Opinion
B188700
12-11-2006
THE PEOPLE, Plaintiff and Respondent, v. GEORGE ALEXANDER POWELL, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, appellant George Alexander Powell was convicted of second degree commercial burglary. He was sentenced to two years in prison. The trial was unusual, as appellant represented himself, and his only argument to the jury was that he was homeless. The evidence showed that, when employees of a real estate brokerage arrived at work, they discovered that somebody had broken into a locked desk drawer. Appellants fingerprint was on the drawer. He did not have permission to enter that office, and had been seen lingering in the area.
Appellant contends: (1) The trial court should have excused Juror No. 6 during deliberations. (2) He did not have a fair trial because the jury saw him in jail clothing. We reject the contentions, and affirm.
DISCUSSION
1. The juror issue
Appellant maintains that the trial courts failure to dismiss Juror No. 6 on its own motion denied him his rights to due process, trial by impartial jury, and a fair trial. (U.S. Const., 5th, 6th & 14th Amends.; Cal. Const., art. I, § 15.)
A. The record
During deliberations, the foreperson of the jury sent the court the following note: "Juror [No.] 6 feels that the deliberative process underway is non-productive and requests to be removed [and] replaced."
Juror No. 6 was brought into the courtroom and questioned by the court, in the presence of appellant and the prosecutor. She said she could not continue to participate in deliberations due to a "lack of cooperation" from the other jurors. The court asked further questions, while trying to avoid an inquiry into thought processes. The juror said she was not intimidated by the other jurors, had no difficulty expressing her own opinions, could make her own determination, and did not mind that other jurors had different opinions. Her problem was that some of the jurors were not following the rules set by the judge, as they kept digressing into irrelevant matters, such as conjecture and their own experiences. She was not sure if she could continue to participate in deliberations, as some of the jurors were very upset with her. Other jurors had thanked her for speaking up. She thought the situation was "unworkable" because the discussion was going around in circles and the foreman would not speak up. She had asked the jurors to stick to the facts, but they would not. She therefore had told them she would not "come back to the table until we really get down to business."
The court told the juror she could not "just walk away from deliberations" and should "continue to participate." The juror asked for guidance, to prevent the other jurors from telling stories and talking about irrelevant matters. The court asked for the jurors assurance that she would continue to participate in the process, rather than refusing to deliberate. The juror said, "I didnt say that, but, yes, I understand what youre saying." The court told the juror it would talk to the foreperson, but would like the juror "to go back in the jury room." She agreed, stating: "Sure. I would enjoy it if you brought out others as well." She then returned to the jury room.
The court then had the foreperson brought into the courtroom. It indicated that, after speaking to the juror, it had learned that she was frustrated with the process, but was not asking to be removed. The court asked the foreperson to continue with deliberations and attempt to reach a verdict. The foreperson agreed, and left the courtroom.
Later that afternoon, the jury found appellant guilty of the burglary count that is involved on this appeal. It was unable to reach a verdict for a second count of burglary, which involved a different nearby business establishment.
B. Analysis
"If at any time . . . a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box . . . ." (Pen. Code, § 1089.)
A trial courts ruling on discharge of a juror is reviewed for abuse of discretion, and will be upheld if supported by substantial evidence. The jurors inability to perform as a juror must appear in the record as a demonstrable reality. (People v. Guerra (2006) 37 Cal.4th 1067, 1158; People v. Cleveland (2001) 25 Cal.4th 466, 474.)
As appellant did not ask for discharge of Juror No. 6, it appears that this issue was waived. (People v. Goff (1981) 127 Cal.App.3d 1039, 1046.) Assuming that it was not waived, it lacks merit. A refusal to deliberate is an appropriate ground for removing a juror. (People v. Cleveland, supra, 25 Cal.4th at p. 485.) Here, however, inquiry showed that the problem was the jurors frustration with deliberations. At the end of the inquiry, she agreed to return to the deliberations. Since the record "does not establish `as a demonstrable reality " that she refused to deliberate (People v. Cleveland, supra, 25 Cal.4th 466, 485), the trial court did not commit error in leaving her on the jury.
2. The jail clothing issue
Appellant argues that he was denied his constitutional rights to due process, a fair trial, and equal protection, because he wore an orange jail jumpsuit throughout the trial. He also maintains that the trial court had a sua sponte duty to give a modified version of CALJIC No. 1.04, which tells the jury not to use the fact that a defendant is physically restrained as evidence of guilt.
The contentions lack merit. "[A] court may not require a defendant to attend trial wearing jail clothing," since reminders that the defendant is in custody " `tends to undercut the presumption of innocence by creating an unacceptable risk that the jury will impermissibly consider this factor. " (People v. Bradford (1997) 15 Cal.4th 1229, 1335-1336.) Here, however, appellant was not required to wear jail clothing before the jury. He chose to represent himself under Faretta v. California (1975) 422 U.S. 806, raised no issue about his jail attire, and argued to the jury that he was homeless, in an apparent hope of eliciting sympathy. His wearing of the jail jumpsuit was consistent with that strategy, as it suggested he lacked appropriate street clothing. (See People v. Williams (1991) 228 Cal.App.3d 146, 150-151.) There was therefore no error regarding the clothing or the failure to give a modified sua sponte instruction.
DISPOSITION
The judgment is affirmed.
We concur:
COOPER, P. J.
BOLAND, J. --------------- Notes: CALJIC No. 1.04 states: "The fact that physical restraints have been placed on defendant [_______] must not be considered by you for any purpose. They are not evidence of guilt, and must not be considered by you as any evidence that [he] [she] is more likely to be guilty than not guilty. You must not speculate as to why restraints have been used. In determining the issues in this case, disregard this matter entirely."