concluded the trial court's error in failing to conduct a hearing concerning juror misconduct was harmless beyond a reasonable doubt pursuant to Chapman, supra, 386 U.S. 18. Application of the Watson standard for state law errors is appropriate when addressing error under section 1089. (People v. Camacho (2022) 14 Cal.5th 77, 109; see People v. Williams (2013) 58 Cal.4th 197, 293 [highlighting distinction between section 1089 and Sixth Amendment claims].)
Here, it is reasonably probable Paff would have obtained a better result had the trial court conducted an adequate inquiry. The record demonstrates the jury was struggling with the case. Although the evidence was straightforward and the charges few, the jury requested two readbacks of testimony during about two hours of deliberations. Two requests for readback of testimony is unusual in a non-complex case and was an indication the jury was struggling with an issue.
The record establishes as a demonstrable reality the Juror was ill and not competent to deliberate. (People v. Duff (2014) 58 Cal.4th 527, 560.) The Juror stated she had a toothache that prevented her from sleeping the previous night. She said over-the-counter medication she took that morning did not help. The Juror told the trial court she could not stay for the whole day. The Juror's comments establish she was not competent to deliberate, and the court should have excused her. (Id. at pp. 560-561 [ill juror incompetent to serve].) Based on this record, it appears the jury had effectively been reduced to 11 because the Juror's illness prevented her from deliberating. (People v. DeSantis (1992) 2 Cal.4th 1198, 1234 [criminal defendant has right to 12 jurors who are qualified and competent].)
The Attorney General admits the Juror requested to be discharged.
When the jury resumed deliberations, with the alternate juror and the ill Juror, the jury reached a verdict in 45 minutes. Based on the jury's previous difficulty with the case, the Juror's disabling condition, and the quick deliberations, we have no confidence in the verdict and must reverse. It is reasonably probable that had the trial court conducted an adequate inquiry Paff would have received a better result. (People v. Soojian (2010) 190 Cal.App.4th 491, 520-521 [hung jury more favorable than a guilty verdict].)
DISPOSITION
The judgment is reversed.
WE CONCUR: MOTOIKE, J., DELANEY, J.