People v. Young ( 2017 )

Filed 11/17/17
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Siskiyou)
----
THE PEOPLE,
Plaintiff and Respondent, C077483
v. (Super. Ct. No. 131379)
SHAWN DARYL YOUNG,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Siskiyou County, Laura
Masunaga, Judge. Reversed.
Ann Hopkins, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Xavier Becerra, Attorneys General, Gerald A. Engler,
Michael P. Farrell, Assistant Attorneys General, Daniel B. Bernstein and Jennifer M.
Poe, Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part II of the discussion.
1
Defendant Shawn Daryl Young was convicted by jury of sexually abusing his two
daughters, A. and H., as well as their friend, M., who lived next door. With respect to A.,
defendant was convicted of sexual penetration with a child 10 years of age or younger
(Pen. Code, § 288.7, subd. (b))1 and lewd or lascivious conduct with a child under the age
of 14 years (§ 288, subd. (a)). (Counts 1 & 2) With respect to H., defendant was
convicted of sexual intercourse with a child 10 years of age or younger (§ 288.7, subd.
(a)), sexual penetration with a child 10 years of age or younger (id., subd. (b)), oral
copulation with a child 10 years of age or younger (ibid.), and continuous sexual abuse of
a child under the age of 14 years (§ 288.5, subd. (a)). (Counts 3-6) With respect to M.,
defendant was convicted of sexual penetration with a child 10 years of age or younger (§
288.7, subd. (b)). (Count 7) The trial court sentenced defendant to serve an aggregate
determinate prison term of 18 years (upper term of 16 years for Count 6 plus 2 years
consecutive for Count 2), plus a consecutive indeterminate term of 85 years to life (25
years to life for Count 3, plus 15 years to life each for Counts 1, 4, 5, and 7).
On appeal, defendant contends: (1) we must reverse the judgment because the trial
court lacked good cause to excuse one of the sitting jurors (Juror No. 4) and doing so in
the absence of both defendant and his assigned trial counsel violated defendant’s
constitutional rights; (2) defendant’s convictions for Counts 3 and 6 must also be
reversed for insufficient evidence; (3) defendant’s Count 6 conviction must be vacated
because section 288.5, subdivision (c), mandates charges of continuous sexual abuse and
specific sexual offenses, pertaining to the same victim over the same period of time, be
charged in the alternative; (4) the trial court prejudicially erred and violated defendant’s
constitutional rights by allowing two prosecution witnesses to testify to their opinion that
the complaining witnesses were credible; (5) defendant’s trial counsel provided
1 Undesignated statutory references are to the Penal Code.
2
constitutionally deficient assistance by failing to object to certain assertions of
prosecutorial misconduct; and (6) the trial court prejudicially erred by failing to
instruct the jury on attempted sexual penetration as a lesser included offense to Count 7.
We conclude the trial court did not have good cause to excuse Juror No. 4. We
also conclude doing so outside defendant’s presence and while he was represented by an
attorney who was standing in for defendant’s temporarily ill trial counsel, and who was
told she was appearing to agree to a continuance on defendant’s behalf, violated
defendant’s federal constitutional rights. Because we cannot conclude this error was
harmless beyond a reasonable doubt, we must reverse the judgment. This conclusion
makes it unnecessary to address defendant’s remaining claims except those challenging
the sufficiency of the evidence. As to those, we conclude sufficient substantial evidence
supports defendant’s conviction in Count 3. Not so with respect to Count 6. We must
therefore reverse the judgment on that count for insufficient evidence.
FACTS
Defendant and his family, consisting of his wife and daughters A. and H., moved
from Texas to Hornbrook, a rural community not far from the Oregon border, sometime
in May 2013. They initially stayed in a small house with defendant’s father and
stepmother. In July or August, the family moved into a house located on a piece of
property managed by a friend of defendant’s wife. This friend also lived on the property,
in a separate house, with her husband and their four children, including their five-year-
old daughter M. A. and H. were four years old and three years old, respectively.
Sexual Abuse of A. and H.
Defendant’s sexual abuse of his daughters came to light during the third weekend
of August 2013. At some point that weekend, M.’s mother discovered from talking to her
daughter that A. had tried to put her finger in M.’s vagina while the two were picking
blackberries together. On two prior occasions, A. had tried to hold M. down and kiss her.
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Concerned A. was acting out sexually, M.’s mother spoke to defendant’s wife about the
latest incident and obtained her permission to ask A. about it.
M.’s mother then had a private conversation with A. while they played with M.’s
hamster. When asked about the incident, A. “got a shy look on her face,” but then
admitted to trying to put her finger in M.’s vagina. M.’s mother told A. several times that
she was not in trouble and asked how she knew something could go into a vagina, using
the word “pee-pee” for vagina because that was the word the children used for it. A.
responded, “Daddy taught me” and added: “This is how we show we love each other.”
As M.’s mother explained her reaction: “I tried really hard to keep a straight face for that
little baby. Everything in me as a mom wanted to just explode and freak out.” Instead,
she calmly asked for more details. A. said it was “not okay to tell because [defendant]
might kill Mommy.” After multiple assurances that “it was okay to tell the truth,” A.
revealed defendant played “games” with her while her mom was at work, including
defendant touching and putting things into her vagina and making her touch and kiss his
penis. In the conversation, A. used the word “pee-pee” for both vagina and penis. A.
also said defendant did these things to her when they lived in Texas and continued to do
so in California, both at her grandfather’s house and at their new house.
After speaking to A., M.’s mother spoke to H. to find out whether defendant was
also abusing her. After telling H. it was okay to tell the truth, M.’s mother said A. had
told her “about the games that [they] play with Daddy,” without saying what these games
were. H. initially avoided eye contact and remained quiet, but eventually said they
played “pee-pee kissing games” because “that’s what Daddy likes to do when [M]ommy
is not home.” H. also confirmed defendant did these things when they lived in Texas and
at their new house in California.
M.’s mother reported these disclosures to defendant’s wife, who “flipped out,”
going from “sobbing and crying” to “screaming angry.” At some point, defendant’s wife
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took A. outside and asked about what she had told M.’s mother. A. told her mother she
touched M.’s vagina because she loved her friend and, as she put it, “that’s how Daddy
showed us love.” When asked how defendant showed her love, A. said he “would touch
[her] pee-pee and [they] would play pee-pee kissing games,” elaborating: “I would kiss
H.’s pee-pee, and Daddy would kiss mine.” A. also told her mother defendant “would
stick carrots inside of [their] pee-pees.” Defendant’s wife then had a private conversation
with H. about what she had told M.’s mother. When she asked H. what the “pee-pee
kissing game” meant, H. said: “Daddy . . . would kiss my pee-pee and put carrots inside.”
She also said he put his “pee-pee” on her face and it hurt when he put his fingers and
carrots inside of her “butt.” Both A. and H. said they did not tell her about the abuse
because defendant threatened to shoot her if they told.
M.’s mother and defendant’s wife decided to call the Siskiyou County Sheriff’s
Department and Child Protective Services (CPS) to report the abuse. M.’s mother made
the call because defendant’s wife “was physically ill at that point.” Defendant moved out
after his wife confronted him with the allegations.
A social worker from CPS, Angeline Brophy, came out to the house to interview
A. and H. the following week. The purpose of these initial interviews was not to
document the abuse in detail, but to determine whether or not to refer the matter to law
enforcement authorities. Brophy spoke with A. first. After establishing A. knew the
difference between the truth and a lie through introductory questions, Brophy asked her
who lived at the house. When A. got to defendant, she added: “But he is naughty.”
Brophy asked what she meant. A. responded, “My dad is naughty because he puts sticks
and stuff in my pee-pee,” pointing to her vagina. Brophy asked when the last time
something like that happened. A. said defendant put a carrot in her vagina at their house
in Hornbrook, he told her not to tell anyone, and she was afraid of him. Brophy also
asked about the incident with M., but A. denied touching her vagina. She also denied
5
defendant ever asked her to touch him. Brophy ended the interview without getting
additional details because A. seemed nervous and Brophy already had enough
information to refer the matter to law enforcement.
Brophy then interviewed H. After establishing she knew the difference between
the truth and a lie, Brophy also asked her who lived at the house. When H. got to
defendant, she said: “My dad touches my pee-pee with his fingers.” She also pointed to
her vagina to indicate that is what she meant by “pee-pee.” After establishing H. knew
the difference between inside and outside, Brophy asked whether defendant put his
fingers inside her vagina. H. said he did. She also revealed that he put a carrot inside her
vagina. When asked how many times he did that, H. responded: “A lot. More than five
times.” She said the last time defendant put his fingers in her vagina was at the
recreational pool in Hornbrook. Defendant told her not to tell anyone about the carrots.
Finally, H. said defendant put his penis on her eye, but denied he put his mouth on her
vagina or had her put her mouth on his penis. Again, because Brophy had enough
information to refer the matter to law enforcement, she ended the interview without
getting additional details.
Brophy referred the matter to law enforcement the first week of September. The
following week, Detective Jacques Morlet went out to the house to conduct follow-up
interviews with A. and H. The detective spoke to A. first. When he asked her if she
knew why he wanted to talk to her, A. said: “Because Daddy’s a bad, bad man.” After
establishing A. knew the difference between the truth and a lie, much like Brophy had
done, the detective asked whether defendant did anything to her that he told her not to tell
anyone. A. responded: “He, um, messed with me.” When the detective asked how
defendant messed with her, A. said he made her eat an apple when she did not want to
and also made her touch a flower. The detective then established A. knew what her
“private parts” were and “the difference between a good touch and a bad touch” and
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asked whether she remembered telling Brophy about defendant doing something that was
“kinda like a bad touch.” A. said defendant made her dinner, but she “didn’t eat it all.”
The detective then told A. it was okay to be embarrassed, but he wanted her to tell him
the truth about what she told Brophy. A. responded: “He um, he, he sticked carrots in my
pee-pee.” She said this happened “a long time ago” when they lived in Texas. A. also
said this happened only one time and defendant told her not to tell anyone. After
speaking to A., the detective tried to interview H., but she did not want to answer his
questions, which he said was “perfectly fine.”
About two weeks later, Brophy conducted a forensic interview with H. During the
interview, H. said her father was “mean” because he “put carrots . . . and all that stuff in
[her] pee-pee” at the house in Hornbrook. When Brophy asked what else defendant put
inside her vagina, H. pointed to various stuffed animals and other items in the interview
room and said: “He put that. Not that. That and that and that and that. He put all the
stuff in my pee-pee.” She then directed Brophy: “So write it.” When Brophy asked
whether she had seen defendant’s “pee-pee,” H. said: “He put it together to my pee-pee.”
Brophy then established H. knew the difference between inside and outside and asked:
“Did your daddy put his pee-pee inside your pee-pee or outside your pee-pee?” H.
answered: “Inside my pee-pee.” Brophy asked what happened then, to which H.
responded: “He put the teddy bear in my pee-pee too.” She again directed: “Write that.”
Brophy asked whether defendant ever put his mouth on her vagina. H. answered: “Yes.
And inside his pee-pee and inside my pee-pee.” Brophy also asked whether defendant
ever had her touch his penis. H. answered: “He want me to touch, he touched my pee-pee
and I touched his pee-pee.” When Brophy asked what defendant’s penis looked like, H.
said it looked like a “cracker” and pointed to a Nutter Butter cookie that was on a table in
the interview room. Brophy asked how many times defendant touched H.’s vagina. She
responded: “Um, five times, like three times.” When Brophy asked whether A. was
7
involved in any of these incidents, H. answered: “Yes. He took [A.’s] pee-pee and my
pee-pee and my mom’s pee-pee. And his pee-pee.” Brophy responded: “Your mom was
there when he touched your pee-pee?” H. answered, “Yes. She said it,” and, “She said,
‘Don’t do that again.’ And [defendant] didn’t listen to my mom,” so “she just killed
him.” Brophy asked: “Where’s your dad right now?” H. answered: “He’s in jail.”
At this point in the interview, Brophy brought out some anatomical drawings of a
girl and a man and had H. identify the various parts and point out where defendant
touched her and where she touched him. Brophy then asked whether anything happened
at the pool. H. said defendant “put his pee-pee on the ground and he touched [her] pee-
pee” during a pool party. Brophy asked: “How did your daddy get his pee-pee into your
pee-pee in the pool?” H. answered: “Like he put inside his finger in my pee-pee like
this.” Brophy then asked: “Did he put his pee-pee in your pee-pee in the pool?” H.
answered: “Yes.” After stepping outside to talk to Detective Morlet, Brophy returned
and had H. color on the drawings to represent the various places defendant touched her
and had her touch him.
A. and H. testified at trial, although H. refused to answer any questions relating
to the abuse, repeating, “I don’t want to talk about it” and, “I don’t want to say it”
several times. She also stated there was someone in the courtroom she was afraid of,
identifying that person as “a boy,” but providing no further details. A. did provide
testimony regarding the abuse. She testified defendant touched her on her “pee-pee”
and her “butt,” identifying her vagina and buttocks on anatomical drawings shown to
her on the witness stand. She testified defendant touched her vagina with his hands
and finger on one occasion at the house in Hornbrook and did so on other occasions
when they lived in Texas. Defendant also touched her buttocks twice at the house in
Hornbrook. A. also testified defendant put carrots inside her vagina on two occasions
at this same house.
8
Sexual Abuse of M.
During the second week of September, two days after Detective Morlet
interviewed A., M. revealed to her mother that defendant also put his finger inside her
vagina on one occasion. M.’s mother testified: “She told me that [defendant] had -- the
girls were over there playing at their rental on my property, and they were all running
around in bathing suits, like every day, and that he was on his computer, and that she ran
in that room to ask him something and that he put his finger underneath her bathing suit
on her pee-pee, and that she got scared and tried to pull away and said, ‘I want my
Mommy.’ And he said, ‘You can’t go tell your mommy, you can’t tell anybody, you
can’t go over. You need to go play with the girls right now.’ ” When M.’s mother asked
her daughter where defendant put his finger, M. put her finger “onto her pee-pee, right in
her labia.” M. did not say when this occurred. M.’s mother estimated it must have
happened during the “middle to the third week” of August, based on when M. would
have been over there playing with her friends.
M.’s mother reported the incident to Detective Morlet, who came out to her house
with Brophy two days later to conduct an interview with M. Brophy tried to interview
M. in private, but she refused, so the interview took place in the living room with M.
sitting on the couch with her parents and Brophy sitting on the floor facing the child.
During the interview, after establishing M. knew the difference between the truth and a
lie, Brophy asked whether there was a time M. “got in trouble” while she was over at
defendant’s house playing with her friends. M. responded: “I did.” When Brophy
asked why she got in trouble, M. apparently looked up at her mother, prompting her
mother to say: “I don’t know why hunny. Just tell her what happened.” M. then
pointed to her vagina. Brophy asked what she called that part of the body. M. answered:
“Our pee-pee.” Brophy then asked what happened to her pee-pee. M. responded, “He
did this,” grabbing her vaginal area with one hand and lifting upwards. In response to
9
further questions, M. identified defendant as the “he” who did that to her and also said
she was wearing a bathing suit at the time and defendant’s finger went underneath the
bathing suit and inside her vagina.
M. also testified at trial. She testified defendant touched her “pee-pee” and “butt”
on the outside of her bathing suit. She claimed to not remember what he touched her
with, but said it happened on one occasion while she was over at his house playing with
A. and H. According to M.’s testimony, she immediately ran home and told her mother
what defendant had done.
DISCUSSION
I
Removal of Juror No. 4
Defendant contends we must reverse the judgment because the trial court lacked
good cause to excuse Juror No. 4 and doing so in the absence of both defendant and his
assigned trial counsel violated defendant’s constitutional rights. We agree.
A.
Additional Background
The prosecution’s presentation of its case against defendant was set to begin on
Monday, June 16, 2014, the jury (including the alternates) having previously been
selected and sworn. The trial court went on the record at 8:30 a.m., prior to the arrival of
the jury, to note neither defendant nor his defense counsel, Barton, was present. Barton
was apparently ill and informally agreed with the prosecutor that the matter would be
continued until the following day and therefore defendant need not be brought over to
court. Explaining it was not up to the attorneys and custodial staff to decide whether the
matter would be continued and whether defendant’s presence would be necessary, the
trial court ordered defendant brought over and also ordered the presence of someone from
the Public Defender’s Office to stand in for Barton.
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Defendant and stand-in counsel, O’Connor, arrived a short time later. After
some discussion between the trial court and the prosecutor about when Barton was
expected to be well enough to return and other scheduling matters, the trial court stated
it intended to excuse defendant because he was “in his jail garb.” The trial court also
explained the jury would be brought in at 9:00 a.m., informed there would be no
proceedings that day because of unexpected circumstances, and ordered to return the
following day. The trial court then asked O’Connor whether she agreed conversation
with the jury could take place outside defendant’s presence. O’Connor agreed.
Defendant was then excused.
At 9:00 a.m., before the jury was brought into the courtroom, the trial court stated
on the record that two of the jurors were not present and explained: “So I have directed
my clerk to go ahead and contact them. There is some roadwork in some of the areas,
and I know for a hearing that I had last week it was almost a 45-minute delay for people
to get in, but I don’t know if that’s what’s going on, but I’ll have her contact them.” At
9:15 a.m., the trial court went back on the record and stated one of the missing jurors,
Juror No. 12, was admitted to the hospital the previous Friday and had major bypass
surgery, so Juror No. 12 would be excused and replaced with an alternate. With respect
to the other missing juror, the trial court stated: “I have also -- we have been trying to
contact [Juror No. 4], . . . and I think at this point it’s 9:15, Counsel. And I’m going to
have my bailiff check one more time to see if [Juror No. 4] is present. But if that juror is
not present, I think the best course of action would be to go ahead and excuse that juror,
because that juror did not come in. We don’t know why, we have not heard.”
The jury was then brought into the courtroom. Juror No. 4 was still not present.
As promised, the jury was informed there would be no proceedings that day because of
“unexpected issues” and ordered to return the following day. The trial court then
removed Jurors No. 12 and No. 4, replacing them with alternate Jurors No. 1 and No. 2,
11
respectively. After excusing the newly-constituted jury for the day, the trial court stated:
“I’ll direct my clerk to contact our jury commissioner to know that I have discharged
[Juror No. 4], he could possibly be on his way. There is some roadwork going on, but
unless they contact us we just don’t know.”
B.
Forfeiture
As a preliminary matter, the Attorney General asserts defendant’s challenge to
Juror No. 4’s removal is forfeited by his failure to object below. Had defendant been
present with his assigned counsel, Barton, when the removal occurred, this assertion
would undoubtedly have merit. (See People v. Wilson (2008) 43 Cal.4th 1, 25 [failure to
object to juror removal or move for mistrial forfeits claim of error on appeal].) However,
as previously mentioned, neither defendant nor Barton was present to object to Juror
No. 4’s removal. There is no indication in the record that stand-in counsel, O’Connor,
had any familiarity with defendant’s case or with the selection of defendant’s jury. Her
presence the morning of the challenged removal was explicitly for purposes of
representing defendant while the jury was informed the matter would be continued to the
following day. As we explain later in this opinion, her presence when Juror No. 4 was
removed was tantamount to having no representation at all. In these circumstances, we
cannot hold her failure to object to the removal against defendant.
However, as the Attorney General also points out, Barton did not object to the
removal when she returned the following day. Thus, we are faced with the more difficult
question of whether or not this failure should operate to forfeit defendant’s claim on
appeal.
In People v. Davidian (1937) 20 Cal.App.2d 720 (Davidian), a juror was removed
and an alternate substituted in her place. Defense counsel did not object at the time of the
removal. The following day, counsel declined to stipulate that “the jury is present,”
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noting he did not want to waive an appellate challenge to the trial court’s decision to
remove the juror. (Id. at pp. 725-726.) The Court of Appeal rejected this challenge,
explaining: “We feel that this objection―if it can be so called or if it was well
taken―which was made by [defense counsel], came too late and can avail [the
defendant] nothing upon this appeal.” (Id. at p. 727.) Similarly, in People v. Von
Badenthal (1935) 8 Cal.App.2d 404 (Von Badenthal), a juror was removed and replaced
by an alternate when she became too ill to continue deliberations. (Id. at pp. 410-411.)
That afternoon, defense counsel asked the trial court to vacate its order removing the
juror and to reinstate her as a member of the jury. The Court of Appeal concluded the
motion was properly denied, noting the defendant “offer[ed] no authority which would
warrant the [trial] court in granting such a motion.” (Id. at p. 412.) The court further
explained, “the then existing jury, with the alternate included, was the lawful jury
deliberating upon the verdict, and the discharged juror had, since her discharge, left the
courtroom and had undoubtedly come in contact and, as shown by the record, had
conversations with other persons in which the cause on trial was mentioned if not
discussed.” (Ibid.)
Based on these authorities, Barton might well have concluded it was too late to
object to the removal of Juror No. 4 after the removal had already taken place and the
trial court would have had no basis upon which to grant such a motion. In short, there
was reason for Barton to conclude an objection to the removal at that time would have
been futile in the sense the erroneous removal of the juror could not have been remedied.
(See People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648 [exception to forfeiture rule
where objection would have been futile].) Moreover, even though Barton could have
raised the issue in a motion for new trial, as the defendant did in Von Badenthal, nothing
in that case suggests the failure to do so operates as a forfeiture of the issue on appeal. It
is the failure to object at the time of the removal that forfeits the issue. (Davidian, supra,
13
at p. 727.) But here, neither defendant nor Barton was present at the time of the removal.
While we conclude this fact prevents that failure from constituting a forfeiture in this
case, it would not have been entirely unreasonable for Barton to have believed the issue
was forfeited for purposes of obtaining relief in a new trial motion, and filing such a
motion on that basis would have been just as futile as objecting to the removal the day
after it occurred.
In any event, the fact that a party may forfeit a right to present a claim of error to
the appellate court if he or she did not raise the issue in the trial court does not mean the
appellate court is deprived of authority to reach the merits of the issue. “An appellate
court is generally not prohibited from reaching a question that has not been preserved for
review by a party. [Citations.] Indeed, it has the authority to do so. [Citation.] True, it
is in fact barred when the issue involves the admission (Evid. Code, § 353) or exclusion
(id., § 354) of evidence. Such, of course, is not the case here. Therefore, it is free to act
in the matter. [Citation.] Whether or not it should do so is entrusted to its discretion.”
(People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6; see also People v. Marchand
(2002) 98 Cal.App.4th 1056, 1061 [appellate court has discretion to adjudicate important
question of constitutional law despite party’s forfeiture of right to appellate review].)
Here, as we explain below, defendant’s constitutional rights were violated by the trial
court’s removal of Juror No. 4 outside his presence and at a time he was effectively not
represented by counsel. We would exercise our discretion to address the merits even if
we agreed with the Attorney General’s forfeiture argument.
C.
Section 1089
Section 1089 provides in relevant part: “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 to be unable to perform his or her duty, or if a juror
14
requests a discharge and good cause appears therefor, the court may order the juror to be
discharged and draw the name of an alternate, who shall then take a place in the jury box,
and be subject to the same rules and regulations as though the alternate juror had been
selected as one of the original jurors.” (Italics added.)
“ ‘Once a trial court is put on notice that good cause to discharge a juror may exist,
it is the court’s duty “to make whatever inquiry is reasonably necessary” to determine
whether the juror should be discharged.’ [Citation.] On appeal, the trial court’s
determination is reviewed for abuse of discretion. [Citations.]” (People v. Leonard
(2007) 40 Cal.4th 1370, 1409.) However, “[w]hile the court’s decision will be given
great deference, its discretion is not unfettered.” (People v. Bell (1998) 61 Cal.App.4th
282, 287 (Bell).) “The court must make a reasonable inquiry to determine whether the
person in question is able to perform the duties of a juror. [Citation.] If the answer is in
the negative, the inability to perform those duties must be shown on the record to be a
‘demonstrable reality.’ [Citation.]” (Ibid.)
Here, Juror No. 4 was removed for being absent about 15 minutes after he was
scheduled to report for the start of the evidence portion of the trial. As the trial court
acknowledged on the record, he might have been stuck in traffic due to roadwork in the
area. Or, as the Attorney General posits, he might have been “shirking his duties and
evading jury service.” The record does not reveal which of these scenarios, if either, was
the actual situation. As our Supreme Court has stated: “Unless the facts clearly establish
a sufficient basis on which to reach an informed and intelligent decision, the court must
conduct an appropriate hearing in the presence of litigants and counsel on the question of
the juror’s ability to serve.” (In re Mendes (1979) 23 Cal.3d 847, 852 (Mendes),
superseded by statute on another point, as stated in People v. Cottle (2006) 39 Cal.4th
246, 254, fn. 2.) The trial court did not conduct such a hearing. Instead, outside
defendant’s presence and while he was being represented by stand-in counsel, the trial
15
court removed Juror No. 4 based on an admitted lack of information regarding the reason
he was 15 minutes late. We conclude this was an abuse of discretion. (See People v.
Delamora (1996) 48 Cal.App.4th 1850, 1856 [“where, as here, there is no evidence at all
to show good cause (because no inquiry of any kind was made), the procedure used was
by definition inadequate”].)
Nevertheless, the Attorney General argues the trial court did make an inquiry into
Juror No. 4’s whereabouts and the lack of information in this regard “was not for lack of
trying,” pointing out the court clerk was apparently unable to reach the juror by phone
and the bailiff checked the juror waiting area to see if he had arrived prior to his removal.
However, under Mendes, supra, 23 Cal.3d 847, when this preliminary inquiry neither
confirmed the juror was on his way nor clearly established he was unable to serve as a
juror, the trial court was required to hold a hearing in the presence of defendant and
counsel. This did not happen.
The Attorney General also cites Bell, supra, 61 Cal.App.4th at page 289, for the
proposition that “one ‘cannot reasonably expect the court system to be placed in “park” in
the hope that an ostensibly favorable juror will return at some future time.’ ” Bell is
inapposite. There, the removed juror called the clerk the morning of the second day of
evidence and stated he needed to take his son to the hospital following an undisclosed
emergency and he did not believe he could be back before 1:30 p.m. (Id. at p. 287.)
After holding “a short conference, with [defendant] and both counsel present,” during
which argument from both sides was entertained, the trial court removed the juror “in the
interest of judicial economy,” noting, “the juror did not know exactly when he could
return,” and “the trial was almost over and the other jurors, alternates, and witnesses were
being kept waiting.” (Id. at p. 288.) The Court of Appeal concluded this was not an
abuse of discretion, explaining: “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
16
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 jurors and 2 alternates were waiting for court to convene. In
addition, at least five of the People’s six scheduled witnesses were waiting to testify.
Thus, the court made an adequate inquiry and no further investigation was required.”
(Ibid.)
In contrast, here, the trial court had no information as to whether Juror No. 4
would arrive in a matter of minutes due to traffic delays, or whether he was absent for
some other more serious reason. Nor did the trial court hold the conference that was held
in Bell, supra, 61 Cal.App.4th 282, with defendant and counsel present, in an attempt to
make an informed decision on the matter. Moreover, even if Juror No. 4 was unable to
serve as a juror for the entire day, like the juror in Bell, the trial in this case was being
continued for a day anyway due to defense counsel’s illness. Thus, there were no waiting
jurors or witnesses making judicial efficiency a consideration here. The trial court could
have removed and replaced Juror No. 12, for whom good cause for removal was
abundantly clear, and excused the jury for the day. If Juror No. 4 was merely running
late, he could have been admonished for his tardiness upon his arrival and also ordered to
return the following day. If he never arrived, that could have been addressed in a hearing
the following day, with defendant and counsel present, or if his inability to serve as a
juror was clearly established in the meantime, the trial court could then have removed
him without holding such a hearing. (See Mendes, supra, 23 Cal.3d at p. 852.)
We recognize an exercise of discretion “is not rendered abusive merely because
other alternative courses of action may have been available to the trial judge.” (People v.
Hall (1979) 95 Cal.App.3d 299, 307.) However, here, the course of action chosen by the
17
trial court did not amount to making a “reasonable inquiry” to determine whether or not
Juror No. 4 was able to perform the duties of a juror. (Bell, supra, 61 Cal.App.4th at p.
287.) Nor was his “inability to perform those duties . . . shown on the record to be a
‘demonstrable reality.’ ” (Ibid., quoting People v. Holt (1997) 15 Cal.4th 619, 659.)
D.
Constitutional Claim
We now address defendant’s contention that, in addition to amounting to an abuse
of discretion, the trial court’s decision to discharge Juror No. 4 in these circumstances
violated defendant’s constitutional rights “to be personally present and to be represented
by counsel at critical stages during the prosecution.” (United States v. Thompson (9th
Cir. 1987) 827 F.2d 1254, 1258 (Thompson).)
“[A] criminal defendant has a right to be personally present at certain pretrial
proceedings and at trial under various provisions of law, including the confrontation
clause of the Sixth Amendment to the United States Constitution, the due process clause
of the Fourteenth Amendment to the United States Constitution, section 15 of article I of
the California Constitution, and sections 977 and 1043.” (People v. Cole (2004) 33
Cal.4th 1158, 1230; People v. Kelly (2007) 42 Cal.4th 763, 781-782 (Kelly).) “Although
. . . this privilege of presence is not guaranteed ‘when presence would be useless, or the
benefit but a shadow,’ [citation], due process clearly requires that a defendant be allowed
to be present ‘to the extent that a fair and just hearing would be thwarted by his [or her]
absence,’ [citation]. Thus, a defendant is guaranteed the right to be present at any stage
of the criminal proceeding that is critical to its outcome if his [or her] presence would
contribute to the fairness of the procedure.” (Kentucky v. Stincer (1987) 482 U.S. 730,
745 [96 L.Ed.2d 631].) In addition to the right of personal presence, a criminal defendant
also has a right to the assistance of counsel at all “ ‘critical’ stages of the proceedings”
under various provisions of the state and federal Constitutions. (United States v. Wade
18
(1967) 388 U.S. 218, 224-225 [18 L.Ed.2d 1149]; Thompson, supra, 827 F.2d at p. 1258;
People v. Ayala (2000) 24 Cal.4th 243, 259-269 (Ayala).)
While these rights to personal presence and assistance of counsel at all critical
stages of the proceedings obviously overlap, they are not coextensive. For example, “a
defendant may ordinarily be excluded from conferences on questions of law, even if
those questions are critical to the outcome of the case, because the defendant’s presence
would not contribute to the fairness of the proceeding.” (People v. Perry (2006) 38
Cal.4th 302, 312.) In Kelly, supra, 42 Cal.4th 763, our Supreme Court held the
defendant’s right to personal presence was not violated when he was excluded from
certain legal discussions during jury selection regarding the removal of three prospective
jurors, noting defense counsel was present during these discussions and nothing in the
record suggested the defendant’s presence would have made any difference. (Id. at pp.
781-782.) In contrast, in Ayala, supra, 24 Cal.4th 243, our Supreme Court held it was
state law error to exclude both the defendant and defense counsel from a hearing on the
defendant’s Wheeler motion2 regarding the prosecution’s exercise of peremptory
challenges against certain prospective jurors and noted the error “may amount to a denial
of due process,” but concluded the error was harmless under both the state and federal
standards for assessing prejudice. (Id. at p. 264, italics added; see Thompson, supra, 827
F.2d at p. 1261 [exclusion of defense counsel from Batson hearing violated due process
and was not harmless].) The “obvious difference between excluding both the defendant
and his [or her] attorney and merely excluding the defendant” from conferences on
2 People v. Wheeler (1978) 22 Cal.3d 258. “A Wheeler motion is brought during
voir dire of a jury panel when a party asserts the opposing party is improperly exercising
peremptory challenges on the basis of group bias, i.e., to exclude members of a legally
cognizable group.” (People v. Morris (2003) 107 Cal.App.4th 402, 405, fn. 1.) The
federal counterpart to a Wheeler motion is brought under Batson v. Kentucky (1986) 476
U.S. 79 [90 L.Ed.2d 69] (Batson).
19
questions of law is the attorney is “able to fully represent [the] defendant’s interests”
during such conferences. (Kelly, supra, at p. 782.)
Here, both defendant and Barton were excluded from the removal decision. And,
as we explain, O’Connor’s presence was tantamount to no representation at all. Thus, we
must determine whether or not the juror substitution that occurred in this case amounted
to a critical stage of the proceedings against defendant entitling him to the assistance of
counsel during the substitution. Because we conclude the answer is “yes,” we need not
determine whether his personal presence was also constitutionally required, or whether
instead such presence “ ‘would be useless, or the benefit but a shadow.’ ” (Kentucky v.
Stincer, supra, 482 U.S. at p. 745.)
We first note a juror substitution is not “necessarily . . . a critical stage in the
proceedings such that it gives the defendant the constitutional right to assistance of
counsel.” (People v. Dell (1991) 232 Cal.App.3d 248, 257 (Dell).) This observation
flows by implication from Mendes, supra, 23 Cal.3d 847, in which our Supreme Court
held that “[u]nless the facts clearly establish a sufficient basis on which to reach an
informed and intelligent decision, the court must conduct an appropriate hearing in the
presence of litigants and counsel on the question of the juror’s ability to serve.” (Id. at p.
852.) Conversely, if the facts do clearly establish a sufficient basis for removing a juror,
that removal may happen outside the presence of both the defendant and defense counsel.
(See, e.g., Dell, supra, 232 Cal.App.3d at p. 257 [“we do not see how counsel’s presence
at the substitution could have made a difference”].)
However, in a situation such as existed in this case, where the removed juror’s
inability to serve is not clear, the presence of counsel could make all the difference. If
the trial court’s reasons for removing the juror are legally insufficient to establish good
cause for removal, or the record does not show the juror’s inability to serve to be a
demonstrable reality, arguments can be made and the decision to remove that juror
20
swayed. While, at the time of a juror substitution, both the jurors and the alternates have
been approved by the defense, there may be tactical reasons for counsel to decline to
exercise a peremptory challenge against an alternate, whereas such a challenge may well
have been used had that individual been seated in the jury box. And the fact it would be
too late to challenge the alternate at that point does not negate the fact the defendant is
entitled to proceed with the sitting juror on the panel unless and until good cause for
removal is shown to be a demonstrable reality. Counsel’s presence in such a situation
protects the defendant against the loss of this right.
While defendant was represented by O’Connor when Juror No. 4 was removed,
we agree with defendant she “did not function as the ‘counsel’ contemplated by the
constitutional guarantee.” (Wilson v. State (Fl.Dist.Ct.App. 2000) 764 So.2d 813, 816.)
O’Connor was not defendant’s assigned counsel and apparently had no prior knowledge
of defendant’s case. She was standing in for Barton for the express purpose of agreeing
to a one-day continuance and having the jury informed of that fact. She made no
objection when the trial court announced it would also be removing Juror No. 4,
essentially for tardiness, without any information as to whether he was unable to perform
his duties as a juror or simply stuck in traffic due to roadwork in the area. While
O’Connor was “a warm body sitting in counsel’s chair,” she was not there to represent
defendant for any purpose other than agreeing to a continuance. (Ibid.)
We therefore conclude defendant’s constitutional right to be represented by
counsel at critical stages during the prosecution was violated. (See, e.g., Thompson,
supra, 827 F.2d at p. 1258; Dunn v. State (2011) 308 Ga.App. 103, 105-106 [removal of
juror without good cause outside presence of the defendant and defense counsel violated
the defendant’s constitutional rights].)
21
E.
Prejudice
We now turn to the question of prejudice. In Rushen v. Spain (1983) 464 U.S. 114[78 L.Ed.2d 267] (Rushen), a case involving two ex parte conversations between the trial
court and one of the jurors regarding whether that juror should be removed because of a
possible bias, the United States Supreme Court assumed for purposes of the opinion that
the defendant’s “constitutional rights to presence and counsel were implicated” by these
ex parte conversations with the juror, as the California Court of Appeal concluded on
direct appeal, and as the federal district court and the United States Court of Appeals for
the Ninth Circuit concluded in federal habeas proceedings (id. at p. 117 & fn.2), but
unlike the Ninth Circuit (and like the California Court of Appeal), the high court held
such a violation was subject to a harmless error analysis rather than being prejudicial per
se. (Id. at pp. 117-120.) There, evidence of a murder that was not related to the crimes
for which the defendant (and several co-defendants) were being tried came out during
trial, causing the juror to realize she knew that murder victim and prompting her to reveal
this to the trial judge in the two ex parte conversations. (Id. at p. 116.) Describing the
conversations as “innocuous,” the high court concluded the lower federal courts should
have deferred to the “presumptively correct state court finding” that holding these
conversations outside the presence of defendant and defense counsel was harmless
beyond a reasonable doubt. (Id. at pp. 120-121.)
We cannot conclude beyond a reasonable doubt the removal of Juror No. 4 in this
case was harmless. Unlike Rushen, supra, 464 U.S. 114, where there did not appear to
have been any good cause for removal of the juror, and therefore the presence of
defendant and defense counsel likely would not have made a difference with respect to
the trial court’s decision not to remove her, here, Juror No. 4 was removed from the jury
without a showing of good cause and the presence of defendant’s assigned counsel, or at
22
least stand-in counsel prepared to do more than simply agree to a continuance, would
likely have prevented that removal.
Nevertheless, relying on Dell, supra, 232 Cal.App.3d 248, the Attorney General
argues defendant could not have been prejudiced by the removal because Juror No. 4 was
replaced by an alternate, who was “selected from the same source, in the same manner,
with the same qualifications and . . . subject to the same challenges,” and who had “an
equal opportunity to observe the entire proceedings and [took] the same oath as the
regular jurors.” (Id. at p. 256.) However, as previously explained, Dell involved the
removal of a juror where good cause for that removal was clear, and therefore, the
removal of that juror outside the presence of the defendant and defense counsel did not
amount to an abuse of discretion, let alone a constitutional violation. Accordingly, Dell
is manifestly inapposite.
In sum, defendant was entitled to have Juror No. 4 on the jury, at least until his
inability to serve appeared as a demonstrable reality. The improper removal of that juror
without good cause outside the presence of defendant and counsel prepared to represent
his interests in the removal matter violated his constitutional right to be represented by
counsel at critical stages during the prosecution. Thus, unless we can conclude beyond a
reasonable doubt that the replacement of this juror did not contribute to the verdict
rendered against him, we must reverse. We simply do not know what the jury would
have done had Juror No. 4 not been removed. The evidence against defendant, while
sufficient to support his convictions (except with respect to Count 6, as explained below),
was based on statements and testimony by victims who were between three and five years
of age when the alleged sexual acts occurred, including parts that were not consistent or
credible. And there were certain voir dire responses provided by the alternate who
replaced Juror No. 4 that suggested at least a potential bias in favor of the prosecution.
23
For these reasons, we cannot conclude beyond a reasonable doubt the removal of Juror
No. 4 was harmless.
II
Sufficiency of the Evidence
Defendant also claims his convictions for Counts 3 and 6 must be reversed for
insufficient evidence. We address these claims because, as our Supreme Court has
explained, “an appellate ruling of legal insufficiency is functionally equivalent to an
acquittal and precludes a retrial.” (People v. Hatch (2000) 22 Cal.4th 260, 272; Burks v.
United States (1978) 437 U.S. 1, 18 [57 L.Ed.2d 1].) We conclude sufficient substantial
evidence supports Count 3. Not so with respect to Count 6.
A.
Standard of Review
“ ‘In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.]’ [Citations.] All conflicts in
the evidence and questions of credibility are resolved in favor of the verdict, drawing
every reasonable inference the jury could draw from the evidence. [Citation.] Reversal
on this ground is unwarranted unless ‘ “upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].” ’ [Citation.] This standard applies
whether direct or circumstantial evidence is involved. [Citation.]” (People v. Cardenas
(2015) 239 Cal.App.4th 220, 226-227.) “ ‘Although it is the duty of the jury to acquit a
defendant if it finds that circumstantial evidence is susceptible of two interpretations, one
of which suggests guilt and the other innocence, it is the jury, not the appellate court
which must be convinced of the defendant’s guilt beyond a reasonable doubt. If the
circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing
24
court that the circumstances might also be reasonably reconciled with a contrary finding
does not warrant a reversal of the judgment.’ [Citation.]” (People v. Perez (1992) 2
Cal.4th 1117, 1124.)
B.
Count 3
Defendant was convicted of having sexual intercourse with H., a child 10 years of
age or younger, in violation of section 288.7, subdivision (a). As defendant correctly
observes, the only specific evidence that he engaged in such an act with H. came during
her forensic interview with Brophy. In the interview, after H. disclosed defendant put
carrots into her vagina at the house in Hornbrook, she pointed to various stuffed animals
and other items in the interview room and said he “put all the stuff in [her] pee-pee,”
which Brophy characterized as H. “try[ing] to be pleasing to the interviewer” by adding
to her answer, whether true or not. Brophy then asked whether H. remembered telling
her about something that happened “at the pool,” referring to her previous conversation
with H., during which the child said defendant put his fingers inside her vagina at the
recreational pool in Hornbrook. H. answered: “He just put carrots in my pee-pee at the
pool.” When Brophy then asked whether she had seen defendant’s “pee-pee,” H. said:
“He put it together with my pee-pee.” Brophy asked where that happened. H. answered,
“[a]t the trailer,” i.e., where the family lived in Texas. Brophy then established H. knew
the difference between inside and outside and asked: “Did your daddy put his pee-pee
inside your pee-pee or outside your pee-pee?” H. answered: “Inside my pee-pee.”
Brophy asked what happened then, to which H. responded: “He put the teddy bear in my
pee-pee too.” Later in the interview, Brophy asked: “How did your daddy get his pee-pee
into your pee-pee in the pool?” (Italics added.) H. answered: “Like he put inside his
finger in my pee-pee like this.” (Italics added.) Brophy again asked: “Did he put his pee-
pee in your pee-pee in the pool?” H. answered: “Yes.” (Italics added.) Finally, during
25
the portion of the interview where H. colored the anatomical drawing of the little girl,
Brophy said: “And yellow is where he touched you with his pee-pee.” H. said: “In my
pee-pee and my butt.”
Highlighting a number of “fantastical claims” made by H. during the interview,
e.g., the claim defendant put stuffed animals in the interview room into her vagina and
the additional claim her mother was also involved in one of the incidents of abuse and
killed defendant when he did not stop, as she asked, and further pointing out it was
Brophy who “first and repeatedly suggested that an act of sexual intercourse had
happened at the pool,” as opposed to at the trailer in Texas, defendant argues the
evidence “was too unreliable to support a finding beyond a reasonable doubt that [he] had
engaged in an act of sexual intercourse [with H.] after the family moved to California.”
We conclude the evidence recounted above is sufficiently substantial to support
the jury’s finding defendant engaged in an act of sexual intercourse with H. in California.
Brophy specifically asked H. whether defendant put his penis inside her vagina at the
recreational pool in Hornbrook. She said he did. Defendant does not dispute this out-of-
court statement was properly admitted into evidence for the truth of the statement. Nor
could he. (See Evid. Code, § 1235 [hearsay exception for prior inconsistent statements];
see also id., § 1360 [hearsay exception for victim of child sexual abuse when under 12
years of age].) Of course, as defendant points out: “ ‘The admissibility and substantiality
of hearsay evidence are different issues.’ [Citation.] . . . Except in those instances
recognized by statute where the reliability of hearsay is established, ‘hearsay evidence
alone “is insufficient to satisfy the requirement of due process of law, and mere
uncorroborated hearsay does not constitute substantial evidence. [Citation.]” ’
[Citations.]” (In re Lucero (2000) 22 Cal.4th 1227, 1244-1245.) Here, while there was
no independent evidence of the specific act of intercourse alleged, there was plenty of
corroboration with respect to defendant’s other acts of sexual abuse committed against
26
the child victims in this case. In other words, the fact defendant inserted his fingers and
carrots into both of his daughters’ vaginas, played “pee-pee kissing games” with them,
and also inserted his finger into M.’s vagina lends circumstantial support to H.’s
statement he also inserted his penis into her vagina at the pool. (See Evid. Code, § 1108,
subd. (a); see also People v. Merriman (2014) 60 Cal.4th 1, 40 [evidence of sexual
assault cross-admissible under Evidence Code section 1108 to show the defendant’s
propensity to commit rape and forcible oral copulation].) It was for the jury to decide
whether to believe H.’s statement in light of some of the more fantastic statements she
also made during the forensic interview.
We conclude sufficient substantial evidence supports defendant’s conviction in
Count 3. As such, defendant may be retried as to this count.
C.
Count 6
Defendant was also convicted of the continuous sexual abuse of H., a child under
the age of 14 years, in violation of section 288.5, subdivision (a). This provision is
violated “if the defendant (1) resided with, or had recurring access to, a child under
fourteen, and (2) committed three or more acts of sexual molestation of the child, and (3)
three or more months passed between the first and the last act of molestation.” (People v.
Vasquez (1996) 51 Cal.App.4th 1277, 1287.) Defendant does not challenge the
sufficiency of the evidence supporting the first two elements. Instead, relying on People
v. Mejia (2007) 155 Cal.App.4th 86, 94 (Mejia), he argues the evidence in this case does
not support a reasonable inference that at least three months elapsed between the first
incident of abuse perpetrated against H. in California and the last such incident. We
agree.
In Mejia, supra, 155 Cal.App.4th 86, the defendant was charged with and
convicted of the continuous sexual abuse of the victim “on or between June 1, 2004 and
27
September 17, 2004,” the latter date being the day before the victim’s fourteenth
birthday. (Id. at p. 93.) Concluding there was “no reasonable, credible, solid evidence to
support a nonspeculative inference that the three-month minimum time period element
was satisfied,” the Court of Appeal explained: “Construing the victim’s testimony in the
light most favorable to the People’s case, the evidence showed defendant first abused her
sometime in June 2004, when she was in eighth grade. There were 10 instances of abuse
by defendant between June and the start of ninth grade sometime ‘around July’ of that
year. The victim also testified that during the 12-week period from June through August
2004, defendant molested her more than three times. In September of that year,
defendant molested her at least twice. While on direct examination, the victim testified
generally that defendant molested her ‘two or three days a week,’ but she clarified that
defendant did not molest her every week within that time period. [¶] Accordingly, the
only reasonable inference permitted by the evidence was that defendant’s abuse began
sometime in June and continued to some date in September―but the jury could only
speculate that the first incident occurred early enough in June to satisfy the 90-day
requirement expiring on September 17, 2004. Indeed, there was no evidence as to when
defendant abused her in September, including whether the abuse occurred before and/or
after her birthday. As defendant correctly argues, although there was ample evidence that
at least three sexual qualifying offenses occurred during the charging period, there was no
substantial evidence that at least three months elapsed between the first and third offense
committed against her as a 13-year-old.” (Id. at pp. 94-95.)
Here, defendant was charged with and convicted of the continuous sexual abuse of
H. “between May 1, 2013 and July 31, 2013.” Accordingly, we must determine whether
there is reasonable, credible, and solid evidence the first incident of sexual abuse
perpetrated against H. in California happened early enough in May and the last such
incident happened late enough in July such that at least 90 days elapsed between these
28
incidents. While there is evidence the family moved from Texas to California “sometime
in May,” there was no evidence the move happened at the very beginning of the month.
Thus, even assuming the last incident of sexual abuse happened on July 31, there is no
substantial evidence the first such incident in California happened early enough in May
for 90 days to have passed between that first incident and the last incident. For this
reason, we must conclude there is not sufficient substantial evidence to support
defendant’s conviction in Count 6. As such, defendant may not be retried as to this
count. The Attorney General does not argue otherwise.
DISPOSITION
The judgment is reversed and the matter is remanded for retrial as to Counts 1
through 5 and 7, if the People so elect.
/s/
HOCH, J.
We concur:
/s/
HULL, Acting P. J.
/s/
RENNER, J.
29