P. v. Honma CA2/1 ( 2013 )

Filed 6/26/13 P. v. Honma CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B239033
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA064672)
v.
STEVEN RONALD HONMA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Thomas
Rubinson, Judge. Affirmed.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Lawrence M. Daniels,
Supervising Deputy Attorney General, and Allison H. Chung, Deputy Attorney General,
for Plaintiff and Respondent.
——————————
Defendant Steven Ronald Honma appeals his conviction of one count of voluntary
manslaughter (Pen. Code, § 192, subd. (a))1 with a true finding that he personally used a
firearm causing death (§§ 12022.53, subds. (b)–(d), 12022.5, subd. (a)). Defendant
contends the trial court’s hasty and flawed conduct of the voir dire deprived him of a fair
trial because the trial court’s goal was to salvage problematic jurors rather than remove
jurors for actual bias. In particular, defendant argues he is entitled to reversal and a new
trial because (1) the trial court’s hurried voir dire did not permit sufficient time to
question jurors to elicit bias; (2) a biased juror sat on his case; (3) the trial court refused
to excuse jurors for cause, thus requiring defendant to use peremptory challenges; and
(4) the trial court’s harsh questioning of jurors in front of other jurors affected the
responses of other jurors, and the trial court erroneously believed jurors would answer
honestly about biases. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Factual Background
On March 20, 2010, Sherri Hafizi hosted a party at her home to celebrate the
Persian New Year. Defendant and his wife Christine resided two houses down the street
from Hafizi and arrived at the party around 7:00 p.m. to 7:30 p.m. The victim Norman
Schureman was married to Sherri Hafizi’s daughter Farah.
At the party, defendant was acting belligerently, cursing in the kitchen, and was
escorted out of the party. Defendant went home, and when he returned, he had changed
his clothes and was wearing a blue jacket. Defendant sat down by a fire pit in the back
yard and pulled out a knife and started flicking it. Sherri Hafizi’s nephew Ali Hafizi was
sitting next to defendant and asked defendant, “Why are you doing this?” Defendant
responded that, “If I were you, I would not be talking to me right now.” Ali Hafizi
grabbed defendant’s right hand, and Mohammed Hafizi, Ali Hafizi’s uncle, came over
and grabbed defendant’s left hand. Someone took the knife and defendant began to
struggle. The three men fell to the ground. Mohammed Hafizi noticed defendant had a
1 All statutory references herein are to the Penal Code unless otherwise noted.
2
gun and took it out of defendant’s pocket. Ali Hafizi lost his grip on defendant’s wrist.
The victim Schureman ran up and jumped on defendant, and said, “I got shot.” Ali
Hafizi saw that defendant had a gun in his hand, and took the gun from defendant.
Ghazaleh Fahim heard the shot and went into the patio. She observed defendant
on the ground acting violently. Defendant was being held down by several people. She
jumped on defendant, flipped him over and restrained him until sheriff’s deputies arrived.
Mohammed Hafizi had hit defendant in the face and defendant’s face was swollen.
Defendant suffered a fractured nose and eye socket and was hospitalized for
several days. He did not remember that anyone had been shot. Sheriff’s deputies
recovered two weapons from the Hafizi residence—a gray semiautomatic .45 with a
mounted scope and a black nine-millimeter gun. They also found six ammunition
magazines. The weapons were registered to defendant and his wife.
After being transported to the hospital, Schureman died of a gunshot wound to the
abdomen.
The jury found defendant guilty of the lesser included offense of voluntary
manslaughter, and found true the allegation that defendant personally used a firearm.
The court imposed an aggregate sentence of 21 years, consisting of the upper term of 11
years and the upper term of 10 years on the gun use allegation.
B. Procedural History
On October 27, 2011, the prosecution filed a first amended information charging
defendant with murder (§ 187, subd. (a)). The information further alleged appellant
personally used and discharged a firearm causing death. (§§ 1203.06, subd. (a)(1),
12022.5, subd. (a), & 12022.53, subds. (b)–(d).)
Trial commenced on October 26, 2011 and was estimated to take three weeks.
Prior to voir dire, counsel and the trial court prepared a jury questionnaire. With respect
to bias, defense counsel asserted that it was difficult for jurors to admit bias, and thus it
was more revealing to ask whether a prospective juror had a positive bias in favor of
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persons of Persian or Japanese ancestry.2 The trial court disagreed, stating, “I’m not sure
that I agree with you that people are always going to be reluctant to admit biases,” but
agreed to include questions on positive bias.
On October 27, 2011, a pool of 62 jurors was brought in. The trial court told the
jury that under the new one-day, one-trial jury service, the courts needed “a lot more
jurors coming into our system. [¶] The result of that is the court has to be extremely
cautious in excusing jurors for inappropriate reasons or for reasons that are not permitted
by law because, like I said, once you’re excused from this case, we’ve lost you probably
for an entire year or more.” The court stated it would not excuse a juror simply because a
juror would lose income while performing jury duty. Instead, the court told jurors they
would be excused only if there would be “extreme financial hardship which I have to tell
you is a very difficult standard to reach.”
The jury pool was given a questionnaire to answer and return on Monday,
October 31, 2011. On Monday October 31, 2011, the court advised that any jurors
claiming a hardship should stay in the hallway. The court questioned and excused 11
jurors for hardship.
1. First Group of Jurors
The court advised counsel they would have 30 minutes each to examine the jurors
during voir dire. Before jury selection began in open court, the trial court made
introductory remarks concerning basic legal principles. The trial court explained the
presumption of innocence, the prosecution’s burden of proving its case beyond a
reasonable doubt, assessing the credibility of witnesses, and admonished the jury that it
could only consider evidence produced at trial.
2Defendant is of Japanese descent, the underlying crime occurred during a Persian
New Year party and several potential witnesses were of Persian descent. The
questionnaire asked, “Do you have any sympathies for, or prejudices against, Persian
people that might prevent you from judging Persian witnesses fairly” and another
question asked, “Do you have any sympathies for, or prejudices against, Japanese-
Americans that might prevent you from judging a Japanese-American defendant fairly?”
4
Juror No. 1.3 Juror No. 1’s questionnaire disclosed that her sister had been
assaulted by a neighbor, held at knifepoint, and threatened with rape; she escaped from
her attacker but refused to testify at trial concerning the incident. During voir dire,
defense counsel questioned her about her sister’s victimization. Juror No. 1 stated,
“Well, after listening to what the judge had to say, I understand you have to kind of just
bottle it up and set it aside and start fresh, so I certainly would attempt to do that.”
Defense counsel asked whether or not Juror No. 1 “might feel [some] sort of sympathy or
empathy on behalf of the death of Mr. Schureman [and would that] color your assessment
of the facts in the case,” to which Juror No. 1 responded, “I will make every effort not to
have it influence me.” In addition, Juror No. 1’s mother required round-the-clock care,
and Juror No. 1 had only been able to arrange for several days of care. After that, Juror
No. 1 would have to pay $180 per day for care, yet she was currently unemployed and
was looking for work.
Defense counsel challenged Juror No. 1 for cause, but his challenge was denied.
The court did not find the Juror’s financial hardship was sufficient to justify excusing her.
Defense counsel excused Juror No. 1 with a peremptory challenge.
Juror No. 3. Juror No. 3’s questionnaire stated that she had “some high school”
and she wrote “do not understand” in response to several of the questions. At voir dire,
she informed the court she had difficulty with the English language. She told the court
she did “not really” understand English because she did not finish grade school. She had
been in the United States eight years, and worked as a nursing assistant. The court
inquired how she communicated with patients, nurses and doctors, and Juror No. 3 stated,
“Mostly I [do] not communicate with the doctor because I’m only a nursing assistant.”
The court observed that Juror No. 3 understood what the court had been saying, but Juror
No. 3 responded that she did “not really” understand. Defense counsel asked her if she
understood all of the questions on the questionnaire. She said, “No sir. That’s why I
3
We discuss in detail those jurors who were the subject of in-depth discussion in
defendant’s opening brief.
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didn’t answer [them].” The prosecution asked Juror No. 3 about her understanding of
English, and she responded, “not all of your question[s] I understand” and that “I’m sure
that I cannot—I cannot do [jury duty].”
The prosecution challenged Juror No. 3, and defense counsel concurred. The trial
court found that Juror No. 3’s command of English was “[f]ine. Every question that was
asked by the court or counsel she answered. She was responsive, she was appropriate,
and her language skills are sufficient.” The prosecution exercised a peremptory
challenge, and the trial court excused Juror No. 3.
Juror No. 6. Juror No. 6’s questionnaire stated that he could not set aside what he
had read and heard about the case, and that he would be suspicious of a defendant who
did not testify or call witnesses. Juror No. 6 informed the court that he may have had
contact with the victim, who designed eyewear, at a trade show. In addition, Juror No. 6
was the director of a charitable foundation that had considered making a donation to the
school where the victim taught, Art School of Design in Pasadena. The juror informed
the court that he believed his knowledge of the victim would bias him “because [of] the
kind of person [the victim] was, and . . . I just feel that it was something that he didn’t
deserve to happen to him.” The court responded, “I don’t think anybody would disagree
with that. The question in th[is] case, though, isn’t whether he deserved this to happen to
him. The question in the case is, number one, was a crime committed, and, number two,
did [defendant] commit it and can the People prove that beyond a reasonable doubt?
And, you know, the fact that you might have had, you know, some contact with the
decedent really doesn’t bear on any of those questions, does it?” Juror No. 6 responded,
“Well, in my mind it does.” The juror could not assure the court he would not let his
acquaintance with the victim sway his view of the case. Defense counsel asked Juror
No. 6 if he had heard about the shooting when it occurred, and the juror responded he had
heard about the memorial. He elaborated that, “I would like the scales of justice to be
even, and because of what I’ve experienced, my bias would be leaning one way versus
the other” and this would give the prosecution “a leg up” in his view. The prosecution
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inquired whether he felt he was as capable as the next person of controlling his emotion,
pity, sympathy, passion, prejudice in order to serve as a juror. Juror No. 6 said, “I don’t
think so.” Juror No. 6 stated that he could not serve fairly.
The defense moved to excuse Juror No. 6 for cause. The court excused Juror
No. 6.
Juror No. 27. Juror No. 27’s questionnaire stated that he was a television writer
and that his birth mother had been murdered; as a result, he questioned his ability to be
impartial. Prior to the commencement of voir dire, Juror No. 27 told the court he was a
television writer and if he did not report for work he would be replaced. He also told the
court he did not believe he could be impartial. During voir dire, the trial court asked
Juror No. 27 about the effect his birth mother’s murder would have on his ability to serve
as a trial juror in this case. Juror No. 27 replied that over the weekend he had thought
about the case and stated, “I think [the court] made the point that murder is never
necessarily a good thing, so I think separating those two is something obviously that I
would be able to do in hearing the facts of the case; that they aren’t related.” Juror No.
27 stated that he thought he could be fair. Juror No. 27 told defense counsel the same
thing during defense counsel’s questioning. Juror No. 27 stated, “I think that I’ll be able
to separate feelings about that based on the circumstances of the case and the evidence. I
don’t think that would cloud one way or the other.”
Defense counsel challenged Juror No. 27 for cause based upon the juror’s shift in
assessment of his ability to be impartial, which defense counsel described as “180
degrees.” The trial court denied the defense challenge, noting that Juror No. 27’s
“change of heart” about serving as a juror occurred because his job was not in jeopardy
and he reconsidered the effect of his birth mother’s death. The trial court refused to
speculate that Juror No. 27’s desire to serve as a juror in this case was based on his desire
to write about the case. The defense exercised a peremptory challenge against Juror No.
27.
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Juror No. 31. Juror No. 31’s questionnaire did not indicate she had any bias
against Persians. However, during voir dire, Juror No. 31 told the court she had a bias
against Persians and believed she could not be fair because of it. Although she would not
disbelieve everything a Persian witness had to say, she would have to hear all of the facts.
The court asked Juror No. 31 that if she were wearing a blindfold and a Persian witness
testified, and Juror No. 31 believed the testimony, would she change her mind after the
blindfold was taken off. Juror No. 31 said she would not, but if the testimony fit with
other facts, she would believe it.
Defense counsel challenged Juror No. 31 for cause because she had specifically
stated she had bias. Defense counsel argued that, “[t]his juror states specifically that [she
has] bias. This is the young woman who sat over in this corner. You asked her whether
she herself has any bias, and she admitted to having bias in the case; that she would
excuse herself because of Persian witnesses. She has a hard time believing them. ‘I
wouldn’t want to have myself on the jury.’ She even asked to speak privately about
this.”
Regarding the trial court’s further questioning of Juror No. 31, defense counsel
stated: “And, your honor, I sense your frustration during the course of sitting with these
jurors when they articulate their inability to be fair, and that’s a fair reaction. [¶] On the
other hand, the point of this process to get them out and to get them being candid with
their responses. If your honor is going to be expressing shock and outrage and
incredulity when someone says that they feel bias about a witness, it’s going to shut
everybody up. Nobody is going to talk about their biases or their concerns. They’re
going to be in fear of being browbeaten and giving the wrong answer. [¶] So, I mean,
it’s just very hard to get people to talk in public, and here this woman was talking in
public about different issues, prejudicial issues. . . . [¶] . . . My point was I thought that
you had a juror who was making every attempt to be candid, and when they are
confronted with sort of shock and outrage over that, then nobody is willing to articulate
their biases or prejudices.”
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The trial court responded: “I don’t agree with that. First of all, it wasn’t shock
and outrage that I thought I was demonstrating. What I was doing—it’s very easy for a
juror who doesn’t want to sit on a case to say, ‘I’m biased.’ What I was doing was
breaking that down and examining with that juror whether or not they really can honestly
state in response to a hypothetical situation how they believe they would respond and
how they would act and whether they would actually be biased as opposed to just saying
they would be biased. That’s all I was doing. That was my intent, anyway.”
Defense counsel continued, “[w]ell, they’re being asked to reflect on their own
personal assessment, and to the extent we don’t accept that, to the extent that that’s
rejected, it just sends a—nobody wants to articulate for either side their prejudices.” The
trial court remarked, “I didn’t notice a reticence on the part of this [venire] to express
biases on a number of different issues. I didn’t get the feeling that people were afraid to
bring that up at all. We spent most of the morning on those types of issues.”
Later, during voir dire of the second panel, Juror No. 31, who was in the jury box,
spoke up and said she had a crazy neighbor who “tries to fight everybody on our block.”
The neighbor had threatened her and her brother with a machete. She also told the jury
that her brother was in jail for armed robbery and had been shot at before. Juror No. 31
requested to sit in the back of the jury box. Defense counsel did not have any additional
peremptory challenges and his request for additional challenges was denied. Juror No. 31
served on the jury.
Defense counsel used all of his 30 minutes to question 15 of the 50 prospective
jurors (Nos. 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 19, 22, 27, & 30). The prosecution used 28
minutes to question 12 prospective jurors (Nos. 1, 3, 6, 7, 8, 10, 14, 15, 21, 31, 40 & 56).
During defense counsel’s challenges, the trial court stated, “I don’t want you to go
through the whole questionnaire, [defense counsel]. We have 62 jurors here to deal with.
Come on. I’ve read all the questionnaires and heard all the questioning. The challenges
for cause, I want you to make a full and complete record, but you don’t have to go over
9
each response that a juror made. I read them and heard them. I spent a lot of time on
them myself this weekend.”
The trial court continued, “[When I asked] ‘[a]re there any of the prospective
jurors who don’t understand my explanation about these principles of law?’ nobody
raised their hand. Or maybe there was one person, who I then followed up with. ‘Is there
anybody who would have any difficulty in applying these principles of law as I just spent
five or ten minutes explaining to them?’ Nobody raised their
hand. . . . [¶] . . . [¶] . . . My inference is that because many jurors raised their hands to
many of these questions that were gone over today, if any jurors had a response to my
inquiries concerning [any] question . . . that those folks would have raised their hands as
well.”
Defense counsel stated: “[M]y last point is, your honor, silent jurors in response
to your questions don’t mean it’s an unbiased juror. It can mean a lot of things. Maybe it
can mean [the juror is] unbiased, but maybe it means that they still have the biases that
they articulated in their paperwork. Maybe they still feel the same way, but they don’t
want to say it in front of 50 other people. To infer from silence of those broad questions,
I submit, respectfully, doesn’t establish that they’re unbiased in light of their specific
written responses.”
The trial court expounded: “when a juror indicates something in a written
questionnaire and then is questioned on that point by the judge and then is asked
specifically by the judge, ‘[d]o you understand—is there anything about what I’ve just
said that you don’t understand’ and they don’t raise their hand, ‘[i]s there anything about
what I’ve just said that you don’t agree with or couldn’t apply’ and they don’t raise their
hand, you’re quite right, . . . perhaps they’re just afraid to raise their hand or perhaps
they’re harboring those same feelings despite what the judge told them. [¶] When they
don’t raise their hand, it is certainly not an unreasonable inference that they now
understand something that they didn’t understand at the time that they were filling out the
questionnaires, and, therefore—you know, otherwise what’s the point of doing any verbal
10
follow-up? You would just—whatever they write on the questionnaire is the end of the
story, and we could just start with challenges at that point. [¶] But if both counsel and
the court can clarify certain issues, make certain points, explain certain principles of law,
sometimes people learn things. You’re right. Sometimes they don’t. Maybe it will be up
to you to exercise your judgment on any of those folks that I don’t excuse for cause
whether or not their failure to raise their hand or what they meant by this or what they
meant by that was something that you can believe in or whether it’s not and you want to
exercise a peremptory. That’s what they’re for. So that’s my general feeling with
regards to your last point.”
The trial court further stated: “Let me just state, also, as a general matter I do feel,
as I started to say before, on the issues of jurors who had some negative reaction to the
prospect of the defendant not testifying or the defense not calling witnesses, that the court
took pains this morning to go over those very important points with the [jury], and when
I asked them whether there was anybody who didn’t understand that explanation that I
had given—and it was, I think, a fairly lengthy and thorough explanation; maybe I’m
wrong about that, but I thought it was—and nobody raised their hand, and then when I
asked them if they could apply those important principles of law—or if they would have
any difficulty applying them, nobody raised their hand. [¶] So I’m not going to repeat
that as to each of the jurors that were challenged here for cause, but I want to incorporate
that observation and those comments into my ruling as to each of the jurors for whom
[there] that has been an issue raised.”
Defendant challenged 24 prospective jurors (Nos. 1, 3, 6, 8, 10, 11, 14, 21, 22, 27,
29, 30, 31, 35, 39, 40, 41, 42, 44, 55, 56, 58, 60, & 61). Defendant exercised nine
peremptory challenges against jurors he had challenged for cause but where the trial court
denied his challenge: Juror Nos. 1, 27, 29, 35, 41, 44, 55, 58, and 61.
During challenges, defense counsel objected that he had insufficient time to
question the jurors, and had averaged 30 seconds for each juror. The court responded,
“By my count, between the folks that we lost on Thursday and the for cause challenges
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that I’m sustaining now, a total of 19 that we’ve lost, which means we’ve got 43 jurors
remaining. So obviously both sides have the right to exercise 20 peremptories if they’d
like, but I’d like you to keep in mind there are no perfect jurors.”
2. Second Group of Jurors
An additional group of jurors was brought in for the second round of voir dire.
The court declined to use the questionnaires on the second round. When the second
group was brought in, the court informed the jurors that the court had been unable to
complete jury selection with the first round of jurors and that was why a second group
was called and excused the jurors for the day because it was the end of the day.
The next day, defense counsel moved for a mistrial, arguing that the court’s
comments implied that defense counsel was the cause of the delay in getting the jury
selected. Defense counsel argued that the trial court sent a message to the prospective
jurors that defense counsel acted inappropriately during the jury selection process.
Defense counsel argued, “We wanted more than the 80 jurors. I didn’t believe that 80
jurors was enough. Your honor said, ‘That’s all we can get,’ and I realize that. . . . But,
nonetheless, that’s the reason for the time crunch now.” The trial court responded that
the defense would not agree to have the jurors time qualified and said, “don’t say the
reason that it took longer is because they weren’t time qualified when you’re the one who
prevented them from being time qualified.” Defense counsel also argued, “We were
forced to exercise our peremptory challenges on jurors that had substantial cause and
substantial time problems with their service.” The trial court responded, “You felt [the
challenges] were substantial. I didn’t feel they rose to the level necessary to excuse them
for cause under the applicable law.” The court denied the motion for mistrial, finding the
jury was not informed of the cause of the delay. Defense counsel also moved for five
additional peremptory challenges, but the court denied the request.
The trial court told the second panel that it could only excuse jurors for “extreme
financial hardship, which is a very difficult standard to reach.” The trial court gave the
new prospective jurors principles of law and conducted voir dire. After excusal of some
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jurors, the court gave counsel 10 minutes each to ask questions of 20 remaining jurors.
During challenges for cause, the parties were limited to 15 minutes.
Juror No. 68.4 Juror No. 68 was an “R and D assistant” whose husband was a risk
analyst. She had sat on a criminal jury before the same trial judge the previous May.
Juror No. 68 sat through that trial and was excused during deliberations due to severe
financial hardship. The court asked “How did you get so lucky to get called for jury
service again?” Juror 68 responded, “Because you ordered me to come back.” Juror 68
claimed to have been shot, and did not believe she could be fair and impartial. While she
was on the previous jury, two of her fellow jurors told Juror No. 68 that they did not
believe she could be fair and impartial because of her past experience. In response to the
court’s question whether this would affect her ability to be fair and impartial, she
responded, “I just don’t want to go through the same thing. It caused a lot of stress” and
she did not think she would have a clear head. She did not want to look at the coroner’s
pictures because it would evoke sympathy from her as a gunshot victim.
The prosecution challenged Juror No. 68 for cause. The defense stipulated to her
dismissal, but the court stated, “I’m not going to be excusing her.” Trial counsel argued
to the court the reasons for cause in dismissing the juror, and stated that she “just sat on a
jury six months ago and I thought appeared to be mad that she had to come back here
again.” The trial court responded, “I agree. That’s the main thing, is that she’s mad that
she has to come back here, and I think some of these excuses that she’s made are just
those. She’s upset that she got called back for jury duty again.” The court denied the
challenge for cause, stating: “as soon as she walked in the back doors of the courtroom
she was thinking of as many reasons as she could to get off of jury service. . . . [¶] She
had her hand raised to everything to try to do anything she could to get off of this jury,
and I frankly didn’t believe a lot of what she was saying.” Juror No. 68 was designated
as an alternate juror, but no alternate jurors were substituted in at trial.
4Juror No. 68 was part of the second panel and thus did not answer a jury
questionnaire.
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The parties accepted a panel consisting of Juror Nos. 13, 15, 18, 31, 32, 49, 57, 62,
63, 64, 65, and 66.
DISCUSSION
Defendant argues he is entitled to reversal and a new trial because (1) the trial
court’s hurried voir dire did not permit sufficient time to question jurors to elicit bias;
(2) a biased juror sat on his case; (3) the trial court refused to excuse jurors for cause,
thus requiring defendant to use peremptory challenges; and (4) the trial court’s harsh
questioning of jurors in front of other jurors affected the responses of other jurors, and
the trial court erroneously believed jurors would answer honestly about biases.
A defendant accused of a crime has a constitutional right to trial by an unbiased,
impartial jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16.) “‘Either
party may challenge an individual juror for “an actual bias.” [Citation.] “Actual bias” in
this context is defined as “the existence of a state of mind on the part of the juror in
reference to the case, or to any of the parties, which will prevent the juror from acting
with entire impartiality, and without prejudice to the substantial rights of any party.”
[Citations.]’” (People v. Ayala (2000) 24 Cal. 4th 243, 271–272; see also People v.
Barnwell (2007) 41 Cal. 4th 1038, 1051 [“A juror who is actually biased is unable to
perform the duty to fairly deliberate and thus is subject to discharge”].) Voir dire is the
tool by which bias is uncovered, and “must be probing enough to reveal jurors’
prejudices regarding issues that may arise at trial, so that counsel may exercise their
challenges in an informed manner.” (Scott v. Lawrence (9th Cir. 1994) 36 F.3d 871, 874;
In re Hitchings (1993) 6 Cal. 4th 97, 110.) “While counsel may not use voir dire for the
purpose of instructing, educating, cajoling, or prejudicing the jury, he or she may conduct
a reasonable oral inquiry of prospective jurors to determine the basis of a challenge for
cause.” (People v. Balderas (1985) 41 Cal. 3d 144, 182.)
“No hard-and-fast formula dictates the necessary depth . . . of voir dire.” (Skilling
v. United States (2010) ___ U.S. ___ [130 S. Ct. 2896, 2917, italics omitted].) Trial
courts possess broad discretion over both decisions concerning the qualifications of
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prospective jurors to serve and the manner of conducting voir dire. (People v. Martinez
(2009) 47 Cal. 4th 399, 445; People v. Thornton (2007) 41 Cal. 4th 391, 420 [“trial court
‘possesse[s] discretion to conduct oral voir dire as necessary and to allow attorney
participation and questioning as appropriate’”].) Indeed, decisions of the United States
Supreme Court in this area “have made clear that ‘the conduct of voir dire is an art, not a
science,’ so ‘“[t]here is no single way to voir dire a juror.”’ [Citations.]” (People v.
Cleveland (2004) 32 Cal. 4th 704, 737, italics omitted.) “‘The Constitution . . . does not
dictate a catechism for voir dire, but only that the defendant be afforded an impartial
jury.’” (Ibid., italics omitted, quoting Morgan v. Illinois (1992) 504 U.S. 719, 729.)
A. Sufficient Time to Conduct Voir Dire
Defendant argues that deference to the trial court’s discretion is not warranted
where the trial court did not engage in a meaningful exercise of its discretion in the first
instance: Here, the trial court placed unreasonable time limits on voir dire and thus was
unable to uncover juror bias. He also argues the trial court’s restrictions on voir dire
were so extreme that they were a denial of the right to conduct voir dire, and reversal is
automatic.
“The right to voir dire the jury is not constitutional, but a means to achieve the end
of an impartial jury. [Citation.]” (People v. Ramos (2004) 34 Cal. 4th 494, 512.) “As
long as the essential elements of a jury trial are preserved, including” impartiality, the
Legislature may impose reasonable regulations or conditions on the right to a jury trial.
(Id. at p. 513.) The court is required to conduct the initial voir dire of prospective jurors
in criminal cases. (Code Civ. Proc., § 223.) Upon completion of this preliminary
examination, “counsel for each party shall have the right to examine, by oral and direct
questioning, any or all of the prospective jurors. The court may, in the exercise of its
discretion, limit the oral and direct questioning of prospective jurors by counsel. The
court may specify the maximum amount of time that counsel for each party may question
an individual juror, or may specify an aggregate amount of time for each party, which can
15
then be allocated among the prospective jurors by counsel. . . .” (Code Civ. Proc.,
§ 223.)
We have observed that the adequacy of voir dire is a matter “‘“‘not easily subject
to appellate review. The trial judge’s function at this point in the trial is not unlike that of
the jurors later on in the trial. Both must reach conclusions as to impartiality and
credibility by relying on their own evaluations of demeanor evidence and responses to
questions.’”’” (People v. Carter (2005) 36 Cal. 4th 1215, 1250.) The applicable standard
is a demanding one: “‘Unless the voir dire by a court is so inadequate that the reviewing
court can say that the resulting trial was fundamentally unfair, the manner in which voir
dire is conducted is not a basis for reversal. [Citation.] A fortiori, the same standard of
reversible error applies when both the court and counsel participate in the voir dire.’”
(Ibid.)
“[I]t is the duty of the trial judge to restrict the examination of the prospective
jurors within reasonable bounds so as to expedite the trial. [Citations.]” (People v.
Wright (1990) 52 Cal. 3d 367, 419.) “The trial court has discretion to limit voir dire, and
the court abuses that discretion, warranting reversal of a conviction on appeal, only when
its decision falls outside the bounds of reason [citation] resulting in a ‘miscarriage of
justice.’” (People v. Navarette (2003) 30 Cal. 4th 458, 486; see Code Civ. Proc., § 223.)
Here, defendant complains that he was afforded 35 seconds per juror who had
answered a questionnaire, and 26 seconds per juror for those who did not answer a
questionnaire. In addition, he complains that in denying many of his challenges for
cause, the trial court relied on the lack of responses to general questions to the jury, such
as whether the jury could follow certain principles; further, the questions asked during
the second panel (the questioning of Juror Nos. 26, 31, and 33)5 show the inadequacy of
the voir dire as a whole.
5
Juror No. 26, an Evangelical Christian, stated that he was against killing under
any circumstances, and was excused by the court on its own motion. Juror No. 33
revealed that a cousin had been raped.
16
We disagree. The trial court employed several efficiencies in prescreening the
jury for bias. First, the questionnaire permitted a first look at potential bias that could be
used as a basis for further questioning during voir dire. Second, the trial court used the
“‘struck jury’” method described in People v. Avila (2006) 38 Cal. 4th 491, 537, where a
large panel of prospective jurors is questioned about bias. This method was designed to,
and did, further explore issues of bias. Thus, by the time counsel were permitted to
question the prospective jurors themselves, the questioning was necessarily more focused
and economical. As a result, both methods permitted the trial court to expedite the
process of voir dire while at the same time maintaining a platform for a more detailed
examination of bias, if warranted. Voir dire here was the “‘culmination of a lengthy
process.’” (Skilling v. United States, supra, 130 S.Ct. at p. 2919.) On the other hand,
defendant insists he was entitled, at the expense of courtroom resources, to engage in a
free ranging questioning of prospective jurors without regard to time limits. We disagree.
Counsel were informed at the outset of voir dire of the time allotted for each side; it was
thus incumbent upon counsel to budget their questioning accordingly. Given that at least
the first jury panel (consisting of 62 prospective jurors) had been prescreened with
questionnaires and interviewed by the court before counsel began questioning, we fail to
see how defense counsel’s claimed inability to question all the necessary jurors was the
fault of the court. Rather, the record reflects counsel made tactical decisions concerning
those jurors to focus on during voir dire.
B. The Record Supports the Trial Court’s Determination That a Biased
Juror Did Not Sit on the Jury
Defendant argues that Juror No. 31 admitted she was biased against Persian
witnesses, yet was permitted to serve on the jury. Furthermore, Juror No. 31 was the
victim of an attack by her neighbor, similar to the attack that occurred in this case. Based
on these facts, defendant asserts that we cannot speculate Juror No. 31 was impartial.
17
1. Additional Factual Background
Juror No. 14, who was questioned before Juror No. 31, wrote on her questionnaire
that, “I’ve found Persians as a group to be rude and unpleasant,” but indicated on her
questionnaire that she had no sympathies for or prejudices against Persians. Defense
counsel did not question Juror No. 14 during voir dire. In response to the prosecution’s
query, “is there anything additional that you’re thinking that would cause you not to
serve fairly as a juror or do you think you would serve fairly?” Juror No. 14 responded,
“I don’t think I can because I may not be able to believe the witnesses. I’ve just had very
bad experiences with Persians in particular in all my business dealings that I would have
to say I think I’ve just been lied to and cheated so many times that pretty much I would
probably have to discount nine out of ten of what they say.” After the prosecution asked
the other jurors whether they had biases against Persian people, Juror No. 31 stated, “I
would excuse me [for bias]” because she did not believe she could be fair to the
prosecution if it called Persian witnesses.
In response to the court’s question, Juror No. 14 stated that she would not believe
anything a Persian witness would say. In response to the same question, Juror No. 31
responded that she would not disbelieve everything a Persian witness said, but would
have to hear all of the facts. Nonetheless, she had “a hard time believing them.” She did
not believe every Persian was a liar. Juror No. 14 stated about Persians, “they always
present themselves very wonderfully, very jovial, hospitable, very nice, and always very
believable at first. It’s only after you’ve signed a contract that you find out that there was
a problem.” The trial court granted the challenge against Juror No. 14, stating, “[Juror]
No. 14 has a clear bias against Persian people that she’s not going to be able to get past.”
With respect to Juror No. 31, the court remarked, “[Juror] No. 31 is a more difficult call.
The main issue with her would be the bias against Persian people. It seemed to me she’s
a younger juror than was Juror No. 14, who was clearly biased against Persian people and
had a lot of life experience that she cited to back up those prejudices. I didn’t hear the
same thing from [Juror No.] 31. From [Juror No.] 31 I got the feeling that she was
18
piggybacking on [Juror No.] 14. [Juror No.] 31, when she said, ‘I would excuse myself,’
I think she’d like to do nothing more than excuse herself from this case.” The court
continued, “I questioned [Juror No. 31] additionally, and I thought she was able to get to
the point where she said, ‘I will be able to put these preconceived notions aside and base
my decision on the evidence.’ Like I said, a closer call, but I don’t think it rises to the
level of a challenge for cause.”
2. Analysis
“‘To find actual bias on the part of an individual juror, the court must find “the
existence of a state of mind” with reference to the case or the parties that would prevent
the prospective juror “from acting with entire impartiality and without prejudice to the
substantial rights of either party.”’” (People v. Horning (2004) 34 Cal. 4th 871, 896.)
We examine the context in which the trial court denied the challenge in question to
determine whether the court’s decision that the prospective juror’s beliefs would not
substantially impair the performance of his duties fairly is supported by the record.
(People v. Crittenden (1994) 9 Cal. 4th 83, 122.) If “a prospective juror provides
conflicting answers to questions concerning his or her impartiality, the trial court’s
determination as to that person’s true state of mind is binding upon the appellate court.”
(Ibid.) Whether to remove a prospective juror for cause rests within the trial court’s wide
discretion. (People v. Rodrigues (1994) 8 Cal. 4th 1060, 1146.)
We find no abuse of discretion in the court’s decision to deny the challenge for
cause to Juror No. 31. The record demonstrates the court engaged in extensive
discussion and question-and-answer with Juror Nos. 14 and 31, both of whom professed
to have biases against Persians. The record supports the trial court’s conclusion that
Juror No. 31’s bias would not interfere with her ability to deliberate: the trial court
believed Juror No. 31 was following the lead of Juror No. 14 and attempting to get out of
jury service; Juror No. 31’s opinion was not, like Juror No. 14, based upon any hard
facts, but instead on vague notions of untrustworthiness; and Juror No. 31 stated she
would need to “hear all the facts” before actually making up her mind about the
19
credibility of the testimony of a Persian witness. On this basis, we find the trial court’s
conclusion Juror No. 31 did not harbor actual bias supported by the record (People v.
Horning, supra, 34 Cal.4th at p. 896) and thus we do not find the trial court abused its
discretion in refusing to excuse Juror No. 31, and defer to the trial court’s conclusions
regarding Juror No. 31. (People v. Whalen (2013) 56 Cal. 4th 1, 31 [trial court’s findings
as to impartiality and credibility of prospective jurors “will not be disturbed on appeal
unless it renders the trial fundamentally unfair”].)
C. Refusal to Excuse Jurors for Cause
Defendant also argues that the trial court failed to excuse jurors for cause and
required him to use his peremptory challenges, and the court refused to concede jurors
should be excused and attempted to salvage them. In particular, defendant complains the
trial court refused to excuse Juror No. 68 although she was trying to avoid jury duty. In
doing so, the trial court failed to identify and remove a juror whose state of mind would
prevent her from acting impartially.
“To preserve a claim based on the trial court’s overruling a defense challenge for
cause, a defendant must show (1) he [or she] used an available peremptory challenge to
remove the juror in question; (2) he [or she] exhausted all of his [or her] peremptory
challenges or can justify the failure to do so; and (3) he [or she] expressed dissatisfaction
with the jury ultimately selected.” (People v. Maury (2003) 30 Cal. 4th 342, 379.) “To
prevail on [appeal], defendant must demonstrate that the court’s rulings affected his right
to a fair and impartial jury.” (People v. Yeoman (2003) 31 Cal. 4th 93, 114.)
With respect to the prospective jurors a defendant contends should have been
dismissed for cause, those individuals could not have possibly affected the jury’s fairness
where they did not sit on the jury. (See People v. Yeoman, supra, 31 Cal.4th at p. 114.)
As explained in Yeoman: “[t]he harm to defendant, if any, was in being required to use
four peremptory challenges to cure what he perceived as the trial court’s error. Yet
peremptory challenges are given to defendants subject to the requirement that they be
used for this purpose. [Citation.] While defendant’s compliance with this requirement
20
undoubtedly contributed to the exhaustion of his peremptory challenges, from this alone
it does not follow that reversible error occurred. An erroneous ruling that forces a
defendant to use a peremptory challenge, and thus leaves him unable to exclude a juror
who actually sits on his case, provides grounds for reversal only if the defendant ‘can
actually show that his right to an impartial jury was affected . . . .’ [Citation.] In other
words, the loss of a peremptory challenge in this manner ‘“provides grounds for reversal
only if the defendant exhausts all peremptory challenges and an incompetent juror is
forced upon him.”’” (Yeoman, at p. 114.)6 Here, as discussed above, substantial
evidence supports the trial court’s finding that Juror No. 31, the juror who sat on the jury,
did not harbor actual bias. As a result, we conclude the exhaustion of his peremptory
challenges did not constitute prejudicial error.
“Finally, ‘“‘[d]espite its importance, the adequacy of voir dire is not easily subject
to appellate review. The trial judge’s function at this point in the trial is not unlike that of
jurors later in the trial. Both must reach conclusions as to impartiality and credibility by
relying on their own evaluations of demeanor evidence and of responses to questions.’”’”
(People v. Whalen, supra, 56 Cal.4th at p. 30, italics omitted.) For these reasons, the
court’s manner of conducting voir dire will not be disturbed on appeal unless it renders
the trial fundamentally unfair. (People v. Carter (2005) 36 Cal. 4th 1215, 1250.)
With respect to Juror No. 68, that juror was, in the court’s view, answering
questions in a manner to permit her to evade jury duty and was angry and frustrated at
having to appear, but did not exhibit any bias. For that reason, the court declined to grant
6 As defendant points out, the Supreme Court granted review in People v. Black,
review granted January 30, 2013, S206928, to address the standard of prejudice and
designated the issue on review as: “Should a conviction be reversed because of the
erroneous denial of challenges for cause to prospective jurors when the defendant
exhausts his peremptory challenges by removing the jurors, seeks to remove another
prospective juror who could not be removed for cause, and is denied additional
peremptory challenges, or must the defendant also show that an incompetent or biased
juror sat on the jury?” People v. Black asserted that in People v. Yeoman, supra, 31
Cal. 4th 93, the court apparently articulated a new standard of prejudice in conflict with
People v. Bittaker (1989) 48 Cal. 3d 1046.
21
a challenge for cause and seated Juror No. 68 as an alternate juror. We defer to the trial
court’s findings on credibility and demeanor. In any event, defendant has failed to
demonstrate any prejudice from the selection of Juror No. 68 because she did not
participate in deliberations. In addition, as discussed above, because defendant has failed
to demonstrate Juror No. 31 harbored actual bias, any loss of a peremptory challenge to
excuse that juror did not result in an unfair trial.
Finally, to the extent defendant complains of the court’s treatment of jurors who
were dismissed (such as Juror Nos. 3, 6, 27, & 68) in order to censure the court’s conduct
of voir dire as a whole and establish prejudice, his attempt fails. The court’s probing
questions did not amount to an attempt to salvage problematic jurors; rather, it was an
attempt to uncover those jurors who were attempting to evade jury service, such as Juror
No. 68, or did not have the disability they claimed to have, such as Juror No. 3.
D. Questioning of Jurors in Front of Other Jurors
When jurors expressed doubts about being able to be impartial, defendant
complains that the trial court “took them on” in the presence of other prospective jurors,
and this conduct educated the other jurors how to avoid engaging in a debate with the
trial court and thwarted a probing inquiry into juror bias. Defendant contends the trial
court “embarked on jury selection with the erroneous belief that jurors would not be
reluctant to admit their biases.”
Group voir dire is a reasonable and acceptable procedure, even in capital cases.
(See, e.g., People v. Carter (2005) 36 Cal. 4th 1215, 1249.) As discussed above, in this
case the trial court utilized the “‘struck jury’” method of jury selection: A large initial
panel of prospective jurors was seated in the courtroom and questioned for bias or other
factors that might exclude them for cause. (See People v. Avila, supra, 38 Cal.4th at
p. 537.) However, “[t]he possibility that prospective jurors may have been answering
questions in a manner they believed the trial court wanted to hear[, however,] identifies at
most potential, rather than actual bias and is not a basis for reversing a judgment.”
(People v. Vieira (2005) 35 Cal. 4th 264, 289.)
22
Here, defendant complains about the trial court’s questioning of Juror No. 6, in
particular the court’s specific questioning after the juror stated the shooting was
something that the victim did not deserve: “I don’t think anybody would disagree with
that. The question in this case, though, isn’t whether he deserved this to happen to him.
The question in the case is, number one, was a crime committed, and, number two, did
[defendant] commit it and can the People prove that beyond a reasonable doubt? And,
you know, the fact that you might have had, you know, some contact with the decedent
really doesn’t bear on any of those questions, does it?” Defendant complains that this
statement demonstrates that the trial court refused to concede the juror should be excused
for cause and “was an attempt to ‘salvage’ the juror”; further, defense counsel was
required to waste valuable voir dire time on this juror, and the debate with this juror
occurred in front of the other jurors and was a signal to them that any sign of bias would
lead to a verbal battle with the trial court.
Defendant argues the effect of the trial court’s questioning was apparent in the
statement of Juror No. 1 (who was questioned after Juror No. 6) that in spite of what her
questionnaire stated about her assault, she had to set aside her experience, “bottle it up”
and “start fresh.” Defendant further argues that such salvaging of a questionable juror
was present in Juror No. 27, whose birth mother had been murdered; who told the court
he would not be open minded because “[i]t seem[ed] like it would cloud [his] judgment,”
and to whom the court responded, “I mean the two situations are obviously unrelated.”
As proof of his theory, defendant points out Juror No. 27 later acquiesced that he could
be impartial.
Our review of the record does not disclose that the trial court’s questioning of any
jurors was an attempt to “salvage” any problematic jurors or to prime the jury on how to
respond to questions. Rather, the court’s thorough questioning was intended, as the court
stated, to break down and examine the basis of any potential bias in a juror. The trial
court remains in the best position to determine whether a prospective juror possesses a
latent bias that will harm deliberations, and to fashion questioning that will uncover such
23
bias. (People v. Rogers (2009) 46 Cal. 4th 1136, 1149.) In addition, the court was not
naively under the impression that jurors would be forthright about their biases; rather, the
extensive questioning of jurors such as Juror Nos. 6, 27, and 31 indicates the court used a
variety of hypotheticals to assess whether bias actually existed in any juror. “[B]ias is
seldom overt and admitted. More often, it lies hidden beneath the surface.” As a result,
trial judges must be willing to ask “‘prospective jurors relevant questions which are
substantially likely to reveal such juror bias or prejudice, whether consciously or
unconsciously held.’” (People v. Taylor (1992) 5 Cal. App. 4th 1299, 1312–1313.)
Further, there is no indication that the trial court improperly used the struck jury
method to influence the responses of jurors. As noted above, the trial court is required to
conduct voir dire in open court. (Code Civ. Proc., § 223.) Although Juror Nos. 1 and
31’s responses to questions indicated they had been listening to the questioning of the
other jurors, defendant can point to no prejudice from the trial court’s use of an open
court. Instead, the jurors responses to questions indicated they had listened to the court’s
discussion of bias and the need to decide the case on the facts rather than their beliefs. At
most, the questions indicate the jurors were taking their duties seriously.
Finally, as the court’s questioning indicates, it used various devices to uncover
juror bias, such as the questionnaire, repeated and varied questioning, and hypotheticals,
and that it evaluated each juror’s response carefully. Bias is the rodent that must be lured
from its hiding place; it is not the family dog that easily runs to jump on your lap. This
record does not reflect an erroneous belief that jurors will answer truthfully about bias,
but an understanding that bias must be flushed out.
24
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
MALLANO, P. J.
CHANEY, J.
25