People v. Cleveland

• Decision Date: 07 May 2001
• Docket Number: No. S078537.,S078537.
• Citation: 25 Cal.4th 466,21 P.3d 1225,106 Cal.Rptr.2d 313
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Roshay D. CLEVELAND, Defendant and Appellant.

106 Cal.Rptr.2d 313

25 Cal.4th 466

21 P.3d 1225

The PEOPLE, Plaintiff and Respondent, v. Roshay D. CLEVELAND, Defendant and Appellant.

No. S078537.

Supreme Court of California.

May 7, 2001.

James R. Bostwick, Jr., under appointment by the Supreme Court, Pomona, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and

David P. Druliner, Chief Assistant Attorneys General, Carol Wendelin Pollack, Assistant Attorney General, Pamela C. Hamanaka, Richard B. Cullather and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, C.J.

Defendant Roshay D. Cleveland was convicted, following a jury trial, of two counts of attempted second degree robbery. (Pen.Code, §§ 664, 211.) He argued on appeal that the trial court erred in discharging a juror, during deliberations, for failing to deliberate and for prejudging the case. The Court of Appeal reversed the judgment of conviction. We granted the People's petition for review to consider the standard a trial court should employ in deciding whether to discharge a juror under such circumstances, and to determine whether the Court of Appeal reached the correct result in this instance. We affirm the judgment of the Court of Appeal.

I

On the evening of September 20, 1997, Fernando Figueroa and Victor Medina were working behind the counter in a liquor store. Defendant, who was a regular customer, entered and purchased a bottle of tequila. Appearing upset, defendant said to Figueroa: "Give me the shit." Figueroa did not know what defendant meant. Defendant was hitting himself on the chest and acting strangely. Defendant then asked Figueroa for a gun. There was a gun under the counter directly in front of Figueroa, but Figueroa never had mentioned the gun to defendant or showed it to him. Figueroa lied and said he did not have a gun. Defendant put his knee on the counter, grabbed Figueroa by the shoulders and moved him to one side. Figueroa activated a silent alarm and then shoved defendant off of the counter and forced him out of the store. When defendant attempted to reenter the store, Figueroa and Medina blocked the entrance. In Figueroa's opinion defendant "looked like he was drunk or something," and he kept asking for the gun. Finally, defendant walked away.

Within minutes, a police officer arrived in response to the alarm. Figueroa and the officer found defendant a few blocks from the store. When the officer approached him, defendant began cursing and pacing back and forth with his fists clenched, muttering that he had done nothing wrong. Defendant appeared to be under the influence of a narcotic. When defendant began walking away, the officer placed him under arrest, using pepper spray to subdue him. The incident in the liquor store was recorded by the store's security video camera. The recording, which was of poor quality, was played for the jury.

The presentation of the evidence, although spread over two days, took less than two hours. The focus of defense counsel's argument to the jury was that defendant did not form the required specific intent to steal, because he was intoxicated, and therefore he could not be convicted of robbery.

On the second day of deliberations, the jury sent the court a note stating: "We request an alternate to replace one juror. One juror does not agree with the charge and does not show a willingness to apply the law. One juror will not abide the facts and apply the law. Please provide direction in this matter." The court brought the foreperson (Juror No. 3) into open court, and she explained that one juror "could not even agree that a crime had been committed. It was no fault, no foul, and we are having a hard time attempting to have this person even, quote, unquote, apply the law in the five steps where it is outlined in the document that you gave us to read where it goes to the five points of what is attempted robbery." The foreperson stated that the juror "doesn't feel that there is a valid charge. That he cannot in all fairness and conscience state that there was any evidence to support that the defendant allegedly came in and was attempting to get the weapon that allegedly was behind the counter underneath the cash register." When asked whether the juror in question had made up his mind prior to deliberations and was refusing to discuss the case, the foreperson responded: "I don't know if I could say that their [sic] mind was made up before we went into the room." The foreperson explained that when other jurors asked this juror to discuss his position, the juror responded: "You're not going to sway my mind, this is what I feel in conscience in looking at the big picture, no fault no foul, there's pushing and shoving on every football field, and the conversation goes from that point. [¶] Does not want to discuss the five points of the law as to attempted robbery...." In describing the juror's conduct, the foreperson later added that the juror stated: "I cannot in conscience look at the evidence rendered and state that the person was really after the gun." When asked whether the juror listened to the other jurors, the foreperson responded: "Halfheartedly and then interrupts."

The entire jury was brought into the courtroom, and the court reread the following instruction: "The People and the defendant are entitled to the individual opinion of each juror. Each of you must consider the evidence for the purpose of reaching a verdict if you can do so. Each of you must decide the case for yourself, but should do so only after discussing the evidence and instructions with the other jurors. Do not hesitate to change an opinion if you are convinced it is wrong. However, do not decide any question in a particular way because a majority of the jurors, or any of them, favor that decision." The court then asked whether any juror "feels that any other juror or jurors are not following that instruction that I just gave you, that are not deliberating, that are not considering others' opinions, that have foreclosed discussion?" Ten jurors raised their hands. Juror No. 1 and Juror No. 10 did not. Outside the presence of the rest of the jury, the court individually questioned each of the jurors, except the foreperson (Juror No. 3).

Juror No. 2 stated that the elements of the offense "do not seem to matter" to one juror (later identified as Juror No. 1). Instead, Juror No. 1 would discuss "elements ... that had nothing to do with the facts at hand or the case."

Juror No. 4 stated the jurors were discussing the "elements of the case" but explained that "we didn't get anywhere with [Juror No. 1].... This individual was taking unreasonable interpretation. I mean, he has an interpretation, and the rest of us have a different interpretation." When asked whether Juror No. 1 would discuss the elements of the crime with the other jurors, Juror No. 4 answered: "Not in particular, no. In general terms...."

Juror No. 5 stated that Juror No. 1 was not deliberating. When asked whether Juror No. 1 would listen to his fellow jurors and exchange views, Juror No. 5 answered: "He isn't applying the law. It's strictly his own personal opinion." When asked how Juror No. 1 responded when the other jurors questioned him about the elements of the crime, Juror No. 5 stated: "He responds, `I cannot answer with a yes or no,' and goes into a really big synopsis of what he speculates. He concludes with his own opinion and is clearly not taking the law into consideration." Juror No. 5 concluded by observing that Juror No. 1 was "not even acknowledging that the defendant was trying to get a gun."

Juror No. 6 stated that Juror No. 1 "has absolutely no interest in the law, your instructions, what we are supposed to consider, and is making judgments and speculations based on his personal feelings." When asked to elaborate, Juror No. 6 explained that Juror No. 1 would state that "we shouldn't even be here, this should not have even come to court, this is a minor incident which any of us could have done...." According to Juror No. 6, Juror No. 1 "talks and talks and talks about everything except what we are supposed to be dealing with."

Juror No. 7 observed that Juror No. 1 "won't answer a question.... We are allowing him a chance to talk, and he talks about 15 minutes, and he even brings up things like police cars come and reminded him of Rodney King and all that stuff, and I told him that had nothing to do with this. He won't—you ask him a particular question, and he won't answer the question. He said, I've said all I want to say, I won't answer no questions."

Juror No. 8 stated that Juror No. 1 "is not following the instructions...." When asked what happened when the other jurors discussed the elements of the crime, Juror No. 8 replied: "Well, he contradicts everything that we say, and he does—just doesn't want to go by the rules of the court and the laws...."

Juror No. 9 opined that Juror No. 1 was "disregarding the facts altogether." Referring to questions posed to each juror concerning the elements of the crime, Juror No. 9 stated that Juror No. 1 "won't answer the questions. He goes off on a tangent of something else every time."

Juror No. 10 stated that it was "hard for me to say" whether Juror No. 1 was disregarding the court's instructions, but offered that Juror No. 1 appeared to be "disregarding the evidence ... for some unknown reason." Juror No. 1 did not participate when the jury discussed the five elements of the crime.

Juror No. 11 stated that when the jury was discussing the elements of the crime, Juror No. 1 would state, "this is my opinion and you have a right to your own opinion." Juror No. 11 said that the jurors collectively were asking each juror to answer questions concerning each element of the crime, but Juror No. 1 refused to answer, stating: "I can't do that."

Juror No. 12 said that Juror No. 1 "doesn't even seem to take [the elements of the crime] into consideration. ...