Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F08907900. Edward O. Sarkisian, Jr., Judge.
Barbara Coffman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
A jury convicted appellant Dalbag Singh of three counts of assault, two felonies and one misdemeanor. He challenges his convictions on the bases that (1) the trial court committed prejudicial error in refusing to dismiss three jurors for cause; (2) the prosecutor committed misconduct; and (3) instructional error allowed the jury to convict him of two counts of violating Penal Code section 245, subdivision (a)(1) based upon a single act. We reject Singh’s claim that prejudicial error occurred in jury selection and that the prosecutor committed misconduct. We agree that the trial court erred in instructing the jury and will vacate the conviction for the count 3 offense.
All further statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL SUMMARY
On December 15, 2008, teenagers H.S., G.G., S.K., and A. were riding home from school together in a car. At some point on the drive home, Singh and his brother stood in front of the vehicle in order to stop the car; they told G.G. to get out of the car.
G.G. rolled down the window of the car. Singh punched G.G. in the face multiple times with his closed fist, which had a kadda, a closed metal bracelet, wrapped around the knuckles of the fist. G.G., H.S., S.K., and A. drove to G.G.’s house, where they called 911. An ambulance arrived and took G.G. to the hospital; he received 17 stitches. The injury left G.G. with a facial scar.
Singh was charged with battery with serious bodily injury (§ 243, subd. (d), count 1); assault with a deadly weapon (§ 245, subd. (a)(1), count 2); and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1), count 3). It was further alleged as to counts 2 and 3 that Singh personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a).
At trial the jury found Singh guilty of counts 2 and 3. On count 1, the jury convicted Singh of the lesser offense of simple battery, a misdemeanor. The enhancements to counts 2 and 3 also were found true.
On November 5, 2009, the trial court suspended imposition of punishment on counts 2 and 3 and placed Singh on formal probation for a period of three years, conditioned upon his serving 300 days in the county jail. On count 1, the trial court imposed a sentence of 49 days in jail and credited Singh with time served of 49 days.
DISCUSSION
Singh challenges his convictions on the grounds the trial court erred prejudicially in denying his challenges for cause as to three jurors. In a related argument, he contends counsel was ineffective to the extent counsel failed to inform the trial court of dissatisfaction with the jury as constituted. Singh also challenges his convictions on the grounds of prosecutorial misconduct. Lastly, Singh contends the trial court erred in instructing the jury by refusing to instruct with CALCRIM No. 3516. The instructional error allowed the jury to convict him erroneously on both counts 2 and 3, and he argues one count must be vacated. The People concede the instructional error and agree count 3 must be vacated.
I. Composition of Jury
Factual summary
During jury selection, the trial court declined to excuse Prospective Jurors Michael E., Tracy F. and Juror No. 5 for cause. As jury selection continued, Singh used peremptory challenges against Michael E. and Tracy F., but did not use a peremptory challenge against Juror No. 5, even though his peremptory challenges had not been exhausted at the time Juror No. 5 was seated.
At the conclusion of voir dire, the trial court provided an opportunity for defense counsel to make a record regarding challenges for cause. Defense counsel argued that Michael E. stated he could not be fair in a case involving violence due to a previous incident where Michael E. had been assaulted. Tracy F. stated she would give more credence to the word of a police officer than a teenager. Defense counsel asked that these two prospective jurors be retroactively excused for cause and the defense be allowed two more peremptory challenges. Defense counsel did not renew a challenge to Juror No. 5.
The trial court stated that it had reviewed the responses of Michael E. and Tracy F. and felt that both could be fair and impartial. The trial court was of the opinion the comments made by Michael E. and Tracy F. did not require dismissal for cause. The trial court again denied the challenges and proceeded to the selection of alternate jurors.
Analysis
To preserve a claim based on the trial court’s overruling a defense challenge for cause, a defendant must show (1) he used an available peremptory challenge to remove the juror in question; (2) he exhausted all of his peremptory challenges; and (3) he expressed dissatisfaction with the jury ultimately selected. (People v. Maury (2003) 30 Cal.4th 342, 379 (Maury).)
Here, Singh used peremptory challenges to exclude Michael E. and Tracy F. from the jury; he did not use an available peremptory challenge to excuse Juror No. 5. Because Singh did not use an available peremptory challenge to remove Juror No. 5, he has not preserved any claim of error regarding the denial of his challenge for cause as to this juror. (Maury, supra, 30 Cal.4th at p. 379.)
There was no record made of the initial requests to excuse Michael E., Tracy F., and Juror No. 5 for cause because the discussions took place in chambers. The trial court provided an opportunity to renew any challenges for cause on the record at the conclusion of voir dire.
Even if the claim had been preserved, we would reject it. “‘Regardless of the system of jury selection, a party’s failure to exercise available peremptory challenges indicates relative satisfaction with the unchallenged jurors.’” (People v. Johnson (1992) 3 Cal.4th 1183, 1211-1212 (Johnson).)
Furthermore, Singh’s stated reason for wanting to excuse Juror No. 5 for cause was that Juror No. 5 expressed confusion during voir dire regarding the presumption of innocence and burden of proof. This confusion on the part of Juror No. 5, or any juror, would be resolved by the instructions given to the jury and therefore is not grounds for a dismissal for cause. We presume jurors can understand and apply all instructions given. (People v. Vang (2009) 171 Cal.App.4th 1120, 1129 (Vang).)
Although Singh renewed his objections to Michael E. and Tracy F. and exhausted his peremptory challenges, he did not express dissatisfaction with any of the jurors ultimately seated. To the extent Singh now suggests he was unhappy with the composition of the jury, his belated recitation of dissatisfaction with the jury is speculative. (Johnson, supra, 3 Cal.4th at p. 1211.)
Regardless, it is well settled that even if the trial court erred in denying a defendant’s motion to remove a juror for cause, that error will be considered harmless if the prospective juror whom defendant found objectionable did not serve on his or her jury. Neither Michael E. nor Tracy F. served on Singh’s jury. The California Supreme Court has rejected the notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury. (People v. Hawkins (1995) 10 Cal.4th 920, 939, overruled on another point in People v. Blakeley (2000) 23 Cal.4th 82, 89-90.)
In short, we conclude the trial court’s denial of Singh’s challenges for cause to Michael E., Tracy F., and Juror No. 5 did not violate his constitutional right to an impartial jury.
We also reject Singh’s claim that he received ineffective assistance of counsel to the extent defense counsel failed to express dissatisfaction with the panel as constituted because Juror No. 5 remained a seated juror. Singh contends this was ineffective assistance of counsel because Juror No. 5 placed the burden of proof on the defendant to prove innocence. As noted above, any confusion expressed by Juror No. 5 during voir dire regarding the burden of proof and presumption of innocence was cured by the instructions given to the jury, which we presume all jurors understood and followed. (Vang, supra, 171 Cal.App.4th at p. 1129.)
II. Prosecutorial Misconduct
Factual summary
During opening argument, the prosecutor commented: “Now, when this is all done you have a chance to go back to the jury room and to deliberate and to talk about the elements of the crimes and talk about the evidence presented. And at that point … you’re not asked to return a verdict of innocent or guilty, it’s guilty or not guilty. But at that point that cloak of -- of this presumption comes off and you can decide. That’s your job.” Defense counsel objected to the remark as “improper for an opening statement.” The trial court responded that it had instructed the jury on the proper function of an opening statement and expected “the jury will abide by the Court’s instruction.”
During rebuttal closing argument, the prosecutor stated: “And it’s your turn to go back to the jury room and to deliberate, talk about what you heard, talk about the law and how -- if it matches up. And at that point as you start to deliberate and discuss and decide, that shield of the presumption of innocence comes down.” Defense counsel objected that the comment was improper and the trial court overruled the objection.
Analysis
Although defense counsel objected to the remarks, at no time did Singh’s counsel request that the jury be admonished. To preserve a claim of prosecutorial misconduct, both an objection and a request for an admonition must be made, unless a request for an admonition would not have cured the harm. (People v. Adanandus (2007) 157 Cal.App.4th 496, 512.) A conclusory assertion that an admonition would not have cured the alleged harm is insufficient to raise the issue on appeal; the record must establish that an admonition would have been inadequate. (People v. Panah (2005) 35 Cal.4th 395, 462.)
Assuming any claim of prosecutorial misconduct is preserved, there is no prejudicial misconduct. The objected to remarks were brief and made during opening and closing argument. The jury was instructed at the start of trial that Singh “is presumed innocent” and “does not have to prove that he is not guilty.” The trial court instructed the jury that nothing the attorneys say in their opening and closing arguments is evidence. At the conclusion of the evidence and before deliberating, the jurors were instructed that they were to follow the law as instructed by the trial court and “If you believe that the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.” The jury also was instructed regarding reasonable doubt and the prosecution’s burden of proof.
We presume, as we must, that the jury consists “of intelligent persons who are fully able to understand, correlate and follow the instructions given to them.” (People v. Archer (1989) 215 Cal.App.3d 197, 204.) Absent some affirmative indication in the record to the contrary, and here there is none, we presume the jury followed the instructions given. (People v. Holt (1997) 15 Cal.4th 619, 662.)
III. Assault Convictions
Singh contends he cannot be convicted of both assault with a deadly weapon (count 2) and assault by means of force likely to produce great bodily injury (count 3), both of which are described in section 245, subdivision (a)(1), when the counts are based on a single act. Singh requested that the jury be so instructed with CALCRIM No. 3516, but the trial court denied the request. Singh contends the refusal to so instruct the jury was error, and the People concede.
Section 245, subdivision (a)(1) defines a single offense. (People v. Aguilar (1997) 16 Cal.4th 1023, 1036-1037.) Singh can be convicted of only one count of violating section 245, subdivision (a)(1) for a single act. (People v. Ryan (2006) 138 Cal.App.4th 360, 370-371.)
Accordingly, the trial court erred in refusing to instruct the jury with CALCRIM No. 3516, and Singh’s conviction on count 3 must be vacated.
DISPOSITION
The conviction on count 3 is vacated. In all other respects the judgment is affirmed. The trial court is directed to amend the abstract of judgment and forward a copy to the appropriate agencies.
WE CONCUR: WISEMAN, Acting P.J., POOCHIGIAN, J.