People v. Thomas

Page 865

267 Cal.Rptr. 865

218 Cal.App.3d 1477

The PEOPLE of the State of California, Plaintiff and Respondent, v. Dewayne German THOMAS, Defendant and Appellant.

No. B037718.

Court of Appeal, Second District, Division 2, California.

March 22, 1990.

Review Denied June 27, 1990.

Bruce Daniel Rosen, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., Marc E. Turchin, Supervising Deputy Atty. Gen., and Pamela C. Hamanaka, Deputy Atty. Gen., for plaintiff and respondent.

COMPTON, Acting Presiding Justice.

A jury convicted defendant Dewayne German Thomas of six counts of robbery (PEN.CODE , § 211)¹, five counts of kidnapping for robbery (§ 209, subd. (b)), four counts of forcible rape in concert (§§ 261, subd. (2), 264.1), two counts of oral copulation in concert (§ 288a, subd. (a)), and one count each of kidnapping (§ 207, subd. (a)), attempted rape (§§ 664, 261, subd. (2)), and sexual battery (§ 243.4). The jury also found true a variety of enhancement allegations pursuant to sections 667.8, 12022, subdivision (a), 12022.3, subdivision (a), and 12022.5. Probation was denied and defendant was sentenced to state prison for an aggregate term of 81.4 years to life. This appeal follows. We modify the sentence imposed but otherwise affirm the judgment of conviction entered on the verdicts.

Since defendant neither denies his guilt nor challenges the sufficiency of the evidence to support his conviction, it is unnecessary to recite the testimony in any detail. It is sufficient to state simply that over a three week period in July 1986, defendant and his companions kidnapped and robbed at least six different persons at various locations throughout greater Los Angeles. Two of the female victims were sexually assaulted at some point during the commission of the other offenses. Most of the crimes involved either the use or possession of a firearm. On this and related evidence, including several incriminating admissions made to the police, defendant was convicted, the jury having obviously rejected his testimony that he merely observed but did not participate in the commission of the crimes.

The principal issue raised here is whether the trial court erred when it discharged one juror for cause during deliberations and allowed the reconstituted jury to return partial verdicts knowing that another juror would be excused immediately thereafter.

The undisputed facts are as follows. The case was submitted to the jury on Friday, July 1, 1988, after almost five weeks of testimony. Six days later, on Thursday, July 7, 1988, the court received a note from the foreperson indicating that one of the jurors was impeding deliberations because of her bias against police officers. ²

The court, joined by counsel for both the People and defendant, subsequently conducted a hearing in chambers with the foreperson to determine the nature of the problem. In answer to the court and counsel's inquiry, the foreperson essentially stated that during the course of deliberations one of the jurors, Anna Williams, announced that she could not accept the testimony of the officers who had testified at trial because of a firm belief, based upon personal experience, that police officers in Los Angeles generally lie. ³ She thereafter rejected the jury's attempt to consider the issue, thus bringing deliberations to a halt until the discussion proceeded to other matters.

The court questioned Juror Williams in chambers with both counsel present, asking her to respond to the foreperson's allegations. Although she denied stating that all officers lie, Williams admitted to telling the other jurors about racist statements made by police officers in her neighborhood. The court then elected to examine each of the remaining jurors independently to determine their perception of Williams' statements. During the discussions which followed, most jurors corroborated the foreperson's version of events.

Based upon the foregoing, the court discharged Juror Williams and replaced her with one of three remaining alternates. After denying defendant's motion for mistrial, the court directed the clerk to select an alternate by lot and then instructed the reconstituted jury to begin its deliberations anew pursuant to CALJIC 17.51. ⁴ The jury thereafter deliberated for approximately 30 minutes before being excused until the following day, Friday, July 8, 1988.

When proceedings resumed on Monday, July 11, 1988, one of the jurors, Mr. Kennedy, informed the court that he had exceeded the number of days allowed by his employer for jury duty and that he risked losing his job if he continued to serve. After confirming Juror Kennedy's statements and discussing the matter with counsel, the court announced its intention to replace him with another alternate.

Just prior to doing so, however, the court was advised that the jury had reached verdicts on some but not all of the counts against defendant. Over defense counsel's objection, the court elected to have the jury return its partial verdicts before discharging Kennedy from the panel.

At that juncture, the jury returned guilty verdicts on 11 counts and found various enhancement allegations to be true. The court ordered the clerk to enter the partial verdicts on the record.

Following entry of the verdicts, but before discharging Kennedy from the panel, the court inquired whether any of the other jurors had "impediments or any hardships that would effect your continuing to deliberate through to a foreseeable conclusion to the case." One juror, Mr. Martinez, replied that he had been ill since the commencement of jury deliberations and needed medical treatment. After conferring with counsel, the court discharged both Kennedy and Martinez and replaced them with the remaining alternates. Defendant's motion for mistrial again was denied and the newly constituted jury was instructed pursuant to CALJIC No. 17.51. Deliberations resumed on Wednesday, July 13, 1988.

Some three weeks later, the jury returned verdicts on sixteen different counts, finding defendant guilty on 15 and not guilty on one. After determining that the panel was unable to reach a consensus on the remaining 20 counts, the court declared a mistrial as to those charges.

Based upon the foregoing sequence of events, defendant first argues that the trial court abused its discretion when it discharged Juror Williams from the panel and replaced her with an alternate. We disagree.

Section 1089 and former section 1123 ⁵ authorize a trial court to dismiss a juror before the jury returns its verdict if the juror becomes ill or upon a showing of good cause is found unable to perform his or her duty. (People v. Burgener (1986) 41 Cal.3d 505, 519, 224 Cal.Rptr. 112, 714 P.2d 1251; People v. Diaz (1984) 152 Cal.App.3d 926, 933, 200 Cal.Rptr. 77; People v. Van Houten (1980) 113 Cal.App.3d 280, 287, 170 Cal.Rptr. 189.) The determination of "good cause" in this context is one calling for the exercise of the court's discretion; and if there is any substantial evidence supporting that decision, it will be upheld on appeal. (People v. Abbott (1956) 47 Cal.2d 362, 371, 303 P.2d 730; People v. Moore (1985) 166 Cal.App.3d 540, 547, 211 Cal.Rptr. 856; People v. Van Houten, supra, 113 Cal.App.3d at p. 288, 170 Cal.Rptr. 189.) A juror's inability to perform his or her functions, however, must appear in the record as a "demonstrable reality" and bias may not be presumed. (People v. Collins (1976) 17 Cal.3d 687, 696, 131 Cal.Rptr. 782, 552 P.2d 742; People v. Compton (1971) 6 Cal.3d 55, 60, 98 Cal.Rptr. 217, 490 P.2d 537; People v. Franklin (1976) 56 Cal.App.3d 18, 25-26, 128 Cal.Rptr. 94.)

A juror's duty is to weigh the evidence and credibility of witnesses with impartiality and to reach a fair and unbiased verdict. (People v. Compton, supra, 6 Cal.3d at pp. 59-60, 98 Cal.Rptr. 217, 490 P.2d 537; People v. Farris (1977) 66 Cal.App.3d 376, 386, 136 Cal.Rptr. 45.) It is well-settled that a sitting juror's actual bias, which would have supported a challenge for cause, renders him "unable to perform his duty" and thus subject to discharge and substitution under section 1089 and former section 1123. (People v. Keenan (1988) 46 Cal.3d 478, 532, 250 Cal.Rptr. 550, 758 P.2d 1081; see also People v. Warren (1986) 176 Cal.App.3d 324, 327, 221 Cal.Rptr. 768.) "If at any time during the trial the juror loses the ability to render a fair and unbiased verdict, he can, under [former] section 1123 of the Penal Code, be dismissed from the case.... [E]ven though a juror may claim he can be impartial, he can still be properly excluded from the case if there are so many factors weighing against this possibility, that neither he, nor any other person similarly situated, could render a fair and unbiased decision." (People v. Farris, supra, 66 Cal.App.3d at p. 386, 136 Cal.Rptr. 45.)

There was ample cause to dismiss the juror in the instant case. Williams obviously had prejudged the credibility of the police officers who testified at trial and was unable to cast aside her personal bias in weighing the evidence.

Although she disclaimed any particular bias toward police officers, there is substantial evidence to support the court's finding that Williams was not being truthful in that regard.

Defendant sees something sinister in the fact that the trial judge failed to ask her whether she could fairly consider the case notwithstanding her belief that all officers routinely lie. It is obvious that no amount of questioning was likely to lead to an outright admission of bias, and the court properly relied upon the testimony of the other jurors in determining the issue. Simply put, there was no abuse of discretion.

Next, the trial court did not err in receiving the partial verdicts knowing that Juror Kennedy would be discharged immediately thereafter.

Defen...