People v. Abbaszadeh

• Citation: 130 Cal.Rptr.2d 873,106 Cal.App.4th 642
• Decision Date: 25 February 2003
• Docket Number: No. C036850.,C036850.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Mohammad Ali ABBASZADEH, Defendant and Appellant.

130 Cal.Rptr.2d 873

106 Cal.App.4th 642

The PEOPLE, Plaintiff and Respondent, v. Mohammad Ali ABBASZADEH, Defendant and Appellant.

No. C036850.

Court of Appeal, Third District.

February 25, 2003.

Certified for Partial Publication.^*

Eric S. Multhaup, Mill Valley, and Christopher H. Wing for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, John G. McLean and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

MORRISON, J.

In People v. Mello (2002) 97 Cal.App.4th 511, 118 Cal.Rptr.2d 523 (Mello) we reversed a criminal conviction because Placer County Superior Court Judge Joseph O'Flaherty instructed prospective jurors to lie about racial prejudice and make up reasons to avoid jury service. This structural error rendered the trial fundamentally unfair, requiring reversal without a showing of prejudice.

In Mello we assumed this "astonishing" error was a "well-intentioned but misguided" incident. (Mello, supra, 97 Cal. App.4th at pp. 516, 518, 118 Cal.Rptr.2d 523.) It now appears Judge O'Flaherty has a practice of instructing jurors to hide invidious bias.

In this case involving an Iranian charged with fraud offenses, tried before we issued Mello, a jury convicted defendant of two counts of grand theft by false pretenses (counts I and III, Pen.Code, §§ 487, subd. (a); 532, subd. (a)) and one count of selling securities by means of false statements (count II, Corp.Code, §§ 25401, 25540). On our own motion we augmented the record to include a transcript of the jury voir dire and ordered supplemental briefing on the effect of Mello.

We conclude Mello error is reversible regardless of the lack of objection in the trial court. Defense counsel's failure to object to a Mello instruction is excused for three reasons: (1) an objection would have been futile; (2) the People are at least equally at fault in allowing the error; and (3) we retain discretion to excuse the lack of an objection and elect to exercise that discretion in defendant's favor because of the shocking nature of the error which rendered the trial unfair.

Because defendant challenges the sufficiency of the evidence on some counts, and success on these claims would bar a retrial (Burks v. United States (1978) 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1; People v. Trevino (1985) 39 Cal.3d 667, 694-699, 217 Cal.Rptr. 652, 704 P.2d 719), we address those claims. We address other claims briefly for the guidance of the parties on remand. We will direct the clerk to forward a copy of this opinion to the California Commission on Judicial Performance, and direct that the retrial be before another judge.

I. Mello error.

A. Mello.

In Mello, we explained that the Judicial Council had issued guidelines for trial judges to use to inquire into racial bias during jury voir dire, and that in 1997 the California Supreme Court issued a decision instructing trial judges to follow those guidelines. (Mello, supra, 97 Cal.App.4th at p. 516, 118 Cal.Rptr.2d 523, discussing People v. Holt (1997) 15 Cal.4th 619, 661, 63 Cal.Rptr.2d 782, 937 P.2d 213 [because adequacy of voir dire is not easily subject to appellate review, trial judges "should closely follow" the Judicial Council's guidelines] (Holt).)

"Unfortunately, Judge O'Flaherty did not heed the high court's admonition" and over objection "he instructed prospective jurors that, if they harbored racial bias against defendant, they should lie about it under oath and make up other reasons to be excused. Simply stated, this is astonishing." (Mello, supra, 97 Cal.App.4th at p. 516, 118 Cal.Rptr.2d 523.) This "undermined defendant's ability to secure a fair and impartial jury and adversely affected the fundamental truth-finding function of the jury." (Id. at p. 513, 118 Cal.Rptr.2d 523.) This structural error required reversal without a showing of prejudice. (Id. at p. 519,118 Cal.Rptr.2d 523.)

"[T]he instructions irremediably tainted the trial by making it impossible for the parties to know whether a fair and impartial jury had been seated." (Mello, supra, 97 Cal.App.4th at p. 517, 118 Cal.Rptr .2d 523, italics added.) Moreover, "the erroneous instructions advised prospective jurors to both conceal and falsify relevant information. This procedure could deprive the parties of information necessary to make informed tactical decisions." (Id. at p. 518, 118 Cal.Rptr.2d 523.) Further, "the instructions to lie during voir dire infected the entire trial process with the unacceptable notion that lying under oath may be appropriate." (Ibid.) "Moreover, the instructions to lie during voir dire could have adversely affected the jurors' subsequent evaluation of the witnesses' sworn testimony. After all, Judge O'Flaherty advised the jurors that discomfort with telling the truth justifies concealing it, even under oath, in at least one circumstance. In effect, the judge set the wrong tone for the jurors' compliance with all of their important obligations. [¶] By depriving defendant of the ability to ensure that [defendant] would have a fair and impartial jury, Judge O'Flaherty also deprived [defendant] of due process of law." (Id. at p. 519, 118 Cal.Rptr.2d 523.)

We concluded: "We cannot assess whether the erroneous instructions to lie under oath during voir dire were harmless `in the context of the evidence presented,' as the People urge. In addition to the general difficulty of assessing an irregularity in the selection of a jury, the error in this case, by its very nature, tended to distort the record. In short, we cannot confidently review the answers that prospective jurors gave during voir dire because they were told to lie. [¶] Accordingly, we conclude that the instructions to lie about racial bias resulted in voir dire so inadequate as to render the trial fundamentally unfair. [Citation.] This error— which inevitably skewed the integrity of the entire voir dire process and adversely affected the manner in which the jurors would evaluate the evidence—is a `defect affecting the framework within which the trial proceeds' that is not subject to harmless error analysis. [Citations.] [¶] Therefore, defendant is entitled to a new trial." (Mello, supra, 97 Cal.App.4th at p. 519,118 Cal.Rptr .2d 523.)

B. The error in this case.

Judge O'Flaherty did not use the word "lie" in this case, as he did in Mello, but he invited the jury to he using other language, in the italicized portion of this passage:

"Now, you probably all know that race and nationality have no place in this courtroom. The very integrity of the system that has developed in the last several generations depends on that we keep this social problem at least out of the courtroom.

"Now, obviously being labeled a bigot or a racist, this sort of thing, is insulting to most people. And so it's entirely possible that if you harbor these types of feelings that you may not want to raise your hand and basically put a sign on yourself saying: I am a racist, et cetera. "I don't want somebody who harbors those types of feelings sitting on this jury, for obvious reasons.

"So I would ask that you do whatever you have to do to get off the jury. And it's much more important, in my opinion, that you get off the jury, even if, you know, you have to answer my questions in such a way that you get off in some other way, then do it. [¶] Does everybody understand that?" (Italics added.)

We think the venire indeed understood that Judge O'Flaherty was inviting prospective jurors to do "whatever" was necessary to get off the jury "even if ... you have to answer my questions in such a way" as to get off other than by admitting to harboring racist feelings, i.e., to lie. The Attorney General does not contest the fact that Judge O'Flaherty committed Mello error in this case.

After giving the above instruction, Judge O'Flaherty asked if anybody was prejudiced, and later the defense attorney asked whether anybody had feelings about Iranians or Persians. No juror said that he or she was prejudiced.

Later one prospective juror admitted being "a little bit" prejudiced and he was immediately excused.

Another juror, who was seated at trial "wonder[ed] if there is going to be heavy accents. I have trouble sometimes understanding people who have a heavy accent." Judge O'Flaherty asked defense counsel if defendant had a heavy accent and then told the juror he would expect the juror "to immediately raise your hand" if he had trouble following the evidence at trial, and the juror agreed he could then be fair. Quite possibly this juror tried to comply with the Mello instruction, only to be thwarted. That we cannot know illustrates why Mello error is structural: It renders all further proceedings unreliable. "[T]he instructions irremediably tainted the trial by making it impossible for the parties to know whether a fair and impartial jury had been seated." (Mello, supra, 97 Cal.App.4th at p. 517, 118 Cal.Rptr.2d 523.)

Defense counsel suggests the error is more acute in this case because part of defendant's business involved carpet sales, and some people harbor a "rug peddler" stereotype about Iranians and other Middle Easterners. (See, e.g., Boutros v. Canton Regional Transit Authority (6th Cir.1993) 997 F.2d 198, 201.) This may be a matter to explore during voir dire on retrial, but it does not affect this appeal.

C. The error is not waived.

The People rest their case on the waiver doctrine. We conclude that doctrine does not apply to this case.

The People cite four California Supreme Court cases holding various claims about voir dire questions were waived for lack of objection in the trial court. (People v. Seaton (2001) 26 Cal.4th 598, 635, 110 Cal. Rptr.2d 441, 28 P.3d 175 [trial court's discussion of the evidence during individualized voir dire in capital case]; People v. Staten (2000) 24 Cal.4th 434, 451-452, 101 Cal.Rptr.2d 213, 11 P.3d 968 [additional questions on...