(Los Angeles County Super. Ct. No. BA348056)
The opinion of the court was delivered by: Croskey, J.
CERTIFIED FOR PUBLICATION
ORIGINAL PROCEEDINGS in writ of prohibition. Bob S. Bowers, Judge. Petition denied.
In Curry v. Superior Court (1970) 2 Cal.3d 707, 713 (Curry), our Supreme Court held that "mere silence" in the face of the proposed discharge of a jury does not constitute consent to the dismissal of the jury, and the subsequent mistrial, so as to defeat a defense assertion of double jeopardy. In this case, defense counsel participated in discussions which led the trial court to believe that counsel had consented to the procedure which ultimately resulted in the dismissal of the jury, prior to opening statements. When defendant subsequently moved for dismissal, asserting double jeopardy, the trial court held that defense counsel's conduct constituted implied consent, and denied the motion. We conclude that the record supports the trial court's conclusion; Curry has no application when counsel's conduct goes beyond "mere silence," and his words and actions reasonably lead the court to believe he consents. We therefore will deny defendant's petition for a writ of prohibition.
Very shortly after the jury and four alternates were sworn in a double-murder case, a number of jurors asserted reasons why they needed to be excused from service. One juror revealed a previously undisclosed bias, and was dismissed. An alternate juror revealed a previously undisclosed child care obligation, and was dismissed at the request of the defendant. Another juror's fiancee had broken her ankle and required the juror's constant attention. The record does not reflect whether this juror was actually dismissed, but it appears that the trial court and counsel assumed that he had been excused. A fourth juror asserted that he had contracted contagious conjunctivitis (pinkeye), and was under doctor's orders to stay home for two days. The trial court posited the question as to whether it should wait for this juror to get well, and a discussion was held with counsel. Both the prosecutor and the trial court believed that the result of the conversation was an agreement that the trial would not proceed unless there was at least one alternate. As a single alternate would be preserved if the trial were continued in order to retain the juror with pinkeye, the trial court proposed to counsel that it would ask the remaining jurors if they all would still be able to serve if the commencement of the trial were delayed for two days. The trial court expressed the view that if any other jurors asserted an inability to serve if the trial were continued, the court would grant a mistrial and dismiss the jury. Hearing no objection, the trial court proceeded with that course of action. A fifth juror then expressed concern, stating that he had "had a heart attack." The trial court held another conference with counsel and, relying on what it believed to be the agreement it had previously reached with counsel, and hearing no objection, dismissed the jury and declared a mistrial. A new trial date was set.
Thereafter, the defendant added a plea of once in jeopardy. He moved to dismiss the criminal charges against him on the ground of double jeopardy, arguing that there was no legal necessity for, or consent to, the mistrial. As already noted, the trial court denied the motion on the basis that defendant had impliedly consented to the dismissal of the jury and the resulting mistrial. Defendant sought review by petition for writ of prohibition. We issued an order to show cause and now will deny the petition. A careful review of the record reflects that the actions and statements made by defense counsel during the discussions with the trial court regarding the reduction in the number of available jurors, including, but not limited to, counsel's failure to object to the court's proposed plan of action, were sufficient to cause the court to harbor a reasonable belief that counsel had consented thereto. As we explain in this opinion, this was sufficient, under all of the circumstances, to constitute implied consent.
FACTUAL AND PROCEDURAL BACKGROUND
On October 14, 2009, defendant was charged by information with two counts of murder, in addition to other offenses. It was alleged that he had suffered four prior serious or violent felony convictions or juvenile adjudications. He entered a plea of not guilty. The prosecution elected not to seek the death penalty.
Jury selection commenced on November 3, 2011. Prior to the commencement of voir dire, defense counsel mentioned that a defense expert witness would be unavailable from November 16 through the middle of December. He requested permission to take the witness out of order if the prosecution had not finished its case-in-chief by November 15. Both the prosecutor and the trial court agreed to that request.
Jury selection took place on November 3 and November 4, 2011. Once the panel was selected, the trial court inquired of counsel as to the number of alternate jurors sought. Defense counsel stated, "You know, because we are butting up against the holidays, I am thinking four." The prosecutor and the trial court agreed. Counsel then stipulated to four alternate jurors. The trial court swore the jury and alternates. After an introductory instruction regarding conduct of independent research or discussion about the case, the trial court excused the jury until Monday, November 7, 2011.
Shortly thereafter, Juror 3 asked to speak with the court. He indicated that he had previously worked as a victim's advocate for the City Attorney's office. He stated, "I think it is highly unlikely that I will be fair and impartial as a juror." The juror was excused;*fn1 defendant concedes that it was proper to dismiss Juror 3.
Thus, when the matter reconvened on Monday, November 7, it was necessary to select an alternate to replace Juror 3, leaving only three alternates. However, some additional issues had arisen with other jurors.*fn2 The trial court, with counsel present, therefore called in several of the jurors individually.
The first juror was Juror 4. He explained that his fiancee, with whom he lived, had slipped on a wet towel and broken her ankle. They went to the emergency room "last night." The juror's fiancee was using crutches and had a hard time getting up and down the stairs. The juror believed someone had to be home with his fiancee to look after her, and asked to be excused in order to do so.*fn3 At sidebar, the trial court indicated that it did not know why a grown woman could not stay downstairs during the day, but that it could not pursue that line of inquiry without going into "an attack mode" and questioning the juror about the configuration of his house, which the court was reluctant to do. The trial court stated to counsel, "I see no choice unless you have something better" - the comment apparently referred to excusing the juror. Defense counsel understood the trial court's statement as such, replying, "Well, the only thing that is starting to worry me is we haven't begun the trial." The trial court responded, "It gets worse, trust me. I'm just worried about [Juror] 4 at this point." Defense counsel agreed that the trial court should not question the juror about the configuration of his house, but asked the court to inquire if there was any alternative to Juror 4 being the caretaker for his fiancee. The trial court inquired; Juror 4 responded, "Not really. We live alone. It's just the two of us. She's afraid to walk around without the, with the crutches." The trial court directed Juror 4 to wait in the hallway. However, it appears that the trial court intended to excuse the juror. When the trial court had sought alternatives to dismissing the juror, defense counsel had requested only that the juror be asked if there was any alternative to him being the sole caretaker. The question was posed to the juror and he had responded that there was not.*fn4
The next juror with a problem was an alternate, Juror 32. She had previously stated in voir dire that she had a 3-year-old child. Now, she stated that she was the only person who could care for the child from 9:00 a.m. to 2:00 p.m., while her husband was at work. The trial court did not doubt the juror's representation, but questioned why she did not raise the issue when questioned earlier. After hearing the juror's explanation, the trial court concluded that the juror had made "a conscious decision to sit throughout this entire jury selection process, hoping that they won't pick [her] and so if [she was] not picked, then [she would] fulfill [her] jury service for this year and everything [would] be okay." Concluding that the juror had gambled and lost, the trial court stated that she was required to remain on the panel. However, defense counsel later requested that the juror be excused and the court granted the request.
The final juror with an issue for the court was Juror 6. He presented the trial court with a piece of paper on Kaiser Permanente letterhead, entitled "Temporary Jury Duty Release." The document stated, "This patient is placed on temporary jury duty release from November 6 through November 8th. Prognosis good. Patient is home bound or bed bound." When the trial court asked for an explanation, the juror stated, "Basically I have a case of [pinkeye], and my eye has been bothering me so I went to the doctor on Sunday, and she gave me medication for it, and she said it's really contagious and I should stay home." A sidebar conference followed.
The trial court stated, "With this man, all I can say is we put it over to the 9th, if I can be assured he would come back on the 9th. At any rate, we can do that. If that's not what you want to do, we'll move on that, too." The trial court then stated, "If you don't want to wait for this, this person is gone also, . . . . "*fn5 Subsequently, the trial court stated, "This person, I haven't heard a decision on him yet, and we are down three people at this point."*fn6
The trial court also proposed the following course of action: "Also what I want to say is, if we are down to no alternates, when I call them in the room before we go any farther, I'm going to say look, I don't know exactly when this will end at this point. You could be here until the last week in November. I don't know. I cannot do that. Let me know right now. If somebody raises their hand, we are done."*fn7 Neither counsel disagreed with this proposition. Defense counsel's*fn8 only response was "Right now where we are at, the only problem I have is making sure my expert's testimony --"*fn9 (Italics added.) The following colloquy then occurred:
"[The prosecutor]: I don't mind taking her testimony out of order. I think we should wait for him. I would rather have at least one alternate. That makes me uncomfortable without an alternate.
"The court: The bottom line is we are done.[*fn10 ]
"[The prosecutor]: I would like to keep him than not have no alternates [sic]. If it means waiting until the 9th, that's okay with me, and I'm letting his witness testify out of order.
"The court: All right. All right. Thank you."[*fn11 ]
Clearly, it would have been the better practice for the trial court to have restated its understanding of the parties' agreement and expressly elicited their consent to it on the record. Nonetheless, it seems clear that the trial court understood that: (1) both parties agreed to the court's proposed procedure that, if they were down to no alternates, the court would ask if there were any additional jurors who would be unable to serve if the trial were delayed for two days, and to dismiss the jury if any jurors indicated they were so unable; and (2) the parties also agreed that the trial would not proceed without at least one alternate. Thus, the second agreement modified the first. As it was necessary to continue the trial in order to retain one alternate, the court proceeded to ask the jurors if any of them would be unable to serve.*fn12
The trial court then called the jury in, and made the following statement to the remaining jurors: "Ladies and gentlemen, I have to gauge my words very carefully. An incredible course of events has occurred since you stood up and were sworn in last Friday afternoon. [¶] Juror number 3 immediately after that swearing in and after you left, came up with some reasons all of a sudden as to why he could not serve and be a fair and impartial juror. I will have a contempt hearing with him this Wednesday. [¶] Another one of your number's significant other had an accident over the weekend, which will now require his constant attention.[*fn13 ] [¶] Another of your group all of a sudden we find has a three-year-old daughter who has no one to look after her for the period of time in which she will be on jury duty in this case. That was not made known. [¶] And lastly, another of your number has a condition that requires that we basically would, in essence, have to shut down until the 9th, which would be Wednesday. We would resume Wednesday. [¶] But here's where we are, and I'm going to leave it totally up to you because it is very critical. Sometimes I think I'm talking and I'm making sense and people look at me like they understand me and it turns out it was not true. [¶] Again, I want you to clearly understand if we go forward, this matter won't even start again until Wednesday. But secondly, I'm making no assurances, assurances about anything at this point. And all I can tell you is you have my individual pledge as a bench officer to use your time as efficiently as possible. [¶] Now here's where we are. Come back on the 9th. It will be a full day on the 9th. The 10th would be a half day. You come in the morning on the 10th. You will not come in the afternoon. [¶] The 11th is a court holiday. The following week would be all the way through. The 21st to the 23rd would be all the way through.[*fn14 ] I'm not sure where we will end up so I'm letting you know that flat out front. [¶] Here's the issue in a nutshell. Because we are so short of jurors, I'm not even going to start this if somebody tells me you can't do it. I don't want to invest the time and bring in all [the] witnesses and do what we have to do if somebody believes they can't do this. All you need to do is raise your hand, and I will tell them that it's done at this point because I cannot risk doing this. [¶] I see your hand. I will talk to you.[*fn15 ] All of a sudden - that's what is really funny with people like you. If you had done that when we were doing voir dire, we wouldn't be in this position. You have no problem now, but when you thought you would not be selected, it was okay. As soon as you got selected, then you are telling me, no, no, no, no, no. That's all I ask. That's all I ever ask, just tell me what your condition is. When people hide that, it puts us in a bad, bad, bad place. [¶] Again, please raise your hand, if you cannot do it.
Juror 2 raised his hand, and the court asked, "Number 2, you cannot do it?" Juror 2 responded, "I don't think so because I had a heart attack. I called up the doctor, seen a doctor." As the court had previously stated that the case would be over if a juror expressed an inability to serve, the trial court did not further question Juror 2. Thus, it was not known when the juror had suffered the heart attack, his doctor's recommendation, and whether the heart attack impacted his ability to serve at all or somehow limited only his ability to serve if the trial went longer than originally planned.*fn16
In any event, the trial court held another sidebar conference with counsel, in which the court stated, "I believe they win."*fn17 Neither counsel expressed disagreement with the court's expression of defeat.*fn18 The trial court then dismissed the jury and declared a mistrial. In explaining this ruling, the trial court stated, "We simply do not have qualified jurors who can serve, and as a result, it was agreed that if we would have had only 12 jurors, we would start over, and, in addition, I believe it was number 2 that made it fairly clear in all probability we would not have even one alternate before this was over with." At no point did either counsel indicate any disagreement with the trial court's statement, "it was agreed that if we would have had only 12 jurors, we would start over." Defense counsel, who now asserts there was no such agreement, stated, in his declaration in support of the motion to dismiss, "I did not hear his honor make this comment during the court proceedings as I was conferring with [defendant] at counsel table."
The trial court set the matter for a new trial date. Defense counsel took part in this conversation, and at no time suggested that the mistrial had been declared without consent and a new trial would therefore be barred by principles of double jeopardy.
Approximately one month later, defendant added a plea of once in jeopardy and moved to dismiss the prosecution. Defendant argued that there was neither a legal necessity for, nor consent to, the declaration of mistrial.
The prosecutor opposed the motion on the basis of implied consent. The prosecutor noted that: (1) when the trial court proposed its plan to ask the jurors if any of them had a problem serving into the last week in November, and to end the proceedings if any of them answered in the affirmative, defense counsel made no objection to the court's proposal;*fn19 (2) when the prosecution indicated that it wanted to preserve at least one alternate, even if it meant taking defendant's expert out of order, this, too, became part of the agreement; and (3) after the trial court dismissed the jury, it placed on the record that the parties had agreed to start over if they did not have at least one alternate. ...