People v. Bell

• Decision Date: 03 February 1998
• Docket Number: No. D027299,D027299
• Citation: 71 Cal.Rptr.2d 415,61 Cal.App.4th 282
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 949, 98 Daily Journal D.A.R. 1251 The PEOPLE, Plaintiff and Respondent, v. Charles Lee BELL, Defendant and Appellant.

Page 415

71 Cal.Rptr.2d 415

61 Cal.App.4th 282, 98 Cal. Daily Op. Serv. 949,

98 Daily Journal D.A.R. 1251

The PEOPLE, Plaintiff and Respondent, v. Charles Lee BELL, Defendant and Appellant.

No. D027299.

Court of Appeal, Fourth District, Division 1, California.

Feb. 3, 1998.

[61 Cal.App.4th 284] Patrick Morgan Ford, by appointment of the Court of Appeal, San Diego, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robert M. Foster and Craig S. Nelson HUFFMAN, Associate Justice.

Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Charles Lee Bell of one count of robbery (PEN.CODE, § 211)¹ and one count of attempted robbery (§§ 664/211/213, subd. (b)). In a bifurcated proceeding, Bell waived his right to a jury trial and the court found true allegations he served one prior prison term (§ 667.5, subd. (b)), had been convicted of a prior serious felony (§ 667, subd. (a)(1)), and had suffered two prior convictions for serious or violent felonies (§ 667, subds. (b)-(i)). ²

The court sentenced Bell to a total term of 55 years to life. The court imposed two consecutive terms of twenty-five years to life for the robbery and attempted robbery offenses. The court imposed an additional consecutive five-year term for his prior serious felony conviction. The court stayed sentencing on the prison prior.

Bell appeals, contending: (1) The court erred by discharging the only African-American male juror because he required a break to take his child to the doctor, (2) the court erred by refusing to exclude an in-court identification by a witness or at least suspend proceedings for further investigation due to the prosecutor's failure to provide full and timely discovery regarding the witness, and (3) his sentence is invalid because the court misunderstood its discretion to impose concurrent sentences for current felonies committed simultaneously. We find merit only in Bell's claim that his sentence is invalid.

FACTS

On February 18, 1996, Kako Lee and Karen Lundeen were walking down Fourth Avenue in San Diego after having dinner in the Gaslamp Quarter. Lee heard footsteps coming quickly from behind them. She turned and saw Bell and another person approaching, but she turned back around because she thought they were simply trying to pass them. She felt someone pulling on her purse and, before she could turn around, Bell punched her in the face. Bell told her to let go of her purse, but she resisted. While Bell and Lee were struggling for the purse, Lee kicked him in the groin. Bell fell to the ground, and Lee went to the middle of the street to yell for help.

As Bell was attempting to take Lee's purse, Erika Scott grabbed Lundeen from behind by the hair and pulled hard. They struggled. Scott pushed Lundeen backward, causing her to fall and hit her head on the curb. Lundeen put her leg up, with her foot in Scott's chest, to fend off the attack. Scott tried to punch and scratch Lundeen and demanded Lundeen's money, but Lundeen continued to repel the attack. Scott grabbed Lundeen's shirt in an attempt to draw her closer, tearing the shirt. Scott continued to try to punch Lundeen.

About this time, Lee noticed Lundeen's predicament and came to her aid. Lee swung and hit Scott with her purse, breaking the strap. The bag fell away from Lee. Scott cursed and got up. By this time, Bell had recovered somewhat from the kick and he grabbed the purse. Bell and Scott ran away. Lee and Lundeen went to a nearby hotel and called the police.

Approximately 2:30 a.m. on February 19, William Robinson was conducting his rounds as a security guard at a bank. Robinson noticed a Black male and a White female walking near a park just outside the bank. He continued on his rounds and found Lee's purse and some of its contents scattered in and around a trash can in the park. Robinson Approximately 7 a.m., San Diego Police Officer Bradley O'Donnell contacted Bell and Scott. Bell was placed in a police car on the driver's side while O'Donnell talked with Scott. O'Donnell subsequently arrested Bell and Scott. He searched and handcuffed them, placed them in the police car, and transported them to the police station. When Bell and Scott were removed from the police car, the officer found a credit card, two bank cards and a phone card, all with Lee's name on them, hidden underneath the seat on the driver's side of the vehicle.

was 80 percent certain that Bell was the Black male he had seen leaving the park that night.

DISCUSSION

I

Dismissal Of Juror No. 2

Bell contends the trial court erred when it discharged juror No. 2, the only African-American male on the panel, during trial because juror No. 2 needed a break to take his son to the doctor. We disagree.

Section 1089, in relevant part, states: "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found unable to perform his duty, or if a juror requests a discharge and good cause appears therefor, the court may order him to be discharged...." The decision to discharge a juror rests within the sound discretion of the trial court. (People v. Turner (1994) 8 Cal.4th 137, 205, 32 Cal.Rptr.2d 762, 878 P.2d 521.) The court must make a reasonable inquiry to determine whether the person in question is able to perform the duties of a juror. (People v. Burgener (1986) 41 Cal.3d 505, 519, 224 Cal.Rptr. 112, 714 P.2d 1251.) If the answer is in the negative, the inability to perform those duties must be shown on the record to be a "demonstrable reality." (People v. Holt (1997) 15 Cal.4th 619, 659, 63 Cal.Rptr.2d 782, 937 P.2d 213.)

While the court's decision will be given great deference, its discretion is not unfettered. (People v. Roberts (1992) 2 Cal.4th 271, 325, 6 Cal.Rptr.2d 276, 826 P.2d 274.) We review for abuse of discretion. (People v. Beeler (1995) 9 Cal.4th 953, 989, 39 Cal.Rptr.2d 607, 891 P.2d 153.) An abuse of discretion occurs where the court's decision exceeds the bounds of law or reason. (Mallett v. Superior Court (1992) 6 Cal.App.4th 1853, 1874, 8 Cal.Rptr.2d 829.) However, it is important to note while many courts have considered the matter, few have disturbed a trial court's decision to discharge a juror for good cause. (People v. Halsey (1993) 12 Cal.App.4th 885, 892, 16 Cal.Rptr.2d 47.)

Here, jury trial began on Friday, July 12, 1996. On that day both counsel presented opening statements and the People called four witness to testify. Court was recessed for the weekend. On Monday morning, juror No. 2 called the court and spoke to the court clerk. He stated his son had an emergency and he needed to take him to the doctor. He was somewhat vague and did not indicate the nature of the emergency. Juror No. 2 stated he was a member of a health maintenance organization (HMO) and he had not determined what preliminary steps were necessary to get his son to a doctor. He believed he could be back by 1:30 p.m., but did not anticipate being able to arrive any sooner. At the court's request, juror No. 2 agreed to call back at 10:30 a.m. to update his situation.

The court held a short conference, with Bell and both counsel present, to determine whether they should wait for juror No. 2 or discharge him and replace him with an alternate juror. Bell suggested the court wait for juror No. 2 or at least to wait for his 10:30 call before determining whether to discharge him. Bell noted this was a three strikes case with a possible exposure of 81 years to life. He further stated juror No. 2 was an exemplary juror and was the only African-American male on the panel. The only other African-American on the panel was a woman. Bell argued racial balance was important in his jury selection decisions and discharging the only Black male juror would upset this balance. Bell suggested the court let the jury go for the morning and use the time to go over jury instructions and perhaps have the bench trial on the priors.

The prosecutor noted juror No. 2 was trying to care for a sick child and work his way through the "labyrinth" of the HMO system. He also expressed concern regarding whether juror No. 2 would be able to return in the afternoon given the nature of the emergency. The prosecutor stated both judicial economy and simple courtesy supported going forward. There were six witnesses scheduled to testify and he anticipated finishing the evidence and perhaps beginning argument that day. In addition, he argued juror No. 2 should be given the same consideration as any other juror who has a family emergency and he should not be pressured to return to jury service.

The court considered Bell's arguments and noted juror No. 2 was an excellent juror. However, the court stated the juror did not know exactly when he could return. The court further observed the trial was almost over and the other jurors, alternates, and witnesses were being kept waiting. Under the circumstances presented, the court decided to discharge juror No. 2, replace him with an alternate juror, and move forward with the trial in the interest of judicial economy.

It is apparent from the record the court and both parties held juror No. 2 in high esteem. Losing such a juror is certainly unfortunate. However, under the circumstances, it was not an abuse of discretion to discharge him from the panel.

The court made a reasonable inquiry into good cause through its phone contact with juror No. 2 and the conference with the parties. The court found juror No. 2 needed to take his son to the doctor and, although he believed he could be back by 1:30 p.m., he was unable to make any firm commitments regarding when he would return. In addition, from the facts presented, the court made a reasonable and permissible inference juror No. 2 might not be able to return at all that day. In the meantime, the other 11...