Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF 138728, Christian F. Thierbach, Judge.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
A jury convicted defendant, Luis Suarez, of kidnapping for ransom (Pen. Code, § 209, subd. (a)) and robbery (§ 211). In bifurcated proceedings, the trial court found true allegations that he had suffered two prison priors (§ 667.5, subd. (b)). He was sentenced to prison for life plus two years and appeals, claiming the trial court did not adequately inquire into potential juror misconduct. We disagree and affirm, while directing the trial court to correct errors in the abstracts of judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
The facts surrounding these crimes are irrelevant to this appeal.
Relevant Proceedings Below
After the case closed to evidence, the trial court alerted counsel that it had received a note about possible juror misconduct. The court proposed to call in Juror No. 2 and an alternate juror who had reported the incident and question them about it, and, based on their answers, possibly question the alleged offending juror and dismiss her if appropriate. Defense counsel did not object to this.
The alternate juror reported hearing in the hall outside the courtroom during a recess Juror No. 3 ask if defendant was going to take the stand and say that she really wanted him to because then she could call him a big fat liar. The alternate juror asked Juror No. 2 if she heard what Juror No. 3 had said. Juror No. 2 told the alternate juror that she heard Juror No. 3 only ask if defendant was going to take the stand. The alternate juror told Juror No. 2 that defendant did not have to. She said the person she thought was Juror No. 8 was present at the time of Juror No. 3’s question and statement but the alternate juror did not think this person heard what Juror No. 3 had said.
In his opening brief, defendant asserts that the “alternate juror... admitted discussing the [statements made by juror number 3] with another, unidentified juror[.]” He also asserts, “[J]uror number 2... confirmed hearing the... [big fat liar] comment [by juror number 3] and that she and another person, not identified as a juror or not a juror, answered the question with juror number 2 making [the] ‘Ted Bundy’ [comment]. Finally, he asserts, “[The] alternate juror... identified speaking with an unidentified juror and... [¶]... [¶]... the court was on notice of... statements made by two jurors... and overheard by... an unidentified female juror[.]” He repeats these assertions in his reply brief. They are incorrect. The alternate told the court orally that she heard Juror No. 3 ask if defendant was going to testify “[a]nd the woman that was next to me said that, [‘]No, I don’t think so.[’] [¶] And I said, [‘]No, I don’t think so, either, unless he’s Ted Bundy.[’]” The note the court received, a copy of which is not part of the record before us, was summarized by the court as follows, “[A]lternate Juror No. 2 and regular Juror No. 2 indicated to the court deputy that Juror No. 3 made a comment that they both heard.” The court reiterated the content of the note as follows to the alternate juror, “[T]hat you and one of the other jurors heard Juror No. 3 make a comment to the effect of inquiring whether the defendant was going to testify, and, if so, she could tell him that he was a big fat liar, or words to that effect....” The alternate juror confirmed this, saying, “We both heard [Juror No. 3] ask if the defendant was gonna [sic] take the stand. But I heard [Juror No. 3] say, ‘Well, I really want him to because I want to call him a big fat liar.’ [¶]... [¶] Juror No. 2 was present, but I asked her yesterday after [c]ourt if she heard [Juror No. 3] say it. She didn’t say she heard that, but she heard [Juror No. 3] say, [‘]Is the defendant gonna go on the stand?[’] [¶] And I said, [‘]He doesn’t have to.[’] As we state in the body of this opinion, Juror No. 2 told the court that she heard Juror No. 3 ask if defendant was going to take the stand. Therefore, it is clear from the record that the only people who heard any part of what Juror No. 3 said were the alternate and Juror No. 2, not some third unidentified person, as defendant here asserts.
Juror No. 2 told the court that she heard Juror No. 3 ask if defendant was going to testify. The woman next to Juror No. 2 said no, she didn’t think so. Juror No. 2 then said she did not think so either, “unless [the defendant is] Ted Bundy.” Juror No. 2 told the court she did not know why she said this. She said she had not formed any opinions or conclusions. Both defense counsel and the prosecutor said that they did not know what Juror No. 2 meant by her comment about Ted Bundy. However, defense counsel added that Juror No. 2’s comparison of defendant to Ted Bundy was not a neutral statement and she asked the court to dismiss Juror No. 2, and the People agreed.
This had to have been the alternate juror. (See fn. 2, ante, p. 3.)
Appellate counsel for defendant asserts in his reply brief that, “[J]uror number 2 identified juror number 8 as having likely heard the comments [by Juror No. 3].” First, Juror No. 2 was never asked about anyone other than her and the alternate juror hearing Juror No. 3’s comment. Second, as we have stated, the one person that was asked, i.e., the alternate juror, said she did not think Juror No. 8 heard the comment.
Contrary to defendant’s assertion, the trial court did not dismiss Juror No. 2 because the court “concluded that [she was] untruthful.” After Juror No. 2 told the court that she had made the Ted Bundy comment, the court asked her why she would say something like that and what she meant by that. She answered both questions with an “I don’t know.” The court then pointed out to her that it had instructed the jury not to discuss the case in any way. After she left the courtroom, the court commented, “Well, there’s another issue for us to deal with.” The court invited comments from the parties and both said they did not know what this juror’s reference to Ted Bundy meant, but defense counsel wanted her dismissed because it was not a neutral comment. The court responded, “Yeah. The inference is if he were to testify, he’d be hanging himself.” This is not a conclusion on the part of the trial court that Juror No. 2 was untruthful-just that she violated her oath to not discuss the case and, perhaps, even her oath to be unbiased.
Juror No. 3 admitted to the court that she had asked if defendant was going to testify, but she did not say anything about calling him a big fat liar. After she left the courtroom, the trial court stated that it did not believe her claim that she said nothing about calling defendant a big fat liar as her facial expression indicated otherwise when she made the claim. The court said it was going to dismiss both Juror No. 2 and Juror No. 3. Defense counsel said nothing. The court brought both jurors into the courtroom and dismissed them, then replaced them with the two alternates. Again, defense counsel said nothing.
Issue and Discussion
Defendant here criticizes the trial court’s handling of this matter because it did not ask the alternate juror if she could fairly serve after hearing the comments which the court believed Juror No. 3 had made and because it neither asked Juror No. 8 nor any of the other jurors whether they heard what the court believed Juror No. 3 had said.
As to the court’s failure to ask the alternate if she could fairly serve after hearing Juror No. 3’s question and comment, she correctly answered the question that defendant did not have to take the stand. Moreover, as to this, as well as Juror No.3’s comment that she hoped defendant would take the stand so she could call him a big fat liar, it must be remembered that the alternate juror reported these to the bailiff as acts of misconduct by Juror No. 3. Defendant cites no authority holding that the trial court was obliged, under such circumstances, to ask this juror if she could fairly serve. And the authorities he relies on, People v. Burgener (1986) 41 Cal.3d 505(Burgener), disapproved on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 753 and People v. McNeal (1979) 90 Cal.App.3d 830 (McNeal), do not support his position.
In Burgener, the court was informed that one of the jurors may have been intoxicated during a substantial part of deliberations. (Burgener, supra, 41 Cal.3d at p. 516.) Five of the remaining eleven jurors, including the foreperson, believed that this juror was under the influence of drugs and/or alcohol. (Id. at p. 517.) The foreperson also believed that this juror’s state interfered with her ability to deliberate. (Ibid.) The trial court did not examine the juror to determine whether she was under the influence. (Id. at p. 516.) The California Supreme Court held, “[O]nce a juror’s competence is called into question, a hearing to determine the facts is clearly contemplated. [Citations.] Failure to conduct a hearing sufficient to determine whether good cause to discharge the juror exists is an abuse of discretion.... [Citations.] [¶]... [¶] Alerted to the possibility that [the juror in question] was intoxicated during deliberations, the trial judge should have conducted an inquiry sufficient to establish whether good cause for her discharge existed. [The trial judge] did not do so. This failure must be regarded as error.” (Id. at pp. 519-521.) Here, the alternate juror’s competence had not been called into question-just the opposite had occurred as the fact that she reported this misconduct by Juror No. 3 and correctly answered Juror No.2’s question indicated that she was indeed competent to serve.
In McNeal, the foreperson reported that a juror had personal knowledge that the juror said would have a bearing on the way she would vote. (McNeal, supra, 90 Cal.App.3d at p. 835.) The parties agreed that further inquiry was necessitated by section 1120, which requires a juror to be examined under oath when he or she has personal knowledge concerning a fact in controversy in the case in order to determine if good cause exists for the juror’s discharge. (McNeal at pp. 835-836.) The court never inquired into what it was this juror knew. (Id. at p. 836.) The Court of Appeal concluded that this was inadequate under section 1120. (McNeal at pp. 836-838.) Section 1120 has no application here because there was no allegation that the alternate juror (or Juror Nos. 2 or 3, for that matter) claimed to have personal knowledge of the facts in controversy in the case.
Section 1120 provides, in pertinent part, “If, during the retirement of the jury, a juror declare[s] a fact which could be evidence in the cause, as of his own knowledge, the jury must return into court.... [T]he juror making the statement must be sworn as a witness and examined in the presence of the parties in order that the court may determine whether good cause exists for his discharge as a juror.”
The Court of Appeal commented that while section 1120 required such a formal hearing, “it appears that a less formal inquiry is adequate to determine ‘good cause’ to discharge a juror under other circumstances.” (McNeal, supra, 90 Cal.App.3d at p. 837.) Since section 1120 was inapplicable here, because there was no allegation that any of the jurors in this case had personal knowledge of a matter in controversy in the case. This was one of the “other circumstances” referred to in McNeal.
Inconsistent with defendant’s position, the Court of Appeal in McNeal concluded that the trial court’s inquiring of the juror in question there whether she could serve fairly despite her personal knowledge was not an adequate inquiry. (Id. at p. 838.)
As to the trial court’s failure to question Juror No. 8 or any of the other jurors, the alternate juror was asked by the court if any other jurors were present when Juror No.3 asked her question and made her comment. The alternate replied, “I want to say she is No. 8. I’m not sure.” She then described this juror and added, “But I don’t think she heard anything.” Therefore, there was no evidentiary basis for the trial court to question Juror No. 8. As to the trial court’s obligation to question the remaining jurors, it is based on defendant’s misconstruing the record as described in detail in footnote number two. The long and short of it, however, is that the record provides no basis for the trial court to question the other jurors, as none of the people who reported the comments made by Juror No. 2 and Juror No. 3 reported that any other members(s) of the jury heard them. Thus, the authority defendant cites for the proposition that the trial court had a duty to inquire of any jurors “who were identified as potentially being influenced by juror number 2[’s] and 3’s conduct” is inapplicable as no such jurors were identified.
Disposition
The trial court is directed to correct the determinate abstract of judgment to show that defendant was convicted of second degree robbery, not second degree burglary, as the abstract currently states, and that such conviction was rendered by jury verdict and not by plea as the abstract currently states. The trial court is further directed to correct the indeterminate abstract of judgment to show that defendant’s conviction of kidnapping for ransom was arrived at by jury verdict and not by plea as that abstract currently states. In all other respects, the judgment is affirmed.
We concur: RICHLI J., KING J.