Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 197148
Reardon, J.
Appellant Antonio Woods was convicted by a jury of murder, on an aider and abettor theory of liability, and of being a convicted felon in possession of a firearm. The trial court sentenced him to 25 years to life in prison. Appellant asserts that the trial court violated his right to a fair trial by an impartial jury when it excused a juror for health reasons. He further claims constitutional deprivation of his right to be present during the conference leading to discharge of the juror. We affirm.
I. BACKGROUND
A. The Crimes
On February 8, 2003, Eugene Befford was sitting in his car in front of his house on Page and Webster Streets. Appellant and codefendant Anthony Johnson drove up and parked behind Befford’s vehicle. They walked toward Haight Street and approximately a half hour later they returned to the corner of Webster and Page. According to Befford, the two men were “yelling and using vulgarities about someone [who] had pissed them off.” Something was said about “doing something to somebody.” Appellant told Johnson that the gun was in the car. Johnson went to the car while appellant went to the corner.
Ron Coleman arrived on the other side of the street. Appellant and Coleman began arguing and yelling. Appellant’s shirt was open. He put his hands in the air and turned around in a circle. They continued yelling. Eventually Coleman crossed the street toward appellant. As Coleman approached appellant, appellant backed up. While they continued arguing Johnson proceeded along the wall of a building, crouching down with a gun between himself and the building. Johnson walked to a point behind Coleman and moved his arm in front of him with the gun. Coleman turned around and Johnson shot him in the chest.
B. Dismissal of Juror No. 9
At the end of the first full day of jury deliberations, Juror No. 9 asked to address the court, saying “Well, it seems though I disagree with all eleven other—.” The court indicated it could not listen to anything about deliberations, asking the juror to put his concerns in writing to be dealt with the following day.
The next morning, in the presence of counsel, with waiver of appellant’s appearance, the court questioned Juror No. 9. First, the court explained that it could not know about how any juror was voting or what was said during deliberations. Juror No. 9 stated: “I don’t know how to explain, but I can tell you I was highly disturbed yesterday when I came home. My blood pressure was over 200 and 110. And my pulse . . . was over 120. And then I took some—my wife is a retired physician. We have everything in the house for that. [¶] And, well, I cannot stand how people in this room are reasoning. I cannot explain it if I don’t talk to you about what is happening.”
Reiterating that the court could talk with Juror No. 9 “about physically what is happening to you,” the following colloquy took place:
“[Juror No. 9]: No, nothing physically.
“[Court]: Well, if you go home and you have problems with your blood pressure and your pulse.
“[Juror No. 9]: Because this is probably [a] question of culture, different culture, a different understanding, a different concern about people. . . . I cannot say here because I am forbidden to say what people think or, what
“[Court]: That’s right.
“[Juror No. 9]: Well, how to explain it? I just don’t want to be part of it.
“[Court]: You just what?
“[Juror No. 9]: I don’t want to be part of it.
“[Court]: And why is that?
“[Juror No. 9]: Because I am thinking quite differently. And I cannot understand that eleven people, different people from different society, might have such similar—I don’t know what to say, Judge.
“[Court]: So[,] in other words, you feel as though you alone have one position and the other eleven have another position?
“[Juror No. 9]: Exactly. Exactly. And I must tell you that this situation disturb[s] me a lot. I have chest pain twice yesterday. And today I took with me nitroglycerine because I have . . . angina pectoris. [¶] . . .
“[Juror No. 9]: . . . That is heart condition. And when I am disturbed, my blood pressure goes up. I have chest pain that won’t go away if I don’t use this. This is immediate remedy for that because it enlarge my arterials in heart and help me to go through it.
“[Court]: Well, really the issues boil down to this: Are you participating in the discussions of the group?
“[Juror No. 9]: Yes.
“[Court]: So you are in fact deliberating with the rest of the group?
“[Juror No. 9]: Yes.
“[Court]: And you are following the law and the instructions that the Court gave you?
“[Juror No. 9]: Yes.
“[Court]: So that is appropriate conduct for a juror. And you have described some physical difficulties that you are having because this process is difficult for you?
“[Juror No. 9]: Judge, it just started. Just having this conversation, it just started to feel uncomfortable.
“[Court]: So you are holding your chest?
“[Juror No. 9]: Yes.
“[Court]: Do you believe that physically that you would be able to continue deliberating?
“[Juror No. 9]: Well, despite that you can—how is English—keep me content. Is that proper expression?
“[Court]: I can give you more breaks during the day in deliberations.
“[Juror No. 9]: No, no, it’s not that. Even if you keep me responsible to attend this procedure . . ., my health conditions are such that they will risk to be punished than to go to continue.
“[Court]: So let me see if I understand what you are saying. Are you saying that you are afraid if you continue that your health is going to suffer?
“[Juror No. 9]: Of course.
“[Court]: Does that mean that because of health reasons you don’t want to deliberate anymore?
“[Juror No. 9]: Well, what is happening in this room makes me sick. Am I clear on it or I must explain more. But I cannot explain more because
“[Court]: If I told you to go back into the jury deliberation room and continue deliberating and see how it goes and if you have a medical problem such that you cannot deliberate anymore, to send out a note to me; would you be willing to do that?
“[Juror No. 9]: I don’t want to obstruct process. But I already feel some stenosis. I don’t know how
“[Court]: You are holding your chest?
“[Juror No. 9]: Yeah.
“[Court]: So do you believe that physically that you would not be able to return to deliberations?
“[Juror No. 9]: I can return but I cannot stand this process. I can’t go there—I can go there physically, but I won’t be able to continue deliberations. Am I clear now?
“[Court]: So you believe that the problems with your health are such that you cannot continue your deliberations?
“[Juror No. 9]: Yeah.
“[Court]: So you are asking the Court to excuse you then from this jury?
“[Juror No. 9]: That’s correct.”
Following this interview the court entertained argument about the propriety of excusing Juror No. 9, ultimately concluding that he was not suffering “tummy problems, but something that is a serious health risk to this gentleman.” Despite offering accommodations Juror No. 9 “after the long pause stated that he could . . . not deliberate further. He appears to be genuine in his beliefs. [¶] The Court does not believe that this is a cultural thing . . . . In this Court’s mind the demonstrative reality has been met and this juror is physically unable to perform the duties of a juror, that the trial stress has overcome him to the point that he cannot further deliberate.”
The court excused Juror No. 9 and replaced him with an alternate.
II. DISCUSSION
A. The Trial Court Properly Excused Juror No. 9
Penal Code section 1089 provides that, at any time before or after final submission to the jury the trial court may discharge a juror who, upon “good cause shown to the court is found to be unable to perform his or her duty . . . . ” A trial court’s determination to discharge a juror and order an alternate into service is reviewed for abuse of discretion. (People v. Cleveland (2001) 25 Cal.4th 466, 474 (Cleveland).) A juror’s inability to perform his or her functions as a juror “ ‘ “ ‘must appear in the record as a demonstrable reality.’ ” [Citation.]’ [Citation.]” (Ibid.) Thus Penal Code section 1089 permits removal of a juror who becomes physically unable to continue with jury services due to illness or other circumstances. (Ibid.)
In Cleveland, supra, 25 Cal.4th at pages 480-484, our Supreme Court discussed a trio of federal cases involving the promulgation and refinement of a standard that precluded dismissal of a juror in cases where there is “ ‘any reasonable possibility that the impetus for a juror’s dismissal stems from the juror’s views on the merits of the case.’ ” (Cleveland, supra, at p. 484.) It agreed with observations in these cases “that a court may not dismiss a juror during deliberations because that juror harbors doubts about the sufficiency of the prosecution’s evidence.” (Id. at p. 483.) However, the court rejected the “any reasonable possibility” standard, adhering instead “to established California law authorizing a trial court, if put on notice that a juror is not participating in deliberations, to conduct ‘whatever inquiry is reasonably necessary to determine’ whether [grounds to discharge] exist [citation] and to discharge the juror if it appears as a ‘demonstrable reality’ that the juror is unable or unwilling to deliberate. [Citations.]” (Id. at p. 484.)
These include U.S. v. Brown (D.C. Cir. 1987) 823 F.2d 591 (Brown) and U.S. v. Symington (9th Circ. 1999) 195 F.3d 1080 (Symington), relied on by appellant.
Appellant maintains that Juror No. 9 was a “holdout” juror and while his health concerns may have been legitimate, they were “inextricably intertwined with the juror’s position as a holdout for acquittal.” With this characterization he argues where the record discloses a reasonable possibility that the request for discharge stemmed from the juror’s belief that the prosecution had not carried its case, the only options available to the trial court are to send the juror back for further deliberations or to declare a mistrial. (Citing Symington, supra, 195 F.3d at pp. 1085-1086 and Brown, supra, 823 F.2d at p. 596.)
Appellant also states that it was incumbent upon the court to verify the health concerns of Juror No. 9 by conducting an inquiry sufficient to establish an objective basis of his inability to continue. Appellant calls our attention to People v. McNeal (1979) 90 Cal.App.3d 830, wherein an issue was raised whether the juror in question had personal knowledge of the case, but it also appeared she was not persuaded by the People’s case (id. at pp. 837-838). The trial court conducted a cursory inquiry, relying principally on the juror’s statement that she could be impartial. (Id. at pp. 836, 838.) The reviewing court concluded the effort was deficient. “Once the court is alerted to the possibility that a juror cannot properly perform his duty to render an impartial and unbiased verdict, it is obligated to make reasonable inquiry into the factual explanation for that possibility. [¶] . . . [¶] . . . Here the court’s failure to make at least a minimal factual inquiry left unresolved the essential question: Juror Exline’s ability to deliberate impartially.” (Id. at pp. 838-839.)
First, while it is apparent that Juror No. 9 felt alone in that he had one position and the others held another on some aspect of the case, the record does not indicate that the jury was deadlocked. It had deliberated only for one day. Far from having reached the end of deliberations, at the time Juror No. 9 expressed his concerns, the jury had requested two readbacks, and was awaiting a response.
Second, it is evident from this record that the trial court, in the presence of counsel, sufficiently probed the matter of Juror No. 9’s health concerns. A trial court’s discretion in determining whether to discharge a juror encompasses the discretion to decide the specific procedures to use, including whether to conduct a hearing or detailed inquiry. (People v. Beeler (1995) 9 Cal.4th 953, 989.) In this regard, a trial court’s “self-directed inquiry, short of a formal hearing” sufficed where the court had observed that jurors were inattentive or sleeping. (People v. DeSantis (1992) 2 Cal.4th 1198, 1234.)
The self-directed inquiry employed by the trial court in this case was sufficiently in-depth to resolve the concerns raised. The court’s questioning revealed that after the first day of deliberations the juror indicated his blood pressure and pulse rate were elevated, and his wife, a retired physician, had to give him medication. During the interview the juror pulled out a canister of nitroglycerine and clutched his chest several times. The juror told the court that he had a heart condition and had experienced chest pains twice during the day of deliberations. The nitroglycerine was the immediate remedy for the chest pain. The juror experienced some pain during the interview. The court concluded that the juror appeared genuine in his belief that he could not physically continue. The court found that the trial stress had overcome the juror to the point that he could not further deliberate, and thus the “demonstrable reality” test had been met. The trial court followed the teachings of Cleveland and under settled California law did not abuse its discretion in discharging Juror No. 9, or violate any rights of appellant.
Third, although Juror No. 9 expressed that he thought differently from the other jurors, the record is clear that the court dismissed him because his health condition was such that he could not continue the deliberative process. Our Supreme Court has elected not to adopt the standard developed in Brown and Symington that would foreclose dismissal of a juror whenever there was “any reasonable possibility” that the impetus for dismissal stemmed from the juror’s views on the merits of the matter. (Cleveland, supra, 25 Cal.4th at p. 484.) Instead, the focus is on whether, with the necessary inquiry, “it appears as a ‘demonstrable reality’ that the juror is unable or unwilling to deliberate. [Citations.]” (Ibid.) We are required to follow Cleveland. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
B. Appellant’s Federal Due Process Rights Were Not Violated Due to His Absence from the Inquiry Regarding Discharge of Juror No. 9.
Appellant also asserts that he was prejudicially deprived of his federal due process right to be present during the inquiry into whether Juror No. 9 should be discharged. We disagree.
After the jury was excused to begin deliberations, codefendant Johnson indicated he wanted to remain upstairs unless his presence was necessary. The court also asked appellant personally if it was “agreeable to you that you remain upstairs until the verdict unless otherwise requested by counsel to be here.” He replied, “Yes, Your Honor.” At the end of the first day of deliberations, the trial court called the jury in for an admonition. The court asked defense counsel if they waived their clients’ appearances. Counsel indicated they did. After delivery of the admonition Juror No. 9 initially raised his concern with the court.
The next morning, in the presence of defense attorneys and Juror No. 9, the court again asked if the attorneys waived their clients’ appearances. Again, both indicated they did.
Our Supreme Court has summarized the law pertaining to a defendant’s presence at trial as follows: “ ‘ A criminal defendant’s right to be personally present at trial is guaranteed by the Sixth and Fourteenth Amendments of the federal Constitution, as well as by article I, section 15 of the California Constitution . . . . [Citations.] A defendant, however, “does not have a right to be present at every hearing held in the course of a trial.” [Citation.] A defendant’s presence is required if it “bears a reasonable and substantial relation to his full opportunity to defend against the charges.” [Citation.] The defendant must show that any violation of this right resulted in prejudice or violated the defendant’s right to a fair and impartial trial. [Citation.]’ [Citations.]” (People v. Cleveland (2004) 32 Cal.4th 704, 741.)
First, the record shows that appellant waived his right to be present at further proceedings until the verdict was delivered, unless his counsel requested his presence. During the exchange with Juror No. 9 counsel did not object to appellant’s absence from the in-chambers conference—indeed, counsel waived his presence. Moreover, as counsel was present he was fully able to represent appellant’s interests. Moreover, that counsel did not think appellant’s presence was necessary “strongly indicates” that his presence did not bear a substantial relation to his opportunity to defend against the charges. (People v. Cleveland, supra, 32 Cal.4th at p. 741.) Further, appellant did not object once he became aware that the procedure took place. Significantly, although appellant moved for a new trial, and argued that the court erred in excusing Juror No. 9, he said nothing about his absence from the interview.
We take note that numerous cases have held that similar discussions do not constitute a critical stage of the proceeding constitutionally sealing appellant’s right to be present. As summarized and recounted in People v. Santos (2007) 147 Cal.App.4th 965, 973-974, a defendant’s due process rights are not violated by exclusion at a hearing in which the trial court determined the competency of child witnesses (citing Kentucky v. Stincer (1987) 482 U.S. 730, 745-747); nor is the rereading of testimony (People v. Avila (2006) 38 Cal.4th 491, 598) or a bench conference discussion concerning the exclusion of a spouse from the courtroom (People v. Perry (2006) 38 Cal.4th 302, 312) a critical stage of the proceeding; further, defendant has no federal constitutional right to view the crime scene (citing People v. Moon (2005) 37 Cal.4th 1, 20); so, too, defendant’s presence at jury screening discussions conducted by counsel would have served little purpose and defendant had no constitutional or statutory right to attend them (citing People v. Rogers (2006) 39 Cal.4th 826, 855-856).
Appellant contends that the absence of defendant from inquiry into jury misconduct is a reversible violation of the right of presence, citing cases from other states. The focus of the inquiry here was whether to excuse Juror No. 9 because the condition of his health was such that he could not further deliberate. There was no allegation of misconduct, although the trial court did confirm that the juror’s conduct in deliberations was appropriate. Appellant suggests that his presence was necessary because it could have motivated Juror No. 9 to persevere and in any event he could have assisted counsel during the conference. This argument is based on speculation and the record shows counsel acted professionally in appellant’s interest. More significantly, the in chambers discussion bore no reasonable relation to appellant’s opportunity to defend against the charges.
Specifically, Commonwealth v. Robichaud (1970) 358 Mass. 300, 302-303; Berness v. State (1955) 263 Ala. 641, 646; People v. Medcoff (1955) 344 Mich. 108, 117-118 (overruled in People v. Morgan (1977) 400 Mich. 527, as recognized in People v. Roberts (1992) 2 Cal.4th 271, 307, fn. 6; Bunch v. State (1978) 281 Md. 680, 688. As the People point out, these cases predate the United States Supreme Court’s decision in United States v. Gagnon (1985) 470 U.S. 522, 526-527 (due process principles do not entitle defendant to appear at every encounter between judge and jurors). Rather, the central inquiry in such situations is whether defendant’s presence reasonably could have assisted his defense of the charges against him.
III. DISPOSITION
The judgment is affirmed.
We concur: Ruvolo, P. J., Sepulveda, J.