Stanley v. Superior Court of L.A. Cnty.
| Decision Date | 12 September 2012 |
| Docket Number | No. B238486.,B238486. |
| Citation | 141 Cal.Rptr.3d 675,206 Cal.App.4th 265 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Joseph Carl STANLEY, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; People of the State of California, Real Party in Interest. |
206 Cal.App.4th 265
141 Cal.Rptr.3d 675
Joseph Carl STANLEY, Petitioner,
v.
The SUPERIOR COURT of Los Angeles County, Respondent;
People of the State of California, Real Party in Interest.
No. B238486.
Court of Appeal, Second District, California.
May 22, 2012.
Review Denied Sept. 12, 2012.
See 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, §§ 120, 124.
Steve Cooley, District Attorney, Phyllis Asayama, Brentford Ferriera and Serena R. Murillo, Deputy District Attorneys, for Plaintiff and Real Party in Interest.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, James William Bilderback II and Scott A. Taryle, Supervising Deputy Attorneys General as Amicus[141 Cal.Rptr.3d 677]Curiae on behalf of Plaintiff and Real Party in Interest.
CROSKEY, J.
[206 Cal.App.4th 269
In Curry v. Superior Court (1970) 2 Cal.3d 707, 713, 87 Cal.Rptr. 361, 470 P.2d 345( Curry ), our Supreme Court held that “mere silence” in the face of the proposed discharge of a jury does not constitute consent to the dismissal of the jury, and the subsequent mistrial, so as to defeat a defense assertion of double jeopardy. In this case, defense counsel participated in discussions which led the trial court to believe that counsel had consented to the procedure which ultimately resulted in the dismissal of the jury, prior to opening statements. When defendant subsequently moved for dismissal, asserting double jeopardy, the trial court held that defense counsel's conduct constituted implied consent, and denied the motion. We conclude that the record supports the trial court's conclusion; Curry has no application when counsel's conduct goes beyond “mere silence,” and his words and actions reasonably lead the court to believe he consents. We therefore will deny defendant's petition for a writ of prohibition.
Very shortly after the jury and four alternates were sworn in a double-murder case, a number of jurors asserted reasons why they needed to be excused from service. One juror revealed a previously undisclosed bias, and was dismissed. An alternate juror revealed a previously undisclosed child care obligation, and was dismissed at the request of the defendant. Another juror's fiancée had broken her ankle and required the juror's constant attention. The record does not reflect whether this juror was actually dismissed, but it appears that the trial court and counsel assumed that he had been excused. A fourth juror asserted that he had contracted contagious conjunctivitis (pinkeye), and was under doctor's orders to stay home for two days. The trial court posited the question as to whether it should wait for this juror to get well, and a discussion was held with counsel. Both the prosecutor and the trial court believed that the result of the conversation was an agreement that the trial would not proceed unless there was at least one alternate. As a single alternate would be preserved if the trial were continued in order to retain the juror with pinkeye, the trial court proposed to counsel that it would ask the remaining jurors if they all would still be able to serve if the commencement of the trial were delayed for two days. The trial court expressed the view that if any other jurors asserted an inability to serve if the trial were continued, the court would grant a mistrial and dismiss the jury. Hearing no objection, the trial court proceeded with that course of action. A fifth juror then expressed concern, stating that he had “had a heart attack.” The trial court held another conference with counsel and, relying on what it believed to be the agreement it had previously reached with counsel, and hearing no objection, dismissed the jury and declared a mistrial. A new trial date was set.
[206 Cal.App.4th 270]
Thereafter, the defendant added a plea of once in jeopardy. He moved to dismiss the criminal charges against him on the ground of double jeopardy, arguing that there was no legal necessity for, or consent to, the mistrial. As already noted, the trial court denied the motion on the basis that defendant had impliedly consented to the dismissal of the jury and the resulting mistrial. Defendant sought review by petition for writ of prohibition. We issued an order to show cause and now will deny the petition. A careful review of the record reflects that the actions and statements made by defense counsel during the [141 Cal.Rptr.3d 678]discussions with the trial court regarding the reduction in the number of available jurors, including, but not limited to, counsel's failure to object to the court's proposed plan of action, were sufficient to cause the court to harbor a reasonable belief that counsel had consented thereto. As we explain in this opinion, this was sufficient, under all of the circumstances, to constitute implied consent.
On October 14, 2009, defendant was charged by information with two counts of murder, in addition to other offenses. It was alleged that he had suffered four prior serious or violent felony convictions or juvenile adjudications. He entered a plea of not guilty. The prosecution elected not to seek the death penalty.
Jury selection commenced on November 3, 2011. Prior to the commencement of voir dire, defense counsel mentioned that a defense expert witness would be unavailable from November 16 through the middle of December. He requested permission to take the witness out of order if the prosecution had not finished its case-in-chief by November 15. Both the prosecutor and the trial court agreed to that request.
Jury selection took place on November 3 and November 4, 2011. Once the panel was selected, the trial court inquired of counsel as to the number of alternate jurors sought. Defense counsel stated, “You know, because we are butting up against the holidays, I am thinking four.” The prosecutor and the trial court agreed. Counsel then stipulated to four alternate jurors. The trial court swore the jury and alternates. After an introductory instruction regarding conduct of independent research or discussion about the case, the trial court excused the jury until Monday, November 7, 2011.
[206 Cal.App.4th 271]
Shortly thereafter, Juror 3 asked to speak with the court. He indicated that he had previously worked as a victim's advocate for the City Attorney's office. He stated, “I think it is highly unlikely that I will be fair and impartial as a juror.” The juror was excused; 1 defendant concedes that it was proper to dismiss Juror 3.
Thus, when the matter reconvened on Monday, November 7, it was necessary to select an alternate to replace Juror 3, leaving only three alternates. However, some additional issues had arisen with other jurors.2 The trial court, with counsel present, therefore called in several of the jurors individually.
The first juror was Juror 4. He explained that his fiancée, with whom he lived, had slipped on a wet towel and broken her ankle. They went to the emergency room “last night.” The juror's fiancée was using crutches and had a hard time getting up and down the stairs. The juror believed someone had to be home with his fiancée to look after her, and asked to be excused in order to do so.3 At sidebar, the trial court indicated that it did not know why a grown woman could not [141 Cal.Rptr.3d 679]stay downstairs during the day, but that it could not pursue that line of inquiry without going into “an attack mode” and questioning the juror about the configuration of his house, which the court was reluctant to do. The trial court stated to counsel, “I see no choice unless you have something better”—the comment apparently referred to excusing the juror. Defense counsel understood the trial court's statement as such, replying, “Well, the only thing that is starting to worry me is we haven't begun the trial.” The trial court responded, “It gets worse, trust me. I'm just worried about [Juror] 4 at this point.” Defense counsel agreed that the trial court should not question the juror about the configuration of his house, but asked the court to inquire if there was any alternative to Juror 4 being the caretaker for his fiancée. The trial court inquired; Juror 4 responded, “Not really. We live alone. It's just the two of us. She's afraid to walk around without the, with the crutches.” The trial court directed Juror 4 to wait in the hallway. However, it appears that the trial court intended to excuse the juror. When the trial court had sought alternatives to dismissing the juror, defense counsel had requested only that the juror be asked if there was any alternative to him
[206 Cal.App.4th 272]
being the sole caretaker. The question was posed to the juror and he had responded that there was not.4
The next juror with a problem was an alternate, Juror 32. She had previously stated in voir dire that she had a 3–year–old child. Now, she stated that she was the only person who could care for the child from 9:00 a.m. to 2:00 p.m., while her husband was at work. The trial court did not doubt the juror's representation, but questioned why she did not raise the issue when questioned earlier. After hearing the juror's explanation, the trial court concluded that the juror had made “a conscious decision to sit throughout this entire jury selection process, hoping that they won't pick [her] and so if [she was] not picked, then [she would] fulfill [her] jury service for this year and everything [would] be okay.” Concluding that the juror had gambled and lost, the trial court stated that she was required to remain on the panel. However, defense counsel later requested that the juror be excused and the court granted the request.
The final juror with an issue for the court was Juror 6. He presented the trial court with a piece of paper on Kaiser...
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