Opinion
C079132
03-07-2017
THE PEOPLE, Plaintiff and Respondent, v. VERNON RAY WILLIAMS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F00379)
A jury found defendant Vernon Ray Williams guilty of inflicting corporal injury resulting in a traumatic condition (Pen. Code, § 273.5, subd. (a)) and unlawful use of force and violence resulting in serious bodily injury (§ 243, subd. (d)). The jury also found that defendant's criminal conduct resulted in great bodily injury to his victim under circumstances involving domestic violence (§ 12022.7, subd. (e)). The trial court found true various enhancement allegations and sentenced defendant to an aggregate term of 19 years in state prison. Additional background facts are provided in the discussion as relevant to the contentions on appeal.
Undesignated statutory references are to the Penal Code. --------
Defendant now contends the trial court erred in (1) denying his motion for mistrial based on juror misconduct, and (2) failing to instruct the jury sua sponte on the elements of stalking. We conclude there was no juror misconduct and the trial court was not required to instruct the jury on the elements of stalking. We will affirm the judgment.
DISCUSSION
I
Defendant contends the trial court erred in denying his motion for mistrial based on juror misconduct.
A
Prior to trial, potential jurors were asked to complete a juror questionnaire. Included in that questionnaire was the following question: "[H]ave you, a close friend or relative, ever been a witness to a crime? If yes, state the nature of the crime." Juror No. 10 answered "no."
At the beginning of voir dire, the trial court advised all potential jurors to listen carefully and to speak up if they thought of anything relevant that they may have forgotten to mention either in their questionnaire or in response to the questions in voir dire. Several potential jurors spoke of their experiences with crimes and the criminal justice system. Juror No. 10 mentioned that her son and daughter-in-law worked in law enforcement. She also told the court she had overlooked a question on the questionnaire but wanted to address the issue "in private."
In a closed courtroom, Juror No. 10 revealed that her daughter was molested when she was eight years old. In response to the court's questions, Juror No. 10 said the perpetrator was prosecuted and she was satisfied with the resolution. Juror No. 10 also said there was nothing about that case, prosecuted nearly 11 years prior, that would affect her ability to serve as a juror at defendant's trial.
On day seven of defendant's trial, after the final witness testified, the bailiff reported that Juror No. 10 had been subpoenaed by the People in an unrelated matter. The court, through the court clerk, advised the People that Juror No. 10 would not be responding to the subpoena until she was released from her jury service in defendant's case. The court also directed the bailiff to advise Juror No. 10 not to be concerned about responding to the subpoena and not to contact the People.
On day eight of defendant's trial, the court summoned Juror No. 10 for examination regarding the subpoena. She explained that she worked for a lien office associated with and attached to a towing service. She heard a woman "getting irate" in the tow office so she stepped outside, "kind of watched it," then went back inside. She believed she was subpoenaed because she heard the woman getting irate. The court reminded Juror No. 10 that, in her questionnaire, she indicated she never witnessed a crime. Juror No. 10 responded:
"Well, because it really wasn't a crime, was it? I mean, it was just a dispute between two people.
"THE COURT: Right.
"JUROR NO. 10: I didn't think it was really a crime.
"THE COURT: Based on what you've told me, I tend to agree.
"So I was just curious, if you got subpoenaed in a case by the prosecution in some other matter, usually that's because someone is a witness to a crime. But in this instance, at least as far as your awareness goes, you didn't feel that you were witnessing or had witnessed a crime in that particular situation?
"JUROR NO. 10: I didn't think I did. I apologize if it was a crime and I'm not aware of it, but yeah."
The court also investigated whether Juror No. 10 had any contact with the People as a result of the subpoena. She indicated she spoke with someone on the phone who said she would not likely be called. Juror No. 10 further explained that it was a woman she spoke to but could not remember her name or whether she was a lawyer or an investigator.
The court then asked Juror No. 10 whether the subpoena or the incident she witnessed at the tow office impacted her "ability to sit as a juror and maintain [her] fair and impartial approach to the facts of this case." Juror No. 10 said that, to her, the subpoena was nothing more than "a paper in the mail," and it would not affect her ability to be fair and impartial as a juror in defendant's trial.
In response to questioning by defense counsel, Juror No. 10 indicated that she received two or three subpoenas prior to defendant's trial. It was one of these prior subpoenas that resulted in her telephone conversation with someone from the district attorney's office. Juror No. 10 further explained that the trial for which she was subpoenaed had repeatedly been postponed. The court excused Juror No. 10 from the courtroom.
With Juror No. 10 out of the courtroom, defense counsel said that if Juror No. 10 had answered the voir dire questions appropriately, counsel would have "kicked her off on a peremptory." Defense counsel argued Juror No. 10 should have disclosed the subpoenas and her related contact with the district attorney's office during voir dire. Counsel expressed further concern about the volatile nature of the argument Juror No. 10 witnessed, given that defendant was charged with assault crimes.
Defense counsel also expressed concern that Juror No. 10 did not think the conduct outside the tow office was a crime. Counsel argued that may suggest bias relative to the crimes with which defendant was charged. Moreover, counsel argued Juror No. 10 may not be impartial "because of the control by the government through the subpoena." Defense counsel asked for a mistrial or to replace Juror No. 10 with an alternate juror.
The trial court asked Juror No. 10 to return to the courtroom in order to ask additional questions. The court confirmed that Juror No. 10 had not discussed the subpoena with other jurors. Juror No. 10 also explained she did not give the bailiff the subpoena sooner because she "didn't think about it." In response to the court's questions, Juror No. 10 also indicated she did not feel "under the control of the district attorney's office" because she had been subpoenaed in an unrelated matter.
The court indicated its intent to deny defense counsel's motion. "I'm giving this a lot of thought. I'm still wrestling with what did this juror do wrong that would be a reason for excusing her. I don't have any basis for excusing her for misconduct. The answer, the negative answer, to the question on the questionnaire, Have you been a witness to a crime, . . . I think her negative response to that, based on the information that she's provided to us this afternoon, was reasonable." The court also did not believe the subpoena itself caused Juror No. 10 to lean toward either the prosecution or the defense. In sum, the trial court said, "I don't have a basis for finding juror misconduct. I don't have a basis for finding a reason to excuse the juror. There's absolutely no basis for a mistrial. And that's where I'm at at this point."
The trial court later issued its decision in writing. The court found "[i]t was obvious from Juror [No.] 10's responses to questions that she truly did not believe the subpoenas or the brief contact postponing a trial date was information that she was obligated to disclose. Based on the nature of those limited contacts, I do not believe she was required to disclose that information without a direct question asking her to do so."
The court went on to find "that Juror [No.] 10's demeanor during her responses to questions . . . was sincere. She credibly explained why she did not think the incident she observed at her place of employment was a crime. . . . She gave thoughtful answers to questions and was genuine and credible. There was nothing from her demeanor or statements in court that showed any kind of evasion or harboring of favoritism for one side or the other. . . . I find that her negative responses to questions about whether she knew a victim of a crime or witnessed a crime were made in good faith. I find that [her] nondisclosures of prior contact with an unidentified person at the District Attorney's Office about postponement of trial or the receipt of two or three subpoenas from that office was in good faith."
The trial court found there was "no evidence that Juror Number 10 gave false answers to questions during voir dire." The questions asked during voir dire did not, the court ruled, "trigger a requirement" for Juror No. 10 to disclose the incident she witnessed outside the towing office, or the fact she received a subpoena, or that she had brief contact with someone from the district attorney's office telling her the trial related to the subpoena was postponed. Moreover, there was nothing about the incident outside the towing office, the subpoena itself, or Juror No. 10's de minimus contact with the district attorney's office to suggest she was improperly influenced by any of these things.
The court explained that, as a layperson, Juror No. 10 could not be blamed for failing to recognize "any criminality" in the incident outside the towing office. Nor could the "tow employee who was the subject of the irate discussion" be "characterized as a victim or as a close friend of Juror Number 10." In sum, the court ruled, "[t]here was no misconduct by Juror Number 10 during voir dire." Accordingly, the court denied defense counsel's motion.
B
A criminal defendant has a constitutional right to a trial by an impartial and unbiased jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16.) A jury is impartial when no juror has been improperly influenced by outside factors and is capable and willing to decide the case solely on the evidence. (People v. Nesler (1997) 16 Cal.4th 561, 578.) Juror misconduct may establish juror bias. (Ibid.)
When a defendant asserts prejudicial jury misconduct, the trial court must determine whether admissible evidence establishes misconduct, and whether the misconduct, if any, was prejudicial. (People v. Sanchez (1998) 62 Cal.App.4th 460, 475; People v. Duran (1996) 50 Cal.App.4th 103, 112-113.) "Whether prejudice arose from juror misconduct is a mixed question of law and fact. We review legal issues independently, and accept the trial court's factual findings if they are supported by substantial evidence. [Citation.]" (People v. Loker (2008) 44 Cal.4th 691, 747; see People v. Danks (2004) 32 Cal.4th 269, 303-304.) But we review a trial court's denial of a motion for mistrial for abuse of discretion. (See, e.g., People v. Cunningham (2001) 25 Cal.4th 926, 984.)
" 'A juror who conceals relevant facts or gives false answers during the voir dire examination . . . undermines the jury selection process and commits misconduct.' " (People v. Wilson (2008) 44 Cal.4th 758, 822-823.) Intentional concealment of material information creates a presumption of prejudice which is rebutted if the trial court's examination of the entire record shows no reasonable probability of actual harm to the defendant from the misconduct. (People v. Carter (2005) 36 Cal.4th 1114, 1208; People v. McPeters (1992) 2 Cal.4th 1148, 1175.)
Conversely, unintentional or inadvertent failure to disclose information does not create a presumption of prejudice. (People v. McPeters, supra, 2 Cal.4th at p. 1175.) The proper test is whether the juror had "a state of mind" that " 'would prevent a person from acting impartially.' " (People v. San Nicolas (2004) 34 Cal.4th 614, 646.) The trial court is in the best position to determine whether failure to disclose was intentional or unintentional and whether the juror was able to act impartially. (Id. at p. 644.)
Here, the trial court found there was no misconduct by Juror No. 10. The court found there was "no evidence that Juror [No.] 10 gave false answers to questions during voir dire." We conclude the record as a whole supports the trial court's decision. Juror No. 10 said she did not believe the incident she witnessed outside the towing office was a crime and the trial court found her credible. Indeed, based on Juror No. 10's description of the incident, the trial court thought what she witnessed was not a crime. Juror No. 10 further explained that the subpoena she later received did not change her opinion about whether the incident was a crime. Again, the trial court found her credible.
The trial court did not abuse its discretion in denying defendant's motion for mistrial.
II
Defendant next contends the trial court erred in failing to instruct the jury sua sponte on the elements of stalking.
The People moved in limine, pursuant to Evidence Code section 1109, to admit evidence that defendant previously committed acts of domestic violence. Defendant moved in limine to exclude the evidence. As described by the People in their offer of proof, defendant's prior victim was a woman with whom defendant had a dating relationship. Defendant forced her to drive him from place to place as he threatened to kill her, then broke her windshield and slashed her tires. The trial court ruled the conduct was a prior act of domestic violence admissible under Evidence Code section 1109.
Defendant notes the prior conduct resulted in defendant's conviction under section 646.9 for stalking, and argues the trial court should have instructed the jury on the elements of stalking so the jury could determine whether defendant's prior conviction constituted a prior act of domestic violence. We disagree.
Evidence Code section 1109 states that, subject to exceptions not applicable here, "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by [Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." (Evid. Code, § 1109, subd. (a).) Here, the trial court determined defendant's prior conduct was admissible under Evidence Code section 1109 as prior domestic violence. That was a question for the trial court to determine, not the jury. The trial court did not have a sua sponte duty to instruct the jury on the elements of stalking.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, Acting P. J. We concur: /S/_________
MURRAY, J. /S/_________
RENNER, J.