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The People v. Robert Hon

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


January 5, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ROBERT HON, DEFENDANT AND APPELLANT.

(Super. Ct. No. 03F00966)

The opinion of the court was delivered by: Robie ,j.

P. v. Hon

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury found defendant Robert Hon guilty of second degree murder, and the trial court sentenced him to 15 years to life in state prison. Defendant appeals, contending the trial court committed reversible error when it failed to conduct an appropriate inquiry of the other jurors after one of the jurors asked to be excused from the jury. We will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND*fn1

Police searched for defendant after receiving a 911 call regarding his possible involvement in a murder. They found defendant's van and the body of a naked woman inside. After several more hours of searching, they found defendant hiding underneath a truck near the van.

Defendant was charged with first degree murder. He was tried in January 2005. At the conclusion of that trial, the jury found him not guilty of first degree murder, but could not reach a verdict on the lesser included charge of second degree murder, causing the court to declare a mistrial on that offense.

A second jury trial commenced in January 2009 on the charge of second degree murder. At the conclusion of the evidentiary phase, the case was submitted to the jury for deliberation.

Following a day and one-half of jury deliberations, the court received a note from Juror No. 11 which read as follows: "I would like to be excused. I am experiencing a high level of stress. I feel I am being intentionally targeted and interrogated. I thought I would try again today, however nothing has changed w/ certain peoples [sic] attitudes & behaviors. Many walked in w/ a verdict right away and are annoyed and agitated w/ any different point of view."

The court notified counsel and the following discussion took place:

"THE COURT: Counsel, we just received a note from juror number 11 indicating that she wants to be excused from the jury. That she's experiencing a high level of stress, and the court's minutes will reflect exactly what the juror has indicated as to the stress level. [¶] I've indicated to counsel in chambers that it's the Court's intention to call in juror number 11 in an effort to determine if she can continue to deliberate or if the stress is such that it's making her physically ill and she cannot -- obviously we would all agree that jurors sign up for a certain amount of stress, but when it begins to affect their health, that's asking too much. So depending on what juror number 11 says, I may or may not wind up questioning the foreperson, but I will give Counsel an opportunity at sidebar after I question juror number 11 and before I'm done with her in the courtroom to indicate to the Court there are additional areas you wanted me to inquire as to. [¶] Obviously I'm going to be extremely cautious. I don't want to get into the jury deliberations and what's being said. I'm more concerned about her state of her health and whether or not she can continue to deliberate in the case."

(Juror number 11 enters the courtroom.)

"BY THE COURT: Good afternoon . . . . Go ahead and take your seat in the jury box.

"[JUROR NO. 11]: Oh, boy.

"[THE COURT]: . . . I received a note from you indicating that you wished to be excused, that you're experiencing a high level of stress.

"[JUROR NO. 11]: Mm-hm.

"[THE COURT]: I just want to indicate to you that I just want you to be very careful in answering my questions. Please do not volunteer any additional information because I do not want to trespass on the jury's deliberation process. When you indicate that you'd like to be excused because you're experiencing a high level of stress, I think both attorneys would acknowledge that this -- it's a difficult case, and it was stressful to sit through it and we understand that. But what I don't want to have happen to you is if you're so stressed you're getting sick. [¶] And so when you're saying you're experiencing a high level of stress, is it affecting you physically?

[JUROR NO. 11]: Yeah. Last night I was very concerned, and I thought I'll give it another try, but, you know, it hasn't been easy.

"[THE COURT]: And I understand that you don't sign up to get physically ill sitting on a jury with stress.

"[JUROR NO. 11]: And I didn't sit through this to quit.

"[THE COURT]: And I completely understand that. Do you think -- tomorrow we're not going to be in session, so that the deliberations would, you know, again occur on Friday. Do you --are you having trouble sleeping at night? Is it affecting your sleep?

"[JUROR NO. 11]: Yeah. A lot of stuff.

"[THE COURT]: Do you feel that it would affect your health if you continue to stay on this jury and deliberate?

"[JUROR NO. 11]: I don't know how much a person -- you know what I mean? I don't know. This was hard for me to even come forward because it's been interesting needless to say as what I kind of told you on the paper.

"[THE COURT]: Right. Do you feel that you're in a situation right now with the amount of stress that you're under that you feel that your health is going to be compromised or do you feel like this is something that's going to affect you negatively? I mean the last thing I want to do is have you, you know, suffer blood pressure issues or lack of sleep.

"[JUROR NO. 11]: Which I have already blood pressure issues.

"[THE COURT]: Right. And I can identify with that. I understand that issue. Um, do you feel like now just kind of your own physical sense that this is something you believe is going to negatively impact your health? Is it negatively impacting your health?

"[JUROR NO. 11]: I felt -- honestly I thought I was having a heart attack last night. I don't know what a heart attack feels like, but I was having -- and I thought, you know, let's try to calm down and try it again today. But, um, I don't know how much I can say about what's happening, but I think you might have an indication what I put on the paper.

"[THE COURT]: No. You wrote exactly that you feel like you're being intentionally targeted and interrogated, and I understand that, you know, being among a group of people, people are giving and taking and --

"[JUROR NO. 11]: Well, more giving.

"[THE COURT]: Okay. And more giving. That's what I don't want to get into the nature of the deliberations. I really do not.

"[JUROR NO. 11]: Okay. I'll try not to.

"[THE COURT]: I'm more concerned about your ability to continue on if you feel physically you can. If you physically believe you cannot, you need to let me know. You didn't sign up to have a heart attack or have a stroke. That's the last thing that, you know, we give you $15 a day and that's about all we give you here. [¶] We don't give you counseling services and blood pressure clinics, and we don't do that for you. And I know that not only the Court and Counsel, you know, don't want -- we don't want to see your health negatively impacted by what is a stressful situation. So you just need to be honest with me and let me know. If you feel that you can continue on with deliberations, fine. If you feel health wise that you can't do it, I can appreciate that.

"[JUROR NO. 11]: I've been through a lot of stress in my life and I don't quit.

"[THE COURT]: Okay.

"[JUROR NO. 11]: So to request this, it means a lot. That's all I can offer.

"[THE COURT]: I understand. So you're the only one [who] can tell me. Say, Judge, I honestly think I cannot continue on because of the stress and the chest pains and that concerns me honestly.

[JUROR NO. 11]: I was having like racing, racing, flipping, flipping then I felt like squeezing. I don't know. I just don't know. But -- 'cause I don't know. I don't know. That's what I request.

"[DEFENSE COUNSEL]: Can we approach?

"THE COURT: Yes."

(Discussion held at the bench.)

"[THE COURT]: All right, . . . only you know how you feel. And I understand that in jury deliberations they can be heated. There can be impassioned views. People can have strong feelings. Um, that's a part of the jury deliberation process. It really is. What is not part of the jury deliberation process is a person getting sick over it and feeling like they're [a] quitter. And you should not feel like you're a quitter if your health is being impacted. [¶] And so tomorrow we're going to have the day off. You would have to come back on Friday at 9:00 a.m. to continue the deliberations. Um, I'm giving you the opportunity right now to let me know if you feel that's something you can continue with. If it honestly isn't, there's nobody in this courtroom [who] thinks you're a quitter. Okay?

"[JUROR NO. 11]: I'd like to ask a question, but I don't think it would give my opinion if I ask the question.

"[THE COURT]: Okay.

"[JUROR NO. 11]: So I should just continue to hold my view no matter what?

"[THE COURT]: I'm not tell you -- I'm not telling you what --

"[JUROR NO. 11]: That's what I was asking.

"[THE COURT]: -- what to do. You know your obligation as a juror is to deliberate with the other jurors and to follow the Court's instructions as I've indicated. And the last instruction that I read to the jury, you know, indicates, you know, that you're to treat one another courteously and to share each other's views so that everybody has a fair chance to be heard. [¶] I know that you just had some readback done this afternoon, and I don't know that you've had an opportunity yet to deliberate after the readback has been completed. I have no idea. But, you know, the jury instruction does say it's your duty to talk with one another and to deliberate in the jury room. You should try to agree on a verdict i[f] you can. Each of you must decide the case for yourself but only after you discussed the evidence with the other jurors. Do not hesitate to change your mind if you become convinced that you are wrong, but do not change your mind just because other jurors disagree with you. [¶] So that instruction 3550 which you have in the jury deliberation room and I reiterated that to you, but, again, I think what's the only concern I have about your statement to me is letting me know that you're experiencing a high level of stress and that you have these heart palpitations and sounds like pressure on your chest. [¶] So as you sit here right now, um, if you feel that you can continue to deliberate, I'm going to order that you come back Friday morning at 9:00 to continue the deliberation. If you honestly feel health wise that you cannot, I will respect that.

"[JUROR NO. 11]: I'll come back.

"[THE COURT]: Okay. We'll see you Friday morning at 9:00 o'clock.

"[JUROR NO. 11]: Okay. Go to my other job tomorrow?

"[THE COURT]: Excuse me?

"[JUROR NO. 11]: I'll go to my other job tomorrow?

"[THE COURT]: Right.

"[JUROR NO. 11]: Got to go to work. I'll try -- I'll do the best I can.

"[THE COURT]: If you're feeling ill on Friday, I don't want you to come in, you know, with heart pains and chest pains. That's the last thing we need. And jurors don't sign up for the type of stress that makes you sick. So, um, if you believe that you can continue to deliberate, then you need to be back here Friday at 9:00. If you believe health wise that you cannot continue to deliberat[e], I would excuse you.

"[JUROR NO. 11]: I'm going to try to come back.

"[THE COURT]: Okay. We'll see you tomorrow, Friday morning, at 9:00.

"[JUROR NO. 11]: I'm sorry.

"[THE COURT]: That's okay."

Juror No. 11 returned on Friday and the jury continued its deliberations for another day or so, arriving at a verdict of guilty as to the charge of second degree murder.

The court sentenced defendant to 15 years to life in state prison with the possibility of parole.

Defendant timely filed a notice of appeal.

DISCUSSION

Defendant contends the trial court failed to conduct an appropriate inquiry based on Juror No. 11's statements regarding the conduct of other jurors.

The trial court has a duty to "conduct a sufficient inquiry to determine facts alleged as juror misconduct 'whenever the court is put on notice that good cause to discharge a juror may exist.'" (People v. Davis (1995) 10 Cal.4th 463, 547, quoting People v. Burgener (1986) 41 Cal.3d 505, 519.) The decision whether to investigate the possibility of juror misconduct rests within the sound discretion of the trial court. (People v. Bradford (1997) 15 Cal.4th 1229, 1348.) The exercise of that discretion does not necessarily require a formal hearing, particularly where the court conducts an adequate "self-directed inquiry" of the alleged misconduct. (People v. DeSantis (1992) 2 Cal.4th 1198, 1234; see also People v. Beeler (1995) 9 Cal.4th 953, 989.)

"'The decision whether to investigate the possibility of juror bias, incompetence, or misconduct--like the ultimate decision to retain or discharge a juror--rests within the sound discretion of the trial court. [Citation.] The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial.'" (People v. Osband (1996) 13 Cal.4th 622, 675, distinguished on other grounds in People v. Lucero (2000) 23 Cal.4th 692, 714.) "'[A] hearing is required only where the court possesses information which, if proven to be true, would constitute "good cause" to doubt a juror's ability to perform his duties and would justify his removal from the case.' [Citation.]" (Osband, at pp. 375-376.)

By failing to object to the scope of the trial court's inquiry, defendant forfeited his claim that the court's inquiry was inadequate. "[A]s a general rule, 'the failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on appeal.' [Citations.] This applies to claims based on statutory violations, as well as claims based on violations of fundamental constitutional rights." (In re Seaton (2004) 34 Cal.4th 193, 198.) Where a defendant fails to object to the trial court's proposed response to a jury note, he has given tacit approval to the trial court's response, and objection to the response is not preserved for appeal. (People v. Boyette (2002) 29 Cal.4th 381, 430.) Here, the court met with counsel and shared Juror No. 11's communication before responding to the note or conducting any inquiry. The court invited the parties to indicate "additional areas you wanted me to inquire as to." The only limitation placed on that invitation was the court's comment that it was "going to be extremely cautious" and not "get into the jury deliberations and what's being said." Also, at one point during the juror's colloquy with the court, defense counsel approached the bench for a sidebar discussion. Defendant neither objected to the nature nor scope of the court's inquiry into Juror No. 11's statements, nor did he request any additional inquiry. Had he done either, the court could have exercised its discretion to determine whether further inquiry was warranted. By failing to object, defendant deprived the court of the opportunity to correct any deficiency in the inquiry it had already conducted. Having failed to raise the issue in the trial court, defendant cannot now argue for the first time on appeal that the trial court's inquiry was insufficient or inappropriate. Defendant's claim of error regarding the court's inquiry of Juror No. 11 is forfeited.

In any event, defendant's claim fails on the merits. Juror No. 11 notified the court she wanted to be excused. The court immediately notified counsel and stated its intent to make inquiry regarding Juror No. 11's ability to continue deliberations, to possibly question the jury foreperson and, after conducting its inquiry, to give counsel the opportunity to state any additional areas of inquiry. The court noted that inquiry would not include "the jury deliberations and what's being said," but would focus on Juror No. 11's health and ability to continue deliberations.

The court committed no error. To the contrary, as intended, the court's questions focused on Juror No. 11's physical symptoms and the manner in which deliberations were negatively impacting her health. Juror No. 11 explained that her heart was "racing, racing, flipping, flipping" and "squeezing" and said she had "blood pressure issues" and trouble sleeping. When initially asked if she felt as though she could continue, she was unsure. After a brief unrecorded discussion at the bench at defense counsel's request, the court explained to Juror No. 11 that jury deliberations "can be heated" and people have "impassioned views" and "strong feelings," however, the process should not include "a person getting sick over it and feeling like they're [a] quitter." Juror No. 11 asked, "So I should just continue to hold my view no matter what?" In response, the court reminded her that her obligation as a juror was "to deliberate with the other jurors and to follow the Court's instructions." The court reiterated CALCRIM No. 3550's instruction to talk and deliberate with the other jurors and try to agree on a verdict if possible. It noted that Juror No. 11 should "not hesitate to change your mind if you become convinced that you are wrong, but do not change your mind just because other jurors disagree with you." When asked whether she felt she could continue to deliberate, Juror No. 11 indicated she could.

Juror No. 11 returned and the jury continued to deliberate for three days, eventually reaching a unanimous guilty verdict. There is nothing in the record to suggest she made any subsequent requests to be excused or complained about other jurors or the deliberation process in general. Indeed, when the jury was polled, she indicated she was in agreement with the verdict.

Defendant argues the court failed to inquire about the specific complaints Juror No. 11 made regarding other jurors. Conceding it "is not necessarily misconduct for a juror to argue his or her opinions aggressively," defendant argues it "is misconduct for a juror to refuse to deliberate" altogether. However, Juror No. 11 never indicated to the court that any of the other jurors were refusing to deliberate, only that deliberations were stressful because she felt "targeted and interrogated," and that some jurors had a verdict in mind at the start of deliberations and were "annoyed and agitated [with] any different point of view." The fact that deliberations were contentious and stressful to Juror No. 11, and that other jurors who felt strongly about their own points of view were "annoyed and agitated" with the position taken by her, did not require the court to make the inquiry defendant now urges. (People v. Johnson (1992) 3 Cal.4th 1183, 1255 ["[J]urors can be expected to disagree, even vehemently, and to attempt to persuade disagreeing fellow jurors by strenuous and sometimes heated means"].) Moreover, the fact that deliberations continued for three more days after the court's inquiry, and that the jury reached a unanimous verdict without incident, indicates that defendant's speculation regarding alleged misconduct is unfounded.

The court's inquiry regarding Juror No. 11's ability to continue to deliberate was appropriate. There was no error.

DISPOSITION

The judgment is affirmed.

We concur:

BLEASE , Acting P.J. NICHOLSON ,J.


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