People v. Valadez CA2/3

Filed 1/20/22 P. v. Valadez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B305636
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA093307)
v.
ANDY STEVE VALADEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Edmund Willcox Clarke, Jr., Judge.
Affirmed.
Victor J. Morse, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.
——————————
A jury convicted Andy Steve Valadez of second degree
murder, making a criminal threat, child abuse, and found
he personally used a firearm during each offense. On appeal,
Valadez argues the trial court erred when it: (1) discharged
a juror shortly before deliberations began because it determined
he had an insufficient command of the English language;
(2) admitted evidence of Valadez’s prior domestic violence;
(3) precluded Valadez’s expert psychiatrist from offering
an opinion on whether Valadez was unconscious at the time
he committed the offenses; and (4) did not instruct the jury
on misdemeanor child abuse as a lesser included offense to
felony child abuse. We affirm.
BACKGROUND
Valadez lived with his wife, Sandra Valadez,1 and their
four children in a back house on property that they shared with
Sandra’s relatives. In November 2015, Valadez came home and,
without warning, shot Sandra several times. Sandra, who was
holding their infant child, fell to the floor. Two of the Valadez
children—ages six and eight at the time—saw their father shoot
their mother. The six-year-old ran out of the house and told her
aunt, “Daddy shot mommy.” Sandra died from her wounds, but
the infant was uninjured.
After hearing gunshots, Sandra’s aunt entered the room
and fought with Valadez as he threatened to kill everyone else on
the property and tried to reload his gun. The police arrived
several minutes later and arrested Valadez. Valadez testified at
1 Because Valadez and his wife shared the same last name,
we refer to his wife by her first name.
2
trial and claimed he was unconscious when he shot Sandra due to
a mix of alcohol, methamphetamine, and anti-anxiety medication.
The People charged Valadez with one count of murder (Pen.
Code,2 § 187, subd. (a); count 1), one count of making a criminal
threat (against the aunt) (§ 422, subd. (a); count 2), and one count
of child abuse (§ 273a, subd. (a); count 3). As to count 1, the
People alleged Valadez personally and intentionally discharged a
firearm causing great bodily injury or death (§ 12022.53,
subd. (d)), and as to counts 2 and 3, the People alleged Valadez
personally used a firearm (§§ 12022.5, subd. (a), 1203.06,
subd. (a)(1)).
A jury found Valadez guilty of second degree murder,3
making a criminal threat, and child abuse, and it found true the
firearm enhancements as to each offense. The court sentenced
Valadez to 56 years to life in prison.
Valadez appeals.
2 All undesignated statutory references are to the Penal
Code.
3
The court instructed the jury on four theories of homicide
—first degree murder, second degree murder, voluntary
manslaughter, and involuntary manslaughter—and voluntary
intoxication and unconsciousness as defenses to some of the
charged forms of homicide.
3
DISCUSSION
I. Juror discharge4
Valadez contends the court erred when, shortly before
deliberations began, it discharged a juror—Juror No. 6—after
finding he did not have sufficient proficiency in English.
The court had the prospective jurors complete
questionnaires before the court and counsel questioned them.5
During jury selection on January 9, 2020, addressing the juror in
question and apparently reading from the questionnaire, the
court stated, “Area of residence is Inglewood. Occupation, waiter.
Significant other is a housewife. So she definitely is working
because he mentions three sons at home, all under the age of 18.”
The court continued, “So you didn’t say whether you could
be fair or not. Do you feel you could be fair to both sides?” Juror
No. 6 responded, “Oh, I forgot that. But yeah, I think, if I choose,
I can be fair.”6 The court said, “All right. You could be fair to
4 Our dissenting colleague accuses us of “minimizing the
parts of the record that undercut the [trial] court’s reasoning.”
(Dis. opn. post, at p. 2.) To the contrary, our recitation of the
facts that follows includes every discussion and exchange in the
record on appeal with or regarding the juror in question.
Notably, the dissent gives not one single example of any part of
the record we have “minimize[ed].”
5We granted Valadez’s motion to augment the record to
include the questionnaire completed by the juror in question, but
the superior court responded with a certificate of clerk that it
could not find the document.
6 It’s unclear whether the juror meant, “if chosen as a juror,
I can be fair” or “if I choose to, I can be fair.” These two possible
meanings of the juror’s response are quite different, and the
4
both sides. [¶] Now, you mentioned something. Of course, I
don’t want to embarrass you, but you said something about your
English, that maybe you’re not as comfortable with your English
as you would like to be.” Juror No. 6 replied, “Yeah. It’s not that
complete English. Sometimes I have doubts about what I hear.”
The court said, “Okay. So I’m understanding you find—and I
assume when you’re saying what you hear, you can actually hear
it, but you don’t always feel you’re understanding? Is that what
you’re saying?” Juror No. 6 responded, “Yes that’s what I’m
saying.”
The court’s colloquy with Juror No. 6 continued:
“The court: Do you mind if I ask you, how long have
you been in this country?
“Prospective Juror N[o. 6]: Since 1980.
“The court: Since 1980.
“Prospective Juror N[o. 6]: Yes.
“The court: So that was—Jimmy Carter was the
president. No, Reagan. Around about the same time. So
that was almost 40 years ago, right?
“Prospective Juror N[o. 6]: Yes, sir.
“The court: And you are a waiter?
“Prospective Juror N[o. 6]: Yes.
“The court: And you interact with customers in
English?
“Prospective Juror N[o. 6]: Yeah.
difference is important. We do not share our dissenting
colleague’s view that “all of Juror No. 6’s responses to the court’s
questions were articulate and precise.” (Dis. opn. post, at pp. 2–
3.)
5
“The court: Okay. So the lawyers are supposed to
use basic English in the courtroom, not fancy. They know
that the jurors want to understand things, so they try to
keep it in basic English so that everyone is following.
“Do you think if they keep it basic, that you can
follow and understand?
“Prospective Juror N[o. 6]: What I mean is, when
they speak too fast, it’s when I get a little trouble.
“The court: So you can understand the words if
they’re said slowly, but when people start speaking quickly,
you have a problem following?
“Prospective Juror N[o. 6]: What I mean is, some
words I don’t really understand. But I understand 75
percent maybe.
“The court: Okay. So if the lawyers speak at a
reasonable speed . . . .
“So I think they’ll keep it slow, that is, the lawyers
and the witnesses. And basic. But they may have more
questions for you.”
In response to a question the court had asked all the jurors,
Juror No. 6 then said his favorite vacation spot was Puerto
Vallarta, Mexico and his favorite pets were dogs.
Neither of the attorneys questioned Juror No. 6 about his
ability to speak or understand English or challenged him for
cause. Juror No. 6 was sworn as a juror on Friday, January 10,
2020.
The next court day was Monday, January 13, 2020. The
first witness was the 11-year-old daughter of Sandra and Valadez
(who was six when her mother was murdered). After the court
excused the jurors for lunch, he advised counsel that Juror No. 6
6
had “sent a note.” The court said, “[Y]ou’ll remember him
because he commented about his English language skills during
voir dire.” The court told counsel they’d get a copy of the note,
adding, “[a]nd at some later time, if you wish, we can address it.
It’s not my plan to do anything. [¶] He asked if he could talk to
me in private for a few minutes. That’s not going to happen. But
we’ll copy it and we’ll have it. And we can talk about it soon [sic]
or later, depending on your request.”
The note read:7 “Your honor so sorry to take part of your
beesy time I’m jury # [6] If I can talk to you in private for a few
minutes pleace. What I want to talk to you is about what I told
you the firt day of selection of jury about my English im very
confuse about anderstanding so many words I never use or hear
before and I think if I dont know them I can’t be fair to this case
if you let me explaine more of this to you thank you very much.”
On Friday, January 17, 2020, the prosecution rested, and
the defense began calling witnesses. At the end of the day, after
excusing the jurors, the court said, “So, counsel, I have not dealt
with the note from the juror in seat 6 which expressed a language
issue, and it seems like you’re going to have enough alternates to
get through the length of the trial.” Defense counsel responded,
“Yes.” The court continued, “If you already know that you would
like to excuse him, we could do it now and maybe catch him
before he goes, or I could tell him first thing Tuesday[8] and draw
7Errors in spelling, punctuation, and grammar are as they
appear in the note. A copy of Juror No. 6’s note is attached as
appendix A, post, page 1.
8 Monday, January 20, 2020, was a court holiday.
7
randomly from the three. If you haven’t decided and want to tell
me on Tuesday your decision, that’s also fine.” Defense counsel
stated, “I can tell you now that I would rather he stay.” The
court asked, “So you don’t want him excused, even though he has
expressed what he expressed?” Defense counsel answered, “Yes,
your honor.”
The court told the prosecutor, “I won’t ask you your opinion
since I don’t plan to excuse him based on what he wrote. The
most I would do, if someone asked me, is to maybe question him,
but no one has asked for that. [¶] So we’ll leave the note as it
stands for now and trust that he does understand and that he
was motivated perhaps by a desire to go somewhere else.”
On the next court day, Tuesday, January 21, the defense
case continued. At the lunch break, the court told counsel, “I’ll
remind you that Juror No. 6 did write a note about language
understanding. No one’s asking to question him further, and I
don’t intend to unless either side or the other wants that issue
raised.”
Valadez testified on his own behalf. The defense also called
a number of family members and law enforcement officials to
testify. In addition, the defense called Dr. Jack Rothberg, a
medical doctor board-certified in psychiatry and neurology.
Dr. Rothberg also has a Ph.D. in psychoanalysis and is board-
certified in forensic psychiatry.
Dr. Rothberg told the jury that Valadez had taken
Depakote in the past, which was “used for mood stabilizing.”
Dr. Rothberg explained the “very complex interaction” between
methamphetamine and alcohol. He also explained the difference
between a blackout and unconsciousness. Dr. Rothberg said
Valadez had been taking amitriptyline, which was an
8
antidepressant with “a lot of side effects” at “a therapeutic level.”
The court permitted Valadez’s counsel to pose a hypothetical to
Dr. Rothberg, and explained to the jurors what a hypothetical
was. The court and defense counsel then discussed with
Dr. Rothberg what a “flattened affect” is.
After the parties rested, on the morning of Friday,
January 24, 2020, the court discussed jury instructions with
counsel. The prosecutor then said, “Your honor, the court had
received a note from Juror N[o.] 6 back on January 13, 2020. I
had not previously requested any follow-up with the juror. . . .
The reason in part was because it was so early on in the trial that
I was not sure if this juror was still trying to potentially get off.”
The court replied, “Yes, I remember him. Are you saying now
that you want to excuse him or you want him questioned or what
are you going to ask for?” The prosecutor answered, “Just the
latter, your honor. Since the entire evidence has been presented,
I just want the court to follow-up and make sure that he has
understood; that he does not feel that his proficiency in the
English language would inhibit his ability to partake as a juror.”
The court said, “All right. Mr. Rodriguez?” Defense
counsel responded, “I would object, your honor. He’s been here
throughout the entire time. And the court has not received any
additional notification from him despite or even though the court
has not solicited [sic]. [¶] So I believe at this point in time, once
he’s heard all the testimony and the evidence, I think it’s a bit too
late now to even attempt to remove him from the jury.”
The court replied, “Well, I’d say it’s never too late. But
what I will do is, at some point, perhaps after arguments have
been concluded, ask him if he still feels the same way he did
when he wrote the note. And if this record is read on appeal,
9
someone else can count how many times I asked you all about
this, and it was more than once.”
The court began reading the instructions to the jury, then
recessed for lunch. When counsel returned, the court asked, “Do
either of you have any thoughts about the appropriate time to
question Juror No. 6? It seems to me that we could question him
after arguments have been concluded and instructions have been
concluded. We could question him at a natural break point in
between arguments or during arguments.” The prosecutor said
she had no preference. The court asked defense counsel,
“Mr. Rodriguez, you have been consistently saying you don’t
think he should be questioned. But if he’s going to be questioned,
do you have any thoughts about when would be the best time?”
Counsel responded, “I think he should be questioned after
arguments.” The court replied, “All right. So after the
arguments are concluded . . . I will question him . . . and either he
will be seated—or go to deliberate with the other 11 or he will be
replaced.”
The court instructed the jury on first and second degree
murder, voluntary manslaughter, and involuntary manslaughter.
The court also instructed the jury on general and specific intent,
child abuse, criminal threats, prior domestic violence as evidence,
and voluntary intoxication, in addition to all the other standard
instructions.
The prosecutor presented her closing argument and defense
counsel began his, but did not complete it by the end of the court
day. The court excused the jurors for the weekend, asking Juror
No. 6 to remain.
The court read the juror’s note into the record, stating,
“I might change the wording a little bit so that it reads more
10
smoothly.” The court then said, “[S]ometimes your grammar is
just not precise. You said ‘confuse,’ not ‘confused’ with a d on the
end. I’m not saying that to criticize you, but I think it shows that
maybe you haven’t polished your English as well as you’d like,
but I haven’t polished mine as much as it needs either.”
The court continued, “So now you’ve heard the evidence.
You’ve heard the testimony of the defendant. You’ve heard the
various witnesses. And I don’t know if you feel you understood
most of it or not, or you still have the worry that there [are] some
words that you didn’t understand. What do you think?”
Juror No. 6 responded, “Yes. Especially the first-degree,
second-degree, and so many different options there.” The court
asked, “So the instructions that I read today, you found that a
little confusing? Also mentioned in some of the arguments.” The
juror answered, “Yes.” The court asked, “But that part? [¶] And
how about the testimony of the witnesses? Now, some of the
witnesses were laypeople, but others were experts. Did you feel
you understood the expert testimony, like the coroner, the
firearms expert, the doctor who was here yesterday who was
a psychiatrist? Did you understand those people?” Juror No. 6
replied, “No, not all really.”
The court said, “Okay. And not all. I would like your
feeling in your heart. Do you feel you missed enough that you’re
uncomfortable trying to make a just decision?” Juror No. 6
responded, “Honestly, I would say, yeah, I think that I would
follow somebody else’s opinion to just think about what is right,
what is wrong.” The court asked, “So to trust yourself and make
your decision on your own is going to be hard? That’s what you’re
telling me? And you might choose another juror just to agree
with that person or go along with them? Is that what you’re
11
saying?” Juror No. 6 replied, “That’s what I think could
happen.”9
The court asked Juror No. 6 to “step into the jury room for
just a moment.” The court then told counsel, “[T]here are some
words misspelled” and “[t]he grammar is not perfect,” but
“primary English speakers” make those mistakes too. “[O]f
greater concern,” however, was “[t]he comment that the juror
made that he might simply go along with someone else because
he’s not confident in his own perception of the evidence or the
instructions.” The court said, “It does concern me if he hasn’t
meaningfully received all of the testimony.”
The court asked the parties if they wanted to excuse Juror
No. 6. The prosecutor said she wanted the juror excused; defense
counsel stated, “I don’t want to excuse him.” Defense counsel
continued, “I don’t want to be blunt, but that happens with
everybody, I think, when they see the instructions, that they
claim that the law is so complicated that they may have to go
along with somebody else. [¶] Well, I believe that he speaks
enough—well enough to know what this case is about. This case
9 At that juncture, as closing arguments were still
underway, the court had not yet read the concluding
instructions—including CALCRIM No. 3550—to the jurors.
Defense counsel never asked the court to read Juror No. 6 that
instruction before proceeding, nor did he request that the judge
“admonish” the juror “that the law required him to reach his
own conclusions about the case”—an omission our dissenting
colleague deems significant. While it may have been helpful
for the court to read CALCRIM No. 3550 to Juror No. 6 as part
of the colloquy, the court’s failure to do so does not warrant
reversal of Valadez’s conviction in our view.
12
is not about patent law or copyright law. This is clear and
simple. Somebody got shot, and they’re going to have to make a
determination whether this man was unconscious or not. And I
don’t think that the language used by Dr. Rothberg was at all
complicated. That’s the only expert testimony that would impact
on somebody’s decision.”
The court replied, “Well, I agree that the analysis of
consciousness or blackout is very important in this case. And
understanding what Dr. Rothberg had to say would be important
to that.” Defense counsel said, “[T]he words that Dr. Rothberg
used, I don’t think he ever used anything that was complex.” The
court responded, “Well, he did talk about the effects of various
intoxicating substances and how they interact with one another.
And it may be that he kept it simple enough that this man would
understand it. And I would agree with you that I would expect a
jury, upon hearing the instructions that I read today, to say I got
it crystal clear, what is a first, what is a second, what is
voluntarily [sic], what is an involuntarily [sic], what charges
intoxication applies to, what is wilfullness in the context of
blackout, et cetera.”10
The court continued, “I would not expect that. But we are
now at the point where he has invested numerous days in this
trial. And so any motive to discount his English understanding
as a means of escaping lengthy jury duty has—it’s not removed,
but it’s substantially diminished. [¶] And now we are asking a
10 It appears the court meant to say it would not expect a
jury to find those instructions “crystal clear.” It’s also likely the
court used—or meant to use—the terms “voluntary” and
“involuntary,” referring to manslaughter.
13
man who is under oath and who I believe is someone of good
conscience to tell us what he thinks. And the notion that he
would sit in the jury room and pick somebody to follow and
essentially give that person two votes rather than one is of great
concern to me. [¶] And if it wasn’t my suggestion that started
that, it was the way he characterized it, that he might rely on
someone else. And I’m someone who has, I think, decent English
skills. My Spanish is pathetic, and I know that I would rely on a
good Spanish speaker in many situations to help me. [¶] And so
my concern is that this man, who is supposed to vote one vote
that shows his verdict in the case has already indicated, for
reasons that I think are understandable or forgivable, that he’s
likely to be voting along with and arguing [sic] along with some
other person who he thinks understands the evidence rather than
someone who persuasively argues the evidence that someone
actually understands it.”
The court concluded, “I’m going to find good cause to excuse
him.” The court summoned Juror No. 6 back to the courtroom
and discharged him from the jury, thanking him for his service
and telling him, “I don’t want you to be uncomfortable having to
decide something this important if you are not confident in your
own perception of the evidence.” On the next court day, the court
replaced Juror No. 6 with an alternate.
A. Applicable law and standard of review
Under section 1089, the court may discharge a juror and
replace him with an alternate “[if] at any time, whether before or
after the final submission of the case to the jury, [the] 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
requests a discharge and good cause appears therefor.” A good
14
cause removal has been found most commonly in situations
where a juror becomes physically or emotionally unable to
continue to serve due to illness, or other circumstances. (People
v. Cleveland (2001) 25 Cal.4th 466, 474.)
“ ‘Insufficient command of the English language to allow
full understanding of the words employed in instructions and full
participation in deliberations clearly . . . render[s] a juror “unable
to perform his duty” within the meaning of . . . section 1089.’ ”
(People v. Lomax (2010) 49 Cal.4th 530, 566; see Code Civ. Proc.,
§ 203, subd. (a)(6) [to serve as juror, a person must be “possessed
of sufficient knowledge of the English language”].) However,
mere “inarticulateness” in explaining one’s position or some
“language difficulties” does not constitute grounds for discharge.
(People v. Elam (2001) 91 Cal.App.4th 298, 317–318 (Elam).)
“The trial court’s decision whether or not to discharge a
juror under section 1089 is reviewed for abuse of discretion and
will be upheld if supported by substantial evidence; to warrant
discharge, the juror’s bias or other disability must appear in the
record as a demonstrable reality.” (People v. Holloway (2004)
33 Cal.4th 96, 124–125; People v. Lopez (2018) 5 Cal.5th 339,
365.) The demonstrable reality test “requires a ‘stronger
evidentiary showing than mere substantial evidence.’ ” (People v.
Wilson (2008) 44 Cal.4th 758, 821.) This “more stringent”
standard “entails a more comprehensive and less deferential
review” than a “substantial evidence” review. (People v. Barnwell
(2007) 41 Cal.4th 1038, 1052–1053.)
The heightened abuse of discretion standard applicable to
the discharge of a juror “ ‘more fully reflects an appellate court’s
obligation to protect a defendant’s fundamental rights to due
process and to a fair trial by an unbiased jury.’ ” (People v.
15
Armstrong (2016) 1 Cal.5th 432, 450.) A reviewing court “must
be confident that the trial court’s conclusion is manifestly
supported by evidence on which the court . . . relied.” (People v.
Barnwell, supra, 41 Cal.4th at p. 1053.) The “demonstrable
reality” standard “requires a showing that the court as trier of
fact did rely on evidence that, in light of the entire record,
supports its conclusion that bias [or other disability] was
established. It is important to make clear that a reviewing court
does not reweigh the evidence under either [the substantial
evidence or the demonstrable reality] test.” (Id. at pp. 1052–
1053.)11
People v. Compton (1971) 6 Cal.3d 55, 60 is the genesis
of the “demonstrable reality” test. In that case the trial court
removed an alternate juror before deliberations when it learned
the juror had a conversation about the case with a barber over a
weekend recess. The barber testified the juror had stated that
certain older women had been rejected as jurors “ ‘because they
would be hard to keep an open mind on a case such as this and
what the people that selected the jury didn’t know, that he felt
the same way’ ” and that “ ‘he didn’t like to be on a case like this
because it was hard to keep an open mind.’ ” (Id. at p. 59.) The
trial judge discharged the alternate “ ‘out of an abundance of
11 Our dissenting colleague states the trial court erred in
crediting “Juror No. 6’s statement that due to his misgivings
about his ability to comprehend English, he might adopt another
juror’s conclusion about ‘what is right, what is wrong.’ ” (Dis.
opn. post, at p. 4.) In our view, this is the sort of reweighing of
the evidence that Justice Corrigan “ma[d]e clear” reviewing
courts are not to do. (People v. Barnwell, supra, 41 Cal.4th at
pp. 1052–1053.)
16
caution and in fairness to the defendant.’ ” (Id. at p. 60.) The
court never queried the alternate about the equivocal remarks
nor were other jurors questioned; the trial court speculated that
the juror may have inadvertently communicated his view to the
other jurors. Our Supreme Court characterized the trial court’s
reasons as “bare speculation” (id. at p. 61) not satisfying the
“ ‘good cause’ ” standard of section 1089 (id. at p. 60).
Significantly, the court stated that a trial court has “at most a
limited discretion to determine that [the juror is unable to
perform] and that inability must appear in the record as a
demonstrable reality.” (Id. at p. 60.)
B. Analysis
In this case, Juror No. 6 repeatedly expressed his concerns
about understanding words in English. In the jury questionnaire
he stated he was “not as comfortable with . . . English as [he]
would like to be.” During voir dire he explained he sometimes
has “doubts” about what he hears in English. He then said he
doesn’t always feel confident that he can understand everything
he hears in English. He admitted that when “they speak too fast,
it’s when [he] get[s] [in] trouble.” The trial court followed up once
again to ascertain Juror No. 6’s meaning, and the juror stated,
“What I mean is, some words I don’t really understand. But I
understand 75 percent maybe.”
Neither attorney questioned Juror No. 6 about his
statements in voir dire or exercised a challenge for cause, and
the juror was sworn. Neither attorney suggested or intimated
that Juror No. 6 was being disingenuous or misrepresenting his
17
English comprehension to avoid jury service, and he did not
otherwise state he was unwilling to serve.12
At the beginning of trial, after the testimony of just
one witness, Juror No. 6 submitted a note—which contained
numerous grammatical and spelling errors—asking to speak to
the court about his English comprehension. At this early point in
the trial, Juror No. 6 had stated twice in writing and three times
in questioning that he was having trouble with comprehension.
We agree grammatical errors, by themselves, are not
good cause to discharge this juror or any juror. But the note
the juror submitted following the testimony of the first witness
can be fairly characterized only as a plaintive and anxious
communication from the juror himself that he was struggling to
understand everything. It is neither ambiguous nor an obvious
misrepresentation. Again, the juror had expressed repeatedly
that he was distressed about his ability to comprehend what was
being said. The trial court specifically found Juror No. 6 to be
sincere and acting in “good conscience.” No judge fulfilling an
obligation to ensure a fair trial to both sides could ignore this.
Moreover, due respect for citizens who respond to a
summons for jury service and take an oath to tell the truth is
12 We find little significance to the fact the defense attorney
opposed removing Juror No. 6 based on any perceived language
difficulties. We find it impossible to believe the defense attorney
did not appreciate that Juror No. 6 was expressing concern about
comprehension. Rather, we think it likely there were other
possible motivations for the defense strategy, about which
speculation is unwarranted. Moreover, it is of no moment, as the
trial court’s paramount responsibility is to provide both sides
with a fair trial, which means 12 competent jurors.
18
warranted. Someone who states unequivocally that he or she has
a question about comprehension is entitled to have that opinion
given some credence. After all, who would know better: the
juror, the trial judge, or a reviewing court? And if a judge or
reviewing court is to second guess a juror, or is required to
undertake an even more thorough interrogation, what does that
mean for someone who says their child has taken ill and needs
assistance; a parent whose childcare is unexpectedly unavailable;
a student who learns their continued absence from class will
impact their grades; or a person who says he or she
underestimated the severe financial impact jury service would
cause. (The hypothetical examples are endless.)
The trial court here held onto the note for more than a
week and raised the matter repeatedly with counsel. Eventually,
the prosecutor asked the court to follow up with Juror No. 6. But
defense counsel objected to even questioning the juror, and to
removal, arguing it was too late as the juror had heard all the
testimony and evidence. The court correctly responded that it’s
never too late and again questioned Juror No. 6 outside the
presence of the other jurors. Specifically, the court asked Juror
No. 6 if he had understood the expert testimony “like the coroner,
the firearms expert, the doctor who was here yesterday who was
a psychiatrist?” and Juror No. 6’s response was “[n]o, not all
really.” Dr. Rothberg’s expert testimony was the linchpin of the
defense case. Valadez had no other defense, as his family
witnessed his execution-style shooting of his wife.
The court then asked if Juror No. 6 felt he “missed enough
that [made him] uncomfortable trying to make a just decision”
and Juror No. 6 responded, “Honestly, I would say, yeah, I think
that I would follow somebody else’s opinion to just think about
19
what is right, what is wrong.” And, in response to a final
question from the court, Juror No. 6 admitted he would defer to
another juror “just to agree with that person or go along with
them.”
People v. Szymanski (2003) 109 Cal.App.4th 1126(Szymanski) is instructive on the issue of a trial court’s discretion
to remove a juror because of language difficulties. In that case,
the juror in voir dire informed the court that she had been in the
United States for nine years; she primarily spoke Chinese; and
she had difficulty understanding and speaking English. (Id. at
p. 1129.) Although she worked in the United States, she mostly
spoke Chinese at her job. (Id. at pp. 1131–1132.) The juror’s
responses to the court’s questions were “unintelligible” and
spoken in broken English. (Id. at p. 1131.) The juror also
admitted she did not understand several common English terms
and phrases, such as “ ‘law enforcement’ ” and “ ‘police
department.’ ” (Id. at p. 1132.) The court denied the challenges
for cause from both attorneys, finding the juror appeared to
understand the proceedings “pretty well” and noting that, if the
juror had difficulty understanding them, she could always ask for
explanations. (Id. at p. 1130.) The juror was sworn and served
on the jury. (Id. at p. 1128.)
The Court of Appeal reversed the judgment, concluding the
trial court erred in denying the challenges for cause. (Szymanski,
supra, 109 Cal.App.4th at pp. 1128–1133.) The court reasoned
that it was “hard to imagine what else [the juror] could have said
or done to convey that her insufficient understanding of the
English language was a reality.” (Id. at p. 1132.) Most
significantly, the Szymanski court recognized that a failure to
remove a juror who (in some manner) has manifested difficulty
20
in understanding the testimony would violate a defendant’s
constitutional due process and fair trial rights.
In contrast is Elam, supra, 91 Cal.App.4th 298. There, the
Court of Appeal concluded the trial court committed prejudicial
error by removing a juror after half a day of deliberations. (Id. at
p. 313.) The juror had “ ‘some’ difficulty with . . . English”—“ ‘a
little bit’ ”—and spoke with a “pronounced accent.” (Id. at p. 313;
see id. at p. 321, appen.) But the juror recently had received an
associate of arts degree in English at a local college and had
served in the United States Navy where he spoke English
“continuously.” (Id. at p. 313; see id. at pp. 321–322, appen.)
While the juror’s parents spoke Spanish, and English was not his
first language, he’d been born in the United States and grew up
speaking English. (Id. at p. 313; see id. at p. 322, appen.) The
juror had lived in the Philippines, Guam, and Italy. (Id. at
p. 322, appen.) He told the court he had “no problem
understanding the testimony” and he understood the instructions
as well; he said he felt “able to participate in [the] discussions.”
(Id. at pp. 313–314; see id. at pp. 321–323, appen.)
The appellate court concluded the record did not establish
as a demonstrable reality that language difficulties—“as opposed
to his failure to deliberate well, his reliance upon faulty logic or
analysis, and his disagreements over the law and the evidence”—
accounted for the difficulty in deliberations the other jurors
reported. (Elam, supra, 91 Cal.App.4th at p. 318.)13
13 Most of the published cases, like Elam, involve the
removal of a juror during deliberations. Those cases are
especially fraught, and treacherous for trial judges, because of
the necessity of protecting the sanctity of jury deliberations. (See
21
As in Szymanski, here, it is unclear what more Juror
No. 6 could have said to communicate his concern about
comprehension. While the juror may have been underestimating
his English proficiency or simply lacked confidence or was
dissembling, a trial court is neither mind reader nor grammatical
linguist. Neither is it omniscient: no judge could possibly
know the degree to which Juror No. 6 was capable of English
comprehension, but the record is clear Juror No. 6 had serious
concerns about it.
It is suggested that the trial court’s inquiry should have
been more thorough, but such an inquiry is itself fraught with
danger. A trial court should generally avoid questioning a juror
during the trial about what aspects of the testimony he or she did
not understand. First, it would be almost impossible for a juror
(or any person) to recall every word that may have caused
confusion. This also makes the invitation to have the “readback”
of testimony that was not understood in the first place an illusory
fix. Additionally, it invites the court or counsel to explain the
meaning of a word or phrase (clear error) or opens the trial up to
a recall of witness by the attorneys. (See People v. Szymanski,
supra, 109 Cal.App.4th at p. 1130.) It also invites the court to
question the juror after each witness has testified to determine
what parts (if any) the juror did not understand. Whether this is
to be done in front of the other jurors is also problematic, because
it invites those other jurors to similarly express their views about
testimony they may have found confusing. Arguably this kind of
process would undermine a defendant’s fair trial and due process
People v. Cleveland, supra, 25 Cal.4th at p. 475 [“ ‘The secrecy of
jury deliberations should be closely guarded’ ”].)
22
rights because it allows a prosecutor to query the jury as the trial
proceeds about possible gaps in the prosecution’s case. Along the
same lines, confusion attributable by a juror to language
comprehension might in reality be simply a witness who was
unusually confusing in any language. When a juror on multiple
occasions has asserted (unequivocally) difficulty in understanding
and comprehending English, there are due process barriers in
conducting a more exhaustive interrogation, either during trial or
deliberations.
As noted in Szymanski, supra, 109 Cal.App.4th at
page 1132, it is axiomatic that jurors must fully understand
spoken and written English. “[A]ppellate courts recognize that a
trial judge who observes and speaks with a prospective juror and
hears that person’s responses (noting, among other things, the
person’s tone of voice, apparent level of confidence, and
demeanor), gleans valuable information that simply does not
appear on the record.” (People v. Stewart (2004) 33 Cal.4th 425,
451; People v. Avila (2006) 38 Cal.4th 491, 529; cf. People v.
Holloway, supra, 33 Cal.4th at p. 125 [no abuse of discretion in
not discharging juror; noting trial court’s “opportunity to observe
the juror’s demeanor”].)
The trial court’s questioning of Juror No. 6 reflects it
understood its fundamental obligation to protect the due process
and fair trial rights of Valadez as well as the People. It was
critical to Valadez’s defense that jurors be able to understand
Dr. Rothberg’s expert testimony, as well as the court’s
instructions on the different types of homicide, direct and
circumstantial evidence, general and specific intent, and
unconsciousness. The court’s statement of reasons for excusing
Juror No. 6 shows it acted as the trier of fact, and, in light of
23
the entire record, its removal of the juror was not an abuse of
discretion. The record demonstrates good cause to discharge
Juror No. 6 as a demonstrable reality.
II. Expert opinion
A. Relevant background
As we have said, Valadez called Dr. Rothberg to offer
an opinion as to his mental state at the time of the offenses.
The defense theory was Valadez was unconscious at the time.
To lay the foundation for the expert’s opinion, Valadez elicited
testimony that the doctor had obtained information from a
variety of sources about Valadez’s family history and dynamics;
his prior psychiatric and mental health issues; and his drug
and alcohol history. Dr. Rothberg interviewed Valadez at the
jail and obtained an understanding of his recollection of the
circumstances surrounding the incident. He also reviewed
medical records, police reports, and court documents, including
the preliminary hearing transcript and Valadez’s criminal
history.
Dr. Rothberg elaborated for the jury on all of these topics
and their significance to his testimony. He testified he was
aware Valadez suffered from a history of depression and had
been prescribed an antidepressant (Depakote) as a mood
stabilizer; had a prior “psychiatric commitment”; had a history of
alcohol and drug abuse; had consumed methamphetamine,
amitriptyline, and a fifth of vodka on the date of the offense; that
a person consuming such substances could experience a
“blackout” or unconscious state; that Valadez had a history of
having blackouts; he had been described on the date of the
shooting with having a “flat affect,” “a blank stare,” a “drugged
look,” “eyes rolling back,” and appeared “dizzy” and
24
“emotionless”; and could not remember the incident the next
morning when questioned.
Defense counsel asked Dr. Rothberg, without objection,
“Assume that Mr. Valadez had consumed about $10 worth of
methamphetamine that night or . . . afternoon [and] consumed
about a fifth of . . . vodka, would it be reasonably possible for him
to have fallen into a state of unconsciousness as you described?”
Dr. Rothberg responded, “It could.” Dr. Rothberg opined that a
person in a state of unconsciousness caused by alcohol and drugs
could shoot a gun, reach for a magazine of bullets, and not be able
to remember any of these acts.
Defense counsel asked the court for permission to ask
the expert whether Valadez “was unconscious at [the time of
the shooting].” The court advised counsel, “[Y]ou can lay out
the factors and say, would a person fitting those factors be
unconscious? But you should not ask him whether it’s his opinion
that [Valadez] was unconscious; his opinion whether [Valadez]
was depressed; [or] his opinion about the facts of the killing.
He can give the jury the tools from which they can reach the
conclusion.”
The trial court stated the proposed question called for an
impermissible expert opinion because “it’s an ultimate question
and invades the province of the jury to have a doctor telling them
that someone was unconscious.”
Defense counsel then asked the doctor, “So we assume
these factors: assume a hypothetical person who has consumed
a substantial amount of alcohol, consumes $10 worth of
methamphetamine, is dizzy while walking into his residence,
is noticed to have . . . a flat affect, blank stare, emotionless, rolled
eyes, looked drugged, doesn’t look right. The person participates
25
in a very violent event where his wife is killed in the presence
of his children with a gun. And then that person claims not to
have remembered the incident the following morning when he’s
interviewed by the detectives. [¶] Do you have an opinion as to
whether or not that person could be unconscious?”
The doctor answered that “[h]e could be” based upon
“his presentation, the consumption of alcohol, the lack of any
recollection for the incident, [and] the lack of emotion. All of
those factors certainly suggest that as a possibility.” When
pressed further by the defense attorney, the expert stated, “It’s a
reasonable possibility.”
B. Applicable law
Section 28 prohibits “[e]vidence of mental disease, mental
defect, or mental disorder . . . to show or negate the capacity to
form any mental state, including, but not limited to, purpose,
intent, knowledge, premeditation, deliberation, or malice
aforethought, with which the accused committed the act.” Such
evidence “is admissible solely on the issue of whether or not the
accused actually formed a required specific intent, premeditated,
deliberated or harbored malice aforethought, when a specific
intent crime is charged.” (§ 28.)
Section 29 prohibits any expert testifying about a
defendant’s mental illness, mental disorder, or mental defect
from discussing “whether the defendant had or did not have the
required mental states . . . for the crimes charged.”
In People v. Herrera (2016) 247 Cal.App.4th 467, 476, the
Court of Appeal stated sections 28 and 29 “do not prevent the
defendant from presenting expert testimony about any
psychiatric or psychological diagnosis or mental condition he may
have, or how that diagnosis or condition affected him at the time
26
of the offense, as long as the expert does not cross the line and
state an opinion that the defendant did or did not have the
intent, or malice aforethought, or any other legal mental state
required for conviction of the specific intent crime with which he
is charged.”
“Expert opinion on whether a defendant had the capacity
to form a mental state that is an element of a charged offense
or actually did form such intent is not admissible at . . . trial.
[Citation.] Sections 28 and 29 permit introduction of evidence
of mental illness when relevant to whether a defendant actually
formed a mental state that is an element of a charged offense,
but do not permit an expert to offer an opinion on whether a
defendant had the mental capacity to form a specific mental state
or whether the defendant actually harbored such a mental state.
An expert’s opinion that a form of mental illness can lead to
impulsive behavior is relevant to the existence vel non [(or not)]
of the mental states of premeditation and deliberation regardless
of whether the expert believed appellant actually harbored those
mental states at the time of the killing.” (People v. Coddington
(2000) 23 Cal.4th 529, 582–583, fns. omitted.)
A criminal defendant’s federal constitutional right to
present a defense is not violated by the “exclusion of expert
testimony on the ultimate question of fact as to whether
appellant did form those mental states.” (People v. Coddington,
supra, 23 Cal.4th at p. 583.) The Coddington court stated,
“Sections 28 and 29 do not preclude offering as a defense the
absence of a mental state that is an element of a charged offense
or presenting evidence in support of that defense. They preclude
only expert opinion that the element was not present.” (Ibid.)
27
C. Analysis
Here, defense counsel sought an opinion from the expert
that Valadez was actually unconscious at the time of the
shooting, and therefore unable to form the mental state for
murder. The trial court correctly ruled this kind of testimony
was inadmissible. Contrary to Valadez’s argument, the trial
court did not preclude him “from eliciting [Dr. Rothberg’s] opinion
about [his] mental condition at the time of the . . . shooting.”
Indeed, Dr. Rothberg testified extensively that Valadez suffered
from depression and psychiatric issues; had been prescribed
medications; had a history of alcohol and drug abuse; had
consumed methamphetamine, amitriptyline, and alcohol on the
date of the offense; and that a person consuming such substances
could experience a “blackout” or unconscious state.
Finally, Dr. Rothberg was permitted to answer a series
of hypothetical questions containing these facts in offering an
opinion that such a person, who committed the acts of violence
alleged in this case could be unconscious. Dr. Rothberg then
clarified that, given the facts presented, unconsciousness is a
reasonable possibility and that he “can’t say anything more than
that in terms of certainty.”
People v. Cortes (2011) 192 Cal.App.4th 873, cited by
Valadez, is factually distinguishable. There, the trial court did
not allow the expert to testify about a defendant’s diagnoses of
mental health and psychiatric problems, and how they related to
the defendant’s possible mental condition on the date in question.
Valadez’s reliance on People v. Herrera, supra,
247 Cal.App.4th 467 is also misplaced. In Herrera, at pages 474
to 475, the trial court refused to permit the expert to testify about
“anything related to mental state at the time of . . . the offense.”
28
Here, the trial court allowed the defense to ask a multitude of
questions regarding Valadez’s physical appearance and mental
state, including the possible effect of alcohol and drug use on
someone with Valadez’s existing psychiatric issues. The jury was
invited to conclude that, in light of all the circumstances, Valadez
was in a blackout or unconscious state. No fact or circumstance
relevant to this question was withheld from the doctor in offering
his opinion or withheld from the jury. The only question
Dr. Rothberg was not permitted to answer was whether Valadez
was actually unconscious—a question that is properly left to the
jury to decide.
Moreover, even Dr. Rothberg seemed to understand the
limitation on anyone’s capacity to know at some precise time
whether another person is in a blackout or unconscious state.
As noted, defense counsel pressed the doctor on whether
there were “different degrees of possibility” on the question
of unconsciousness, to which the doctor replied, “No it’s a
reasonable possibility. I can’t say anything more than that
in terms of certainty.” There was no error.
III. Prior bad acts
A. Relevant background
Prior to jury selection the trial court discussed with the
attorneys the admissibility of two prior acts of domestic violence
perpetrated by Valadez against the victim Sandra. Valadez did
not object to the admission of an approximately year-old choking
incident witnessed by the couple’s then five-year-old daughter.
The court also stated it was inclined to admit an incident from
2003 in which Valadez gave Sandra a black eye. At trial several
29
witnesses testified to a consistent level of marital discord,
primarily marked by argument and separations.
Following the daughter’s testimony at trial regarding the
choking incident, the court heard additional argument from both
sides on the admissibility of the 2003 incident. The court then
stated it would allow the challenged evidence: “I know we talked
about this some. . . . [Evidence Code section] 1109 would
certainly cover it, assuming that I don’t find that it’s so old that,
in the interest of justice and [Evidence Code section] 352, I
should exclude it.” “But it’s my view that the tensions and
continuing unresolved problems in the relationship or recurring
problems in the relationship all go to a potential motive for the
killing. So if someone beats his spouse because he’s frustrated
with her and later kills the same spouse, it’s a reasonable
argument that the frustration and unresolved issues in the
relationship led to the killing. [¶] And obviously, the gap of time
between one event and the other makes the argument harder for
the People to lean on, but it doesn’t mean that the argument isn’t
there.”
B. Applicable law and standard of review
Evidence Code section 1109, subdivision (a)(1) provides
that, where a defendant “is accused of an offense involving
domestic violence, evidence of the defendant’s commission of
other domestic violence is not made inadmissible by Section 1101
if the evidence is not inadmissible pursuant to Section 352.”
However, “[e]vidence of acts occurring more than 10 years
before the charged offense is inadmissible . . . unless the court
determines that the admission of this evidence is in the interest
of justice.” (Evid. Code, § 1109, subd. (e).) Valadez claims the
30
introduction of the 12-year-old incident deprived him of due
process and, in any event, was an abuse of discretion.
The explicit reference to Evidence Code section 352
directs a court to admit a prior act only if its probative value
is “ ‘substantially outweighed’ ” by its prejudicial impact. We
review a challenge to the admission of such evidence under
the abuse of discretion standard. (People v. Branch (2001)
91 Cal.App.4th 274, 281–282; People v. Johnson (2010)
185 Cal.App.4th 520, 531.)
The principal factor affecting the probative value of an
uncharged act is its similarity to the charged offense. Evidence
Code section 1109 was intended to make admissible a prior
incident similar in character to the charged domestic violence
crime, and which was committed against the victim of the
charged crime or another similarly situated person.
C. Analysis
In this case the probative value was obvious. The prior acts
of domestic violence occurred in 2003 but there had been another
act of violence in 2014. Both incidents involved the same victim,
and both took place in front of one or more family members.
There had been ongoing and consistent discord between Valadez
and Sandra, and identity was not an issue.
The evidence that Valadez killed Sandra was
overwhelming. There were numerous witnesses who observed
the commission of the crime. At trial Valadez argued he suffered
from psychological and substance abuse issues—that he was in
an unconscious state and therefore could not form the requisite
intent to kill. In this circumstance, prior acts of violence against
the same victim and a pattern of marital discord are extremely
probative on the issue of Valadez’s mental state in shooting his
31
wife. The propensity evidence tends to undermine the notion
that Valadez’s thought processes were aberrational and
attributable to transitory circumstances of drugs and mental
incapacity. Instead, the evidence suggests the more prosaic
psychological states commonly associated with anger
management in volatile domestic relations.
We also conclude the interests of justice supported the
admission of the 12-year-old prior incident. The jury could better
evaluate Valadez’s claim of mental incapacity in the context of
a long and discordant relationship with the victim. Moreover,
the prior act was less inflammatory than the charged offense, and
it was easily and expeditiously proved, eliminating any possible
confusion and undue consumption of time. (See People v. Ewoldt
(1994) 7 Cal.4th 380, 405; People v. Poplar (1999) 70 Cal.App.4th
1129, 1139.)
Additionally, the defense presented an expert witness,
Dr. Rothberg, who opined that Valadez may not have been able
to form the mental state necessary for first or second degree
murder, due to intoxicating substances. Defense counsel asked
the doctor at the outset of direct examination, “Did you review
the fact that there was a history of domestic violence between the
two of them?” It was necessary for the defense to elicit this
testimony because Valadez’s reliance on mental incapacity would
have been properly impeached on cross-examination by the
history of domestic violence. Thus, Valadez could exclude the
prior acts only by abandoning the mental state defense (which
was the only plausible theory, given the overwhelming evidence
of the perpetrator’s identity). We find no error in the admission
of the 2003 incident.
32
Finally, even assuming error, we find it harmless under
even the most rigorous standard of prejudice. (Chapman v.
California (1967) 386 U.S. 18, 24.)
IV. Lesser included instruction on felony child abuse
As noted, the jury found Valadez guilty of felony child
abuse (§ 273a, subd. (a)). He argues the trial court erred and
violated his constitutional right to due process and a fair trial
by failing to instruct the jury, sua sponte, on the lesser included
offense of misdemeanor child abuse (§ 273a, subd. (b)).
The People contend there was no sua sponte duty to
instruct the jury on the lesser, and, even assuming error, Valadez
cannot establish prejudice under People v. Watson (1956)
46 Cal.2d 818. On the facts of this case, we find no error.
Section 273a, subdivision (a), defining felony child abuse,
provides in part: “Any person who, under circumstances or
conditions likely to produce great bodily harm or death, willfully
causes or permits any child to suffer, or inflicts thereon
unjustifiable physical pain or mental suffering, or having the care
or custody of any child, willfully causes or permits the person or
health of that child to be injured, or willfully causes or permits
that child to be placed in a situation where his or her person or
health is endangered, shall be punished by imprisonment.”
Section 273a, subdivision (b), defining misdemeanor child
abuse, provides in relevant part: “Any person who, under
circumstances or conditions other than those likely to produce
great bodily harm or death, willfully causes or permits any child
to suffer, . . . or willfully causes or permits that child to be placed
in a situation where his or her person or health may be
endangered, is guilty of a misdemeanor.”
33
The primary difference between felony and misdemeanor
child abuse is that the felony offense requires that the proscribed
conduct occur under conditions likely to produce great bodily
injury. (People v. Valdez (2002) 27 Cal.4th 778, 783–784, fn. 4.)
Misdemeanor child abuse is a necessarily lesser included
offense of felony child abuse. (People v. Moussabeck (2007)
157 Cal.App.4th 975, 980; People v. Lofink (1988) 206 Cal.App.3d
161, 168–169.)
“A trial court has a sua sponte duty to ‘instruct on a lesser
offense necessarily included in the charged offense if there is
substantial evidence the defendant is guilty only of the lesser.
[Citation.] Substantial evidence in this context is evidence from
which a reasonable jury could conclude that the defendant
committed the lesser, but not the greater, offense. [Citation.]
‘The rule’s purpose is . . . to assure, in the interest of justice, the
most accurate possible verdict encompassed by the charge and
supported by the evidence.’ ” (People v. Breverman (1998)
19 Cal.4th 142, 161.) A trial court must instruct on a lesser
included offense only when there is substantial evidence: (1) that
an element of the charged offense is missing and (2) the accused
is guilty only of the lesser offense.
In this case, the evidence showed that Valadez shot Sandra
twice in the head while she was holding 11-month-old N.V. in her
arms. Valadez argues there was “no evidence compell[ing] the
conclusion that the shooting was likely to produce great bodily
harm or death to N.V. rather than be merely potentially
dangerous.” We disagree.
Valadez is conflating the nature of the force used with
the risk of harm. There is no doubt that a gun fired at a person
involves a level of force that creates a risk of great bodily harm
34
or death. An evaluation of whether the risk to a child held by
that person creates circumstances or conditions likely to produce
great bodily injury necessarily requires an assessment of the
facts surrounding the shooting. In this case, the evidence showed
that a highly intoxicated Valadez fired two shots into the head
of Sandra, causing her death. The evidence further showed
that Sandra was holding 11-month-old N.V. in her arms. The
extremely close proximity of N.V. to Sandra clearly involves
circumstances and conditions likely to produce great bodily harm.
The risk of great bodily harm could result from a misdirected
bullet or if N.V. was dropped or fallen upon. In sum, given the
nature of the force used and the uncontroverted facts of the
shooting, there is no substantial evidence that Valadez was
guilty of the lesser offense of misdemeanor child abuse.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
HILL, J.*
I concur:
EGERTON, J.
* Judge of the Superior Court of Santa Barbara County,
assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
35
LAVIN, J., Dissenting:
“Removing a juror is, of course, a serious matter,
implicating the constitutional protections defendant invokes.
While a trial court has broad discretion to remove a juror for
cause, it should exercise that discretion with great care. [¶] … [¶]
To dispel any lingering uncertainty, [the California Supreme
Court] explicitly [held] that the more stringent demonstrable
reality standard is to be applied in review of juror removal cases.
That heightened standard more fully reflects an appellate court’s
obligation to protect a defendant’s fundamental rights to due
process and to a fair trial by an unbiased jury.” (People v.
Barnwell (2007) 41 Cal.4th 1038, 1052.) “The demonstrable
reality test entails a more comprehensive and less deferential
review. It requires a showing that the court as trier of
fact did rely on evidence that, in light of the entire record,
supports its conclusion that bias was established.” (Id. at pp.
1052–1053.)
As a preliminary matter, I agree with the majority that
jurors must be able to understand the evidence and communicate
during deliberations. (See Code Civ. Proc., § 203, subd. (a)(6).)
But jurors necessarily come from all walks of life and have varied
backgrounds. They need not possess an extraordinary vocabulary
or an understanding of every nuance of the English language.
(See People v. Elam (2001) 91 Cal.App.4th 298, 316–317 (Elam).)
And as with acts of misconduct, a language deficiency requiring
discharge of a juror must appear in the record as a demonstrable
reality. (People v. Szymanski (2003) 109 Cal.App.4th 1126, 1131
(Szymanski).) I also note that “[r]estricting jury service to only
special groups or excluding identifiable segments playing major
roles in the community”—e.g., non-native English speakers—
“cannot be squared with the constitutional concept of jury trial.”
(Taylor v. Louisiana (1975) 419 U.S. 522, 530.) “[T]he
representative cross-section rule also serves other essential
functions in our society, such as legitimating the judgments of
the courts, promoting citizen participation in government, and
preventing further stigmatizing of minority groups.” (People v.
Wheeler (1978) 22 Cal.3d 258, 267, fn. 6.)
In reviewing the lower court’s removal of Juror No. 6, the
majority purports to apply the demonstrable reality standard. In
its analysis of this issue, however, the majority applies a
standard closer to the substantial evidence test, citing evidence
that could support the court’s decision, minimizing the parts of
the record that undercut the court’s reasoning, and liberally
drawing on inferences to explain the court’s failure to solve the
core issue at the heart of this appeal: Whether Juror No. 6’s
purported lack of competency to understand English was in fact a
reality. That issue was never resolved by proof sufficient to give
us confidence that Juror No. 6 was properly discharged. (See
People v. Compton (1971) 6 Cal.3d 55, 60 (Compton) [the facts
must show “an inability to perform the functions of a juror”];
People v. Armstrong (2016) 1 Cal.5th 432, 451 (Armstrong)
[concerns about sitting juror’s lack of competency must be
“manifestly supported by evidence” in the record before the court
may remove the juror].)
In fact, the record indicates Juror No. 6 was proficient in
English despite his lack of confidence in his ability to
comprehend the language. For instance, Juror No. 6 had lived in
the United States for a substantial amount of time—40 years—
and he regularly communicated in English at his job. In addition,
all of Juror No. 6’s responses to the court’s questions were
2
articulate and precise, and some of them were complex, spanning
several lines and containing proper transitional phrases.
Importantly, nothing in the record suggests Juror No. 6 didn’t
understand any of the court’s questions, including those in the
written questionnaire Juror No. 6 filled out during voir dire.
Further, although Juror No. 6 claimed he didn’t
understand some of the testimony he heard at trial, he never
identified any specific phrases or terms that he couldn’t
understand, and the court never asked him to identify which
parts of the testimony he didn’t comprehend. (See Szymanski,
supra, 109 Cal.App.4th at p. 1130 [fact that juror identified
common English phrases that she did not understand supported
the court’s decision to discharge the juror].) And while Juror No.
6’s note to the court contained errors in spelling, grammar, and
punctuation, it nevertheless communicated the juror’s concerns
in a clear and logical manner. Notably, unlike the majority, the
lower court gave little weight to the note, remarking that primary
English speakers often make the same mistakes when they write.
Finally, unlike in Szymanski, where both parties challenged the
juror for cause, defendant opposed removing Juror No. 6 based on
any perceived language difficulties. (Id. at p. 1132 [fact that both
parties challenged juror for cause supports conclusion that the
juror lacked sufficient competency in the English language to
serve on jury].)
That Juror No. 6 expressed confusion about understanding
the distinction between first and second degree murder after
hearing the court’s oral instructions does not establish that he
lacked a sufficient command of the English language to serve as a
juror. At the time the court removed Juror No. 6, it had only read
the instructions aloud to the jury. As defense counsel and the
3
court pointed out, it is common for laypersons to find jury
instructions confusing the first time they encounter them,
especially if they’ve only heard the instructions read aloud.
Indeed, before it began instructing the jury after the parties
rested, the court advised the jurors that they didn’t “need to try
to memorize these instructions now or the elements of anything”
and that they should “relax” and “[l]isten to the sense or general
feeling you get from the instructions and trust the fact that [the
written instructions] will be available to you.” But the court
removed Juror No. 6 before deliberations began, depriving him of
the opportunity to review the instructions in writing and discuss
them with his fellow jurors. (See Elam, supra, 91 Cal.App.4th at
p. 316 [it is improper to remove a juror for perceived language
difficulties if, “with repeated explanations and discussions,” the
juror ultimately “could comprehend matters”].)
Similarly, Juror No. 6’s statement that due to his
misgivings about his ability to comprehend English he might
adopt another juror’s conclusion about “what is right, what is
wrong” does not support his removal. At the time the court
removed Juror No. 6, it had yet to instruct the jury with
CALCRIM No. 3550—which told the jury that in attempting to
reach a unanimous verdict, each juror “must decide the case for
[himself or herself], but only after you have discussed the
evidence with the other jurors”—and it never admonished Juror
No. 6 that the law required him to reach his own conclusions
about the case. Moreover, as I noted, because the court removed
him before deliberations, Juror No. 6 never had the opportunity
to review the written instructions, ask for readback of any
testimony he didn’t understand, or discuss the case with the
other jurors. It is entirely possible on this record that, after
4
having had the opportunity to participate in deliberations, Juror
No. 6’s doubts about his ability to reach his own conclusions
about the case would not have manifested themselves.
Viewing the whole record, I am not confident that Juror No.
6 lacked sufficient proficiency in English to fully understand the
evidence and instructions. Without the court taking further steps
to ascertain the extent of Juror No. 6’s ability to understand and
communicate in English—such as by asking specific questions to
probe the extent of the juror’s English comprehension, or
allowing the juror to review the instructions in written form or
allowing him the opportunity to ask for readback of testimony—
his removal was premature because the record does not establish
as a demonstrable reality that Juror No. 6 in fact lacked the
English language skills necessary to fulfill his duties as a juror.
(See Elam, supra, 91 Cal.App.4th at p. 318.) Put differently, the
court’s efforts to ascertain whether Juror No. 6 understood the
proceedings and testimony were minimal, and the record
developed by the court’s inquiry does not manifestly support its
decision to discharge the juror at that point in the trial. And a
mere possibility of a language deficiency does not justify the
removal of a sitting juror under the heightened “demonstrable
reality” standard. (See Compton, supra, 6 Cal.3d at p. 60 [any
ambiguity in the juror’s competency to serve on the jury must be
resolved by proof]; People v. Lucas (1995) 12 Cal.4th 415, 489 [in
deciding whether to remove a juror, the court cannot presume the
worst about the juror’s competency].)
Although I am sympathetic to the quandary facing the
court in this case, and appreciate the gravity of defendant’s
crimes, the record simply does not support, as a demonstrable
reality, a conclusion that Juror No. 6 lacked sufficient proficiency
5
in English to understand the evidence and the instructions. I
would therefore reverse the judgment and remand the matter for
retrial. (See Armstrong, supra, 1 Cal.5th at p. 454.)
LAVIN, Acting P. J.
6