Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 196439
Ruvolo, P. J.
I.
INTRODUCTION
Appellant Michael Jones (appellant) appeals from a judgment following a jury verdict convicting him of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), false imprisonment (§ 236) and making criminal threats (§ 422). Appellant received concurrent five-year terms for the assault with a firearm and false imprisonment convictions, and he received a concurrent two-year term for the criminal threat conviction. Appellant challenges the convictions claiming: (1) the trial court’s removal of a juror during the prosecution’s closing argument was an abuse of discretion, and therefore violated his state and federal right to a jury trial and due process; and (2) the trial court improperly instructed that the jury may draw adverse inferences if it found appellant had failed to explain or deny evidence against him based on facts within his personal knowledge. We affirm.
Unless otherwise noted, all subsequent statutory references are to the Penal Code.
II.
FACTS AND PROCEDURAL BACKGROUND
Appellant was charged by information filed September 9, 2005, with seven felony counts alleged to have been committed on June 24, 2005: robbery (§ 212.5, subd. (c)); assault with a firearm (§ 245, subd. (a)(2)); assault with a deadly weapon, to wit, a knife (§ 245, subd. (a)(1)); kidnapping (§ 207); false imprisonment (§ 236); negligent discharge of a firearm (§ 246.3); and making terrorist threats (§ 422). Appellant pled not guilty to all charges and trial commenced on January 27, 2006.
On June 24, 2005, Raymond Zeno encountered appellant outside the duplex owned by appellant’s mother in the Haight-Ashbury district of San Francisco. Zeno and appellant knew each other casually years before when Zeno lived nearby. Zeno and appellant went inside the upstairs flat and shared a crack cocaine cigarette given to Zeno earlier in the day.
Zeno testified he had a “pretty good buzz” as he and appellant talked in the kitchen. Appellant asked Zeno for $40 and asked about Zeno’s Social Security number and if he had a checking account. This behavior caused Zeno concern, so he stated he only had $3. After they “shared a laugh” over a pornographic magazine, appellant returned to his room to put it back. When appellant returned to the kitchen, Zeno noticed he had a gun in his back pocket. Zeno asked why he was carrying it, which prompted appellant to start waving it around the room. Appellant opened the gun to show Zeno the bullets, then reloaded it fearing a possible robbery. Appellant asked Zeno to say his name, and Zeno could not think of it. Appellant stood up and said, “ ‘You think I am bullshitting you or something?’ ” Appellant then shot the weapon into a potted plant on the kitchen table. He pulled Zeno to the floor and asked, “ ‘You got any money?’ ” Zeno said he did not, and appellant responded by hitting him with his fist in the back of the head. Zeno took $60 dollars out of his wallet, which appellant threw back in his face. After sticking the gun in Zeno’s mouth, appellant dragged him from the kitchen to the bathroom, pulling his jacket off in front of the bedroom. Zeno defecated in his pants. Appellant handcuffed him to a towel rack in the bathroom, told Zeno to shut up, and hit Zeno’s head with the butt of the gun. Appellant duct taped Zeno’s mouth closed, pulled out a knife, and threatened to cut off his finger if Zeno moved his uncuffed hand from the wall. Zeno’s uncuffed hand slid a little and appellant hit the back of Zeno’s hand with the back of the knife. Appellant removed the duct tape when Zeno stated he had asthma. Appellant threatened, “I will fuck you up. I will shoot you in the knee cap. I will cut you up, take you to the back through the garage and put you in my car . . . .” Appellant told Zeno to clean up his mess, but there was a knock at the door. When appellant opened the door he was confronted by police who arrested him.
Appellant’s testimony was markedly different from that of Zeno. He testified that Zeno smoked a second crack cigarette, had a personality change, started pacing and looking out the window, then said he was going to the bathroom. After 15 or 20 minutes, appellant went looking for him. He found him back in the kitchen holding the handgun appellant had left loaded on his bed. Appellant panicked and grabbed the gun over the table. There was a “very brief struggle and the gun discharged.” Appellant wrestled the gun from Zeno and “cracked him over the head” with it “twice.” Appellant yelled, “What the fuck is wrong with you, Ray? Are you fucking crazy?” Appellant ordered Zeno out of the house, but realized Zeno had been in his bedroom. Appellant made Zeno empty his pockets and, because it “would be a disservice” to throw him in the street on drugs, and cuffed him for control. As they walked down the hallway, Zeno defecated in his pants, prompting defendant to take him into the bathroom. Zeno was mumbling about his money so appellant told him, “Ray, shut the fuck up. Shut your fucking mouth.” Feeling Zeno was acting crazy, appellant hit him with the gun butt, cuffed him to the towel bar, and taped his mouth. Appellant said, “You’ll have your fucking money, Ray. Shut up, shut up.” He told him not to move and to “shut the fuck up or I’m not going to uncuff you.” He put a pillow under Zeno’s knees and removed the tape after realizing Zeno had asthma. The doorbell rang and appellant ran downstairs where he was arrested as soon as he opened the door. Appellant testified that he had been acting in the best interest of Zeno.
While these events were unfolding, appellant’s sister Ethel Rainey and her daughter Marcella were in the downstairs flat. Hearing the gunshot, Ethel told Marcella to call the police. The court admitted a tape of Marcella’s 911 call, in which she stated she heard “tons of booms” and her uncle scream, “ ‘[s]hut the fuck up or I’m not going to uncuff you’ ” and “ ‘I’ll shoot you if you don’t shut your mouth.’ ” When interviewed by the police later that day, Ethel stated on tape that she heard someone say, “I’ll blow your fucking head off.”
Uniformed officers arrived and were told by Ethel and Marcella that appellant was upstairs beating on someone. As officers conferred at the front door, defendant unexpectedly opened it. The police thwarted appellant’s attempts to slam the door, and restrained and arrested him near the entrance to the flat.
Appellant was found guilty on count two, assault with a firearm (§ 245, subd. (a)(2)), count four, false imprisonment (§ 236), and count six, making terrorist threats (§ 422). On December 1, 2006, the court sentenced appellant to a concurrent state prison term of two years on each count. Additionally, appellant received a consecutive sentence of three years for the gun enhancement as to count two and a concurrent term of three years for the enhancement as to count four, for a total of five years in state prison. Appellant timely appealed.
III.
DISCUSSION
Appellant requests reversal of the judgment based on: (1) the trial court’s denial of his right to a jury trial and due process by dismissing a juror during closing argument; and (2) the trial court’s improper jury instruction permitting the jury to draw adverse inferences from appellant’s failure to explain or deny adverse evidence.
A. Juror Dismissal
The trial court discharged Juror No. 11 (Juror 11) over defendant’s objection, during the prosecution’s closing argument. Appellant contends the court’s decision to dismiss Juror 11 violated his state and federal constitutional rights to a jury trial and due process.
During trial on January 31, 2006, the judge excused the jury, but asked Juror 11 to stay behind. The court asked Juror 11 if he was “okay” because the judge thought he was sleeping. Juror 11 denied being asleep despite the judge’s comment that he was snoring. The court allowed Juror 11 to move to the back row of the jury box so that he could get water and stretch as needed in order to stay alert.
On February 2, 2006, the court informed counsel that “juror number 5 called to the Court’s attention that [Juror 11] was dozing on and off.” The judge stated that she had seen that happen when she warned Juror 11 about this on January 31, 2006. Neither party had seen Juror 11 sleeping. However, the prosecution had heard snoring, which the juror explained was due to adenoid problems. Nevertheless, the court decided to investigate the matter further in recognition of the importance of the issue.
On February 6, 2006, prior to closing arguments, the judge asked Juror 11 if he had been sleeping on February 2, 2006. Juror 11 denied sleeping, and stated that he had been “[t]aking in everything that has happened.” The court accepted this explanation for the second time despite Juror No. 5’s, the prosecutor’s, and the trial judge’s own observations.
The prosecutor proceeded with closing argument, analyzing the evidence as to each count. While the prosecutor was discussing count six, the court interrupted and asked Juror 11 to approach the bench. The judge announced that she “informed [Juror 11] that I heard him snoring” and “[i]t stopped everybody in the courtroom.” Again, Juror 11 blamed the noises on his adenoids and reassured the court that he had been awake. However, the court pressed Juror 11 on his attentiveness, asking, “what count was [the prosecutor] arguing?” Juror 11 responded, “[h]e was arguing on the gun, hitting him with the gun, and we should come back with the verdict if it was willful, or not willful, you know.” The court informed Juror 11 that the rule he recited related to counts two and three, and counsel had been arguing count six at the time of the interruption.
The court then asked the parties if they would like to argue whether the court should dismiss Juror 11. The defense objected to the dismissal, arguing that the juror seemed awake at all times and his breathing condition is common and not definitive proof he was sleeping. In addition, defense counsel stated her concern that Juror 11 was the only African-American person on the jury. The prosecution stated that he witnessed Juror 11 sleeping during argument, and the loud snoring distracted his argument and the other jurors’ ability to listen.
Appellant asserts an equal protection challenge based on the judge’s exclusion of Juror 11. However, the equal protection clause protects against excusing a juror on account of race, not due to sleeping during trial.
Following this discussion, the trial judge restated for the record those periods during the trial where the court personally witnessed, or was alerted to, Juror 11 sleeping. She then dismissed Juror 11 for inability to perform his duties.
Under section 1089, the court may dismiss a juror “[i]f at any time . . . a juror [1] dies or [2] becomes ill, or [3] upon other good cause shown to the court is found to be unable to perform his or her duty, or [4] if 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 . . . .” (§ 1089; see also Code Civ. Proc., §§ 233, 234.) The trial court dismissed Juror 11 for sleeping during trial rendering him unable to perform his duty.
Preliminarily, when the trial court receives notice that such cause may exist, it has an affirmative obligation to investigate. (People v. Bradford (1997) 15 Cal.4th 1229, 1348.) The scope of any investigation is committed to the sound discretion of the trial court. (People v. Bonilla (2007) 41 Cal.4th 313, 350; People v. Bradford, supra, 15 Cal.4th at p. 1348; People v. Abbott (1956) 47 Cal.2d 362, 371.) This court satisfied that duty to investigate. The judge repeatedly questioned Juror 11 outside the presence of the remaining jurors about his somnolent behavior. The judge allowed counsel to argue regarding the removal of Juror 11. The judge discussed the matter with Juror No. 5. There is no doubt that an investigation took place and that the scope of this investigation was not an abuse of discretion.
Next, we must determine whether the trial court had good cause or abused its discretion in removing Juror 11. Under the third prong of section 1089, the trial court has the authority to discharge jurors for good cause, including sleeping during trial. (People v. Bradford, supra, 15 Cal.4th at pp. 1348-1349; § 1089.) Recently, our Supreme Court has discussed the standard of review applicable to this inquiry. (People v. Barnwell (2007) 41 Cal.4th 1038 (Barnwell).) In an attempt to clarify the appropriate standard of review, the Supreme Court in Barnwell held the more stringent demonstrable reality standard governs review of juror removal. (Id. at p. 1052.) This standard “ ‘indicates that a stronger evidentiary showing than mere substantial evidence is required to support a trial court’s decision to discharge a sitting juror.’. . .” (Ibid., citing People v. Cleveland (2001) 25 Cal.4th 466, 488.) The trial court’s decision in this case easily met that higher standard of review.
The demonstrable reality test requires a showing that the court as trier of fact did rely on evidence that supports its conclusion that good cause was established. (Barnwell, supra, 41 Cal.4th at pp. 1052-1053.) It is important to make clear that a reviewing court does not reweigh the evidence under either test. (Id. at p. 1053, original italics.) However, the reviewing court must be confident that the trial court’s conclusion is manifestly supported by evidence on which the court actually relied. (Ibid.) In reaching that conclusion, the reviewing panel will consider not just the evidence itself, but the record of reasons the court provides. (Ibid.)
In People v. Ramirez (2006) 39 Cal.4th 398, 456-457 (Ramirez), the Supreme Court concluded that the trial judge properly dismissed a juror for sleeping during trial and deliberations. In Ramirez, the court dismissed the juror following the judge’s personal observations of the juror nodding off, and notifications from other members of the jury of similar conduct. (Id. at p. 457.) The court conducted a hearing where a juror stated he saw the subject juror sleeping multiple times. (Ibid.) The court dismissed the subject juror stating, “I have from time to time observed Mr. L[.], as I have indicated before, nodding, and it seemed somewhat clear that—that Mr. L[.] was asleep or dozing or catnapping or doing something other than paying rapt attention to the proceedings. . . . [H]e even during argument occasionally would again bounce his head up and down quickly as if rudely awakening himself or something of that nature. The court finds that although I gave Mr. L[.] . . . the benefit of a reasonable doubt prior to today with regard to his attentiveness . . . it now is quite clear that good cause exists to excuse him because of his sleeping.” (Ibid.)
The Ramirez court held a court does not abuse its discretion if it discharges a juror who falls asleep during the trial. (Ramirez, supra, 39 Cal.4th at p. 457, citing People v. Johnson (1993) 6 Cal.4th 1, 22 (Johnson), overruled on other grounds in People v. Rogers (2006) 39 Cal.4th 826.) The trial judge in Ramirez observed that the juror had difficulty paying attention during trial and appeared to fall asleep. (Ramirez, supra, 39 Cal.4th at p. 457.) The judge’s observations were consistent with the testimony of the jury foreperson that the juror had fallen asleep twice during deliberations. (Ibid.) The trial court, therefore, did not abuse its discretion in discharging the juror. (Ibid.)
In Johnson, the defendant argued there was no evidence that the juror was actually sleeping because the court failed to inquire whether in fact he had fallen asleep, or had missed any testimony. (Johnson, supra, 6 Cal.4th at p. 21.) However, the court, its two deputies, and the prosecutor each stated on the record that they had observed defendant exhibiting various physical indicia of sleep, including eye closures, head nodding, and slumping in his chair. (Ibid.) The court concluded “there was ample evidence indicating that on one or more occasions [the juror] had actually fallen asleep during trial.” (Ibid.) The court determined the evidence provided was in the record as a demonstrable reality and was sufficient to establish good cause for removal. (Ibid.)
As in Johnson and Ramirez, this record, as earlier summarized, contains ample evidence supporting the trial judge’s finding that Juror 11 slept through portions of the proceedings. Like Johnson and Ramirez, the trial judge, prosecutor, and a fellow juror each stated on the record that he or she had observed defendant exhibiting various physical indicia of sleep, including eye closures, nodding and snoring. As in Ramirez, the trial judge repeatedly gave Juror 11 the benefit of the doubt when he blamed the noises on his adenoids. However, the sleep indicia symptoms persisted. When Juror 11 was unable to recall correctly what the prosecutor was addressing in closing argument at the time the last interruption took place, the evidence supporting the court’s dismissal for failure to perform the duties of a juror became a demonstrable reality.
While the judge must be careful in the decision to remove, it is important to reiterate that the determination of “good cause” rests in the sound discretion of the court. (Barnwell, supra, 41 Cal.4th at p. 1052; People v. Abbott, supra, 47 Cal.2d at p. 371.) The trial judge here was careful and deliberate in her decision. Therefore, the dismissal of Juror 11 was a proper exercise of discretion.
B. Improper Jury Instruction
Appellant alternatively contends the trial court erred in giving CALJIC No. 2.62, which informs the jury they may draw inferences unfavorable to the defendant from his failure to explain or deny evidence presented in the prosecution’s case. (People v. Mask (1986) 188 Cal.App.3d 450, 455, citing People v. Saddler (1979) 24 Cal.3d 671, 682.)
The instruction reads: “In this case defendant has testified to certain matters.
When a defendant testifies but fails to deny or explain evidence that tends to prove guilt, the instruction is proper. (People v. Sanchez (1994) 24 Cal.App.4th 1012, 1029-1030, citing People v. Mask, supra, 188 Cal.App.3d at p. 455.) If there are “logical gaps” in a defendant’s testimony, or if the defendant tenders an explanation which seems bizarre or implausible, the jury may be instructed with CALJIC No. 2.62. The applicability of CALJIC No. 2.62 depends on the particular facts of the case. (People v. Sanchez, supra, 24 Cal.App.4th at p. 1030; see also People v. Roehler (1985) 167 Cal.App.3d 353, 393.)
The record reveals that there were two critical portions of testimony presented by the prosecution which appellant failed to explain or deny. First, Zeno and appellant’s sister testified that appellant threatened Zeno by saying “I’ll blow your fucking head off.” Appellant did not recall making such a threat. Second, Zeno and appellant’s niece testified appellant threatened Zeno, stating, “I’ll shoot you if you don’t shut your mouth.” At first, appellant denied making this statement. Trial counsel alerted appellant that his niece testified he did say that, which prompted appellant to testify he did not recall making such a threat.
Appellant correctly states that ordinarily “[f]ailure to recall specific details does not warrant giving CALJIC [No.] 2.62,” citing People v. De Larco (1983) 142 Cal.App.3d 294, 309 [where defendant admitted having touched tools in the shop days prior but could not specifically remember the flashlight.].) However, in this case, the prosecution charged appellant with making criminal threats, and these statements are the basis of that charge. As the speaker of the threats, these facts were within his particular knowledge to explain. Appellant’s failure to recall these significant facts constituted “logical gaps,” giving rise to a failure to explain or deny their existence sufficient to justify the giving of CALJIC No. 2.62.
IV.
DISPOSITION
The judgment is affirmed.
We concur: Reardon, J., Sepulveda, J.
“If you find that . . . defendant failed to explain or deny any evidence against [him] introduced by the prosecution which [he] can reasonably be expected to deny or explain because of facts within [his] knowledge, you may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable.
“The failure of a defendant to deny or explain evidence against [him] does not, by itself, warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt.
“If a defendant does not have the knowledge that [he] would need to deny or to explain evidence against [him,] it would be unreasonable to draw an inference unfavorable to [him] because of [his] failure to deny or explain this evidence.” (CALJIC No. 2.62.)