People v. Valot

• Decision Date: 27 November 2002
• Docket Number: No. G027838.,G027838.
• Citation: People v. Valot, 127 Cal.Rptr.2d 423, 103 Cal.App.4th 1247 (Cal. App. 2002)
• Parties: The PEOPLE, Plaintiff and Respondent, v. Judy Diane VALOT, Defendant and Appellant.
• Court: California Court of Appeals

127 Cal.Rptr.2d 423

103 Cal.App.4th 1247

The PEOPLE, Plaintiff and Respondent, v.Judy Diane VALOT, Defendant and Appellant.

No. G027838.

Court of Appeal, Fourth District, Division 3.

November 27, 2002.

As Modified on Denial of Rehearing December 27, 2002.

Review Granted February 25, 2003.

Review Dismissed May 14, 2003.

Patricia J. Ulibarri, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gary W. Brozio and Kyle Niki Shaffer, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

ARONSON, J.

Judy Valot contends her second degree murder conviction must be reversed because the trial court improperly replaced a juror.We agree.The court found the juror was "refusing to deliberate" but the record does not support this conclusion as a "demonstrable reality."We reject Valot's ensuing argument that discharge of a juror without good cause precludes retrial on double jeopardy grounds.In our view, double jeopardy does not apply.

I

After Valot had obsessively accused her boyfriend, Peter Theriault, of cheating on her with another woman at the automobile plant where they both worked, Theriault vanished.The police never found his body, but believe it was disposed of in the desert near Blythe, where Valot had a mobile home.Following two weeks of evidence and argument, the jury retired to deliberate.

The jury deliberated for approximately four hours on the first day and about three hours on the afternoon of the second day.Late in the afternoon of the second day, the court received the following note from the jury foreperson: "We have determined that a person was killed, that the defendant did it, but can't agree on degree; first, second or manslaughter.Maybe a definition of malice can help[,] or further instruction."The court discussed the issue with the foreperson and excused the jury for the day, to return the next morning and "in privacy back there ... reach some consensus, hopefully, as to which instructions you want the court to reread."

The next morning, the judge received a note from JurorNo. 12, statingJurorNo. 5 was "hostile and refusing to deliberate."Earlier that morning tensions were running high in the jury room.After receiving the note from JurorNo. 12, the court swore the bailiff and heard his testimony, with counsel present, as follows:

"[Bailiff.]The jurors flipped on the juror light, got my attention.I went into the jury room.Upon entering the jury room, I see Juror Number 5 standing, seemed— it appeared that tensions were flying and she was yelling at Juror Number12.[f]After I saw it didn't appear to be deliberations, it looked like one person yelling at another one, I said, `Hold on, hold on, what's going on,' and that's when Juror Number 12 stated, `We have 11 jurors that want to deliberate, but we have one juror, her, who will not deliberate with us."[¶]She then said, `No, I have`—'I want to deliberate, they don't want to deliberate with me.'

"[The Court:] That was Juror Number 5 responding?

"[Bailiff:]Number5.[¶]At that point, there was a few other things said.Pretty much, it sounded like they were pointing fingers at each other.Tensions were high.[¶] I told them all to sit down, shut up, and I will be back in two minutes after talking to the judge and see what we are going to do.[¶] That's what I did.

"[The Court:] And subsequent to that, [the bailiff] contacted the court and the court indicated to [the bailiff] that he should ask the jury if they wanted to take a break in light of the feelings that were being exhibited in the jury room, and my understanding is that they did opt to take a break and they are presently in the hall not deliberating."

The court went on to interview each juror individually, with counsel present.Following each interview, the prosecutor and defense counsel were also permitted to ask questions of each juror.The note from JurorNo. 12 prompting the court's inquiry stated: (1) on the first day of deliberations, and after only "one hour" of deliberating, JurorNo. 5 said, "Let's just call it hung and leave"; (2) on the second day of deliberations, JurorNo. 5 said, "I will not consider certain witnesses' testimony or certain pieces of evidence because I don't think they are worth anything"; and (3) later on the second day, JurorNo. 5 said, "I am not going to change my mind no matter what, so let's hang it and leave."The note further included JurorNo. 12's comments that: (4)"This juror [JurorNo. 5] has also yelled at other members of the jury and has called us bullies on three occasions"; and (5)"The jury is at an impasse because of this, and I believe this particular juror's attitude is jeopardizing the deliberation process."

The judge discussed each of these statements with all of the jurors.All except JurorNo. 5 agreed these remarks were true and supported the note's conclusion that JurorNo. 5 was "jeopardizing the deliberation process."

JurorNo. 5 candidly acknowledged that she made the statements attributed to her in JurorNo. 12's note, but claimed they were taken out of context.Regarding her first statement, "Let's just call it hung and leave,"she paraphrased another juror's comments in the first "go around" of deliberations: "`I made up my mind the second day ... of trial and, you know, thought she was guilty and that was all there was to it.'"The jury continued deliberating after this announcement of diametrically opposed positions held by JurorNo. 5 and the other juror.

It soon became clear JurorNo. 5 had serious reservations about the government's case.Initially, she was troubled by two issues: (1) the lack of a body ("You know, he might very well be alive and he could just walk into this room any minute now"); and (2) the possibility that, if the victim had in fact been killed, his ex-wife or Valot's daughter, Tory, were likely suspects.JurorNo. 5 appeared to retreat from these positions as deliberations continued.She told the judge, "I was going to say, and I did change my mind and ... concede in my thinking that because of my—of Ms. Valot's behavior after the fact, that she was—hiding something and, therefore, there was—there was some area of guilt which would mean she—she did something."

JurorNo. 12 acknowledged, "On the first day I believe we had two fairly big hurdles and issues to get over, and we did that fairly well even after she said, `Let's hang it.'She calmed down after the foreman calmed her down, after that first hour, and she was very reasonable the rest of that day."Recapping the first day of deliberations, JurorNo. 8 noted, "She ... started coming around and she finally agreed that the defendant was probably— that the victim was probably dead and the defendant probably did it.And so then, we were trapped with, you know, what do we do, what position do we make on the— for level, you know, murder, murder two or manslaughter.[¶] Then, it was `I am not going anything greater than manslaughter,' and then we are hung up with that.We are still hung up with that."

JurorNo. 12 summarized Thursday afternoon's deliberations (there were no deliberations Thursday morning) this way: "[W]e came in and we began deliberating.And we had gone around the table and discussed our views, looking at the evidence, and then she said, `Well, no, I have changed my mind.'And the foreman said, `But, we decided yesterday on these other two things, you can't change your mind at this point,' and she went into quite a rampage yesterday."Responding to the judge's inquiry, JurorNo. 12 clarified that "rampage" meant "Yelling."

JurorNo. 12 continued, "Then, she said, `I am not going to consider this piece of testimony or this piece of testimony because I don't think it is worth anything.'And so, that was the other point there, and I did think that that was a concern."Defending her position, JurorNo. 5 explained, "That has to do with statements by people whose—where the witness stated that she—'If he does this, I am going to kill him,' and those kind of things.And what I told them, I felt, was that people make statements like that all the time.You know, `I am going to kill you.'`If he does this, I am going to kill you.'[¶] And I told them I couldn't take those in and of themselves serious, that seriously in—you know, as seriously as they were taking them."To JurorNo. 12, it appeared that in the three short hours of deliberations on the Thursday, JurorNo. 5 had reverted to a belief that "it is highly probable that Donna Theriault or [Tory] Valot committed the crime...."

On Friday morning, the third day of deliberations, it appears the jury did not immediately consider which malice instructions it wanted the court to reread.Instead, the foreman attempted to review a chart summarizing the evidence the jury had discussed the day before.JurorNo. 5 apparently interrupted the foreman.JurorNo. 5 recounted the events leading to the bailiffs appearance: "I sat down and— this morning said, `Using all these facts, not changing a single one of these factswe could actually say that [defendant] daughter Tory could have been the person who pulled the trigger,' and they said, `No, that's not true, that's conjecture.'[¶] And I said—But, I didn't think that was going that far into conjecture.They said, `Well, no one is charging her.'[¶] I said, `I am not trying to, I am just saying that there is another possible use of this evidence.That is reasonable, because we don't know what happened when.And, as a mother, she could go through and hide all the facts and, you know, hide everything out in Blythe and go through everything that happened after the fact just as easily.[¶] And I don't think that was conjecture, and they kept telling me, `You can't discuss that because no one said that Tory did it,' and I said, `But, the facts can...