Opinion
F041442.
10-8-2003
THE PEOPLE, Plaintiff and Respondent, v. STEPHEN ALLEN SMITH, Defendant and Appellant.
Robert L. S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Stan Cross and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.
Appellant Stephen Allen Smith was convicted of one count of selling marijuana (Health & Saf. Code, § 11360, subd. (a)). Smith was placed on felony probation for five years upon various terms and conditions, including that he serve time in jail and participate in a drug treatment program. On appeal, Smith contends the trial court improperly replaced a juror with an alternate because there was not a demonstrable reality the replaced juror was incapable of performing his duties.
FACTS
During jury deliberations, the court received a lengthy note from Juror Three. Juror Three began the note asking to be excused from the jury. The note stated that the cops busted the wrong person and should have arrested the dealer not a pusher. Juror Three opined that the drug problem is big and this "small incident" will not change anything. Juror Three described the defendant and his accomplice as kids and said they were not the problem; the problem is with big suppliers. Juror Three described the arrests in this case as a waste of taxpayers money that made him want to "throw up on myself." Juror Three said he "cannot and will not convict two kids when there are real criminals to catch."
Because the only issues on appeal are related to the replacement of a juror, we do not recount the facts of Smiths offense except to note that he sold marijuana to a law enforcement informant during a controlled purchase. Smith was tried jointly with a codefendant that was acquitted of the same offense.
Juror Three was officially known as Juror 31508. We will hereinafter refer to him as Juror Three.
Juror Three stated he was from the San Francisco Bay Area where crime is violent and real cops do not waste their time with pushers. According to Juror Three, one can legally buy marijuana with a note from a doctor, one can legally buy marijuana at a cannabis club, one can legally grow three plants per household, and marijuana is not a deadly drug. Juror Three stated he believed he would be physically and mentally damaged if he convicted the defendants. Juror Three wrote that drunk drivers kill thousands of innocent people every year, "not to mention crank manufacturers." Juror Three concluded his note suggesting the court call him anytime for "a real criminal case."
The trial court conducted a hearing with Juror Three outside the presence of the rest of the jury. Juror Three stated he was unable to follow the courts instructions. He was unable "to stay focused on the decision we need to make." Juror Three explained that he worked as a machinist and looked at everything surrounding a job to see how it is affected. He said that the jury had to make a "minor decision whether or not he [Smith] sold dope," but Juror Three could not help himself from looking at "everything around it, all the variables that fall into play that I cant make that decision."
Juror Three reiterated his inability to follow the courts instructions, and then said he could follow the instructions, and then stated he could not follow the instructions. When asked if he could work things out by deliberating with fellow jurors, Juror Three replied that he did not know. When asked if he had tried to deliberate with the rest of the jury, Juror Three said he talked with the others and they gave him their thoughts.
Juror Three stated that he could not put aside "the stuff thats going around in my head" to make a decision. When asked if he could not put aside the extraneous things outside the evidence of the case, Juror Three replied that he could not do so.
Juror Three explained that he was able to discuss the evidence but ran into difficulty applying the law to the evidence. Juror Three said he was unable to consider those thoughts he had that were unrelated to the evidence. Juror Three said he had not yet come into direct conflict with other jurors.
When asked by the prosecutor if it was difficult for him to follow the judges instructions or if he was unable to do so, Juror Three replied, "I would say Im truly unable not to look at the whole picture of variables that were not supposed to." When asked whether he was unable to perform his duty as a juror, Juror Three replied, "On this particular case, yes, sir." The trial court, relying on People v. Williams (2001) 25 Cal.4th 441 and Penal Code section 1089, found Juror Three was unable to perform his duty as a juror and was unable, given his concerns and convictions, to follow the courts instruction. The court excused Juror Three and replaced him with an alternate juror.
DISMISSAL OF JUROR
Smith contends the trial court abused its discretion in replacing Juror Three with an alternate because a demonstrable reality did not exist that Juror Three was incapable of performing his duties as a juror. Smith characterizes Juror Three as only unable, but not unwilling, to follow the trial courts instructions. Smith argues the trial court erred because it leapt to the conclusion Juror Threes reservations about the case rendered him incapable of fulfilling his duties.
A trial courts determination to order the discharge of a juror is subject to an abuse of discretion standard of review. A jurors inability to perform as a juror must appear in the record as a demonstrable reality. Each juror must agree to render a true verdict according only to the evidence presented and the instructions of the court. A juror who refuses to follow the trial courts instructions is unable to perform his or her duty as a juror within the meaning of Penal Code section 1089. (People v. Williams, supra, 25 Cal.4th 441, 448.)
Juror Threes note to the court and his answer to questions from counsel and the court during the hearing demonstrate that he was unable to follow the trial courts instructions without considering extraneous information outside the evidence. Juror Three began his note asking the court to excuse him from the jury. Juror Threes note stated he considered the charged offense to be a small incident and the prosecution to be a waste of taxpayer money. Juror Three said the thought of the instant prosecution made him want to throw up on himself. Juror Three was happy to serve in the future on what he referred to as a "real" criminal case. He stated that he was unable to follow the courts instructions and could not put aside "the stuff going around in his head."
During the hearing, Juror Three admitted he was unable to follow the trial courts instructions. Juror Three reiterated many of the points he made in his written note, including the fact that he could not put aside matters extraneous to the courts instructions or the evidence in the case. Juror Three briefly equivocated and said he could follow the courts instructions, but immediately admitted he could not do so. Juror Threes comments show he was philosophically opposed to the prosecution of the instant offense.
Smiths argument that Juror Three was only unable, but not unwilling, to follow the courts instructions is a meaningless distinction. Juror Three was unable to follow the courts instructions and was, therefore, incapable of fulfilling his duties as a juror. There was more than a demonstrable reality shown here that Juror Three was unable to follow the courts instructions. The evidence before the trial court was closer to a conclusive certainty that Juror Three was unable and unwilling to follow the trial courts instructions.
EFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Smith contends trial counsel was ineffective for failing to object to the removal of Juror Three. Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile. (People v. Price (1991) 1 Cal.4th 324, 387.) The Sixth Amendment does not require counsel to waste the courts time with futile or frivolous motions. (People v . Frye (1998) 18 Cal.4th 894, 985.) Juror Three was completely unable and unwilling to fulfill his duties as a juror. Any motion by defense counsel to keep Juror Three on the jury would have been both futile and a waste of the courts time.
To establish ineffective assistance of trial counsel, a defendant must demonstrate (1) counsels performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsels deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsels deficiencies, the result of the proceedings would have been more favorable to the defendant. (Strickland v . Washington (1984) 466 U.S. 668, 686; In re Neely (1993) 6 Cal.4th 901, 908-909.) A reasonable probability is one sufficient to undermine confidence in the outcome. (Strickland v. Washington, supra, 466 U.S. at p. 694; In re Harris (1993) 5 Cal.4th 813, 833.)
DISPOSITION
The judgment is affirmed.